Legal Updates

Alaska

Based on an extensive evidentiary hearing, Superior Court Judge Sharon L. Gleason held in Moore v. State that the State of Alaska is not meeting its constitutional responsibility to “maintain a system of public schools open to all children of the State.” Specifically, the judge found that the State Education Department was not providing sufficient oversight and assistance to schools in chronically underperforming school districts. These deficiencies included, among other things:

• A failure to insure that each school district’s curriculum is aligned to the State’s standards
• A lack of attention to content areas not covered by the State’s standardized testing
• Limited interventions that are not addressed to the specific strengths and weaknesses of each chronically underperforming district
• Inadequate consideration of pre-k and other intensive early learning initiatives
• Failure to address high teacher turnover and teacher inexperience

The Court ordered the state to file with the court revised district intervention plans that address each of the problem areas identified in the findings.

This decision follows up the Court’s 2007 decision that “Alaska’s funding of public education…comports with the Education Clause” of the state constitution, but that “the State has violated the Education Clause” because it “has failed to identify those schools that are not according to children a meaningful opportunity” and has failed to provide “a concerted effort to remedy that situation.”

In this latest decision, the court has not explained how it reconciles its earlier finding that the state is providing sufficient funding with the fact that the chronically underperforming districts obviously will need additional resources to provide adequate pre-k services and to hire and retain more qualified teachers, and that the state education department will need additional resources to carry out the more detailed oversight responsibilities and provide the specific kinds of assistance to the chronically underperforming districts that the court order will require.

Oregon

In Oregon, a statutorily-created “Quality Education Commission” is required to determine every two years the amount of funding that is needed to meet the basic “quality educational goals” that the Commission has established, based on extensive research, public engagement and consideration of efficient methods for providing the requisite educational services. Historically, however, the legislature has never appropriated the amounts that the Commission has determined are necessary to meet the quality educational goals.

Plaintiffs in Pendleton Sch. Dist. v. State asked the state courts to issue a declaratory judgment holding that the Oregon Constitution requires the legislature to provide sufficient funding to meet the quality educational goals and to issue a mandatory injunction directing the legislature to appropriate the necessary funds. In a decision issued on January 23, 2009, the Oregon Supreme Court declared that the legislature had failed to fund the public school system at the constitutionally-required level, but nevertheless refused to issue an injunction requiring them to do so.

At issue in this case was the seemingly contradictory language of Art. VIII, sec 8 of the state constitution (added by referendum in 2000) which provides in relevant part that:

The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state’s system of public education meets the quality goals established by law, and publish a report that either demonstrates the appropriation is sufficient, or identifies the reasons for the insufficiency, its extent, and its impact on the ability of the state’s system of public education to meet those goals.

The Court held that each provision of this inconsistent constitutional clause should be read separately and enforced separately: i.e. the legislature is obligated to appropriate the amount of money that is necessary to meet the quality educational goals, but if it doesn’t meet this obligation, it should issue a report that admits to the under funding and explains to the public why it didn’t meet its obligation and what impact the under funding will have on the state’s public education system.

Essentially, the Court’s position here may be seen as being consistent with the school of constitutional interpretation which holds that the legislative and executive branches have an independent responsibility to implement constitutional requirements when the courts are precluded from acting. ( See, e.g. Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice ( 2004)). From this perspective, one might interpret the Pendleton decision as a declaratory judgment that reminds the legislature of its constitutional responsibility to fully fund the educational goals ---- and that informs the public that the legislature so far has failed to meet this responsibility. Presumably, if the legislature does not respond appropriately, the public can take appropriate steps through political action or at the ballot box to persuade them to do so.