Wil­liam Penn-led fund­ing law­suit isn’t ‘moot,’ ar­gue lawyers

Daily Times (Primos, PA) - - NEWS - By Kevin Tustin ktustin@21st-cen­tu­ry­media.com @Kev­inTustin on Twit­ter

The Philadel­phia-based law firms rep­re­sent­ing over a dozen pe­ti­tion­ers in an ed­u­ca­tion fund­ing law­suit against the state have filed their re­sponse with the Com­mon­wealth Court of Penn­syl­va­nia why the case is not legally moot, cit­ing a $155 mil­lion drop in funds for class­room ex­penses since 2013 and the ex­pand­ing gap of spend­ing be­tween wealthy and poorer school dis­tricts.

The Pub­lic In­ter­est Law Cen­ter and the Ed­u­ca­tion Law Cen­ter – with as­sis­tance from the firm O’Mel­veny & My­ers LLP - filed a 112-page re­sponse to the court Fri­day morn­ing in the case Wil­liam Penn School Dis­trict et. al. v. Penn­syl­va­nia Depart­ment of Ed­u­ca­tion et. al. to re­but the pre­lim­i­nary ob­jec­tion brought by co-de­fen­dant state Se­nate Pres­i­dent Pro-Tem­pore Joe Scar­nati, R-25 of Jef­fer­son County, chal­leng­ing the con­sti­tu­tion­al­ity to pro­vide a fair and eq­ui­table ed­u­ca­tion sys­tem.

At the core of the pe­ti­tion­ers’ ar­gu­ment is Act 35 of 2016, which es­tab­lished the use of a ba­sic ed­u­ca­tion fund­ing for­mula created and ap­proved by the bi-par­ti­san Ba­sic Ed­u­ca­tion Fund­ing Com­mis­sion. This for­mula takes into ac­count the num­ber of chil­dren in a dis­trict who live in poverty, en­rolled in char­ter schools, English lan­guage learn­ers, and other de­mo­graphic iden­ti­fiers to ap­pro­pri­ately al­lo­cate money to dis­tricts to en­sure dis­tricts are equal. In use since the 2015-16 bud­get, only new funds added to the ba­sic ed­u­ca­tion bud­get line item – $538 mil­lion dol­lars from $6 bil­lion for 2018-19, ac­cord­ing to the Penn­syl­va­nia Depart­ment of Ed­u­ca­tion – are ap­plied to the for­mula and dis­trib­uted as ap­pro­pri­ately to the state’s 500 dis­tricts. Scar­nati has said the fair fund­ing for­mula that has been en­acted since the suit was filed in 2014 has fixed the state’s fund­ing prob­lem, declar­ing the case moot.

“In­ter­ven­ing leg­is­la­tion like Act 35 can­not ren­der a claim moot if it does not ac­tu­ally ad­dress the un­der­ly­ing prob­lem—here, Re­spon­dents’ fail­ure to ad­e­quately fund pub­lic ed­u­ca­tion,” read a por­tion of the re­sponse.

Pe­ti­tion­ers ar­gue that from 2014 to 2017, the un­re­im­bursed dis­trict con­tri­bu­tions to the state pen­sion pro­gram have in­creased $867.6 mil­lion dol­lars, while ba­sic ed­u­ca­tion, special ed­u­ca­tion and Ready to Learn Block grants in that same time­frame have in­creased $712 mil­lion, an over­all loss of $155 mil­lion for class­room ex­penses.

Pe­ti­tion­ers Wil­liam Penn and Wilkes Barre school dis­tricts have lost up to 10 per­cent of their teach­ing staffs in the last few years, Shenan­doah Val­ley School Dis­trict can­not pro­vide bus­ing to all of its stu­dents and a mid­dle school in Greater Johnstown had to close be­cause it could not af­ford re­pairs, all due to lack of ap­pro­pri­ate fund­ing.

In the class­room, per­for­mance on state-man­dated as­sess­ment tests show the ma­jor­ity of stu­dents in poorer school dis­tricts not earn­ing a pro­fi­cient (pass­ing) score in the test­ing ar­eas of al­ge­bra I, literature and bi­ol­ogy.

“These poor stu­dent out­comes, as well as the over­whelm­ing ev­i­dence of on­go­ing re­source, staff, and cur­ricu­lum de­fi­cien­cies, lay bare the hol­low­ness of Re­spon­dents’ moot­ness ar­gu­ment,” read the ar­gu­ment. “Act 35 failed to in­crease statewide ed­u­ca­tion fund­ing, failed to pro­vide Pe­ti­tion­ers and other school dis­tricts with the ba­sic re­sources they need to pro­vide a thor­ough and ef­fi­cient ed­u­ca­tion, and, pre­dictably, failed to mean­ing­fully im­prove stu­dent per­for­mance by any mea­sure.

Ad­di­tion­ally, the pe­ti­tion­ers ar­gue that with new money added each year to the ba­sic ed­u­ca­tion fund, and, thus, ap­pli­ca­ble to be ap­por­tioned by the fair fund­ing for­mula, some of that money is al­ready ear­marked to cer­tain dis­tricts.

