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COURT OF APPEALS RULES ADEQUATE PUBLIC SCHOOL FUNDING NOT REQUIRED; PLAINTIFFS TO APPEAL

Contact: Kathryn Firestone, Executive Director, 503.704.0504

May 15, 2008 - (Portland, Ore.) -- The Oregon Court of Appeals issued a ruling yesterday, May 14, 2008, in response to a lawsuit originally filed against the State of Oregon by school districts and parents, in cooperation with the Oregon School Funding Defense Foundation, in March 2006. Pendleton et al v State of Oregon contends that the Oregon Legislature has failed to provide constitutionally required funding for Oregon's K-12 public schools.

The appellate court ruled that the state legislature does not have an obligation to "provide sufficient funding to meet the quality goals," which plaintiffs argue that voters said they did. Siding largely with the state, the court seemed to rely on a new interpretation of common words as well as inapplicable case law. Plaintiffs have said that they will appeal the decision to the Oregon Supreme Court.

The plaintiffs take issue with the court's assertion that neither Article VIII, Section 3 or 8(1) of the Oregon Constitution "imposes an obligation on the legislature to appropriate any particular amount of money to fund the state's public schools." This despite the court's acknowledgement that "The Oregon legislature has never met the funding goals established by the QEC, and the gap between the amount needed to achieve the educational goals and actual funding has grown each biennium."

Kathryn Firestone, Executive Director of the Oregon School Funding Defense Foundation, questions whether it is "reasonable to assume that we should continue to mandate a high-quality education, increase graduation requirements, or strive for a better-educated workforce and at the same time assert that the state has no responsibility for providing sufficient financial resources to do so."

To suggest that there is no requirement for adequate funding of public education also undermines voter intent with the overwhelming passage of Ballot Measure 1 in 2000 by a margin of 2 to 1. That measure expressly called for the Oregon Legislature to provide funding sufficient to meet the quality goals as established by the Legislature. It also said that this public body had the responsibility to report to the people of Oregon about whether they did so, and if not, why not.

The Foundation noted that the court's opinion regarding "mootness" is of grave concern. Concurring with the State, the court determined that a ruling in regard to the 2005-2007 budget "can have no practical effect on the parties." What that means is that because the two-year budget period is over, the state has no obligation to consider the harm done to students who were a part of that system in those years.

"Nothing could be further from the truth," said Paul Kelly, Chair of the Oregon School Funding Defense Foundation. "This is not a moot issue for Oregon's 550,000 school age kids."

Kelly added, "The fact is that there are children who were in the system in 2005 and they are still with us today. Additional resources could ameliorate their previous and insufficiently funded classroom experience". Among the resources Kelly cited are smaller class size and increased program offerings.

Central to the plaintiff's case is the meaning of the words "shall" and "and" as used in Article VIII, Section 8 of the Oregon Constitution. That section, incorporated after passage of Ballot Measure 1 in 2000, mandated that the Legislative Assembly shall provide funding sufficient to meet the quality goals and issue a report stating whether or not the biannual appropriation for K-12 schools was sufficient to meet those goals. The court, relying heavily on select editorial board endorsements, determined that in the case of section 8, those words mean "may" and "or".

Firestone said, "The voters, as well as our plaintiffs (particularly the students in question), would beg to differ." While agreeing with the plaintiffs that the word "shall" is commonly used as a command to "express what is mandatory" and that the word "and" is commonly "employed to signify a conjunctive" or dual obligation, the court appeared to determine that newspaper editorials have more import than a standard dictionary in identifying meaning. Firestone added, "Given that the only thing we know voters saw prior to voting was the actual ballot, we disagree with the court's reliance on such extraneous material."

Plaintiffs also advocated that the Constitution's Article VIII, Section 3 imposed an adequacy standard on school funding in Oregon. The court relied heavily on an Oregon Supreme Court decision from 1976, Olsen v. State ex rel. Johnson, and concurred with that decision which found that Article VIII, Section 3 should not be read to mandate a particular level of funding and that local districts were able to "exercise local control over what they desire and can furnish."

With the passage of Ballot Measure 5 in 1990, such local funding became expressly prohibited. The 1976 ruling has no merit in a post-Measure 5 world of K-12 funding. Additionally, courts in other states have found funding adequacy requirements in state constitutions utilizing language similar to that to be found in Section 3.

Since passage of Measure 5, which promised to hold schools harmless, more than a generation of Oregon children has proceeded through a system that a majority of both Oregonians and policy makers agree is insufficiently funded. Four consecutive legislatures have issued reports stating that K-12 appropriations are insufficient to meet legislative quality goals for public education.