OPINION: Fix state funding for education

On April 8, the Senate Education Committee conducted a hearing on adequate funding for education. Sen. Löki Tobin invited me to testify on the state’s constitutional duty to adequately fund schools. My testimony focused on Judge Sharon Gleason’s ruling in the Moore case that Article VII, Section 1 of the Constitution requires the state to provide schools with adequate funding, so schools can provide instruction that affords students a “meaningful opportunity to achieve proficiency” in the state’s standards. Sen. Gary Stevens asked several insightful questions during the hearing.

Stevens noted a trial court judge decided the Moore case and not the Alaska Supreme Court. Stevens asked whether the Alaska Supreme Court would hold that the Education Clause requires the state to provide adequate funding to meet the needs of students. I responded with confidence that the Court would, for several reasons.

First, the Alaska Supreme Court has applied the same standard for interpreting the Alaska Constitution for decades. “In construing a constitutional provision, we must give it a ‘reasonable and practical interpretation in accordance with common sense’ and consistent with the ‘plain meaning and purpose of the provisions and intent of the framers.’” Judge Sharon Gleason flawlessly applied this standard in the Moore case in a carefully reasoned analysis of the law. Second, the Mat-Su Borough brought an equal protection challenge to the state’s method of funding capital projects, and the Alaska Supreme Court denied the claim. In a concurring opinion by the revered Justice Jay Rabinowitz, joined by Justice Warren Matthews, the concurrence approved the duty to adequately fund education. The two stalwarts of the Court wrote that a claim for adequate education funding would be maintainable, “if supported factually,” based on the Education Clause.

Stevens next raised a textualism question. He noted that the words “adequate funding” are not expressed in the Education Clause. The Education Clause states the Legislature shall “establish and maintain a system of education open to all.” A conservative minority in the Legislature does not embrace the State’s duty to adequately fund education because the word “adequate” is not in the text of Article VII, section 1. These textualists erase the word “maintain” from the Constitution. What does maintain mean to these conservatives? While I did not explain this in responding to Stevens, textualism begins and ends with what the text says and fairly implies. The words of a text are informed by the context and purpose. To “maintain” a system has a common sense meaning. You keep something in an adequate, sufficient condition to operate and continue in existence. A principled textualist would reach the same outcome reached by Judge Gleason and telegraphed by Justice Rabinowitz.

Plain common sense drives the conclusion that an education system needs to be adequately funded to be maintained and to continue in sound operating condition. As my grandmother Maggie Mulvaney used to say about tools, equipment and fences on her small plot of land in northwest Wisconsin, “You need to fix things before they’re broken.” The Legislature’s failure to adequately fund education has pushed the system to the brink of breaking.

Just prior to my testimony, two acclaimed national experts on school finance testified. One expert reviewed the state’s funding program in 2015 and issued a long report. While not an adequacy study that focused on students’ needs and performance, one finding in the study concluded the current funding formula did not do a good job of getting funding to students with the greatest educational needs. This shortcoming is a substantial contributing factor to low student performance scores. The second expert has conducted adequacy studies in 22 states. He recently conducted an adequacy study for the Anchorage School District and found the district is significantly underfunded. Both studies were entered into the record of the hearing.

Stevens’ last question asked if the state had ever adequately funded education. My answer was, “Maybe by accident.” The truth is that the state funds education to an arbitrary level based on raw politics. The current base student allocation number is an arbitrary amount. To be clear, the state has never fully funded schools based on the needs of our students, urban and rural. The Legislature should listen to school districts to understand the actual costs of educating our students.

In an impressive display of unity that is all too rare given our common problems, the Legislature passed SB 140. That bill won near-unanimous bipartisan approval before Gov. Mike Dunleavy injected his brand of politics into the political scrum by vetoing it. The Legislature still has time to act to substantially increase the base student allocation. As my grandmother Mulvaney also would say, “Thank God for the 11th hour. Without it, nothing would get done.” It’s the 11th hour for adequately funding education. Fix it before it’s broken.

Howard Trickey is a partner in the law firm of Schwabe, Williamson & Wyatt, P.C. He represented the plaintiffs in the Moore case. He has represented school districts, among other clients, for more than 48 years.

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