Catalytic Courts and Enforcement of Constitutional Education Funding Provisions

• Publication year: 2021

Catalytic Courts and Enforcement of Constitutional Education Funding Provisions

Hugh Spitzer^* and Andy Omara^**

Table of Contents

I. Abstract..................................................................... 46

II. Introduction............................................................... 46

III. Conceptualizing Positive Rights Enforcement...................48

IV. Indonesia..................................................................... 53

V. Washington State........................................................ 61

VI. Kansas........................................................................ 70

VII. Observations and Conclusions........................................78

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I. Abstract

It is well-recognized that it is easier for judges to enforce constitutional "negative rights" provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches into spending more on education—often against the backdrop of potential political retaliation. Focusing principally on Indonesia and the American states of Washington and Kansas, we found Young's model helpful in describing how judges shifted their tactical and rhetorical approaches among "peremptory," "managerial," "experimentalist," "conversational" and "deferential" modes of review. Our study confirms Varun Gauri's and Daniel M. Brinks' observation that "judges . . . craft their opinions with an eye on the likelihood of compliance . . . , the political reaction and its effect on the standing of the judiciary." These and other social scientists help explain why it is so difficult for courts to push the political branches to act, particularly when action requires higher taxes or a redirection of existing funds. We conclude that a court's approach to judicial review of legislative and executive actions (or inaction) depends on the judiciary's institutional strength, the remedies sought, and the specific political context within which the judicial review occurs. The three courts we studied were catalysts in contentious, multi-year education finance cases that were ultimately successful, in significant part, because of the strong support for judicial action from civil society groups and the media.

II. Introduction

Social and economic rights are imbedded in constitutions worldwide. But legal theorists and empirical researchers—to say nothing of politicians—have observed that enforcement of these "positive rights" to government action on health, education, housing, economic security, and other social goals can be problematic. This article focuses on one positive constitutional right: the right of children to attend adequately funded schools. The goal of our study is to test on-the-ground judicial implementation of education funding provisions against a

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general theoretical framework developed by Katharine Young,¹ and we also apply the empirical findings in studies edited by Varun Gauri and Daniel M. Brinks² and by Malcolm Langford, Cesar Rodriguez-Garavito, and Julieta Rossi.³ Young's framework and the above empirical studies suggest that when faced with the task of enforcing positive rights provisions that cost taxpayer dollars, constitutional courts operate in several distinct modalities. Judges use different tactical and rhetorical approaches depending on their institutional strength, their specific political context, and the remedies being sought. In the words of Gauri and Brinks, "judges . . . craft their opinions with an eye on the likelihood of compliance . . . , the political reaction and its effect on the standing of the judiciary. . . "⁴ Recent scholarship has also emphasized the importance of the catalytic role of the judiciary, emphasizing that the judicial branch is most successful in implementing positive constitutional rights when court decisions reinforce sociopolitical factors that independently pressure the executive and legislative branches to act.⁵

We examined the experience of three jurisdictions with judicial enforcement of pre-college education rights, looking in depth at judicial enforcement of constitutional requirements for school funding in Indonesia and in and the American states of Washington and Kansas. We conclude that the model developed by Young is of great value in describing court actions and judicial interplay with other governmental branches. Specifically, we found the three constitutional courts we studied actively shifted back and forth among Young's stances as they searched for ways to successfully entice, shame, or force recalcitrant legislators and executives to act. At the same time, the work of social scientists Gauri and Brinks; and Langford, Rodriguez-Garavito, and Rossi; is more useful for predicting when a constitutional court will be a successful catalyst in the political process of increasing school funding.

In this article, we review recent theoretical literature and empirical studies that attempt to describe how constitutional courts⁶ enforce justiciable positive rights,

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focusing particularly on Young's theory as an analytical paradigm for our observations. Next, we detail specific instances of this type of judicial enforcement in the three jurisdictions of Indonesia, Washington, and Kansas—a civil law country and two common law states. The frameworks we apply help explain how constitutional courts that are thousands of miles from one another, with different judicial selection systems, different legal traditions, and different political circumstances, nevertheless address school finance controversies in remarkably similar ways. Although enforcement of positive rights can be a lengthy and often arduous process, strategic maneuvering by judges can result in substantial results. Each of the constitutional courts we studied moved among the modes Young identifies, experimenting with different enforcement approaches in an attempt to discover what worked best in their specific contexts. Consistent with the social scientists' theories, we found that despite legislative foot-dragging, these courts played a catalytic role in forcing school funding onto the politicians' front burners while education interest groups and the media successfully pushed the lawmakers from other directions.

III. Conceptualizing Positive Rights Enforcement

A 2014 study by Courtney Jung, Ran Hirschl, and Evan Rosevear⁷ observed that, of 195 national constitutions in the world, 90% contain at least one economic and social right,⁸ and 158 of those documents (70%) include at least one expressly justiciable economic and social right.⁹ There is substantial academic literature devoted to constitutional education rights around the world,¹⁰ including

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in the United States.¹¹ As an empirical matter, these provisions tend to appear more frequently in civil law countries.¹² However, Emily Zackin has documented the strong social and economic rights tradition at the state constitutional level in the United States,¹³ and, together with Mila Versteeg, has demonstrated that American's national constitution is an oddity in its lack of positive rights as compared with other national constitutions around the globe.¹⁴ Justiciability and judicial enforcement are quintessential for the practical implementation of these social and economic rights. Over the course of the past decade, there has been an increase in theoretical and empirical studies of court implementation of positive rights, providing fodder for a robust study of their actualization in jurisdictions where such rights are constitutionally guaranteed.¹⁵

In the introduction to their 2017 study, social scientists Langford, Rodriguez-Garavito, and Rossi provide an excellent way of organizing the wide variety of judicial approaches.¹⁶ They describe four clusters of systemic variables: legal variables like the nature and wording of a positive right; the types of litigants seeking enforcement; the available remedies; and the judicial culture and traditions of the jurisdiction; political variables like the ability and willingness of governments to implement court rulings; the relationships between the branches of government; the level of government involved; and whether a defendant is a

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state or non-state actor; socio-economic variables like wealth and wealth disparity; social inequality; ethnic divisions; and public attitudes; and civil society variables including the relationship between litigants, lawyers, and civil society coalitions; as well as access to litigation funding.¹⁷

In her work, Katharine Young zeroes in on the variety of styles and approaches that constitutional courts apply in interacting with the executive and legislative branches when those courts attempt to enforce positive rights guarantees. In her 2012 book, Professor Young describes five stances used by courts in social and economic rights cases. She notes that these stances should not be thought of in terms of strengths and weaknesses because judicial power is inherently "multidimensional" and interactive.¹⁸

Young describes these modes of judicial review as follows:

• Deferential Review, where "the court assumes that greater decision-making authority is placed on the elected branches in interpreting economic and social rights and in determining the obligations that arise."
• Conversational Review, in which "the court is instead reliant on the ability of an interbranch dialogue to resolve the determination

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