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Due to legislative failure, the system for funding schools in Pennsylvania has become so “irrational” and “arbitrary” that the judiciary must intervene, attorneys argued before the state Supreme Court on Tuesday.

Children in some districts have lavish swimming pools, while others graduate from schools not far away without ever having used a computer or seen a library, said attorney Brad Elias, representing several school districts, parents and civil rights groups.

This is wrong, he said, and violates the 140-year-old state constitution, which requires Pennsylvania to “provide for the maintenance and support of a thorough and efficient system of public education” for all students. It also violates the state’s “equal protection” clause, Elias said.

Legislatures and governors through the years “have fallen down terribly. They have not done their job,” said Elias, from the New York law firm of O’Melveny & Myers. He is working pro bono with the Education Law Center and the Public Interest Law Center, which brought the case two years ago.

Pennsylvania now has the widest disparities in the nation when examining spending among its wealthiest and poorest districts. This results in students who live in poverty and need the most getting the least, while students in wealthier districts are showered with amenities in school.

These disparities are largely driven by Pennsylvania’s high reliance on local property taxes to fund public schools, compared to most other states.

The oral arguments in the ornate City Hall courtroom on Tuesday were just to decide whether the justices should exercise any jurisdiction over the matter at all. The plaintiffs maintained that they deserved their “day in court” to prove the merits of their case and show the harm brought about by the current system.

No inherent right to an education

Attorneys for the state countered that only the governor and legislature can set the baseline for what the constitution requires and decide what is fair, equitable, and sufficient to fulfill the constitutional mandate.

The constitution does not confer the right to an education, said John Knorr of the Pennsylvania Attorney General’s Office. “No individual child has any specific right to an education at all” under the constitution, he said.

He argued that the legislature must simply set up “a system.” It has, he said. “And there it remains until the people of Pennsylvania tell us otherwise.”

Beyond establishing a statewide system of education, there is no constitutional requirement, he said. What is needed beyond “opening school doors” is a “policy question.”

Only in “extreme” situations – for instance, if the legislature declined to support an educational system at all – would the plaintiffs have a case, he said. And whether the state should increase its share of state spending to reduce disparities among districts “is a policy question for the political branches,” Knorr said, not a matter for the judiciary.

The framers of the constitution, back in 1874, expected disparities in spending among districts by specifically rejecting a “uniformity clause,” Knorr argued.

The case is at least the third brought since the early 1990s seeking judicial intervention in education funding in Pennsylvania. Commonwealth Court dismissed the case last year, and the Supreme Court agreed to hear the plaintiffs’ appeal.

In previous school funding cases, Pennsylvania justices have declined to intervene.

But the plaintiffs’ advocates maintain that the landscape has changed since those cases after the adoption of state academic standards and the practice of sanctioning districts, schools, and teachers if the standards aren’t met. And the court has changed as well, with three new Democrats elected in November.

Patrick Northern of Dilworth Paxson, arguing for the legislature, disputed the position that the landscape has changed. There have always been standards, he said, and they always change.

“The court has already interpreted the constitution, and put this issue in the hands of the legislature,” he said. The justices should “decline to get into the swamp” of wading into what is fundamentally a political issue.

“Nothing is more political than the distribution of education funds in Pennsylvania,” he said.

Gov. Wolf’s attorney did not speak, but in a separate brief, Wolf took the position that he doesn’t need judicial prodding to “do the right thing” and fight for additional education funding, which he said he is already doing.

Throughout the 90-minute argument, the courtroom was crowded with attorneys, advocates, plaintiffs and their supporters. Joe Bruni, former superintendent of the William Penn School District, the lead plaintiff, was present. Although the School District of Philadelphia is not a plaintiff, School Reform Commission Chair Marjorie Neff came to support Philadelphia parents who are plaintiffs. The District also filed a “friend of the court” brief in the case.

Other spectators watched a live feed in an overflow room. Afterward, city, state and school officials, parents, activists and religious leaders, along with some students from Folk Arts Cultural Treasures Charter School, held a spirited rally on City Hall’s north apron emphasizing the moral responsibility of the state to do the right thing by children.

The Rev. Gregory Holston of the faith-based advocacy group POWER brought up a subject not really touched on in the legal arguments.

“We have to be real about this,” he said, “that racism is at the core of this fair-funding issue.

“I don’t mean racism like the Ku Klux Klan. I am not saying racial animus or those kinds of attitudes, but simply a devaluing of Black children, of Latino children, of children of color, [the idea that] simply because of the color of their skin, they don’t have the same worth or the same value as every other child in the state of Pennsylvania.”

POWER has done a statistical study showing that among equally poor districts, those with a predominantly non-white student body, which are mostly urban, get $2,000 less per student than mostly white ones, which are mostly rural.

Tough questions 

In the courtroom, the justices asked tough questions of attorneys on both sides. They pressed Elias, the plaintiffs’ attorney, about the slippery slope of where their intervention would lead – to judicial policymaking, micromanagement, and prolonged court supervision of education spending and the distribution of funds. And they asked the state’s attorneys repeatedly what was wrong with giving the plaintiffs a chance to argue their case on the merits.

