Providing and maintaining an education system is one of the most important functions of state and local governments. Few would dispute that fact. Educational attainment is linked to students’ long-term economic success and to the social mobility that has marked economic progress in the United States and around the globe. Parents know this instinctively. We want our children to do well in school, to learn as much as possible, and to have the best possible opportunities as they grow older.
In my experience as a state legislator, I have found that policymakers largely want the same things for the people they represent. One of my colleagues in the state senate is fond of saying that “children are thirty percent of our population, but they are one hundred percent of our future.” His point is well-taken. It is important not only that your own children receive a quality education and have better economic opportunities, but that all children do. Your children (and mine) will live in the world populated by their peers. Presumably, most of us want our own children to live in a society where others also are living up to their fullest potential: where people are well-educated or well-trained for economic opportunities, where citizens are able to choose (and serve as) responsible public officials, and where upward mobility helps overcome barriers such as race and class.
Thus, I start with two propositions. First, that most people view education as both a private and a public good. Second, that most policymakers share the broad-based goal of providing a quality education. Things break down from there.
Policymaking is not as simple as asking, “Do you think children should have quality educational opportunities?” It involves a host of other questions and competing interests. What constitutes a quality education? How does one provide it? How much do specific inputs, like money, make a difference in achieving this goal? What other public policy concerns are weighed against education in the competition for limited resources? These and many other questions combine into the overall discussion that policymakers must undertake.
Who are the proper persons to answer these questions? Or perhaps more pointedly, which is the proper branch of government to make these determinations? Many would say these policymaking functions belong to the legislative or executive branches—the branches charged by state constitutions with policymaking authority. Importantly though, most state constitutions contain a requirement to provide for some “common” or “thorough” or “efficient” system of schools, or some other language making government responsible for providing education. It is a court’s responsibility, when presented with a proper case or controversy, to determine whether a constitutional requirement like this has been violated.
Thus, for decades we have seen lawsuits across the country, filed by plaintiffs seeking to invalidate their states’ school funding schemes or increase funding for primary and secondary education. Many of these cases have succeeded; some rightly so. But rightly or wrongly, when a court strikes down a school funding formula or seeks to impose a remedy of its own, it intrudes upon the functions of the other branches of government. Which begs another question: when confronted with a constitutional challenge to a school funding system, what should a court do? Even if we agree that courts can invalidate a funding scheme under the right circumstances, there remains the separate question of what those circumstances are.
When I looked at these issues roughly fifteen years ago, I reviewed a range of state supreme court cases and compared the outcomes in those cases to the education clauses they were interpreting. I found at the time that “the constitutional language itself is sometimes less important than a court’s will to reach a specific outcome.” Some courts addressed challenges brought under fairly strong constitutional language, yet they found the issues non-justiciable or otherwise ruled against the plaintiffs. Other courts relied on comparatively weak constitutional provisions to order broad public policy changes. Still others engaged in substantive policymaking that appears to fall outside of the funding questions actually presented by the litigation. I found this pattern troubling then, and I still do today.
This article addresses the significant separation of powers issues raised by school finance litigation. It provides an overview of such litigation over the past several decades, including developing trends away from funding and into other areas beyond school finance. It looks at the varying approaches taken by courts deciding such cases and examines the relationship (or lack thereof) between the courts’ decisions and the actual constitutional language that they are interpreting. This article advocates for a better balancing of judicial review against the legislature’s role as the primary policymaker in school finance legislation and budgeting.
While I have written about this subject before, much has happened in the subsequent years. Litigants are moving beyond school finance and focusing instead on more discrete issues like teacher tenure. I now also have the added perspective of leading a state senate and engaging in the natural tug-of-war with the other branches of state government over the proper scope of each branch’s authority. I believe that this article therefore offers a unique view of the issues, as my longstanding academic interest in school funding combines with my experiences as a legislative leader.