OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH
OF EAST BATON ROUGE
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.
AND PROCEDURAL BACKGROUND
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."
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.
plaintiffs, Iberville Parish School Board ("IPSB")
and the Louisiana 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"). The suits were consolidated.
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 LAE, also sought damages for all MFP funds
which defendants allegedly unlawfully diverted from IPSB to
New Type 2 charter schools.
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:
FORMULA CALCULATIONS FOR STATE-APPROVED PUBLIC
NEW TYPE 2 CHARTER SCHOOLS
A New Type 2 [c]harter school is a Type 2 [c]harter
schoolapproved 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
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
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.
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 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.
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). 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.
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 required a remand for further
examination of the local tax dedications that provide revenue
support for the parish school system.
defendants filed two identical writ applications (2017-C-0257
and 2017-C-0633),  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. We granted writs pursuant to
our appellate jurisdiction, see La. Const. art. V,
§ 5(D), to review the appellate court's declaration
of unconstitutionality. 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.
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 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
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.
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
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).
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 ...