School Finance Farce (Part One)

Amid all the controversy surrounding the recent SCOTUS decisions, it is easy to forget that federal courts do not have a monopoly on judicial activism.  State courts—and in particular state supreme courts—can and do make bad decisions, often cleverly insulating themselves from further appellate review by resting their decisions on “independent state grounds.”

If a state’s high court doesn’t rely on an interpretation of federal law or the U.S. Constitution, the U.S. Supreme Court cannot overturn the decision, no matter how erroneous it is.

The late Justice William Brennan, architect of many of the landmark Warren Court precedents (and a notorious activist), advocated—indeed, devised–this strategy in a 1976 speech to the New Jersey Bar Association, which was later published in the Harvard Law Review as the widely-cited article “State Constitutions and the Protection of Individual Rights.” (90 Harv. L. Rev 489 (1977)).   The Warren Court era was winding down, and Brennan was, in effect, “passing the baton” to state courts to keep the activist tradition alive.  Like many of Brennan’s strategies, it was stunningly successful.

I lamented this phenomenon in a 1999 Wall Street Journal column, entitled “State Courts Take Brennan’s Revenge.” Brennan’s biographers, Seth Stern and Stephen Wermiel, cited my column in their 2010 book Justice Brennan: Liberal Champion, with the comment that “Brennan’s article had helped inspire a wave of liberal activism on state courts.”  Quoting my column, Stern and Wermiel continued, “Brennan may have lost his activist majority on the Supreme Court, but he gained 50 junior Warren Courts in the process….  Call it Brennan’s revenge.”

Among the most active areas of state court activism was litigation involving school finance.  Even though the U.S. Supreme Court decided in 1973 that the U.S. Constitution did not require equal funding for a state’s school districts (San Antonio Independent School District v. Rodriguez, 411 U.S. 1)—i.e., that education is not a “fundamental right” protected by the equal protection clause of the 14th Amendment—many state supreme courts interpreted their state constitutions to require parity of funding.  Since most states’ public schools are funded in whole or in part by locally-assessed property taxes, judicially-mandated “parity” unavoidably requires taxes to be increased.  The judicial branch is peculiarly ill-suited to levy taxes (or to manage schools).

Much has been written about school finance litigation in states such as California, Kentucky, New York, and New Jersey (most recently, Steven Malanga’s excellent piece in the Spring 2014 issue of City Journal, “Brennan’s Revenge”).  The results everywhere are predictably abysmal; per student spending increases dramatically, with no significant improvement in student achievement (and little opportunity for taxpayer resistance).  Malanga failed to cover the Texas experience, which I shall briefly summarize in a series of blog posts.  It may seem strange that Texas—the nation’s largest and most influential “Red” state—is still in the thrall of state court judicial activism, but that is sadly the case.  (People tend to forget that Texas did not become reliably Republican until the early 1990’s; former Governor Rick Perry was a Democrat until 1989.)

In 1989, at a time when the (elected) Texas Supreme Court was controlled by liberal Democrats, it issued a unanimous decision, entitled Edgewood Independent School District v. Kirby, 777 S.W. 2d 391, authored by Justice Oscar Mauzy, a former State Senator (described by one scholar as “one of the most liberal members of that body”).  Mauzy, the son of a union organizer, brought his progressive politics to the court, and interpreted a provision in the state constitution calling for “an efficient system of free public schools” (standard verbiage for state charters written in the nineteenth century) to require that school funding throughout the state’s thousand-plus districts be “substantially equal.”   [To be continued]

Reader Discussion

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on July 09, 2015 at 09:44:25 am

I see how they reached the conclusion. Even conservatives, like Craig Enoch, used a conservative approach. They looked back to what words meant when the constitution was drafted. They focused on the words "general diffusion of knowledge." Then they focused on the meaning of the word "efficient." They cited definitions of dictionaries of that day, and decided that it was the duty of the Texas legislature to create an "efficient" system of public free schools that would deliver a general diffusion of knowledge. Since the schools in Alice, Texas couldn't deliver a calculus course to the students there while richer school districts could, knowledge was not being generally diffused. The word efficient, they decided, meant "productive of results." Using dictionaries of the day when the constitution was drafted, they concluded the Texas legislature was not complying with the constitutional mandate. Still, at least the earlier decisions didn't equate equal funding with equal outcomes, but somehow unequal funding came to be equated with unequal outcomes, notwithstanding the fact that some private schools produce better results for less cost per student. Thomas Sowell has written about the disconnection between funding and outcomes. A recent article in the Dallas Morning News shows an inverse relationship between additional funding and academic performance. That's right. Millions were infused into Dallas Schools. On the whole STAAR results went down.

