A judge declared Pa.’s K-12 public school funding system unconstitutional. What comes next?

Judge Renée Cohn Jubelirer said the ‘options for reform are virtually limitless’ but did not offer direction, leaving it to the executive and legislative branches

By: - February 8, 2023 4:39 pm
Pennsylvania Capitol Building. May 24, 2022. Harrisburg, Pa. (Photo by Amanda Berg, for the Capital-Star).

Pennsylvania Capitol Building on Tuesday, May 24, 2022. (Photo by Amanda Berg, for the Capital-Star).

In what will likely be a lengthy and arduous task to uphold constitutional obligations by providing a “thorough and efficient” education system, the Legislature and Gov. Josh Shapiro must reform how the state funds K-12 public schools.

In a 786-page order issued on Tuesday, Commonwealth Court President Judge Renée Cohn Jubelirer sided with the plaintiffs in a landmark trial that challenged the current school funding model, ruling that the General Assembly has not fulfilled its legal mandate and has deprived students in school districts with low property values and incomes of the same resources and opportunities as children in wealthier ones.

The decision — which could face an appeal to the state’s highest court — comes after a four-month-long trial that concluded last year and marks the beginning for officials to change how the state pays for education and meet the mandate outlined in the Education Clause of the state Constitution.

Cohn Jubelirer, a conservative judge, did not direct the Legislature on how to fund schools, calling it “uncharted territory” for the court. Instead, she left it to the executive and legislative branches to develop a plan that includes input from the educators in the case.

“All witnesses agree that every child can learn,” Cohn Jubelirer wrote. “It is now the obligation of the Legislature, executive branch, and educators to make the constitutional promise a reality in this commonwealth.”

Reviewing next steps

It’s unclear whether the defendants will appeal the decision, meaning the case goes before the state Supreme Court.

When Cohn Jubelirer issued the opinion on Tuesday, she granted an application by House Republican Leader Bryan Cutler, who represents Lancaster County, the former House speaker, to intervene in the case. As the ranking officer in the House, Cutler was named as a defendant representing the lower chamber, as previous House speakers have since 2014 when the case was initiated.

Like the other legislative and executive branch officials named as defendants, Cutler’s name was replaced by that of his successor, House Speaker Mark Rozzi, D-Berks.

Cutler’s lawyers argued in a brief filed on Feb. 1 that he and legislators continue to have a vested interest in the outcome of the case, asking to participate in legal action to “seek redress” when there is a violation of the separation of powers.

Cutler said the Commonwealth Court decision was “disappointing, but not surprising from a state judiciary that consistently identifies itself as a Legislature to reach policy gains political allies cannot achieve in the General Assembly.”

He said legislative Republican leaders have “repeatedly prioritized student success over increasing the wealth of school districts” while increasing taxpayer support for public schools.

“Unfortunately, the problems existing in our public education system go well beyond funding,” he said in a statement. “The only part of optimism in yesterday’s decision is the recognition that merely providing more money to the public school system is not the only available answer to fix a failing system.”

Senate Majority Leader Joe Pittman, R-Indiana, said his caucus is reviewing the order. He cited historic investments during the most recent state budget and said Senate Republicans are committed to education empowerment and access.

In a statement to the Capital-Star, Shapiro said his office is reviewing the opinion to determine the next steps.

Legislative Democrats celebrated the decision, saying it marks a brighter future for Pennsylvania schools and their students.

Rep. Matt Bradford, D-Montgomery, the ranking Democrat on the House Appropriations Committee, told the Capital-Star the decision was long overdue but a welcome relief.

“This is a tremendous opportunity not only for students who have been shortchanged the constitutionally appropriate education but also the property taxpayers who have borne the brunt of Harrisburg’s failure to appropriately fund education,” Bradford said.

Rep. Mike Schlossberg, D-Lehigh, who has advocated for education funding reform, called the decision “a win” for kids and taxpayers.

During an interview with the Capital-Star, he said he anticipates an appeal but expects the Supreme Court would uphold the order, noting that Cohn Jubelirer’s decision was “appropriately open-ended.”

