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Examination and analysis of education finance litigation in the context of judicial review and the utilization of statistical indices of equity /
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by George L. Lange, Jr.
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EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY














By

GEORGE L. LANGE, JR.


DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF
FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA


2005















ACKNOWLEDGMENTS

It is difficult to truly thank all of those individuals who have been instrumental in

assisting the completion of this dissertation and the attainment of a Doctor of Philosophy degree

from the University of Florida. The support that my father and sisters have given me has been

invaluable, as has the input of friends, faculty and fellow students here at the University of

Florida and previously at Slippery Rock University in Pennsylvania and the University of South

Carolina.

In the Department of Educational Leadership, Policy and Foundations, special thanks are

due the department chairman, Dr. James Doud and the graduate advisor, Dr. Katherine Gratto. I

am also indebted to the administrative staff of Angela Rowe, Eileen Swearingen and Barb Yaney

for their assistance. Special thanks are due to the members of my committee, Dr. David S.

Honeyman, Dr. Arthur Newman, and Dr. Richard K. Scher, for their insight, guidance and

support. My committee chair, Dr. R. Craig Wood merits appreciation and acknowledgment that is

beyond that which a few sentences can provide. A consummate professional, he has also served

as a mentor, a guide, and in more ways than he may realize, an inspiration. I shall always be

thankful for having had the opportunity to work with him.

Finally, I am moved to acknowledge those men and women of the Armed Forces of the

United States of America who have, from our nation's founding, given their lives that we may

enjoy the blessings of liberty and freedom. The opportunity that I was presented to pursue an

education in a free and secure nation was purchased with their sacrifice. All that I have done, or

shall ever do, pales in significance.















TABLE OF CONTENTS

Page
ACKNOW LEDGEM NTS ........ ........................................................................ ii

A B STRA CT............................................................................................ iv

CHAPTER

1 INTRODUCTION............ .... .................. ...................................... 1

N otes ............................................ .. .................... ......................... 9

2 EDUCATION FINANCE: CONTEXT AND BACKGROUND......................12

N otes............... .......... ........ ...................... .. .. ... ........................51

3 THE JUDICIAL BRANCH...................................... ......................... 62

Notes ........... .... .. ......................................... ........... ............ .... 116

4 EQ U ITY .............. .........................................................134

N otes .......... .............................................. .............. ............... ........ 144

5 EDUCATION FINANCE LITIGATION.................................................... 147

N otes ...... .... .... ... .. ..... ..................... .. ........ ............. .... 314

6 SUM M ARY ....... .... ... ................................................................... 355

N otes .......... ...... .......... .............................................................. 396

APPENDIX

A CASES CITING STATISTICAL INDICES ........... ........ ..... 407

B TABLES OF CASES REFERENCED ............................................... 411

REFEREN C ES.................. ......................................... ................ ........... 417

BIOGRAPHICAL SKETCH............................................................... .....432















Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy

EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY

By

George L. Lange, Jr.

August 2005

Chair: R. Craig Wood
Major Department: Educational Leadership, Policy and Foundations

The purpose of this study was fourfold; to examine the explicit utilization of statistical

indices of equity in education finance litigation, a consideration of the same within the context of

the ongoing dialogue addressing judicial activism and the role of the judiciary in American polity,

the possible implications of the findings of the former for the later, and lastly, provision of a

framework with which to further explore education finance, weighing its philosophical

grounding, the larger question of judicial review and the evolution from an appreciation of equity

to one of adequacy. To that end, ninety-seven cases in total were addressed, from Sawyer v.

Gilmore, in 1912 to Hoke County Board of Education v. State, in 2004. Of these cases, seventy-

seven were state high court decisions, nine from state appellate courts, six from federal district

courts, one from a federal circuit court, and six cases before the United States Supreme Court.

The review of the education finance cases herein demonstrated a state jurisprudential stance that

has generally been grounded in Article III doctrine, despite significant institutional,

administrative, and constitutional differences between state and federal courts. Yet, while the

courts have historically carefully guarded application of judicial review, the emerging judicial








trend exhibits a more aggressive posture, rendering decisions which present with tenuous

constitutional groundings, venture far into the realm of remedial prescription and oversight and

cast the courts as quasi-legislatures that define educational policy and goals, while constraining

fiscal discretion. The study of statistical indices over the course of the litigation record offers a

clear conclusion; few courts have called for complex statistical data and for the most part, at the

appellate level and beyond, simple indices were employed solely to inform the details of a case

but were irrelevant to the philosophical issue and the court's predisposition.















CHAPTER 1
INTRODUCTION TO STUDY

"School finance is the vehicle through which society makes its critical decisions about investment
in education."1

"School finance reform is like a Russian novel; it's long, tedious and everyone dies in the end."2

Public education legislation and the question of education finance in the United States

predates independence and the Constitution by nearly 150 years. In 1647 while attempting to

adapt to the new colonial environment, the Massachusetts Bay Colony passed legislation

requiring towns of at least fifty families to hire a teacher and communities of greater than one

hundred families to maintain a grammar school.3 The subsequent adaptations these arrangements

underwent as societal and political circumstances warranted presaged the constant theme of

change in American educational jurisprudence and legislation. At the forefront of this dynamic

have been the state judiciaries, the application of constitutional textual interpretations and the

calculation of educational equity and adequacy.

The purpose of this study is fourfold; to examine the explicit utilization of statistical

indices of equity in education finance litigation, a consideration of the same within the context of

the ongoing dialogue addressing judicial activism and the role of the judiciary in American polity,

the possible implications of the findings of the former for the later, and lastly, provision of a

framework with which to further explore education finance, weighing its philosophical

grounding, the larger question of judicial review and the evolution from an appreciation of equity

to one of adequacy. To that end, ninety-seven cases in total are addressed, from Sawyer v.

Gilmore,4 in 1912 to Hoke County Board of Education v. State,5 in 2004. Of these cases, seventy-

seven are state high court decisions, nine from state appellate courts, six from federal district

courts, one from a federal circuit court, and six cases before the United States Supreme Court.









The research herein is a measured consideration of education finance litigation within the

context of judicial review. In conjunction with this concern, is the identification of the utilization

of statistical indices of equity. This study served to inform the discussion of the role of the

judiciary in American public education, the propriety of that engagement, and the principles

articulated in the concepts of adequacy and equity and the utilization of same in state and federal

jurisprudence. Commenting on the numerous and diverse concepts of judicial review, Canon

observed that it "is a central if not well-informed feature of the American system. As such it has

long been subject to both political polemics and scholarly analysis...thus, the concept...has little

common meaning; it has encompassed whatever a given writer or reader conveyed or inferred."6

This indeterminancy is exacerbated at the state level given that the contemplation of judicial

review and constitutional interpretive theory, and characterizations of courts and jurists as activist

or restrained in reference to education finance litigation must be drawn through the prism of state

courts and constitutions. Following the construction of that "prism" both in a broad treatment of

review in the context of Article III courts and also state judiciaries, this study attempted to place

education finance litigation in toto along the continuum of judicial activism and restraint. To that

end, it delineated characteristics of those courts evidencing at either end within the context of

state jurisprudence. A second goal is an identification of judicial trends, reflecting recent

decisions, the construct of judicial federalism, and possible implications for the design and

administration of education policy. Thirdly, does there exist a correlation between the specific

utilization of statistical indices of equity and a judiciaries' embrace of either an activist or

restrained posture. An ancillary design of this study is the provision of a resource addressing

school finance litigation, current scholarly appreciations, and a unique, detailed treatment of the

major cases in the field; this in addition to a broad treatment of judicial review, its historic and

philosophic antecedents and the major schools of constitutional interpretational theory and their

proponents.









The genesis of this study was spurred by an evolving judicial embrace of adequacy in

education finance litigation. Whereas statistical indices of equity provide distinct parameters, the

adequacy theory requires courts to define a remedial role relative to the legislative and executive

branches thus generating questions ofjudicial review, particularly separation of powers, political

questions doctrine, and judicial competence. Further, the adequacy cases call upon the courts to

define the purpose of education and interject the judiciary into administration and oversight. The

significant implications for education and fiscal policy, the perception and legitimacy of the

courts, and the political and economic importance of public education necessitate a work of this

nature in order to inform the consideration for the legal community, educators, legislators, and the

public; a calculation not of whether the courts will participate in the constitutional and policy

dialogue, but of what form of participation bests serves the educational needs of the individual

student, the states, and the nation. The expanded role state courts have assumed in education

finance under judicial federalism calls for a contemplation of the legitimate breadth of judicial

power, particularly in the state constitutional systems. As this study concluded, sixteen states

were embroiled in litigation challenging the public education finance distribution formula. It has

been marked that in reference to education finance litigation, the momentum has distinctly shifted

in favor of plaintiffs challenging the state on adequacy grounds.7 Heise has marked that the

"more theoretical and abstract questions raised by judicially-mandated school finance reform,"

draw attention to the broader contemplation of the role of the judiciary in a democratic society.8

Substantively, state spending regarding public education accounts for one of the largest segments

of its annual budget and court rulings impacting education finance influence allocations to other

areas. Numerous institutions are involved in the funding of public education and, in conjunction

with a number of social and political variables, make any initiative to influence education finance

difficult to construct and gauge. A host of studies had demonstrated the uncertainty over what

effect the interjection of the judiciary has upon educational spending and quality, and the

propriety of the an ever increasing judicial profile. Absent in these studies was reference to the









unique state judicial and constitutional context within which these decisions were generated, the

constitutional interpretive theory employed, and the utilization of statistical indices of equity and

the presence or absence of a correlation of same to the court's treatment of judicial review and the

constitutional text.9

Further underscoring the necessity of an informed consideration of the role of the

judiciary, constitutional theories utilized, and the treatment of adequacy and equity, are the

widespread concerns currently presenting in regards to the current state of American public

education. In a nation that embraces a concept of meritocracy, the premise that all children are

entitled to an adequate education that prepares them for active, informed participation in a

democratic society is beyond dispute. Not as clear is what exactly entails an adequate education

and to which institution should that determination be entrusted. Contributing to the urgency of

that calculation in a nation that likes to consider itself the embodiment of meritocracy is, as the

The Economist recently found, "a growing body of evidence [that] suggests that the meritocratic

idea is in trouble in America."'1 The study found that as income disparity grew to unprecedented

levels, social mobility stagnated, a development that may presage the United State's calcifyingg

into a European-style class-based society."" Cited as a major contributory factor was the

education system; operating on the premise that upward mobility has become increasingly

determined by education, the work found that the education system has become stratified by

social class and disparate funding.12 Hochschiled recently observed that during the 1970s, four in

ten Americans expressed a great deal of confidence in public education, a percentage that had

fallen to less than one quarter as the Twentieth Century drew to a close.13 She noted that the

percentage of Americans who believed that education was the most important problem facing the

country rose from 2 to 13 percent.14 In light of these concerns, the 36th Annual Phi Delta

Kappa/Gallup Poll of the Public Attitudes Toward the Public Schools" in 2004 found that nearly

one quarter of the American public now believed that lack of financial support represented the

greatest impediment to improving education, while half of the nation rated public schools









mediocre as best.16 However, in the fall of 2004 voters expressed caution regarding any increase

in public education financing, as a score of state initiatives to increase school funding were

defeated." John G. Matsusaka, president of the Initiative and Referendum Institute at the

University of Southern California found that while voters were willing to increase funding for

health care and other social programs, they were reluctant to do so for education, concluding it

"was a bad day for education."'8 Reflecting the specter of education finance litigation as a Sword

of Damocles, voters in Alabama defeated a referendum that would have removed language from

the 1901 state constitution that required segregated schools and poll taxes to pay for education.

Opposition to the initiative, however, was spurred by the additional proposal to remove a passage

stating that nothing in the state constitution mandated "any right to education or training at public

expense." According to opponents, the removal of the phrase in question would increase the

state's vulnerability to education finance lawsuits. One observer marked that "when you swing

that door open, there is unlimited opportunity for mischief...it's a trial lawyer's dream."'9

The presence of a skeptical and conflicted public in reference to education also presents

in the perception ofjudiciary. As noted, the involvement of the judiciary in the construction and

oversight of education and fiscal policy has the potential to place the courts squarely within

political maelstrom, calling into question judicial legitimacy and threatening judicial

independence. G. Alan Tarr, recently addressed the matter, commenting that the recent general

decline in public confidence in the judiciary reflected developments within the legal community;

particularly the fact that the concept of judicial fidelity to the law has been complicated by the

absence of consensus as to how the law is interpreted and the delineation of the exercise apart

from legislating.20 Hensler noted an increased skepticism regarding the impartiality of the

administration ofjustice; a heightened perception that judicial decisions are not based upon the

legal merits, thereby weakening the rule of law and arguments for judicial independence.21 Given

that education finance litigation entertains constitutional texts which do not provide unambiguous

or dispositive guidelines, the judicial concerns are particularly germane to their contemplation.









