Litigation Update: Hearings in Georgia, Texas; Rulings in Massachusetts, Maryland, and Pennsylvania; Supreme Court Reopens Case in Arkansas

Hearing on State's Motion to Appeal in Georgia

A lawsuit filed by 51 mostly rural school districts in Georgia, which alleges that the state's school finance system fails to provide adequate funds to the state's small, rural, often poor schools, had a hearing on June 23rd in Fulton County Superior Court. These districts, known collectively as the Consortium for Adequate School Funding in Georgia (CASFG), point to the low achievement, high dropout rates, and lack of programming in these districts as evidence that the state is failing to meet its constitutional responsibility to provide “adequate” education to all the state's students. According to the Consortium, the state is not providing adequate funds to any district, but districts such as those involved in the suit, which do not have a high capacity to raise local taxes, are especially hard-hit. As reported in the Atlanta Journal-Constitution, the hearing was held on the state's motion to dismiss the suit on the grounds that school funding is the exclusive purview of the legislature, and not subject to judicial review. This has begun to be a familiar refrain amongst lawmakers in states facing adequacy lawsuits, but courts in those states have repeatedly upheld their right, and indeed their responsibility, to protect the constitutional rights of the state's students. Concern has also been expressed by wealthy districts in the Atlanta that a remedy will involve a “Robin Hood” funding schemes that takes local tax revenue from wealthier districts and distributes it to poorer districts. The Consortium, meanwhile, is hoping that the threat of a court-ordered remedy will put a pressure on the state legislature to fund schools that the small districts of the consortium were not able to exert on their own.

Supreme Court Hears Case in Texas

Texas' school finance litigation, West Orange Cove ISD v. Neeley, moved to the Supreme Court on July 7, where oral arguments debated the ruling by District Court Judge John Dietz in December 2004 that the Texas school finance system was unconstitutional. Since that ruling, which agreed with the plaintiffs that state funding for schools was constitutionally inadequate, and resulted in a de facto illegal state property tax, the state legislature has been struggling to devise a solution. They were unsuccessful during the regular session, and were brought back for the second special session in as many years that has been called in order to devise a constitutional school funding plan. Though lawmakers agreed upon the need to lower the maximum state property tax, they have not been able to agree on the best way to replace those funds. Even as the legislature continues to struggle, lawyers for the state argued in front of the Supreme Court that the responsibility for school funding and policy lay exclusively with the legislature, outside the jurisdiction of the court, and that plaintiffs had failed to prove the connection between school funding and achievement. Both arguments have been rejected by states' highest courts in other adequacy lawsuits in recent years. Plaintiffs hope that pressure from the court will ultimately force the legislature to act, as it did in 1991, when the current funding system passed under court order. The court has not specified when it expects to issue a ruling.

Lynn, Massachusetts Desegregation Plan Upheld

After a rehearing en banc , the First Circuit Court of Appeals has upheld the desegregation plan in effect in the Lynn, Massachusetts school system. The plan, a race-conscious, voluntary, non-competitive transfer program for K-12 students, was challenged by several parents of white students in the case of Comfort v. Lynn School Committee. The federal district court upheld the plan in a lengthy ruling that found that racial diversity in public schools was a compelling interest and that the plan was narrowly tailored to achieve that goal. A three-judge panel reversed that ruling, holding that the plan unduly burdened white students, was inflexible, and that its true goal was racial balance, which was impermissible. The opinion of the three-judge panel relied on two U.S. Supreme Court cases, Grutter v. Bollinger and Gratz v. Bollinger, which dealt with admissions to law school and university, respectively.

The most recent opinion, issued on June 16, 2005 by the full first Circuit, also relied on Grutter and Gratz. However, the First Circuit here made a distinction between competitive law school and university admissions and a non-competitive, voluntary transfer plan among schools that all parties agreed were of equal quality. Thus, the court found that it was not an undue burden on the students to be denied a transfer. In addition, the court here noted that unlike institutes of higher education, where viewpoint diversity was the goal, the goal in K-12 education was racial diversity. The court noted that there was “significant evidence in the record that the benefits of a racially diverse school are more compelling at younger ages.” The court further lauded the Lynn plan for trying to “preempt racial stereotypes through intergroup contact.”

Reading, Pennsylvania School District Wins Appeal of NCLB Regulations

The Commonwealth Court of Pennsylvania has ruled that that state's Department of Education violated the due process rights of the Reading School District by establishing an unduly limited appeals process for reviewing NCLB AYP determinations. The Reading School District had filed an appeal of a determination by the Department that the District as a whole and six of its schools had failed to achieve AYP and would be placed under sanctions. It based its appeal on several grounds: (1) the Department had created an unfunded mandate by failing to provide funding to fulfill NCLB mandates; (2) the sanctioned schools had not received federal funds designated to implement NCLB; (3) the Department failed to provide tests in Spanish for ELL students; and (4) the Department failed to provide technical assistance to those schools that were sanctioned. The State Department of Education refused to consider these grounds for appeal, contending that the appeals policy allows the Department to review only the accuracy of the data, whether significant growth had been made by the schools or district in question, or whether any unforeseen circumstance beyond the district's control impacted their designation. The Commonwealth Court reversed the Department's decision rejecting the school district's appeal, holding that the Pennsylvania Department of Education “committed a clear violation of [the school district's] due process rights…by intentionally misinterpreting [NCLB].” The court remanded the matter to the Department, ordering it to consider the issues raised by the school district in its appeal. Reading School District had filed a similar lawsuit in 2003. This lawsuit was dismissed by the Commonwealth Court because, among other things, the district and schools were not yet sanctioned, and the Pennsylvania Department of Education was not at that time required to provide technical assistance.

Court of Appeals Rules in Maryland

The latest decision in the Bradford v. Maryland State Board of Education case came June 9, when the Court of Appeals (the state's highest court) ruled on an earlier state circuit court order that the legislature should appropriate extra funds to the Baltimore City School District to help manage budget shortfalls. Though the Appeals Court did overturn circuit court Judge Joseph Kaplan's determination that the Education Fiscal Accountability and Oversight Act, which requires school districts to eliminate deficits or face cuts in state aid, was unconstitutional, its primary finding was that other aspects of the order were not final, and thus not subject to appeal. As a result, both sides in the case claimed partial victory; the state heralded the confirmation of the Act's constitutionality while the ACLU and Baltimore City underlined that the case was still alive in the circuit court. Both sides agreed Baltimore City was unlikely to get additional funding for the upcoming year, as initially ordered by the circuit court.

Arkansas Supreme Court Reopens Adequacy Case

The Arkansas State Supreme Court has agreed to reexamine the Lake View v. Huckabee school funding adequacy case, in response to a motion filed by 47 Arkansas school districts arguing that the 2005-2006 budget recently approved by the legislature fails to adequately fund schools as required under the Lake View decision. The justices voted 4-3 to reopen the case and reappoint the special masters that had made findings of fact for last year's decision, despite strong arguments from the state and the dissenting justices that reopening the case would be an inappropriate exercise of authority by the court. As reported by the Associated Press, the majority opinion reasserted jurisdiction over the case because of the long-running nature of the trial and the seriousness of the plaintiff districts' complaint. The opinion also credited the legislature with positive progress that it did not want to see undone. The special masters will have until September 1 to issue a Findings of Fact report.

Prepared by Wendy C. Lecker and Nelly Ward, July 1, 2005