Wednesday, March 21, 2012

McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions

This is the fourth in a series of posts on the recent Washington Supreme Court decision,  McCleary v. State, enforcing the State's constitutional requirement to assure appropriate funding for public education.  You can jump to prior posts in the series using links below.  McCleary v. State deals with a number of important issues in education finance jurisprudence.  But I've been posting on one aspect of the decision, the part that holds that the State does not meet its constitutional obligation to public education, when it sets funding based on politics rather than a data based costing system.  Unless the state legislature bases funding on credible efforts to determine the cost of required programs, it is acting irrationally and irresponsibly.

We can agree, can't we, that respect for the constitutional requirement to provide a "thorough and efficient system of public schools throughout the state" as the Constitution provides, should afford some level of due diligence, some factual basis, to support the connection between the cost of  education and the revenues provided.   If the legislature were to mandate the construction of a bridge across the Mississippi River, and order that it be built for half of the cost necessary to keep that bridge from collapsing under the weight of traffic, surely we would all recognize that the legislature would be failing to meet its public responsibilities.   When the bridge collapsed, it would hardly be a defense to say, that the bridge was built at half price, because of political considerations.  How would we feel if legislators said,   "We couldn't build a safe bridge in Minneapolis, because we had to spread the money around to St. Paul and Mankato."   If the State orders a bridge built, it had better appropriate enough money to build it to state standards.  

If there is a role for the judiciary to play in policing this concept:  that the state must fund the cost of education that it mandates as part of the "general and uniform system of public schools,"  how should that scrutiny be exercised.   When judges review a law to determine that it is constitutional, they apply different levels of scrutiny, depending on the circumstances.   Suppose for example that the legislature sets the speed limit on trunk highways at 65 miles per hour.  Suppose a citizen is arrested for speeding at 67 miles per hour, and the citizen attacks the speed limit as arbitrary and capricious.  Suppose the citizen claims that the legislature had no reasonable basis to set the speed limit at 65, that the legislature held no hearings, performed no studies, had no data showing a lower accident rate at 65 miles per hour than 70 miles per hour.  Constitutional jurisprudence requires us to apply what is called the "rational basis test."

A memo prepared by the Minnesota legislative House Research explains:   "A rational basis test applies to economic regulation not involving suspect classifications and, thus, to most of the classifications involved in the tax laws.  In general, a classification has a rational basis and is constitutional, if it reasonably related to or has some rational relationship to the objective the legislature sought to achieve.  The rational basis test gives the legislature considerable flexibility in creating classifications."  

This rational basis test, if it applies, has several aspects to it.  One aspect is procedural.  We don't require the legislature to make specific findings to demonstrate that 65 miles per hour is a really good speed limit.  We don't require the legislature even to hold hearings on the speed limit, or to make a record of the data that supports the speed limit adopted.    We don't require that the legislature reviewed specific reports, or that it interviewed specific experts.  When the legislation is challenged in Court, the State can defend by offering evidence that the legislature did not consider.  As an on line law journal article explains, "In Beach Communications v. FCC, for example, the Court explained that “if there is any conceivable state of facts that could provide a rational basis” for a challenged law, it will survive rational basis review. And because the Court “never require[s] a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant . . . whether the conceived reason for the challenged distinction actually motivated the legislature.”  Thus, not only is the government invited to dream up entirely post hoc rationalizations for challenged legislation, it has “no obligation to produce evidence” in support of those rationalizations either".

Now at in a later post, I am likely to argue that Minnesota's current funding process does not even pass muster under this minimum test, the lowest of all low levels of scrutiny, save the level that says, the Courts don't even afford judicial review of any kind.   But in Minnesota, as in the State of Washington, public education is a fundamental right.   The Constitutional education clause calls upon the judiciary to scrutinize legislative funding decisions more closely than that.   And so, one of the most important topics of discussion that we can have in this arena, is to examine levels of scrutiny that seem to make sense... that assure that the constitutional mandate is enforced, without the judiciary completely supplanting the legislative role altogether.  
We'll discuss some ideas for how the judiciary in Minnesota might exercise that function appropriately in the next post.

Links
McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
Summary of Decision Network for Excellence
Washington Supreme Court Blog  
JvonKorff on Education, The Rose Decision 
Minnesota's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

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