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Legally Speaking


Issue: February, 2006
Author: Marv Tyler & Ford T. Bussart

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CHALLENGER'S SIDE - The Changing World of Education Policy

Trial of the School Finance case was absolutely necessary.

The overarching justification necessitating the trial is our 84,000 students. Each student has a fundamental right to an equal educational opportunity and to the best education possible. Providing this educational opportunity requires that our schools be staffed, built, maintained, and equipped to achieve excellence. The Constitution requires the State to provide the resources for the costs of this best educational opportunity. For over a quarter of a century, the State has failed to equitably and adequately fulfill this responsibility. The State’s chronic failure to meet this obligation has made several generations of our children the victims of constitutional failure.

In spite of the State’s failure to satisfy its constitutional mandates perpetuating the litigation, its rhetoric is prolific. “Wyoming is spending about $9,000 per student and this funding amount is higher than in almost any other state.” “There is no incentive to end the litigation because government is paying for both sides of the case.” “School districts are always seeking to obtain more money through endless litigation.” “Why don’t districts use the money they are paying their lawyers to educate their students?” “Nothing can be gained by having the trial because the State is in the process of reforming funding laws.” “School finance litigation has done a disservice to the people of Wyoming.” Such misleading and untrue statements have been repeated at every phase of this litigation since the Campbell trial in 1993. Sadly, many of these public utterings have been made by Wyoming lawyers.

To understand the reasons necessitating the trial, one must understand what has transpired. Although there were very important earlier school finance holdings, the 1980 landmark Washakie case confirmed education as a fundamental right. After Washakie, State action and an upturn in the economy changed funding. No parties returned to the Court to demonstrate compliance with Washakie.

By the early ‘90's, funding legislation produced wide disparities. The 1995 Campbell I decision resulted from a suit brought by several larger districts and the Wyoming Education Association, in which a coalition of smaller districts intervened. In declaring the funding system unconstitutional, the Supreme Court ruled that the State bears the burden of proving, under strict scrutiny, that each Wyoming student is guaranteed an equal opportunity to the best education possible and that actual cost differences must justify any funding deviations.

The State reacted by identifying the items in the required basket of educational goods and services. Consultants (MAP) were tasked to ascertain the costs. The Legislature adopted an electronic computer spreadsheet (MAP model) as its funding mechanism. The MAP model was designed to establish a per student funding amount derived through a series of adjustments, accounting for cost differences, made to a base funding amount.

Court-imposed deadlines were ignored and reform was always a “work in progress.” Efforts to settle the litigation failed, so two trials (in 1997 and 1999) requiring the State to show compliance were held. Appeal resulted in Campbell II (and III, based upon rehearing) in 2001. The Court declared that while the State had moved somewhat closer to constitutional compliance, there were a number of significant issues which needed to be rectified by July 1, 2002: re-costing the basket to determine if such things as teacher salaries, class sizes, staffing ratios, equipment and supplies required changes; applying an external cost adjustment each year to keep pace with inflation; properly adjusting administrative and classified salaries; paying costs for maintenance and operations of facilities, including actual utility/energy costs; fully funding programs for all “at risk” students; funding costs for vocational/technical training; proving that additional funding for small schools was based upon actual cost differences not experienced by larger schools; proving that extra funding for small districts was based upon documented shortfalls not equally experienced by larger districts; and, making a proper adjustment for cost-of-living differences. Importantly, the State’s insufficient action pertaining to capital construction issues (school building and major maintenance) were also addressed.

The State responded and material changes to laws and procedures were adopted each year, continuing into 2004. After review of the actions by the State, over 35 of the 48 districts, the WEA, and the Wyoming School Boards’ Association tried to resolve the litigation. These Challengers identified to the State problems with its changes. Challengers’ efforts to end the litigation were rebuffed.

The State – not the Challengers – petitioned the Supreme Court to obtain approval of the actions taken to satisfy Campbell II holdings. In May 2004, the Court denied the State’s petition finding that “issues urged by the parties cannot be determined without significant factual development.” In July, 2004, the Challengers petitioned the trial court to have the record developed. The six week compliance trial ended December 6, 2005.

Always the moving target, the State promised to develop yet a new system in 2005.

