Minnesota School Finance System is Unconstitutional

Today, I begin a redux of posts designed to examine the constitutionality of the way that our legislature and Governor decide on biennial appropriations for public education.    Several years ago the Supreme Court of the State of Washington issued its decision in a constitutional challenge to Washington's school funding system., McCleary. State.   The case is one in a long string of State Constitutional decisions issued in the past several decades, but it is particularly important, because it illustrates an emerging trend in education finance jurisprudence.  There have been a number of approaches to implementation of state constitutional guarantees of a thorough and efficient system of public education.   But I think that the McCleary case is the best, because it enforces the constitutional provision by forcing the legislature to confront the cost of the system that it establishes.

 Some Courts have refused to enforce their state constitutions, holding that their constitution's education clauses are merely invitations to the State legislature to do their constitutional duty.   An example of such a case is  Bonner v. Daniels, 907 N.E.2d 516; 2009 Ind. LEXIS 472,  where the Court stated:  

Guided as we are by the text of the constitutional provision in the context of its history, we conclude that the Education Clause of the Indiana Constitution does not impose upon government an affirmative duty to achieve any particular standard of resulting educational quality. This determination is delegated to the sound legislative discretion of the General Assembly. And in the absence of such a constitutional duty, there is no basis for the judiciary to evaluate whether it has been breached. The plaintiffs are not entitled to the declaratory relief sought regarding the Education Clause.

We say that these State Supreme Courts regard the enforcement of the state constitutional education clauses as not "justiciable," that is solely political questions to be addressed by the voters at the polls. See also, for example, Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 405 (Fla. 1996); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 29-32, 672 N.E.2d 1178, 220 Ill. Dec. 166 (1996); Nebraska Coalition for Educational Equity & Adequacy v. Heineman, 273 Neb. 531, 550-54, 731 N.W.2d 164 (2007); Oklahoma Education Assn. v. State, 2007 OK 30, 158 P.3d 1058, 1065-66 (Okla. 2007); Marrero v. Commonwealth, 559 Pa. 14, 19-20, 739 A.2d 110 (1999); Pawtucket v. Sundlun, 662 A.2d 40, 58-59 (R.I. 1995).

The majority of state Supreme Courts, however, have found their state constitutional clauses to create positive rights subject to enforcement by the judiciary.  Examples of such cases include Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 67, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003); Lobato v State of Colorado, 218 P.3d 358 (Colo. 2009); McDaniel v. Thomas, 248 Ga. 632, 644, 285 S.E.2d 156 (1981); Idaho Schools for Equal Educational Opportunity v. Evans, 123 Idaho 573, 583-84, 850 P.2d 724 (1993); Montoy v. State, 275 Kan. 145, 155, 62 P.3d 228 (2003); Rose v. Council for Better Education, Inc., supra, 790 S.W.2d 212; Hornbeck v. Somerset County Board of Education, 295 Md. 597, 632, 458 A.2d 758 (1983); McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 618-19, 615 N.E.2d 576 (1993);  Skeen v. State, 505 N.W.2d 299, 310-11, 315 (Minn. 1993); Columbia Falls Elementary School District No. 6 v. State, 2005 MT 69, 326 Mont. 304, 311, 109 P.3d 257 (2005); Abbott v. Burke, 119 N.J. 287, 374, 575 A.2d 359 (1990); Leandro v. State, 346 N.C. 336, 347, 488 S.E.2d 249 (1997); DeRolph v. State, 78 Ohio St. 3d 193, 203-205, 1997 Ohio 84, 677 N.E.2d 733 (1997); Pendleton School District 16R v. State, 220 Ore. App. 56, 67-68, 185 P.3d 471 (2008); Neeley v. West Orange-Cove Consolidated Independent School District, supra, 176 S.W.3d 783;Olson v. Guindon, 2009 SD 63 (S.D. 2009); Scott v. Commonwealth, 247 Va. 379, 384-85, 443 S.E.2d 138, 10 Va. Law Rep. 1192 (1994); Pauley v. Kelly, 162 W. Va. 672, 705-706, 255 S.E.2d 859 (1979); Vincent v. Voight, 2000 WI 93, 236 Wis. 2d 588, 622-23, 614 N.W.2d 388 (2000); Campbell County School District v. State, 907 P.2d 1238, 1258-59 (Wyo. 1995);

The Washington Supreme Court's position on this question of justiciability is that "article IX, section 1 [of the Washington Constitution] imposes a judicially enforceable affirmative duty on the State to make ample provision for the education of all children residing within its borders."

Courts that have recognized citizens right to sue to enforce the right to a constitutionally adequate education have taken varying approaches to the central question, how best to apportion the responsibility between the judiciary and the other two branches of government to define and enforce that right.  This question involves a balancing between the legislative function in a democracy and the judicial function inherent in constitutional government.    I intend to discuss the Washington approach in more detail in subsequent posts.    We will see that the genius of the Washington Court's approach is that it creates a framework under which the legislature can continue to perform its legislative function, but in a way which forces the legislature to confront its constitutional responsibility in a more transparent, responsible and accountable way.  

The Washington Court's idea is this.  The Constitution apportions to the legislature the responsibility to define an adequate education.    When a Court is called upon to determine whether that definition is constitutionally sufficient, it must give great deference to the legislature.   Now, if the legislature decided that an adequate education consists of reading at a third grade level and counting to 100, the Court could, and should, strike that ridiculous definition down as inconsistent with the modern understanding of the level of education sufficient to function in a free society.   But by and large, in the last several decades, legislatures have generally been defining basic educational requirements in a responsible way.  And when that happens, the Court should look to state statutory requirements and defer to them.

In this context, then, judicial review consists of determining whether the legislature has made a credible effort to connect the funding level provided to public schools with the true cost of providing that education.   Now many of you are shouting at me, at this point, well certainly most legislatures have conducted that analysis.   Surely, the legislature has carefully costed the programs it requires, and made an attempt to provide the revenues necessary to cover those costs.   But actually, the reverse is true.   In Minnesota, in Washington, in Colorado, and in many other states, the fact is that the legislatures don't make even a half-hearted attempt to derive the cost of the educational programs that they require.   Its not even a part of the dialog between Democrats and Republicans.   This is a bipartisan problem.  When Democrats are in control of the legislature, they don't set the funding formulas based on cost; when Republicans are in control, they don't set the funding formulas based on cost.  Its not part of the legislative process, period.  

It would be as if you decided to build a house with a swimming pool and three car garage, but never consulted with a builder to determine the cost of the lumber, labor, and land.   And so the idea at the core of the Washington decision is that it is irresponsible and constitutionally impermissible for the legislature to go about its  work in this fashion.   The funding process must begin with defining the education that shall be provided.   Then, the legislature must make a rational, fact-based determination as to how much money is required to deliver that education, and that process must control the funding process.

I'll discuss this idea further in my next post.