Rethinking judicial activism and restraint in state school finance litigation.

AuthorObhof, Larry J.
  1. THE IMPORTANCE OF EDUCATION 570 II. WHY LITIGATION? A LOOK AT THE POLITICS OF SCHOOL FINANCE 573 III. SCHOOL FINANCE LITIGATION: A BRIEF OVERVIEW 576 A. The Search for Equity in School Finance 576 B. The Shift from Equity to Adequacy in School Finance Litigation 578 C. The "Third Wave" 581 D. What are the Results of School Finance Litigation? 584 IV. A LOOK AT RECENT CASE LAW 585 A. School Finance as a Nonjusticiable Issue? Committee for Educational Rights v. Edgar 586 B. Activism [and Equity] in Vermont--Brigham v. State 590 V. JUDICIAL ACTIVISM OR JUDICIAL ABDICATION? 593 VI. DEMARCATING THE LINE FOR COURT INVOLVEMENT IN SCHOOL FINANCE 597 A. Is there a Middle Ground? Ohio's Search for Adequacy 598 1. Balancing States' Responsibilities and Local Control 603 B. The Benefits of the Middle Ground Approach 605 VII. CONCLUSION 606 Although state and local governments devote significant resources toward primary and secondary education, more than forty states have faced some form of litigation aimed at increasing school funding. Such cases have focused on the interdistrict inequalities that stem from states' reliance on local property taxes and, more recently, on deprivations of various constitutionally required levels of educational opportunity. While it sometimes proves difficult for courts to properly balance the principles of judicial review and judicial restraint, few areas have been so vexing as school finance litigation. Indeed, these cases are notable not only for their practical impact but also for their jurisprudential extremes. Some courts have been hesitant to provide even adequate judicial review, while others have seemed almost uninhibited in their willingness to act as quasi-legislatures that set educational goals and states' fiscal policies. This Article examines the various approaches taken by state supreme courts in deciding school finance cases and rejects both jurisprudential extremes in favor of a more moderate approach that better balances the principles of judicial review and judicial restraint.

  2. THE IMPORTANCE OF EDUCATION

    The establishment and maintenance of schools is one of--if not the--most important functions of state and local governments. (1) Since the very founding of the Republic education has been seen as both a private and a public good. The United States Supreme Court acknowledged in Brown v. Board of Education that education is central to democracy and the success of civic republicanism. "[Education] is required in the performance of our most basic public responsibilities.... It is the very foundation of good citizenship." (2)

    Why is education so important? The economic benefits that a society gains from having well-trained and educated workers are well known. (3) Educated citizens are also better able to choose--and serve as--responsible and knowledgeable public officials, and citizens who are informed of their rights and responsibilities serve as a check against governmental abuse. Perhaps most importantly, though, the American social system rests on two goals that require access to education: the "melting pot" that absorbs diverse populations into a pluralistic society and the upward mobility that allows us to overcome class barriers. (4) State and local governments recognize the importance of these factors and therefore devote significant resources to education finance. Education budgets are staggering, and such expenditures make up the bulk of both state and local outlays. In fact, in many states the education department is not only the largest of executive departments but accounts for more resources than all other departments combined. (5)

    Such efforts notwithstanding, the past three decades have seen a series of lawsuits brought against states and localities to increase funding of primary and secondary education. These cases initially focused on the interdistrict inequalities that result from states' reliance on local property taxes. The most recent wave of school finance litigation, however, has focused on alleged deprivations of some constitutionally required level of educational opportunity, often set forth in ambiguous state constitutional provisions.

    This Article begins by briefly discussing why school finance litigation occurs. I explain why elected officials have disincentives to providing strong education reform and that this causes plaintiffs to turn to the courts as a catalyst for change. The Article then offers an overview of school finance litigation. I describe the evolution from cases arising under federal equal protection claims to those relying on equity-based funding arguments to the more recent adequacy-based cases arising under state constitutions' education provisions. I argue that "adequacy" cases have been more successful than their predecessors for both legal and political reasons. I then briefly critique the effects of such litigation, finding that while court-mandated reforms have generally led to increased funding and greater equality among school districts, the overall academic effects are more ambiguous.

