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If there is no progress on SB1, could a lawsuit be filed?

Tuesday, Aug 8, 2017

* Mike Flannery of Fox 32 sent me some scripts from some school funding stories he did last week…

Sources tell Fox 32 News Republican leaders in Springfield believe any public school shutdown would likely be short lived. They’re confident that, just as Downstate judges have repeatedly ordered government paychecks be delivered, a judge can be found to order payment of school aid money. […]

Illinois Policy Institute’s Ted Dabrowski: I certainly think that there are some kids who could sue and say, “Hey, listen! They depend on schools. They need schools.” the funding formula, the way they designed it, was very tricky. They purposely didn’t fund — the only thing they didn’t fund was schools.

* And then Flannery followed up with Ralph Martire on Friday…

Ralph Martire: But there’s no legal basis for a judge to pin that order on. So, that’s not gonna happen — I mean it’s just gonna waste taxpayer money and time. It’s wonderful that conservative groups like wasting taxpayer money so much.

Yeah, well, there’s no sound legal basis for paying state employees without an appropriation, but they found a judge to do it anyway.

* Rep. Steven Reick (R-Harvard), who’s an accountant by trade, posted this legal analysis on his website at the end of July

Chicken Little is now running around saying the sky is going to fall (in the form of schools not opening on time) unless the Governor signs Senate Bill 1, or some other education funding bill that includes an “Evidence Based” funding model. But is that really the case?

Senate Bill 6, the budget bill that was passed over the Governor’s veto several weeks ago contains the following language:

    “The following amounts, or so much thereof as may be necessary, are appropriated to the Illinois State Board of Education for Evidence-Based Funding, provided for in Section 18-8.15 of the School Code.”

While it’s true that Senate Bill 1, if it became law, would add Section 18-8.15 to the Illinois School Code and that section would define “Evidence-Based Funding,” (as of this writing) Senate Bill 1 has not yet been sent to the Governor, so neither the term “Evidence-Based Funding” nor its model of funding is defined in statute. Section 18-8.15 of the Illinois School Code simply does not exist and may never exist. It is a nullity.

What that means is that funding under Senate Bill 6 using the “Evidence-Based Funding” model is contingent upon the happening of a future event (the passage of a bill containing a definition of “Evidence-Based Funding”). There was no language in Senate Bill 6 that made its passage contingent upon the passage of Senate Bill 1. In fact, such contingent language was contained in Senate Bill 1 as introduced, but was omitted by House Floor Amendment 2, which became the bill. The omission of such contingent language is an unambiguous expression of legislative intent that passage of Senate Bill 6 was not contingent upon passage of Senate Bill 1, or vice versa.

What is then left is the phrase.

Under Illinois law, undefined terms in the statute must be given their ordinary and popularly understood meaning. However, in this case, there is no ordinary and popularly understood definition of “Evidence-Based Funding” because any school funding formula, including the formula Senate Bill 1 is intended to replace, is based on evidence. Therefore, the term “Evidence-Based Model” is simply too broad to constrain the appropriation of money for education funding to that particular term.

While the sponsor of SB 1 did a very good job on the floor laying out an argument for the legislative intent behind the term and its application in SB 6, there’s a stronger public policy argument which runs against holding school funding hostage to an undefined term. The idea that an appropriation for education could be halted by language in a bill that may never pass runs afoul of Article X the Illinois Constitution and the clearly expressed legislative intent to fund Illinois’ public schools.

Contained within both SB 1 and SB 1124 is a provision that every school district in the State of Illinois be held harmless, meaning that each school district is to receive at least the same amount of money from the State as it did in the last fiscal year. For example, Senate Bill 1 provides:

    “For the 2017-2018 school year, the Base Funding Minimum of an Organizational Unit…shall be the amount of State funds distributed to the Organizational Unit during the 2016-2017 school year prior to any adjustments and specified appropriation amounts…”

Whether a court would look at Senate Bill 1124 (Republican version) or Senate Bill 1 (Democrat version), an identical and consistent feature is this hold-harmless provision.

You may point out that I’m trying to have it both ways, that I’m arguing that neither SB 1 nor SB 1124 is yet law but still I’m trying to cleave unto a provision contained in those bills that provides for a minimum level of funding that can only be calculated by making reference to provisions contained within those bills.

