Assembly declines to fund education lawsuit

Posted: Thursday, August 17, 2006

A lawsuit alleging the state of Alaska has failed in its constitutional duty to fund education adequately that is set for an Anchorage Superior Court date in October will not get the financial backing of the Kenai Peninsula Borough Assembly.

At least not yet.

The Kenai Peninsula Borough Assembly considered introduction of an ordinance Tuesday that eventually could have resulted in the borough providing plaintiffs in the case, Moore et al v. State of Alaska, some $400,000 to help pay mounting legal costs. Following a lengthy discussion, however, the assembly voted 8-1 against participating.

Essentially, the majority argued that the suit claiming inadequacy was “the wrong vehicle” for the borough, which agrees with the inadequacy argument, but is more concerned with the inequities of the state’s education funding mechanism — the Foundation Formula and its Area Cost Differential factor — as it is applied to the peninsula school district. The borough says the current system may have shortchanged the school district’s children by as much as $100 million over the past decade.

Plaintiffs in Moore et al v. State of Alaska, which include a group of parents, school districts, National Education Association-Alaska Inc., and Citizens for the Educational Advancement of Alaska’s Children (CEAAC), whose partners include several school districts — had urged the borough to provide the financial backing, offering the borough a place at the table where remedies likely would be negotiated and determined in the event plaintiffs’ case proves successful.

In May, Kenai Peninsula Borough Mayor John Williams sought and got the assembly’s okay to investigate a possible lawsuit of its own. But that could take years and require detailed and expensive legal work, something the Moore v. State case had already done. Assisting in that case would be in the borough’s best interest, Williams argued.

In introducing Ordinance 2006-19-18, the mayor noted that over the past 10 years the borough school district had sought additional funding for education, basing its arguments on studies showing the area cost differential for the borough did not reflect the disparity of costs compared to other school districts in Alaska.

Assembly member Margaret Gilman, of Kenai, a former school board member, said several issues that led her to decide to vote against financial backing for the plaintiffs. She acknowledged that most people would agree that funding remote schools like those in Tyonek or Port Graham on a par with schools in Anchorage was inequitable.

“But not everyone would agree that the adequacy of funding in the state of Alaska is insufficient,” she said, adding that she was hesitant to join a lawsuit that was more about adding to the funding pie than about cutting up the existing pie differently.

Gilman also noted that Donna Peterson, superintendent of borough schools, had been called as a possible witness for the state, and would likely be asked to testify about the level of academic achievement in the peninsula district — an achievement level well above that of some other districts. Such testimony could be used to counter an inadequacy claim.

“We can be very proud of the school district and of the borough that our academic achievement is above other districts in the state,” Gilman said. “It, really, would be quite ridiculous to join a lawsuit where the superintendent is being asked to be a witness for the other side.”

Gilman also said the $400,000 might only be the beginning. Any appeals might cost still more.

“There’s no limit to the amount that could be required,” she said.

If plaintiffs were true to the precepts of their suit, then the borough school district had a seat at the table whether or not they participated in the suit financially, she said.

Ultimately, the funding issue required a legislative fix, and such an overhaul, even if required by a court decision, would be costly.

“It shouldn’t be up to only the Kenai Peninsula taxpayers to pay for that overhaul,” Gilman said.

Finally, she argued that the borough must continue to pursue its own lawsuit, one that focused on the inequitability of the current system rather than its inadequacies.

“Our district could be held up as a model of being able to do more with less, but the question needs to be, ‘What are the opportunities missed as a result of the area cost differential being inequitable,’” she said.

Assembly member Dan Chay, of Kenai, said that while the inadequacy argument might look as as hole-filled as Swiss cheese, being in a position of arguing that funding was fully adequate but inequitable also seemed untenable.

“This lawsuit is as much political as anything and is about stirring the pot and being at the center of the central chaos coming during the legislative process,” he said. “To me, that seems like it has some potential viability.”

Milli Martin, assembly member from Diamond Ridge, said she wanted more information about the suit but was uncomfortable with it generally. Noting that peninsula state lawmakers had asked the borough to consider a suit, she said it would have been helpful if assembly members could have heard from those lawmakers about the Moore vehicle.

Williams had told the assembly that should they decline to participate in the Moore suit, he would continue to pursue other legal avenues. Martin said she wanted to see some of those possible plans in the near future.

Martin and other members expressed concern about possible legislative retaliation — however subtle — that could result if the judicial branch, through a court decision, imposed funding requirements on the legislative branch.

Assembly member Paul Fischer worried that the average borough resident would see the expenditure of $400,000 as an indication that the plaintiff group was running out of money and viewing the Kenai Peninsula Borough as “a deep pocket.”

According to Joe Beckford, president of CEAAC, plaintiffs have already spent some $2.4 million pursuing the lawsuit.

Pete Sprague, assembly member from Soldotna, said the plaintiffs case was based on the theory that all ships are raised by the tide, and that if state funding is determined to be inadequate, the legislative fix would be more money for all districts, and not a matter of taking money from one district and giving it to another.

“This I see as the crux of the lawsuit at this time,” he said. “I think this is the wrong vehicle because no matter how much money is put into education, no matter how high the tide rises, when our borough is not getting our fair share we’re losing. We may not be losing absolutely, but we’re losing relatively. That is never, ever going to change until we address equity.”

Administration Chief of Staff Tim Navarre urged the assembly at least to introduce the measure, saying he had background information supplied by the plaintiffs regarding several issues including how the borough might participate following a successful suit. He said the plaintiffs would share the information but did not wish to make it generally public. Navarre said the ordinance would ensure that the borough’s best interests were represented in the Moore lawsuit.

In the end, only Chay supported the ordinance’s introduction and the measure will not go to a public hearing.

Some members said that if plaintiffs are successful, they might consider supporting plaintiffs in their opposition to a likely state appeal.

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