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Thomas Allen
on July 09, 2015 at 10:30:15 am

And then there is this from Washington State ( see Wash. State v McCleary).

Washington State Constitution, Article IX, section 1"


I wonder if the drafters of the Wash. State Constitution thought that "paramount" would ultimately be construed by the venerated Black Robes as "to the exclusion of" - well, of just about everything else.
While the choice of the word paramount would indicate a rather high priority, indeed a supreme / first priority, it does not necessarily follow that the provision of other state services must be so impaired. Further, it appears the good judges have taken it upon themselves to determine what is / is not proper educational coursework / results, etc.
Are these not political decisions best determined by the People's Representatives. The Wash. Legislature is currently under the threat of contempt if they do not raise school funding.

For all of those, who in other posts, have argued that the Court(s) can not compel the Executive or Legislative Branches to implement a law - think again, it happens with some degree of regularity in education related matters.

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on July 09, 2015 at 11:04:20 am

While it is demonstrated in "liberal" ("progressive") "judicial activism," the underlying movement can be identified as CENTRALIZATION.

The history of provisions for schooling in America is simply **one example** of the of the centralization movements from very close family and close-knit (many commonalities) communities' (initially rural, but carried over into the earlier urban developments) establishment and administration of *their* children's schooling (not yet "education"). The course moved from local school "houses" to county schools, to consolidated schools, to school districts, to educational systems at state levels - and - need we add, a Federal Department of Education.

The "drive" for centralization has varied regionally, it has not been limited to schools (where its prominent stages may be observed). It appears in Constitutions, legislation, and as a means chosen by particular interests (say, rural or urban) for advantage, advancement or protection of conditions; so, it will appear in the functions of judicial systems. It's "in the water."

Provisions for services, utilities, water, roads, "public" health, police, etc., etc., give us further examples of both kinds and degrees of centralization.

Centralization facilitates collectivization. Collectivization facilitates "social engineering" (in its many formats). Why and how it does so continues to be a matter of study. Note the establishment and rise of the Federal Administrative State and the resultant involvements of the federal judicial system, decoupled from the Constitutionally delineated functions of the "Government."

Centralization has been a scourge of the French social order from the time of the Fronde; cemented in place under Napoleon to supplement or replace all other "unifying" ( or "solidarity") forces. There should be awareness of the effects of centralizations on our social order and the social order's evolution should be carefully weighed. The judicial processes are one place to begin.

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R Richard Schweitzer
on July 09, 2015 at 12:40:09 pm

'@ Gabe

In the language you cite is a distillation of the points made below.

Bringing schooling (now more broadly "education") under the mechanism of State government is centralization of a social function, once local and familial.

The State is reified or given "personhood" in the concept that it has a "Duty."
That "Duty" is collective, to be performed collectively through the facilities that comprise the State.

As with interests, the State has **no** duties. But, on that false attribution a collectivity is formed, which facilitates its use by those who do have particular interests to use that means for their ends.

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R Richard Schweitzer
on July 09, 2015 at 13:33:40 pm


Yep, absotively!

Not to mention the benefits deriving therefrom for the members of the collective who "just happen" to reap greater salaries, benefits and working conditions all while "slaving" away in support of the education of *the children*

Used to be said: "patriotism is the last refuge of the scoundrel" - perhaps?

Today's situation is best described as follows:

"*THE CHILDREN* is the first resort / refuge of the collectivist."

