What does the changing Pa. Supreme Court mean for education funding, charter schools?

The results of Tuesday’s Pennsylvania Supreme Court election could have wide-ranging implications for a number of high-profile cases related to education issues in Pennsylvania.

Three Democrats swept the open seats on the state’s highest court – shifting the balance of power 5-to-2 in their favor when they assume the bench in January.

Superior Court Judge Christine Donohue, 62, of Pittsburgh; Philadelphia Court of Common Pleas Judge Kevin Dougherty, 53; and Superior Court Judge David Wecht, 55, of Pittsburgh defeated their Republican opponents and one independent.

Traditional public education advocates closely followed the race, anticipating that a shake-up in favor of the Democrats could mean rulings favorable to their interests.

The biggest education-related case the new court is expected to hear will be one brought by the Education Law Center and the Public Interest Law Center of Philadelphia that asserts that the legislative and executive branches of state government have failed to deliver “a thorough and efficient” education to all children, as promised in Pennsylvania’s Constitution.

In April, the Commonwealth Court dismissed the case, arguing that education funding should be decided by the legislature, not the judiciary. ELC and PILCOP appealed to the Supreme Court in May. The plaintiffs contend that the state has skated on its constitutional obligation by adopting content standards and performance expectations without providing the funding needed to meet them.

Susan Gobreski, executive director of Education Voters of Pennsylvania, expects the new justices will be more inclined to agree with the plaintiffs’ interpretation of the law.

“I think that having a change on the court, having a court that’s more friendly to the idea of an expansive view of rights, is a really good thing,” said Gobreski. “Because education has become a partisan issue, and because we elect judges, it’s hard not to say that a partisan approach has an impact on issues.”

Veteran pollster and Franklin & Marshall College political scientist G. Terry Madonna said that, historically, the Pennsylvania Supreme Court has not acted as a partisan body.

In 2012, former Chief Justice Ron Castille broke from his fellow Republican justices to reject the Legislature’s first attempt at redistricting after the 2010 census. Ultimately, a revised redistricting plan was unanimously approved in 2013.

Recently, the court unanimously voted to strip Attorney General Kathleen Kane, a Democrat, of her law license.

But with Tuesday’s election, Madonna sees a changing tide.

“The court is likely to become more divided,” he said. “I don’t think it would be arguable that we’re likely to see a transition in the court that may look more favorable to individuals with cases on education spending, environmental issues, you get my point.”

Several other high court cases loom that will further define the power of the Philadelphia School Reform Commission.

The Philadelphia Federation of Teachers has been successful in the lower courts arguing that the SRC did not have the power to unilaterally break its contract in October 2014. The SRC’s lawyers contend that the legislation creating the five-member panel, instituted in 2001, gave the body this and other extraordinary powers.

The Supreme Court is expected to weigh in on this in the spring.

The PFT and its parent organization, the American Federation of Teachers, donated $12,500 apiece to  each of the three Democrats in the race.

“You expect the jurists to really follow the law, and that’s what I expect,” said PFT president Jerry Jordan, later adding, “Anytime your endorsed candidates win, you’re always pleased.”

As of the latest filing deadline, the Pennsylvania State Education Association, the state’s largest teachers union, had donated $100,000 to Pennsylvanians for Judicial Reform – a political committee that funded a series of attack ads against the Republican candidates.

Charter school cases

The new court is also expected to hear a case which will decide if the SRC has the power to unilaterally impose enrollment limits on charter schools.

As the charter sector has grown across the state — most rapidly in Philadelphia — unionized teaching jobs have diminished.

In August, the Commonwealth Court sided with the five charter schools that argued that the SRC wrongly withheld payment for students enrolled above unilateral caps. The SRC appealed in September.

Another case brought by West Philadelphia Achievement Charter Elementary School challenges the SRC’s ability to suspend parts of the state charter law at will. It also questions the constitutionality of the state takeover legislation that created the SRC.

This case was heard by the current court in September 2014. District officials expect a decision would come before the new justices arrive, but no timetable has been set.

Pennsylvania Coalition of Public Charter Schools executive director Robert Fayfich has “cautious optimism” that Donohue, Dougherty and Wecht won’t allow campaign supporters to influence decisions.

“As Supreme Court justices, they need to step above the political fray and really focus on what the legalities are and the value of the arguments presented,” said Fayfich.

Donohue and Wecht came “highly recommended” by the Pennsylvania Bar Association. Republican Judith Olson, who felt short, also earned that designation.

Dougherty, brother of powerful electricians union Local 98 business manager John Dougherty, was “recommended” by the state bar.

With seven candidates vying for three spots, the contest became the most expensive court election in U.S. history, according to Justice at Stake – a group that advocates for judicial impartiality. The total tab tallied so far: $15.8 million.

Kevin Dougherty (D) $3,853,205.51
David N. Wecht (D) $2,880,604
Christine Donohue (D) $1,923,910.52
Anne Covey (R) $925,406.29
Michael A. George (R) $861,623.60
Judith Olson (R) $575,007.56
Paul Panepinto (I) $234,000
Six primary losers raised a total of $1,563,619.85

The bulk of funding for the Democratic candidates came from unions and trial lawyers. Republican candidates did not benefit from large checks from high-profile GOP-leaning groups.

Madonna believes, at the very least, the donations will buy access and opportunity.

“You think there’s any doubt that you give money to a campaign without some expectation? You think you pour millions of dollars into campaigns and it’s all benign, that it’s all about good government and civics?” he said. “No, you expect a favorable hearing. Does that mean you get everything you want? No, of course not.”

Pennsylvania is one of seven states that run partisan elections for the highest courts. After a 10-year term, justices in Pennsylvania run in uncontested retention elections. Only one Supreme Court justice in the history of the state was denied retention.

This can bode well for impartiality, said Madonna.

“It’s not like you are putting your career at risk,” he said, “if you don’t do what your campaign supporters want you to do.”