                          Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                           NEWS RELEASE #012


FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 13th day of March, 2018, are as follows:

BY GENOVESE, J.:


2017-C-0257        IBERVILLE PARISH SCHOOL BOARD v. LOUISIANA STATE BOARD OF
    C/W            ELEMENTARY AND SECONDARY EDUCATION AND THE STATE OF LOUISIANA
2017-C-0633        THROUGH THE STATE DEPARTMENT OF EDUCATION          C/W     LOUISIANA
2017-C-0634        ASSOCIATION   OF  EDUCATORS,   CADDO   ASSOCIATION   OF   EDUCATORS,
                   CALCASIEU ASSOCIATION OF EDUCATORS, INC., CONCORDIA ASSOCIATION
                   OF EDUCATORS, THE EAST     BATON ROUGE ASSOCIATION OF EDUCATORS,
                   LAFAYETTE PARISH ASSOCIATION OF EDUCATORS, MADISON ASSOCIATION OF
                   EDUCATORS,   MONROE   ASSOCIATION    OF   EDUCATORS,    ST.   LANDRY
                   ASSOCIATION OF EDUCATORS, ST. MARY ASSOCIATION OF EDUCATORS, ANN
                   BURRUSS, REV. OSCAR HAMILTON, DEBORAH HARGRAVE, MELINDA WALLER
                   MANGHAM AND THOMAS TATE     v. STATE OF LOUISIANA, THE LOUISIANA
                   STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION AND THE STATE
                   OF LOUISIANA THROUGH THE DEPARTMENT OF EDUCATION (Parish of E.
                   Baton Rouge)

                   After de novo review, we find La. Const. art. VIII, § 13, does
                   not prohibit the allocation of state or local MFP funding to New
                   Type   2  charter   schools.  Accordingly,   the  declaration of
                   unconstitutionality from the court of appeal is reversed.

                   REVERSED.

                   JOHNSON, C.J., dissents and assigns reasons.
                   WEIMER, J., concurs and assigns reasons.
                   HUGHES, J., dissents with reasons.
03/13/18

                     SUPREME COURT OF LOUISIANA

                                No. 2017-C-0257

                           CONSOLIDATED WITH

                                No. 2017-C-0633

                           CONSOLIDATED WITH

                                No. 2017-C-0634

           IBERVILLE PARISH SCHOOL BOARD VERSUS
         LOUISIANA STATE BOARD OF ELEMENTARY AND
      SECONDARY EDUCATION AND THE STATE OF LOUISIANA
        THROUGH THE STATE DEPARTMENT OF EDUCATION

                           CONSOLIDATED WITH

 LOUISIANA ASSOCIATION OF EDUCATORS, CADDO ASSOCIATION
 OF EDUCATORS, CALCASIEU ASSOCIATION OF EDUCATORS, INC.,
  CONCORDIA ASSOCIATION OF EDUCATORS, THE EAST BATON
   ROUGE ASSOCIATION OF EDUCATORS, LAFAYETTE PARISH
    ASSOCIATION OF EDUCATORS, MADISON ASSOCIATION OF
EDUCATORS, MONROE ASSOCIATION OF EDUCATORS, ST. LANDRY
    ASSOCIATION OF EDUCATORS, ST. MARY ASSOCIATION OF
 EDUCATORS, ANN BURRUSS, REV. OSCAR HAMILTON, DEBORAH
  HARGRAVE, MELINDA WALLER MANGHAM AND THOMAS TATE
 VERSUS STATE OF LOUISIANA, THE LOUISIANA STATE BOARD OF
 ELEMENTARY AND SECONDARY EDUCATION AND THE STATE OF
    LOUISIANA THROUGH THE DEPARTMENT OF EDUCATION

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
         FIRST CIRCUIT, PARISH OF EAST BATON ROUGE


GENOVESE, Justice

      We are called upon to determine whether the lower court erred in declaring

unconstitutional certain provisions of Senate Concurrent Resolution No. 55 of 2014,

which applies the formula contained in La.R.S. 17:3995 and allocates Minimum

Foundation Program (“MFP”) funding to New Type 2 charter schools.               In

accordance with our legally-mandated de novo review, we find the court of appeal

erred in declaring the constitution prohibits the payment of MFP funds to New Type
2 charter schools. Thus, the appellate court’s declaration of unconstitutionality is

reversed.

                     FACTS AND PROCEDURAL BACKGROUND

         In the 2014 regular session, the Louisiana Legislature passed Act 15, a general

appropriations bill for the 2014-2015 fiscal year which contained Senate Concurrent

Resolution No. 55 (“SCR 55”). SCR 55 is the vehicle by which the legislature

approved the 2014-2015 MFP formula adopted by the Louisiana Board of

Elementary and Secondary Education (“BESE”) as required by La. Const. art. VIII,

§ 13(B), which dictates that BESE “annually develop and adopt a formula which

shall be used to determine the cost of a minimum foundation program of education

in all public elementary and secondary schools.”

         The MFP is Louisiana’s principal source for funding public elementary and

secondary education. The formula developed and adopted by BESE takes into

consideration the number of students in each school district and the special

characteristics of those students. Presently, once a school system receives its MFP

allocation from the state, individual charter schools are allocated their share of those

funds pursuant to La.R.S. 17:3995.1


1
    Louisiana Revised Statutes 17:3995 provides, in pertinent part:

         A. (1) For the purpose of funding . . . Type 2 charter schools . . . acting as its own
         local education agency shall receive a per pupil amount each year authorized by the
         state board each year as provided in the approved minimum foundation program
         formula. The per pupil amount provided to a Type 1, 2, 3, 3B, or 4 charter school
         shall be computed annually and shall be equal to the per pupil amount provided
         through the minimum foundation program formula, determined by the allocation
         weights in the formula based upon student characteristics or needs, received by the
         school district in which the student resides from the following sources based on the
         district’s membership count used in the minimum foundation program formula:

                 (a) The state-funded per pupil allocation, based upon the weighted
                 student membership count, received by the district pursuant to the
                 most recent legislatively approved minimum foundation program
                 formula, including all levels and allocation weights based upon
                 student characteristics or needs as provided in the formula except
                 any supplementary allocations for specific purposes. Supplementary
                 allocations for specific purposes shall be provided to charter schools
                                                    2
       The plaintiffs, Iberville Parish School Board (“IPSB”) and the Louisiana
                                             2
Association of Educators (“LAE”),                each filed petitions for injunctive and

declaratory relief, naming as defendants BESE and the State of Louisiana through

the Department of Education (“Department”). 3 The suits were consolidated.

       The plaintiffs challenged the constitutionality of SCR 55(II)(B) and also

sought preliminary and permanent injunctive relief. The plaintiffs alleged SCR

55(II)(B) is an unconstitutional diversion of MFP funds, pursuant to La. Const. art.