Considering the increasing success of advocates of increased education funding in the

courts, Hunter observed that "it does feel to us when we have a major win that just builds

momentum."22 Lindseth opined that "there's sort of a bandwagon effect, courts are looking at

what's happening in other states, and they're jumping on the bandwagon."23 This trend

underscores the timeliness of the consideration this study seeks to inform, particularly in light of

the recent decisions from Wisconsin,24 New York,25 and Massachusetts;26 cases detailed, infra

test.

The momentum of these cases presents as a limitation to this study. As this work was

being completed, decisions from the state high courts in Kansas, Massachusetts, and Montana

were pending, and adequacy cases were being initiated in Arizona, Nebraska, Georgia, Missouri

and Kentucky.27 Wood and Thompson have noted that "the dynamics of contemporary education

finance litigation make it virtually impossible to present an accurate account of all actions before

every trial court."28 In addition, within the treatment of public school funding, the term education

finance litigation refers to those cases which challenge the method under which the state funds

education on federal and/or state constitutional grounds. While that serves to limit the scope of

consideration, a further restraint was introduced in confining the study to cases generated at the

appellate level.29 It is also necessary at the juncture to qualify that the author does not propose to

introduce a critique of recently enacted school reform legislation in response to judicial mandate.

Rather than entertaining the efficacy of an activist or restrained judiciary, the study is restricted to

the issues raised by court involvement or lack thereof; considered within the context of unique

state constitutions and judiciaries, the concepts of equity and adequacy, and the implications for

education policy and state political and legislative processes.

This study was designed primarily as a review of relevant state caselaw. Significant

federal caselaw was also examined, in order to illuminate Article III court doctrine in reference to

review and the precedential value these cases have had for adjudication at the state level. The

emphasis in this research was on primary source materials, namely published federal and state









court decisions. A wide variety of secondary sources were also consulted and evaluated in order

to provide background for this work and for the construction of the contextual frame of reference

for judicial review and equity and the interpretation of primary sources.

The most challenging and extensive research invested in this study was devoted to the

identification of pertinent primary sources in the form of reported case decisions. A variety of

tools and methods were used to achieve the most comprehensive results. An invaluable initial

source of education finance litigation cases was R. Craig Wood and David Thompson's

Education Finance Law: Constitutional Challenges to State Aid Plans--An Analysis of

Strategies.30 West's Education Law Reporter Digest3 was also another key source. All issues of

this index were researched under both key word and key numbers. Key terms included "School

Finance," "Education Finance," "Public Schools," and "Public Education." All indicated case

references then were referenced manually in either the Education Law Reporter32 or the original

case reporter. A similar exercise was conducted utilizing the LEXIS/NEXIS33 system. Primarily

used to access more recent case decisions, those already in print were referenced manually from

the appropriate case reporter. The website of ACCESS,34 also proved invaluable in identifying

past education finance litigation and current legal initiatives. In addition, after identifying cases

from the aforementioned, the decisions were reviewed individually for references for related

cases not located in the initial searches. Secondary sources were utilized in a similar fashion.

The majority of the cases were cited from the legal reporters compiled by the West's

National Reporter System, including the federal and regional reporters.3 In those instances when

the decisions were not available from the reporters, then specific state reporters were referenced.6

The citation source within the text for this study was The Bluebook: A Uniform System of

Citation37 and The Chicago Manual of Style 3s was referenced for the bibliographical entries.

A wide variety of secondary sources were utilized in this study. Texts and books were

located through the University of Florida George A. Smathers Library On-Line Catalogue,39

which also allowed access to other academic libraries. Journal articles were located through a









variety of sources, including the U.F. On-Line Catalogue (which included the E-Journal Locator,

the Index to Legal Periodicals, and the Eric system) and LEXIS/NEXIS.40 Works and journal

articles secured were also examined for further references therein. A search was also conducted

in Pro-Quest Digital Dissertations,41 which found no unpublished dissertations similar to this

work or of direct assistance.

This study represented an effort to place education finance litigation within the context of

judicial review, consider the application of statistical indices of equity in these cases, and provide

background and information in both the realms of school finance and judicial review in order to

inform the concerns of a variety of users, and facilitate access to the litigation record. To that end,

this work is divided into six chapters. Chapter 1 provides an overview of the study, a discussion

of the need for the study, limitations, methods and materials utilized, and organization. Chapter 2

is devoted to education finance, particularly its historical and philosophical antecedents, and a

review of the literature in the field. Chapter 3 is focused upon the judiciary, notably the question

of judicial review and the development of the concept in American jurisprudence; the positions of

proponents and advocates reflected in both the scholarly and popular literature; the doctrine as

applied in Article III courts; and the unique nature of state constitutions and judiciaries in order to

frame the consideration of activism in state jurisprudence. Chapter 4 addresses equity,

particularly in reference to education and the characteristics and application of statistical indices.

Chapter 5 is a chronological review of education finance litigation, from 1912 through 2004. The

final chapter is a summary of findings, citation of cases presenting as activist or restrained, and a

consideration of possible implications for further litigation and the design and administration of

education policy. 42









Notes



SWilliam Clune, New Answers to Hard Questions by Rodriquez: Ending the Separation of School
Finance and Educational Policy by Bridging the Gap Between Wrong and Remedy, in, 25 CONN LAW REV.
721,755 (1992).

2 Mark Yudof, School Finance Reform in Texas: The Edgewood Saga, in, 28 HARVARD JOURNAL
ON LEGISLATION 499 (1991).

3 W.E. Sparkman, The Legal Foundation ofPublic School Finance, in, 35 BOSTON LAW REV. 570,
571 (1996).

4 83 A. 673 (Maine 1912).

S599 S.E.2d 365 (N.C. 2004).

6 Bradley C. Canon, A Framework for the Analysis ofJudicial Activism, in, Supreme Court
Activism and Restraint 385 (Stephen Halpern & Charles Lamb, eds. D.C. Heath, 1982).

7David Hoff, States on Ropes in Finance Lawsuits, in, EDUCATION WEEK 15 (Dec. 8, 2004).

8 Michael Heise, 1997 Winston S. Howard Distinguished Lecture; Schoolhouses, Courthouses,
and Statehouses: Educational Finance, Constitutional Structure, and the Separation of Powers Doctrine,
in, 33 LAND & WATER LAW REV. 281 (1998).

9 See, e.g., Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts: The Promise
and Problems of moving to a New Paradigm, in, Equity and Adequacy in Education Finance 173 (H. Ladd,
et al., eds. National Academy Press, 1999); Mark Rebell, Educational Adequacy, Democracy and the
Courts, in, Achieving High Educational Standards for All: Conference Summary 218 (T. Ready, et al., eds.
National Academy Press, 2002); D. Verstegen, Judicial Analysis During the New Wave ofSchool Finance
Litigation, in, 24 JOURNAL OF EDUCATION FINANCE 2, 51 (1998); William Colwell, Judicial Review: Issues
of State Court Involvement in School Finance Litigation, in, 24 JOURNAL OF EDUCATION FINANCE 2 (1998);
James Dayton, Examining the Efficacy of Judicial Involvement in Public School Funding Reform, in, 22
JOURNAL OF EDUCATION FINANCE 1 (1996); Michael Heise, State Constitutional Litigation, Education
Finance, and Legal Impact: An Empirical Analysis, in, 63 U. OF CONN. LAW REV. 1735 (1995); James
Cohen, Judicial Control of the Purse-School Finance Litigation in the Courts, in, 28 WAYNE LAW REV.
1393 (1982); James Ward, Implementation and Monitoring ofJudicial Analysis, in, The Impacts of
Litigation and Legislation on Public School Finance: Adequacy. Equity and Excellence 225 (J. Underwood
& D. Verstegen, eds., Harper and Row, 1998); William Fischel, School Finance Litigation and Property
Tax Revolts: How Undermining Local Control Turns Voters Away from Public Education, in,
Developments in School Finance. 1999-2000 79 (Fowler, ed., National Center for Education Statistics,
2000); B. Joondeph, The Good, the Bad, and the Ugly: An Empirical Analysis ofLitigation Prompted
School Finance Reform, in, 35 SANTA CLARA LAW REV. 763 (1994); R. Manwaring & S. Sheffrin,
Litigation, School Finance Reform, and Aggregate Educational Spending, in, 2 INTERNATIONAL TAX AND
PUBLIC FINANCE 107 (1972); D. Thompson & F. Crampton, The Impact of'School Finance Litigation: A
Long View, in, 27 JOURNAL OF EDUCATION FINANCE 133 (2002);

'1 Ever Higher Society, Ever Harder to Ascend-Meritocracy in America, in, THE ECONOMIST (Jan
1,2005), available at,
http://web.lexisnexis.com/universe/document? m=fa9a8052e06d8596662108141494a38& docnum=l&wc
ho-dGLbVzz-zSKVA& md5=aea78010fc05 at *1.


"Id.










12 Id. at *2; The study also noted that these poorer districts were plagued by an aversion to the
introduction of measures of accountability, merit pay for teachers, and incentives for outstanding students;
contributing to the creation of"dumbed-down" schools, id.

13 Jennifer Hochschiled, The Poll-Trends: Governance & Reform ofPublic Education, in, 62 PUB.
OPINION Q. 79 (1998).

14 d. at 80.

15 36h Annual Phi Delta Kappa/Gallup Poll of the Public Attitudes Toward the Public Schools
(2004) available at, http://!www.pdkintl.org/kappan/k0409pol.htm

16 Id

7 See, Table: Ballot Measures, available at,
http:./www.edweek.org/ew/articles/2004/ 1/10/11 iniitiatives-sl .h.24.html; Tax reform and school spending
measures designed to increase funding for pubic education were defeated in Alabama, Arkansas, Nevada,
and Washington. Voters in California approved a measure preventing the state from setting local property
tax rates for funding education, while in Louisiana property-tax exemptions were increased for primary
residence. In North Carolina, voters did approve of the allocation from fines and civil penalties, while in
Colorado, an initiative dedicating sixteen percent from an increase in cigarette taxes to education was
approved.

18 David Hoff& Andrew Trotter, Voters Largely Reject Funding, Policy Shifts, in, EDUCATION
WEEK 24 (Nov. 10, 2004) (citing John G. Matsusaka).

19 Id. at 27.

20 G. Allan Tarr, State Judicial Selection and Judicial Independence, in, Commission on the 21st
Century Judiciary Appendix D, 9 (ABA, 2003).

21 Deborah Hensler, Do We Need an Empirical Research Agenda on Judicial Independence? in, 72
SO. CAL LAW REV. 707 (1999).

22 Hoff, supra note 7 at 15 (citing Molly Hunter of the Advocacy Center for Children's Education
Success with Standards).

23 Id. at 16 (citing Alfred A. Lindseth of the law firm of Sutherland, Asbill & Brennan that is often
called upon to represent states in education finance cases).

24 Vincent v. Voight, 614 N.W.2d 388 (Wis. 2000).

25 Campaign for Fiscal Equity, Inc. v. State, 769 N.Y.S.2d 106 (N.Y. 2003).

26 Hancock v. Driscoll, 2004 Mass. Super. LEXIS 118 (Mass. Supp. 2004).

27 See, Hoff, supra note 7.

28 R. Craig Wood & David C. Thompson, Education Finance Law: Constitutional Challenges to
State Aid Plans-An Analysis of Strategies 98 (2"" NOLPE, 1996).

29 The study was confined to the appellate level primarily due to the general inaccessibility of the
trial court record and the design to present a concise, yet comprehensive chronological record that could be
referenced in a relatively timely fashion.











30 Wood, supra note 27.

31 West's Education Law Reporter Digest (West Publishing Company, 1983-).

32 Id.

3 http://web.lexis-nexis.com/universe.

34 A national project of the Campaign for Fiscal Equity, Inc., retrieval at,
http://www.accessdnetwork.org/.

3The regional reporters record state court decisions.

36 The only state cases not generally found in the regional reporters were from states with
extensive state litigation, namely New York and California.

37 Harvard Law Review Association, The Bluebook: A Uniform System of Citation (17th ed.
Harvard Law Review Association 2002).

3The University of Chicago, The Chicago Manual of Style (14th ed. University of Chicago Press
1993).

http://www.uflib.ufl.edu/.

40 Supra note 10.

41 http .:/vww lib.umi.com!dissertations/gateway.















CHAPTER 2
EDUCATION FINANCE: BACKGROUND AND CONTEXT

Public school finance policies and the quest for school finance reform result
from, and are embedded in, the basic value conflicts in American life and need to
be understood in that context. The struggle for equity and justice in financing
public schools has been influenced and guided by fundamental values conflict in
American society and emerging policies result from tentative and temporary
consensuses that have been reached at any point of time.'

Public education in America has been a mirror of the nation's concerns and aspirations.

