On February 7, 2023, Commonwealth Court Judge Renee Cohn-Jubelirer issued a 778 page ruling1 in an education funding case that focused on and addressed the glaring disparities among Pennsylvania’s school districts. The ruling was a sweeping decision, reading into the Pennsylvania Constitution a newly found fundamental right to education for every Pennsylvania student.
The Court focused on the Education Clause of the Pennsylvania Constitution (PA. CONST. art. III, § 14), which requires the Commonwealth to maintain and support “a thorough and efficient system of public education.” Notably, the Court held:
- The right to public education is a fundamental right explicitly and/or implicitly derived from the Pennsylvania Constitution. This requires that every student receive a meaningful opportunity to succeed academically, socially, and civically and have access to a comprehensive, effective, and contemporary system of public education.
- The Education Clause necessarily requires an examination not just of the inputs (resources providing public education) but also the outcomes.
- The failure to provide equal “outcomes” in education is a violation of the Pa. Constitution’s equal protection clause. “Applying strict scrutiny, the Court concludes Petitioners have established an equal protection violation. No compelling government purpose has been espoused for the disparities identified between low-wealth and high-wealth school districts.”
The Court’s holding is breathtaking in its mandate, requiring the legislature to establish an education system that guarantees equal outcomes among school districts. Generally, it assumes that accomplishing this goal is a matter of providing more resources, which the Commonwealth is now required to provide according to the Court and pays only a glancing reference to the need for fundamental reform in a broken education system that leaves too many Pennsylvania children far behind. The opinion contains no meaningful discussion about the many other factors that could create differences in test scores and other educational “outcomes” such as such as culture, crime rates, teacher’s union contracts and work rules, absence of two-parent families, etc.2
The opinion contains an exhaustive summary of the testimony of numerous educators and expert witnesses regarding the disparity of resources and educational outcomes among the various school districts, between racial groups and children from different socioeconomic backgrounds. The Court sided with the witnesses and expert testimony put forth by the 6 petitioner school districts and their allies who stated that those 6 school districts and other low-income districts across the Commonwealth lack “the very resources state officials have identified as essential to student achievement, some of which are as basic as safe and temperate facilities in which children can learn.” The Court stated that “the effect of this lack of resources shows in the evidence of outcomes, which also must be considered to determine if the system is “thorough and efficient” and to give effect to the phrase “to serve the needs of the Commonwealth” in the Education Clause.”
In other words, the Court stated that it’s not only the funding and the systems and structures that the Commonwealth of Pennsylvania must ensure are sufficient and equally distributed among the school districts, but also outcomes such as test scores and student proficiency, which must be equal or at least the goal, of Commonwealth funding.
It is interesting to note that the arguments put forward by the 6 petitioning school districts and ultimately the decision of the Court mirrors the debate that is ongoing in our culture today – whether government should guarantee equality of opportunity or equality of outcomes. The danger of attempting to guarantee quality of outcomes is that it may not measurably raise the outcomes of students who are not currently performing, but rather will result in a lowering of outcomes across the board, as resources are diverted from high performing districts to lower performing ones without any fundamental reform.
What happens from here is anyone’s guess. The Pennsylvania legislature has struggled with school funding and property tax reform for generations now. Facing a Commonwealth budget structural budget deficit in the billions, it is hard to imagine the legislature enacting billions of dollars of additional tax increases to comply with the unprecedented and costly mandate of the Commonwealth Court to equalize “outcomes” among wealthy and poorer school districts.
What is equally unclear is whether the billions of dollars that the Court suggests is needed to equalize those outcomes would even serve to substantially raise the test scores of students in those low achieving poorer school districts without systematic reform to a host of work rules and structures that seem to benefit teachers more than they do students – not to mention the effects of a decaying culture, the family unit in crisis, mental health issues, crime and the myriad of other societal problems and cultural decline that plague our cities and poor communities.
All this is not to suggest that we should surrender in our goal to provide a quality education to all children or that we should turn a blind eye to the inequality of outcomes that the court rightly identifies. In fact, this may be an excellent opportunity for legislators to put aside partisan differences and engage in meaningful discussion about how to implement much needed reform, recruit, train and empower the best teachers, reform rules that keep poorly performing teachers in the classroom, expand parental choice and infuse competition into public education.