VIII, § 13(B), which requires the state to annually develop and adopt a formula to

determine a minimum foundation program of education in public elementary and

secondary schools, and to equitably allocate the funds to parish and city school

systems. The plaintiffs asserted SCR 55(II)(B) unconstitutionally allocated MFP

funds that are constitutionally allocated to parish and city school systems to new

charter schools outside the parish or city school system, i.e., New Type 2 charter

schools. Additionally, the plaintiffs contended SCR 55(II)(B) unconstitutionally

diverts the local portion of the per-pupil amount mandated in the MFP. IPSB, not


               based solely on the funds generated by the charter school within
               each specific allocation.

               (b)(i) Local revenues received during the prior year by the school
               district from the following sources:
                        (aa) Sales and use taxes, less any tax collection fee
                        paid by the school district.

                      bb) Ad valorem taxes, less any tax collection fee paid
                      by the school district.

                      (cc) Earnings from sixteenth section lands owned by
                      the school district.

2
 LAE was joined by nine local affiliates and five private taxpayers—all are listed in the caption.
Unless otherwise noted, this opinion refers to all parties so aligned as plaintiffs.

3
  Later intervening in the district court as parties aligned with BESE and the Department were the
following charter schools: Community School for Apprenticeship Learning, Inc. d/b/a Madison
Preparatory Academy; Lake Charles Charter Academy Foundation, Inc.; International School of
Louisiana; New Orleans Military and Maritime Academy, Inc.; Delta Charter Group; Delhi
Charter School; Glencoe Education Foundation, Inc. d/b/a V.B. Glencoe Charter School; and
Louisiana Association of Public Charter Schools. Unless otherwise noted, this opinion refers to
all parties so aligned as defendants.
                                                    3
LAE, also sought damages for all MFP funds which defendants allegedly unlawfully

diverted from IPSB to New Type 2 charter schools.

       SCR 55 dictates that MFP funds shall be paid to New Type 2 charter schools.

The provisions of SCR 55 to which the plaintiffs object state, in pertinent part:

       II.    FORMULA CALCULATIONS FOR STATE-APPROVED
              PUBLIC SCHOOLS

              ....

              B.     NEW TYPE 2 CHARTER SCHOOLS

             A New Type 2 [c]harter school is a Type 2 [c]harter school[4]
       approved after July 1, 2008 by the State Board of Elementary and
       Secondary Education.

              1. State Cost Allocation.

             a. Any New Type 2 [c]harter [s]chool shall annually be provided
       a State Cost Allocation as determined by the formula contained in
       R.S. 7:3995.

             b. The State Cost Allocation equals the number of students
       multiplied by the average State Cost Allocation Per Pupil for the system
       in which the student resides.

              c. Mid-Year Adjustments shall adhere to the guidelines
       established in this document.

              2. Local Cost Allocation.

             a. Any New Type 2 [c]harter school shall annually be provided a
       Local Cost Allocation by applying the formula contained in
       R.S. 17:3995.

             b. The Local Cost Allocation equals the number of students
       multiplied by the Local Cost Allocation Per Pupil for the system in
       which the student resides.

              c. One exception to R.S. 17:3995 is that the Local Cost allocation
       will be funded with a transfer of the MFP monthly amount representing
       the Local Cost Allocation from the city or parish school system in
       which the attending students reside.


4
  A Type 2 charter school is defined by La.R.S. 17:3973(2)(b)(ii), in pertinent part, as “a new
school or a preexisting public school converted and operated as the result of and pursuant to a
charter between the nonprofit corporation created to operate the school and the State Board of
Elementary and Secondary Education.”
                                               4
             d. The city or parish where students attending the New Type 2
      [c]harter school reside is the local taxing authority and shall provide the
      local support for the students.

             e. Mid-Year Adjustments will adhere to the guidelines
      established in this document.

             ....

            4. Where student attendance is from multiple school systems,
      the Department of Education shall determine the Local Cost Allocation
      based on students reported by the schools. The student membership
      count of the New Type 2 charter schools shall be included in the
      membership count of the city or parish school board in which the
      student resides to determine the Local Cost Allocation.

             5. In the first year of operation, a New Type 2 [c]harter school
      shall be allocated funding based on an estimated student count since a
      February 1 student count does not exist. The allocation will be finalized
      based on the October 1 student count.

             6. The exclusion of any portion of local revenues specifically
      dedicated by the legislature or by voter approval to capital outlay or
      debt service shall be applicable only to a charter school housed in a
      facility or facilities provided by the district in which the charter school
      is located.

SCR 55(II)(B).

      After a three-day trial, the district court entered a judgment in favor of

defendants, dismissing plaintiffs’ claims. In oral reasons, the district court ruled that

SCR 55(II)(B) does not violate the constitution. The district court first determined

that Type 2 charter schools are public schools, noting “all parties agree that the Type

2 charter schools are public schools, are public entities.” Next, the district court

considered whether or not the funds through the MFP go to New Type 2 charter

schools, as defendants contend, or if the constitution says the funds through the MFP

go only to the city and parish school systems, as plaintiffs assert. The district court

rejected plaintiffs’ assertion, focusing on the word “public” in La. Const. art. VIII,

§ 13(B). The district court found the MFP formula adopted by BESE does not

violate La. Const. art. VIII, § 13(B), because charter schools are public schools, and


                                           5
as such, BESE is required to “annually develop and adopt a formula which shall be

used to determine the cost of a minimum foundation program of education in all

public elementary and secondary schools as well as to equitably allocate the funds

to parish and city school systems.” La. Const. art. VIII, § 13(B) (emphasis added).

In addition, the district court rejected the plaintiffs’ contention that SCR 55(II)(B)

unconstitutionally diverts the local portion of the per-pupil amount mandated in the

MFP.

       The court of appeal reversed the district court, declaring unconstitutional the

diversion of MFP funds to New Type 2 charter schools pursuant to SCR 55(II)(B).

A majority of a five-judge panel found that SCR 55(II)(B) unconstitutionally diverts

MFP funds constitutionally mandated to be allocated to parish and city school

systems to new charter schools outside the parish or city school system, in violation

of La. Const. art. VIII, § 13(B). 5 Relying largely on Louisiana Federation of

Teachers v. State of Louisiana, 13-0120, 13-0232, 13-0350 (La. 5/7/13), 118 So.3d

1033, the majority concluded that “New Type 2 charter schools are not public

schools in the sense of the Louisiana Constitution.” Iberville Par. Sch. Bd. v. La.

State Bd. of Elementary & Secondary Educ., 15-1416, 15-1417, p. 10 (La.App. 1

Cir. 1/9/17), 2017 WL 90541 (unpub’d). The majority remanded IPSB’s damage

claim to the district court.

       Two judges dissented, finding “no exceptions in the language of the

constitution that provide that public schools that are not part of the parish or city

school systems are somehow different from other public schools or that they should

be funded differently.” Id. at 14. The dissenting judges would, however, have




5
 The record indicates this matter was briefed and argued once before a three-judge panel and twice
before a five-judge panel before an opinion was eventually rendered.

