There was a new legal twist Monday in the drama over how to fund special-needs services in New Orleans public schools, with a group of parents and their children seeking to intervene in a high-stakes federal lawsuit over how to divvy up millions of state tax dollars.
The parents and students, all of whom are identified as requiring special services, brought their action against both the plaintiffs and the defendants, arguing that neither party is adequately representing their interests.
Without relief from the courts, they argued, funding might continue to be distributed in a way that discriminates against “African-American and Hispanic students, as well as students who live with physical and mental or intellectual disabilities.”
In an ironic shuffling of alliances, they are being represented by Paul Pastorek, a former state superintendent of education who was himself the subject of a lawsuit over special-needs services in New Orleans in 2010.
His involvement essentially puts him on the same side of the issue as the Southern Poverty Law Center, the same outfit that once accused him and other officials of failing to make sure the independent charter schools then beginning to proliferate in New Orleans were adequately serving all students.
In the present case, both are arguing that New Orleans schools need a new funding formula that takes into account how much it actually costs to educate students with disabilities, as well as those who are over-age or learning English for the first time.
Last year, the state passed a law, known as Act 467, which created a committee to come up with a new approach. A group of local school leaders and other officials crafted a tiered formula that steps up funding based on students’ needs.
As spelled out in Act 467, the state Board of Elementary and Secondary Education approved the overall framework recommended by the group. But BESE stopped short of spelling out how many extra dollars would be assigned to each type of student, worried that doing so would attract a lawsuit on the grounds that BESE is constitutionally barred from interfering in the budgetary decisions of a local school district.
That left it up to local officials to finally approve the totals. But there was legal confusion as to how they should go about it. Ultimately, the Orleans Parish School Board voted on a resolution affirming that its superintendent, Henderson Lewis Jr., had authority to implement the formula.
Then, last month, two of the city’s selective-admission magnet schools filed suit against both the OPSB and Lewis. Lusher Charter School and Lake Forest Charter Elementary School both stand to lose funding under the new arrangement; they enroll relatively few students with disabilities and would lose some of the funding they receive for students designated as “gifted and talented.”
Their suit claims the board’s vote ran afoul of their charter contracts. Nearly all public schools in New Orleans are now charter schools, operating under detailed legal agreements. Lusher and Lake Forest say their contracts call for them to be funded according to the state’s Minimum Foundation Program, a formula adopted each year by BESE.
Lewis and the board have yet to file a response to that suit. Last week, U.S. District Judge Jane Triche Milazzo granted them an extension until May 2.
The motion filed by Pastorek faults both sides — Lake Forest and Lusher for opposing the new formula, and the OPSB for failing to explicitly adopt it.
The motion argues that the board cannot legally shift responsibility for the decision to Lewis.
It also opposes a plan proposed by the original committee to cap any losses that a school might face under the new formula at 2 percent of its current funding, because that would likely mean less money for the schools that stand to gain.
Since the OPSB “still has not officially adopted a policy, much less the policy provided for in Act 467,” the motion says, families with disabled students are “unable to make an informed decision about which schools will be fairly funded.”
The motion also brings the issue of race into the funding battle for the first time, pointing out that schools in New Orleans with the most special-needs students also tend to have the biggest populations of black and Hispanic pupils. It argues that all students tend to suffer at schools that aren’t getting enough funding for special-needs services, so the “burden of bearing those costs falls more heavily on African-American and Hispanic students than on other students.”
James Brown, an attorney for Lusher and Lake Forest, said his camp hadn’t determined how it will respond to the motion. Not surprisingly, Brown said he agreed with the motion’s objection to the idea of leaving the formula’s particulars to the superintendent, rather than having it explicitly approved by either the state or local board.
But he objected to the idea that a new formula was necessary to bring about a fair arrangement or that the existing scheme somehow hurt black or Hispanic students. Brown said about 60 percent of the city’s gifted and talented students are black. “In our view, this proposed formula would adversely impact predominantly African-American students,” he said.
The OPSB released a statement reiterating that the board’s vote last month authorized Lewis to implement the new formula. The board also provided a letter that Lewis sent BESE after the vote confirming that he would be implementing the formula as it was drawn up by the local committee, including the 2 percent cap on any school’s drop in funding.
“This district-level computation ensures that dollars follow students according to their needs in an equitable way,” the letter says.