Courts, Schools and Politics



Last week, I attended a session of the Pennsylvania Supreme Court.  The case I heard asserted that the way in which the State funds public education violates Pennsylvania’s constitution.  Similar tests in other states challenging large disparities in the resources available to students depending on what school they attend have resulted in a wide variety of outcomes.

There are compelling philosophical and political arguments in favor of doing whatever it takes to ensure that all students, regardless of the zip code in which they live or their family circumstances, get a quality education.  We may differ about exactly what that phrase means and about the best way to achieve it, but it should be a goal that unites us.

The public rhetoric in this country is overwhelming pro-education.  Presidents like to be seen as education supporters.  So do governors.  So do candidates running for office.  What  makes the argument even more significant is the growing realization that we live in an interdependent world in which our competitors are global, not just local.  Additionally, schools need to prepare students for jobs that require a higher level of skill than they did in the past.

As good a game as we talk, however, our commitment to the “walk” has been disappointing.  Comparisons on internationals tests have shown that we’re not number one.  Employers in this country often complain about the lack of basic skills among job applicants.  And, most relevant to the court cases, there are significant gaps in educational achievement across the country.

Public education in the United States has for much of its history been seen as a local responsibility.  Deference to local control is an article of faith in most debates about schools.  And, for many years, local control brought with it the full burden of financing public schools, usually through local property taxes.  Over time, states have taken on an increased share of that burden, albeit with significant difference in both the amount and the method of distributing those funds.

Two states with which I am most familiar illustrate those differences.  In Maryland, a school funding formula was first established in the 1970s.  Originally known as the Lee-Mauer formula, it has regularly been updated to take account of the need for increased levels of state support and adjustments to the distribution mechanism.  The most recent review is now underway by a commission chaired by former University System of Maryland Chancellor Brit Kirwan.

Maryland’s approach takes into account the local wealth of jurisdictions in allocating funds as well as calculating what level of support is needed to achieve the desired educational outcomes.  While it’s not a perfect system, it’s hardly coincidence that Maryland consistently ranks near the top in national comparisons of state educational performance.

Pennsylvania is a different story.  There is no statutory requirement for school funding.  Instead, the annual budget depends on what the Governor and the State legislature can agree to appropriate.  Under the previous administration of Republican Tom Corbett, state support for public schools was drastically reduced.  Funds have too often been allocated on the basis of political decisions rather than educational ones.  Moreover, with far more school districts than in Maryland, the differences in spending when  local and state funds are combined are often stunning.

The essence of the case before the Pennsylvania Supreme Court is that the State is not fulfilling its own constitutional obligation to provide a “thorough and efficient” system of public education.  While factual support for that contention can be demonstrated by the budget disparities among school districts, the resources available depending on what school a student attends, and enormous variations in educational outcomes, the case I listened to addressed those issues only in passing.

That is because what the Supreme Court was really being asked to decide is whether the question of funding of public schools was one that could even be reviewed by the courts.  The plaintiffs in the case had the challenge of responding to the argument that the issue constitutes a “political question”, one that can be resolved only by the executive and legislative branches of government.

It was clear listening to the questions from the Court that a number of the justices were sympathetic to the “political question” argument.  Why get into a dispute for which there are no clear judicial guidelines for  resolution?  Why put the Court in the position of having to issue an order to a co-equal branch of state government that it wouldn’t be able to enforce?   Why run the risk, as has happened in other states, of taking on a dispute that would drag on for years with frequent appeals from each party?

The other side of that question just as clearly appealed to other of the justices.  Is lack of equal access to a quality education an injustice without a remedy?  Is the Court willing to accept the contention by a lawyer for the State that Pennsylvania satisfies its constitutional obligation merely by providing enough funding to open the school doors?  Is the Court bound by previous practices and interpretations of the Constitution’s education clause or does it have the ability to respond to changing circumstances?  The Connecticut Supreme Court came down decisively on this side of the argument in a ruling last week.

Any lawyer reading this blog will immediately be able to point out that the cases is more complicated than I have described.  Of course it is.  Those legal briefs go on for pages to say nothing of the footnotes.

However, any fair observer in court that day would have concluded that this is a dispute that has two sides.  One, which certainly may prevail, is that the court has no business getting involved.  Even if the Governor and Legislature are not doing a particularly good job of responding to the educational needs of students in Pennsylvania, there’s nothing a court can or should do about it.

Alternatively,  as the plaintiffs , representing students,  parents and school districts, argue, they should at least be given the opportunity to present their arguments in front of a court.  Given the fundamental importance of education in today’s world, is the right approach to duck the question by hiding behind procedural excuses?  We’ve seen more than enough of that behavior from our Congressional representatives in Washington.  Politics as usual isn’t serving us well.  The Pennsylvania Supreme Court doesn’t need to get caught in that quagmire.