Justices told schools were once unsafe

BOISE – Idaho was putting kids in unsafe schoolhouses in 2001, but it is not anymore, attorneys for the state argued to the Idaho Supreme Court on Wednesday – an argument that appeared to stun the justices.

“There’s little to be served by focusing on the pre-2001 system,” Deputy Attorney General Jim Carlson told the high court. “There were some unsafe schools, and the Legislature promptly responded.”

Two of the justices interrupted Carlson, asking if he was conceding that state District Judge Deborah Bail was correct in 2001 when she declared Idaho’s school-funding system, which relies on property taxes to fund construction, unconstitutional because it left the poorest school districts unable to provide safe schools. The state is appealing Bail’s decision to the high court.

Justice Roger Burdick said, “You just stipulated that there were unsafe schools. But in the lower court, you argued vociferously that there were none.”

Carlson told the court that the difference was that state lawmakers didn’t know until 1999 that the state constitution required them to provide safe schools. That’s when the Idaho Supreme Court ruled that the constitution’s requirement that the Legislature provide for education includes a “safe environment conducive to learning.”

“The Legislature acted on the 1999 call from this court,” he said.

The arguments marked the fifth time that the state’s long-running school funding lawsuit has made it to the Idaho Supreme Court. In all four previous rulings, the high court has sided with the group of school districts, students and parents who sued over inadequate state funding, and against the state. The justices will issue their ruling on the latest appeal in the coming months, possibly by December.

Justice Linda Copple Trout questioned Carlson’s contention that lawmakers didn’t know earlier that they needed to fix schools. “What about the facility needs assessment done back in ‘91?” she asked. “They were certainly aware at that time that there were some deficiencies in the schools.”

That study, initiated and funded by the Legislature, identified a $700 million backlog in school construction, renovation and repair across the state. Stunned by the price, lawmakers stopped short of trying to address the backlog.

Idaho traditionally has left the full cost of school construction to local property taxpayers, who must vote by a two-thirds supermajority to raise their own taxes to build or replace a school.

But state lawmakers departed from that in 2001, when they joined with Zions Bank of Utah to offer a handful of school districts state subsidies if they’d take out bank loans for major safety improvements, including replacing unsafe schools. Those districts also were asked to drop out of the lawsuit. The $10 million that lawmakers put into that program ran out in 2002; only seven of Idaho’s 113 school districts got grants.

Under pressure from the court case, lawmakers then passed legislation to phase in a program to partially subsidize interest costs for all school districts that pass new construction bonds in the future. However, they decided to fund that program not with new money, but by shifting money out of the existing school budget, from lottery funds that previously went to all districts for building maintenance.

“A district like mine that can’t pass a bond can’t get money to fix the ongoing problems, so they”ve just made my problem worse instead of better,” said Stan Kress, superintendent of the Cottonwood School District and president of Idaho Schools for Equal Educational Opportunity, the group of districts that sued.

In 2003, Gov. Dirk Kempthorne and state schools Superintendent Marilyn Howard appointed a task force that negotiated a settlement to the lawsuit, which included amending the state constitution to lower the two-thirds supermajority, providing millions in added state funding for construction and building maintenance, and more. But the Legislature refused to consider the settlement, and instead passed legislation attempting to cancel the lawsuit and order school districts to fix their own building problems without help from the state. That legislation was declared unconstitutional, first by Bail, and then by the Idaho Supreme Court.

Now, the state has appealed Bail’s 2001 ruling, leaving the justices to ponder the same question she ruled on four years ago: Does the state’s funding system for school construction violate the Idaho Constitution?

“The Legislature wants this to come to an end. The Legislature wants safe schools,” Carlson told the justices.

Drawing laughter, Trout retorted, “They’re not the only ones.”

The justices also sparred with former Justice Robert Huntley, attorney for the school districts, over how the case had been proceeding in the lower court. Bail had appointed a “special master” to determine which schools need fixing, after dueling experts from the two sides had disagreed and had spent 11 days of trial just on the tiny Lapwai School District and its buildings. But the state refused to pay for the master.

“I don’t understand why it is necessary for us to know specifically which schools are unsafe and what amount of money it would take to fix them,” Trout said.

Huntley said that’s needed to force lawmakers to correct the problems.

Retired Justice Wayne Kidwell expressed concern about the separation of powers, and said the courts generally don’t dictate spending decisions to the legislative branch – though that’s been the result of similar lawsuits in some states.

Two of Idaho’s Supreme Court justices, Chief Justice Gerald Schroeder and Justice Dan Eismann, recused themselves because they presided over earlier phases of the case as district court judges. They were replaced by Kidwell and senior Judge Dan Hurlbutt.

Hurlbutt marveled that the state would acknowledge requiring children to attend school in unsafe buildings. “In the 21st century, how does this happen?” he asked.

Carlson responded that it wouldn’t happen today – if a school is unsafe, a district now will be pressured to close it and shift the children to double-shifts or four-day weeks at a nearby school, he said.

“So we just cram those children in elsewhere,” Hurlbutt said.

Kress said he was “very encouraged with what I heard from the justices today. I will be surprised if they don’t decide that the system is broken and that the Legislature does need to address the broken system and fix it.”

He added, “My sense of it is that it’s never going to get fixed as long as it totally relies on property taxes and it relies on the two-thirds vote.”