Oregon State Bar Bulletin — JULY 2007
Putting the Class in the Classroom
By Melody Finnemore

Eugene attorney Arthur Johnson joined the push to sue the state of Oregon for more school funding for one simple reason: He wants Oregon’s children to receive the same high quality education he did.

"I very fortunately grew up in Oregon and attended Oregon public schools, and we had enormous opportunities within the educational system. I think kids today are not getting the same opportunities," he says. "We talk about economic development, a just society and a community that cares, and the best thing we can do to build those things is to educate our kids."

Johnson serves as vice-chair for the Oregon School Funding Defense Foundation (OSFDF), a group that formed in November 2005 to manage and financially support a lawsuit against the state. Johnson is one of several Oregon State Bar members who serve on the foundation’s all-attorney board of directors. Paul Kelly, attorney and former global director of public affairs for Nike, is OSFDF’s chairman. Bruce Samson, Portland attorney and former general counsel for Northwest Natural, serves as secretary/treasurer.

Samson’s leadership at the Portland Public Schools highlighted for him just how dire Portland’s school funding crisis had become. He was inspired by OSFDF’s legal strategy, which is based on two provisions of Oregon’s Constitution. Article VIII, Section 8, which requires the legislature to appropriate in each biennium a sum of money "sufficient to ensure that the state’s system of K-12 public education meets quality goals established by law." Article VIII, Section 3 requires the legislature to "provide by law for the establishment of a uniform and general system of Common schools."

"I was intrigued by that because it seems to be a fairly straightforward mandate that isn’t being met and that should be enforced," Samson says.

Medford attorney Bill Deatherage says Samson invited him to join the foundation’s board, an invitation he accepted because of his personal and professional commitment to obtaining financial support for schools. His own children attended Medford public schools and his grandchildren go to school in Bend. Some two decades ago, Deatherage was involved in several civil rights cases to secure adequate funding for Josephine County schools.

"They are much better than they used to be, but we could do better," he says.

OSFDF’s board roster also includes Marva Fabien, multicultural director at Willamette University College of Law in Salem and a member of the bar’s board of governors; former Oregon Supreme Court Justice Betty Roberts; and Dennis Karnopp, Bend attorney and former OSB president.

Stoel Rives attorneys Robert Van Brocklin, James Westwood and Robin Skarstad are the legal team for the foundation, which filed Pendleton School District 16R, et al v. State of Oregon, et al on March 21, 2006. Plaintiffs in the lawsuit include the Pendleton, Crow-Applegate-Lorane, Eugene 4J, Coos Bay, Corvallis, Three Rivers, Astoria, Creswell, Lincoln County, Siuslaw, Centennial, Amity, Reynolds, Coquille, Parkrose, Pine Eagle, Jefferson 14J and McKenzie school districts, as well as a handful of families with school-age children.

Karnopp says the geographic diversity of the plaintiffs and the foundation’s board reflects the concern felt statewide about shortfalls in school funding. "We’ve got several school districts involved and broad geographic representation, which I think strengthens our case," he says.

In Oregon, school funding began declining in 1990 with the passage of Measure 5, which capped property taxes and placed the heftiest burden for school funding on the state. Years of budget cuts forced school administrators and teachers to do more with less. Class sizes grew steadily while the number of teachers, programs and school days shrank.

When Gov. Ted Kulongoski announced his $6 billion education budget for the 2007-09 biennium last December, it seemed a victory for public schools across the state. This biennium’s rosier financial picture for schools was not enough, however, to end legal action against the state, says Kathryn Firestone, OSFDF’s executive director.

According to OSFDF, the legislature doesn’t fully understand its constitutional obligation to provide a quality education system under the provisions specified in the lawsuit. The lawsuit is intended to seek clarification from the courts and require the legislature to fulfill the promise to quality education that voters demanded when they passed Measure 1 in 2000, says Firestone, a former commissioner for the Oregon Quality Education Commission and past-president of the Oregon PTA.

