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Analysis: State Supreme Court decision on school funding may lead to more lawsuits

This article first appeared in the St. Louis Beacon Sept. 2, 2009 - Missouri Supreme Court Judge Mike Wolff's witty, chatty, very personal dissent to Tuesday's school funding decision may point toward a new round of litigation challenging the inequality of property tax assessments between counties. Wolff maintained that the failure to equalize tax assessments violates the state constitution, distorts school funding and is ripe for another lawsuit.

Judge Mary Russell, author of the 6-1 opinion upholding the state education funding formula, agreed that Wolff raised "complex and important issues" about tax assessment equality, but she said the issue was one "for another day."

The exchange may mean that the declarations of victory and concessions of defeat in the long-running school funding case are premature. The Coalition to Fund Excellent Schools, a group of suburban schools in St. Louis County and other parts of the state, emphasized the unfairness of assessments during the lawsuit and may see an opening to pursue the issue.

Wolff is a one-time newspaper reporter turned law professor, special counsel to the governor and then Supreme Court judge. His 35-page dissent, which ran eight pages longer than the court's opinion, began with a colorful lead paragraph that seemed to belong more on the top of a news story than a court decision. Wolff, who enjoys a good laugh, wrote, "In Lake Wobegon, 'all the children are above average.' In Missouri, all the children in public schools will get an 'adequate' education under the state's revised school finance law."

Wolff's point was that Missouri's public schools are no more adequate than the children of Garrison Keillor's fictional Lake Wobegon are all above average.

"The amount of money currently available to many districts may be 'adequate' only to ensure mediocrity" and fails to prepare Missouri's children for the "world marketplace in the 21st century," he wrote.

Wolff said he understood that the nation's school funding was based on local decisions and had rural roots. He recalled his mother's life as a young teacher in a rural, one-room schoolhouse during the Depression. And he acknowledged that money was not always the key to a good education, pointing out that nuns had subsidized his good, but inexpensive education in parochial schools.

But he said that the Missouri Legislature's 2005 school funding plan was based on an unfair and unconstitutional disparity in assessments. Some more rural districts have assessed property at a lower level than suburban districts. Under the 2005 state funding formula, the districts with the low assessments get more state funds to make up for the smaller amount of money coming in through local property taxes.

To make matters worse, Wolff wrote, the school funding formula locks in the 2004 assessment levels, which experts say were much more out of whack than current assessments. Steve Gardner of the Public Policy Research Center at the University of Missouri at St. Louis maintained during the trial of the school case that his study of 25 counties showed great disparities in assessments, with rural areas like Washington County assessing property at less than 60 percent of its value.

Wolff wrote that situation "rigs the system of education." He reminded Missourians that children growing today up in little towns such as Hannibal, Nevada or Tarkio become citizens of big cities such as Cape Girardeau, Kansas City or Springfield tomorrow. But they won't be prepared for the global marketplace, leaving many top scientific and technical jobs to be filled by highly educated people from other nations.

Meanwhile, Missouri children are still going to school on the "agricultural calendar," starting the school day when their "adolescent brains are not fully awake" and then returning home without parental supervision "for channel-surfing, internet-surfing, criminal mischief or sex."

Wolff pointed out that the state constitution specifically requires that the state tax commission "equalize assessment as between counties." The rest of the court didn't dispute that, but Judge Russell pointed out that the state tax commission was not a party to the lawsuit and that the court could not decide the issue for that reason. Hence the possibility of another lawsuit.

Wolff, who was deeply involved in school issues when he served as special counsel to the late Gov. Mel Carnahan, pointed out that the funding disparities between the richest and poorest school districts were "stunning." Clayton and two other districts spend more than $13,000 a pupil, while the lowest spending rural districts spend less than $4,900 a pupil.

Maybe, Wolff wrote with his sarcastic pen firmly in hand, inequities in school funding were "close enough for government work." The judge noted that the phrase had been used by his predecessor, Judge Edward D. Robertson, Jr., an appointee of former Gov. John Ashcroft. Wolff returned to the point in his conclusion, stating that "the court's role is not to join the applause by brushing lightly over some serious-sounding but shop-worn constitutional doctrines and pronouncing the legislative efforts good enough." Rather, he said the 2005 law provided only "delusions of adequacy."

He said his applause would be "the sound of one hand clapping."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.