School budget cuts raise lawsuit risk

Nevada may rank near the bottom in K-12 spending per pupil, but it is among only a handful of states that has not faced a lawsuit challenging its education finance system.

That could change if Gov. Brian Sandoval succeeds with his proposal to reduce state support for public education by 9 percent, or $211 million.

In March, Clark County School Board President Carolyn Edwards criticized state officials for "violating their own constitution" by not providing for education.

She suggested suing the state and reiterated that recently: "I still think it's something we should be pursuing."

Although she wouldn't discuss the subject further -- and other education advocates have been even more reticent to talk about possible litigation -- no one is ruling it out.

"I would hate to see those conditions in Nevada that even prompts the question," said Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada. "And we're not even at that particular point, because I, perhaps naively, have faith that the Legislature and executive branches will fulfill their oaths of office and meet the constitutional mandate."

According to the National Access Network website, school funding lawsuits have been filed in 45 of the 50 states. The network is a project of the Campaign for Educational Equity at Teachers College, Columbia University.

Michael Rebell, the campaign's executive director, said plaintiffs have won about two-thirds of such cases during the past two decades.

"There's virtually no dispute that the impact of these cases has been to raise the amount of money spent on education and, in general, to make the funding formulas more equitable," Rebell said.

The lawsuits fall into two categories: equity and adequacy. Equity cases rely on equal-protection clauses in state constitutions and argue that every child should receive the same level of funding.

While appealing in theory, Rebell said, such cases can backfire by leading to "leveling down rather than leveling up." Therefore, the trend has shifted toward cases that focus on the right to an adequate education.

"Adequacy lawsuits have been much more successful," Rebell said.

He speaks from experience. In 2000, he was a lead plaintiffs' attorney in a New York adequacy case that led to millions of dollars in extra funding for the state's education system.

Although a large law firm donated its time for the New York case, such cases can be costly, and proponents admit they rarely lead to quick fixes.

But Rebell said the lawsuits often improve educational spending and equity, even when the plaintiffs lose, because the publicity "tends to move the issue to the head of the political agenda."

Seattle attorney Thomas Ahearne represents a coalition of school districts, parents, teachers and community organizations that sued the state of Washington in 2007 over school funding.

After a two-month trial, the trial judge ruled the state was failing to fulfill its constitutional duty to pay for basic public education. The state appealed, and the Washington Supreme Court is scheduled to hear oral arguments in June.

Ahearne said plaintiffs' cost for such litigation, when the state fully fights the case, can reach $1 million. In the Washington case, he said, the Legislature allotted nearly $1 million for an appeal.

Washington Assistant Attorney General Bill Clark argues that the state is meeting its obligation to fund basic education.

"The judge's ruling, in our opinion, exceeded or goes beyond what the Supreme Court says our constitution requires, and that's why we're appealing," Clark said.

According to the Washington Constitution, "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."

Ahearne said Washington has "the strongest clause in the country."

NEVADA CONSTITUTION

Nevada's constitutional language is arguably weaker, but Rebell said the specific verbiage has made little difference in adequacy cases because state constitutions tend to contain archaic language.

According to the Nevada Constitution, "The legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural and moral improvements, and also provide for a superintendent of public instruction."

It also requires the Legislature "to provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year."

ACLU's Lichtenstein said the Nevada Supreme Court clarified the meaning of that language with its 2003 opinion in Guinn v. Legislature, which later was partially overturned on other grounds. In that opinion, the court ruled that education is a basic constitutional right.

"It sends a pretty good signal that education is an important thing in Nevada," said Bill Hoffman, general counsel for the Clark County School District.

He said adequacy lawsuits require expert testimony to establish that current levels of funding are inadequate.

Potential plaintiffs in Nevada have a head start in that area, because the Legislature already commissioned a study on school financing adequacy. The report, prepared for the 2007 Legislature, concluded that the state would need to spend an additional $223 million annually to achieve 100 percent student proficiency under the federal No Child Left Behind Act by 2014.

"It seems like every session legislators return and are unable or unwilling to do what is needed by revamping our state tax system," said Gary Peck, executive director of the Nevada State Education Association. "And as a result of that, we have been faced with a structural deficit that is driving the Draconian cuts that are being proposed in the governor's budget."

He said officials in his organization, which has about 28,000 members, "are certainly mindful of the possibility that K-12 will not be funded at a level sufficient for the state to meet its constitutional obligation to provide an education for every child."

Peck, a former Nevada ACLU executive director, said members of the Nevada State Education Association remain "hopeful that the Legislature will do the right and responsible thing and make all of this talk about potential lawsuits superfluous."

PER-PUPIL SPENDING

According to the latest data from the U.S. Department of Education's National Center for Education Statistics, Nevada ranks 44th in the nation when it comes to per-pupil spending. The list, based on data from the 2007-2008 school year, includes all 50 states and Washington, D.C.

Lichtenstein said Nevada also could face litigation if legislators don't provide adequate funding for other public services required by the federal or state constitutions.

"They can't use the excuse of, 'Gee, we just don't have the money,' " Lichtenstein said.

In 2008, for example, ACLU of Nevada filed a class action lawsuit against the state that contended Ely State Prison inmates were receiving inadequate medical care.

The lawsuit led to the placement of an independent monitor at the prison to ensure that medical services are provided in a constitutional way. And ACLU of Nevada received $325,000 in legal fees when the case settled last year.

"If there's a constitutional right at issue, financial constraints are irrelevant," New York lawyer Rebell said. "You don't put constitutional rights on hold because there is a recession. That is what we call black letter law."

But Eugene Volokh, who teaches constitutional law at the University of California, Los Angeles, thinks courts "are wise to stay out of educational funding questions."

"The right to an education isn't necessarily the right to the best education possible, nor is it to some abstractly definable good education," Volokh said.

"To the extent that it is an enforceable right at all ... it's a right that is constrained by budgetary considerations. Times of serious budget trouble are times when courts are going to be especially sympathetic to state arguments that they're providing the best education they can, given the limited funds they have."

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710.