R. L. Johns observed that though it dates from Seventeenth Century New England, its genesis was

not spurred by concerns for altruistic, humanistic, or economic interests, but rather to defeat, "ye

olde deluder Satan."2 From its inception through the early Nineteenth Century, education was

considered to be primarily a church and/or family responsibility. Although the first property tax

for local schools was levied in Dedham, Massachusetts in 1648 and New Hampshire required

local taxation to support elementary schools in 1693,3 support for early schools came from a

variety of sources. Bailyn marks that "in the colonial period, financing of public schools was

achieved through a blending of local resources: local taxation of property, philanthropy and

charitable gifts, and the use of public utilities such as ferries and mills, among other sources."4

State aid for local schools emerged in New York as the Eighteenth Century drew to a close and

was codified into law in 1812 with flat allocations of fiscal aid designed to stimulate local effort.

However any question of equalization or how to address local discrepancies in fiscal capacity did

not present until mid-century as it became apparent that the degree of local support varied

considerably from locale to locale.

As the common school movement gained traction under Horace Mann of Massachusetts

and Henry Barnard of Connecticut it soon became apparent that one of the most daunting

challenges was establishing the principle of free public education. Making the case years earlier









in Britain, economist William Petty wrote in 1662 that education should be a publick charge,"

given the benefits that would accrue to society as a whole. In appraising Seventeenth Century

England, Petty saw far too many lawyers, doctors, and preachers and believed that if the

government were to finance education it could cut the number of parishes in half, reduce the

number of lawyers by ninety-nine percent and extinguish that "infinite swarm of vain pretenders

unto, and abusers of [medicine]."6 Economic historian Earnest Johnson suggested that "Petty's

general attitude (if not his disdain for particular professions) was typical of early economists, who

felt that society would improve in various ways if the state would take an active hand in

education."7 However in America the concept of a free public education was considered a radical

step. Regarding the argument for the establishment of public schools, Johns remarked that "I have

not been able to find any authentic documents published between i830 and 1860 in which it is

argued that children have a right to a free public education."8 Church schools, dame schools, and

one room school houses supported in small measure by local taxes augmented by private

financing and tuition generally represented the breadth of provision of education in the early

republic. In terms of administration, each small town functioned in effect as a school district,

although in the urban centers larger school systems began to emerge. Spurred by the realization

that education was vital in the new nation and illuminated by a nascent common school

movement, initiatives were undertaken to create statewide systems of oversight and coordinated

programs of local support. Odden and Picus have marked that, "by 1820, 13 of the then 23 states

had constitutional provisions, and 17 had statutory provisions pertaining to public education."9 In

addition, they note that as control in the common school era slowly moved from the church and

family to local lay boards of education, by the mid tc late 1800s most states "required local

districts to fully finance mandated public schools through local property taxes."10'This

development, although meager, was a far cry from the patchwork method of finding schools

witnessed hitherto. Although not generally considered a state responsibility, there was a growing

tendency before the Civil War for states to maintain what were termed "permanent endowments"








that were earmarked specifically for public schools." Historian Steven Rippa, assessing these

funds, observed that:

[T]hey were first established by those older states that did not share in the
congressional land grants. Consisting largely of miscellaneous revenues derived
from escheats (or fines), liquor licenses, marriage fees, and other sources, the
earliest school funds were small and were usually allowed to accumulate before
being apportioned to the schools.12

The funding programs hoped to encourage local effort by tying apportionment to the

institution of voluntary local revenue generating initiatives. States soon took steps to provide for

local support by disbursing funds solely on a matching basis. First adopted in New York in 1805

it was soon patterned across the young republic. However, it quickly became apparent that the

permanent endowments and the hoped for local support were not dependable sources of revenue.

In response, Rippa writes that "the states passed laws permitting the local districts to tax

themselves for public schools if the people voted for the tax levy. But every effort toward

taxation was hotly contested by the local citizens. Later, most states found it necessary to enact

laws forcing the local districts to tax themselves up to a limited point for school support."'3 Yet,

in the main, the support of education was dependant upon revenue generated through the

collection of tuition from individual families.

Pauper school laws throughout the northeast provided for the funding of education for

children of the poor, not an insignificant portion of the population. These statutes required parents

declare themselves publicly as paupers before tuition from the state was provided to allow their

children to attend the nearest public school. Special funds, much like the permanent endowments,

were created for these cases, derived in much the same manner as revenue collected for other

public needs. However, very few parents were inclined to identify themselves as paupers in order

to warrant that charity. These factors conspired to ensure that few students were actually enrolled

in what public education was available, It has been estimated that by 1828 over half of the

400,000 children in the state of Pennsylvania were not enrolled in any form of schooling.'4








An example of state response to these dynamics was the Pennsylvania Free School Act of

1834. The legislative initiative was the direct result of the efforts of common school advocates

who had sustained a long campaign to eliminate the pauper school laws, reduce the dependence

on tuition and create a statewide education system. The act created 987 rural and urban school

districts, which were to hold election to determine if the citizenry would accept the provisions of

the act, particularly the targeted local tax levy. Those districts that declined were to continue

under the old miscellaneous funding schemes, i.e., pauper school laws. Contemporary accounts

mark that the response to the measure was so divisive that towns, churches, and families split on

the issue."

A move to repeal the legislative decree was begun almost immediately. In support,

Thaddeus Stevens addressed the Pennsylvania House of Representatives on April 11, 1835. In

remarks that present as a harbinger of the adequacy argument, Stevens asserted that:

[I]f an elective republic is to endure for any great length of time, every elector
must have sufficient information, not only to accumulate wealth, and take care of
pecuniary concerns, but to direct wisely the legislatures, the ambassadors, and the
executive of the nation-for some part of all these things, some agency in
approving or disapproving of them, falls to every freeman. If they, the
permanency of our government depends upon such knowledge, it is the duty of
the government to see that the means of information be diffused to every citizen.
This is a sufficient answer to those who deem education is a private and not a
public duty-who argue that they were willing to educate their own children, but
not their neighbor's children.6

Perhaps due to Steven's eloquent defense of tax supported public schools, the initiative to

repeal was defeated, however funding for schools remained haphazard and vulnerable to local

proclivities in addition to fiscal capacity. Any concept of equalization or equal educational

opportunity was foreign to any district or legislature, as the prevailing political and legal doctrine

of the Nineteenth Century was premised on the appreciation of taxation neutrality. Horwitz

remarks that "the power of taxation presented the most formidable difficulties for nineteenth

century [sic] jurists intent upon establishing a neutral state by limiting the redistributive capacities

of government."'7 Although the principle of using tax revenue for public schools had been









established if not publicly embraced, the main concern of the courts was the maintenance of

property rights and any initiative or policy that attempted to redistribute resources was considered

"a threat to liberty and property."18 Of the era, Ward had written, "[a]t the close of the nineteenth

century, [sic] prevailing legal doctrine is clearly supportive of taxation for the purposes of raising

revenues for public schools, but is not supportive of taxation for redistributive purposes that

would permit equalization and is very protective of the economic rights of the affluent."'9 Despite

these limitations, from 1830 to 1860 support for public education spread from the northeast to the

middle-western and western states. However, the aforementioned authorizations to levy school

taxes did not ensure that such levies were enacted and the universal provision of a free public

education remained an ideal. Johns has noted that:

The Seventh Census of the United States shows that only [one-half] of the
children of the New England states were provided free education, [one-sixth] of
the Western states and [one-seventh] of the Middle states by 1850. In the
Southern states almost no free tax supported schools were available except for
paupers.20

The courts while protective of property rights and concerned with reining in any impulse

to redistribute tax revenues, were generally silent on the specific question of funding schools.

When they did reference education, they reinforced the status quo. In Plessy v. Ferguson,21 a case

addressing separate public transportation facilities based on race in Louisiana, the Supreme Court

countenanced the prevailing separate but equal provision of education. The opinion, referencing

the concept of "separate but equal" noted that "the most common instance of this is connected

with the establishment of separate schools for white and colored children, which has been held to

be a valid exercise of legislative power even by courts of States where the political rights of the

colored race has been longest and most earnestly enforced."22 Of the decision's educational

ramifications, Wood and Thompson have pointed out that "[t]he first significant and specific

public school suit based on the Plessy doctrine occurred in Cummings v. Richmond in 1899."23 In

the first case dealing with the funding of public education to come before the Supreme Court, a

county school board in Georgia refused to provide a high school for African-American students,









despite the fact that such an institution was provided for white students. While the school board

argued that it could not afford two such schools, the "plaintiffs argued that either a school for

minority children would have to be created or that the school for white children would have to be

closed."24 The Court, in finding for the defendants, wrote that:

If that were done, the results would only be to take from the white children
educational privileges enjoyed by them, without giving to colored children
additional opportunities for the education furnished in high schools. The colored
children of the county would not be advanced in the matter of their education by
a decree compelling the defendant board to cease giving support to a high school
for white children.25

In distinguishing between a nonarbitrary denial of equal treatment and a hostile denial of equal

treatment, the Plessy and Cummings decisions underscored the Court's thinking in reference to

the Fourteenth Amendment over the course of the next half century.26

The first conceptualization of equity in education finance to enter into this legal and

legislative paradigm was woven by Ellwood Cubberley in 1905. In his now classic doctoral

dissertation, School Funds and Their Apportionment,27 Cubberley offered a fundamental theory

of school finance, writing that:

Theoretically, all children of the state are equally important and are entitled to
have the same advantages; practically this can never be quite true. The duty of
the state is to secure for all as high a minimum of good instruction as is possible,
but not to reduce all to this minimum; to equalize the advantages to all as nearly
as can be done with the resources at hand; to place a premium on those local
efforts which will enable communities to rise above the legal minimum as far as
possible; and to encourage communities to extend their educational energies to
new and desirable undertakings.28

Maintaining that it was incumbent on the state to provide for the highest level of education

possible for all children, Cubberley did concede that the equality of all children was not possible

to sustain in a public education system.29 In advocating a flat grant or a form of minimal

guarantee, he observed:

1. That due to the unequal distribution of wealth, the demands set by the states
for maintaining minimum standards cause very unequal burdens. What one
community can do with ease is often an excessive burden for another.
2. That the excessive burden of communities borne in large part for the
common good should be equalized by the state.








3. That a state school tax equalizes the burden.
4. That any form of state taxation for schools fails to accomplish the ends for
which it was created unless a wise system of distribution is provided.30

Harland Updegraff of the University of Pennsylvania offered the next significant

contribution to a theoretical construct of school finance. In 1922 Updegraff amplified

Cubberley's thesis:

[A]dvancing the concept that as local school districts were able to spend greater
moneys for public education, the state would then vary the amount of state
support as a result of these local efforts. Updegraff argued that every child could
be assured a minimum level of education in relation to the levels that other
children received regardless of their location within a given state.31

In a survey he made of rural schools in 1921, Updegraff proposed that the wealth of the local

school district be entirely eliminated as a factor affecting the quality of a child's education. In

Rural School Survey of New York State: Financial Support32 Updegraffs study proffered that

"the quality of a child's education be made dependant upon local effort but that the state should

equalize educational opportunity with state funds so that the total amount of revenue per teacher

unit would be the same in all districts making the same effort regardless of variations in

wealth."33

While Cubberley and Updegraff wrote, states had begun to introduce statutes requiring

each locality to have at.least an elementary school and correspondingly made provision for a

lump sum, or flat grant, from state coffers to be distributed per school. Of this funding scheme

that had dated in some locales from the middle of the Nineteenth Century, Odden and Picus noted

"this approach remedied the problem of the poorest locality being unable to create a school on its

own; in these communities, state funds often became the only fiscal support for the school."34

During the 1920s the state of New York created a commission to explore the possibility of

establishing a new education finance structure that went beyond the flat grant. A former

classmate of Cubberley's, George D. Strayer of Columbia, and his colleague Roger Haig were

hired as consultants to the commission. Their work produced a formula that would come to

dominate school finance through the Twentieth Century; a foundation plan that attempted to









provide a minimum program for the funding of schools. In the Report of the Educational Finance

Inquiry Commission, Vol. 1,35 Strayer and Haig wrote:

There exists today and has existed for many years a movement which has come
to be known as the "equalization of education opportunity" or the "equalization
of school support." These phrases are interpreted in various ways. In its most
extreme form the interpretation is somewhat as follows: The state should insure
equal education facilities to every child within its borders at a uniform effort
throughout the state in terms of the burden of taxation; the tax burden of
education should throughout the state be uniform in relation to taxpaying ability,
and the provision for schools should be uniform in relation to the educable
population desiring education. Most of the supporters of this proposition,
however, would not preclude any particular community from offering at its own
expense a particularly rich and costly educational program. They would insist
that there be an adequate minimum offered everywhere, the expense of which
should be considered a prior claim on the state's economic resources.

