The meaning of state constitutional education clauses: evidence from the constitutional convention debates.

• Author: Dinan, John J.

"No court--believe me, and any judge will confirm this and any legislator, too--is ever going to review a legislative determination of what is adequate...." (1)

1. INTRODUCTION

   The meaning of state constitutional education clauses has attracted increasing attention in the last several decades as a result of numerous state court decisions. (2) On some occasions, state education clauses have served as vehicles for "equity" lawsuits seeking to overturn inter-district disparities in per pupil financing. (3) More frequently, and particularly during the post-1989 wave of school-finance suits, state education clauses have given rise to "adequacy" lawsuits seeking to compel legislatures to ensure a minimum level of school funding or student achievement. (4) In Bush v. Holmes, the Florida Supreme Court highlighted still another use of these clauses when it interpreted "uniformity" language in the state education clause to invalidate a private-school voucher program. (5)

   A significant amount of research has been conducted on the consequences of these judicial interpretations of state education clauses, particularly the "adequacy" rulings, which began in 1989 with the Kentucky Supreme Court's ruling in Rose v. Council for Better Education, Inc. (6) and have been handed down routinely since then with twenty cases decided in favor of the plaintiffs and twelve others pending. (7) Although evidence is mixed regarding the effect of these rulings on school spending levels, (8) there is widespread agreement that they have had significant consequences for legislators who have seen control of key education policy decisions transferred from elected officials to outside experts, administrators, and judges. (9) In fact, in New York, such an interpretation of the state education clause at one point resulted in a $5.63 billion judgment for the plaintiffs. (10) Although most adequacy judgments have been nowhere near as grand in scale as the New York litigation, these state court rulings have had significant consequences for state legislatures around the country (11) and have dominated the legislative agenda in a number of states. (12)

   In view of the important role played by state education clauses in generating these "equity," "adequacy," and "uniformity" lawsuits, the question naturally arises as to whether they were intended to be interpreted in such a manner. That is, to what extent were these clauses intended to empower courts to overturn legislative judgments regarding school financing and to what extent were they intended to serve other purposes?

   For the most part, scholars who have studied the meaning of state education clauses have been concerned with analyzing and categorizing their current language. The most widely used categorization scheme was first advanced by Erica Black Grubb and divides the current clauses into four groups, ranging from weak clauses that simply establish a school system, to clauses mandating a thorough and efficient school system, to clauses containing language regarding the purpose and/or benefit of a quality education, all the way to clauses proclaiming education to be a paramount duty or mandating other specific duties. (13) Meanwhile, Molly McUsic identified various problems with this categorization and advanced an alternative scheme that divides state clauses into equity and minimum-standards clauses, and then further subdivides the latter group into four tiers ranging from bare-minimum standards clauses to explicit high-quality standards clauses. (14) However, still other scholars have expressed dissatisfaction with these various efforts to categorize the language of education clauses and have concluded that "disembodied parsing of constitutional terminology may be of limited or no value." (15)

   Another group of scholars has sought to determine the meaning of these clauses by tracing their origin and development. One way of tracking the development of the language of these clauses is by comparing the various compendia of state education provisions that have been assembled through the years, beginning with Franklin B. Hough's 1875 publication for the U.S. Bureau of Education (16) and continuing with dissertations by Samuel Brown in 1912, (17) John M. Matzen in 1931, (18) and Frank S. White in 1950. (19) More recently, John C. Eastman sought, in a 1998 article (20) and 2007 chapter, (21) to identify trends in the development of the language of these clauses.

   Despite the important work that has been done in analyzing the text of the current clauses and changes in their wording, we do not yet have a sustained analysis of the state constitutional convention debates regarding adoption and revision of these clauses. As a result, we lack an adequate understanding of the intentions of their drafters. State convention debate records have been consulted on occasion by scholars interested in the development of education policy in the United States. (22) In a wide-ranging study of state education policy, David Tyack, Thomas James, and Aaron Benavot consulted a number of mid-nineteenth century state convention debates. (23) Rush Welter drew on several other conventions from the same era, (24) as did Carl Kaestle. (25) Gregory Schmidt looked at several conventions held in eastern states in the early nineteenth century. (26) John Hicks examined the debates regarding education in several state conventions in the Northwest in the late nineteenth century, (27) and Eastman took note of the debates in one late nineteenth century convention. (28)

   However, none of these scholars has undertaken a comprehensive examination of the state convention debates regarding education clauses with an eye toward assessing the degree of historical support for recent judicial interpretations of their "equity," "adequacy," and "uniformity" provisions. The absence of such a comprehensive study is due primarily to the sheer scope of the materials to be examined, given that we have records of the debates--as opposed to merely the journals of proceedings--for a full 114 of the 233 state constitutional conventions held throughout American history. Another obstacle to such a study, as Molly McUsic noted when explaining her decision to rely on the text of the education clauses rather than the pertinent convention debates, is the incompleteness of the records. As she argued, "[c]onstitutional and state history, while more useful than state court opinions, is often difficult to find. Records of state constitutional debates, common educational practices, and the understanding of the ratifiers are often fragmentary or nonexistent, thus obscuring the founders' intent." (29) Still another reason why some scholars have been hesitant to undertake such a study is a belief that the framers' intentions have little bearing on the current meaning of these clauses. As McUsic noted, "state judges may ignore historical evidence, believing that the original intent or understanding of the clause is inappropriate in the context of modern conditions and values." (30)

   These concerns notwithstanding, my purpose is to undertake a comprehensive inquiry into the meaning of state education clauses by analyzing the speeches surrounding their adoption and revision in the 114 extant state convention debate records. (31) In particular, I seek to determine the extent to which convention delegates intended, in drafting state education clauses, to create a judicially enforceable right that could be used to overturn legislative judgments regarding an equitable, adequate, and/or uniform education--or in the alternative, intended these clauses to serve other purposes. (32)

   However, there are two caveats. First, it is admittedly the case that this study is not entirely comprehensive. Not only do we lack access to the 119 unrecorded debates throughout American history, but this study also leaves aside debates conducted pursuant to constitutional changes achieved through legislative amendments, the initiative process, or revision commissions. (33) Nevertheless, the 114 recorded convention debates--ranging from the Connecticut Convention of 1818 to the New Hampshire Convention of 1984 and including twenty-two conventions held before 1850, forty-four conventions held from 1851-1900, twenty conventions from 1901-1950, twenty-eight conventions held since 1950, and at least one convention from forty-four of the states--make it possible to trace the meaning of education clauses throughout the United States. (34)

   Second, it should also be noted that this historical study is not necessarily determinative of the current meaning of state education clauses, particularly for scholars and jurists who contend that the framers' intentions are irrelevant to constitutional interpretation. Nevertheless, an inquiry into the original understanding of these clauses is at least pertinent to, even if not dispositive of, an assessment of the legitimacy of recent state court interpretations of these clauses.

   It turns out, as will be shown, that the vast majority of state convention delegates had no intention of drafting education clauses that would empower judges to overturn legislative judgments with regard to the equity, adequacy, and uniformity of school financing. Thus, in some cases, delegates were quite explicit about their intent to draft hortatory clauses that either introduced the substantive provisions of the education article or encouraged legislators to support various goals. In other cases, delegates did intend to draft obligatory provisions requiring certain actions to be taken by legislators or local officials. However, these actions were specifically enumerated in the education clause, and when these requirements were not specified but were couched in general terms, delegates were invariably clear that the interpretation of these general provisions would be the province of the legislature. One finds only a few instances in the state convention debates, nearly all in the late...