For Immediate Release
Media Contact: Bob Cooper
(208) 334-4112

Date: September 16, 2003

State Takes Steps To Implement New Safe Schools Law

(Boise) - The State of Idaho filed civil complaints today against seven (7) school districts. The actions were filed pursuant to the Constitutionally Based Education Claims Act (CBECA), a law passed in 1996 and amended last spring to address safety issues in public school facilities. Last Tuesday, the Idaho Supreme Court ordered the State to comply with the amendments made to CBECA within five (5) business days.

The seven (7) school districts are Cottonwood Joint School District No. 242, St. Maries Joint School District No. 41, Lake Pend Oreille School District No. 84, Midvale School District No. 433, Whitepine Joint School District No. 288, Lapwai School District No. 341, and Challis Joint School District No. 181. The actions were filed in state district courts located in each of the judicial districts where the school districts are located.

The actions were filed for the purpose of abating conditions in public school facilities that do not meet the constitutional requirement to provide a safe environment conducive to learning. If an unsafe condition is found to exist, the State of Idaho is asking the courts to order that the conditions be fixed and paid for with existing funds. If a school district has no available funds, then the State is asking the court to order imposition of an educational necessity levy pursuant to the CBECA.

"The State of Idaho's goal is of constitutional importance," explained Attorney General Wasden, "because the Idaho Supreme Court has held that the Idaho Constitution requires the State to 'provide a means for school districts to fund facilities that provide a safe environment.' Through passage of the CBECA in 1996 and its 2003 amendments, as well as a host of other laws passed by the legislature and the people over the last 10 years, we are finally moving forward to address this issue. The lawsuit that has been going on for over thirteen years has not fixed a single school, but it has kept many lawyers and judges very busy. Keep in mind that we are not talking about building new schools or athletic facilities, we are only talking about fixing unsafe conditions in our existing public school facilities. That is what the Idaho Constitution requires. The goal of everyone should be to make certain that our children are learning in safe school facilities."

The CBECA was passed by the legislature in 1996. It was passed to provide a process and a means whereby unsafe school conditions could be identified and fixed. At the time it was passed, the legislature exempted the school districts that were plaintiffs in the school-funding lawsuit, allowing them an opportunity to litigate their issues in court. The Idaho Supreme Court upheld the constitutionality of the CBECA in an opinion issued in 2000.

Last spring, seven years after the CBECA was passed and without any resolution reached in court, the legislature amended it to include the school districts in the ongoing case, to provide for an educational necessity levy for school districts with unsafe conditions but no available funds, and to phase out the thirteen-year-old lawsuit.

The allegations of unsafe conditions against the seven (7) school districts are supported by three sources: (1) exhibits filed by those districts in the lawsuit that has been pending in front of a Boise judge for over 4 years; (2) testimony by school district officials in that same lawsuit; and (3) information obtained from the Idaho Division of Building Safety, which annually inspects school facilities for safety compliance.

Last week, the Office of the Attorney General wrote letters to thirteen school districts, asking them for additional information about unsafe conditions that had been previously identified. If a district had already fixed a problem, or if a concrete plan was in place to abate unsafe conditions, then there was no need to file a complaint. Of those thirteen districts, six (6) were not the subject of complaints today because they provided information that the unsafe conditions had been or were being abated. Five other districts refused to respond to the substance of the request for information about unsafe conditions in their schools.

"I am hopeful that the school districts will work with the State to develop concrete plans of abatement," said Attorney General Wasden. "The CBECA envisions that the parties will work together to resolve these issues without the need for litigation. I am also hopeful that we will be able to find available revenues to remedy all constitutional safety problems."

Today's filings by the Attorney General have their origin in a lawsuit that was filed on June 21, 1990. At that time, there were two lawsuits, one filed in Latah County and the other in Ada County. Both cases were eventually consolidated in Ada County because there were approximately 49 school districts suing the State.

The original lawsuit was a broad attack on the system of funding public education in Idaho. However, the case was dismissed by the district court. On appeal, the Idaho Supreme Court agreed with two significant portions of the lower court's dismissal, but it remanded the case on two other grounds.

The second phase of the lawsuit was again heard in the district court in Ada County. Once again, the district court dismissed the case. On appeal, the Idaho Supreme Court remanded, holding that the case was not moot and ordering the lower court to allow the plaintiffs to file a fifth amended complaint.

The third phase of the lawsuit was again heard in the district court in Ada County. This time, the district court granted summary judgment in favor of the State. On appeal, the Idaho Supreme Court agreed with the lower court's decision in all respects except for one claim concerning safe school facilities. On this issue, the court held that "the legislature must provide a means for school districts to fund facilities that provide a safe environment conducive to learning."

The fourth phase of the lawsuit began in 1999, in the Ada County district court. It has been pending in that court, before District Judge Deborah A. Bail, for over four years without any final decision.

While the lawsuit has been bouncing back and forth in the state courts for over thirteen years, the legislature has passed a series of laws to address issues arising in the case. Those laws include:

In 1994, the legislature passed Senate Bill 1291, which provided a definition for a "thorough system of public schools." It also passed Senate Bill 1560aa, which revised the school funding formulas to provide a salary-allocation for administrative, instructional and classified staff.