                                                6
required a remand for further examination of the local tax dedications that provide

revenue support for the parish school system. 6

       The defendants filed two identical writ applications (2017-C-0257 and

2017-C-0633), 7 seeking reversal of the court of appeal’s judgment which declared

that New Type 2 charter schools are not public schools, and that the methodology in

SCR 55(II)(B), applying the formula in La.R.S. 17:3995, which provides MFP

funding to New Type 2 charter schools, is unconstitutional. IPSB filed a writ

application (2017-C-0634), seeking a determination that damages should have been

awarded for the unconstitutional diversion of MFP funds to New Type 2 charter

schools.8 We granted writs pursuant to our appellate jurisdiction, see La. Const. art.

V, § 5(D), to review the appellate court’s declaration of unconstitutionality. 9

LaPointe v. Vermilion Par. Sch. Bd., 15-0432, p. 5 (La. 6/30/15), 173 So.3d 1152,

1157; World Trade Ctr. Taxing Dist. v. All Taxpayers, Prop. Owners, 05-0374, p. 1

(La. 6/29/05), 908 So.2d 623, 626.

                                         DISCUSSION

       At the forefront of our review is Article VIII of the Louisiana Constitution of

1974, entitled “Education,” which contains the substantive provisions regarding the

state’s obligations to the public educational system. Under La. Const. art. VIII, § 1,

the legislature is required to “provide for the education of the people of the state and


6
  The plaintiffs urge it is implicit in the decision to remand that defendants use of the MFP to seize
IPSB’s dedicated tax revenue and transfer it to New Type 2 charter schools is unconstitutional.

7
  The second (2017-C-0633) was filed to foreclose any question of timeliness as the first
(2017-C-0257) was filed before the appellate court denied rehearing.

8
  IPSB asserts herein that the appellate court erred in opining that evidence and argument offered
during trial was limited to declaratory and injunctive relief. See Iberville Par. Sch. Bd., 15-1416
at p. 6, n. 5.

9
  This court granted and consolidated the applications in order to expeditiously resolve all of the
issues presented. Iberville Par. Sch. Bd. v. La. State Bd. of Elementary & Secondary Educ.,
17-0257 (La. 5/12/17), 220 So.3d 745, and Iberville Par. Sch. Bd. v. La. State Bd. of Elementary
& Secondary Educ., 17-0633, 17-0634 (La. 6/5/17), 219 So.3d 1110.
                                                7
shall establish and maintain a public educational system.” The requirement to fund

public elementary and secondary education is set forth in La. Const. art. VIII, § 13.

Under La. Const. art. VIII, § 13(A), the legislature “shall appropriate funds to supply

free school books and other materials of instruction prescribed by [BESE] to the

children of this state at the elementary and secondary levels.” The legislature is also

required under La. Const. Art. VIII, § 13(B), to “fully fund the current cost to the

state” of a “minimum foundation program of education in all public elementary and

secondary schools[,]” and the “funds appropriated shall be equitably allocated to

parish and city school systems[.]”

         The plaintiffs argue that MFP funds cannot be diverted to New Type 2 charter

schools because La. Const. art. VIII, § 13(B), restricts MFP funds to “parish and city

school systems.” The defendants contend the plaintiffs failed in their burden to

prove clearly and convincingly that the constitution imposes substantive limits or

requirements on how the MFP is to be developed or implemented. Defendants argue

what is clear is that La. Const. art. VIII, § 13 (B), requires the state to fund New

Type 2 charter schools because they are public schools.

                        Constitutional Interpretation Principles

         The constitutionality of legislation is a legal question, which is reviewed by

this court de novo. La. Mun. Ass’n v. State, 04-0227, p. 45 (La. 1/19/05), 893 So.2d

809, 842 (citing Cleco Evangeline v. La. Tax Comm’n, 01-2162, p. 3 (La. 4/3/02),

813 So.2d 351, 353). In our de novo review, we are mindful that certain principles

apply.     There is a presumption that legislative instruments are constitutional;

therefore, the party challenging its validity has the burden of proving its

unconstitutionality. La. Fed’n of Teachers, 13-1020 at p. 21, 118 So.3d at 1048

(citing State v. Citizen, 04-1841, p. 11 (La. 4/1/05), 898 So.2d 325, 334; Louisiana

Mun. Ass’n, 04-0227 at p. 45, 893 So.2d at 842; Bd. of Comm’rs of N. Lafourche

                                            8
Conservation, Levee & Drainage Dist. v. Bd. of Comm’rs of Atchafalaya Basin

Levee Dist., 95-1353, p. 3 (La. 1/16/96), 666 So.2d 636, 639).

      The provisions of the Louisiana Constitution are not grants of power; instead,

they are limitations on the otherwise plenary power of the people exercised through

the legislature. La. Fed’n of Teachers, 13-0120 at p. 21, 118 So.3d at 1048 (citing

La. Mun. Assoc., 04-0227 at p. 45, 893 So.2d at 842; Bd. of Comm’rs of N. Lafourche

Conservation, Levee & Drainage Dist., 95-1353 at p. 3, 666 So.2d at 639). The

Louisiana Legislature, whom the people elect, may enact any legislation that the

constitution does not prohibit. World Trade Ctr. Taxing Dist., 05-0374 at p. 11, 908

So.2d at 632 (citing Polk v. Edwards, 626 So.2d 1128, 1132 (La.1993)). In order to

hold legislation invalid under the constitution, it is necessary to rely on some

particular constitutional provision that limits the power of the legislature. World

Trade Ctr. Taxing Dist., 05-0374 at p. 11, 908 So.2d at 632 (citing Polk, 626 So.2d

at 1132; In re Am. Waste & Pollution Control Co., 588 So.2d 376 (La.1991); Bd. of

Dirs. of La. Recovery Dist. v. All Taxpayers, Prop. Owners, 529 So.2d 384

(La.1988)). In that context, the party challenging the constitutionality of legislation

must cite to the specific provision of the constitution that would prohibit the

enactment of the legislation and must demonstrate clearly and convincingly that it

was the constitutional aim of that provision to deny the legislature the power to enact

the legislation in question. La. Fed’n of Teachers, 13-0120 at p. 21, 118 So.3d at

1048 (citing World Trade Ctr. Taxing Dist., 05-0374 at p. 11, 908 So.2d at 632;

Caddo-Shreveport Sales & Use Tax Comm’n v. Office of Motor Vehicles Dep’t of

Pub. Safety & Corrs., 97-2233, pp. 5-6 (La. 4/14/98), 710 So.2d 776, 779; Polk, 626

So.2d at 1132).

