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Deadbeat Legislature
School districts sue for education support

By Alan Pittman, Eugene Weekly

June 8, 2006 - (Eugene, Ore.)--When a deadbeat dad stiffs his kids for the child support they need to fund their education, he can be sued. But what do you do when a deadbeat Legislature stiffs the education of an entire generation of Oregon kids?

Sue, says a group of school districts, school advocates and lawyers who joined together last month to haul the state into court for not meeting its constitutional obligations to kids' education.

Eugene and Springfield plus 16 other school districts have signed onto the lawsuit, which is backed by the state PTA, superintendent, and teacher and school board associations. The suit was organized by the Oregon School Funding Defense Foundation and is being litigated by attorneys from Stoel Rives, one of the state's leading law firms.

The schools argue that state school funding is inadequate in violation of two sections of the Oregon Constitution. In its defense, the state admits that it stiffed the kids but says that it isn't legally required to cough up more cash. In suing for more cash, Oregon school advocates have belatedly arrived at a growing trend. Similar school funding lawsuits have already been filed in 38 other states. In 21 states schools have won victories of some sort with nine lawsuits still pending.

Stiffed Kids

There's not much argument that the state has failed to fund schools adequately. The state Legislature itself established the Oregon Quality Education Commission which determined that K-12 schools needed $7.1 billion to adequately teach kids in the current two-year budget. The Legislature fell $1.8 billion short of that goal this year.

The Legislature has stiffed kids at almost every level, according to the commission's report. Kindergartners need a full day, not a half day of school. Up to third grade, classrooms pack in 20 percent more kids than they should, and the overcrowding is almost as bad all the way through high school. Schools need almost twice as much money for textbooks at every level. Elementary school kids need twice as many specialists for reading, math, library, art, music, gym, gifted and second language learning. In middle and high schools, lagging students need extra teaching in core subjects, but there's no staff to do it.

The Legislature has been increasingly shortchanging kids for years, the schools argue in their case. From 1990 to 1998 per pupil funding fell 20 percent in Oregon. In 1992 Oregon ranked 16th in the nation for per-student funding; now it's dropped to 28th. In those dozen years, Oregon suffered the largest decline in school funding measured by any state.

With the decline in funding, education has suffered, the schools say. Based on national tests, only a third of Oregon's fourth and eighth graders are proficient in math and reading. Only about half of the state's 10th graders meet state standards in reading, math and writing. Only about 71 percent of state high school students graduate. With about 24 students in each class, Oregon has the second most crowded elementary school classrooms in the nation.

The reality stands in sharp contrast to the political rhetoric of legislators who in 1991 passed the Oregon Education Act for the 21st Century in which they aspired to create the "best educated citizens in the nation by the year 2000."

'And' vs. 'Or'

The passage of Measure 1 by voters in 2000 by a 2-1 margin holds the Legislature to its rhetoric, the lawsuit argues. The amendment to the state Constitution stated, "The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state's system of public education meets quality goals established by law." The goals established by law are the ones that show the state is $1.8 billion short on education funding.

But state lawyers last week asked the court to throw out the lawsuit, arguing that Measure 1 contains no such funding requirement. The state says the text of Measure 1 only requires the state to adequately fund schools "or" explain why it can't do so in a report. The state issued the required report, blaming property tax limitation Measures 5, 47 and 50, recession, failed tax increase measures and rising health care, retirement, federal unfunded mandates and fuel costs for the shortfall.

The text of the measure clearly says "and" instead of "or," the schools' lawyers point out. The "or" only comes into play in the law's second requirement that the Legislature publish a report that either shows the school funding is sufficient "or" identifies the reasons for the shortfall and its impact on the quality of education.

But that's not what voters intended, the state argues, citing newspaper clips and some Voters' Pamphlet statements backing up its "or" interpretation of the text.

The Oregonian wrote in an editorial before the 2000 vote that Measure 1 "requires a written excuse from the Legislature, not stable and adequate money for schools."

Kathryn Firestone is director of the School Funding Defense Foundation now and was head of the Oregon PTA in 2000. She said some people in 2000 may have thought the measure didn't require more funding, but she did after reading the clear text of the measure in the Voters' Pamphlet.

If Measure 1 does have unintended consequences, it wouldn't be the first time for a voter initiative. Critics have long said voters never intended for Measure 5 to drastically cut school spending but rather believed the rhetoric that the state would make up for any shortfall in local property tax revenue. Many of the voters who passed Measure 11's tough mandatory sentences didn't intend to decimate other state spending by sinking hundreds of millions of dollars in new jails. Other critics say that voters for Measure 37 didn't intend for developers to use the property rights measure to create more urban sprawl.

Firestone acknowledges that it may be possible for the Legislature to slip out of the Measure 1 knot by passing bills to lower what it defines as "quality goals established by law." But the redefinition of quality would also not likely apply to the past three biennial budgets, leaving the Legislature still on the hook for billions in current and past underfunding.