We should all hope that the profound and troubling issues raised by Judge Cohn-Jubelier in her opinion spark a greater conversation and debate about the future of our children that goes beyond merely providing additional money. It should be our hope and our goal to accomplish real, substantive, and lasting reform that saves yet another generation of children from a failed school system. In the process we can not only rescue those children, but we can also unleash the human capital that lies dormant now in those communities.
Contact Omnis Law Group today to speak with an experienced appellate attorney, like Val DiGiorgio, Val can be reached at VFD@Omnislawgroup.com, you can contact the firm online, or call 484-81-OMNIS to set up an initial consultation.
EXCERPTS FROM THE COMMONWEALTH COURT OPINION
Standardized Test Results:
A review of the results of the PSSA’s and Keystone Exams shows that, across the state, students are not reaching “proficiency,” defined as “satisfactory academic performance,” which “demonstrates an adequate command of and ability to apply the knowledge, skills, and practices represented in the Pennsylvania standards.” From 2015-19, nearly 325,000 students of the approximately 870,000 students taking the PSSA’s and Keystone Exams each year were not proficient or advanced in ELA/literature. Almost half a million students did not meet proficiency or higher on the math/algebra PSSA’s and Keystone Exams for each of the same five years.
As Dr. Kelly credibly testified, students who attend one of the districts in the poorest quintile test significantly lower on state assessments than those who attend richer districts that can afford more educational resources. The gap between students in the lowest wealth districts and highest wealth districts scoring proficient or advanced is 24.5 percentage points in science and biology (56.5% versus 81.0%), 28 percentage points in ELA/literature (49.4% versus 77.4%), and 30.8 percentage points on math and algebra (31.2% versus 62.0%). There are also large gaps between the second poorest quintile and the wealthiest district. Dr. Johnson similarly opined that there is a gap between the most affluent and least affluent districts, with students in the most affluent performing two to three grade levels above those in the least affluent. Nearly 80% of schools designated CSI are from the poorest quintile districts.
Achievement Gap Based on Race:
There is also evidence of achievement gaps based on race within the Commonwealth. Dr. Johnson described a two-grade level gap between White and Black students. He attributes the achievement gap to the higher concentration of minority students of low-wealth districts that lack the financial resources to support those students’ needs. Statewide, Black students scored advanced or proficient at a rate 34% lower than their White peers in ELA, 37% lower than their White peers in math, and 36% lower than their White peers in 715 science on the 2018-19 state assessments. Of Hispanic students, only 42.39% scored proficient/advanced in ELA, 24.54% in math, and 42.36% in science, compared to the statewide average for all students of 62.98% in ELA, 45.52% in math, and 64.28% for science. Because of these existing gaps, the Department set lower goals in its ESSA Plan for future achievement for children of color than it set for children who did not fall into a subgroup.
Money Does Matter:
From these statistics, the Court concludes that money does matter, and economically-disadvantaged students and historically underperforming students can overcome challenges if they have access to the right resources that wealthier districts are financially able to provide. This is consistent with Dr. Noguera’s credible testimony that additional school resources can dramatically reduce disparities that exist between low-income children and their more affluent peers, ), as well as Dr. Johnson’s credible testimony that sustained increases in funding can help eliminate achievement gaps between economically-disadvantaged students and their non-economically-disadvantaged peers. In short, these statistics confirm what numerous witnesses testified as to: every child can learn, regardless of individual circumstances, with the right resources, albeit sometimes in different ways.
Achievement Gap Among School Districts:
In addition to achievement gaps among student subgroups, there are also achievement gaps among school districts. Less affluent districts have students graduating at lower rates than their more affluent counterparts. Dr. Kelly testified that students who attend a district in the lowest-wealth quintile had a five-year high school graduation rate nearly 10 percentage points lower than those attending a district in the highest-wealth quintile. The rate in the lowest-wealth quintile was 88.2% versus 96.0% in the highest-wealth district.
Gaps In Obtaining a Degree:
For the class of 2013, 21.4% of economically-disadvantaged students obtained a degree, compared to 52.3% of non-economically-disadvantaged students. Notably, economically-disadvantaged students who attend a school district in the wealthiest quintile see their odds of graduating from a post-secondary institution increase by roughly 10 percentage points compared to economically disadvantaged students attending a district in the lowest-wealth quintile.