“Why don’t they get their day in court?” Justice Max Baer asked Knorr.

“What they want,” Knorr answered, is vast new state expenditures in education ordered by the judiciary, which is “incompatible with the basic ideas of self-government.” Whether the $11 billion now being spent on education in the state “is not good enough … these are judgment calls.”

In addition to arguing that the current system is not fulfilling the “thorough and efficient” mandate, the plaintiffs also said it violates the equal protection clause of the state constitution.

Justice David N. Wecht asked Knorr: What if the legislature decides that it is OK for one district to have a Cadillac system, while next door, students had no textbooks or desks? When Knorr said, “I can’t imagine that that will come about,” those in the audience audibly reacted.

At one point, Baer asked whether the plaintiffs were suggesting that perhaps it will be necessary to jettison the practice of paying for education primarily through property taxes. Elias pointed out that 27 states have “progressive” education funding, in which low-income districts get more resources, while localities still have the freedom to regulate their own taxes.

Said Baer: If he was suggesting that Montgomery County, for example, tax itself and send 20 percent to Philadelphia, “you might have a civil war.”

After the hearing, advocates fumed at the state’s position.

“The governor and the legislature jointly argued that as long as the schools are open, it doesn’t matter whether they have the resources to operate and ensure that kids meet their standards. And that’s appalling,” said Donna Cooper, executive director of Public Citizens for Children & Youth and a top aide in former Gov. Ed Rendell’s administration.

On this issue, Cooper has become an outspoken critic of Gov. Wolf, a Democrat, for siding with top legislative Republicans in saying that education funding levels are not a matter for the courts to decide.

“It’s disappointing, it’s shortsighted, it’s ill-advised and hopefully it’s a failed strategy,” she said. “I hope the court acts for the kids.”

Wolf spokesman Jeffrey Sheridan defended the governor. During Wolf’s tenure, lawmakers have authorized an additional $460 million in K-12 public education spending.

“The constitution explicitly lays out that this is between the General Assembly and the governor,” said Sheridan. “The governor himself is going to continue fighting for more education funding. Because right now there is not adequate funding for education, but he’s going to introduce more funding in his next budget.”

A statement by Wolf on WHYY’s Radio Times earlier in the summer seems to contradict his legal position Tuesday.

“Our constitution says, ‘thorough and efficient’ education, and I think the William Penn School District suit is questioning whether we’re, in fact, delivering on that,” said Wolf. “I kind of agree we’re not, but the courts will have to rule on that.”

Wolf’s bedfellows in this case had a stronger rebuke of the plaintiffs.

“Plaintiffs can try to mask their argument in any way they choose to, but this is simply an attempt by the plaintiffs to get the Supreme Court to order the General Assembly and the governor to raise taxes,” said Drew Crompton, chief counsel to Senate President Pro Tempore Joe Scarnati, a Republican representing the northwest part of the state.

During the oral argument, Chief Justice Thomas G. Saylor pointed out that state funding already largely benefits poorer districts over wealthier ones.

“The plaintiffs didn’t want to confront this core issue,” said Crompton.

An analysis of per-pupil state funding shows a wide gulf between what the state’s new student-based formula says districts need and the current reality.

As an example, South Side School District –where median income is more than $65,000 – gets significantly more per-pupil aid from the state’s main pot of cash than Reading School District –where median income is less than $27,000.

At the rally, the advocates were optimistic and determined to bring outsized attention to this hearing and the cause.

“All we want is an opportunity to have our day in court,” said State Sen. Vincent Hughes, the Democratic chair of the Senate Appropriations Committee. “This is about fairness and about opportunity.”

Attorneys for the state put forth “a deplorable argument that should shock the sensibilities of every Pennsylvanian. … One, that education is not a right – it is in fact – and two, that inequity is not only inevitable, it is unfixable,” said City Councilwoman Helen Gym. “They are arguing that your child does not have the same rights as another child, that we are not here to give your child an adequate education or a quality education, we’re just here to open up a school door.”

Erie Superintendent Jay Badams came all the way from the northwest corner of the state to be present for the argument. Erie is not a plaintiff, but Badams has been forced to make difficult decisions due to inadequate resources.

As superintendent, he has considered closing his high schools and sending Erie’s students to wealthier neighboring districts so they can get a better education.

“We don’t have books. We had a grandmother at a board meeting saying why can’t my [grand]son have an algebra book,” he said. “We’ve cut everything from our kids, and they don’t deserve to have another thing taken from them. Our kids do deserve their day in court. All the kids in the Commonwealth deserve their day in court.”

The partisan lines here are as blurred as they get in education policy debates.

State Rep. David Parker, a Republican from the Poconos area, stood arm in arm with Democrats and advocates after the hearing, decrying the state’s position.

“I’d like to do better as a legislature, but if we can get some pressure from the judicial system to do that, then let’s do it,” he said. “We haven’t gotten it done. For 25 years, we’ve shortchanged schools all over the state.”

There is no timetable for when the Supreme Court will rule on whether to allow the case to go forward.

Notebook reporter Darryl Murphy contributed to this story.

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