Justices: State shorted schools

by Jake Bleed

Arkansas Democrat-Gazette

Friday, December 16, 2005

The Arkansas Supreme Court again declared Arkansas' system of public education funding unconstitutionally inadequate Thursday and again set a deadline for state lawmakers to fix it.

The 5-2 ruling found “a constitutional infirmity which must be corrected immediately” and gave the legislative and executive branches until Dec. 1, 2006, “to correct the constitutional deficiencies” in the 252-district, 450,000-pupil school system. 

The court said that in the 2005 legislative session, lawmakers didn’t comply with two laws adopted during a 2003 special session on education. One law called for education to be funded first. The other called for a study to determine how much funding would make the school system adequate. This latter law is “the linchpin” to achieving constitutionality, the court said. 

Lawmakers also “grossly underfunded” court-ordered repairs to school facilities, the court said. A study done for the state identified $2.2 billion in needs. The state appropriated $120 million to be used over a two-year period. 

“This court is not willing to place the issue of an adequate education on hold for the current school year and the next,” Justice Robert Brown wrote for the court. “To do so would simply be to ‘write off’ two years of public education in Arkansas, which we refuse to do.”  Justices Betty Dickey and Donald Corbin joined in that decision. Justice Tom Glaze and Special Justice Carol Dalby wrote concurring opinions. Chief Justice Jim Hannah and Justice Jim Gunter dissented. 

The court mixed conciliatory language with its criticism of the state’s performance, at one point distancing itself from some of the remarks the court-appointed masters in the case had made about Gov. Mike Huckabee and the General Assembly. 

The court praised the governor and lawmakers as “dedicated public servants who are striving to meet the educational goals of this state.”  The ruling is the latest in the Lake View school-funding case, which was filed in 1992 and led the court in November 2002 to declare the state’s system of public education funding unconstitutionally inadequate and inequitable. That led to the Legislature enacting more than 100 laws on education, including a $380 million-a-year tax increase for schools. 

By getting back into the closed case last June, the court set off alarm in the legislative and executive branches that it was overstepping constitutional bounds and trying to exercise power reserved for the other two branches. 

In Thursday’s opinion, the court went out of its way to allay those concerns. It pointed out that it was not ordering the Legislature to take specific actions, and it denied school districts’ request that the state be ordered to increase funding by a specific amount. 

The judges also did not order the governor to schedule a special legislative session to address the justices’ concerns. 

But since the next regular legislative session doesn’t begin until January 2007, the setting of a Dec. 1, 2006, deadline for correcting the funding deficiencies seems to necessitate a special session. 

The court’s majority opinion also did not say what might happen if the legislative and executive branches take no action by the deadline. However, Glaze said in his concurring opinion that the court under state law and the constitution “is provided a means to enforce these matters so that compliance may be attained.”  Speaking at a press conference after the court issued its ruling, Huckabee said he wasn’t convinced that a special session would be necessary. 

“I respect the court’s decision, but they did not order us to have a special session,” Huckabee said. “There was nothing specific that I read in the court ruling that you have to have a special session.”  The governor laid out “several things that have to happen” before he would call a special session on education. And he indicated that such a session would see changes in how financial data are reported by school districts, how administrative employees like superintendents are paid, and whether the state should reopen the debate on school consolidation. 

Lawmakers and the lead attorney for school districts in the lawsuit described the tone of the court’s ruling as conciliatory. In not issuing hard and fast requirements on what must be done, the court is trying to stay within its jurisdiction, said David Matthews, an attorney for the Rogers School District. 

“No one is throwing down the gauntlet,” Matthews said. “Nobody is wanting to force a constitutional crisis.”  Instead, Matthews, who applauded the opinion, said all parts of state government should work together to improve the educational system. 

But in avoiding specific orders and respecting the Legislature’s jurisdiction over educational policy, the court’s opinion was unclear on what exactly the judges wanted to see happen, said Sen. Jim Argue, D-Little Rock, the Senate president pro tempore. 

“Like all court decisions, there’s some murkiness here,” Argue said. 

The 49 school districts that got the court to reopen the case for the second time argued that lawmakers in the 2005 legislative session had “retreated” on education-related laws adopted during the 2003 session. 