The Legislature could not arbitrarily change its quality definition. Measure 1 would require the Legislature to set up a methodology to justify a lower quality education and report on what impact reduced spending would have on school quality and student performance. That could prove politically embarrassing for politicians, Firestone said. "That's a difficult argument to make to the constituency to say, 'Oh sorry, we didn't really mean a quality education model, we meant a mediocre model.'"

The school districts and their supporters also have another constitutional argument. A section of the Oregon Constitution requires the Legislature to "provide by law for the establishment of a uniform and general system of Common schools." The schools argue that this section implies a requirement that school funding be adequate. The state argues in its brief that the constitutional section "does not pertain to school funding at all" and cites court precedents to back up its argument.

Schools in other states have had success arguing that their constitutions contained an implied requirement that school funding be adequate. But many of those lawsuits relied on a constitutional provision requiring a "thorough and efficient" education or similar language. The wording in Oregon's Constitution appears to offer weaker protection for schools.

Garnishing Child Support

Like a deadbeat dad driving a Porsche while ignoring his child support payments, the Legislature can afford to pay more to help kids, plaintiffs argue. While school support dropped precipitously in the 1990s, Oregon's economy was booming. In 1992 Oregon ranked 11th in education spending measured as a percentage of the average personal incomes of state residents. By 2002 that ranking had fallen to 34th.

Over the past decade the Legislature has prioritized spending on prisons and corporate tax breaks over education. Oregon now ranks sixth nationally in per capita spending on building prisons and has the lowest corporate taxes in the nation, with many big companies paying only $10 a year in corporate income taxes.

But spending on education could help reduce crime, create jobs and boost revenues, the schools argue. Their brief points to a state study showing that 80 percent of prison inmates are high school dropouts, costing the state an average of $23,000 per inmate per year. High school drop outs are twice as likely to be unemployed, and when they do have a job, earn about 30 percent less than graduates. Overall, dropouts are a net drain on state revenues of an average of $8,460 each, demanding far more in social, health care and correctional services than they contribute to the state. By comparison, educated college graduates contribute a net $8,250 to the state.

Studies also show that better schools boost the economy by increasing property values and attract quality workers and employers in addition to directly providing good local jobs.

The Oregon Legislature could increase low taxes on wealthy corporations and individuals to fund its obligation to its kids' education — just suspending the kicker tax break refund for big corporations and the wealthiest 20 percent would generate about $800 million this year. But the Legislature could also balk at raising taxes and instead cut higher education, health plans or other social spending that education supporters also support. Right now K-12 already consumes about 43 percent of the state budget pie.

Firestone admits that people "have concerns" that the Legislature may react by cutting "vital services," but she says that with education so important, "we're at risk doing nothing." Giving a child a quality education is "a much better investment than housing them in the jail system."

Other State Results

Although Oregon schools have a strong legal argument, it's unclear exactly what they can hope to get out of the lawsuit. In states where similar lawsuits have prevailed, plaintiffs have spent years pushing for stiffer remedies from state courts that appear reluctant to dictate budget increases to legislatures, according to studies by the National Center on Education Finance. Here are some examples of the mixed results in state cases:

In New York a school funding lawsuit has been going on for more than a decade. This March, a New York appeals court ruled that the state was underfunding New York City schools by $4.7 billion but held that only the Legislature could determine the level of school funding, leaving the outcome confused.
In Arkansas a lawsuit threatened to shut down state government funding and forced the Legislature to increase school funding 14 percent this year.
In Kansas a court threatened to close all schools unless the state properly funds them. The case went to the state Supreme Court, which will consider in August whether to force the state to spend up to a half billion dollars more on schools.
In 1979 the West Virginia Supreme Court upheld an adequate funding lawsuit but left it up to the Legislature to determine how to implement adequate education.
In the mid 1980s, a Kentucky court ruled state education funding was inadequate and mandated that schools meet a list of academic standards. Another lawsuit, still seeking adequate funding, was filed in 2003.
In Wyoming in 1995, a court ruled the state school funding inadequate and required that the Legislature have a rational basis for setting its school funding levels.
In North Dakota this year, school districts agreed to stay a lawsuit if the Legislature agreed to give $60 million more to schools.
In New Jersey, a long-running case has forced more programs for high-need districts and recently compelled the state to come up with $5.3 billion in needed school construction funding.
In California in 2004, the state settled a school funding lawsuit by agreeing to provide monitoring, programs and about a billion dollars in new funding for high-need schools.

Firestone said she hopes the lawsuit in Oregon goes faster than those in other states. The court could rule on motions for summary judgement by the end of the summer, or the case could take three to five years to resolve, she said.

Oregon's case has a leg up on other states because the state has Measure 1 and already has documented exactly how much it has underfunded education through reports by the Oregon Quality Education Commission, revealing how the Legislature has stiffed its kids $1.8 billion in school funding. The Legislature's own commission warned that the result of continued underfunding "will be an inadequate school system, a burden on the state economy, and the loss of our status as a high quality-of-life state."