Seven years since it was first filed, the William Penn lawsuit, which seeks to deem the state’s current education funding system unconstitutional, will go to trial in the Commonwealth Court this September.
“This trial will finally hold our General Assembly accountable to the schoolchildren of Pennsylvania for their failure to provide every child in every zip code with a quality education,” Maura McInerney, legal director at the Education Law Center, said.
The September 9 trial date has been a long time coming for the plaintiffs, who originally filed in 2014.
Brought by the Public Interest Law Center, the Education Law Center and O’Melveny & Myers LLP on behalf of six school districts, seven parents and two advocacy organizations, the lawsuit contends that Pennsylvania has failed to uphold its constitutional obligation, which states:
The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.
They say that by “drastically underfunding” schools, the state violates its own constitution, as well as the Equal Protection Clause, on the basis that the funding system “turns the caliber of public education into an accident of geography.” They are asking the court to require the state to develop a school-funding arrangement that does not violate the constitution or Equal Protection Clause.
By an analysis prepared for a Commonwealth Court judge, schools in the state are underfunded by $4.6 billion. That analysis estimates that due to an over reliance on local property tax revenue rather than state contributions to school allocations, there is a gap of $4,800 per pupil between wealthy and poor districts, and poor districts end up paying the highest relative taxes in an effort to shore up the difference.
McInerney said that the current system disproportionately harms Black and Latinx students, who are segregated in the most underfunded districts.
“Statewide, 50 percent of Pennsylvania’s Black students, and 40 percent of Latinx students are in our lowest wealth districts — that’s the bottom quintile — and 80 percent of black and Latinx students attend a district that receives less basic education funding than they should under the state’s funding fair funding formula,” McInerney said.
The original complaint said that the lack of adequate and equitable funding meant that based on their geography alone, many Pennsylvania students are without current books and technology, experienced teachers, appropriate class sizes, academic remediation, counseling services and suitable facilities.
In the seven years that have passed, those issues have not only persisted, but particularly with the pandemic, they’ve gotten worse, funding advocates say.
Michael Faccinetto is a fifth grade writing, science and social studies teacher in Allentown School District, as well as a school board member for the Bethlehem Area School District. According to calculations from the Public Interest Law Center and the Education Law Center, both districts are dealing with per pupil funding shortfalls, but Faccinetto said the challenges in Allentown are significantly more pronounced.
“The Lehigh Valley is an interesting place and it’s really a snapshot of the inequity that exists,” Faccinetto said.
With the state contributing only about 38 percent of funding to school districts, one of the lowest rates in the country, a school district’s budget is based heavily on their tax base. In a district like Allentown, Faccinetto said, where 100 percent of his students are eligible for free and reduced lunch, the property tax base is not only smaller, but when a new tax is raised, the burden falls more heavily on people who struggle to afford it.
“There’s literally streets in Allentown where if you’re on one side of the street, you’re in Parkland School District very wealthy very suburban, and if you’re on the other side you’re in Allentown,” Faccinetto said. “And, you know, a 15 foot wide street shouldn’t determine the quality of education you get. ”
The lawsuit involves the William Penn, Greater Johnston, Lancaster, Panther Valley, Shenandoah Valley, and Wilkes-Barre Area school districts, the Pennsylvania NAACP State Conference, the Pennsylvania Association of Rural and Small Schools and six parents whose children were minor students in 2014.
Skylar Armstrong’s parents are among the petitioners. He was 13 when the case was first brought, and has since graduated high school. He said during a press conference that his academic experiences were deeply affected by a lack of funding; the mold in his school made his asthma worse, he was taught Spanish by a substitute teacher for nearly a year and his schools lacked academic remediation that would have helped him with his learning disability.
“I know my teachers cared about me and tried their best, they put their own money in our classroom, and made them better, but there was just too many problems for the teacher to fix,” Armstrong said. “This system must be changed. That is why this trial is so important. It’s our chance to fix the school funding system; it has hurt too many kids like me for too long. This case will hold our lawmakers accountable for providing an education system where all of us can fulfill our dreams.”
Trial has been routinely avoided over the seven years, with the Commonwealth Court initially dismissing the case, saying that determining “adequate” education funding is a legislative policy determination and therefore a “nonjusticiable political question.” The plaintiffs appealed to the state Supreme Court shortly thereafter, and the court ruled in September 2017 that the case go to trial.
