William Penn: Will State Officials Appeal Judge Jubelirer's Opinion?


The short answer is not yet.  Representative Cutler and Senator Ward have filed joint, post trial motions for relief.  ​On February 17, two members of the Pennsylvania General Assembly asked Judge Jubelirer to reverse her decision based upon alleged errors and to rule in their favor.

Senator Kim Ward, current President Pro Tempore of the Pennsylvania Senate (Senator Ward) and Representative Bryan Cutler, current Leader of the Republican Caucus of the Pennsylvania House of Representatives and former Speaker of the House (Representative Cutler) filed a 55 page motion asserting several mistakes occurred during trial that require a different result. Please follow the underlined link to see the entire Motion posted on the Commonwealth Court's website.

Several school districts, parents of students, students and two non-profit organizations (Petitioners) filed this lawsuit in 2014.

Senator Ward and Representative Cutler (Respondents) identified the standard of review to be applied.  They must prove Judge Jubelirer (the Court) made "a manifest abuse of discretion or a clear error of law.”  Motion Paragraph 2.  

Their arguments fall into eight categories:  

General Legal Defenses

The Court erred in concluding that Petitioners did not sue the wrong parties
by failing to sue the General Assembly. Opinion at 612-616. The Court erred, in particular, in concluding that the President Pro Tempore and Speaker are the “designees” of the General Assembly. Id. at 612. The President Pro Tempore and Speaker are not the sum total of the General Assembly and therefore not capable of binding it to take any action. The President Pro Tempore cannot bind the Senate, and a judicial ruling against her cannot be enforced against that body, or the General Assembly. The Speaker is no different vis-à-vis the House. These two legislators cannot enact legislation. They did not enact the legislation that Petitioners are challenging in this matter. An official capacity lawsuit against them, like this one,
is therefore not an official capacity lawsuit against the General Assembly. Because Petitioners are seeking relief from an entity that is not a party to this case, the Court should enter a judgment in favor of Legislative Respondents. 

Emphasis added.  Motion Paragraph 8

Education Clause: Legal Analysis

In construing the Education Clause, the Court erred in concluding that “the
appropriate measure is whether every student is receiving a meaningful
opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education.” Opinion at 634 (emphasis in original). The standard is not a judicially manageable one because, among other things, it effectively replaces the Education Clause’s non-descript words with words that are even more nebulous, such as “contemporary.” There is no discernible, objective standard that can be used to determine if an education is “contemporary” (or how often an education should be evaluated in this way). Nor is there any discernible, objective standard for determining whether a student is “succeed[ing] academically, socially, and civically,” or been given an opportunity to do so, which are variables that necessarily change from student to student.....

Emphasis added. Motion Paragraph 22

Education Clause: Standard of Review

The Court erred in its application of the Supreme Court’s statement in William
Penn II that the General Assembly’s obligations under the Education Clause should not “jostle on equal terms with non-constitutional considerations that the people deemed unworthy of embodying in their Constitution.” Opinion at 770, n. 124. The General Assembly’s duty to appropriate funds to serve all of the needs of the Commonwealth is itself derived from the Constitution. Accordingly, the General Assembly has a compelling interest in adopting fiscal and budgetary policy that serves all of Pennsylvania’s needs, including an interest in funding all of the important Commonwealth priorities and accomplishing other essential fiscal objectives like minimizing the tax burden on citizens. 

 Emphasis added. Motion Paragraph 32

Education Clause: Inputs

In applying the Education Clause, the Court erred in determining that “the
Costing Out Study, the subsequent calculation of adequacy targets and shortfalls, the BEF Commission, the Fair Funding Formula, and the Level Up Formula, all credibly establish the existence of inadequate education funding in low wealth districts like Petitioners[.]” Opinion at 678. The Court failed to explain how these things show that education funding falls below a constitutional floor in low wealth school districts versus showing that, at particular times and under particular circumstances, the General Assembly opted to give those districts additional funding because it determined that their students would benefit from additional or enhanced “inputs.”

