Due to legislative failure, the system for funding schools in Pennsylvania has become so "irrational" and "arbitrary" that the judiciary must intervene, attorneys argued before the state Supreme Court on Tuesday.

Children in some districts have lavish swimming pools, while others graduate from schools without ever having used a computer or seen a library, said attorney Brad Elias, representing several school districts, parents and civil rights groups.

This is wrong and violates the 140-year-old Pennsylvania Constitution, he said, which requires the state to "provide for the maintenance and support of a thorough and efficient system of public education" for all students across Pennsylvania.

It also violates the state's "equal protection" clause, Elias said.

Legislatures and governors through the years "have fallen down terribly, they have not done their job," said Elias with the New York firm of O'Melveny & Myers. Elias is working pro bono with the Education Law Center and the Public Interest Law Center, which brought the case two years ago.

The disparities between Pennsylvania's spending on its wealthiest and poorest districts are the widest  in the nation. Students living in poverty who need the most are getting the least, while students in wealthier districts are showered with amenities in school.

These disparities are largely driven by Pennsylvania's overly high reliance on local property taxes to fund public schools, compared with most other states.

The oral arguments in the ornate City Hall courtroom Tuesday were just to decide whether the justices should take up the matter at all. The plaintiffs maintained that they deserve their "day in court" to prove the merits of their case and show the harm brought about by the current system.

No inherent right to an education

Attorneys for the state countered that only the governor and Legislature can set the baseline for what the Constitution requires, and decide what is fair, equitable and sufficient to fulfill the constitutional mandate.

The Constitution does not confer the right to an education, said John Knorr of the Pennsylvania attorney general's office. "No individual child has any specific right to an education at all" under its provisions, he said.

He argued that the Legislature must simply set up "a system." It has, he said. "And there it remains until the people of Pennsylvania tell us otherwise."

Knorr said what is required beyond "opening school doors" is a "policy question."

Only in "extreme" situations — for instance, if the Legislature declined to support an educational system at all — would the plaintiffs have a case, he said.

The framers of the Constitution, back in 1874, expected disparities in spending among districts by specifically rejecting a "uniformity clause," Knorr argued.

The justices did not indicate when they would rule on the issue.

Changing educational landscape, revamped court

In prior school funding cases, the Pennsylvania justices have declined to intervene. But the advocates maintain that the landscape has changed since the earlier cases because the state has adopted new academic standards — and it sanctions districts, schools, and teachers when they aren't met.

The court has changed as well, with three new Democrats elected in November.

Patrick Northern of Dilworth Paxson, arguing for the Legislature, disputed the advocates' stance. There have always been standards, he said, and they always change.

"The court has already interpreted the Constitution, and put this issue in the hands of the Legislature," he said. The justices should "decline to get into the swamp" of wading into what is fundamentally a political issue.

Throughout the 90-minute argument, the courtroom was crowded with attorneys, advocates, plaintiffs and their supporters. The former superintendent of the William Penn School District, the lead plaintiff, Joe Bruni, was present. Although the School District of Philadelphia is not a plaintiff, School Reform Commission Chairwoman Marjorie Neff came to support Philadelphia parents who were. The district filed a "friend of the court" brief.

Others watched a live feed in an overflow room. Afterward, city, state and school officials, parents, activists and religious leaders, along with some students from Folk Arts Cultural Treasures Charter School, held a spirited rally on City Hall's north apron emphasizing the moral responsibility of the state to do the right thing by children.

The Rev. Gregory Holston of the faith-based advocacy group POWER brought up a subject not directly mentioned in the courtroom.

"We have to be real about this," he said, "that racism is at the core of this fair-funding issue.

"I don't mean racism like the Ku Klux Klan. I am not saying racial animus or those kinds of attitudes, but simply a devaluing of black children, of Latino children, of children of color simply because of the color of their skin, they don't have the same worth or the same value as every other child in the state of Pennsylvania."

POWER has done a series of statistical studies showing that state funding has a "racial bias" against districts that serve more students of color.

Tough questions for both sides

In the courtroom, the justices asked tough questions of attorneys on both sides. They pressed the  plaintiffs' attorney Elias on the slippery slope of where their intervention would lead — to judicial policymaking, micromanagement and prolonged court supervision of education spending and the distribution of funds.

Justice Max Baer, a Democrat, likened the case to "legal quicksand."

"You want us to lean on the Legislature," he said. "I'm not sure that's our role."

 Justices, though, also asked the state's attorneys repeatedly what was wrong with giving the plaintiffs a chance to argue their case on the merits.

