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Legally Speaking


Issue: February, 2006
Author: Michael R. O’Donnell

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STATE'S SIDE - The Changing World of Education Policy

Do we want the future of our children’s education forever trapped in the contentious, expensive and uncompromising world of the adversarial system?

Such a question may seem laced with hyperbole, but in reality it is not.

Litigation over the funding of Wyoming’s public schools has reached the point that virtually every decision is made based upon how it will resonate with the courts, and not necessarily upon what is best for children. Litigation, not sound policy, is driving the decisions which affect how we provide for our children’s education.

Should it be this way? In a rapidly changing 21st century, isn’t there a better way to approach K-12 education policy? Certainly there must be. Let’s examine some facts.

Wyoming has been involved in litigation over public school funding for over 30 years. Millions of dollars of funds which could have gone to children have instead gone to pay for lawsuits. Was all of that money wasted? Of course not. There was a time when the funding for Wyoming schools was driven almost exclusively by local wealth. If a child lived in a wealthy school district, that child received far richer funding for his or her education. Conversely, if a child lived in a poor district, that richer funding simply did not exist.

It wasn’t fair - that situation was wrong - and it was unconstitutional. The Courts stepped in and did what our courts do - they ordered a fix to the problem. In fact, the Courts had to order the fix more than once. It took several opinions to change the inertia in school funding that had existed since the creation of this State.

However, that fix is in place and has been for a number of years.

Public school funding is no longer based upon local wealth. Revenues are pooled at the state level and distributed to school districts based upon their school populations and, very importantly, upon special needs identified at the local level. These special needs range from diseconomies of scale inherent in small schools and districts, to variations in student populations, to dealing with different mixes of experience and training in teaching and support staffs, to differences in the cost of living in the various parts of this state.

School construction, which also used to be a local responsibility, is now totally funded at the state level as well. The State, through the School Facilities Commission, provides funding to local school districts to build needed facilities to an established set of statewide space guidelines. If the local districts wish to build more expansive facilities, they certainly may, but responsibility for funding the additional space and facilities continues to rest at the local level.

Wyoming’s school funding at the state level is premier when compared to the rest of the country. We, as a state, pay more to educate and build facilities for our children (on a per child basis) than anywhere else in the country.

So, if all of these wonderful things are happening in the funding for K-12 education in Wyoming, why are we still in litigation? Before we try and answer this question, let’s examine some statistics about public education and its funding in Wyoming.

From school year 1998 until school year 2005, total per student spending in Wyoming has increased from $6,922 to $10,558, a 52% increase. Over this same period of time, Wyoming’s student population has fallen from 90,196 to 79,930, an 11% decrease. In school year 1998, Wyoming school districts employed approximately 6500 teachers. Even though the student population had fallen by 11%, in 2005, the number of teachers was approximately the same. In fact, it had risen slightly. Also over this same period of time, the number of administrators in Wyoming’s school districts increased from just over 500 to well over 600, a 27% increase.

Clearly, Wyoming school districts have made a choice. In an environment of increasing funds and decreasing student populations, the choice has been to increase the numbers of teachers and administrators relative to the numbers of students.

Teacher salaries actually paid by the districts from the educational block grants have increased from an average of $31,985 in 1998 to an average of $41,455 in 2005, a 30% increase. Assuming benefits are approximately an additional 20%, benefits for Wyoming teachers have increased from $6,397 in 1998 to $8,291 in 2005. In this context, it is important to remember that the amount of compensation paid to teachers and administrators is a local decision. It is not dictated at the state level.

Among all of this increased spending, test results for Wyoming schoolchildren between school year 1998 and school year 2005 have remained the same in most areas, with just a slight increase in mathematics.

Given these figures, it may seem a mystery to some that Wyoming is still embroiled in litigation over K-12 education funding. Why does Wyoming continue to find itself trapped in the adversarial system with its education funding? Several causes appear likely.

A great and pervasive fiction looms over the public school funding issue. That fiction is that more money leads to better education. It just isn’t so. Wyoming has been pumping money into public education for about a decade now. Per student funding for operating school districts increased 52% between1998 and 2005. Over that same period of time, has Wyoming seen a commensurate increase in student performance? Unfortunately, no. The test scores of Wyoming children have remained pretty flat over that period.

Why would that be so?

No one disputes the notion that educating our children is among the most important services provided by government. It should never be underfunded. But is it possible we are funding it in a manner which stifles improvement? Perhaps.

Consider that Wyoming distributes most of its nearly $1 billion in annual education funding (for operations) to school districts in a block grant. The funds arrive essentially without strings. The districts are free to spend that money any way they choose. While we all prize leaving local decision making as close to the local level as possible, should the state consider more monitoring of those local choices to identify spending trends? Could that information then be used to encourage changes in those spending trends which might be more beneficial to children and a more efficient use of the limited resources? An intriguing possibility.

One of the great risks that Wyoming faces in terms of educating its children is that the arguments in the adversarial system have focused almost exclusively on money. That, of course, is the only remedy the courts are able to provide - an instruction that the money is insufficient. Following each lawsuit, block grant funding increases and usually at the instruction of the courts. But very little changes in the way those funds are spent. A true policy debate about whether we could spend our education resources in better ways has been limited because of this. If we could move from the limitations of the courts’ jurisdiction to the more open arena of public policy, could a better environment be created and better results obtained? Again, an intriguing possibility.

Consider also the most recent trial over education funding. It played out in Cheyenne over several months last fall. By the time this article reaches publication, a decision in that trial is expected. Something else of critical importance will also have occurred by the time this article is published. The Wyoming legislature will likely have adopted a brand new method of funding our public schools. The “model” which has funded Wyoming’s schools for the last 5 years, and about which the trial occurred, will cease to exist. It is being “recalibrated” by the legislature as required by the Supreme Court. Thus, the ruling of the district court will be regarding a model that has been retired. Does this make sense? How can this be?

At the moment, it seems we are in a cycle of litigation. There is little incentive to compromise or change. There is an expectation that litigation will result in more funding and larger facilities paid for by the State. If we can get outside the adversarial system, perhaps there will be motivation to work together to start to resolve the complex, important issues of how to improve student learning and assure that our children can compete in our ever-changing world. Spending our resources and energy on litigation does not seem like a wise approach.

Will considering some of these changes help move policymaking in education funding from the adversarial system closer to the arena of public discourse. Without trying, we may never know for sure. But if we do nothing, the last 30 years of litigation are probably a pretty good indication of where we are headed for the next 30 years.

Food for thought.

Michael O’Donnell is a graduate of the University of Wyoming Law School and the University of Wyoming College of Commerce and Industry. In over 20 years of legal practice, he has served in a variety of capacities. Currently, he serves the State of Wyoming as State’s Counsel for school finance litigation. Prior to this position, O’Donnell served as Senior Advisor to the Governor, Chief Deputy Attorney General and as Counsel to the Governor. For many years before joining the administration of Governor Dave Freudenthal, O’Donnell was a principal in his own law firm. O’Donnell has also served as President and Board member of the Wyoming Trial Lawyers Association, Board member and instructor at the Wyoming Trial Advocacy Institute, as Wyoming’s First Assistant Federal Defender and as an Assistant Attorney General.

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