 Emphasis added.  Motion Pargraph 34

The Court erred by improperly addressing the following items in assessing the
constitutionality of Pennsylvania’s system of school funding:
​a. The percentages of students who were enrolled in certain courses, such
​as AP, art, or music classes; the manner in which courses are taught;
​whether courses should have prerequisites or enrollment caps; school
​scheduling; and the availability of curriculum writers, see Opinion at
​b. The availability of pre-K programs and enrollment in those programs,
​see Opinion at 687-689;
​c. Intervention and after-school programs, and the availability of those
​programs, see Opinion at 685-687;
​d. The variety and availability of certain sports and other extracurricular
​programs, and whether students may need to pay to participate in those
​programs, see Opinion at 689-690;
​e. Teacher turnover and credentials, see Opinion at 690-91;
​f. Class sizes, see Opinion at 691-694;
​g. The expertise and number of support personnel; see Opinion at 694-
​697; and
​h. The specific characteristics of facilities and instrumentalities of
​learning, such as the types of tables that are available to use for science
​labs, see Opinion at 698-707.
The Court’s approach caused it to make the types of policy choices that ​judges are ​ill-suited to make.

 Emphasis added. Motion Paragraph 45

Education Clause: Outputs

The Court erred in concluding that, in determining whether Pennsylvania’s
school funding system violates the Education Clause, there must be “an examination, not just of the inputs, but also the outcomes. Otherwise, there would be no way to gauge the adequacy of the system, and whether it is working to provide the opportunity to succeed to all students.” Opinion at 707. The Education Clause does not require the General Assembly to ensure a certain level of student outcomes, and there is no manageable way to use outcome data in this context (without picking which outcome measures and goals to use, which is something that necessarily involves making policy judgments). 

Emphasis added. Motion Paragraph 56

​Equal Protection Clause

In applying equal protection principles, the Court erred in concluding that
Pennsylvania’s school financing system does not promote local control. Opinion at 770-73. In reaching this conclusion, the Court failed to address that the financing system is designed to promote and encourage the involvement of communities and families in the public education system (by, for example, enabling them to be more effective in monitoring how their local taxes are being allocated and more effective in influencing the spending decisions of school districts). PPT Post-Trial Brief at 106-08; Speaker’s Brief at 88-92. To the extent that Pennsylvania’s school financing arrangement relies on locally based taxing and spending, it unquestionably fosters these dynamics and is therefore reasonably related to serving a legitimate state interest. The Court erred in concluding otherwise.

Emphasis added.  Motion Paragraph 98

Findings of Fact/Evidentiary Rulings

The Court erred in finding that “Lancaster’s 20 Student and Family Resource
Specialists, who are social workers, have a caseload of 500-600 students each, and its 11 psychologists carry caseloads of around 1,000 students each.” Opinion at 695 (citing FOF 857, 859). The evidence shows that, as opposed to “caseloads,” Lancaster has 500-600 students per social worker and 1,000 students per psychologist. Tr. at 5412-5415; 5418. The evidence does not show how many of those students need the services of a social worker or psychologist, respectively.

Emphasis added.  Motion Paragraph 108

Next Steps

Judge Jubelirer has ordered the Petitioners and Respondents to file briefs for and against the Motion.  Briefs are written arguments concerning the argument raised by Senator Ward and Representative Cutler.

Briefs from both sides will be filed by May 1, 2022.  Oral arguments, in person, will be held in the Commonwealth Court's Harrisburg courtroom on May 22, 2023.

My opinion

As a former classroom teacher, I knew the school social workers, if they took their jobs seriously, were overworked.  

As a former litigator, attorneys are to have a "good faith" argument when they address the Court.  I wouldn't have been able to make this last argument regarding the Findings of Fact lacking evidence of student need for social workers or psychologists lacks credibility and integrity on behalf of the attorneys who filed it.

I'm anxious to possibly listen to May's  oral arguments.


For Senator Ward, this Motion was written by Anthony R. Holtzman , Thomas R. DeCesar and Jonathan R. Vaitl of K&L Gates LLP of Harrisburg.  

For Representative Cutler, this Motion was written by  Patrick M. Northen and David A. Rodkey of Dilworth Paxson LLP in Philadelphia.

Sign in to leave a comment