      Because there is a presumption that the legislature acts within its

constitutional authority, we must construe legislative instruments so as to uphold

                                          9
constitutionality when it is reasonable to do so. La. Fed’n of Teachers, 13-0120 at

p. 22, 118 So.3d at 1048 (citing State v. Fleury, 01-0871, p. 5 (La. 10/16/01), 799

So.2d 468, 472; Moore v. Roemer, 567 So.2d 75, 78 (La.1990)). Stated differently,

if a legislative instrument is susceptible to two constructions, one of which would

render it unconstitutional or raise grave constitutional questions, the court will adopt

the interpretation of the legislative instrument which, without doing violence to its

language, will maintain its constitutionality. La. Fed’n of Teachers, 13-0120 at

p. 22, 118 So.3d at 1048 (citing Hondroulis v. Schuhmacher, 553 So.2d 398, 416-17

(La.1988)). Nevertheless, the constitution is the supreme law of this state to which

all legislative instruments must yield. La. Fed’n of Teachers, 13-0120 at p. 22, 118

So.3d at 1048 (citing World Trade Ctr. Taxing Dist., 05-0374 at p. 12, 908 So.2d at

632; Caddo-Shreveport Sales & Use Tax Comm’n, 97-2233 at p. 6, 710 So.2d at

780). When a legislative instrument conflicts with a constitutional provision, the

legislative instrument must fall. La. Fed’n of Teachers, 13-0120 at p. 22, 118 So.3d

at 1048 (citing Caddo-Shreveport Sales & Use Tax Comm’n, 97-2233 at p. 6, 710

So.2d at 780).

                              Diversion of MFP Funds

      There is no dispute that New Type 2 charter schools receive both a

state-funded allocation and a local-revenue allocation via SCR 55(II)(B). The issue

on appeal is whether SCR 55(II)(B) unconstitutionally diverts these state and local

funds. Thus, we must first address whether New Type 2 charter schools are public

schools. If New Type 2 charter schools are public schools, then we must address the

use of local funds to support New Type 2 charter schools. Louisiana Constitution

Article VIII, § 13(B), which establishes the MFP, specifies:

      (B) Minimum Foundation Program. The State Board of Elementary
      and Secondary Education, or its successor, shall annually develop and
      adopt a formula which shall be used to determine the cost of a minimum

                                          10
      foundation program of education in all public elementary and
      secondary schools as well as to equitably allocate the funds to parish
      and city school systems. Such formula shall provide for a contribution
      by every city and parish school system. Prior to approval of the formula
      by the legislature, the legislature may return the formula adopted by the
      board to the board and may recommend to the board an amended
      formula for consideration by the board and submission to the legislature
      for approval. The legislature shall annually appropriate funds sufficient
      to fully fund the current cost to the state of such a program as
      determined by applying the approved formula in order to insure a
      minimum foundation of education in all public elementary and
      secondary schools. Neither the governor nor the legislature may reduce
      such appropriation, except that the governor may reduce such
      appropriation using means provided in the act containing the
      appropriation provided that any such reduction is consented to in
      writing by two-thirds of the elected members of each house of the
      legislature. The funds appropriated shall be equitably allocated to
      parish and city school systems according to the formula as adopted by
      the State Board of Elementary and Secondary Education, or its
      successor, and approved by the legislature prior to making the
      appropriation. Whenever the legislature fails to approve the formula
      most recently adopted by the board, or its successor, the last formula
      adopted by the board, or its successor, and approved by the legislature
      shall be used for the determination of the cost of the minimum
      foundation program and for the allocation of funds appropriated.

      Plaintiffs posit that La. Const. art. VIII, § 13(B), mandates BESE “shall

annually develop and adopt a formula . . . to determine the cost of a minimum

foundation program of education in all public elementary and secondary schools as

well as to equitably allocate the funds to parish and city school systems[;]” thus,

there is no discretion—BESE shall give MFP funds only to parish or city school

systems. However, despite the restriction of La. Const. art. VIII, § 13(B), that MFP

funds be allocated only to parish or city school systems, plaintiffs argue

SCR 55(II)(B) unconstitutionally allocates an MFP local share and an MFP state

share to New Type 2 charter schools. Plaintiffs assert that our holding in Louisiana

Federation of Teachers squarely supports their position.

      Defendants contend that La. Const. art. VIII, § 13(B), imposes no substantive

limits or requirements on how the MFP is to be developed or implemented. The

constitution explicitly mandates funding of public schools, vesting BESE with the

                                         11
sole authority and discretion to develop the funding formula, after which the

legislature may either approve the formula or recommend amendments to the

formula for BESE’s consideration. The defendants frame the issue as being the

state’s funding of Louisiana public schools not under the jurisdiction of a parish or

city school board. The defendants argue that while the court of appeal’s judgment

specifically applies to only one category of schools, i.e., New Type 2 charter schools,

its rationale would cut off state funding to all public schools that are not under the

jurisdiction of a parish or city school board.

      The primary basis for the appellate court’s declaration of unconstitutionality

is its definition of a “public school,” which it equates to being synonymous with the

phrase “city and parish school systems.” The appellate majority relied largely on

this court’s holding that the diversion of MFP funds from public schools to

nonpublic schools violates La. Const. art. VIII, § 13(B). See La. Fed’n of Teachers,

118 So.3d 1033. In the present matter, the appellate majority opined:

            According to SCR 55, the definition of city, parish, or local
      public school systems and schools shall include:

             city or parish school systems, Recovery School District
             including operated and Type 5 charter schools, Louisiana
             School for Math, Science, and the Arts (LSMSA), New
             Orleans Center for Creative Arts (NOCCA), New Type 2
             [c]harter schools, Legacy Type 2 [c]harter schools, Office
             of Juvenile Justice (OJJ) schools, and Louisiana State
             University and Southern University Lab schools.

      Thus, by its own terms, SCR 55 distinguishes, among others, New Type
      2 charter schools from city or parish school systems.

             ....

            . . . SCR 55, by its own terms, defines parish and city school
      systems as unique elements separate and apart from New Type 2 charter
      schools. Further, New Type 2 charter schools are not public schools in
      the sense of the Louisiana Constitution. The court in Louisiana
      Federation of Teachers recognized that “[n]onpublic schools are not
      owned or operated by ‘parish and city school systems.’” Louisiana
      Federation of Teachers, 118 So.3d at 1055. The case distinguishes

                                          12
      between “public schools” and “nonpublic schools” and concludes that
      MFP funds cannot be diverted to nonpublic schools. See Louisiana
      Federation of Teachers, 118 So.3d at 1055. So, while the New Type 2
      charter schools may be subject to the same requirements as public
      schools and may not necessarily be considered “private” schools, they
      clearly do not meet the constitutional definition of “public schools” and,
      therefore, are not entitled to MFP funding.

Iberville Par. Sch. Bd., 15-1416 at pp. 8-10 (emphasis added). The dissent opined

that while the constitution does not define “public schools,” the constitution is clear

that “all public schools are to be funded regardless of whether or not they are part of

a city or parish school system.” Id. at p. 2 (dissent). The minority poignantly noted

that both Louisiana State University and Southern University Lab schools existed

when this constitutional provision was enacted; neither are part of a city or parish

school system; and both are public schools. Id.