The principles of a state model Strayer and Haig proposed included:

1. A local school tax in support of the satisfactory minimum offering would be
levied in each district at a rate which would provide the necessary funds for
that purpose in the richest district.
2. The richest district then might raise all of its school money by means of the
local tax, assuming that a satisfactory tax, capable of being locally
administered could be devised.
3. Every other district would be permitted to levy a local tax at the same rate
and apply the proceeds toward the cost of schools.
4. [But] since the rate is uniform, this tax would be sufficient to meet the costs
only in the richest district and the deficiencies would be made up by the state
subventions.37

Under this theoretical design, essentially proposing a guaranteed tax yield, it would be

possible for a school district not to receive any aid from the state. Although their work did

operationalize much of the earlier educational finance research through the provision of a

foundation plan, Strayer and Haig did stake a philosophical reorientation.38 In a departure from

the reward for local tax effort advocated by Cubberley and Updegraff, they asserted that:

Any formula which attempts to accomplish the double purpose of equalizing
resources and rewarding effort must contain elements which are mutually
inconsistent. It would appear to be more rational to seek to achieve local
adherence to proper education standards by methods which do not tend to destroy
the very uniformity of effort called for by the doctrine of equality of educational
opportunity.39


The goals Strayer and Haig were attempting to operationalize included:









1. Ensuring equal educational facilities to every child in the state.
2. Providing for uniform tax effort throughout the state.
3. Ensuring that the tax effort is related to the ability to pay.
4. In no way hindering the ability of local districts to raise funds above the
minimum level to provide a better education for their children.40

Paul Mort, one of Strayer's students at Columbia, assisted in the development of

techniques for the implementation of Strayer and Haig's principles. However, as Johns has

suggested, he was "more than a technologist. He was also a theorist and disseminator."41 Mort's

proposed framework of a state guaranteed minimum program incorporated theoretical and

logistical underpinnings that marked:

1. An educational activity found in most or all communities throughout the state
is acceptable as an element of an equalization program.
2. Unusual expenditures for meeting the general requirements due to causes
over which a local community has little or no control may be recognized as
required by the equalization program. If they arise from causes reasonably
within the control of the community they cannot be considered as demanded
by the equalization program.
3. Some communities offer more years of schooling or a more costly type of
education than is common. If it can be established that unusual conditions
require any such additional offerings, they may be recognized as part of the
equalization program.42

The Strayer-Haig-Mort formulas, as they generally came to be known, materially

operationalized the earlier conceptualizations of educational financing schemes to reflect

common educational programs. In consideration of this development, Wood and Thompson

commented that "it was the intention to ensure that each child within a given state would be

offered essentially the same educational opportunity," and in order to do so "Mort advanced the

concept of the weighted pupil in which moneys distributed to school districts would be based on

the classification scheme of pupils."43

In the 1930s, Henry Morrison emerged as the next significant educational finance

theorist, advancing the proposal that the funding of public education be based on full state

support. While at the University of Chicago, Morrison questioned whether state funding in

conjunction with local support could actually provide equivalent schools while also ensuring

equal tax burden. Answering in the negative, Morrison observed:









Our extended analysis of the nature of the state school as a civil institution, of its
economic and financial foundations, of the requirements of a fiscal and political
structure founded on the school district in its various territorial forms, leads us
unerringly to the conclusion that the several states themselves are the appropriate
fiscal and administrative units in support and conduct of citizenship schools
which has long been held to be the cornerstone of our policy as a self-governing
state.44

Morrison argued that "local school support disequalized educational opportunity and that the

equalization formulas proposed by Cubberley, Strayer, and Mort had failed to equalize

educational opportunity and never would do so."45 Constructing a controversial theory that

dismissed the local district as the focus of fiscal and administrative control, Morrison wrote:

The objection to taxation for purposes which are in principal and reality state or
national, merely because certain taxables have become concentrated in cities or
in a few states, is, of course, equivalent to an objection on the part of rich
families to be taxed on their ability to pay taxes, lest they should thereby be made
to carry the burdens of other people. The point is fundamental in the whole
theory of the individual's relation to civil society...When the purpose is
inherently a state purpose, as is the case with public schools, it matters not where
the taxables are concentrated, assuming no uneconomic use of the taxing power
is made. Even though 90 percent of the taxables are in a single city, the
obligation rests as heavily on that city as local obligations which are related to
municipal purposes pure and simple.46

Hawaii has been the only state to date which has adopted Morrison's funding proposal. Although

his ideas have generally failed to gain purchase among policy makers and school finance

specialists, the concept did reemerge, albeit briefly, in the 1970s, as states wrestled with court

challenges and funding disparities.47 This brief's subsequent trace of educational finance

litigation entertains the viability of Morrison's funding premise in light of court intervention.

Although the Twentieth Century had witnessed significant progress in the interpretation

of school finance data and the advancement of various conceptual models, they were rarely put

into practice. Of the era, Wood and Thompson have noted that state legislatures were often

reluctant to actualize changes and that "even in early lawsuits, the litigation process had difficulty

in attempting to operationalize the newest research being disseminated every year within a system

that was based on a political process of distributing moneys to a public agency."48 It should be

recognized that courts when interpreting laws will "tend to reflect the morals and ethics of the









time although they may deny doing so."49 The timbre of these times changed significantly with

the Brown v. Board ofEducation50 case of 1954. In reversing Plessy51 the Supreme Court

accented the importance of equal educational opportunity. The Court opined, in a passage

ubiquitous in any educational tome, that:

Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and great expenditures for
education both demonstrate our recognition of the importance of education in our
democratic society...In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity of an education.
Such an opportunity, where the state has undertaken to provide it, is a right which
must be made available to all on equal terms.52

Of this decision, it has been written that it "marked the modern era of finance theorists using the

courts as the vehicle to shape education finance change. Social equity would ease into the

consciousness of the American public from this point forward."53

Thomas Lowi has termed this period, particularly from 1940 through the 1960s as the

"Second Republic" due to growing emphasis upon the regulatory power of the government and

the redistributive programs of government; "both sharp breaks from past governmental policies

and dispositions."54 Capitalizing on the logic of Brown, Arthur Wise proffered an argument for

school finance reform through federal court litigation. Wise asserted that the absence of equal

educational opportunity, evidenced by unequal expenditures constituted a state denial of equal

protection of the laws. In an argument premised on the consideration of education as a

constitutional right, Wise contended that the state had no reasonable basis on which to justify

making a child's education contingent on the district's wealth." Contemplating the origins of

identified inequities, Wise found that:

Educational inequality facilitated by a system of local financing exists because of
a combination of at least three factors: the self interest of the privileged, their
tendency to reside apart from the lower class, and the inability of the average
person to assess the quality of education available to his child, much less know
what is available elsewhere.56

Arguing that for equal protection purposes, education was a fundamental right, Wise charged that

absent a compelling reason educational resources could not be inequitably distributed. Drawing








on the one man-one vote principle of reapportionment cases he advanced a one scholar-one dollar

standard for education finance. He contended that:

In short, if the disparities in educational provision are to be diminished, the
courts will probably have to accomplish it. They may do so because, as this study
has suggested, the difficulty can be seen as constitutional--specifically, an equal
protection-problem. The concern here is the impact of the states' school-finance
laws on the rights of individuals.57

On the heels of Wise's study, John Coons, William Clune, and Stephen Sugarman

detailed the evolution of school finance systems and how they contributed to serious funding

discrepancies favoring children in wealthier districts.5 While documenting the failure of various

education funding schemes to provide for equity, Coons and his colleagues proposed a power-

equalizing system, which as Ward had observed was not dissimilar in effect as Morrison's

aforementioned state centric financing program.59 Premising their argument on the proposition

that "the quality of public education may not be a function of wealth other than the total wealth of

the state,"60 Coons, et. al., helped set the stage for a new era in school finance that would soon

dawn in a California courtroom. The constitutional norm they pointed to did not insist on a

uniform state system; they acknowledged that some discrepancies might be warranted and saw

certain advantages in local control. According to Minorini and Sugarman, what the legal

researchers found unfair was that:

[S]omething as important as education was distributed on the basis of wealth and
poverty (albeit wealth and poverty of communities, rather than individuals),..The
Coons team hoped that a successful constitutional theory could be created out of
the Supreme Court's already expressed concern about wealth discrimination in
the provision of other fundamentally important matters-like the right to vote,
the right to obtain a divorce, or the right to mount a criminal appeal.61

Hal Horowitz, in developing the principle of geographic uniformity, turned to a different

area of the law. Horowitz argued that school spending within a state should not vary based upon

geography. He drew an analogy to state laws governing murder and other crimes that were

uniformly enforced. However, as opposed to Wise's advocacy of uniform per-pupil spending

statewide, Horowitz proposed that a legislature might decide to allocate greater revenues for








disabled or at-risk students. If there happened to be more of such students residing in one district

than another, then more moneys per-pupil would be targeted. Under his proposal such a situation

would be acceptable given that discrepancies in allocation were based upon need not geography.62

Minorini and Sugarman have drawn attention to legal theorists of this period who found

the principles presenting in the evolving conceptualization of educational finance ill suited for

their purposes. These advocates maintained that the primary focus of funding programs should be

on unequal students needs, especially those of low-achieving students from the lower socio-

economic strata. It was an imperative, not a legislative discretionary initiative, to provide greater

resources for this population. The needs based constitutional claim reflected a vertical equity

concept; essentially, poor children had a right to have their needs equally met.63 The central

difficulty within this conceptual framework, noted by Minorini and Sugarman was "[h]ow much

spending does any child, or class of child 'need'? If 'need' implies a level of school spending

necessary to achieve some sort of educational 'outcome' standard, then what outcome? And if

'need' is not about outcomes, what does it involve that a court could address?""64 Although these

considerations would present most prominently in the reorientation from equity to adequacy

marked subsequently in this study, they have presented as ubiquitous issues in educational

finance litigation as courts struggle to delineate standards and in some instances dictate remedies

for constitutional infirmities.

While this brief provides an extensive account of educational finance litigation, the

judicial profile and a consideration of the implications thereof subsequently in the text, a

truncated overview at this juncture serves to illuminate the context and theoretical appreciations

of school finance. The federal response to nascent funding initiatives targeted at the courts is

distinguished by three cases. In Mclnnis v. Shapiro,65 a case heard in a United States District

Court and affirmed by the Supreme Court,66 plaintiffs in Illinois challenged a funding scheme as

unconstitutional as it permitted wide variations in spending per-pupil and failed to base

allocations on educational need. In dismissing the Fourteenth Amendment suit, the district court,








while acknowledging wide variations in revenues, found that they were not invidious or arbitrary.

Additionally, the opinion marked the state provision of a per-pupil minimum while ruling that

under the Fourteenth Amendment no requirement as to equal expenditures presented. The court

asserted that the funding of public schools and the particulars of same was properly the province

of the legislative bodies. A contemporary federal case in Virginia came to essentially the same

conclusion. Addressing a Fourteenth Amendment claim, the district court in Burruss v.

Wilkerson,67 rendered that:

The existence of such deficiencies and differences is forcefully put by plaintiffs
counsel...we do not believe that they are creatures of discrimination by the
State...our reexamination of the Act confirms that the cities and counties receive
State funds under a uniform and consistent plan...we can only see to it that
outlays to one group are not invidiously greater or less than that of another...no
such arbitrariness is manifest here.68

The questions raised in these early cases reflect the difficulty these judicial bodies had in

the absence of empirical data that could speak directly to distinct educational deficiencies.

LaMorte has noted that a state case in California, Serrano v. Priest,69 overcame that hurdle

writing that:

[It] provided the court with judicially manageable standards which had been
missing in Mclnnis and Burruss. In this case, the plaintiffs attempted to
demonstrate that the California method of financing public education allowed
substantial disparities among the various schools districts in the amount of
revenue available for education, thereby denying students equal protection of the
laws under the United States and California constitutions.70

In the trial court,71 plaintiffs argued that the California public education funding methodology

violated the Equal Protection Clause of the 14th Amendment "because the amount of money spent

per-pupil varies from one district to another according to the wealth of a pupil's parents and

districts in which he resides, not according to his educational needs."72 However, the court in

finding for the state asserted that the equal protection rubric did not "require that the school be

uniform as to the quality of education or money spent per pupil.'73 On appeal, the case reached

the California Supreme Court in 1971.74 The state's high court found a judicially quantifiable

standard in fiscal neutrality. In reversing the trial court's ruling, the supreme court determined









that the methodology the state employed to fund education could not be a function of property

wealth, a holding structured on the theoretical underpinnings proffered by Coons, et. al; the

principle of wealth neutrality defined as:

[T]he concept by which each school district's funding is dependent only upon the
district's efforts which would be totally independent of its wealth or ability to
pay...this concept as having each school district able, via the distribution
formula, to obtain the same revenues per weighted pupil provided that each
school district make the same effort.7

According to the court, the reliance upon local property wealth discriminated against the poor and

thus stood in violation of both the federal and state constitutional equal protection demands. As

Russo has marked, the opinion not only condemned a system based on local property wealth but

also charged that the state initiatives to introduce a modicum of equity actually acerbated the

discrepancies.76 In addition, citing both federal and state constitutions, the California court held

that education was a fundamental interest to both individuals and society, marking its universal

relevance, the fact that it was compulsory, the integral role it played in free enterprise democracy,

and length of the time span over which it was provided as per state mandate.77 In a novel legal

interpretation, the court found that wealth presented as a suspect class, rejecting the state's claim

that suspectedness only concerned individual wealth, stating that:

[T]o allot more educational dollars to the children of one district than to another
merely because of the fortuitous presence of property is to make the quality of a
child's education dependent upon the location of commercial and industrial
establishments-surely this is to rely on the most irrelevant of factors as the basis
for educational factors.78

Wood has detailed the ramifications of this landmark case, writing that:

First, Serrano proved that the meaning of equal educational opportunity could be
so sweeping as to include education finance. Second, Serrano proved that states
could be vulnerable to constitutional attack, even though the federal courts had
been unassailable. Third, under state provisions Serrano successfully established
all three claims of fundamentality, wealth suspectedness, and equal protection.
Fourth, Serrano had an immediate and profound effect, sparking dramatic reform
of state aid distribution formulas in many states. Finally, Serrano compelled the
flurry of reform both through legal standards and by the court's view on how
inequity might be redressed.79








The legal framework constructed by the California Supreme Court in Serrano I was soon

evidenced in a federal district court in Texas, setting the stage for the third federal case within

which the final federal issues in reference to education finance were determined. In Rodriquez v.

