State: Lawmakers, not courts, should take on education-funding woes

March 18, 2005

KATE GOLDEN /Frontiersman reporter

ANCHORAGE - Teachers, students and school districts are suing the state, which they say has trampled Alaska children's constitutionally given right to an adequate education with years of inadequate funding.

But if the state has its way, the case will never go to trial.

Two Wasilla parents, Kristine and Gregory Moore, and their children, Jason Eastham, Shannon Moore and Mallory Moore, lead a long list of plaintiffs in Moore v. State of Alaska. There are also four other families, from Akiak, Kuspuk, Seward and the Bering Strait district. Three school districts - Yupiit, Bering Strait and Kuspuk - are on the list as well, as are the National Educational Association-Alaska Inc., a professional organization representing more than 12,000 Alaska teachers, and Citizens for the Educational Advancement of Alaska's Children Inc., a nonprofit comprising educators, school districts, rural educational attendance areas and other interested citizens.

The plaintiffs number fewer than a dozen, but they represent more than 12,000 people.

Lawyers argued Tuesday before Anchorage Superior Court Judge Sharon Gleason on the question of whether the case should stand trial. Gleason is expected to issue a decision on the question within three to six months.

If she decides in favor of the plaintiffs, a trial is scheduled for April 17, 2006.

What plaintiffs claim

High school students are required to pass an exit exam to get a diploma. Federal funding, according to the 2002 No Child Left Behind Act, also hinges on tests: Schools that fail won't get money. Particularly in the rural districts, students have performed dismally, according to the plaintiffs.

In Akiak, for example, where plaintiffs Mike and Maggie Williams and their child, Christine Williams, live, one out of seven students passed.

But the problem is not limited to rural districts; plaintiffs say there are achievement gaps in urban areas as well. Plaintiffs say it's not the kids' fault. Blame lies with the state, they say, which is underfunding school districts to the extent that in some cases, the subjects tested aren't even taught.

"[Students] have a constitutionally protected right to an education, which by the state's own definition, they are not receiving," the plaintiffs stated in their response to a state motion to dismiss the suit. Plaintiffs cited statistics that state funding has "failed even to keep pace with the rate of inflation."

Meanwhile, benchmark standards have become more strict in the last two decades.

"The state has failed and continues to fail to fund the resources needed to achieve these expectations," the complaint stated. The plaintiffs are asking the court to define a "constitutionally adequate education" as including 12 subjects from mathematics to "skills for a healthy life," that the state be ordered to analyze the costs of providing such an education and that it be ordered to fund education accordingly.

The state doesn't accept the statistics as given in the complaint. But this is a question that won't really come to argument unless the case goes to trial. The state's lawyers have barraged the court with reasons why it shouldn't.

Plaintiffs or defendants?

First of all, the state doesn't even accept that half the plaintiffs should be plaintiffs.

In the complaint, NEA-Alaska and CEAAC claim to "stand in the shoes" of Alaska children. They also claim that because underfunded schools are more difficult to teach in, the educators themselves have an interest in the case.

But the state's lawyers say the two associations are too indirect to qualify as representatives of the children, who, with their parents, could join the suit if they wanted. They have no more than a "generalized interest of a political nature," the state said in its Feb. 16 motion to dismiss the suit.

State lawyers also say that because school districts allocate funding from the state on a daily basis, they are implicated in the complaint. If anything, the school districts should be defendants, not plaintiffs.

The plaintiffs say they're not accusing the school districts of doing anything wrong. They blame the government only at the state level, for "grossly inadequate funding."

There is precedent for school districts participating in suits, they say. And as for the associations, the plaintiffs say there is precedent - citing a case in which Planned Parenthood sued on behalf of teen-agers who might receive their abortion services - for associations with purposes clearly germane to the case.

"They [NEA-Alaska and CEAAC] have a stake because they are the ones charged with fulfilling that right [to an education]," the plaintiffs stated. They also note that Alaska precedent is to allow "liberal standing to plaintiffs who are merely citizen-taxpayers when they are challenging government conduct of 'significant public concern,'" which they argue this case surely is.

But the plaintiffs hedged their bets, filing a motion stating that if the judge rules the state is right about the school districts or the associations, the six families will continue to litigate.

Ask before you sue

There's a hitch, however: The state cannot be sued without its consent. Alaska statute waives this sovereign immunity for contracts, quasi-contracts and torts. The state invokes it in Moore. A single public official can be named, the state noted in its memorandum supporting its motion to dismiss the suit, but not the whole government.

"Even with two amended complaints, Moore has not cured the defect," the state said. "Accordingly, the state requests that this court grant this motion to dismiss."

Yet the plaintiffs say that the state has effectively waived that right.

"In the almost half century since statehood," they stated, "that contention has never been raised in Alaska for a [judgment] seeking a declaration that the state's actions violate the constitution which creates it."

Did they come to the right place?

The state maintains the plaintiffs have taken their complaint to the wrong place. Because the Alaska State Constitution provides for a right to education without giving any specifics, they say the court shouldn't be expected to figure out what those specifics are.

The state provides a precedent, Hootch v. State of Alaska. Plaintiffs from rural districts with no high schools were suing to get them. But the judge ruled that while education is a right, the quality of that education is a question for the Legislature to decide.

Moreover, the state says, when kids don't pass tests, there are a lot more reasons behind their failure than underfunding.

It's so complex, state attorney Neil Slotnick argued, that the question of student success is "beyond the ability of the courts to deal with in a reasonable way."

Of constitutionally given rights to education, health and welfare, Slotnick said, "These are duties that are quintessentially legislative in nature, not judicial."

So if the Legislature hasn't performed properly, where should educators and schoolchildren address the problem of an inadequate education?

Slotnick says the checks and balances are already in place.

"Go to the voters and enforce the rights that are provided under the Alaska Constitution," Slotnick exhorted the plaintiffs.

NEA-Alaska noted in a press release this month that there is precedent for the courts to determine adequacy.

In January 2005, the Kansas Supreme Court gave that state's Legislature until April to give education more money or face the prospect of a court takeover of the school system.

The Montana Supreme Court affirmed in November 2004 a lower court's decision that Montana's schools were inadequately funded.

In an ongoing case, a New York Supreme Court judge has ordered that billions be added to New York City school funding.

R. Collin Middleton, representing the plaintiffs, said that if the courts can't determine what an adequate education is, the right has no teeth.

"There has to be some kind of standard, or it's not a right at all. The parameters of that right are significant," he said.

Kate Golden can be reached at 352-2284 or kate.golden@frontiersman.com.