      It bears noting that the plaintiffs in Louisiana Federation of Teachers, 118

So.3d 1033, urged that La. Const. art. VIII, § 13(B), restricts MFP funds “to parish

and city school systems.” Plaintiffs herein employ the same argument. In Louisiana

Federation of Teachers, this court found MFP funds being diverted to non-public

schools unconstitutional, but expressly noted it was not defining the “breadth of the

term ‘parish and city school systems[.]’” Id. at 1051, n. 18.

      We disagree with the appellate court’s ruling and find the New Type 2 charter

schools are in fact public schools. While there is no definition of “public elementary

and secondary schools” in the constitution, our legislature has expressed that charter

schools are “independent public school[s].” La.R.S. 17:3973(2)(a). We agree with

defendants’ contention that affirming the court of appeal’s rationale, i.e., denying

MFP funding because the school is not under the jurisdiction of a parish or city

school board, could potentially have adverse consequences to other charter schools,

not just New Type 2 charter schools. To interpret La. Const. art. VIII, § 13(B), in



                                          13
the manner the plaintiffs propose would lead to absurd consequences, because some

public schools would be funded by the MFP but other public schools would not.

      The constitution mandates funding of public schools, vesting BESE with the

sole authority and discretion to develop the formula, after which the legislature may

either approve the formula or recommend amendments to the formula for BESE’s

consideration. Louisiana Constitution Article VIII, § 13(B), does not contain a clear

and convincing prohibition of MFP funding being allocated to New Type 2 charter

schools.   Plaintiffs have failed to carry their burden of proving clearly and

convincingly that applying the MFP formula to public New Type 2 charter schools

in SCR 55 is unconstitutional. Therefore, we reverse the ruling of the court of appeal

in this regard.

                                Local Cost Allocation

      Because we have found the diversion of MFP funds to New Type 2 charter

schools is constitutional, it is necessary for us to address the issue of whether SCR

55(II)(B) violates La. Const. art. VIII, § 13(C), through its use of local funds to

support New Type 2 charter schools. As La. Const. art. VIII, § 13(B), requires a

contribution to the MFP fund “by every city and parish school system,” La. Const.

art. VIII, §13(C), identifies proceeds from certain local taxes as the source of this

contribution. In pertinent part, La. Const. art. VIII, § 13 (C), provides:

      (C) Local Funds. Local funds for the support of elementary and
      secondary schools shall be derived from the following sources:

             First: Each parish school board, Orleans Parish excepted,
             and each municipality or city school board actually
             operating, maintaining, or supporting a separate system of
             public schools, shall levy annually an ad valorem
             maintenance tax not to exceed five mills on the dollar of
             assessed valuation on property subject to such taxation
             within the parish or city, respectively.

             ....


                                          14
                 Third: For giving additional support to public elementary
                 and secondary schools, any parish, school district, or
                 subschool district, or any municipality or city school board
                 which supports a separate city system of public schools
                 may levy an ad valorem tax for a specific purpose, when
                 authorized by a majority of the electors voting in the
                 parish, municipality, district, or subdistrict in an election
                 held for that purpose. The amount, duration, and purpose
                 of the tax shall be in accord with any limitation imposed
                 by the legislature.

         Plaintiffs argue that local taxes dedicated to public schools have been

unlawfully diverted to New Type 2 charter schools operated by private

foundations.10 As just one example, plaintiffs submit a 31-mill property tax which

is dedicated in large part to “constructing or purchasing any work of public

improvement . . . title to which improvements shall vest in the public.” 11 This

31-mill property tax produces about one-third of the local revenue transfer and was

voted on and approved by a majority of the electors of Iberville Parish before its



10
  During the trial testimony of Jolain Landry, Chief Financial Officer for Iberville Parish School
Board, each local tax was introduced into the evidentiary record.

11
     The March 8, 2008 Tax Resolution was introduced into evidence as plaintiffs’ exhibit 15:

                                  PARISHWIDE PROPOSITION

         SUMMARY:     20 YEAR, 31 MILLS PROPERTY TAX FOR GIVING
         ADDITIONAL AID TO PUBLIC SCHOOLS IN THE PARISH, INCLUDING
         PAYMENT OF SALARIES AND BENEFITS OF TEACHERS AND
         EMPLOYEES, AND CONSTRUCTING OR PURCHASING ANY WORK OF
         PUBLIC IMPROVEMENT (INCLUDING ACQUIRING AND/OR IMPROVING
         LANDS FOR BUILDING SITES; PURCHASING, ERECTING AND/OR
         IMPROVING SCHOOL BUILDINGS AND OTHER SCHOOL RELATED
         FACILITIES AND ACQUIRING THE NECESSARY EQUIPMENT AND
         FURNISHINGS THEREFOR) TITLE TO WHICH IMPROVEMENTS SHALL
         VEST IN THE PUBLIC.

Shall Consolidated School District No. 5 of the Parish of Iberville, State of Louisiana (the
“District”), be authorized to levy and collect a special tax of thirty[-]one (31) mills on all property
subject to taxation within the District (an estimated $10,540,000 reasonably expected at this time
to be collected from the levy of the tax for an entire year), for a period of twenty (20) years,
beginning with the year 2008 and ending with the year 2027, for the purpose of giving additional
aid to public schools in the Parish, including payment of salaries and benefits of teachers and
employees, and constructing or purchasing any work of public improvement (including acquiring
and/or improving lands for building sites; purchasing, erecting and/or improving school buildings
and other school related facilities and acquiring the necessary equipment and furnishing therefor)
title to which improvements shall vest in the public?
                                                  15
New Type 2 charter school existed. Plaintiffs further argue that to the extent that

New Type 2 charter schools, which are owned by private foundations, use the funds

to acquire facilities, they are not “public improvements,” and title does not “vest in

the public.” Therefore, title to the facilities vests in private foundations, which

plaintiffs contend violates local tax dedications as well as the Louisiana Constitution.

       Defendants argue that the mandate to “equitably allocate” MFP funds

contemplated in La. Const. art. VIII, §13(B), also applies to local taxes levied

pursuant to La. Const. art. VIII, §13(C). Defendants urge that the MFP formula is

meant to fund students of public schools. Because each of the local taxes at issue

herein specify they are for the purpose of supporting public schools, and because

New Type 2 charter schools are public schools, New Type 2 charter schools are

likewise entitled to the inclusion of these funds in the MFP formula.