The State’s strict scrutiny burden of proof to show constitutional compliance necessitated this trial. Evidence revealed: Wyoming still ranks in the bottom in the U.S. for teacher salaries; a shortfall resulted due to MAP’s failure to re-cost the basket and evaluate appropriateness of class sizes, staffing ratios, and equipment and supplies; the State failed to properly adjust for inflation resulting in a shortfall of $130 million; the statutory per student funding amount differs from what the school funding model produces; the model referred to in statute is drastically different than the model on file with the State; the model on file has been changed without authorization; the model on file differs from the model used by the State to actually fund districts; the model on file produces a significantly different result than the model used by the State; no one residing or working in Wyoming was able to testify how the funding model operates – a consultant from California gave this testimony; all models are rife with errors; the State has no procedures to identify and correct model errors; the State failed to pay costs for maintenance and operations or actual energy costs; the State failed to fund programs for all “at risk” students; the State failed to fund costs for vocational/technical training; the State failed to show that more funding for small schools was based upon actual cost differences; the State failed to show that extra funding for small districts was justified; the State failed to properly adjust for cost-of-living differences; and, the State failed to implement constitutionally compliant solutions to the capital construction issues due to failure to provide sufficient space for basic educational programs and its elimination of space for essential student activities.

The history of this litigation shows the need for the challenging parties to protect the fundamental rights of our citizens through court mandates. If the State fails to implement those mandates, the State must be forced to account. The efforts undertaken by the Challengers have been in protection and preservation of the most precious fundamental rights for Wyoming citizens.

The history of this litigation also shows the wisdom of the separation of powers. The judiciary must assure legislative and executive branch compliance with constitutional mandates when those branches abdicate their responsibilities. The Supreme Court’s decisions are at the forefront representing the majority approach of courts of other states.

Wyoming courts and the Challengers welcome the prospect of the end of litigation when the State finally achieves full compliance.

Marv Tyler received his A.A. degree from Western Wyoming Community College in 1976 and was awarded his B.S. degree from the University of Wyoming in 1977. Tyler graduated from the University of Wyoming Law School in 1981. He was admitted to the Wyoming Bar and United States District Court for Wyoming in 1981. Tyler was admitted to the 10th Circuit Court of Appeals in 1989. He joined Greenhalgh, Bussart, Rossetti, Piaia & Tyler, P.C. as a shareholder in 1992. In 2000, the firm became Bussart, West & Tyler, P.C. Tyler is a Circuit Court Magistrate and District Court Commissioner for Sweetwater County. He taught Business Law at Western Wyoming Community College from 1981 to 1985, and has been an instructor and lecturer for seminars on wills and estates, public board member liability, medical-legal ethics, nurse malpractice, alternative dispute resolution, trial preparation and fee disputes. He served as municipal judge for Superior, Wyoming, from 1981 to 1984. He is presently practicing in areas of civil litigation, employment law, and mediation.

Ford Bussart received his BS in 1967 from the University of Wyoming, and his JD with honors in 1969, also from the University of Wyoming. He was a Teaching Fellow at the University of Wyoming College of Law from 1968 to 1969. He was admitted to the Wyoming Bar and the U.S. Court of Military Appeals in 1969. From 1969 to 1971 he was a Navy Court Martial Counsel, and a Navy Court Martial Judge from 1971 to 1973. He has been a District Court Commissioner for Sweetwater County since 1974. He was a member of the Wyoming House of Representatives from 1977 to 1979 and the Wyoming Senate from 1979 through 1982. He was a member of the Board of Trustees of the University of Wyoming from 1985 to 1991, and was President of the Board from 1989 to 1990. He is presently practicing in areas of civil litigation, administrative litigation, municipal law, administrative law, school law, and college and university law.

The following lawyers, representing challenging parties in the trial, contributed information and editing to this article:

Richard D. “Tim” Bush
Hickey & Evans
Cheyenne, WY

Timothy J. Kirven
Kirven & Kirven, P.C.
Buffalo, WY

Tracy J. Copenhaver
Copenhaver, Kath, Kitchen & Kolpitcke, LLC
Powell, WY

Patrick E. Hacker
Patrick E. Hacker, P.C.
Cheyenne, WY

Also contributing information and editing to this article was Edward F. Harvey, Harvey Economics, 600 Cherry Street, Suite 220, Denver, CO 80246. Mr. Harvey was an expert witness for the Challengers at the trial.

Copyright © 2006 – Wyoming State Bar