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on July 09, 2015 at 18:01:52 pm

For many decades, public schools did a good job of educating children and acculturating them as Americans. Phonics, McGuffey Readers, diagramming sentences, multiplication tables, Pledge of Allegiance, etc. Teachers were ordinary citizens, not culture warriors or political activists. In loco parentis--not subverting parental authority but providing guidance and supervision during the school day. What happened? How did we end up with public employee unions, radical agendas, gender identity training, birth control, etc., starting at any early age? And of course PC indoctrination. Christopher Columbus was a mass murderer, etc. Even worse, kids aren't learning well .Public schools are an expensive failure. Dick and Gabe, what are your theories?

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Mark Pulliam
on July 09, 2015 at 19:58:20 pm


It is rather complex I would say. All the "factors of change" that you mention are quite correct and have proven to be quite destructive of the "Common Mind" that sustained this republic for approximately two centuries.

Clearly, the influence of a) leftists and b) unions (Oops, I repeat myself), neither of which views its primary role as the simple education of children and the fostering of American tradition(s). The influence of these two has grown significantly and like a cancer is feeding on itself.

Rather than go into the various causes, I will instead cite one of my own crackpot theories as to what may have given this phenomenon a "high-octane" boost - the awarding of draft deferrals to teachers during the Vietnam War. What a remarkable way to assure that the composition of the educational mechanism would be shifted toward the left;. towards those who (not without some reason, mind you) could not see their way to recognize an "obligation" historically discharged by that age group (recall, however, that earlier groups may have also had reservations about their obligations). So they entered the academy; the choice having been made, there was no going back - certainly not ideologically and this ideological pretense served as a shield (an ever enlarging one BTW) against one's own suspicions of moral cowardice. How else can a decent democrat party member, over the course of 40 yrs, learns to embrace the most preposterous solutions AND policy prescriptions and behavior that literally fly in the face of what some of the '60's "movement" was about? Does anyone recall the Free Speech rallies at Berkeley? Now, as you indicate it is "Shut Up and Obey." We have come a long way, baby!!!!

One is chained to the mast of their ideology and those who claim to speak for that ideology - to deny ANY of it now, is to recognize that you may very well have been wrong in the past.

Just another crackpot theory (but I can (although I would not) reference a good number of young friends covered by the theory).

Now off to chill some excellent Washington State Chardonnay - this may surprise RRS as he knows my preference for red - but like out intellectual / ideological climate, it is just too dang hot for red wine. Sumtimes, ya just need sumpin' else!!!!

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on July 09, 2015 at 23:44:53 pm

'@ M S P

A chilling inquiry, but one indulged in a few years back in extensive exchanges with David Wessel at the WSJ a few years back. We began at his designation of "Higher Education," which I classified as "Post-Secondary Learning;" then moving back through the preceding levels, which at the beginning require teaching.

Perhaps some of that exchange can be recovered from storage discs and if of interest could be supplied through a separate channel rather than gum up this thread.

While the entanglement of teaching and learning facilities in the over all movements for centralization is a major explanation for what has happened to them, it does take us to the question of why and how did the centralization movement entangle schools.

We should be realistic and understand that the "public" systems are not disastrous on the whole, but have glaring disasters in about what -15 of the nations schools?
Reviewing the changes in the levels of the learning processes, and those at the earlier teaching levels which seem to have diminished learning acquisition at the end of the secondary phase, will take you part way on your inquiry - but is a full disquisition by itself.

The most incisive lead for your inquiry might be in the changing meaning of "Public" as related to schooling. Public, of course, means collective. It now also means politically directed, whereas in earlier stages it described the methods of financing, which led to need for decisions on costs and applications of funds. That transition to political direction is probably the major element in the chronological differences you note.

The 3 large surges of urbanization and births of the 20th century, together with the residual immigration re-ordered the homogeneity that framed the culture of the local school - into the neighborhood school, publicly financed,increasingly "administered," (school boards) and on into centralization coupled with political direction.

While there are conjectures about "cures" by ending political direction (state monopolies), we are left with the other changes that have occurred in those levels subject to teaching and learning. The earlier distinctions have been reestablished in some limited non-public examples, but will be hard to install generally given the changes in mature adult expectations of (let alone demands on) children and young adults.

We are unlikely to break the collectivization any time soon; but some spotty de-centralization has begun.

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R Richard Schweitzer
on July 09, 2015 at 23:50:00 pm

'@ M S P

sorry that "15" should have read 1%.

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R Richard Schweitzer

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