This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
Updated 4:45 p.m.
The Pennsylvania Supreme Court has handed a huge victory to education advocates who for decades have argued that the state’s system for funding education is profoundly inequitable and discriminatory.
In a 5-2 decision, the seven justices ruled Thursday in an 86-page decision that a lawsuit seeking reform brought by several school districts and individual parents, including some from Philadelphia, can proceed to trial.
"It is exciting that now a serious look can be taken on whether this is an equitable school funding system we have," said Len Rieser, the former longtime executive director of the Education Law Center, one of the groups representing the plaintiffs. Rieser is also a member of the Notebook board of directors.
Pennsylvania not only has the widest gaps between wealthy and poor school districts of any state in the country, but residents of low-income districts often tax themselves at much higher levels to raise much less money for their schools. That is because state education aid has not kept up with need — and the way the state aid is distributed for decades has been more beholden to politics than to a reliable formula that is based on measures of poverty, tax effort, and other criteria.
With this ruling, the court reversed its longstanding position that school funding is a legislative prerogative and that the courts should not get involved.
“Judicial review stands as a bulwark against unconstitutional or otherwise illegal actions by the two political branches,” the ruling said.
The advocates argued that the funding system had grown so out of whack that it violated two clauses of Pennsylvania’s constitution: one mandating a "thorough and efficient" education to all students in the Commonwealth, and another guaranteeing equal protection under the law to all citizens. The Court ruled that the current funding system violates both provisions.
Two justices, Chief Justice Thomas G. Saylor and Justice Max Baer dissented, largely on the grounds that the courts are ill-suited to get involved in the minutiae of education policy. Saylor, in his lengthy opinion, cites what happened in other states, including New Jersey, where the courts ordered the legislature to send more money to the 30 poorest districts in the state and ordered state-run preschool, among other interventions over several decades of court oversight of education spending.
“I believe we should continue to view the concept of an adequate education attainable via a thorough and efficient system as being a function of educational policy choices made by the Legislature and involving public policy concerns, which are properly the domain of legislative discretion,” Saylor wrote.
The case will now go back to Commonwealth Court for trial, although a timetable on when that might happen is far from clear. And after the ruling, the advocates suggested that they planned to pursue a political solution with the governor and legislature along with the litigation.
“We don’t have to wait for a trial for Harrisburg to begin the process of adequately funding Pennsylvania’s schools,” said Deborah Gordon Klehr, the ELC’s current executive director.
Gov. Wolf, whose attorneys argued during last year’s hearing against judicial intervention, issued a statement saying that he has "steadfastly fought to address education funding in Pennsylvania, especially for struggling and disadvantaged districts, having secured more than $800 million in new funding in the past three years alone."
He praised the decision, saying it "validates my long-held position that the commonwealth must further examine the equity and adequacy of public school funding.”
House Republicans, by contrast, issued a statement blasting the decision. "This activist court just threw out more than 150 years of jurisprudence. This decision should be very alarming for all Pennsylvania taxpayers and communities," the statement said, adding that Republicans prefer “more cost-effective, innovative ways to improve the outcomes for students.”
Education in Pennsylvania and most other states is financed through a combination of local, state and federal money, with localities bearing most of the burden. State aid is designed to compensate for differences in local wealth, but it rarely closes the gap entirely.
There is a long trail of litigation in Pennsylvania over school funding. Philadelphia filed suit originally in 1979 arguing that it lacked sufficient funds to adequately educate its students and that Pennsylvania was in violation of the state constitution. The suit was dismissed.
In 1991, the Pennsylvania Association of Rural and Small Schools (PARSS) argued that the formula hurt the mostly small districts that were losing population, industry and mines. After eight years, they lost.
Philadelphia filed suits in both state and federal courts in the 1990s alleging that the formula violated the “thorough and efficient” constitutional mandate and discriminated against students of color. The state lawsuit was dismissed; the federal lawsuit was dropped.
