When a Supreme Court expands upon or clarifies the meaning of a few words in a Constitution it can set in motion enormous changes. Pennsylvania should get itself ready for just such changes.
On September 28th, the state Supreme Court gave orders that a group of distressed school districts be given a chance to go to trial before the Commonwealth Court on their claim of discrimination by the state in education funding. The order reversed the lower Commonwealth Court’s decision of some three years ago to not hear this case.
In the kind of foreshadowing that courts do in legal opinions, five of the seven state high Court judges have signed on to statements that indicate they are sympathetic to the case the plaintiffs have before them and it is highly likely they will in the end rule in their favor.
That ruling could topple the current system of funding schools through local real estate taxes—something which would have a huge effect on the way Pennsylvania pays to educate its children.
Currently, 65 percent of Pennsylvania’s public education funding comes from local taxes, which vary as widely as the neighborhoods being taxed. The plaintiffs are trying to “constrain the executive branch’s administration and enforcement of the challenged school financing scheme.” In other words, they—and perhaps the Court—are saying that the zip codes of children in the state should not determine the kind of education they get.
Among the state’s poorest districts is Panther Valley in Carbon County, which is barely able to annually raise $5,600 per student. At the opposite end is affluent Lower Merion in Montgomery County, which with a relatively modest tax rate is able to raise $23,700 per student. Simply put, school districts are little boxes of which many are more exclusive than others.
The case centers around six families in poor rural areas and small cities. But it is an opportunity for Philadelphia as well. City education reformers should see this as a chance to start thinking about how to get the city’s act together—something for which it is not noted—and soon.
The question of fair distribution of education dollars has been a hot-button issue in Harrisburg ever since suburban home builders in the 1960s began to pivot their sales on having the best schools. For the past 50 years a perpetual political and cultural battle has waxed and waned in the state Capitol over the money allocated to the state’s more than 500 school districts. Public education and the taxation to support it have continued to be the vulnerable underbelly of virtually the entire American culture, let alone the state of Pennsylvania.
And Philadelphia, because of its low property values and concentrations of poverty and racial minorities, has long struggled to self-generate the kind of school funding that, say, Lower Merion School District garners from its residents every year. It has instead had to make its own way amid the regional animosities that are a constant in the politics of the state Capitol.
Now, the Court’s September 28th decision, written by Justice David Wecht, contains a warning to the state Legislature that the Court views them as having fallen short in meeting their very specific constitutional duties to support education. Both how Pennsylvania’s public schools are funded and the way they are structured are state constitutional questions. Those linked ideas, Wecht’s opinion strongly asserts, very much lie within the Court’s duty and prerogative to interpret and define and they will do so.
Justice Kevin Dougherty, who voted with the Court majority but filed a separate, concurring opinion, chose to go even further in asserting the Court’s independent role in public education. Dougherty, a Philadelphian, came into office in 2016 with fellow Democratic Justices Wecht and Christine Donohue, the event that flipped the court to Democratic control and which has set up this Court’s evolving, dramatic break with prior decades of holding back from so called political matters on the premise that it is required by the principal of “judicial restraint.”
“Judicial restraint,” Dougherty wrote, “serves no purpose when constitutional rights are threatened or abridged.” Where state Courts are clearly not trying to assume the functions of the co-equal branches of government, Dougherty maintains, the courts “should take an independent and pragmatic approach to judicial authority in order to facilitate and support their integral and vibrant role in state government.”
This too is another strong message aimed at the state Legislature on what to expect from this new Court.
A Rand study found that correcting shortfalls based on race, ethnicity and income status would boost the income levels of many thousands of individuals and have a gross domestic product impact measurable in billions of dollars.
The specific petitioners in the case William Penn School District (Delaware County) vs. PA Department of Education are six families of Pennsylvania school children and the school districts they live in: William Penn, Panther Valley (Carbon County), Lancaster, Greater Johnstown, Wilkes-Barre Area and Shenandoah Valley. (Also included are the state Conference of the NAACP and the Pennsylvania Association of Rural and Small Schools.) All have identified the manifest unfairness of reliance on local taxes unequally levied on their school districts that are wage and property tax-poor and arising from factors of income, race or ethnicity.
Consider these two polar extremes: Among the state’s poorest districts is Panther Valley in Carbon County, which is barely able to annually raise $5,600 per student, even though it levies one of the highest property tax millage rates in the state. At the opposite end is affluent Lower Merion, which with a relatively modest tax rate is able to raise $23,700 per student. Simply put, school districts are little boxes of which many are more exclusive than others.
The beating heart of all these matters is located in Article III, Section 14, of the state Constitution, 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.”
Dougherty says of this clause: “These constitutional challenges do not involve garden variety political questions. They entail grave social, economic and moral implications and consequences. A proper public education is not a static concept and must change with the evolving world around us… to ensure the Commonwealth’s citizens are fully capable of competing socially, economically, scientifically, technologically and politically in today’s society.”
The larger context for Dougherty’s remarks track the findings of a Rand study on eliminating achievement gaps in Pennsylvania education. Released in 2015 by Temple University’s Center on Regional Politics, the study found that correcting shortfalls based on race, ethnicity and income status would boost the income levels of many thousands of individuals and have a gross domestic product impact measurable in billions of dollars. Pennsylvania is not, after all, Mississippi, and the Rand study holds out that within 10 years a remarkable turnaround in the future of the state can be driven by renewed investment in public education.
Given that nations now consider their most valuable resource to be a well-trained and effectively educated population, the costs of educating our citizenry have already been proven to offer a tremendous return on the investment. Now more than ever a mind is a terrible thing to waste.
Looking ahead the big question is: What would be the result of a Supreme Court decision that finds the state’s existing scheme of local property and wage taxes to be unconstitutional? It is almost certain that the taxing burden would be lifted from the existing individual school districts and generalized in some way.
Where will taxing power to support public schools be placed? Will it go state-wide in all cases? Will districts be reconstituted across county or multi-county lines so that property and wage taxes can be made fairer?
Part of the answer to these questions will lie with the Court itself and the extent to which they set out guidelines that interpret what the Constitution says with regard to school taxing power and how to avoid once again falling into the current pitfall.
The ruling could topple the current system of funding schools through local real estate taxes—something which would have a huge effect on the way Pennsylvania pays to educate its children.
In recent years some bi-partisan consensus has already developed for abolishing the property tax for the purpose of funding schools. About two years ago a bill supported by mid-state Republican and Democratic State Senators came one vote shy of passing, but it foundered on concerns about the political impact of a tax-shift of some $15 billion to “new” replacement taxes. Some months off in the future, however, necessity is likely to bring this group of Senators together again.
Once a definitive Court opinion comes down on this case, and maybe even well before, we can count on the school districts themselves, the Legislators for sure, and many government, business and civic bodies to weigh in on the matter. We can surely count on the marketplace of political ideas to heat up with more than usual passion. It’s possible that a special Constitutional Convention will be suggested and called on to further address the question of public education.
But looking beyond all the uncertainties that lie in the future, one thing is for sure: The Supreme Court’s recent decision has raised the prospect that some two or three years from now public education in Pennsylvania could be headed in new and different directions.
Charlie Bacas, who retired in 2009 upon the sale of a software tool company he co-founded, spent 20 years in the state government, including the Governor’s office of Bob Casey and Chief of Staff to House Majority Leader, Jim Manderino. He lives in York, PA, where among civic positions he’s served as Redevelopment Authority chairman.Header Photo: Storybook