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Legal Updates

New Hampshire


In mid-March, the New Hampshire House passed, with a 252-113 vote, a constitutional amendment intended to give the Legislature full discretion on school aid, effectively shutting the judicial branch out of school finance decisions. The bill must now be considered by the Senate and, if approved, will go to the voters in 2012, who will have to approve it by a 2/3 vote.

The proposal was promoted by the New Hampshire House Speaker William O’Brien, most well known for stating that college students should not be allowed to vote because they are “foolish” and “vote with their feelings." The amendment aims to remove the courts from school funding decisions. It provides that, “the legislature shall define standards for education, determine the level of state funding thereof, establish standards of accountability, and allocate state funds in a manner that mitigates disparities in educational opportunity and fiscal capacity, provided that a reasonable share of state funds shall be distributed on a per pupil basis.”

The amendment responds to the long history of school funding litigation in New Hampshire. In a series of decisions since 1999 in Claremont v. Governor, and the follow-up Londonderry case,the New Hampshire Supreme Court declared the state’s education finance system unconstitutional and issued a number of directives to the Governor and the legislature to define and fund an adequate education. Governors and members of the legislature have tried at least twice before to pass constitutional amendments that would limit the authority of the judicial branch in regard to school funding. Although the previous attempts failed, Andru Volinsky, attorney for the plaintiffs in the Claremont cases, says that given the current political climate in the legislature, this proposal may in fact pass both houses and make it onto the ballot. However, given the fact that actual enactment of the amendment will require a two-thirds majority vote from the electorate in the November, 2012 election ---- a presidential election year ---- it will be a real struggle for the proponents to the amendment to actually get it adopted by the voters, according to Volinsky.

California

On March 7, 2011 an intermediate appellate court refused to stay implementation of the Reed settlement, which will protect 45 schools in the Los Angeles Unified School District from teacher layoffs from the impact of the traditional “last hired, first fired” lay-off procedures. The Reed case involved three LAUSD schools, John H. Liechty Middle School, Edwin Markham Middle School, and Gompers Middle School, where the district’s seniority –order reduction-in-force (RIF) practices resulted in the dismissal of large numbers of teachers in whom the schools had invested training and resources, and whose efforts had resulted in improvements in student achievement. The state appellate court decision will have an immediate impact--upcoming budget cuts could lead to as many as several thousand layoffs in the nation’s second-largest district, LAUSD. The Los Angeles teachers union which is opposing the settlement entered into between the plaintiffs, the state and the LA school district, says the decision means other, more affluent, schools will feel more impact from the next round of layoffs.

The settlement requires the 45 targeted schools (out of 790 elementary, middle, and high schools in LAUSD) to be immunized from budget layoffs if they can demonstrate academic achievement, and will distribute layoffs as evenly as possible throughout the rest of the district.

Kansas

United States District Judge John W. Lungstrum two weeks ago dismissed a lawsuit brought brought by parents in a relatively affluent district that sought to invalidate a state-imposed cap on the amount of money residents can tax themselves to bolster school funding. The plaintiffs had argued that the provision is unconstitutional because it denies them their fundamental liberty and property interests and their right as parents to direct and participate in the upbringing and education of their children. The court dismissed the case because it held that the Act contains two separate non-severability provisions which would require the court to invalidate the entire state’s school funding scheme if it should determine that the property tax cap was unconstitutional. Plaintiffs themselves would reap no benefit from such an outcome, the court concluded, because if the entire education funding statute were held unconstitutional, the district would have no authority to raise any funds for education.

Alabama

On March 21, 2011, U.S. District Judge Lynwood Smith heard arguments in Lynch v. State of Alabama, a combination race discrimination and education finance case filed on behalf of Alabama parents in 2008. Plaintiffs allege substantial under funding of the state’s K-12 public school system, particularly in rural and majority black schools, based on clauses of the State Constitution that had been enacted after reconstruction for the express purpose of limiting local property taxes that would be used to provide schooling for black school children. A federal court had previously found that these clauses had been enacted with that specific discriminatory intent. Attorneys for the plaintiffs want the judge to throw out those parts of Alabama’s 1901 constitution that limits how much property tax can be levied for education.

Alabama currently has the lowest property rates in the country, and Governor Robert Bentley ordered further across the board cuts of three percent in education. In the 2011 report Quality Counts, Alabama received an overall grade of C+ for education and a D for K-12 achievement.

Defendants argue that the portions of the Alabama Constitution challenged by the plaintiffs are integral parts of the state’s tax system, and if invalidated, would “throw the entire Alabama tax structure into disarray.”