San Antonio Independent School District,8s the court utilized the analysis employed in Serrano I,

in striking down the educational funding scheme in the state of Texas, determining that it was

constitutionally infirm in reference to the Fourteenth Amendment. While directing state officials

to change the taxing and financing system to comply with equal protection demands, the district

court stayed its order for two years to give the legislature the time to change the funding scheme

so that educational opportunities were not "a function of wealth other than the wealth of the State

as a whole."8'

On appeal, the Supreme Court reversed the lower court in favor of the state in Texas in

the landmark case, San Antonio Independent School District v. Rodriquez.82 In a five to four

decision that upheld the Texas education financing scheme, the Court rejected the plaintiffs'

claims that the system was discriminatory because per-pupil expenditures demonstrated an

inverse relationship to the wealth of a student's district. Although noting that the distribution

system was flawed, the Court opined that it was permissible as it encouraged local control, a

structural and administrative dynamic that the opinion considered a valid public policy.

Addressing the proposed presence of a suspect class, the ruling noted that wealth discrimination

in prior cases had been confined by the judiciary to personal wealth and as such, the class in the

instant action did not merit special protection.83 The Supreme Court also declined to accept the

argument that education was a fundamental right. The plaintiffs had premised their claim of

fundamentality on the relationship of education to other "extant fundamental rights in an effort to

establish a clear nexus...in concept public education was inextricably tied to other existing

fundamental rights wherein the intelligent exercise of the right to vote and the right to free speech

were said to depend on education."84 The Court responded that:









The key to discovering whether education is "fundamental" is not to be found in
comparisons of relative societal significance of education as opposed to
subsistence or housing...the answer lies in assessing whether there is a right to
education explicitly or implicitly guaranteed by the Constitution...[e]ducation of
course is not among the rights afforded explicit or implicitly by the
Constitution...the undisputed importance of education will not along cause this
Court to depart from the usual standard for reviewing a State's social and
economic legislation.85

Justice Powell spoke to a "slippery slope" in the majority opinion noting that if some

level of education were considered to be essential for the exercise of political rights under the

Federal Constitution similar arguments could be made that "the ill-fed, ill-clothed, and ill-housed

are among the most ineffective participants in the political process."86 Absent the presence of a

suspect class and/or a fundamental right the Court applied a rational relationship test in its

treatment of an equal protection charge; an exercise that compelled the Court to hold that the

state's desire to maintain a degree of local control and educational autonomy met the standard.

The decision marked that the Equal Protection Clause did not require "absolute equality or

precisely equal advantages."8 Rebell has observed that the ruling in Mclnnis,8 which

emphasized the lack of "discoverable and manageable standards," formed an important backdrop

for the decision in Rodriquez.89 The Court referenced the analytical quandary, stating that:

Even if it were conceded that some identifiable quantum of education
is...constitutionally protected...we have no indication that the present levels of
educational expenditure in Texas provide an education that falls short...[No]
charge fairly could be made...that the system fails to provide each child with an
opportunity to acquire the basic minimal skills necessary for the enjoyment of the
rights of speech and of full participation in the political process.90

The Court demonstrated a reluctance to intrude upon an area traditionally consigned to

the states, particularly in a judgment factoring a conceptual appreciation of local control. Justice

Powell, who penned the opinion, stated that:

The consideration and initiation of fundamental reforms with respect to state
taxation and education are matters reserved for the legislative processes of the
various states, and we do no violence to the values of federalism and separation
of power by our hand. We hardly need add that this Court's action today is not to
be viewed as placing its judicial imprimatur on the status quo...certainly
innovative new thinking as to public education, its methods and its funding, is
necessary to assure both a higher level of quality and greater uniformity of









opportunity. These matters merit the continued attention of the scholars who
already have contributed much by their challenges. But the ultimate solutions
must come from the lawmakers and the democratic pressures of those who elect
them.91

The Court also expressed concern with the larger implications of the decision, speculating that if

the lower court's ruling were upheld it could lead to "an unparalled upheaval in public

education,"92 and that there was no way of predicting "the consequences of massive change in the

financing and control of public education."93 Heise expanded upon this reasoning, observing that:

The Rodriquez Court was concerned about the potential impact of the result
urged by the plaintiffs in the nation's school systems. Twenty years earlier in
Brown the Court ruled school segregation unconstitutional. In the decades that
followed Brown the Supreme Court as well as many other federal courts
struggled with the implementation and remedial aspects resulting from Brown.
No doubt mindful of the judicial effect on the school desegregation issues, the
Court in Rodriquez noted the implications of a decision that would effectively
abrogate school finance systems operating in virtually every state, thereby
affecting most of the nation's public schools as well as the relationship between
federal and state power.94

The Rodriquez decision effectively closed the door to school finance challenges grounded

on a federal equal protection claim. Yet, subsequent federal rulings have generated a

consideration of a possible federal role in the future. Thompson has posited that "although

Rodriquez has been commonly believed to represent an unassailable posture among federal

courts, these cases suggest that a different perspective may be possible."95 In a case from Texas96

addressing the rights of children of illegal immigrants to access public education, the Court cast

education as a quasi-fundamental right that was due an intermediate standard of scrutiny; an

analysis that generates from within the rigid dichotomy between the rational relationship test and

the application of a strict scrutiny standard.9 Of this measure, Nowak has suggested that:

The standard of review of these cases eliminates the strong presumption of
constitutionality that exists under the rational basis standard of review but it
allows the government to employ a...classification so long as it is a reasonable
means of achieving substantial government ends and not merely the arbitrary
classifying of people.... 98

The Plyler Court wove a broader appreciation of education from the federal perspective, writing

that:









Education provides the basic tools by which individuals might lead economically
productive lives to the benefit of us all. In sum, education has a fundamental role
in maintaining the fabric of our society. We cannot ignore the significant social
costs borne by our Nation when select groups are denied the means to absorb the
values and skills on which our social order rests... [and that] Public education is
not a "right" granted to individuals by the Constitution. But neither is it merely
some governmental "benefit" indistinguishable from some other forms of social
welfare.99

Reflecting on Plyler, and the implications of the ruling, Thompson has commented that:

While fundamentality and differential treatment related to funding disparities
have either failed or been incompletely addressed, Plyler further called into
question the previous assumption of a deaf federal ear...in terms of
fundamentality, equal opportunity and equal protection, Plyler suggests that
issues before the Court may simply be as yet undefined rather than intractably
drawn.'00

In Papasan v. Allain'o0 the Court addressed a legal challenge to the distribution of

revenues in Mississippi generated from Section 16 land income.102 Plaintiffs cited the disparities

presenting in the system, construing them as violative of the Equal Protection Clause. Reversing

the Fifth Circuit, the Court remanded the case finding that the discriminatory nature of the

allocations, absent a legitimate state interest was sufficient to state a cause of action. The opinion

remarked that thishs case is very different from Rodriquez where the differential financing

available to school districts was traceable to school district funds available from local real estate

taxation, not to a state decision to divide state resources unequally among school districts."103 In a

concurring opinion, Justice White commented that "as Rodriquez and Plyler indicate, this Court

has not definitively decided whether a minimally adequate education is a fundamental right and

whether a statute alleged to discriminatorily infringe that right should be accorded heightened

equal protection review."104 Wood has noted that "Papasan is...important for what it stated and

what it failed to state...a glimmer of federal interest in education finance was seen on remand, as

the court noted that unreasonable government action would be scrutinized."105 Thompson writes

of the case, that although it did not "provide a full text of the federal question, it clearly indicated

some limited federal protection for education as the court ruled that equal protection at least

extends to unreasonable governmental action."'06









A subsequent federal case, Kadramas v. Dickinson Public Schools,107 considered the

argument that a district policy that charged students for bus service was a denial of equal

protection because the plaintiff student was wealth-disadvantaged. In a ruling reflecting

indeterminateness regarding fundamentality, the Court held for the defendants denying the

fundamentality argument, yet pointing out that there were variances and exceptions that preclude

absolutism in interpreting Rodriquez. The dissenting opinion emphasized that:

The Court...does not address the question of whether a state constitutionally
could deny a child access to a minimally adequate education. In prior cases this
court explicitly has left open the question whether such a deprivation of access
would violate a fundamental constitutional right. That question remains open
today.'08

Considering the federal challenges, Thompson observed that:

[T]he Court has stated that if funding disparities can be related to a minimum
level of education required for the exercise of other constitutionally established
rights, it may be possible to successfully argue a case for fundamentality...any
plea for a fundamental right to an education in the absence of a final
determination that education is of itself a fundamental right must be constructed
by drawing an indivisible link between education and other rights based in
individual and collective liberties...[of a future federal role] first, education as a
fundamental right remains a viable although ill-defined concept. While most
heightened scrutiny claims, including wealth suspectedness, have been rejected,
Rodriquez has left open the door to other issues, especially educational
deprivation. Secondly, Plyler has established that total educational deprivation
calls for some measure of heightened scrutiny based on denial of access to other
rights. Third, the concept of nexus to fundamental rights points to a need to
strictly define deprivation on less than an absolute scale.9

In a review nearly fourteen years subsequent to Thompson's critique, Wood noted seven points

from the federal judiciary history. He wrote that:

First, it can be gathered that the Supreme Court is sympathetic to the problems of
judicially manageable standards. Second, the Supreme Court is quick to uphold
legislative prerogative. Third, the Supreme Court is reluctant to declare education
a fundamental right, and any reversal is not likely to occur lightly. Fourth, the
Supreme Court is not yet willing to create new suspect classifications. Fifth, in
the case of education, the Supreme Court has narrowly interpreted equal
protection to mean racial equality or, alternatively, to mean absolute deprivation
which has fiscal overtones. Sixth, Rodriquez has been the controlling precedent
in subsequent litigation, and the Supreme Court itself has utilized Rodriquez to
reject further assaults on a federal educational right. But seventh, all assaults
following Rodriquez have been narrowly drawn, and it is clear the Supreme
Court holds an undefined interest in education that may eventually emerge. 0








Beyond these federal considerations, within the scope of education finance litigation

commentators have pointed to three distinct "waves" of court decisions."' The first wave

addressed the issue through the Federal Constitution; an approach illustrated in the

aforementioned Serrano, Rodriquez, Mclnnis, Burruss, Papasan, and Kadramas cases. The

second wave, ushered in with the Robinson v. Cahill"12 case from New Jersey, witnessed the shift

to a two prong legal strategy; targeting both state and federal equal protection clauses and state

constitutional education clauses. The third wave has generally been demarcated from 1989

onward with the Rose v. Council For Better Education, Inc.13 case from Kentucky. It has been

characterized by a narrower focus on the educational clauses of state constitutions and an

evolving legal tack toward the question of adequacy as opposed to equity concerns.