Mark Price, a la­bor econ­o­mist with the Key­stone Re­search Project, wrote in his af­fi­davit about a law signed in 2017 that will add $14 mil­lion an­nu­ally to the low-wealth Erie City School Dis­trict, claim­ing that money will come from the $100 mil­lion added to the ba­sic ed­u­ca­tion funds for 2018-19. Ad­di­tion­ally, with the sign­ing of Act 35, emer­gency funds in the amount of $3 mil­lion and $12 mil­lion will be awarded an­nu­ally to the base fund­ing of fi­nan­cially-distressed Wilkins­burg and Ch­ester Up­land school dis­tricts, re­spec­tively.

Be­cause the state funds ap­prox­i­mately 35 per­cent of pub­lic ed­u­ca­tion, school dis­tricts rely over­whelm­ingly on their lo­cal tax bases to sup­ple­ment their bud­gets. The ar­gu­ment shows that the seven pe­ti­tion­ing dis­tricts spend an av­er­age $9,900 per stu­dent, lower than the av­er­age $15,748 spent by the state’s 100 wealthy dis­tricts. The gap in av­er­age per stu­dent spend­ing from 2013 and 2017 by the 100 hun­dred poor­est dis­tricts and wealth­i­est dis­tricts is re­ported to have in­creased from $3,000 to al­most $3,800.

Fur­ther, the pe­ti­tion­ers’ equal­ized tax mill­age rates are sub­stan­tially higher than the richer dis­tricts with Wil­liam Penn hav­ing the high­est in Delaware County and among its co-pe­ti­tion­ers by at least four mill­age points.

“As a re­sult (of in­ad­e­quate fund­ing), low-wealth dis­tricts con­tinue to pay higher taxes while hav­ing rad­i­cally less to spend on the State’s need­i­est stu­dents,” read the ar­gu­ment.

The ar­gu­ment added, “But be­cause the BEF ‘base’ is fixed in per­pe­tu­ity and ex­cluded from the for­mula, many lowwealth dis­tricts will con­tinue to get less than the Gen­eral Assem­bly’s own for­mula holds they are en­ti­tled to.”

At­tor­ney Michael Churchill of the Pub­lic In­ter­est Law Cen­ter said in a pre­pared state­ment af­ter the re­sponse was filed that only the most wealthy dis­tricts can make up for fi­nan­cial drain while poorer dis­trict have the high­est tax and strug­gle to pro­vide the most ba­sic re­sources.

“Any sug­ges­tion that the Legislature fixed these prob­lems with the for­mula is ab­surd,” he said. “If the Legislature con­tin­ues to short­change schools, a child’s op­por­tu­ni­ties will con­tinue to be de­ter­mined by the ac­ci­dent of their zip code.”

Lawyers said in their ar­gu­ment that each de­lay in pro­ceed­ings to go to trial there is only a mi­nor change in yearly ap­pro­pri­a­tions for ed­u­ca­tion.

“While such an ar­gu­ment (for moot­ness) might have merit if Act 35 had ac­tu­ally reme­died Re­spon­dents’ on­go­ing con­sti­tu­tional vi­o­la­tions and solved the fund­ing prob­lems iden­ti­fied in the Pe­ti­tion,” read a por­tion of the re­sponse,” Act 35 did no such thing. In­deed, con­trary to Re­spon­dents’ re­peated as­ser­tions, Act 35 did not ‘re­place’ or ‘sup­plant’ the school fund­ing scheme. It en­shrined the ex­ist­ing scheme’s in­ad­e­quacy and in­equity in per­pe­tu­ity.”

The con­clu­sion said that chil­dren in low-wealth dis­tricts will con­tinue to at­tend crum­bling schools with out­dated teach­ing ma­te­ri­als and lim­ited ac­cess to ba­sic re­sources like li­brar­i­ans and nurses.

“These chil­dren and their school dis­tricts con­tinue to have a stake in the out­come of this law­suit, which aims to rem­edy those prob­lems and the State’s on­go­ing con­sti­tu­tional vi­o­la­tions. Ac­cord­ingly, the Court should deny Se­na­tor Scar­nati’s moot­ness ap­pli­ca­tion and per­mit this case to move swiftly to­ward trial.”

Moot­ness was the only pre­lim­i­nary ob­jec­tion Com­mon­wealth Court Judge Robert Simp­son com­pletely up­held in a me­moran­dum opin­ion he re­leased in May that al­lowed the pe­ti­tion­ers 60 days to file a re­sponse. Simp­son over­ruled ob­jec­tions brought by the state’s ex­ec­u­tive-level re­spon­dents in re­gard to sov­er­eign im­mu­nity and sep­a­ra­tion of pow­ers doc­trine, but he al­lowed lim­ited dis­cov­ery on con­sti­tu­tional rights and ju­di­cial scru­tiny to be ap­plied in the case. The lat­ter two ob­jec­tions will even­tu­ally be over­ruled out­right.

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