Update, Aug. 21: The Oklahoma City Public Schools board unanimously approved a resolution to pursue a lawsuit, or lawsuits, against the state. All board members were present except Carrie Jacobs.

A school funding lawsuit, like the one being considered by the Oklahoma City Public Schools board, threatens to force the state Legislature to find more money for schools — a maneuver attempted in nearly every state with varying degrees of success.

The district announced Thursday its board plans to pursue legal action against the Legislature, and specifically House Speaker Charles McCall, R-Atoka, and Senate Pro Tempore Mike Schulz, R-Altus, due to unfunded legislative mandates, especially items like textbooks. Oklahoma City Public Schools slashed $30 million from its budget in 2016-2017 following state revenue failures.

“We’re at a point where kids can’t take books home because we can’t afford to lose them because they can’t be replaced,” Oklahoma City Public School Board Member Mark Mann said Thursday.

The board has scheduled a special meeting at 5:30 p.m. Monday to vote on whether to pursue a lawsuit.

Here are three things to watch as it proceeds:

1) There’s precedent in Oklahoma law.  Oklahoma has been sued twice over school funding, and both times the state prevailed. That could be the biggest hurdle facing future litigation, legal experts say.

In 1987, the state Supreme Court upheld the system of school funding, finding that state funds do not have to be distributed equally per pupil. In 2007, the state Supreme Court again weighed in after a challenge brought by the Oklahoma Education Association and several school districts, but the court again sided with the state, finding that OEA didn’t have standing to sue.

Both times, the court ruled that school funding distribution is the responsibility of the Legislature and not open to interpretation by the courts. Citizens in some states have returned to the courts years after similar rulings and argued that because the state’s standards have increased, so should funding.

Elizabeth Smith, director of the Yale National Initiative at the University of Tulsa, believes it’s time to try again. For one, there has been significant turnover on the state Supreme Court since 2007, and two, the funding situation is much worse, she wrote in a March 13 column for the Oklahoma Policy Institute, a research and advocacy group.

“We are now further behind in terms of our per student funding and we now see the effects of that,” Smith said Thursday.

After her column was published, she received calls from philanthropists, city leaders and even lawmakers who wanted her perspective on what it would take to launch a successful challenge to state school funding.

“I think it’s been on the minds of leaders in different areas of the state,” she said. “There are many people who work in education who have maybe felt this is our best chance.”

2) Oklahoma’s constitution only requires “free public schools.” Unlike other state constitutions that specify some measure of school quality or equality, Oklahoma’s simply requires the Legislature to “establish and maintain a system of free public schools wherein all the children of the state may be educated.”

But with states’ ever-increasing standards, even the term “education” could be open to legal interpretation, said Molly Hunter, an attorney and expert on school funding litigation at the Education Law Center, an advocacy group in New Jersey.

“If they were bringing a straight funding case, then the decision would be difficult,” she said. “But if they’re looking at the resources needed to meet the state’s own standards, that might fly.”

Also, Oklahoma’s constitution does require the Legislature to provide textbooks “free of cost for use by all pupils.”

3) The lawsuit could be unnecessary if the Legislature responds. Thursday’s announcement seemed like a last resort, following the defeat of a state question in November proposing a one-cent sales tax for education, a 2017 legislative session in which promised teacher raises didn’t pass. But with a special session likely, legislative leadership “has a chance to make this right,” school board member Mann said. “They can raise revenue. They can make our children a priority by properly funding education. Then and only then will our efforts cease.”

But McCall fired back Thursday in a written statement, criticizing the Oklahoma City school district for “poor leadership” and pointing out that the district receives a higher per-pupil amount than the state average.

“I would encourage them to spend their time and money on being better stewards of the dollars they receive instead of filing frivolous lawsuits,” he said.

In light of the efforts in other states, a lawsuit would be difficult and expensive and could take years, so school districts are reluctant to pursue one, said Hunter, of the Education Law Center. Sometimes, the threat of a lawsuit is enough to spur lawmakers to action, she said. In other cases, funding issues are resolved before trial.

Or, it could end up as it did in Kansas, where a legal battle over school funding has been ongoing since 2010. In March, the Kansas Supreme Court ruled that state school funding was unconstitutionally low. Last month, the court heard arguments over litigation by four school districts contending that the funds approved by the legislature remain inadequate and inequitable.

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