Unenforceable Rights: When State Courts Refuse to Engage in School Finance Disputes

• In Event: Toward a Civil Rights Education Finance Research Agenda

Abstract

Education is primarily a state responsibility, delineated in each state constitution. For instance, New York’s constitution provides, “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” Relying on such clauses, plaintiffs have argued that courts must step in when state legislatures fail to provide adequate resources. These clauses give states’ legislative and executive branches constitutional responsibilities, while courts have the responsibility to interpret the clauses.

The initial years of adequacy litigation saw success for the majority of plaintiffs. But a more recent trend has seen courts showing reluctance to hear such cases, because they present a “political question” and are therefore “non-justiciable.” The asserted violations of state constitutions were thus left to be resolved (or not) within the political branches.

While our constitutional system requires that no department shall exercise powers that properly belong to another, delineation is not precise and is determined on a case-by-case basis. Separation of powers considerations arise when judicial resolution of a controversy requires “policy choices and value determinations that are constitutionally committed for resolution to the legislative or executive branch” (Busse v. City of Golden, 2003). The political question doctrine is thus based on concerns about separation of powers and addresses those extraordinary situations where courts must decline to exercise their constitutional authority.

This stands as an exception to the general “judicial review” role of courts, which invalidates governmental actions that violate constitutional rights. An issue is justiciable whenever “the duty asserted can be judicially identified and its breach judicially determined, and … the protection for the right asserted can be judicially molded” (Baker v. Carr, 1962).

In this paper, we explore this justiciability issue to illustrate the role that state courts can play in shaping education policy, as well as limitations on that involvement. We rely on court opinions and legal analyses, focused in particular on litigation in Colorado, Indiana, Nebraska, New Jersey, and Washington. We also draw on research from political scientists, economists, and education researchers to provide context and to examine the import of this type of litigation.

Court’s justiciability concerns arise from the risk that courts will have to repeatedly provide guidance to legislatures regarding remedies. Courts in these cases may be required to fashion an initial remedy and to do so again if the legislature fails to act to bring the system into compliance. However, fear that a coordinate branch of government will fail to comply with its own constitutionally required responsibility should not be an issue of justiciability – and a finding of non-justiciability renders the education clause toothless. As a commentator wrote in reaction to the Heineman decision in Nebraska, “according to the Nebraska Supreme Court, the words ‘free instruction in the common schools of this state’ can mean a coloring book, a crayon, and a tree stump for a desk if the politicians say so” (Strange, 2007).

Authors

• Kevin G. Welner, University of Colorado Boulder

• kathleen gebhardt, Children's Voices

• Molly Hunter