School Funding Lawsuit

I wrote the following in this month's BrainstormNW column. The news of the suit landed yesterday, announced by an organization headed up by Paul Kelly, former Nike chief counsel and long time school funding advocate. I'm going to dig around a bit and see if I can find who is funding this new group. I'll be shocked when I find that the OEA is funding them.

School Funding Fight Goes to Court

School funding activists are just about to take their fight to a different arena in their never ending quest to get more state general fund dollars into education: the courts. A newly created group, called the Oregon School Funding Defense Foundation, is planning to file a lawsuit to force the legislature to give more money to the schools.

After more than a decade not getting what they want out of the legislature, and after the voters have continually said no to their demands for tax increases, they plan to do what liberals always do – find a sympathetic judge.

School funding lawsuits are not a new development – they have been filed in 37 other states. But the suit planned for Oregon is different. In nearly all the other states, the lawsuits have been about “equity funding.” Most state constitutions (including Oregon’s) have language that implies there shouldn’t be huge discrepancies between school districts in how much money they have for schools.

Oregon never faced such a lawsuit, in part because Measure 5 shifted most of the school funding burden to the state, and various laws passed since then have basically equalized school funding for districts.

The lawsuit planned by this group (which is made up of a virtual “usual suspects” list of long time school funding advocates) is challenging the adequacy of school funding, not the equity. The suit will claim that Oregon’s constitution requires a certain level of funding that is not being met by the legislature’s K-12 budget allocation.

Their basis for the claim comes from Ballot Measure 1. Remember that one? Didn’t think so. Most people thought it was just a symbolic ornament that John Kitzhaber wanted put on the ballot so he could look as if he cared about schools. It passed easily.

The ballot measure amended the constitution to read: “The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state's system of public education meets quality goals established by law…”

Just what are those “quality goals,” and who will define them? Remember the “Quality Education Model?” It was former House Speaker Lynn Lundquist’s project that defined the “optimal school model” and then calculated what it would cost to make every school in Oregon look like the model. The current price tag on the model is $7.2 billion, almost $2 billion more than the current K-12 allocation.

Well, while you weren’t watching, the legislature passed laws that basically defined “quality goals” for the purpose of defining school funding adequacy to be the “Quality Education Model.”

So there we have it. The constitution says funding must be adequate for certain goals to be met, and those goals require $7.2 billion.

When Ballot Measure 1 was being debated back in the 2000 election cycle, I was pretty lonely opposing such a feel good measure. (It passed in every county in the state, and got 66% statewide.) I argued that it was a power grab - the effect would be to take the question of school funding out of the legislature’s hands and give it to an unelected commission, the Quality Education Commission.

And that is precisely what this lawsuit, if successful, will bring about.

It took them six years to get the necessary framework in place to file the suit. They had to pass a few bills that fleshed out the constitutional language – bills that created the Quality Education Commission, and that codified the Quality Education Model as defining Oregon’s education goals.

For six years they’ve been busily grinding out all the requisite white papers and proceedings, all using public dollars, so now they can finally file the lawsuit that was the point of the entire exercise. Everything is in place.

If this lawsuit succeeds, then the legislature will no longer have a say in how much schools get from the budget. The number will be handed down by the unelected Quality Education Commission, and will be based on an entirely fabricated standard that emanates from the Quality Education Model, which has never had its own assumptions subjected to empirical scrutiny.

There is a silver lining here. By the time the lawsuit grinds its way to a conclusion, we can predict that the funding level required by the Quality Education Model will be even more laughably distant from any realistic level the state budget could allocate. It’s already about $2 billion higher than the current K-12 funding allocation.

The lawsuit could take three or four years. Assuming it succeeds, what will happen when the courts decide that the constitution requires an additional $3 or $4 billion be give to the schools?

But the real question is the question that is almost too late to be asked. It should have been asked in 2000 when Ballot Measure 1 was getting a free pass: are the courts the appropriate arena to decide the level of K-12 funding?