Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 6, 1994 TAG: 9402060035
SECTION: VIRGINIA PAGE: D-1 EDITION: METRO
SOURCE: LAURA WILLIAMSON STAFF WRITER
DATELINE: LENGTH: Long
" Almost all of us recognize that one of the more serious problems existing in the commonwealth today is the disparity in the quality of education offered by the various school divisions."
Another disparity speech by a Virginia Democrat. Where's this guy from? Southwest? Richmond? Southside?
Try Arlington. Yes, Arlington - the Arlington of 1969.
Times have changed since Del. William Lightsey made that speech to the lawmakers who were rewriting Virginia's constitution.
Or have they?
Certainly the champions of disparity no longer hail from Northern Virginia, which boasts some of the richest schools in the state. But legislators still argue each year about the spending gap that yawns between the wealthy suburban school divisions and their poor rural and inner-city cousins.
Not only did lawmakers know about the problem 25 years ago - they carefully worded the new constitution to avoid being sued over it.
Lawsuits were cropping up in other states - California and Texas, for example - as the Commission on Constitutional Revision hammered out the wording of Virginia's guiding legal document.
"I remember you'd hear all the time, `Virginia has some of the best schools in the nation and some of the worst.' It was the same problem," recalled U.S. District Judge James Turk, then a Republican state senator from Radford and a member of the commission.
According to a brief filed by the commonwealth in the lawsuit that finally did result - a case that will be argued before the Virginia Supreme Court this month - an early draft of the constitution contained wording that might have ensured a more "equitable" distribution of wealth among school divisions.
But fear of litigation caused the lawmakers to remove that language, as well as other wording that would have required the General Assembly to provide a "high quality education" for all Virginians, the brief asserts.
Turk argued against the deletion. He was soundly defeated.
Lawmakers instead gave themselves the power to determine how money would be distributed among schools. And they devised a system of minimum educational requirements - still known as the "standards of quality" - so that they, not the courts, would determine what constituted a "quality education."
"They chose not to condemn disparity," said Don Harrison, a spokesman for the state attorney general's office.
But the framers did not ignore it, either. By creating the "standards of quality," they "put in a floor, not a ceiling" for educational quality, Harrison said.
Weighing heavily on the framers' minds as they drafted the document was a Texas lawsuit that would ultimately land in the U.S. Supreme Court, Turk said. The suit claimed that Texas violated the equal protection clause of the 14th Amendment by relying on a school-spending formula that created vast inequities in the state's public school system.
A panel of three Texas judges ruled their state's system unconstitutional just as Virginia's constitution was becoming law in 1971. Everyone expected the nation's highest court to agree, Turk said.
It disagreed.
The court held that while the Texas school-financing system - like so many other systems throughout the United States - might create inequities among schools, it was neither "irrational" nor "discriminatory."
In addition, wrote Justice Lewis Powell, in throwing the issue back to the states, "the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them."
That is just what Virginia lawmakers believed in 1969, the commonwealth's 1993 brief asserts. It is an argument the state attorney general's office will revive when it defends Virginia's school-spending formula at the end of this month.
The Virginia Supreme Court will hear the case sometime between Feb. 22 and Feb. 25.
While the commonwealth's case will rest heavily on the intent of the constitutional authors, the school divisions that brought the suit hope to build their case on precedent.
The brief, filed on behalf of a coalition of rural and inner-city school divisions, cites cases in Kentucky, Tennessee and Missouri in which the school systems or the formulas that pay for them were held unconstitutional.
But that does not necessarily mean a Virginia court will do the same, said A.E. "Dick" Howard, a University of Virginia law professor and the attorney who served as executive director of the 1969 constitutional commission.
Whether the courts intervene in an issue historically left to state legislatures depends on how timid or bold the state Supreme Court justices are, he said.
"Virginia courts do not have a reputation for getting involved" in General Assembly issues, Howard said. "Here, they have a steeper hill to climb."
It may be some time before Virginia's courts will have to decide whether or how much to get involved. Even if the coalition wins at the Supreme Court, all it is asking for at this point is the right to argue its case. If the Supreme Court finds the coalition has that right, it will return the case to Richmond Circuit Court.
Andrew Miller, the attorney representing the coalition, will argue that the courts should intervene because of wording in Virginia's constitution that calls for "an effective system of education throughout the Commonwealth."
The current school-spending formula violates the constitution by failing to provide an equal, and therefore effective, system for all students, he wrote.
Miller, who was Virginia's attorney general in the early 1970s, downplays the importance constitutional framers placed on the disparity issue.
"The fact of the matter is, the discrepancies that existed then were not as bad as they are today," he said.
Perhaps not, but there is no question the framers spent considerable time discussing the issue, Howard said.
"The disparity problem was very much on their minds," he said. "It was one of the more important issues debated."
Twenty-five years later, it still is.
Keywords:
GENERAL ASSEMBLY 1994
by CNB