       Under the “First” local funds provision of La. Const. art. VIII, § 13(C), a

property tax is required to fund the local “system of public schools.” As public

schools, New Type 2 charter schools are entitled to receive the benefits of this local

tax provision. 12

       The “Third” local funds provision is a discretionary property tax, and it is to

be imposed “for a specific purpose” on the condition that “the tax shall be in accord

with any limitation imposed by the legislature.”          The aforementioned 31-mill

property tax comes under this “Third” provision. We interpret the use of “any

limitation” in this “Third” provision to account for the legislature’s power to

establish future limitations, i.e., which would include local funds in the calculation

of the MFP formula. Any ad valorem tax passed under this optional “Third”

provision is subject to the overarching constitutional requirement to conform to the



12
  The “Second” local funds provision of La. Const. art. VIII, § 13(C), pertains only to New
Orleans and is inapplicable herein.
                                           16
legislature’s direction. Under La. Const. art. VIII, § 13(C), tax dedication language

cannot be engineered to prevent local tax revenue from being calculated in the MFP

formula when determining allocations to public schools, which includes New Type

2 charter schools.

      In City of New Orleans v. Louisiana Assessors’ Retirement & Relief Fund,

05-2548 (La. 10/1/07), 986 So.2d 1, one of the issues was whether the statutory

funding provision of the Assessors’ Retirement Fund was an unconstitutional

diversion of taxes dedicated to other purposes. This Court reversed the district

court’s declaration that the statutory funding provision allowed an unconstitutional

diversion of dedicated or special taxes to purposes other than those for which they

were designated. This Court reasoned that the statute at issue provided only the

method of identifying and calculating the amount due, it did not identify the source

of the monies to be remitted to the Assessors’ Retirement Fund.

      In this case, the plaintiffs’ view is that local taxes are being used to improve

privately-owned facilities to which the public has no title or interest. This is a

mischaracterization. Akin to the funding mechanism in City of New Orleans, local

revenue is considered in the allotment of MFP funds to public schools. Calculation

of the local cost allocation includes sales and ad valorem taxes levied by the local

school board. These figures are used to calculate a per-pupil local cost allocation.

A public school’s allotment of MFP funding is based on the number of students

enrolled in that particular public school irrespective of whether the improvements

made to that particular public school are vested in the public or not. Thus, the use

of a phrase in an ad valorem tax, such as “improvements shall vest in the public”

does not prohibit the use of local revenue in the funding of New Type 2 charter

schools and cannot be used as defense to thwart the goal of La. Const. art. VIII,

§13(C). Thus, SCR 55 does not transfer actual local tax revenue to charter schools.

                                         17
                                    DECREE

      After de novo review, we find La. Const. art. VIII, § 13, does not prohibit the

allocation of state or local MFP funding to New Type 2 charter schools.

Accordingly, the declaration of unconstitutionality from the court of appeal is

reversed.

      REVERSED.




                                         18
03/13/18

                      SUPREME COURT OF LOUISIANA

                                 No. 2017-C-0257

                            CONSOLIDATED WITH

                                 No. 2017-C-0633

                            CONSOLIDATED WITH

                                 No. 2017-C-0634

 IBERVILLE PARISH SCHOOL BOARD VERSUS LOUISIANA STATE
BOARD OF ELEMENTARY AND SECONDARY EDUCATION AND THE
  STATE OF LOUISIANA THROUGH THE STATE DEPARTMENT OF
                       EDUCATION

                            CONSOLIDATED WITH

 LOUISIANA ASSOCIATION OF EDUCATORS, CADDO ASSOCIATION
 OF EDUCATORS, CALCASIEU ASSOCIATION OF EDUCATORS, INC.,
   CONCORDIA ASSOCIATION OF EDUCATORS, THE EAST BATON
    ROUGE ASSOCIATION OF EDUCATORS, LAFAYETTE PARISH
    ASSOCIATION OF EDUCATORS, MADISON ASSOCIATION OF
EDUCATORS, MONROE ASSOCIATION OF EDUCATORS, ST. LANDRY
    ASSOCIATION OF EDUCATORS, ST. MARY ASSOCIATION OF
 EDUCATORS, ANN BURRUSS, REV. OSCAR HAMILTON, DEBORAH
  HARGRAVE, MELINDA WALLER MANGHAM AND THOMAS TATE
 VERSUS STATE OF LOUISIANA, THE LOUISIANA STATE BOARD OF
 ELEMENTARY AND SECONDARY EDUCATION AND THE STATE OF
     LOUISIANA THROUGH THE DEPARTMENT OF EDUCATION

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
          FIRST CIRCUIT, PARISH OF EAST BATON ROUGE


JOHNSON, C.J., dissenting.

      I agree with the court of appeal panel that declared the methodology set forth

in Senate Concurrent Resolution no. 55 (“SCR 55) (2014) in applying the formula

contained in La. R.S. 17:3995, violates La. Const. art. VII § 13 in that it allows the

diversion of public school funds to non-public schools.

      La. Const. art. VII § 13 provides that the State Board of Elementary and

Secondary Education (“BESE”) must annually adopt a formula to determine the cost

of a Minimum Foundation Program (“MFP”) to fund education in all public and
elementary and secondary schools. The funds appropriated by the legislature must

be equitably allocated to parish and city school systems so that each system has the

resources to meet minimum standards.

      The state argues that public schools are not explicitly defined in the

Constitution and the definition can be expanded to include Legacy Charter schools,

New Type 2 Charter schools, and any other new independent schools created by a

charter between BESE and a nonprofit corporation.

      Charter schools are not a new phenomena. In fact, this state has a long history

where the legislature has appropriated funding for alternative schools. We have the

aforementioned Legacy schools, such as LSU and Southern University Laboratory

schools, that have been funded separately by the state for more than fifty (50) years.

These schools provide wonderful education opportunities. They are also allowed to

charge tuition and have selective admission standards.

      Historically, we have defined “public schools” as elementary and secondary

schools operated and administered by a locally elected parish or city School Board

which provides free and open enrollment to every child in the school district.

      Local Cost Allocation

      In my view, SCR 55 (11)(B) violates La. Const. art. VII § 13(C) through its

use of local funds to support New Type 2 Charter Schools. We have long recognized

the taxing authority of local school districts. Mandating school funding is not a

novelty. In 1888, the issue arose as to whether the police jury in DeSoto Parish

should be required to levy taxes for common (public) schools. See Par. Bd. of Sch.

Directors v. Police Jury, 5 So. 23, (La. 10/17/1888) 40 La. Ann. 755. Since then, we

have recognized that the Constitution allows for the collection of ad valorem taxes,

and sales and use taxes by the parish school boards to fund public schools. See La.

Const. art. VIII sec. 13. Historically, these funds are specifically dedicated to School
Board use, as were the “Sixteenth Section” lands, which were reserved for the benefit

of public schools.

      SCR 55 requires that legacy Type 2 Charter Schools and New Type 2 Charter

Schools be allotted a local cost allocation according to the formula set out in La. R.S.

17:3995. These local ad volorem and sales and use taxes were instituted by majority

vote following a ballot initiative. The public vote for institution (or renewal) of

school taxes was based on the fact that the taxes were pledged for operation of parish

and city schools There can be no diversion of this local tax money to charter schools.

