After months of quiet deliberation, education advocates from across Oregon are poised to file a lawsuit charging the state with chronic underfunding of public schools.
Similar lawsuits have been filed in 37 states, including Arkansas, New York and Texas, as frustrated education activists petition the courts to force legislators to parcel out more money for education. In 21 of those cases, the plaintiffs have come out on top; seven have gone the state's way, and nine are still pending.
"Recently, school districts have been getting more and more successful in winning these cases, and getting a great deal more money," said Michael Griffith, a policy analyst at the Denver-basedEducation Commission of the States.
Multiple sources told The Associated Press that an Oregon lawsuit would likely be filed within the next few weeks.
Kathryn Firestone, the former executive director of the Coalition for Schools, has left that position to work for a new nonprofit that will focus on and fund-raise for the lawsuit, the Oregon School Funding Defense Foundation.
Members of the new group's board include a core group of lawyers, Firestone said, including Paul Kelly, a former general counsel at Nike; Bruce Samson, former counsel of Northwest Natural; and Art Johnson, Bill DeatherageandDennis Karnopp, lawyers in private practicein,respectively, Eugene, Medford and Bend.
Plaintiffs in the suit could include parents, school districts and school boards, and would most likely include representation from across the spectrum in Oregon, from urban to suburban to rural areas. Legislative leaders, including Senate President Peter Courtney and House Speaker Karen Minnis, could be named as defendants in the suit, which would be filed in Marion County Court.
The potential Oregon lawsuit comes at a curious time, since no legislative session is scheduled for 2006, and because the state's school funding woes, which drew national attention in 2003 when some schools had to close down early for want of funds, have simmered down somewhat. Still, the education lobby was audibly disappointed at this year's final set-aside for schools — $5.24 billion over two years — saying it wasn't enough to make up for earlier layoffs and cutbacks.
"After the recession ended, and the economy began to recover, conversations ensued about the next step," said Chip Terhune, lobbyist for the Oregon Education Association, the well-connected teachers' union. "Because of the national movement around adequacy lawsuits, there were a growing number of conversationsabout whether such a strategy might be applicable here."
A school funding lawsuit is not a quick fix. Griffith said such cases are often in the court system for an average of seven years, as lawyers for the losing side appeal, and appeal again. But in some states where schools have been chronically underfunded, lawsuits have resulted in big financial windfalls for schools.
In Kansas, for example, Supreme Court judges threatened to delay the start of the 2005-06 school year unless legislators complied with a court order to up school spending. Lawmakers grumbled but wound up increasing school spending by almost $300 million, or 10 percent.
Such bonanzas loom large, but an Oregon lawsuit also carries some very real risks for plaintiffs. The state's constitution, upon which judges would base their opinion, contains no outright guarantee to "adequate" school funding, saying rather that it is the state's duty to provide, "a uniform and general system of common schools."
But plaintiffs could rely on Measure 1, a constitutional amendment passed by voters in 2000 that requires legislators to set aside enough funding to meet the goals outlined by an ambitious education model or publicly explain their failure to do so.
That blueprint, known as the Quality Education Model, projects that it would cost $7 billion for this fiscal biennium to pay for the smaller class sizes, up-to-date technology and extra help for struggling students that experts say would bring 90 percent of students up to grade level in reading and math. That's almost $2 billion more than the state is actually spending on schools.
Lawmakers have generally ignored the model, deeming it a well-intentioned ideal that the state simply doesn't have the money to fund.
And if the lawsuit were to hinge on the mandated funding of the quality goals mapped out by Measure 1, legislators could decide to just lower the goals, so that they'd cost less to fulfill. That's a move that would be politically very difficult to explain to constituents, but one that could save the state the expense of trying to find billions more for schools.
The state probably wouldn't get too far by arguing that they simply couldn't afford to fund the standards they've endorsed, Griffith said.
"Policy makers can try to say we just don't have the money, but courts just don't accept that," he said. "The courts simply say, 'you have to find the money.' "
For their part, legislators said they've been hearing rumblings for some time that a lawsuit was in the works.
"I am not warm and fuzzy about this," said state Rep. Linda Flores, a Republican from Clackamas who chaired the House Education Committee in the 2005 session. "I think (a lawsuit) is going to create quite a difficult situation to deal with. Whose services are going to be cut to provide a higher level of funding to schools? Will we cut services to seniors? Send the corrections system further to hell in a handbasket?"
Spending more money is not an automatic guarantee of improving schools, said Flores, who has long advocated for schools to cut back on non-classroom spending.
"I am still of the opinion that there is a lot of consideration to be had on how the current amount of revenue is spent," she said. "That is a prime question before we move to whether to spend more."
— The Associated Press