School funding - See you in court

By Henry J. Waters III

COLUMBIA, Mo. -- It was inevitable. As public school funding per pupil has become ever more inequitable, a constitutional challenge was just a matter of time.

And now it is upon us.

Some 147 Missouri school districts will file suit, probably in November and probably in Cole County Circuit Court, alleging inadequacy and inequity in school funding. Alex Bartlett, the Jefferson City attorney who represented school districts in a successful 1990 equity suit, will represent the group calling itself the Committee on Education Equality.

Bartlett will say in court that the state Foundation Formula does not do the job, but this time apparently he will make a new argument. Not only will he say public education money is distributed inequitably, an almost unarguable premise; he also will say it does not provide enough money, a brand-new concept recently argued successfully in a New York court.

The equity argument is supported by constitutional guarantees of equal access to public education. When disparity of funding reaches a certain level, courts routinely find opportunities for some children illegally wanting. So it was found in 1990, and now, as determined by State Auditor Claire McCaskill, the disparity has returned to a similar level, in which per-pupil funding in the wealthiest districts is about one-third more generous than in the poorest. In 1993 the state funding formula was rewritten, closing some of the gap not all, but enough to quell additional litigation.

Now, the same equity argument can be made again and almost certainly will be upheld. But what about the contention the formula fails to provide legally adequate funding? At this preliminary stage, attorney Bartlett tosses it off with a general comment: "Adequacy is a factor because it should not be about trying to cut a small pie into yet more pieces." Many will agree, but this is a political, not a legal, assessment, and therein lies my question about the adequacy argument.

I was astonished to see news of the New York decision, in which the judge declared the state legislature is not providing enough money for New York City schools. Who says? New York gets more money per pupil than many other metropolitan districts, including Chicago and Philadelphia. Regardless, how can a court legitimately say a legislature is not spending enough without unconstitutionally invading the prerogatives of the legislative branch? It can order equity without saying anything about adequacy.

Even though the first proclamation from a New York court found inadequacy, I can't imagine the same verdict will emerge in a Missouri court or, for that matter, in the New York system before the appeals process is completed. If I'm wrong, we have a brand-new breach of the wall between the legislative and judicial branches.

Even if allegations of inadequacy are thrown out, the equity issue raises challenges aplenty. The school Foundation Formula seeks to offset local funding disparity without destroying local incentives to provide more, not less, local support, obviously an impossible compromise. If true equity is demanded, the only way is to create a single statewide school district with a common state-mandated tax system. Disproportionate tax revenue from richer districts would be sent to the less affluent, precisely the socialistic shuffle patrons in the richest districts oppose. Why, they say, should we not be able to tax ourselves to provide better education for our own children? As the state tries to constitutionally equalize funding, it flies in the face of that fervently held argument, and so the conflict will exist so long as the current system of public school funding prevails.

The court probably will say the current pattern of funding is unconstitutionally inequitable and toss the hot potato to the legislative branch for remedy. Once again, full equity will not be provided, but at least the issue involves a lucid constitutional premise framed by simple mathematics.

Not so with the adequacy issue. If separation of powers is a concept with durable meaning, the court will demur on this one.

Henry J. Waters III is the publisher of the Columbia Daily Tribune.