The first wave of cases was premised on the understanding that the financing schemes in

question were violative of the Equal Protection Clause of the Fourteenth Amendment. Heise has

noted two judicial dynamics which made this approach plausible, writing that:

First, the U.S. Supreme Court's interpretation of the Fourteenth Amendment
changed significantly during the 1950s and 1960s. In the process, the Court
developed the Equal Protection Clause into a tool that could significantly
influence public policy. Second, the Court recognized education's importance not
only to the individual but to society.114

As Enrich has pointed out, although the Court in Brown did not specify education as a

fundamental right, its description of the importance of education became a "veritable rallying

cry."115

Legal strategies targeted at equal protection claims were grounded in a gradual

redefinition of the clause in a series of cases that although not specifically addressing education,

would present as a foundation for a court challenge."' Calling it a virtual revolution in the

Court's treatment of the Equal Protection Clause, Enrich commented that in the 1950s and 1960s

"in a range of disparate fields, the Court during this period found the Equal Protection Clause a

powerful weapon for attacking important and well-entrenched elements of the established

political order...the Court crafted a tool whose promise as an instrument of social change








appeared vast....",,1 The Brown decision and subsequent school desegregation cases broadened

both the scope and promise of equal protection. Further, equal protection claims came before the

Court that addressed distinctions based on wealth; particularly those cases that challenged states

to ensure that criminal defendants could not be prevented due to financial circumstances from

availing themselves of protections provided by the criminal justice system. In Griffin v. Illinois,"8

the Supreme Court ruled that the right of appeal could not be impeded by an inability to afford the

cost of a trial transcript; such an action evidenced wealth discrimination. Also referencing wealth

discrimination, in a ruling encompassing fundamental rights and statutes presenting as

constitutionally infirm, the Court invalided the poll tax in Harper v. Virginia Board of

Education.119 Considering the expansion of the scope of equal protection, Enrich noted that:

The school integration cases were concerned with discrimination that was the
product of deliberate governmental distinctions based on race. The wealth
discrimination cases made clear that the Equal Protection Clause also limited
governmental policies and requirements that, while facially not drawing
distinctions among classes, had the effect of denying opportunities to one class
that were available to others...this line of cases reinforced the Equal Protection
Clause's appeal to critics of property wealth based systems of education
funding.120

A conspicuous characteristic of the wealth discrimination rulings was that the financial

circumstances were individualized, while in education finance litigation, variations in resources

reflected the larger community where the student resided. This body of cases also concerned an

absolute deprivation, while in the education cases, the ramifications of state initiatives arguably

resulted in a relative deprivation, gauged according to a diminution in the quality or quantity of

education. 21

In addition to desegregation cases and actions challenging wealth discrimination,

legislative reapportionment actions contributed to the redefinition of equal protection. In Baker v.

Carr,122 the Court struck down a Tennessee reapportionment scheme that resulted in the

debasement of the plaintiffs votes and found that this denial of equal protection, resulting from

accidents of geography and arbitrary boundaries constituted a justifiable cause of action. With









similar legal reasoning, the Court in Reynolds v. Sims,123 held that the Equal Protection Clause

demanded substantially equal legislative representation for all citizens in a state, regardless of

where they resided. A case analogous in that it concerned geographic discrimination, Shapiro v.

Thompson,124 witnessed a Court ruling in favor of indigents who had exercised their right to

travel from one state to another, but then were denied welfare in their new state of residence.

Minorini and Sugarman have noted that for school finance reform advocates "if restricting the

access of the poor to welfare based upon where they lived was illegal, then perhaps provision of

inferior education to the poor based upon where they lived would also be illegal."'25 For Enrich,

"these cases suggested that neither absolute deprivation nor individual impact were prerequisites

to rigorous equal protection review," and for school finance reform strategists the one-man one-

vote doctrine articulated in Baker "disclosed in the Equal Protection Clause a right to all citizens

to mathematically equivalent treatment, regardless of the district which they resided."126 Enrich

also suggests that there was another factor that compelled early education finance equity

advocates to seek remedy in the Federal Constitution. He cites civil rights activists and the anti-

poverty community as critical, supportive constituencies, writing that:

For both of these communities, during the relevant period, the establishment of a
constitutional foundation for the rights of the poor to government services and
protections was an important objective...the most plausible source for such a
constitutional right, at least under the federal Constitution, was the recognition of
wealth as a suspect class within equal protection analysis. Disparities in
educational opportunities offered a fertile ground on which to cultivate such a
recognition.

Wood has observed that theseee strands were actually an expression and extension of judicial

sympathy to a fairly liberal construction of the meaning of equality that had already resulted in

the establishment of certain fundamental rights under the law."'28 According to Phillip Kurland,

these rulings, and the legal concepts therein, were soon cast into an education context as litigants

sought to establish suspect class and fundamentality for equal protection analysis.129

Despite the promise of these philosophical and judicial antecedents, the Rodriquez

decision effectively prevented any successful federal challenge. Wood has marked that:








If neither a fundamental right or a suspect class was established, failure was
assured because the doctrine of limited federal powers given the Tenth
Amendment's silence regarding education would release the coveted claims of
federal protection; failure of a federal case meant that equality of educational
opportunity would either be lost or turned to the states without the power of the
Federal Constitution. Thus, from a historical perspective, the thinking of the early
education finance scholars was clear, if not flawed in the reality of the
overwhelming complexity of the question.130

Yet, it cannot be ignored, as Enrich pointed out "how close this strategy came to success, nor how

very different both the legal and educational worlds, and indeed the entire world of state-local

relationships and of municipal services delivery, would now look if one justice had voted the

other way in Rodriquez."'3'

While cognizant of the aforementioned, albeit slight, possibility of a future federal stage,

plaintiffs turned to state courts and have overwhelmingly confined their actions to this realm.

Robinson132 in New Jersey was one of the initial cases employing this course and demonstrated

the potential success of focusing on a state constitution's education clause or article. Ushering in

the second wave of educational finance litigation, the ruling was grounded solely on the language

of the New Jersey State Constitution. Although the oral arguments in Robinson occurred before

the Rodriquez decision was announced, the New Jersey Supreme Court acknowledged that, with

Rodriquez, the Federal Constitution did not apply to challenges to state school finance systems.

While making note of funding disparities, the court failed to conclude that the demonstrated

variances stood in violation of the state's equal protection demands. Further, the opinion declined

to cast wealth as a suspect class, opining that "if this is held to constitute classification according

to 'wealth' and therefore 'suspect,' our political structure will be fundamentally changed."'33 Nor

did the court find that education was a fundamental right. The state high court pointed out that the

Supreme Court had never reached such a determination, even in the Brown case; in fact the court

maintained that Brown pointed in the opposite direction, having declared education an important

state and local function.'34 Despite these qualifications, the court did rule that the state's funding

scheme failed to meet the state's constitutional burden. The educational clause135 required the








provision of a "thorough and efficient" system of public education and the requirement was not

met given that the system evidenced the lack of financial equalization. Referencing the funding

disparities, the court marked that it could not rule otherwise "unless we were to suppose the

unlikely proposition that the lowest level of dollar performance happens to coincide with the

constitutional mandate and that all efforts beyond the lowest level are attributable to local

decisions to do more than that State was obligated to do."'36 Considering the case which

reoriented the focus of education finance litigation, Heise noted that:

Despite a major defeat in the Supreme Court...the New Jersey Court in Robinson
demonstrated the amenability of state constitutions and that an equity approach
could succeed in state court. Education clauses, alone or in conjunction with
claims rooted in state equal protection clauses, provided a valuable tool to
invalidate school finance systems and reduce per-pupil disparities.37

Wood and Thompson have suggested that "state constitutional language may enable

plaintiffs to secure success far beyond the potential ever envisioned by plaintiffs through a federal

judiciary system."'38 In consideration of this dynamic, Utter has observed that the Federal

Constitution is one of limited powers. The federal government can only do those things explicitly

or implicitly specified in the document. By contrast, state constitutions are essentially limitations

on otherwise unlimited power; they may do anything that is not prohibited by the federal or state

constitution. In addition, he marks that they are much more political in that they may be easily

amended and that they often protect individual rights such as the right to education, that are not

guaranteed by the Federal Constitution.'39 The Supreme Court has determined that a state court is

free to use its own approach of analysis and to find that state provisions provide greater protection

to individual liberty. The Court opined in Oregon v. Hass,140 that "a state is free as matter of its

own law to impose greater restrictions...that those this Court holds to be necessary...",,141 And in

a manner not available at the federal level, the people of a state have the opportunity to make

timely choices about fundamental matters of constitutional law.

Most state constitutions do not contain an equal protection clause that is as explicit as the

Federal Constitution. Instead they contain provisions for guaranteeing equality that have the same








effect as the federal clause.142 Thro has categorized state court's analysis of these equality

guaranty provisions, writing that:

First, some state courts follow federal equal protection doctrine without
deviation. Second, other state courts use the federal levels of scrutiny framework,
but have developed their own independent analysis as to what constitutes a
fundamental right or suspect classification. Third, a few state courts reject all
aspects of the federal approach and develop their own independent framework
and analysis.143

Providing another avenue for education finance reform advocates, all state constitutions

contain provisions compelling the state to create and maintain public school systems. Addressing

their legal utility, Heise has observed that:

Reformers find education clauses particularly attractive because they make it
easier for some courts to reach the results reformers seek. State education clauses
directly addresses states educational duties...[while] school finance decisions
rooted in state education clauses pose fewer implications for other areas of the
law than similar decisions involving state equal protection claims.144

State educational clauses can in combination with the state's equal protection demands buttress a

challenge to a funding scheme on an equal protection claim in that it can validate the

characterization of education as a fundamental right. Or as evidenced in Robinson, the

educational provision can stand alone as a constitutional standard by which to scrutinize an

educational funding system; independently employing the education clause to demonstrate a

requirement for some degree of equity. The nature and timbre of a state's education clause can

dictate the legal tack employed by reform advocates, and as Wood pointed out "chances for

success depend upon the courts' analysis of the state constitutional framers intent, the inclinations

of each state court, persuasive litigation from other states, and the strength of language of the

state education article itself."'14

Assessing state constitutions' education clauses, Grubb proffered a categorization scheme

that marked four classes:

1. Weak clauses that simply call for the establishment and maintenance of
public schools;
2. Clauses that emphasize a quality component, i.e., "thorough and efficient;"









3. Clauses which call for advancing education by "all suitable means" and
contain purposive preambles:
4. Clauses which term education "paramount" and impose specific duties on the
state.146

Thro has also provided a framework with which to consider education clauses:

1. Category I-impose a legislative duty which is met by simply establishing a
public school system;
2. Category II-require that the system be of a specific quality or have some
characteristic such as "uniformity;"
3. Category III-go beyond the specific quality level of Category II and set up
the school system for a specific purpose;
4. Category IV-education is considered to be a "primary," "fundamental," or
"paramount" duty of the state legislature.147

McUsic has broadened the appraisal of education clauses to address those that she

proposes speak to claims of equity as opposed to those which specify minimum standards. Noting

education articles that require equity, the author points to that of Montana's constitution which

compels the provision of "a system of education which will develop the full educational potential

of each person. Equality of educational opportunity is guaranteed to each person of the state."148

Also included in the equity category are those clauses which speak to "uniformity," "thorough

and efficient," or "efficiency," in addition those which do not specify an equity standard. Of the

later, McUsic cites Alaska's education demand which states in part that "[t]he legislature shall by

general law establish and maintain a system of public schools open to all children of the

State.... 149

The second group in McUsic's classification scheme address minimum standards.

McUsic marks those education clauses which specify an explicit and significant standard, such as

Illinois' which proclaims "[a] fundamental goal of the People of the State is the educational

development of all persons to the limits of their capabilities. The State shall provide for an

efficient system of high quality educational institutions and services."1'0 Others set less explicit

standards, while still providing for a considerable modicum of quality, such as the Kansas clause

which compels the legislature to "provide for intellectual education, vocational and scientific

improvement."'15 Of those educational clauses which are less rigorous, McUsic writes "[t]he








provisions in this grouping can be further divided into two categories; those that provide a

detailed and expansive standard of education, but limit the state's obligation to 'encouraging,'

'promoting,' or 'cherishing' that standard; and those that provide merely for an 'adequate' or

'sufficient' education."'52

The inherent latitude, both in state educational clause language and subjective

interpretations have presented both opportunity and impediment to reform advocates. Second

wave decisions overall have presented a decidedly mixed record, owing in no small measure to

the fact that state courts could interpret identical or nearly identical constitutional language and

reach radically different results.153 In light of the nature of these articles, Julie Underwood asserts

that any attempt at categorization is "not particularly useful" given that they "are reliant on the

state's constitutional history and the judiciary's own method of interpretation."154 Considering

this era of education finance litigation, Wood has identified the emergence of "significant

features" in light of the overall dynamics, commenting that:

First, the supreme courts in a number of states have declared that education is a
fundamental right based on the state constitution. Second, based on the state
constitution, there are many states in which the highest court has declared
education is not a fundamental right. Third, due to strict scrutiny sometimes
being applicable, there has been no perfect pattern in which establishing
fundamentality has automatically invalidated a state finance distribution formula
by virtue of invoking coveted strict scrutiny...Fourth, the harshness of this reality
has been somewhat softened by the logic of Robinson, as several state supreme
courts have ruled for plaintiffs by finding equality a requirement, even absent the
one feature of fundamentality that would invoke strict scrutiny analysis.'55

