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PHILADELPHIA — Tracey Hughes is a regular at the podium during Wilkes-Barre Area School Board public comment periods, advocating for her own and other children. But on Tuesday, she joined hundreds from across Pennsylvania advocating for state Supreme Court intervention that could reshape education for students statewide.
“I was overwhelmed by the amount of people there,” Hughes said after returning from oral arguments presented to the court in a case pushing for a dramatic change in state school funding. Hughes had decided to join the lawsuit, filed in 2014 by advocacy groups, individuals and several school districts including Wilkes-Barre Area.
The suit contends Harrisburg has failed in its constitutional duty to “support and maintain” a thorough and efficient system of public education. It was dismissed by a lower court on the grounds it was a legislative issue, not a judicial one, something supporters say may have been true a decade or more ago, but no longer.
“To me, it’s a no-brainer,” Hughes said, adding that she felt the attorneys who presented the advocates’ arguments made a convincing case.
The Education Law Center-PA and the Public Interest Law Center have spearheaded the case, filed initially against then-Gov. Tom Corbett and state officials and legislative leaders. The oral arguments presented Tuesday were an attempt to convince the Supreme Court to allow the case to go to trial in Commonwealth Court, where it was dismissed last year.
The argument centers on two requirements in the state constitution, Education Law Center Attorney Maura McInerney said via phone after the hearing: That the state support and maintain a thorough education system, and that all students get equal protection.
“The system of funding has resulted in gross disparities,” McInerney said, because it relies too heavily on local property taxes. Districts with high property values and wealthier residents can provide much better education than those with low wealth.
Similar lawsuits have been attempted in the past, most recently in 1999, and the ruling has essentially been the same: It is a legislative issue, and the courts can’t determine what fair funding is.
In fact, shortly after oral arguments were completed, the conservative Commonwealth Foundation issued a statement making that argument, contending “asking the courts to interfere in the classroom not only sets a concerning precedent but also perpetuates the myth that more dollars automatically lead to more scholars.
Not true, McInerney said. For starters, the state’s own 2007 “costing out study” determined specific dollar amounts districts would need to assure students meet state-mandated education standards. And the state has spelled out specific goals schools must meet in testing results. Those two facts make this case different from past failures, she argued.
More recently, the state adopted a new education funding formula that “is very robust and looks at student-driven factors” like the percentage of English as Second Language students and those from low-income homes, factors that statistically impact student performance.
Yet only new money — amounts above what districts got last year — is distributed with the formula, meaning 94 percent of state money is still doled out the old, inequitable way, McInerney said. And even if it was all distributed with the new formula, the costing out study showed vast discrepancies in what districts are getting and what they need to meet state standards.
McInerney and Hughes said the state attorneys repeated the argument that it was a legislative issue, which Hughes said she felt was like arguing “there are more or less two branches of government.”
McInerney noted one judge “specifically asked how can we have a right without a remedy?”
McInerney also pointed out that in 27 states, the state supreme courts overturned the school financing system, and that one study found those states that changed the funding system by judicial decree saw clear improvement in school achievements.
And she dismissed the argument by attorneys for the state who said a court order would cause great turmoil and problems, and could lead to recurring judicial intervention in the legislative process.
“That’s belied by so many states having declaratory judgment to compel the legislature to go back and come up with a plan. One state did it in six days.”
Several Wilkes-Barre Area School District officials made the trip to Philadelphia to show support, including Solicitor Ray Wendolowski, Superintendent Brian Costello, and teacher union president Jeff Ney.
But Wendolowski said he never got in the courtroom, despite leaving Wyoming Valley around 5:30 a.m. for a hearing scheduled for 9 a.m. The problem: President Barack Obama was stopping in Philadelphia to campaign for Democratic presidential nominee Hillary Clinton, and security choked off many roads leading to City Hall.
“I didn’t get there until 9:30,” Wendolowski said, “and by that time the courtroom was full, the auxiliary courtroom was full, and people were crowding the halls watching it on a screen. I could see it, but I couldn’t hear a word.”
Still, he said, the case seems clear from his perspective. The argument that it is a non-judicial matter falls apart now that the state has “clear, evidence-based criteria to determine whether the legislature and governor are meeting the state’s constitutional requirement.”
The court has no time limit in making a decision, but Wendolowski said that’s fine by him. “If they get it right, I don’t mind if they take their time.”