Black And Hispanic Students:
Overall, there are consistent gaps when the inputs and outcomes described above are evaluated: gaps of achievement for economically-disadvantaged students, Black and Hispanic students and other historically underperforming students. The consistency of these gaps over the variety of inputs and outputs leads to the inescapable conclusion that these students are not receiving a meaningful opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education.
Education Clause and Fundamental Right to Education:
The Education Clause indisputably imposes a duty on the General Assembly to maintain and support “a thorough and efficient system of public education.” PA. CONST. art. III, § 14. The parties dispute whether the Education Clause creates a corresponding right to a public education in students and if so, what type of right. The Court determines the Education Clause, at least implicitly, creates a correlative right in the beneficiaries of the system of public education—the students.
Thus, between the plain language of the Constitution and the history of the Education Clause, the Court concludes the right to public education is a fundamental right explicitly and/or implicitly derived from the Pennsylvania Constitution.
Upon consideration of the plain language of the Education Clause, “as understood by the people when they voted on its adoption,” Robinson Township, 83 A.3d at 943, the Court concludes it requires that every student receive a meaningful opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education. Not only is this interpretation consistent with the Education Clause’s plain language, it is also in accord with the Education Clause’s history and with how other jurisdictions have interpreted similarly-worded education clauses.
Education Clause Requires an Examination of Not Only Inputs but Outcome:
Legislative Respondents argue that the Court’s inquiry ends once it examines inputs. They assert the Education Clause is silent as to outcomes, and, because there are a variety of economic, community, family, and personal factors that exist outside of school that impact learning, it would be improper to gauge whether the General Assembly is meeting its obligations based on outcomes. The Court cannot agree. Whether the system of public education is “thorough and efficient” and “serv[ing] the needs of the Commonwealth,” PA. CONST. art. III, § 14, necessarily requires an examination, not just of the inputs, but also the outcomes. Otherwise, there would be no way to gauge the adequacy of the system, and whether it is working to provide the opportunity to succeed to all students
Next, after hearing months of testimony, reviewing voluminous amounts of evidence, and rendering findings of fact, the Court applied the constitutional standard to these facts. The findings regarding inputs, such as funding, courses, curricula and programs, staffing, facilities, and instrumentalities of learning, demonstrate manifest deficiencies between low-wealth districts, such as Petitioner Districts, and their more affluent counterparts. Educators credibly testified to lacking the very resources state officials have identified as essential to student achievement, some of which are as basic as safe and temperate facilities in which children can learn. Educators also testified about being forced to choose which few students would benefit from the limited resources they could afford to provide, despite knowing more students needed those same resources. The effect of this lack of resources shows in the evidence of outcomes, which also must be considered to determine if the system is “thorough and efficient” and to give effect to the phrase “to serve the needs of the Commonwealth.”
Equal Protection Clause and Outcomes:
Finally, the Court interpreted and applied the Equal Protection Clause to the credited facts in this case. Applying strict scrutiny, the Court concludes Petitioners have established an equal protection violation. No compelling government purpose has been espoused for the disparities identified between low-wealth and high-wealth school districts. Even applying the less stringent intermediate or rational basis scrutiny, the Court would conclude that there is no rational basis for such disparities.
The Court’s decision today was reached after careful thought and thorough deliberation of the law and the volumes of evidence presented. While the Court regrets having to point out how and where the system is deficient, a discussion of the system’s deficiencies was a necessary component of the Court’s analysis. The Court strived to not focus solely on the negatives, but to highlight the many achievements of the students, districts, and Respondents, all of whom are deserving of some praise for what has been accomplished thus far. The discussion of the evidence was not intended to diminish these achievements or be critical of anyone.
All witnesses agree that every child can learn. It is now the obligation of the Legislature, Executive Branch, and educators, to make the constitutional promise a reality in this Commonwealth.
2 To be fair, Judge Cohn-Jubelirer acknowledged the need for reform when she states: “Nothing in the foregoing opinion undermines the ability of the General Assembly to continue providing local control to school boards or infringes on any of the sister branches of government’s authority. Nor does it require reform to be entirely financial. See Campaign for Fiscal Equity, 801 N.E.2d at 347 (acknowledging there are reform options beyond financial reform). The options for reform are virtually limitless.”