Safeguarding the right to a sound basic education in times of fiscal constraint.

• Author: Rebell, Michael A.
• Position: IV. Constitutional Challenges and Constitutional Violations to V. A Framework for Constitutional Compliance A. Develop State Regulations to Implement Sound Basic Education Requirements, p. 1886-1919 - Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

4. CONSTITUTIONAL CHALLENGES AND CONSTITUTIONAL VIOLATIONS

   1. Problems of Constitutional Enforcement in Difficult Economic Times

      As state deficits mount and federal stimulus funding ends, it is likely that more parents and educators will turn to the courts for relief. A number of such cases are currently pending. Four of these directly challenge broad-based reductions in educational spending on constitutional grounds, (137) six indirectly challenge the recent budget cuts, (138) and one questions the constitutionality of state-imposed caps on school districts' ability to raise local taxes to compensate for state aid cuts. (139) Many more are certain to follow.

      As discussed above, the constitutional right to the opportunity for a sound basic education under most state constitutions is clear, as is the established doctrine that this right cannot be compromised because of the state's fiscal constraints. (140) That is why plaintiffs have prevailed with every court that has directly ruled on issues of funding reduction both historically and in the cases decided since the 2008 economic turn down. (141) With the recent cases, however, the degree of circumspection that the courts have expressed has grown. Accordingly, plaintiffs need to be concerned that as the state budget shortfalls continue and more cases come to the courts, the unprecedented extent, depth, and durability of the current state budget difficulties are likely to engender a heightened degree of institutional caution among state court judges in cases that challenge the appropriations decisions of the legislative and executive branches.

      Although the courts are not likely to reject the long established constitutional doctrine that constitutional rights cannot be compromised because of fiscal constraints, they may seek procedural or technical ways to avoid reaching the merits, or limit substantially the scope of the remedies they decree when they do enforce students' constitutional rights. Even in flush economic times, ten state highest courts finessed enforcement of student rights to the opportunity for a sound basic education by citing justiciability or separation of powers reasons. (142) More than twice as many of the state highest courts held that that these cases are justiciable, (143) but the scope of the current and continuing state budget pressures may make judges even in these states more wary of directly challenging the decisions of the political branches.

      The outcome of the state court adequacy litigations decided since the onset of the Great Recession may be telling in this regard. Although before 2008, plaintiffs had won two-thirds (twenty-three of thirty-three) of state court adequacy decisions, (144) their success rate has been halved in the most recent cases: they have prevailed in only three of the nine adequacy cases decided since 2008. (145) Significantly, in each case where the court frontally considered and applied the constitutional language, plaintiffs won. (146) In six of the nine cases, however, the courts avoided directly facing the constitutional issues by invoking justiciability (147) or other procedural or technical grounds (148) to justify rulings for the defendants.

      Although, as discussed above, plaintiffs so far have prevailed in all of the recent decisions that have directly involved reductions in educational appropriations, only one of these decisions was decided by the highest state court, three of the others are trial court decisions that are being appealed or are likely to be appealed, and the fifth was a settlement that has now been re-opened and is back in court. (149) Moreover, although the plaintiffs obtained important victories in these cases, except for the North Carolina preschool decision, the actual relief accorded was limited and the courts did not take immediate action to fully rescind the budget cuts. A close analysis of the budget cut case that has been thoroughly considered by a state supreme court (i.e., Abbott v. Burke) well illustrates the cautious stance that courts generally have taken in these cases.

      Over the past several decades, the New Jersey Supreme Court has been the state court that has taken the strongest steps to enforce students' rights to a sound basic education; it has issued more than twenty-five decisions and orders since 1973, many of which directly mandated specific legislative and/or executive actions. (150) Indeed, in the early days of these funding litigations, it went so far as to threaten to shut down the entire state-wide system of public education system if the legislature did not revise the funding system in accordance with its order. (151) However, in its recent decision dealing with the extensive funding reductions the state had implemented starting in 2010, the court displayed a markedly different stance. (152)

      First, the court made clear that its willingness to confront the legislative appropriations power here was a response to the challenge that the governor and the legislature had themselves posed to the integrity of the judicial branch by directly breaching a prior court order; the majority decision, in fact, listed four specific conditions that are relevant to this case, but would apply to few, if any, cases in the future. (153) Second, the majority's order was limited to the thirty-one Abbott districts, thereby requiring the state to rescind less than a third of the total state-wide budget reduction, even though the Court had 1) two years earlier in Abbott XX implicitly extinguished the special status of the Abbott districts in upholding the new statewide formula, (154) 2) directed the Special Master in its remand order in this case to consider the state-wide impact of the budget cuts, (155) and 3) the evidence in the Special Master's report primarily documented constitutional violations in non-Abbott districts. (156) Finally, unlike most of the previous decisions that were decided unanimously or with a single dissenter, (157) this case was decided by a narrow three to two majority of the court at a time when the court also had two vacancies; (158) thus, as the dissenters pointed out, this weighty issue was not upheld by a majority of the full complement of justices. (159)

      The New Jersey Court's invocation of technical procedural considerations and its minimization of its past statements on the statewide scope of its rulings clearly reflect a guarded attempt to minimize confrontation with the governor and the legislature in difficult economic times. Obviously courts should wherever possible avoid confrontation with the other branches of government, but this should not be done at the expense of the constitutional rights of hundreds of thousands of non-urban children in New Jersey. Especially in difficult economic times when a firm judicial stance on the importance of meeting children's needs is most needed, courts need to unambiguously insist on adherence to constitutional mandates. As the Chief Justice of the Arizona Supreme Court once put it, "[p]arents, their children, and all citizens need to know what rights the constitution gives our children, and the legislature needs to know the extent of its obligation in effectuating those rights. This court exists primarily for the purpose of resolving such issues." (160)

      A clear judicial insistence on upholding students' sound basic rights in difficult economic times need not engender confrontations with the executive and legislative branches. In my book, Courts and Kids, (161) written just before the onset of the Great Recession, I used a comparative institutional approach to develop a "successful remedies" model that seeks to promote a co-operative colloquy between the courts and the legislative and executive branches in developing and implementing effective solutions for constitutional compliance. The premise of the book was that in the past, effective remedies in education and other institutional reform litigations were developed when governors and state legislatures worked cooperatively with the state courts. Therefore, remedies in future education adequacy litigations should combine the courts' comparative institutional strengths (articulating basic principles and long-term "staying power") with the legislature's expertise in policy making and the executive branch's ability to promote effective implementation at the grassroots level.

      I would submit that this affirmative judicial role is more, not less important, in times of fiscal constraint. The extensive budget cuts undertaken by at least thirty-seven states over the past three years, (162) largely without any analysis of their impact on students' educational opportunities, clearly call for extensive judicial review. Court scrutiny is also necessary and appropriate to motivate and monitor state and school district efforts to improve cost efficiency and cost effectiveness and reduce expenditures, without undermining the opportunity for a sound basic education.

      Special efforts to promote efficiency in educational programs are necessary and appropriate during times of economic downturn, but in light of the state's continuing affirmative constitutional obligation to ensure meaningful educational opportunity to all children, and the critical importance of education to the nation's future well-being, (163) the approach to educational efficiency must be undertaken carefully, with a scalpel and not with a meat ax. The courts' principled approach to constitutional issues, their comparative advantages in marshalling and assessing evidence, and their institutional advantages in remaining committed to an issue until it is appropriately resolved (164) are all of critical importance in this endeavor.

      The courts can insist on strict constitutional compliance while minimizing volatile confrontations with the executive and legislative branches by emphasizing that the political branches have a responsibility to develop specific cost-effectiveness procedures and...