Republican President Pro-Tempore of the Pennsylvania Senate Joe Scarnati, of Jefferson County, and Democratic Gov. Tom Wolf submitted opposing briefs last week on the legal status of the school funding lawsuit filed against them and four other executive agencies and legislative officials.
The two state leaders made their points in briefs submitted on Aug. 3 to the Commonwealth Court in arguing that the fair funding formula currently in use with the signing of Act 35 of 2016 remedies the previous funding regime used in 2014 that initially triggered the education funding lawsuit filed by lead petitioner William Penn School District.
Scarnati filed an application in the nature of a motion to dismiss for mootness following a September 2017 decision by the Pennsylvania Supreme Court ordering the case to proceed in Commonwealth Court. Commonwealth Court Judge Robert Simpson in May deferred ruling on mootness by ordering responses on the application from the parties. Petitioners filed an opposition to the application in July and the respondents are now responding to the opposition.
“They have refused to amend their petition to include a challenge to Act 35, even though the court expressly invited them to do so,” read an opening portion of Scarnati’s brief filed by attorney John Krill. “Because petitioners persist in challenging a statutory scheme that is no longer operative, this case is moot. And, because none of the exceptions to the mootness doctrine apply here, this court should dismiss the case.”
A portion of Scarnati’s brief focused on allegations by plaintiffs in their initial 2014 complaint that the education clause and equal protection clauses in the state constitution were not being upheld by the state, in effect preventing lower-income districts from having the same resources to have a high quality education. The brief took issue with petitioners’ claim that these constitutional violations are not based on a single statute or regulation, even though, “by asserting that the General Assembly has adopted ‘an irrational and inequitable school funding scheme,’ petitioners are necessarily challenging statutes – specifically, the 2014 school funding statutes.”
Because the fair funding formula takes into account student- and district-based factors (English language learners, charter school enrollment, poverty), Act 35 “supplanted the ‘funding arrangement’ that was in place when petitioners commenced this case.” Before Act 35, the “hold harmless” principle was the funding mechanism used in the state, meaning that a district would not receive funding from the state any less than the year prior no matter how much the student population changes.
“But that legal regime is gone,” says Scarnati’s brief. “Now, under Act 35... the commonwealth is required each year to provide each school district with (1) ‘[a]n amount equal to the school district’s basic education funding allocation for the 2013-2014 school year’ and (2) the ‘student-based allocation[.]’”
Only new money added each year to the basic education fund is disbursed through the fair funding formula. Approximately $550 million has been allocated throughout the state through the fair funding formula since 2015-16, which is less than 10 percent of the total basic education fund. Scarnati says the six petitioning school districts have received increases in their state funding due to the funding formula by 9 to 17 percent, which is not “illusory or miniscule” as the petitioners claim.
However, in their initial response to the mootness claim filed in July the petitioners argued that schools have lost $155 million in classroom expenses due to mandated expenditures like those for pensions that are far outpacing the increases to education funding and Ready to Learn block grants.
Scarnati’s brief said the petitioners used their more than 100-page mootness opposition filing to show school districts under Act 35 still lack the resources to provide a thorough education.
“But what petitioners fail to appreciate is that, for purposes of the mootness analysis, what matters is not whether they believe that Act 35 is unconstitutional in its effects for essentially the same reasons that they believe the 2014 school funding arrangement was unconstitutional in its effects,” says the brief. “Instead, what matters is that Act 35 is materially different from and replaced the 2014 funding arrangement, as explained above. And, in the petition, the petitioners are challenging the 2014 arrangement alone, not Act 35. Under these circumstances, this case is moot.”
The brief added that the petitioners should file a new case to challenge the education and equal protection clauses under Act 35, “but they may not continue to pretend that their challenge to the 2014 school funding regime is also a challenge to Act 35.”
Governor Wolf’s brief, filed on behalf of the executive respondents – the Pennsylvania Department of Education, (then acting, now current) Secretary of Education Pedro Rivera, the state Department of Education – sided with the petitioners by saying they are not challenging “an isolated statutory or regulatory enactment,” but the adequacy of the state public education system.
“While Act 35 established a new, permanent school funding formula and had significant impact on the education funding scheme, unfortunately, as petitioners’ brief highlights, much work remains to be done before petitioners’ claims are no longer relevant or capable of adjudication,” read a portion of the governor’s brief by Christopher Lewis and the Blank Rome LLP law firm. “Those districts that rely heavily upon, and anticipate, a minimum level of funding resources each year must continue to be assured that they will not suffer funding cuts and will continue to receive funds adequate to provide an appropriate education to all students.
“These factors remain just as relevant today as they were on the day that petitioners filed their complaint.”
Wolf’s brief added that the funding formula is only as good as the amount of money behind it.
Dan Urevick-Ackelsberg, staff attorney at the Public Interest Law Center, which is representing the petitioners, said Scarnati didn’t address the inequities that continue to grow between wealthy and poorer school districts.
“Instead he argued that school districts and school children should start the case all over,” he said in a prepared statement. “Gov. Wolf said what we all know to be true: a formula is as good as the money that goes through it, and more funding is needed to give students the education to which they are morally and legally entitled.”
Scarnati’s mootness application and response was called a “delay tactic and nothing more” by The Education Law Center Legal Director Maura McInerney in a press release following the brief filings.
“The governor recognizes that our public school children continue to suffer the painful consequences of underfunded schools every day. He understands that their need for justice is now,” said Maura McInerney. “There can be no question that a dispute continues to exist regarding the adequacy and equity of Pennsylvania’s broken school funding system.”
A ruling was not released or information on a further hearing was not scheduled as of Aug. 8, according to online court records.