    I next examine the range of litigation outcomes through the lens of several recent cases. These cases illustrate two extremes that tend to dominate school finance litigation: judicial activism and a level of judicial restraint that some commentators have called "judicial abdication." (6) Some state supreme courts have found school funding to be a nonjusticiable political issue. In so doing they have abdicated their responsibility to provide adequate judicial review. (7) Others have been so activist that the words of state constitutions and the principle of deference to legislatures become almost meaningless. (8)

    This Article offers examples of each approach. I first discuss the holding and reasoning of the Committee for Educational Rights v. Edgar. (9) In Committee for Educational Rights, the Illinois Supreme Court concluded that school finance issues should be left solely to the legislative branch and were therefore nonjusticiable. (10) This reasoning echoed that of several other courts, including Florida, (11) Georgia, (12) and Rhode Island. (13) I then critique Brigham v. State, a sweeping decision by the Vermont Supreme Court that seemingly rewrote a relatively weak educational provision in the Vermont Constitution in order to support an equity requirement. (14)

    These cases demonstrate that constitutional language itself is sometimes less important than a court's will to reach a specific outcome. Indeed, some courts have moved beyond stating what the law is and have instead sought to define what should be required by law. Such decisions intrude upon the authority of the other governmental branches. The courts' relative insulation from the political process also raises some concerns. The judiciary is the least democratic branch of government. There is little reason to believe that courts are either more in touch with the citizenry or more capable of formulating sound public policy decisions than the other branches of government.

    After addressing the relative merits of judicial restraint and activism, I propose a third course of action that better balances judicial review and separation of powers concerns. A middle ground approach is seen in DeRolph v. State, in which the Ohio Supreme Court held the state's funding system unconstitutional on adequacy grounds but declined to fashion a remedy, leaving that to the state legislature and governor. (15) I conclude by setting forth some guidelines that state courts should consider when deciding school finance cases. These guidelines eschew extreme restraint and activism and instead seek to bring much-needed balance and predictability to school finance litigation.

  3. WHY LITIGATION? A LOOK AT THE POLITICS OF SCHOOL FINANCE

    It is obvious that policymakers and voters recognize education as one of the most important functions of state and local governments. Why, then, would school finance litigation ever be necessary? Could we not expect that elected officials would adequately fund schools, even if only to protect their own electoral careers? There are in fact strong disincentives for governors and legislators to make comprehensive changes to school finance systems. (16) First--and perhaps most important--is the fear of being associated with the introduction of new taxes. (17) A related problem stems from the nature of legislative representation. Individual legislators represent individual districts, whose goals (and need for increased spending) may differ from that of the state as a whole. Legislators who raise taxes that are likely to improve schools primarily in other districts may draw the ire of voters at home. These factors are amplified by the fact that representatives from poor districts, who are likely to support reform, tend to be outnumbered by the representatives of middle class and wealthy districts combined, who often oppose it. (18)

    For their part, governors are accountable to the entire state and are therefore less likely to be constrained by local interests. Governors have a limited amount of political capital, however, and are generally reluctant to expend it on a single issue. (19) Like legislators, they must also be careful not to spend too much of a state's resources only on education. Thus, while governors are often more willing than legislators to support education reform, they are unlikely to do so without an outside catalyst such as pressure from the courts. (20)

    Many states have had a need for such a catalyst. The debates about the importance of money notwithstanding, (21) educational opportunity is typically defined in terms of resource inputs, such as funding levels, as well as the number and quality of teachers, texts, and other quantifiable factors. (22) Variations on these measures, including per pupil expenditures, are significant both within and among states. (23) In any system where local property taxes account for a significant portion of the school...

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