I won’t argue with you. However, given the strong Constitutional and public policy imperative noted above, the legislature cannot shirk its duty and must provide an appropriation of no less than the amount sent to each school district as was sent in the prior year, adjusted, if necessary, using the formula under which that amount was determined in the prior year.

Thoughts?

- Posted by Rich Miller        

26 Comments
  1. - blue dog dem - Tuesday, Aug 8, 17 @ 1:33 pm:

    It won’t be the kids who sue to keep schools open. Yup. You guessed it, the Booster Clubs.


  2. - Arsenal - Tuesday, Aug 8, 17 @ 1:37 pm:

    I’m old enough to remember “Activist judges”. Now the Republican position is “let judges run the schools”? Glory be.


  3. - RNUG - Tuesday, Aug 8, 17 @ 1:46 pm:

    I wouldn’t want to touch that one.

    Suspect any judge it came in front of would duck it, given past rulings over state funding at a specific level, saying an appropriation bill was still alive in the legislative process and it was up to the General Assembly to resolve it.


  4. - Steve - Tuesday, Aug 8, 17 @ 1:48 pm:

    I’ m sure many people would prefer a judge running public education. It’s happened before and look at the glorious results.

    https://www.cato.org/publications/commentary/americas-most-costly-educational-failure


  5. - DuPage Saint - Tuesday, Aug 8, 17 @ 1:55 pm:

    Glad the accountant posted his legal opinion


  6. - Moody's Blues - Tuesday, Aug 8, 17 @ 1:55 pm:

    If you’re in neither armed camp, that’s a compelling argument. Whoever inserted the “evidence-based” linkage in the budget legislation had to know it was too cute by half.

    It asks judges to deny children the right to schooling in order to provide this group of grown-up politicians leverage over that group of grown-up politicians.


  7. - 360 Degree Turnaround - Tuesday, Aug 8, 17 @ 1:57 pm:

    Is this what republicans want? How about this, how you do your job and vote for funding.


  8. - Ghost - Tuesday, Aug 8, 17 @ 1:57 pm:

    its an incorrect legal analysis. The plain meaning of the bill is clear. ie there has to be the evidence based formula actually passed into law.

    the regernece to language about contingency being removed is a argument that cant be made. you dont look at history like that if the lnaguage is clear. and the language is clear. The absence of a needed corresponding statute does not make it unclear it means the trigfering provisions do not exist. basically nothing to see here move along.


  9. - Norseman - Tuesday, Aug 8, 17 @ 2:04 pm:

    Interesting kitchen table suppositions. I’d side with the position that the funding gets held up, but wouldn’t bet the farm.

    I would put money on the death of funding reform yet again.


  10. - JS Mill - Tuesday, Aug 8, 17 @ 2:05 pm:

    I talked to an actual attorney, not somebody who pretends to be one on social media, and he believes a legal challenge is possible but unlikely to be successful. The ILSC has indicated in the past that it will not intervene on school funding issues.


  11. - Been There - Tuesday, Aug 8, 17 @ 2:31 pm:

    ===and he believes a legal challenge is possible but unlikely to be successful.====
    Basically the lawsuit to have employees get paid was pretty baseless. I don’t even think the St.Clair Co judge wrote more than a page. After that it was pretty much slow walked and never made it to the supremes. Sometimes being successful just means buying time.


  12. - Wordslinger - Tuesday, Aug 8, 17 @ 2:35 pm:

    That’s the IPI/Rauner game plan? Cede more authority to the courts?


  13. - Annonin' - Tuesday, Aug 8, 17 @ 2:44 pm:

    Reek is an accountant? Scary


  14. - Arthur Andersen - Tuesday, Aug 8, 17 @ 2:51 pm:

    Reick also has a law degree according to his website along with bachelors’ and masters’ in accounting and taxation. He’s an Illini so he has to be smart. /s


  15. - Anon - Tuesday, Aug 8, 17 @ 2:57 pm:

    Per Committee for Educ. Rights v. Edgar, 174 Ill. 2d 1 (1996), the ILSC won’t get in the weeds on parity, efficiency, or levels of funding. But even in Edgar, the ILSC did quote a 1929 ILSC precedent that it can act to effect two mandates, “and these two only, which the courts can enforce: that the schools shall be free, and that they shall be open to all equally.”