"Why don't they get their day in court," Baer asked Knorr.

"What they want," Knorr answered, is vast new state expenditures in education ordered by the judiciary, which is "incompatible with the basic ideas of self-government." Whether the $11 billion now being spent on education in the state "is not good enough ... these are judgment calls."

What if the Legislature decides that it is OK for one district to have a Cadillac system, while, next door, students had no textbooks or desks, Justice David N. Wecht asked Knorr.

When Knorr said, "I can't imagine that that will come about," those in the audience audibly reacted.

At one point in the hearing, Baer asked if the plaintiffs were suggesting it might be necessary to jettison the practice of paying for education primarily through property taxes. Elias pointed out that 27 states have "progressive" education funding, in which the neediest districts get more resources, while localities still have the freedom to regulate their own taxes.

Baer responded that if Elias were suggesting that Montgomery County, for example, tax itself and send 20 percent to Philadelphia, "you might have a civil war."

The case is at least the third brought since the early 1990s seeking judicial intervention in education funding in Pennsylvania. Commonwealth Court dismissed it last year, and the Supreme Court agreed to hear the plaintiffs' appeal.

Disgruntlement all around

After the hearing, advocates fumed at the state's position.

"The governor and the Legislature jointly argued that as long as the schools are open, it doesn't matter whether they have the resources to operate and ensure that kids meet their standards. And that's appalling," said Donna Cooper, executive director of Public Citizens for Children and Youth, and top aide to former Gov. Ed Rendell.

On this issue, she's become an outspoken critic of Gov. Tom Wolf, a Democrat, for siding with top legislative Republicans in saying education funding levels are not a matter for the courts to decide.

"It's disappointing, it's shortsighted, it's ill-advised, and, hopefully, it's a failed strategy," she said. "I hope the court acts for the kids."

Wolf spokesman Jeffrey Sheridan defended the governor. During Wolf's tenure, lawmakers have authorized an additional $460 million in K-12 public education spending.

"The Constitution explicitly lays out that this is between the General Assembly and the governor," said Sheridan. "The governor himself is going to continue fighting for more education funding. Right now there is not adequate funding for education, but he's going to introduce more funding in his next budget."

A statement by Wolf on WHYY's Radio Times earlier in the summer seems to contradict his legal position Tuesday.

"Our Constitution says, 'thorough and efficient' education, and I think the William Penn School District suit is questioning whether we're, in fact, delivering on that," said Wolf. "I kind of agree we're not, but the courts will have to rule on that."

Wolf's allies in the case also rebuked the plaintiffs.

"Plaintiffs can try to mask their argument in any way they choose to, but this is simply an attempt by the plaintiffs to get the Supreme Court to order the General Assembly and the governor to raise taxes," said Drew Crompton, chief counsel to Senate President Pro Tempore Joe Scarnati, a Republican representing many Northwestern Pennsylvania districts.

During the oral arguments, Chief Justice Thomas G. Saylor, a republican, pointed out that the state funding already largely benefits poorer districts over wealthier ones.

"The plaintiffs didn't want to confront this core issue," said Crompton.

An analysis of per-pupil state funding shows a wide gulf between what the state's new student-based formula says districts need and the current reality.

As an example, South Side School District (where median income is more than $65,000) gets significantly more per-pupil aid from the state's main pot of cash than the Reading School District (where median income is less than $27,000).

"All we want is an opportunity to have our day in court," said state Sen. Vincent Hughes, the Democratic chair of the Senate Appropriations Committee. "This is about fairness and about opportunity."

'We don't have books'

Erie Superintendent Jay Badams came all the way from the opposite end of the state to be present for the argument. Erie is not a plaintiff, but Badams has been forced to make difficult decisions due to inadequate resources.

He has considered closing his high schools and sending Erie's students to wealthier neighboring districts so they can get a better education.

"We don't have books. We had a grandmother at a board meeting saying why can't my [grand]son have an algebra book," he said. "We've cut everything from our kids, and they don't deserve to have another thing taken from them. Our kids do deserve their day in court. All the kids in the commonwealth deserve their day in court."

The partisan lines here are as blurred as they get in education policy debates.

State Rep. David Parker, a Republican from the Pocono Mountains area, stood arm and arm with Democrats and advocates after the hearing, decrying the state's position.

"I'd like to do better as a Legislature, but if we can get some pressure from the judicial system to do that, then let's do it," he said. "We haven't gotten it done. For 25 years, we've shortchanged schools all over the state."

This story was reported through a partnership with the Philadelphia Public School Notebook. Notebook reporter Darryl Murphy contributed.