School finance reform litigation: Why are some state supreme courts activist and others restrained?

• Author: Swenson, Karen

1. INTRODUCTION

   Former Justice William Brennan provided an important impetus for state supreme court judicial activism when he urged state courts to "`step into the breach'" left by the Supreme Court's turn away from the liberal activism of the Warren Court.(1) Perhaps as a result, today state courts are increasingly offering more protection than the Federal Constitution to individual rights by interpreting provisions of their state constitutions more liberally.(2)

   An important example of an area where state courts are liberally interpreting state constitutions is public school finance. The traditional method of funding public school systems in the United States is through local property tax.(3) Local property tax-based finance schemes result in some school districts collecting substantially more tax dollars than others depending on the taxable wealth available in the district, regardless of the tax rate imposed.(4) Property-wealthy districts then spend considerably more per pupil, and the poorest districts do not have the funds to provide the quality of educational experience that many concerned citizens and public officials would consider minimally adequate.(5)

   The Supreme Court held in 1973 in the case of San Antonio Independent School District v. Rodriguez(6) that this kind of wealth-based disparity does not offend the equal protection guarantee of the Federal Constitution.(7) Rodriguez thus invited reform to be conceived at the state level.(8)

   All fifty state constitutions contain provisions guaranteeing a right to free public education.(9) Seventeen state courts of last resort have relied on their respective provision (and/or the state constitution's equal protection clause) to invalidate local property tax-based funding systems.(10) These courts purport to be persuaded by evidence showing great inequality of funding between the state's school districts and demonstrating that the state's poorest school districts fail to meet minimum measures of quality.(11) Twenty-six state high courts, however, have upheld a state school funding system.(12) Their reasoning has varied, but typically includes notions that school finance policy is best left to state, legislatures or to local prerogative.(13)

   One precept of federalism is that state supreme courts are the highest authority in interpreting their state's law.(14) Because the aforementioned state court decisions are interpretations of state law rather than federal law, the Supreme Court does not have jurisdiction to review them on appeal. This results in a devolution of enormous policy-making authority to state supreme courts in the area of education finance. Thus, the state high court decision-making process in this area is particularly worthy of study by political scientists.

   What causes state supreme courts to come down on different sides of this politically volatile issue? Striking down a statewide system of public school finance is a quintessential example of judicial activism--the least accountable branch of state government overrules the highly visible public policies set by state and local legislative bodies, and uses relatively novel legal precedent.(15) A state supreme court is not constrained to follow the precedent of its sister state courts, and the Supreme Court is not empowered to rule on the meaning of state constitutions.(16) Thus, a state supreme court has great latitude but limited guidance on the school finance issue and could credibly rule either way in a school finance lawsuit. Is there any explanation why some courts will accept the challenge presented to it by plaintiffs and others will not?

   Discovering a set of principles that unify school finance court decisions, or a set of meaningful variables that can predict the outcome of these cases could add some insight into judicial policymaking in this area so fertile for judicial input. Literature from the political science discipline of judicial politics, as well as traditional legal scholarship suggests several variables that could demonstrate that the different case outcomes may be due to forces other than random variance.

   Data Set

   The data set I employ is composed of forty state supreme court decisions from forty states.(17) In seven states, the supreme court has heard the issue previously in unrelated litigation.(18) Only the most recent decision has been included in order to avoid problems with autocorrelation.(19) Also excluded are follow-up cases reaching the high courts addressing the sufficiency of the remedy enacted by the state legislature. Indeed, when a state scheme is declared unconstitutional, litigation typically goes on for many years, and various controversies make theft way back to the state supreme court.

2. A MODEL OF SCHOOL FINANCE CASE OUTCOME

   Political scientists studying the courts entertain a variety of approaches to the study of judicial decision-making. The discipline is far from settled as to which is the leading contender, but many favor an "integrated model" encompassing various traditional models.(20) Traditional legal scholars ensconced in law schools far away from political science departments generally only accept that judicial decisions are products of relevant case facts and the legal precedent controlling the justices' interpretation of these facts.(21)

   The judicial politics literature and legal scholarship suggest several categories of variables which may explain why some state supreme courts strike down the challenged system of public school finance and some do not. This varied literature will be discussed below, along with a model of judicial decision-making in school finance cases supporting several testable hypotheses. The model was tested using the SPSS Logistic Regression program,(22) and the findings are presented and discussed. Several bivariate relationships(23) were further analyzed using SPSS Crosstabs,(24) and these findings are presented and discussed as well.

   1. Institutional Features--Judicial Selection Procedures

      Hypothesis 1: Elective courts are more likely to strike down school finance schemes than are appointive courts.

      Some studies of state supreme courts have focused on institutional features as variables explaining judicial decision-making. These variables are attractive to researchers of state courts, as variance amongst the states is substantial.(25) Several studies have examined the correlations between judicial vote and institutional features such as presence or absence of an intermediate appellate court,(26) type of opinion assignment procedure,(27) and judicial selection procedure.(28)

      Judicial selection procedure is of particular interest because it is taken seriously by policymakers as making a difference in the output of state courts - elections are presumed to increase the accountability of justices to the public, whereas appointed justices are presumed to exercise more independent judgment.(29) In addition, appointed justices are thought to be of higher quality because selection bodies pay greater attention to merit-based qualifications than does the voting public.(30)

      In about half the states, nominating commissions help governors appoint state supreme court justices.(31) Most of the rest of the states conduct elections.(32) In a small number of states, the governor appoints justices on his or her own,(33) or the state legislature selects the justices.(34) These selection systems are far from purely elective or appointive, however. In the large majority of states whereby justices reach the bench by appointment, they must face the voters in retention elections.(35) Furthermore, in most elective states, gubernatorial appointment is used to fill seats that become vacant between elections.(36)

      Several studies have examined the relationship between judicial selection procedures and the policy output of state courts, and have found it not significant.(37) One recent study demonstrated, however, that appointed justices are more apt than elected justices to side with the individual over the state.(38) Another study, conducted by Professor Melinda Gann Hall, found patterns of strategic voting by state supreme court justices facing the electorate not exhibited by justices not subject to election.(39) Professor Hall examined an issue of high salience to the voters, judicial votes on death penalty cases.(40) As school finance cases are also of high public visibility, it is reasonable to hypothesize that courts comprised of justices reaching the bench by popular election are more apt than appointed justices to strategically uphold the status quo and side with the state over the student - plaintiffs residing in poor school districts.

      On the other hand, justices owing their jobs at least in part to appointment by state government officials (such as the governor or legislators) are unlikely to vote against these officials when they appear before the court as defendants in a lawsuit. Deference to state officials and their policies should therefore be more marked in courts comprised of appointed justices. Furthermore, public opinion poll data sometimes indicates that the majority of the public favors school finance reform;(41) aside from the minority of students residing in the richest school districts and those attending public schools, the public looks forward to an overall improvement in their local schools. It seems reasonable that popularly elected courts would be somewhat more in touch with the preferences of the popular majority than appointed courts. Given alternative scenarios for the effect of selection procedure, I opt for this one.

   2. Legal Characteristics

      The legal model of judicial decision-making posits that judges look to the law and case facts relevant to the dispute, and decide the case on these bases alone.(42) This model is consistent with the view of legal scholars who view judges as thoroughly constrained in their decision-making by the interrelationship of facts, precedent, and legislative intent,(43)...