In 1998, the legislature passed Senate Joint Resolution 106, which proposed an amendment to the Idaho Constitution allowing the State of Idaho's credit to back school bonds, thereby allowing school districts access to lower interest rates on bonds. The people of the State of Idaho overwhelmingly approved the amendment at the general election held on November 3, 1998.

In 2000, the legislature passed House Bill 668, known as the Idaho Uniform School Building Safety Act. This legislation gave the Division of Building Safety authority to require safe facilities or prevent use of unsafe facilities. The legislature also passed House Bill 669 to provide for plant facility levies to abate unsafe conditions, and allowing such levies to continue to run for 20 years.

In 2001, the legislature passed House Bill 315aa, enacting interest subsidies and appropriating $10 million in interest subsidies for plant facility levies to abate unsafe conditions.

In 2002, the legislature passed Senate Bill 1474aaH, which created a bond equalization fund of interest subsidies on bonds for all school districts. The legislature also passed House Bill 590aa, which amended the Idaho Uniform School Building Safety Act to give the Idaho Division of Building Safety more authority in its mission to inspect school facilities for safety purposes.

Today's filings by the Attorney General included a notice of dismissal to the Ada County court, notifying the court of which school districts are dismissed from the lawsuit. Those districts, nineteen (19) in total, were named as parties to the case, but they have not come forward with any information that they currently have any unsafe conditions, and the State is not aware of any safety issues in those districts.

Previously, on May 5, 2003, the State of Idaho notified Judge Bail that proceedings in her court were suspended. The May 5th notification was given pursuant to the amendments made to the CBECA by the 2003 legislature. A few weeks later, she entered a "stay" of the new law, prohibiting the State from taking action to abate unsafe school conditions. Last week, on September 9, 2003, the Idaho Supreme Court dissolved Judge Bail's stay and ordered the State to comply with the new law within five (5) business days.

The Idaho Supreme Court has also ordered Judge Bail to issue a decision regarding the constitutionality of the recent amendments to the CBECA, but told her she could take "no other action in any other matter not specifically related to that determination." The supreme court has also enjoined her from taking any further action relating to her appointment of a "special master" to inspect all public school facilities in Idaho.

The safety allegations in each complaint are as follows:

Midvale School District No. 433

The two Midvale schools at this common location have unsafe conditions and will continue to have unsafe conditions until adhesive anchors are bolted to the large roof beams over the gymnasium, horizontal bracing is added at the top of the unreinforced walls, exterior brick walls are repointed, and floor framing is reinforced in areas in which it has become "spongy."

Cottonwood Joint School District No. 242

Prairie Elementary School is heated in part by a coal-fired boiler that is in an underground coal bin/boiler room located underneath a portion of the school. Ground level instructional, lavatory and gymnasium areas are located over or nearby the coal bin/boiler room. The coal bin/boiler room does not have an approved exhaust system to remove buildup of coal (carbonaceous) dust from the atmosphere. The coal bin/boiler room also contains electrical subpanels and exposed lighting. The combination of inadequate exhaust systems and electrical subpanels present in the coal bin/boiler room do not provide a safe environment conducive to learning.

Prairie High School has a walk-in freezer that cannot always be opened from the inside, has installed shelving in Room 204 that makes the eyewash station unusable, and lacks a required GFCI for its electrical outlet near the sink in the old home economics room.

In addition, some kitchen or cafeteria appliances in Cottonwood's schools may not meet health codes.

Whitepine Joint School District No. 288

The gymnasium floor at Bovill Elementary School has not been stabilized and presents an unsafe condition for use. Exterior ramps and stairs to a mobile classroom have not been equipped with handrails.

There are no fire-rated doors or frames in the corridors of Deary School and unsafe steps at Deary School. The dust collection system in the shop is not connected to dust-producing equipment, the table saw guard is missing, the gas welder does not have flashback protection, and the hoses on the gas welder are worn.

Challis Joint School District No. 181

The fire alarm system in Patterson Elementary School needs to be replaced or upgraded.

The fire alarm system in Challis Middle School needs to be replaced or upgraded, and there may need to be repairs to the cement at that school to bring it into a safe condition.

There may be additional unsafe conditions at these or other Challis schools, and Plaintiff reserves to right to amend this Complaint to address them.

St. Maries Joint School District No. 41

The St. Maries High School campus contains unsafe cracked and dangerous sidewalks and/or unsafe siding and soffits that need to be repaired or replaced.

The Upriver Elementary-Junior High School has unsafe ceilings and/or unsafe siding that need to be repaired or replaced.

In addition, there may be additional unsafe conditions in schools operated by St. Maries Joint School District No. 41, and Plaintiff reserves the right to amend its complaint to address them.

Lake Pend Oreille School District No. 84

On September 2, 2003, Mr. Steve Battenschlag, Chief Operating Officer of Lake Pend Oreille School District No. 84, testified in the trial on remand of Idaho Schools for Equal Educational Opportunity et al. v. State, Ada County Case No. 94008, that LPO had $15 to $18 million of current safety needs, but did not provide any back-up documentation to the Court. While the State does not accept this number, it cannot ignore that this testimony was given in open court and that discovery may lead to identification of unsafe conditions that will need to be remedied.

Lapwai School District No. 341

Lapwai Junior-Senior High School has a roof diaphragm that is not adequately connected to its walls and that may be bearing excessive ballast loads. There may be areas with inadequate ventilation to prevent the spread or recurrence of mold that was once in portions of the building.

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