A Virginia-based lawyer stood Oct. 4 before West Virginia’s Supreme Court and said: “No one contends the Legislature is failing to provide thorough and efficient schools.”
“As long as the Legislature is providing that thorough and efficient level of funding for public schools, it is free to build on that foundation with additional options,” said Joshua House of the Arlington-based Institute for Justice, defending West Virginia’s program to provide parents public money for private- and homeschooling.
An hour before, in a building across the Capitol Complex lawn from the Supreme Court chambers, members of the newly revived West Virginia Board of Education Finance Committee complained about the state Legislature’s public education funding formula. Not enough money goes to special education, aides and other school service workers and sparsely populated counties, they said.
Committee member J.P. Mowery said county school systems are possibly headed for “a reckoning, so to speak,” if private and charter schools siphon enrollment, federal COVID-19 relief money runs out and “we wrestle with what to do with employees that we’ve hired or expenses that we’ve incurred.” The funding formula largely finances public school districts based on enrollment.
In Pendleton County, where Mowery is the school system treasurer, voters haven’t passed an excess property tax levy to provide public schools more money atop what the formula gives.
“So, what role does the state have in providing a thorough and efficient education?” Mowery said. “I’m sure a lot of us could argue that ‘round and ‘round. How much is enough?”
The answer could affect support for “school choice” programs such as vouchers and charters and for tax issues appearing on November ballots.
The question has remained unanswered for years, as student and education needs have evolved.
West Virginia University professor Joshua Weishart said there’s never been a rigorous study of whether the Legislature’s public education funding formula provides the “thorough and efficient system of free schools” that the state constitution requires.
An education law and policy specialist, Weishart called that “irrational,” considering the state spends more than $1 billion annually on public education.
“We have these battles about twenty or sixty million or a hundred million,” he said, “but we don’t ever address the billion-dollar question.”
Each fall, before COVID-19 and now, the state releases public school standardized test scores showing most students aren’t “proficient,” as the state defines proficiency, in math and English. It’s one repeated reminder that the state’s public schools might not be “thorough and efficient.”
State lawmakers and the governor continue to push tax cut proposals that would reduce state general revenue unless the lost money is replaced from elsewhere.
The Republicans who dominate the Legislature have passed “school choice” programs, such as vouchers and charters, that will reduce public school system funding because of the formula’s reliance on enrollment.
House, the Institute for Justice lawyer, defended the state’s new Hope Scholarship non-public school vouchers program on behalf of parents who want to use it. It provides families public money for each child schooled privately or at home after being withdrawn from public schools.
If House meant by his remarks that his courtroom opponents weren’t arguing that the Legislature is “failing to provide thorough and efficient schools,” he was right. Their main arguments stressed that vouchers would fuel future failure if allowed to progress.
These vouchers, West Virginia’s new charter schools and at least two Nov. 8 election issues — the proposed constitutional amendment to let lawmakers cut certain property taxes and Kanawha County’s request to extend its school excess levy — touch on all sorts of debates, including those over tax structure, legislative versus local government control of funding, parents’ educational choices, public funding for religious schools, privatization of public education, discrimination and on and on.
But they all also raise that same question: Is the state’s current level of public education funding and the way those dollars are distributed among counties providing students an equal opportunity for a quality education?
“An adequacy cost study is an empirical study that assesses the actual costs of providing a constitutionally adequate education to all elementary and secondary students,” Weishart wrote in a 2019 paper. “No such systematic, research-based analysis for determining actual education costs has ever been conducted in West Virginia.”
In a landmark 200-page decision in 1982, Ohio County Circuit Judge Arthur Recht ruled that the state’s funding formula caused financial inequities across the state’s counties. That case helped shape West Virginia’s education funding method. So did other court rulings and laws that followed it.
But these weren’t based on the kind of cost adequacy study for which Weishart is calling.
“West Virginia’s [enrollment-based] formula does not provide additional weights for gifted, low-income or at-risk students, nor arguably does it sufficiently reimburse districts for the costs of educating students with disabilities or other special needs,” Weishart wrote.
Recent laws have altered the funding formula in response to various concerns, but there has been no published holistic study of what it would cost to, for instance, provide West Virginia children an equal opportunity to earn test score proficiency in math or English.
“The [current] school aid formula, I think, was a product of the Recht decision and trying to equalize everyone, but obviously everyone is not equal in that regard, with some counties having excess levies and some counties not,” said school board member Nancy White, a former county school system treasurer leading the board’s revived Finance Committee.
Recht criticized excess levies, which provide more public education funds for children in some counties compared to others. Voters must approve the levies, which are based on property values.
John Taylor, another WVU law professor who writes about education law, wrote in a 2019 paper on Recht that ending excess levies “would have required new sources of state funding that West Virginia was unable and/or unwilling to provide.” Excess levies continue to exist.
County school systems may now require this “excess” levy revenue to perform basic functions. Much of Kanawha’s last excess levy went to fixing or replacing heating, ventilation and air conditioning units at schools where these systems kept failing.
As for an adequacy cost study of the funding formula, White said “I would welcome it. I think test scores would increase with more investment in education.”
“The Legislature is open to some suggestions at this point,” she said.
Noting Senate President Craig Blair’s naming of a public school teacher as the new Senate Education Committee leader, White said the state Senate seems to be “moving away from the school choice opportunities that they have given the students.”
“Now, they want to concentrate on public education,” White said.
Blair, R-Berkeley, said, “I don’t think I’m going to drop a study in on the chairman unless we all agree that that’s what we want to do.”
“I’m not saying that I’m averse to a study,” Blair said. “You’re premature in your question is what I’m getting at.”
He said, “it’s time to take a deep dive into public education” and “nothing is off the table.”
“The school aid funding formula should always be studied, and in fact it frequently is,” said House Speaker Roger Hanshaw, “but you can’t benchmark against a qualitative assessment point.”
Weishart wrote in his 2019 paper that studies have their limits. “Yet, even if the studies cannot achieve absolute precision, they offer a dependable compass without which the state is flying blind,” Weishart wrote.
“The state simply cannot discharge its constitutional duties to provide an adequate education without knowing how much it actually costs.”