Within the educational finance litigation context, recent actions have been premised on

the argument that the aid distribution system is fiscally inadequate.56 Of this evolution, Thro has

opined that althoughuh each wave had profound implications for American education, the most

significant wave, in terms of cases, number of plaintiffs' victories and amount of substantial

change is the current...wave of cases."157 Odden and Picus noted that the strategy in this third

wave of cases shifted to an explicit focus on the substantive demands of education clauses, and "it

is this strategy that led to the actual term 'adequacy' and its definitions in school finance litigation








in the 1990s and early twenty-first century [sic]." 58 The first two waves in school finance

litigation generally sought an equitable situation whereby the disparities in per-pupil spending

would be reduced. In contrast, Thro remarked that in replacing the traditional equity concerns, the

adequacy decisions target the sufficiency of school spending and are premised on the belief that

"all children are entitled to an education of at least a certain quality and that more money is

necessary to bring the worst school districts up to the minimum level mandated by state education

clauses."159 Adequacy decisions highlight the differences in educational quality rather than a

quantitative measurement of resources provided. Referencing this trend, Heise wrote that:

As a result, adequacy decisions challenge school finance systems not because
some districts spend more money than others, but because the quality of
education in some districts (not necessarily the financially poorest ones) fails to
meet a constitutionally required minimum. The emergence of adequacy court
decisions, thus, signals an important change in school finance litigation and
illustrates a decidedly different approach by those using the courts to reform
school finance.160

Minorini and Sugarman have pointed to Robinson and Seattle School District v. State,'6'

from Washington in 1978 as antecedents to the 1990s adequacy cases, although the term

"adequacy" was never mentioned in these cases.'62 Other scholars have suggested that Helena

Elementary School District No. 1 v. State,'63 from of Montana and/or Pauley v. Kelly,'64 from

West Virginia may merit citation as the earliest instances of action structured upon an adequacy

argument.165 A case clearly within the realm of adequacy decisions and the first to definitively

demonstrate the promise of the adequacy theory is Rose v. Council for Better Education.166

In 1989 the Kentucky Supreme Court rendered its decision in Rose, not only finding the

state's public education financing scheme infirm, but also holding that the entire educational

system was violative of the state's constitution. Addressing the school system's governance,

curriculum, and administration, the court stated:

Les there be any doubt, the result of our decision is that Kentucky's entire system
of common schools is unconstitutional. There is not allegation that only part of
the common schools is invalid, and we find no such circumstance. This decision
applies to the entire sweep of the system-all its parts and parcels.'67








In a case that was initiated on a fiscal neutrality argument, the court decision broadened the scope

of the challenge to embrace the issue of adequacy.168 The state high court concluded that the

state's most affluent districts were inadequately funded when referenced against "acceptable

national standards."169 The decision pointed to academic indices demonstrating that in terms of

student achievement, Kentucky placed well below neighboring states, i.e., nearly twenty-one

percent of ninth graders failed to graduate from high school. Admonishing the state, the majority

declared "Kentucky's schools are underfunded and inadequate... [and] are ranked nationally in

the lower 20-25% of every category that is used to evaluate educational performance."170 Beyond

lamenting the provision of public education, the court moved to detail seven "essential

competencies" that a constitutionally mandated uniform and adequate system would develop in

students.171

Alexander has detailed the precedential implications of Rose, observing that the decision

expanded the discussion of what constituted an adequate education. Considering the judicial,

political and ideological scope of the adequacy decision, Alexander commented that:

First, the court set the boundaries in the separation of power between legislative
prerogative and judicial responsibility...[asserting] a limited but certain judicial
role in delineating the affirmative constitutional obligations...Second, the court
acknowledged and established the fundamentality of education...[and framed]
the fundamentality of education as a simple and obvious fact...Third, the court
gave form and substance to the education provision of the Kentucky Constitution
and firmly established its importance as a standard to which the legislature must
adhere. Fourth, the court showed a willingness to interpret substantively to the
detail of the education clause of the Kentucky Constitution by holding that an
"efficient system" of public schools required equality of opportunity. Finally, the
court justified the appropriateness and efficacy of striking down the entire system
of education, rather than merely invalidating selected offending school funding
statutes.'72

Rebels has observed that the decision articulated "the types of basic skills that student would need

to develop in order to participate effectively as citizens in a democratic society and to be prepared

to compete in the contemporary economy.""7 Yet, as striking as the Rose decision was the case

and its resolution in and of itself does not account for the apparent shift from a traditional equity








legal strategy to one premised upon adequacy. Exhibiting no lack of contributors, the literature

addresses that dynamic from a number of perspectives.

Enrich suggested that equality arguments in the context of educational finance suffered

from two fundamental weaknesses. First, equity is not as simple and clear cut as may have been

presumed. He notes that "the very idea of equality evokes the imagery of simple quantitative

comparisons... [yet] in the context of education funding, the imagery has proven

deceptive...because the appropriate dimension for comparison has proven elusive.""74 Enrich

maintains that measures of fiscal capacity have failed to demonstrate a close connection to

demonstrable educational consequences that discriminate between children. However, measures

that move away from calculations such as property value per-pupil to qualitative considerations

of other educational inputs or outcomes can prove just as problematic. Yet, he speculates that "the

supposed simplicity and certainty of the concept of inequality threatens to be overwhelmed by

substantive controversies with which both courts and legislatures are justifiably

uncomfortable."'7 While citing that appeals to the facilitation of equal treatment by the

government has an innate appeal, Enrich notes that in application it can face significant

opposition. He points to affluent districts, for which equalization programs appear to threaten to

restrict the resources and services they can offer; this in addition to the suspicion that in the

design to improve poorer districts, they will disproportionately bear the financial burden. In

essence, Enrich found that "equality of education...turns out to be in direct conflict with a cluster

of other potent interests, such as preserving control over (and in preserving the value of) one's

pocketbook and securing the welfare of one's own children."'76 Other concerns such a local

control, individual autonomy, and property rights prove to be power competitors for equality's

appeal."77

Michael Rebell has observed that "[a]dequacy...tends to involve less political resistance

at the remedial stage because rather than raising fears of 'leveling down' education opportunities








available to affluent students, it gives promise to 'leveling up' academic expectations for all other

students."'78 James Ward, addressing the shortcoming of equity has offered that:

There is a massive resistance to altering fundamental arrangements in society if
there are winners and losers. The movement toward equal educational
opportunity will benefit many children and will probably benefit society as a
whole, but there will be those who do not benefit and, in fact, will perceive their
own individual situations to have worsened. These individuals may be those who
may pay higher taxes or those who may feel that their own children no longer
have the competitive advantage over other children that they may once have
had.179

Weighing this dynamic, he suggests that "in one interpretation, the attainment of adequacy says

that the elites may still have their privilege and that we must make sure that the lower classes

have an education that surpasses some threshold... fromm the conflict about equity emerges the

consensus as adequacy as a goal."180 Contemplating the strategic shift, Reschovaky has written

that implementing an adequacy standard is far less likely than programs instituting equality

formulas to generate political confrontation. In addition, he maintains that that without substantial

sources of additional revenues many states may be unable to elevate all per-pupil spending to that

of the more affluent districts and that removing local control of educational investments may

seriously decrease support for education.181 The arguments speak to Cass Sunstein's "endowment

effects;" a dynamic wherein "people place a higher value on rights and goods that they currently

hold than they place on the same goods in the hands of others."182 Equity remedies that are

perceived to redistribute revenues lend themselves to the endowment effect of loss aversion; the

concept that a negative change from the status quo is seen as more harmful than a positive change

is seen as beneficial.183

Paul Enrich also pointed to a discouragement with the results of an equity based strategy.

Contemplating the historical record, he observed that the "mere equalization of tax capacity, or

even the significant progress some states have achieved toward equalization of school budgets,

has proven insufficient to put the educational opportunities of disadvantaged children on a par

with those of their better off peers."'84 Enrich contended that arguments for adequacy may avoid








many of the shortcomings of equity as it is sifted through the judicial process. He marks that

adequacy cases are based on upon the explicit text of the state's educational clause in contrast to

equality arguments. Of these equity claims, Enrich writes that:

[They] must pass through an intermediate interpretive step. Either they must find
in the education clause the intention to elevate education to a special status that
subjects it to heightened standards of equal protection or they must find evidence
in the constitutional language of a requirement, not only to provide schools, but
provide them equally.'85

Notation is also made of educational clause's appeal to a specific sphere of governmental

responsibility, thus adequacy challenges confined to these articles do not threaten to "spill-over"

into other areas of governance. A federal court spoke to this fear in Parker v. Mandel'86 within a

consideration of the fundamentality of education and wealth as suspect class. In this early

educational finance action, the opinion stated:

To hold that the strict scrutiny test applies to legislation of this sort would be to
render automatically suspect every statutory classification made by state
legislatures in dealing with matters which today occupy a substantial portion of
their time and attention. If the test which plaintiffs seek to apply is the
appropriate standard here, then a state, on each occasion that a similar Fourteenth
Amendment attack were made against a statute dealing with health, education, or
welfare, would be required to bear the burden proving the existence of a
compelling state interest. This Court cannot conclude that state legislatures are to
be straightjacketed by such recently evolved constitutional theory in areas that
have traditionally been the exclusive concerns of the state.'87

Enrich summarily pointed to the difficulties in clarifying exactly what equality demands, its

threats to other interests and the state constitutional complexities that obscure a textual foundation

for these arguments to conclude that all account for the many cases where courts have upheld

financing schemes that were starkly inequitable.'88

Addressing this reorientation, Thro has written insteaded of emphasizing equality of

expenditures, the plaintiffs have argued that all children are entitled to an education of at least a

certain quality and that more money is necessary to bring the worse school districts up to the

minimum level mandated by the state education clause."'89 He distinguished these "quality suits"

that depend exclusively on the education clauses of individual state constitutions from the "equity








suits" that relied upon the state's equal protection clause. In the equity suits "such questions as

whether education is a fundamental right or whether the school finance system is irrational will

dominate the analysis, while in 'quality suits' the court must begin its analysis by determining if

the state education clause imposes a specific standard of quality....""19 Thro observes that if a

court finds the failure to meet a constitutional standard is systemwide, it must look beyond the

funding scheme, for "even if the lack of money is [sic] a cause, or even the primary cause, of the

district's inadequacy, it is almost inevitable that there will be other non-financial concerns. Thus

in order to correct the inadequacy, it may be necessary to do more than restructure the finance

system."'91 Referencing the aforementioned administrative specificity of state education articles,

he concludes that "courts may be more willing to recognize a new duty under an education

clause, and as a result, more likely to recognize an adequacy standard."'92 Exploring the genesis

of adequacy strategies, Wood has noted that:

A few of these suits have emerged after the applicable state supreme court has
ruled that equity was either already met or only the legislature could define such
a concept. In a few instances, these suits essentially questioned the concept of
"equality of poverty." That is to say, if a state aid distribution formula allocates
funds in an equitable manner, but such funds were by definition unable to meet
various educational and academic standards, such a distribution formula would
be inadequate by definition.193

Further, he marks that "in the movement toward greater educational accountability and raising

academic standards for the public schools of a given state, the legislature has, unsuspectingly,

defined by statute what makes an adequate education."'94 Deborah Verstegen has also pointed to

the "adoption and codification into law of challenging national educational goals aimed at

ambitious outcomes for all children-and subsequent standards setting movement enveloping the

states."'195 Assessing how state courts have utilized these standards, Verstegen observed that

courts have not been confined by these statistical parameters, writing that:

[T]he high courts invalidating state finance systems have found an adequate
education is defined by the "best system," it is a "quality" system; it provides
"excellence in education," it equipts all children with certain competence that
allow them to compete in the labor market-across the country and
internationally as well.96






46

Appraising the implications of the emerging appeal and codification of accountability and

standards, Rebell has observed that:

The standards based reform movement, which responded to a widespread
sentiment that American education was in serious trouble in the late 1980s,
provided the tools that courts needed to deal with complex education
issues...The extensive education reform initiatives most states adopted to meet
this challenge provided the courts workable criteria for developing the "judicially
manageable standards" that were necessary to craft practical remedies in these
litigations.197

According to Odden and Picus, the emphasis on standards influenced legislators in addition to

providing criteria for litigation. They noted that:

As the 1990s ended and the twenty-first century began, policymakers
increasingly wanted to know how much money was needed to educate students to
high standards; how those dollars should be distributed effectively and fairly
among districts, schools, programs, and students; and how both level and use of
dollars affected student performance. These policy demands are pushing school
finance beyond its traditional emphasis on fiscal equity.19

The standards and accountability initiative, incorporated within an adequacy challenge,

serves to address an inherent weakness in equity arguments; the inability to correlate

discrepancies in funding with inadequate educational systems. Speaking to this issue in Gould v.

