HISTORY OF THE EQUITY SUIT
The history of Pennsylvania’s equity suit PARSS v. Casey follows the path of many of the other equity suits over the past 23 years. A group of poor people, or poor school districts see that their children are not being afforded the same educational opportunities as those youngsters in wealthier areas of the state. They approach both the legislative and executive branches of their state governments and receive no redress of their grievances. As a last attempt at amelioration of the problem, the approach the judicial branch for remediation.In some cases, the court system sees validity of their claims and in some, the system is upheld as constitutional. Some of the cases go on for over 20 years and some are settled in 4 or five years. The results of each of these cases are not consistent. In the first case of this kind, in state court, Serrano v. Priest (California), the case led to a complete property tax reform system culminating in Proposition 13. Although expenditures per student are less disparate, the California model does not produce the equal opportunity for students that it so ardently desired.
The New Jersey case Robinson v. Cahill and its children Abbott v. Burke (1,2,3), have taken over twenty years to complete and have not, as yet, achieved the desired results. The funding of schools has been changed and there are indications that the additional funds to poor urban districts are having some affect, but there is no solid evidence that this is a system that will succeed.
The Kentucky case Council for Better Education et. al v. Collins is more of a model for Pennsylvania than many of the other states. Kentucky has many rural and urban areas that need help, and wealthy suburban areas, as does Pennsylvania. The results of the Kentucky case were more far reaching than any other in the country. Not only was the funding and taxation system changed, but the entire way education was delivered underwent a revision. The results of these actions are not yet complete, but there is a good feeling across the state and the nation that Kentucky can be a model for other states.
Pennsylvania has not been at the forefront of a dis-equalizing system. From 1962, there was a philosophy in government, from Governor Scranton to Governor Casey, that a system that did not take an equalization concept into consideration was not a fair system. In 1968, the concept of the aid ratio was developed. All systems since then have been modifications of that system. Unfortunately, because of a developing disparity in the economy of the state, budgetary changes, and political considerations, the system called ESBE developed into the 7th ranked disparate system in the country according to the federal government.
By the mid 1970’s, such folks as Cronk and Johnson and Senier were warning Pennsylvanians that there was an abnormal growth in the disparities between wealthy school districts and poor districts in the Commonwealth. In the legislature, such representatives as Sam Hayes, James Manderino, and David Sweet pushed for a more equitable system.
By the 1980’s, the system began to collapse on itself. Some school districts received 120% to 150% of what the formula would have given them, while a large number of districts were accumulating only 80% of what they were due and owing. The problems varied within the formula, expressed as “too many bells and whistles” and a hold harmless clause in each of the legislative years, that restricted those due and owing more money, and giving some school districts at least a 2% increase, when they deserved nothing.
In two parts of the state a group of rural districts gathered together to decide how to approach this problem legislatively. They sometimes called themselves the 80% group. Eventually the group solidified in 1985 into what we now call the Pennsylvania Association of Rural and Small Schools (PARSS).Although the members of PARSS were not, at first, interested in pursuing a court battle, their legislative efforts were sometimes stymied by those who would say, “Go ahead and sue us, we won’t do anything unless the Court makes us do it.”
For a few years there were other attempts to move both the legislative and executive bodies to action. In one small triumph, the Small District Assistance component of ESBE halted the slide somewhat. However, by 1990 the disparities had grown to such a great degree, that there was a clamor for some more direct action.
In March of 1990 at the annual PARSS conference, Arnold Hillman, an Executive Director of an Intermediate Unit in Western Pennsylvania and former Superintendent of a rural school district, was asked to make a presentation about the possibility of initiating a suit. After the presentation, the attendees at the conference discussed the issue and voted unanimously to begin a suit against the Commonwealth of Pennsylvania.
Because of the nature of the educational community in Pennsylvania, all of the other educational organizations were asked if they would like to join PARSS in their efforts. Three of the organizations, PSBA, PSEA and PASA volunteered to join as amicus curiae (friend of the court) and PSEA volunteered both monetary resources and their research and legal staff to help.
The first step in the plan was to visit initiators of the Kentucky suit to gain any insight into their strategy and to see what could be learned from their mistakes. All of the major educational organizations were invited to go along. PARSS was represented by Dawson Detwiler and Arnold Hillman. PSEA was represented by Mark Widoff, general counsel .