      For the reasons above, I respectfully dissent.
03/13/18

                   SUPREME COURT OF LOUISIANA

                                 No. 2017-C-0257

                            CONSOLIDATED WITH

                                 No. 2017-C-0633

                            CONSOLIDATED WITH

                                 No. 2017-C-0634

           IBERVILLE PARISH SCHOOL BOARD VERSUS
         LOUISIANA STATE BOARD OF ELEMENTARY AND
      SECONDARY EDUCATION AND THE STATE OF LOUISIANA
        THROUGH THE STATE DEPARTMENT OF EDUCATION

                            CONSOLIDATED WITH

 LOUISIANA ASSOCIATION OF EDUCATORS, CADDO ASSOCIATION
 OF EDUCATORS, CALCASIEU ASSOCIATION OF EDUCATORS, INC.,
   CONCORDIA ASSOCIATION OF EDUCATORS, THE EAST BATON
    ROUGE ASSOCIATION OF EDUCATORS, LAFAYETTE PARISH
    ASSOCIATION OF EDUCATORS, MADISON ASSOCIATION OF
EDUCATORS, MONROE ASSOCIATION OF EDUCATORS, ST. LANDRY
    ASSOCIATION OF EDUCATORS, ST. MARY ASSOCIATION OF
 EDUCATORS, ANN BURRUSS, REV. OSCAR HAMILTON, DEBORAH
  HARGRAVE, MELINDA WALLER MANGHAM AND THOMAS TATE
 VERSUS STATE OF LOUISIANA, THE LOUISIANA STATE BOARD OF
 ELEMENTARY AND SECONDARY EDUCATION AND THE STATE OF
     LOUISIANA THROUGH THE DEPARTMENT OF EDUCATION

                ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                  FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

WEIMER, J., concurring.

      While I agree with the result reached by the majority, I suggest a different

analysis to resolve the two salient issues: 1) whether New Type 2 Charter Schools are

public schools for funding purposes; and 2) whether local taxes are unconstitutionally

diverted to fund New Type 2 Charter Schools in Iberville Parish.

      On the first issue, I certainly agree with the majority’s determination that

charter schools are public schools and the observation that the constitution contains
no ban against the legislature funding the New Type 2 Charter Schools. Due to its

plenary authority,1 the legislature is not prohibited from funding charter schools

through the Minimum Foundation Program (MFP). However, I find the provision

relied on by the majority, i.e., La. Const. art. VIII, § 13(B), actually contains an

affirmative requirement to fund these schools. Twice within La. Const. art. VIII, §

13(B) it is stated that the MFP serves “all public elementary and secondary schools.”

(Emphasis added.) The second such statement is notable for requiring the legislature

to “fully fund the current cost to the state of such a program … in order to insure a

minimum foundation of education in all public elementary and secondary schools.”

Id. (Emphasis added.) Significantly, a New Type 2 Charter School is authorized by

a statute (La. R.S. 17:3973(2)(b)(ii)), which procedurally either converts “a

preexisting public school” or authorizes the creation of “a new school,” and in either

case the statute requires collaboration “between the nonprofit corporation created to

operate the school and the State Board of Elementary and Secondary Education

[BESE].” Thus, given the mechanism of its creation and being subject to an ongoing

collaboration with BESE, a New Type 2 Charter School sufficiently fits the

constitutionally-mandated criteria for funding “all public elementary and secondary

schools.” La. Const. art. VIII, § 13(B).2




1
  See City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548, pp.
11-12, 986 So.2d 1, 12. (La. 10/1/07).
2
  Although my reasoning on the effect of La. Const. art. VIII, § 13(B) differs somewhat from that
of the majority, I fully agree with the majority’s observation that the instant case is distinguishable
from Louisiana Federation of Teachers v. State of Louisiana, 13-0120, 13-0232, 13-0350 (La.
5/7/13), 118 So.3d 1033. While Louisiana Federation of Teachers interpreted La. Const. art. VIII,
§ 13(B), unlike the instant case, Louisiana Federation of Teachers addressed MFP funding for
schools that were irrefutably nonpublic schools, and this court explicitly indicated it did not purport
to define the “breadth of the term ‘parish and city school systems.’” Id., 13-0120, 13-0232, 13-0350
at 26 n.18, 118 So.3d at 1051 n.18.

                                                  2
       On the local funding issue, I again agree with my learned colleagues, inasmuch

as they find this issue can be resolved based on La. Const. art. VIII, § 13(C).

However, I attach a lesser significance to the clause indicating that “the purpose of

the [local] tax shall be in accord with any limitation imposed by the legislature.” Id.

I find it is unnecessary to hold, as the majority does, that the quoted clause empowers

the legislature “to establish future limitations, i.e., which would include local funds

in the calculation of the MFP formula.” Iberville Parish School Board v. La. State

Board of Elementary and Secondary Education, 17-0257, 17-0633, 17-0634, slip

op. at 16 (La. 3/13/18). Rather, I find that other clauses better resolve the local

funding issue.

       The very first clause of La. Const. art. VIII, § 13(C) indicates that “[l]ocal

funds for the support of elementary and secondary schools shall be derived from the

following sources,” and then goes on to indicate the various taxes, some mandatory

and some optional, which are described more fully in the majority’s opinion. The

import of the very first clause of La. Const. art. VIII, § 13(C) is that any educational

tax, whether mandatory or optionally, enacted by a given electorate, is subject to

being taken into account when deriving the MFP formula. This is so because Section

13© must be read in context of Section 13(B),3 which, in pertinent part, provides that

the MFP “formula shall provide for a contribution by every city and parish school

system.”

       Of course, different city and parish school systems will contribute different

amounts because the taxes they levy and their respective tax bases vary considerably.


3
  “In seeking to discover constitutional intent, we are guided by many of the same rules followed
in interpreting laws and written instruments. … Provisions on the same subject matter are
interpreted with reference to each other.” Caddo-Shreveport Sales and Use Tax Comm’n v.
Office of Motor Vehicles, Dep’t of Pub. Safety and Corrections, 97-2233, p. 6 (La. 4/14/98), 710
So.2d 776, 780.

                                               3
The MFP exists–as its name suggests–to provide a basis for funding the various

educational systems across the state. As this court has previously explained, “[t]he

purpose of [the MFP] is to insure that each public school child in this state receives

an equal educational opportunity regardless of the wealth of the parish in which the

child resides.” Louisiana Ass’n of Educators v. Edwards, 521 So.2d 390, 391 (La.

1988) (citing State of Louisiana Constitutional Convention of 1973, Verbatim

Transcripts Volume XXVIII, 87th day, November 16, 1973, 108; 88th day, November

17, 1973, 12).

         The fact of differing tax contributions to the MFP is accounted for by another

provision in La. Const. art. VIII, § 13(B). As to the more traditional parish and city

schools, a special division of funds is required: “[t]he funds appropriated shall be

equitably allocated to parish and city school systems according to the formula as

adopted by the State Board of Elementary and Secondary Education, or its successor,

and approved by the legislature prior to making the appropriation.” Id.

