“Constitutional rights don’t get put on hold because there’s a recession or financial constraints,” says Michael Rebell, executive director of the Campaign for Education Equity and a leader in New York’s school funding lawsuit.
Texas legislators, responding to a state Supreme Court ruling, placed a more restrictive cap on local property tax rates in 2006 but assumed more of the burden for school funding at the state level. Lawmakers increased the business tax to pay for the change but so far revenues have not met expectations. With the state now facing a roughly $21 billion shortfall over the next two years, school leaders have warned that significant cuts could send them back to the courts for relief.
Indiana’s local property taxes, which had been a major school revenue source, were capped in 2008. The legislature agreed to take on more of the task of funding schools and raised the sales tax to compensate for the lost income. But the recession has put a dent in sales tax receipts, which have traditionally been more volatile than property taxes.
Escaping the mandate
Kansas presents one of the most clear-cut cases. Last year, the state enacted a temporary one-cent sales tax increase in part to meet the court-imposed school-funding mandate. But now, a looming $500 million deficit for the 2012 fiscal year has education officials worried about drastic school spending cuts. Meanwhile, last month’s elections strengthened the Republican majority in the House and sent US Senator Sam Brownback, a conservative Republican, to the governor’s mansion. GOP lawmakers have talked about repealing the sales tax increase, to the dismay of many school advocates.
Republican lawmakers have vowed to defend themselves aggressively against the schools' lawsuit. "We're going to stand up and fight this thing and not take it lying down like we did last time," says Kansas state Senator Dick Kelsey. To Kelsey and many of his legislative colleagues, the state Supreme Court overreached by telling lawmakers to increase funding for education. Only the legislature can make decisions on appropriations, Kelsey says, an argument he plans to take to the US Supreme Court if the schools prevail in state court once again.
To John Robb, the attorney representing a consortium of 63 Kansas school districts, four of which are plaintiffs in the most recent suit, the legislature is shirking its responsibility. “They are using the recession as the excuse to somehow negate a case that took six trips to the Kansas Supreme Court,” he says. “The state controls the checkbook. If the state wants more resources, they just get more resources. But we’re on this huge tax cutting binge.”
The latest wave of school funding lawsuits will take years to work its way through court systems around the country. And it’s unclear how successful plaintiffs are going to be in this round. But school officials still could benefit from filing suit or threatening to sue even if they are unlikely to see money in the short term. “If nothing else, school districts can raise the awareness of the problems,” says Molly A. Hunter, of the Education Law Center in New Jersey.
That already appears to be the case in Nevada, one of only six states that have never had a school funding lawsuit. So far, nobody in Nevada has threatened to sue, but state Sen. Mo Denis is worried nonetheless. A 2006 report commissioned by the legislature found that the state would need to increase education spending by at least $2.3 billion annually to provide an adequate education. That would be an unimaginable expense in a legislative session during which lawmakers will have to fill a $3.2 billion overall budget gap. Education makes up about 65 percent of the state budget, which means it will almost certainly face some cuts, according to Denis.
“Somebody could sue,” he says. “The concern is then our ability to govern gets turned over to the courts, which isn’t a good way to run your education system.”
— Contact David Harrison at dharrison@pewtrusts.org
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