    The argument might go as follows: since the GA put in place the current system, by statute, but has refused to provide a mechanism to get enough funds into the system to allow the schools to actually operate, then the GA hasn’t provided the affected children a “free” education at all.

    This isn’t an issue of not having enough ipads for the kids, but instead of not actually having a public school available to attend, at all, for some kids. It looks worse when you toss in the fact that some kids under the GA’s system will receive a full year’s schooling–e.g., suburban districts with adequate property wealth.

    Regardless, the arguments here appear to be different than any of the other IL cases on education funding, so there wouldn’t appear to be grounds to say the result is “certain,” whether for keeping the schools open or shuttering them.


  16. - Free Set of Steak Knives - Tuesday, Aug 8, 17 @ 3:26 pm:

    The approp hangs an the creation of a specific section of the code.

    The intent of a supermajority of both chambers is clear.

    The appropriation of the funds was contingent upon a future event. That isn’t a “nullity,” quite the contrary it is routine in the legal world: I will give you money for this specific, future thing.

    To suggest its an absurdity that the supermajority had no intention of funding only SB 1 or forcing schools to close is in itself absurd. No one ever thought that a governor would intentionally refuse to fund state government for 2+ years, but it happened. We live in strange times, State Rep.

    Reink’s time would be better spent passing a bill.


  17. - illini - Tuesday, Aug 8, 17 @ 3:27 pm:

    @ArthurAndersen - are you actually suggesting that there are actually some graduates of our Alma Mater that are not as smart as you and I?


  18. - Morty - Tuesday, Aug 8, 17 @ 3:38 pm:

    I actually thought Reick’s response was thoughtful and well-reasoned. I don’t know if it will hold legal water, but still


  19. - transplant - Tuesday, Aug 8, 17 @ 3:44 pm:

    Sen. McCarter spoke at a Town Hall meeting today in Sandoval. He suggested not approving any of the current school funding measures and instead passing a stop gap bill and starting from scratch on a funding formula.


  20. - illini - Tuesday, Aug 8, 17 @ 3:48 pm:

    @transplant - once again I am so, so proud of my Senator./s


  21. - transplant - Tuesday, Aug 8, 17 @ 4:05 pm:

    @illini: Yeah, it was pretty awful. The superintendent was almost in tears by the end. Without a funding measure in place, Sandoval schools will close their doors Oct. 2.
    McCarter insisted things wouldn’t get that far but it’s hard to believe that when they assured us the budget standoff wouldn’t last through the first fiscal year …


  22. - Robert J Hironimus-Wendt - Tuesday, Aug 8, 17 @ 4:17 pm:

    Two Thoughts:

    The common and ordinary interpretation regarding what constitutes “evidence-based funding” may or may not be specified, but will be resolved. In education, there are common understandings of evidence, whether it be student numbers, ACT scores, graduation rates, etc. Though these may or may not be specified, a court can fix these.

    If the legislation suggests school districts cannot receive less next year than they received last year, that does suggest “held harmless” will apply to next year. However, down the road, that an become an issue.


  23. - Robert J Hironimus-Wendt - Tuesday, Aug 8, 17 @ 4:28 pm:

    @Anon: You wrote, “the ILSC did quote a 1929 ILSC precedent that it can act to effect two mandates, “and these two only, which the courts can enforce: that the schools shall be free, and that they shall be open to all equally.”

    Does this suggest an argument for why Vouchers will not be deemed unconstitutional? For example, the last clause would not apply to all children in terms of private education. Granting vouchers in McDonough County would amount to NO private education - only the choice between one public school an another.


  24. - Mama - Tuesday, Aug 8, 17 @ 4:47 pm:

    “Senate Bill 1 has not yet been sent to the Governor.”

    That statement has to be false since the governor has already vetoed SB-1.


  25. - Anon221 - Tuesday, Aug 8, 17 @ 5:37 pm:

    McCarter also posted a cow chip meme today. Real classy.


  26. - Arthur Andersen - Tuesday, Aug 8, 17 @ 8:21 pm:

    @Illini, there are a few bad apples in every barrel.


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