This group met with former Governor Bert Combs of Kentucky, and Debra Dawaharre, attorneys for the 66 poor and rural districts that had joined to sue the state. Both Governor Combs and Ms. Dawaharre explained that their initial thrust in the case had been to approach the legislature and the executive branch with some sense of how the problem of disparity might be solved. Once that route was closed to them, they then went to a legal route. They cautioned us not to sue the legislature because the eventual solutions would come from the legislature and it would be futile to disrupt the process by suing them. Their advice was to sue the executive branch. They further cautioned us to be careful in the selection of our legal firm.
There were many other suggestions that Governor Combs made, including a procedure and philosophy of the case. The most important item that came out of the meeting was his suggestion that we meet with former Governor William Scranton some time in the future to get his advice about how to proceed. Although Governor Combs has since passed away, we remember his help and encouragement. Our picture of him as a fine and decent human being has not diminished with time.
The next step in our plan was to find competent and interested legal counsel. Not only did the counsel have to be of a high professional standing, but it would have to be people who believed in our case. A further consideration was that the legal staff had to be an established firm with roots here in Pennsylvania. Toward this end, firms were interviewed and a decision was made to hire Pepper, Hamilton and Scheetz. In a meeting with Fred Speaker, former Attorney General for the Commonwealth of Pennsylvania, and Bridget Montgomery, an associate of Mr. Speaker, the firm impressed PARSS. The firm promised that they would attack the case earnestly. We were to make a good faith effort to develop those funds. To this day, that is the way it has been. Eventually, Fred Speaker retired from the firm and Bridget Montgomery became a Law clerk to Federal Judge Rambo. Tom Schmidt has been our lead attorney from 1993 till today and is assisted by a number of other attorneys in the firm.
The third step was to visit Governor Scranton in his home city. That meeting took place in the Fall of 1990. Governor Scranton listened to our plans. He pointed out that one of the main goals of the Consolidation Act of 1965 was to create more opportunities for youngsters in larger settings. He believed that, for the most part, that had been a positive thing. However, he was quick to point out that there were still deep divisions in the state economically. Those divisions has been exacerbated over the years. He was able to remember the two districts from 1966 that been the highest and lowest spenders. Interestingly enough those same two school districts are the same today. He was quick to point out, however that the disparities are certainly greater today than they had been in 1966.
Governor Scranton reviewed the philosophical underpinnings of such a case and told us that he thought that the legislature would eventually be the prime movers in any solution, but that we should attempt to contact Governor Casey to see if there were anything that he could do to help us. In fact, Governor Casey had tried to implement an “equity supplement” in the 1989-90 budget deliberations. He was not able to get it through the legislature. Governor Casey was also, at the same time, trying to revise the taxing scheme in Pennsylvania so that poorer areas could benefit. That attempt did not succeed.
PARSS did contact Governor Casey soon after the meeting with Governor Scranton. His reaction was positive, but he could not be sure of what the future might hold. He was in the midst of a Gubernatorial campaign that would see him win a second term. PARSS attention turned to an essentially judicial solution to the problems of disparity of resources and equal opportunity for youngsters in the state.
On January 10,1991, PARSS filed its case in both the Commonwealth Court and in Federal District Court.The complaint described the disparities between districts with very few resources and those with great resources. The prologue of the complaint said ” The plaintiffs seek a declaratory judgment that the Pennsylvania scheme for funding instructional expenses in public schools, currently set forth in 24 P.S. 25-201 et seq., is unconstitutional because it violates the education clause of the Pennsylvania Constitution Article III 14 and the right to equal protection of the laws guaranteed by the Pennsylvania Constitution, Article I 1 and Article III 32 42 U.S.C. 1983, and the fourteenth amendment to the United States Constitution . . .Plaintiffs ask this Court to issue a declaratory judgment that the present scheme for funding public education in the Commonwealth violates 42 U.S.C. 1983 and the equal protection clause of the fourteenth amendment to the United States Constitution and is therefore unconstitutional, to grant the appropriate injunction relief to effectuate this declaration, and to grant whatever relief it deems just in the circumstances.”
PARSS entered the case with 127 school districts having joined the effort. There were 8 named districts; Clairton, Northern Tioga, Harrisburg, Apollo-Ridge, Corry, Duquesne, Everett and Glendale. These districts were chosen, not only because of their lack of resources, but because they were typical of many districts where disparities were great. PARSS has solicited the entire state for districts who were interested in joining the suit. They had asked for contributions of $1 per ADM to fund the suit. Presentations were made to almost all the 29 Intermediate Unit Superintendents, school board groups, educational organizations, taxpayer groups, business groups, unions, service clubs, professional organizations, university groups among others. A fifteen minute videotape was produced by the contributions and 216 districts have joined.