Voters’ approval of Measure 1 meant the educational goals outlined in the Oregon Education Act for the 21st Century, which the legislature passed in 1991, were no longer just "aspirational" but statutory, Firestone says. The act encouraged the state to produce the "best educated citizens in the nation by the year 2000…" and established some of the most ambitious K-12 quality goals in the country, she adds.

However, rather than guiding the state to meet those goals, the legislature’s failure to adequately fund education has caused Oregon schools to fall short in several ways, according to OSFDF. Among them:

– In 1992, Oregon ranked 16th nationally in per-pupil K-12 funding. By 2004, the state ranked 28th.

– In 1992, Oregon ranked 11th nationally in per-pupil funding as a percentage of citizens’ average income. By 2004, the state ranked 34th.

– By 2000, Oregon’s classrooms — with an average of 23.9
students — were the second most crowded in the nation.

– As of 2002, the state ranked 32nd in the nation for its
71 percent graduation rate.

– A 2004 National Assessment of Education Progress showed that just one-third of Oregon’s 4th and 8th graders are proficient in math and reading. National assessments also
show only about half of the state’s 10th graders are "meeting standards" in reading, math and writing.

"We heard repeatedly from the legislature that tough economic times were to blame, but that drop was during a period of relative prosperity," Firestone says, referring to the decrease in per-student funding from $4,100 in 1990-91 to $3,300 in 1998.

Oregon’s school funding crisis became the butt of a national joke in 2003 when Garry Trudeau lampooned the situation in his "Doonesbury" comic strip. While Oregon is no longer making national headlines for its failure to fund schools, the state’s residents are still paying the price, Firestone says, noting dropouts are costly to taxpayers.

For example, according to OSFDF, each high school dropout costs Oregon taxpayers $8,460 per year on average. About 80 percent of Oregon’s prison inmates are dropouts and cost an average of $23,000 per inmate per year. Dropouts are four times more likely to require coverage by the Oregon Health Plan. In addition, they are more than twice as likely to be unemployed. In contrast, a college graduate contributes $8,250 annually to the state coffers, according to information provided by the foundation.

In order to address the education crisis in Oregon the legislature in 1999 formalized the Quality Education Commission (QEC), which was initiated in 1997 to determine and recommend specific changes required to attain the goals outlined in the Oregon Education Act for the 21st Century. Firestone was a commissioner for the QEC when it issued its first report in 2000. That report found significant gaps in state funding compared to benchmarks outlined in the Quality Education Model.

"That gap isn’t closing, and the QEC has now issued three reports that show the legislature’s failure to fund education in the state of Oregon at appropriate levels," Firestone says, noting a lawsuit against the state then emerged as the most likely catalyst for change. "We felt that all other avenues were exhausted. And the increasing trend across the nation is that plaintiffs are winning more often than the states."

As of mid-April, similar lawsuits had been filed in 45 of the 50 states. Plaintiffs won in 26 states, defendants won in 17 and no court decision had yet been issued in the remaining seven states.

Kansas is among the states where plaintiffs won their case. That legal action resulted in a $755.6 million increase for public schools by 2008-09, a 26 percent increase over state funding in 2004-05, according to OSFDF.

In North Carolina, the plaintiffs’ victory netted a 9.6 percent increase in K-12 educational spending for 2006-07, and an additional $17.9 million from lottery proceeds will expand its
pre-K program.

And in New York, the courts required the allocation of nearly $10 billion for capital construction to be phased in over the next five years. Additionally, $1.93 billion was awarded to New York City schools in a final court decision issued last November, according to OSFDF.

Similar lawsuits in Kentucky and Indiana recently were dismissed, on the other hand. In Kentucky, a circuit court decision ruled the separation of powers clause in the commonwealth’s constitution prevents a legal mandate for a cost study to determine adequate funding amounts. Plaintiffs in that lawsuit plan to appeal the decision, according to Access, a national network involved in school finance litigation, public engagement and education policy.