While the suit was winding its way through the courts, the legislature was simultaneously taking up the issue of school funding. In 2014, the General Assembly convened the Basic Education Funding Commission and tasked them with creating a new formula by which to distribute state funding to schools.
What came out of the BEFC was a weighted formula that takes into account some of the challenges that students face that take extra resources, including high levels of poverty, limited English proficiency and sparsity in rural areas. For districts with higher concentrations of these students, the formula would give them a slight boost to help overcome some of the challenges those students face.
That weighted formula, often referred to as the “fair funding formula” was adopted by the legislature in 2016. However, not all of the state money goes through that formula — in fact, just 11 percent of state funds are distributed according to the weights that are purported to make funding more equitable.
That’s because Act 35 of 2016 included a “hold harmless” provision that says that funding for school districts will not drop below the levels that the schools saw during the 2013-14 school year. Because the fair funding formula doesn’t necessarily come with new money, if it were to be enacted, some districts would see their state allocations cut in order to shore up the budgets of districts with more students in poverty or English Language Learners or sparser populations, as in rural districts. So the formula only applies to new money that the state adds to the education budget.
“While the funding formula is good, and everybody I think agrees that it’s good and it works, its cemented in and forever locked in place those inequities, by saying hold harmless would stay and you’ll never get less than you got in the 14-15 school year,” Faccinetto said. “So what that does is districts like Allentown and Bethlehem — and Scranton and Harrisburg and ones I mentioned, Norristown, William Penn — that are so far behind, it’ll take 20 years to get caught up if we’re lucky, because it’s only the new money that goes to the formula because everything else is locked into this 14-15 base year.”
Former Senate President Pro Tempore Joseph Scarnati tried to get the case dismissed for a second time following the passage of Act 35, saying the claim of inequitable funding was made moot by the formula, but his objection was dismissed.
Even with the new formula, McInerney said that the same issues that inspired the original petition remain, as the lion’s share of basic education funding does not take the fair funding weights into account.
The Challenge Ahead
Even with the date now in sight, the timeline of when and whether the state will meaningfully address school funding is still up in the air. Michael Churchill, an attorney from the Public Interest Law Center on the case, said that lawsuit aside, the General Assembly really could take up school funding at any time.
“They can change it anytime they want, they don’t have to wait for the final order of telling them what to do, this is their responsibility,” Churchill said.
The case specifically names the current leadership in the governor’s office, the Pennsylvania Department of Education and in the General Assembly as respondents, though Churchill said that the defense is primarily being taken up by Speaker of the House Bryan Cutler (R-Lancaster) and Senate President Pro Tempore Jake Corman (R-Centre).
Gov. Tom Wolf, while named in the case, has expressed his desire to see an increase in school funding. As part of his 2021 budget proposal, he said that he wants to see all of the funding for education go through the fair funding formula, and proposed an additional $1.3 billion to shore up the budget to keep the hold harmless provision intact and make sure that no school district loses money as a result of the formula.
His idea received a chilly response from Republicans in the General Assembly, with Senate Republicans calling his proposal “dead on arrival.”
Still, even if his budget were to be taken up, Kristina Moon, a staff attorney for the Education Law Center who is part of the William Penn counsel team, said that while the proposal is historic, it’s still not quite to the magnitude that they believe Pennsylvania students need. With a $4.6 billion estimated shortfall, $1.3 billion is a good start, but still does not speak to the purpose of the case, which is to deem the current system unconstitutional and correct it.
“Our suit is asking the court to require the legislature to uphold its constitutional obligation to ensure a system that continues to direct funds to students that need it,” Moon said. “We don’t specify in what way that has to be done, that’s something that will come back to the General Assembly.”
Even as many of the original student plaintiffs in the suit have since graduated, Faccinetto says this case is not only a chance to fix the system, but recognition of what families have dealt with for the last decade.
“You know, there’s such focus on seniors who missed graduation last year,” Faccinetto said. “I mean these seniors in Allentown missed a lot more than graduation. They missed a lifetime of opportunities that they would have had in other districts had it not been for their zip code and where they live.”