A divided en banc Commonwealth Court has greenlighted a lawsuit that challenges the constitutionality of an amendment to the Education Empowerment Act.

The court in Harrisburg School District v. Hickok, PICS Case No. 01-1277 (Pa. Commw. en banc June 22, 2001) Pellegrini, J. (40 pages), led by Judge Dan Pellegrini, said the Harrisburg School District could continue its suit against the commonwealth asserting three constitutional challenges to the amendment of the act that addresses a school district takeover.

The three challenges asserted by the school district are:

> An alleged violation of Article III, Section 32 of the state Constitution in that the amendment creates a subclass of school districts for special treatment.

> An alleged violation of the 14th Amendment to the federal Constitution, in that the amendment treats a subclass of low-performing school districts differently from similarly situated districts.

> An alleged violation of Article IX, Section 3 of the state Constitution in that the amendment unconstitutionally changes Harrisburg's government. A brief history of the litigation and prior legislation is necessary to understand the current proceedings.
 

Education Empowerment Act

The Education Empowerment Act, which was enacted on May 10, 2000, was designed to put school districts with historically low Pennsylvania System of State Assessment test scores under direction of a "board of control." The school districts would then be placed on an "education empowerment list."

Placement on the list would require the district to form an empowerment team to devise an improvement plan, which would have to be approved by the secretary of education and then implemented by the district's school board.

If the school district failed to meet its plan within three years, the district would be labeled an "education empowerment district" and would remain under the board of control's direction until the plan was met and the district no longer had a history of low test scores. At that point, the board of school directors would regain control.

The Harrisburg School District, however, was treated differently under the "Reed Amendment," included in the now-repealed section of the Empowerment Act. The Reed Amendment defined "certain school districts" as a "school district of the second class with a history of low test performance which is coterminous with the city of the third class which contains the permanent seat of government," which the court noted was specifically directed at the Harrisburg district.

Under that provision, the Harrisburg district was placed under the board of control, skipping the step of the improvement plan. Harrisburg's mayor, rather than the education secretary or school district, was to appoint a five-member board and an education empowerment team.

The Harrisburg School District sued, alleging that the Reed Amendment was unconstitutional. The Commonwealth Court agreed and the Supreme Court affirmed.

Before the final resolution of that suit, the state Legislature enacted Act 91 to amend the language of the Reed Amendment and to repeal that section. The school district filed suit again in the Commonwealth Court's original jurisdiction, claiming Act 91 was also unconstitutional.

The commonwealth filed several preliminary objections, which the Commonwealth Court denied in its June 22 decision.
 

Round Two

The language of the new amendment provides that a school district subject to mayoral control had to have a population in excess of 45,000. The new language also provides that mayoral control could only be exercised if a district has a history of "extraordinarily low test performance" rather than low test scores in general.

The new language also gives the board of control the power to compel the school board to increase taxes.

The district's first charge was that the new language creates special legislation. The commonwealth countered, saying that the amendment complies with the Constitution "because the class of school districts that it creates is not a closed class of one, and the class bears a reasonable relationship to the object of improving the performance of the school districts with the most significant problems."

After examining the Legislature's list of distinctions for placing a school district under immediate placement of the board of control, the court hinted that the language specifically targets the Harrisburg district.

"The number and oddness of the distinctions that mix and match a class of school with a particular subclass of a third class city that itself is a particular subclass of a home rule municipality that is further narrowed by a population classification that itself is a subclass of population classification used to determine classes of city indicates that the object of the legislation was to winnow down the number of school districts so that it would apply to a very, very, very small number," Pellegrini wrote.

The court said the factors appear to be "artificial and irrelevant" to the goal of improving districts with extraordinarily low test scores. The court, therefore, overruled the commonwealth's first objection.

Turning to the equal protection claim, the court said the district asserted that it was singled out and treated differently from other similarly situated school districts and therefore violated the federal Constitution. The court again agreed and overruled the commonwealth's objection.

Next, the court addressed the school district's contention that allowing mayoral control in the school takeover changed the form of government the Harrisburg district had adopted without asking the electors. The commonwealth, however, asserted that the General Assembly has the power to impose powers on any local official to carry out certain state-related actions.

After reviewing the history of the home rule in Pennsylvania, the court said it could not find a rule in the charter law allowing the commonwealth the right to delegate authority to a mayor to appoint a board of control. The court again overruled the commonwealth's objection.

The commonwealth won two of its objections, the first dealing with the taxing issue. The district said allowing the board of control the right to ask the school board to raise taxes was a constitutional violation. The court said, however, that the school board would actually be raising the taxes. Therefore, the court said, there was no unlawful delegation of taxing powers.

The court also disagreed with the district's contention that the institution of the board of control unlawfully transferred the powers of the school board. The court said the board members maintained their offices even while under the supervision of the board of control.

Judge James R. Kelley filed a separate concurring and dissenting opinion and Judge Bonnie Brigance Leadbetter filed a dissenting opinion. Judge Doris A. Smith joined part of the majority opinion and part of Kelley's opinion.

Kelley said he agreed with the majority's result with respect to the first three issues. However, he disagreed with the two objections the majority sustained, which is also the part of the opinion Smith joined.

Kelley said he believed that the board of control's power to ask the school board to raise taxes "clearly runs afoul" of the state Constitution.

Kelley said he also believed that the board of control's power unlawfully took power away from the school board, constituting an "impermissible 'removal from office'" directly in violation of the state Constitution. He said he would have also overruled the last two objections.

In her dissenting opinion, Leadbetter said she would have sustained the objections to the first three counts.

"The challenged provision of the EEA, the Act 91 amendment, provides a specialized remedy for the Harrisburg School District which is specifically tailored both to the educational problems of the district and to the particular form of government of the city and the district," Leadbetter wrote. "It is modeled after programs in other states which have shown promising results and is frankly designated as a pilot program."