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March 6, 2010

Flashpoint: School funding dispute should be legislature’s problem

The Tribune-Star

TERRE HAUTE — We have an expression in southern Indiana: “Throwing good money after bad” — in other words, wasting additional money after wasting money once.

I was reminded of that expression recently when three Indiana public school districts filed suit against the State, asking the court to throw out the State’s school funding formula as unconstitutional.

The three school systems – Hamilton Southeastern in Fishers, Franklin Township Community in Indianapolis and Middlebury in Elkhart County — are rapidly growing school districts. Their lawsuit contends the funding formula is unconstitutional because urban schools receive more per pupil than they do.

I recognize the difficult position the three districts are in as they stretch dwindling resources to educate a growing number of students. No one wants to shortchange children of their education or deprive teachers of resources they need.

While the school district’s grievance with the formula is understandable, I have to object to their method of addressing it.

The Indiana Supreme Court previously ruled in a similar case that had challenged the constitutionality of the school funding formula, Bonner v. Daniels. In that 2009 case, the Supreme Court ruled the legislative branch — the Indiana General Assembly — is the final authority on school funding decisions, not the courts. While there may be new legal arguments, the outcome may well be the same.

But that has not stopped the Hamilton Southeastern school officials from hiring an expensive Chicago law firm to file their lawsuit or from also hiring a second law firm in Indianapolis to represent them. According to media accounts, Hamilton Southeastern plans to sell a piece of real estate the school system owns to raise its share of the $70,000 needed just for the initial legal costs.

Ultimately that money belongs to Hamilton Southeastern taxpayers. And yet the lawsuit could drag on for years through multiple appeals, with the private lawyers’ billable hours piled high and taxpayers stuck with the tab.

Someone has to serve as the State’s lawyer to represent in court the officials who have been sued and to defend the statute from being overturned. That’s the job of my office, the Indiana Attorney General’s Office, and such legal representation for the State also costs the taxpayers money. Also, complicated litigation will involve yet more expenses for the courts that preside over the case — again, paid for through tax dollars.

It could take years for this suit to reach the Indiana Supreme Court. Even if the plaintiff schools were to prevail and the formula were found unconstitutional, the relief the Court would likely grant would be to order the Indiana General Assembly to create a new funding formula.

So three legislative sessions from now, in 2013, we could be right back where we started: with a debate among the people’s elected lawmakers over how best to slice the education funding pie.

As your state Attorney General, I am convinced that the Legislature is where this funding dispute belongs, not the courts. It’s possible that some state legislators will be less receptive to the plaintiff schools three years from now than they are now, after they see the mountain of legal bills the districts will have accrued by then.

A full public accounting of all the tax dollars that Hamilton Southeastern, Franklin Township and Middlebury spend on their private lawyers to pursue their lawsuit against the State should be made available as the litigation progresses. Ultimately, whether it’s through local property taxes or state income taxes, the money necessary to fuel this lawsuit comes out of the taxpayers’ pockets.

Again I urge the well-intentioned school plaintiffs to rethink their legal strategy before they shovel tax dollars into a likely unsuccessful legal action, and to recognize the futility of public officials suing other public officials. Before they throw more good money after bad, the school officials ought to stand down from this lawsuit and focus their persuasive efforts instead on their state legislators.

It is rare that I would publicly criticize the decision to bring an action against the State. But in this case, I believe it necessary to raise the issue of whether taxpayers’ money should be used to sue the State.

— Gregory F. Zoeller

Indiana Attorney General

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