In Indiana, a judge ruled school funding is a political issue rather than a legal one, noting the state’s governor and schools superintendent cannot be held responsible for Indiana’s school funding formula. The plaintiffs there also plan to appeal
the ruling.

In Oregon, the plaintiffs lost their first round. Last September, Multnomah County Circuit Court Judge Christopher Marshall ruled that the state’s constitution does not guarantee specific levels of school funding.

David Leith, attorney in charge of the Oregon Department of Justice’s special litigation unit, is leading the state’s defense. Leith says the lawsuit is without merit because the pair of constitutional provisions at issue falls short of the rigorous analysis required by the courts.

"Our argument, in its barest form, is that those provisions don’t create a mandate for a particular level of funding," he says. "We do have unique constitutional provisions and you have to focus on those provisions and the language in which they
were written."

OSFDF has appealed the court’s decision. Former Oregon Supreme Court Justice Roberts brushes aside the initial ruling.

"The ruling wasn’t really that significant because it wasn’t substantive. It didn’t address the issues we wanted the court to address," she says, adding many of the states that have filed similar suits lost at the trial court level but went on to win in higher courts.

State Schools Superintendent Susan Castillo says the lawsuit comes at a critical time. Oregon is attempting to prepare students to compete in a 21st century global marketplace while facing continued cuts.

"When people started talking about filing a lawsuit, I thought, ‘If that’s what it takes to make people aware of the need for a bigger investment in our children, then I support it,’" Castillo says. "It does help us, no pun intended, to make the case for a bigger investment in our children."

While the $6 billion education package proposed by Gov. Kulongoski is an improvement, it still falls short of the $6.3 billion necessary to meet 80 percent of the Quality Education Model, according to a coalition of organizations representing the state’s education leaders and advocates.

"Given the economic recovery currently underway, it’s time for Oregon to reinvest in education," says Kevin McCann, executive director of the Oregon School Boards Association. "Now that state revenues have recovered beyond pre-recession levels, the legislature should increase the state’s commitment to the schoolchildren of Oregon."

The additional $3 million would help reduce class sizes; add or restore physical education, music, media and other specialists; implement full-day kindergarten classes; establish mentor programs for new teachers and administrators; strengthen staff training; support literacy initiatives and provide instructional materials and equipment, according to the coalition.

Fabien, who worked in juvenile corrections before joining Willamette University as its law school’s multicultural director, says such measures can mean the difference between a student who succeeds and one who does not.

"Some of the kids who end up in the juvenile corrections system can’t read and they get frustrated, so they take the easy way and turn to crime," she says. "It just seems that students in Portland and rural communities throughout the state don’t get a quality education, and poor people get the short end of the stick. And it’s crucial that if you want to go to college and beyond that, you really need to have a solid, basic education."

Castillo notes that Oregon’s public school system is in a difficult position because while the proposed funding increase is a positive measure, it isn’t enough to make up for the shortfalls that occurred during the recession.

"The $6 billion funding package really kind of puts us back to where we were in the ’90s. It does put us in the right direction, but we do have a very deep hole to get out of," she says.

And while the current education budget may look better than past years, OSFDF will continue to pursue legal action to ensure the legislature meets its commitment to Oregon schools during future sessions, Firestone says.

Attorney and state legislator Rep. Greg Macpherson says he sees the lawsuit as a pressure point on a larger set of issues.

"The problem isn’t that we don’t have enough money for education because we’re spending more on other services," he says, noting education receives about 60 percent of the state’s general fund. "The problem is that we don’t have enough money for public services that receive money through the general fund overall."

Macpherson says he thinks it’s unfortunate that a group of citizens who are concerned about funding for public education felt they had to resort to litigation to raise awareness about the issue and fight to gain some positive results.

"Preferably this is a political challenge that would work its way through the legislature, but I don’t fault the people who brought the lawsuit because the legislature has failed to deal with this issue for a long time. So they have to bring pressure to bear," Macpherson says.

Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.

© 2007 Melody Finnemore

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