"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Back to school

Back in 2001 one of the most striking legal decisions of the year came from 4th District Judge Deborah Bail when she bluntly – even fiercly – blasted the Idaho Legislature for what she said was its failure to properly fund the state’s public schools.

schoolThe case was old even then, rolling back and forth through the court system for more than a decade already; and more than four more years has passed since then, before a state supreme court ruling. The question of whether the state has properly funded public schools has been the state’s high court five times now – a stunning unwillingness, up to now, to make a clear decision.

Today, though, it made that decision, and it was the same one Bail made years ago. (She was explicitly upheld.) It was a clear decision: Four of the five voting members were in full agreement, and the one partial dissenter – Justice Jim Jones – disagreed with only a few parts of the majority finding.

That decision will set the Idaho Legislature, arriving for the 2006 session in less than three weeks, on its ear – and likely evolving into a corps of angry wasps.

The decision was awfully long in coming, but it is abundantly clear now.

The case was filed in June 1990 by a group of school districts under the banner of Idaho Schools for Equal Educational Opportunity; the most consistent visible figure through all these years has been its attorney, former Justice Robert Huntley. They noted the Idaho Constitution says “it shall be the duty of the Legislature of Idaho, to
establish and maintain a general, uniform and thorough system of public, free
common schools.” And they said the legislature had failed to do that.

In some ways, this is a policy matter: What does it mean to say that the state’s school are “uniform and thorough”? But interpreting the senses of constitutions is something courts do – so far, at least – and the court has taken on the task. Consider this passage:

While the State quibbles with some of the evidence used to support the 2001 Findings, the State has failed to show how the disputed findings were material to the overall conclusion the Legislature has failed in its constitutional duty to provide a thorough public education system. The record in this case involves a transcript of more than 3,500 pages, thousands of pages of prefiled testimony and thousands of pages of exhibits. The record also includes uncontradicted testimony from numerous school administrators and superintendents outlining facility problems and the barriers to correcting them. The State’s pedantic focus on such details as whether it would cost $7 million to build a new school as opposed to the district court’s finding of $10 million distracts from the overwhelming evidence in the record documenting serious facility and funding problems in the state’s public education system. Among such evidence is the State of Idaho’s own 1993 Statewide School Facilities Needs Assessment, which documented facility deficiencies and concluded 57% of all Idaho school buildings had “serious” safety concerns. A 1999 update to that report noted 53 of the buildings needing serious and immediate attention in 1993 had deteriorated even further.

It spelled out details in specific districts, too.

In addition, the district court found that a 1999 inspection of the Wendell middle school, built in 1915, revealed crumbling concrete, which led to the condemnation of the school. The abandonment of the school resulted in “double shifting” with the high school, meaning middle school students attended the high school part of the week while the high school students attended the rest of the week and on Saturdays. Another example illustrating both the safety concerns and the difficulties of funding remedies is the American Falls High School. In 1997, a seismic analysis concluded the high school would likely collapse should a “probable seismic event” occur. Repairs were made in 2000 to lessen the danger, but the American Falls School District decided it needed a new high school. It took three unsuccessful attempts before the district was finally able to gain voter approval of a bond to construct a new high school with a scheduled completion date of 2002. In its 2001 Findings, the district court somberly observed, “It will be five years from the time that the danger was discovered until a new structure is built. It took three years to take measures to lessen the danger to the students.” Similarly, it took over five years from the date of an initial safety inspection report that the Troy Junior Senior High School was unsafe for occupancy to complete a more intensive review, which also recommended the building no longer be used. A superintendent testified that the surrounding community had supported the district to the best of its ability but could not afford any more levies. As of 2001, the building was still in use.
The district court explored the funding problems in great detail, and concluded the
“glaring gap” in the funding system was the “lack of any mechanism to deal quickly with major, costly, potentially catastrophic conditions by districts which are low in population, have a low tax base and are in economically depressed areas.

So what must happen next? Here the court was more vague: “The appropriate remedy, however, must be fashioned by the Legislature and not this Court. Quite simply, Article IX of our constitution means what it says: “[I]t shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” Thus, it is the duty of the State, and not this Court or the local school districts, to meet this constitutional mandate.”

They threw a bone to the lawmakers in an expression of confidence that they could work out a means for resolving the issue. They also included a laundry list of ideas they noted had been used or proposed and might be explored in Idaho by way of satisfying the constitutuonal requirements:

… we observe that legislatures of other states grappling with this same issue have come up with a number of alternatives to assist school districts in providing a safe environment conducive to learning. These alternatives simply demonstrate that there are options available to assist school districts, and are no way intended as this Court’s direction to the Legislature on its further responsibilities. Reducing the majority necessary to pass a bond; allowing taxpayers to designate a portion of their income tax refund to cover repairs of school facilities (see Haw. Rev. Stat. § 235-102.5); funding school facilities out of the state general fund (see, e.g., Educational Facilities Construction and Financing Act, 2000 N.J. Laws, c.72 (July 18, 2000) (codified at N.J. Stat. Ann. §§ 18A:7G-1 to 18A:7G-44)); authorizing a study to determine the actual cost of providing a thorough education (see Kan. Stat. Ann. § 46-1225); establishing a school facilities fund supported by a percentage of corporate income tax revenue (see N.C. Gen. Stat. § 115C-546.1, 2(b)); or creating an emergency school building repair program to fund school districts’ urgent repair needs, are only a few of the possibilities. Of course, we do not, and cannot, today pass on the constitutionality of any or all of these options as they may apply to school funding in Idaho, as that question has not yet been presented to us. By listing these alternatives, we are in no way usurping the Legislature’s role; we leave the policy decisions to that separate branch of government, subject to our continuing responsibility to ensure Idaho’s constitutional provisions are satisfied.

We will doubtless hear more about this in, among other places, the governor’s stte of the state address. But the next move is the legislature’s.

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