In particular, those districts focused on the decision by lawmakers not to increase the per-student funding. Instead, lawmakers voted to keep that level at $5,400 per student for the 2005-06 school year and not increase payments until 2006-07, when they would go up $97 per student. 

Attorneys for the districts argued that lawmakers failed to follow a law that requires the state to “assess what constitutes an adequate education.” That law is Act 57 of 2003. 

They also argued that the state failed to make education the first funding priority, as required by Act 108 of 2003. 

In June, when the court reopened the case, it appointed a pair of masters, Bradley Jesson of Fort Smith and David Newbern of Little Rock, to serve as “fact-finders” and determine if the districts’ claims were true. 

The masters’ 83-page report came down strongly on the side of the districts and concluded that the state “has not lived up to its promise” to make education its first funding priority. 

Thursday’s opinion largely adopted the masters’ findings. 

Of particular importance in the court’s eyes was the Legislature’s failure to comply with Act 57 of the 2003-04 special session. That act requires that the Legislature “assess, evaluate, and monitor the entire spectrum of public education across the state” and for interim committees on education to file a report on those findings by Sept. 1 in the year before a regular legislative session. 

The Legislature did not conduct such a study in the weeks before the 2005 legislative session. 

Without that “continual assessment of what constitutes an adequate education,” Brown wrote, the Legislature was “flying blind” in determining an appropriate level of funding. 

“We have no doubt that decision to freeze the previous year’s figure of $5,400 for purposes of the 2005-2006 is a direct result of this lack of information,” Brown wrote. 

Sen. Shane Broadway, D-Bryant, said the study wasn’t completed because the state didn’t have information from the school districts in time. 

The court didn’t much care why the study wasn’t done. Instead, it noted that while the information wasn’t available then, it is now. 

Justices also stopped short of ordering the state to increase the per-student payments to adjust for inflation, what lawmakers call a “cost-of-living adjustment,” or COLA. 

The court said that without the adequacy study, it would be “impossible to gauge” whether a cost-of-living adjustment is needed. 

But the court noted that “we find it troubling,” nonetheless, that cost-of-living adjustments were added to the salaries of all state employees, ostensibly to meet the pressures of inflation, while no such adjustment was made to public school funding. 

Brown wrote that “inflation and unfunded mandates” were left out when the General Assembly agreed on school-funding levels during the 2005 session. 

“It seems patently clear to this court that new funds may be necessary to meet some, if not all, of these unfunded mandates,” Brown wrote. 

Saying it “seems clear that it may be necessary” doesn’t mean the state must increase funding for schools, said Broadway, who was one of a handful of lawmakers who played a major role in crafting education laws in recent years. 

“It doesn’t necessarily mean that there is a need for an increase,” Broadway said. “If there is a need for an increase, and the evidence shows how the districts have expended funds, and the evidence shows that there needs to be an increase, then I’m all for that.”  Whether the state needs to change its school-funding formula — and whether funds should be increased — are subjects of a $450,000 study under way by a pair of outside consultants. 

The results are due to the Legislature’s Joint Committee on Educational Adequacy in mid-August and are to be reported to the full Legislature by Sept. 1. 

That study, however, focuses on districts’ funding needs for fiscal 2007-08 and 2008-09, Broadway noted. 

In Thursday’s opinion, justices said they weren’t willing to wait that long. 

This isn’t the first time the court has set a deadline for legislative action in the Lake View case. When the court initially declared the state’s school-funding system unconstitutional in 2002, it set a deadline of Jan. 1, 2004, to correct the problems. 

But that deadline came and went without a solution to problems identified by the court. That led to the court’s Jan. 23, 2004, ruling which reopened the case, appointed Jesson and Newbern as masters, and led to an intense legislative special session that saw lawmakers pass a wide range of education changes. 

Those changes mollified the court, which closed the Lake View case for a second time in June 2004, with Brown writing that “the legislative accomplishments have been truly impressive.”  Among those changes was Act 57. 

In dissenting from the majority, Hannah wrote that he objected to “this usurpation of legislative power and the destruction of the separation-of-powers doctrine.” On the Web Thursday’s opinions of the Arkansas Supreme Court on the school funding case can be found at this Web site:  http://courts.state.ar.us/opinions/ 2005b/20051215/01-836.html