         The requirement for “equitably allocat[ing] to parish and city school systems”

allows BESE and the legislature to make adjustments geared toward equalizing state

funding notwithstanding that local revenues vary widely. Indeed, the quoted

language was approved by the state electorate via a constitutional amendment,4 in

part, as a response to the perception that “the [MFP] formulas adopted by BESE

during the 1970s and 1980s considered only a small portion of the wealth of local

school districts when distributing state funds, resulting in considerable disparities in

educational funding between poor and rich parishes.” Jackie Ducote, The Education

Article of the Louisiana Constitution, 62 La. L. Rev. 117, 132 (2001) (The




4
    See 1987 La. Acts 948, approved November 21, 1987, effective December 27, 1987.

                                               4
commentator further noted the constitutional amendment “included a provision ‘for

a contribution by every city and parish school system.’”).

         Notably, the funding priority in La. Const. art. VIII, § 13(B), to “equitably

allocate[ ] to parish and city school systems,” is not described as a solitary funding

priority. It does not override the first stated directive in La. Const. art. VIII, § 13(B)

to fund “all public ... schools.” Thus, there is nothing in La. Const. art. VIII

prohibiting an MFP formula from being developed that would allocate funds to New

Type 2 Charter Schools in a manner that includes local tax revenues.

         What emerges from an evaluation of all of the constitutional provisions cited

above is that any optional local taxes, which are the taxes at issue here, are to be

evaluated by BESE and the legislature in confecting the MFP formula. As such,

BESE and the legislature can formulate and approve an MFP that accounts for any

optional local tax in the state’s ultimate distribution of funds. According to La.

Const. art. VIII, § 13(B), as between parish and city school systems, the MFP

distribution must be “equitably allocated.” When New Type 2 Charter Schools are

added to the mix of schools to be funded, because the constitution does not otherwise

direct how these public schools shall be funded relative to other schools, the MFP

may be funded in any manner that does not impinge upon the “equitabl[e]

allocat[ion]”5 that must occur between parish and city schools. See City of New

Orleans, 05-2548 at 11-12, 986 So.2d at 12 (“Because the provisions of the

Louisiana Constitution are not grants of power but instead are limitations on the

otherwise plenary power of the people, exercised through the legislature, the

legislature may enact any legislation that the constitution does not prohibit.”).




5
    La. Const. art. VIII, § 13(B).

                                            5
      Here, appellees fail to allege, let alone demonstrate, that accounting for the

optional local taxes in Iberville Parish as part of the funding for New Type 2 Charter

Schools has impinged in any way on the balance of “equitabl[e] allocat[ion]” of

funding between any parish and city schools, which is the only balance explicitly

required by La. Const. art. VIII, § 13(B). Indeed, the Iberville Parish School Board

represents to this court that the direction in SCR 556 to transfer MFP money to Type

2 Charter Schools is done on a per-pupil cost basis for “the city or parish school

system in which the attending students reside.” More specifically, after receiving

MFP funds, the local school board is directed to produce from those state funds a

“Local Revenue Allocation” which “is the per-pupil amount produced for the School

Board from local sources.” Because this “Local Revenue Allocation” is done on a

per-pupil basis, which is indexed to the whole student population in the parish, it

appears to me that BESE and the legislature have chosen a distribution of state MFP

funds that is equitable to all schools concerned. Given that past disparities in funding

among systems with differing tax bases have provoked earlier amendments to La.

Const. art. VIII, § 13, it further appears that BESE and the legislature have accounted

for the raising of local revenues in this instance. Thus, I respectfully concur within

the constitutional scheme.




6
  Senate Concurrent Resolution 55 of 2014 or “SCR 55” is the legislative instrument which
approved the MFP at issue in this case.

                                           6
03/13/18

                        SUPREME COURT OF LOUISIANA

                                  No. 2017-C-0257

                             CONSOLIDATED WITH

                                  No. 2017-C-0633

                             CONSOLIDATED WITH

                                  No. 2017-C-0634

 IBERVILLE PARISH SCHOOL BOARD VERSUS LOUISIANA STATE
BOARD OF ELEMENTARY AND SECONDARY EDUCATION AND THE
  STATE OF LOUISIANA THROUGH THE STATE DEPARTMENT OF
                       EDUCATION

                             CONSOLIDATED WITH

 LOUISIANA ASSOCIATION OF EDUCATORS, CADDO ASSOCIATION
 OF EDUCATORS, CALCASIEU ASSOCIATION OF EDUCATORS, INC.,
   CONCORDIA ASSOCIATION OF EDUCATORS, THE EAST BATON
    ROUGE ASSOCIATION OF EDUCATORS, LAFAYETTE PARISH
    ASSOCIATION OF EDUCATORS, MADISON ASSOCIATION OF
EDUCATORS, MONROE ASSOCIATION OF EDUCATORS, ST. LANDRY
    ASSOCIATION OF EDUCATORS, ST. MARY ASSOCIATION OF
 EDUCATORS, ANN BURRUSS, REV. OSCAR HAMILTON, DEBORAH
  HARGRAVE, MELINDA WALLER MANGHAM AND THOMAS TATE
 VERSUS STATE OF LOUISIANA, THE LOUISIANA STATE BOARD OF
 ELEMENTARY AND SECONDARY EDUCATION AND THE STATE OF
     LOUISIANA THROUGH THE DEPARTMENT OF EDUCATION

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
          FIRST CIRCUIT, PARISH OF EAST BATON ROUGE


Hughes, J., dissents.

      The majority opinion rests on the overly simplistic analysis that Type 2

Charter schools are “public schools.”

      They certainly are, by legislative definition. But no one disputes that they

are public schools, or that the Legislature is free to allocate funds to public schools.

The deeper issue, which the majority glosses over, is whether the MFP formula

may be used to allocate funds to individual public schools. It has never been done
before, because the Louisiana Constitution provides that MFP funds shall be

allocated to “school systems” (School Boards).

      While the Legislature is free to allocate funds to individual Type 2 Charter

Schools, or to any public schools for that matter, to do so through the MFP formula

is an unprecedented unconstitutional action and this court whiffs in addressing the

constitutional issue. Sending money directly to individual schools may seem

desirable, but the Constitution requires that funds from the MFP formula are to be

allocated to school systems, not individual schools.          As the concurrence

acknowledges, referring to it as a “requirement”, the Constitution provides that the

MFP funds appropriated “shall be equally allocated to parish and city schools

systems.”   There is no “plenary authority” to ignore the plain words of the

Constitution.

      There is no question that the funds allocated are ultimately for the benefit of

school children. What difference does it make? The Constitutional amendment

that requires MFP funds to be allocated to public school systems, rather than

individual schools, was voted on by the people. Only the people may change this

requirement, not the Legislature. City and parish school systems are managed by

elected School Board members, giving property owners and taxpayers a means of

assuring responsibility and accountability. Short cuts around the Constitution,

even for what may seem laudable or politically expedient, are inimical to

democracy and are not cool.




                                         2