The School District of Philadelphia was not a plaintiff in this suit, although several city parents were.
In all the state cases, the Pennsylvania judiciary held that the issue was not “justiciable,” and that education funding was a function of the governor and legislature.
But in this ruling, written by Justice David Wecht, it said: “It is fair neither to the people of the Commonwealth nor to the General Assembly itself to expect that body to police its own fulfillment of its constitutional mandate.“ This is especially so in light of the many competing and not infrequently incompatible demands our legislators face to satisfy non-constitutional needs, appease dissatisfied constituents, and balance a limited budget in a way that will placate a majority of members in both chambers despite innumerable differences regarding policy and priority.”
The plaintiffs had thought that they had more ammunition than prior cases for their argument because the legislature has codified state standards regarding test scores and graduation. But the justices did not make their decision based on that, saying that standards and regulations over schools are constantly being set and revised.
School funding cases have been filed in most states, meaning the court can hear the underlying case, Gordon Klehr pointed out.
Since 1993, Pennsylvania has lacked a school funding formula that is predictable, adjusted for enrollment fluctuations, and weighted for students with extra needs such as English language learners and those in poverty. Aid was doled out based on what a district received the prior years; increases came in the form of special supplements often targeted to specific districts.
During that time, the state share of total education spending dropped to around 34 percent. The national average is closer to half. That put more of a burden on localities to raise money for their schools, and poorer districts fell further behind in per pupil spending.
For instance, William Penn School district in Delaware County, the lead plaintiff, spends $16,845 per student, while Lower Merion, just a few miles away, spends $28,495.
A legislative commission established a formula in May 2016, but then the General Assembly decided to apply it to just new funds, not the entire amount. Now, the formula covers only about 7 percent of state aid, doing little to correct the inequities that have built up over the years without a formula.
That commission specifically did not seek to determine what was actually necessary for the state to spend in order for all students to receive an adequate education. In 2007, the state released a “costing out study” saying that $4.4 billion more in spending was required for all districts to reach adequacy, with $1 billion of that for Philadelphia.
“We have no doubt that we will be able to prove at trial that decades of inadequate and inequitable funding have resulted in an unconstitutional system of public education that is neither thorough nor efficient,” said Maura McInerney, legal director at Education Law Center. “In no other state do students in poor districts receive so much less than their peers in wealthier districts.”
Michael Churchill of the Public Interest Law Center has been involved in litigation around fair funding for decades.
“Proving inadequate and inequitable funding we don’t think is going to be a difficult chore,” he said. “The fact that the formula the legislature adopted itself is not being used for 93 percent of the funds being put out is as good a demonstration of any of the inequity of the system by the legislature’s own criteria.”
Two of the parent plaintiffs, Jamella and Bryant Miller, whose children attend the William Penn School District, said they were gratified. “This vindicates what we’ve been saying all along, that our students are disadvantaged simply because of our zip code,” Jamella Bryant said.
Jennifer Hoff, president of the William Penn school board, said that deciding to become part of the lawsuit was not a slam dunk. “We knew there were pros and cons,” she said. It’s not easy to get up and say, ‘hey, we’re getting shortchanged here.’ But who would want to send their child to a school that was chronically underfunded…This is what we’ve been praying for for a long time.”
Edward R. Albert, the current president of PARSS, called it “a victory for rural schools across the state who struggle to provide resources for their children’s needs.” The declining tax bases of many of Pennsylvania’s rural communities “makes it difficult for them to raise funding to make up the shortfall from the state.”
The ruling was also met with enthusiasm from education advocates, including Philadelphia Federation of Teachers’ president Jerry Jordan.
"This decision is an enormous victory for the schoolchildren of Pennsylvania. The lawsuit, and our efforts to provide every student with a quality education, will continue. Today was a monumental step toward ensuring that our state constitution’s ‘thorough and efficient system of public education’ clause lives up to its meaning," Jordan said in a press release.