The battle in Pennsylvania over school funding could take on a new dimension

HARRISBURG, Pa. (AP) — Josh Shapiro, the Democratic nominee running for attorney general, said that, if elected, he would side with school districts and parents challenging the constitutionality of Pennsylvania's system of funding public schools.

It could elevate the fight over disparities in how Pennsylvania educates children, and it draws a bright line between how he and the Republican nominee, John Rafferty, might handle the office.

Should Shapiro win the November election, he could give the lawsuit's plaintiffs — six school districts, parents of six schoolchildren, the NAACP and the Pennsylvania Association of Rural and Small Schools — a new ally.

It also could put the attorney general's office in the position of taking on top Pennsylvania officials in court, a situation potentially without precedent.

"I will not defend the status quo and, in fact, I would do everything I could to join the other side in saying that what we are doing here in Pennsylvania is not working," Shapiro said Monday at the Pennsylvania Press Club. "It's discriminatory; it's unconstitutional."

Speaking later to reporters, Shapiro, the chairman of Montgomery County commissioners, said that the system is discriminatory based at times on race or on socioeconomic status, and that the attorney general is vested with the authority to exercise judgment on constitutionality.

Rafferty, a state senator from Montgomery County, insisted the law is clear that the attorney general must defend the state government and its laws, and said it is "dangerous" for an attorney general to decide which laws they will defend.

"The attorney general is not a judge or a jury," Rafferty said in a statement. "The courts are ultimately in charge of determining the constitutionality of our laws."

The Commonwealth Court threw out the case in April 2015, saying the legal challenge involves political questions that do not belong in the courts. The state Supreme Court will hear the appeal and could schedule oral arguments in September.

A new attorney general takes office in January. Should the lawsuit fail in court before then, Shapiro said he could pursue the matter "with some new approach."

Last year, federal education officials found that, based on 2011-12 school year data, Pennsylvania harbored the nation's widest per-student funding gap between poor and wealthy school districts.

State aid is weighted toward the poorest school districts. However, Pennsylvania's state government plays one of the nation's smallest roles, proportionally, in funding schools, leaving districts heavily reliant on local wealth.

An analysis in 2014 by The Associated Press found that school districts with some of the highest average household incomes were budgeted to spend twice the amount, per-student, as some of the state's districts with the lowest average incomes.

Plaintiffs also cited a legislatively mandated study in 2007 that indicated more than 470 of the 500 school districts were not receiving enough state money to meet the state's academic standards and assessments.

Meanwhile, the Republican-controlled Legislature has shown little inclination to fix the disparity in the foreseeable future, despite efforts by Democratic Gov. Tom Wolf.

The question of school funding aside, there is disagreement over the attorney general's discretion.

Bruce Ledewitz, a Duquesne University law professor, said the attorney general's job is to defend the laws of Pennsylvania. The office is not given the power in the state's constitution or laws to decide when the constitution is being followed or not, Ledewitz said.

Dickinson Law School professor Gary Gildin said an attorney general has obligations that provide leeway on when to defend the state after making an objective legal assessment.

Those obligations are an oath of office to uphold the constitution and, as a lawyer, not to assert a position that's contrary to the law unless arguing for the good-faith modification of existing law, Gildin said.

The disagreement over how the attorney general decides when to defend the state or not got a public airing in 2013, when Attorney General Kathleen Kane refused to fight a lawsuit challenging Pennsylvania's ban on recognizing same-sex marriage.

That task fell to then-Gov. Tom Corbett. Ultimately, a federal judge struck down the law in 2014.

Michael Churchill of the Public Interest Law Center of Philadelphia, which is helping represent the plaintiffs in the school funding lawsuit, welcomed Shapiro's support.

"We think it's the right position," Churchill said, "and we wish the current attorney general would reconsider her current position."

MARC LEVY, Associated Press

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The Gayly - 5/28/2016 @ 2:18 p.m. CDT