“Because the role of the judiciary is to make orders but not necessarily directly impact or directly implement specific public policy solutions,” he said. “How quickly we act on it becomes a little bit of a different story.”

‘The options for reform are virtually limitless’

Regardless of an appeal, attorneys from the Public Interest Law Center, Education Law Center, and international law firm O’Melveny & Myers — who represented the plaintiffs in the case — have vowed to ensure Pennsylvania officials and lawmakers create a system that fulfills lawmakers’ constitutional mandate.

Dan Urevick-Ackelsberg, a senior attorney at the Public Interest Law Center, said the plaintiffs will try to prevent a stay of the ruling pending an appeal.

“Their obligation to actually fix the system starts now,” he told reporters on Tuesday. “And we will work hard to ensure that that obligation remains even while this case is on appeal.”

The petitioners in the case did not ask for a specific dollar amount. Instead, they asked the court to order the General Assembly to implement a new system to pay for public education.

During last year’s trial, they argued that Pennsylvania schools are underfunded by $4.6 billion. Testimony from educators and former state education officials outlined how deteriorating buildings, overcrowded classrooms, and limited resources have affected student outcomes. They used lagging state test scores, lower graduation rates, and post-secondary enrollment rates to detail their arguments further.

Lawyers for Cutler and then-Senate President Pro Tempore Jake Corman, R-Centre, cited increased investments in education under former Gov. Tom Wolf, who was included in the case and staked his legacy on education funding.

“I’m not going to stand here and argue that all of the school buildings in all of the school districts are the Taj Mahal,” Patrick Northen, who represented Cutler in the case, said at the start of the trial. “But the evidence will show kids in petitioner districts have the basic instrumentalities of an adequate education, with chairs to sit in, desks or tables to write at, walls and roofs, working plumbing.”

They also questioned whether districts spend money effectively, arguing that schools should consider buying less expensive equipment — purchasing Chromebooks over MacBooks or consolidating athletic programs instead of making staff cuts.

Speaking with reporters after Tuesday’s ruling and citing sections from the order, Katrina Robson, an attorney with O’Melveny & Myers, said reform doesn’t have to be entirely financial.

“The options for reform are virtually limitless,” Cohn Jubelirer wrote in the order.

With Shapiro expected to deliver his first budget address next month, attorneys for the plaintiffs said that speech could signal priorities and solutions to help address the state’s public education funding system.

Urevick-Ackelsberg said they expect the first budget to have “a significant down payment on bringing the system into constitutional compliance.”

Pennsylvania passed the Fair Funding Formula in 2016, which decides financial allocations across the state’s 500 school districts. However, the new system only applies to new funds and uses outdated population numbers. In practice, this hurts schools in the eastern half of the state, which are growing, and keeps money in western school districts, which are shrinking.

Urevick-Ackelsberg told reporters that running all state education funding through the Fair Funding Formula is not enough to fix the funding system, comparing distributing money according to the formula to “rearranging the deck chairs on the Titanic.”

“There is not enough funding in this system,” he said.

For the last two years, Level Up, a funding initiative developed by advocates and proposed by Schlossberg that prioritizes the state’s poorest districts, has seen an increase in funding to help struggling districts. 

But, advocates only see that program as one component of fixing the funding system.

“Level Up was the appetizer, and I think the benefits of it are really clear,” Schlossberg said, adding that educators in the Allentown School District, which he represents, have used Level Up funding to buy equipment, hire teachers, and address gaps in resources.

Schlossberg said he suspects his colleagues “who maybe aren’t quite as dedicated to the specific needs of poor school districts” have heard about the benefits of Level Up funding and hopes they understand the legislative and political benefits.

“At the end of the day, we’ve got to develop a solution that not only complies with the judge’s order, but that does justice for kids, and that can also pass any political test, that can actually get 102 votes in the House, 26 in the Senate, and get signed into law by the governor,” he said.

Senior Reporter Peter Hall contributed to this story.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.