Orr,199 the Nebraska Supreme Court wrote that:

While appellants' petition is replete with examples of disparity among the
.-various school districts in Nebraska, they fail to allege in their petition how these
disparities affect the quality of education the students are receiving...although
appellants' petition alleges the system of funding is unequal, there is no
demonstration that the education each student is receiving does not meet
constitutional requirements.20

Minorini and Sugarman have proffered that concerns other than equity gained a higher

national profile, suggesting the standards and accountability movement demonstrated that

attention had begun "to turn away from the problems of inequalities in school spending to the

shortcomings of public education from top to bottom... productivity importantly replaced

inequality as the salient reform object.... 201

Heise suggested that adequacy arguments referencing educational funding appeal to the

norms of fairness and opportunity, and present fewer logistical, theoretical and political








difficulties. He observes that "[a]dequacy litigation seeks to assist the most troubled school

systems as opposed to the decidedly more complicated and difficult task of reducing per-pupil

spending differences by either increasing spending (leveling up), or reducing existing spending

(leveling down), or a combination of the two."202 In addition, adequacy decisions do not pose a

threat to local control of schools given that they "do not focus on reducing per-pupil spending

differences-a product of local property tax revenues influence on school finance systems-

thereby a direct confrontation with local control."203 Heise accurately notes that "local control is

among the salient characteristics that distinguishes American school systems from other systems

throughout the world. Courts, particularly the U.S. Supreme Court, recognize the sanctity of local

control and agree that it is a legitimate governmental interest...."204 Also entertaining the

institution of local control, Enrich detailed its normative appeal. He commented that:

[T]he imagery of local control paints the contrast between local school district
and state in a manner reminiscent of the familiar contrasts between individual
and government, and between public and private...what is at stake is depicted as
the freedom to deploy one's own resources for one's own purposes and
benefit...the prospect of state-level constraints on local fiscal control raises the
fear that local autonomy over substantive education decisions will be displaced
by the dictates of a distant faceless bureaucracy.205

In accord with other scholars, Heise also noted the utility of the emerging standards, though

offering that "educational standards not only assist adequacy litigants, but standards also may

attract such litigation."206 Proffering another strategically salient dimension, Heise holds that

adequacy evidences a greater appeal for urban districts. He found "urban districts ambivalent as

to participation in equity litigation," citing that "data suggest that urban school systems might

actually lose financially in an effort to equalize per-pupil spending."207 Not surprisingly, these

school districts which generally spend more than the state average would be resistant to engaging

in litigation that sought an equitable distribution of funds.

Providing yet another perspective, Minorini and Sugarman believe that early litigation to

eliminate racial segregation provides a unique insight into the emerging adequacy movement.

They noted that "the litigation strategy in the first half the twentieth century [sic] was to show








that the segregated schooling provided for blacks was inferior to what was provided whites and

hence in violation from the 'equal protection of the law' requirement of the Fourteenth

Amendment...."208 Charting an evolving legal strategy, the authors point to Cummings v. Board

of Education,209 Missouri, ex. rel. v. Canada,210 Sweatt v. Painter,211 and McLaurin v. Oklahoma

State Regents;212 actions of which they suggested "the Court's emphasis moved away from

conventionally measured educational resources to an emphasis on 'intangibles."'213 This concern

with "intangibles" was accentuated in Brown, as the Court held that black elementary and

secondary school students were unconstitutionally denied equal educational opportunities, even in

those instances where the schools involved had been equalized in terms of infrastructure and

instructional staff. In setting the stage for adequacy, Minorini and Sugarman proposed that:

[A]lthough the test of equality throughout these series of cases was always
applied to educational input differentials, over time the inputs that were
compared increasingly included those beyond mere financial resources and the
things money buys directly. In other words, the Court became increasingly
concerned with what the students were likely to gain from their educational
experience.214

Regarding school desegregation litigation of a more recent vintage, particularly that of the 1970s

and 1980s, they found that courts began to "focus primarily on ordering improvements in the

education enterprise-such as teacher quality, curriculum, facilities, and other support staff--that

were in many respects independent of student assignment related desegregation goals."215 This in

conjunction with the fact that the courts had relaxed the assignment standards that applied to

school districts that had previously discriminated but had instituted judicially mandated remedies

presented a mixed judicial message; compelling advocates to fear a diminution in efforts to

improve educational opportunities targeted toward minority students.216 As a result, many came

to view education finance litigation targeted at adequacy as a promising, if not the only, option.217

Contemplating contemporary trends, observers traced adequacy's emergence to a

growing dissatisfaction with the tangible outcomes of school finance equity cases even when they

were successfully litigated.218 Wood's aforementioned characterization of an "equality of








poverty"219 speaks to those concerns, while Minorini and Sugarman also point to, as did Heise,220

the difficulties equity cases present for urban districts. Regarding these school districts, they

made note of the fact that these districts faced higher staffing costs, had a higher percentages of

students with exceptional needs and that they "had to provide so many other local services that

their tax base was not really as available to be drawn on for education as would appear from a

simple calculation of local district capacity...."221

Scrutinizing the effects of education finance litigation, William Fischel proposed that the

legislative legacy of the Serrano actions in California contributed to the passage of Proposition 13

in 1978; a state tax initiative that limited property tax rates, required a two-thirds vote of the

legislature to increase state taxes and prohibited the imposition of a statewide property tax.222

While suggesting that this "tax revolt" represented the dynamic of which they addressed as

spurring the movement toward adequacy suits, Minorini and Sugarman proposed that "the

California experiences with wealth discrimination theory unnerved many people, again leading

them to search for alternative theories."223 They noted, as did Fischel, that as a result of the

initiative the size of government was sharply curtailed and that "rapidly California dropped from

being one of the states that spent most generously on public schools to one of the lowest."224

Appraising these dynamics, Minorini and Sugarman concluded that "for needy children attending

high-cost, urban schools, school finance litigation would be far more attractive if it could be cast

more widely than the conventional wealth discrimination approach."225

In 1981 Samuel Huntington in American Politics: The Promise of Disharmony226

persuasively argued that there persisted in America a gap between the promise of American ideals

and the performance of American politics and government. Compelled by a "democratic

imperative," he proposes that the nation cyclically attempts to reconstruct its institutions to reflect

the core values of liberty, equality, individualism, and democracy.227 In contributing an analytical

framework divorced from any particular legal doctrine, Rebell incorporated Huntington's thesis

while weaving an explanation for the strategic shift from equity to adequacy. Employing the








conceptual framework of Huntington's work, he argued that adequacy's ascending currency

demonstrates:

[T]he resurgence of a powerful "democratic imperative" at the core of the
American political tradition. This democratic imperative proclaims that the
nation cannot permanently abide a situation in which large numbers of children
are denied an adequate education, and in which those with the greatest
educational needs systematically receive the fewest educational resources.28

As clearly illuminated by the textual and normative nature of an evolving appreciation of

education finance, both in theory and administration, there is an ever-present tension between the

concerns for equality and autonomy. Addressing this dynamic in light of his contention of a

"democratic imperative" at play in education, Rebell proposes that the public was uncomfortable

with the first wave of litigation; particularly rulings such as that of Serrano which carried

fundamentality too far. At the same time, he contends that the public was just as discomfited by a

system of full liberty which countenanced the creation and maintenance of vast funding

discrepancies.229 Explaining why this struggle often presents as particularly acute, Rebell writes

that:

Education is the sector of American society in which the liberal, republican and
egalitarian ideals have been most consistently and harmoniously expressed
because schooling promises to provide all the nation's children with an equal
opportunity to gain the skills necessary to pursue individual advancement and the
civil values required to participate actively in the democratic culture.230

In Rebell's estimation, that these concerns in the midst of an inherent values conflict, led to an

appreciation for adequacy in lieu of equity resulted from four interrelated educational

developments; the growing sentiment that public education in America was in serious trouble and

placing the nation at a potential international competitive deficit; the awareness that the

desegregation initiatives of the 1950s and 1960s have failed to demonstrate sufficient educational

improvement among minority students; the standards and accountability movement that was

premised on the belief that given appropriate support and resources, virtually all students can

perform a relatively high academic levels; and the awareness of the increasing social and civil

role schools were being tasked with.23 Of the later point, Rebell conceptually revisits the








strategic tack of plaintiffs in early educational finance litigation actions challenging funding

systems on federal constitutional grounds; attempting to establish the nexus between education

and the exercise of fundamental rights, particularly those facilitating full participation in a

democratic society. He contends that schools are now seen has having "a significant new

institutional role in transmitting the values necessary to perpetuate the democratic political

system."232

The relationship between education and citizenship has certainly predated education

finance litigation. Thomas Jefferson pointed out that "some degree of education is necessary to

prepare citizens to participate effectively and intelligently in our open political system if we are to

preserve freedom and independence.233 Alex de Tocqueville observed that "in the United States

the instruction of the people powerfully contributes to the support of the democratic republic."234

Just as clear, on the part of educational theorists and finance reform advocates, is the reorientation

of educational governance, administration, provision of resources and legal strategies from a

concern with equity to an embrace of adequacy. Yet, as Verstegen has noted, "the concept of an

adequate education emerging from state courts invalidating school finance systems goes well

beyond a basic minimum educational program...."235 Certainly, the proposed nexus between

education and fundamental rights has witnessed a metamorphosis in sanction within the state

judiciary; at the least it bears a strikingly indeterminate nature. Perhaps such a dynamic is

inevitable, reflecting the understanding of the Wisconsin Supreme Court which opined that "the

definition of an adequate education is not static and necessarily with change."236 The

conceptualization of the judiciary within the context of restraint and activism and how the

principles of equity and adequacy factor into that equation mirrors this subjective and

philosophical calculation.

Notes


SJames G. Ward, Conflict and Consensus in the Historical Process: The Intellectual Foundations
of the School Finance Reform Litigation Movement, in, 24 JOURNAL OF EDUCATION FINANCE 1,2 (1998).











2 Roe Johns, Some Critical Issues in School Financing, in, Constitutional Reform of School
Finance 158 (K. Alexander & K. Jordan, eds., D.C. Heath, 1973).

3 James Pulliam, History of Education in America (4th Merrill, 1987).

4 Bernard Bailyn, Education in the Founding of American Society 25 (University of North
Carolina Press, 1960).

Paul Mort & William Reusser, Public School Finance: Its Background, Structure and Operation
(McGraw-Hill, 1951).

6 Charles Hull, ed., The Economic Writings of Sir William Petty 145 (Cambridge University
Press, 1899).

7Earnest Johnson, The Place of Learning, Science, Vocational Training and "Art" in Pre-
Smithian Thought, in, 24 JOURNAL OF ECONOMIC HISTORY 129, 132 (1964).

8 Johns, supra note 2 at 158.

9 Allan Odden & Larry Picus, School Finance: A Policy Perspective 9 (3rd McGraw-Hill, 2004).

o Id. at 10.

Steve Rippa, Education in a Free Society: An American History (Longman, 1997).

12 Id. at 100.

13 Id. at 101.

14 Id. at 102.

5 Id. at 102.

16 Harpers Register of Pennsylvania Vol. 15, 8 (May 2, 1835).

7 Morton Horwitz, The Transformation of American Law. 1870-1960 20 (Oxford University
Press, 1992).

i8 Ward, supra note 1 at 6.

19 Id.

20 Johns, supra note 2 at 159.

2 163 U.S. 537 (U.S. 1896).

22 Id. at 544.

23 R. Craig Wood & David Thompson, Educational Finance Law: Constitutional Challenges to
State Aid Plans--An Analysis of Strategy 5 (2nd NOLPE, 1996).

24 d.

25 Cummings v. Richmond, 177 U.S. 528 (U.S. 1899) at 544.












26See Wood, supra note 23.

27 E.P. Cubberley, School Funds and Their Apportionment (Teachers College, 1905).

28d. at 17.

29d. at 16-17.

30 Johns, supra note 2 at 161 (citing Ellwood Cubbereley).

31 Wood, supra note 23 at 7.

32 Harland Updegraff, Rural School Survey of New York State: Financial Support (By the Author,
1922).

33 Johns, supra note 2 at 161.

34 See Odden, supra note 9 at 137.

35 Report of the Educational Finance Inquiry Commission. Vol. 1 (McMillan, 1923).

36 George D. Strayer & Roger Haig, The Financing of Education in the State of New York, in.
Report of the Educational Finance Inquiry Commission. Vol. 1 173 (McMillan, 1923).

37Id. at 174-75.

38 See Wood, supra note 23 at 7.

39 Strayer, supra note 36 at 174.

40 See Wood, supra note 23 at 7.

41 Johns, supra note 2 at 163.

42 Paul Mort, The Measurement of Educational Need 6-7 (Teachers College, 1924).

43 Wood, supra note 23 at 9.

44 Henry Morrison, School Revenue 214 (University of Chicago Press, 1930).

45 Johns, supra note 2 at 165.

46 Morrison, supra note 44 at 220-21.

47 See, e.g., C.S. Benson, The Economics of Public Education (Houghton-Mifflin, 1978).

48 Wood, supra note at 9.

49 Johns, supra note at 157.

50 347 U.S. 483 (U.S. 1954).

51 Supra note 20.










52 Brown, 347 U.S. at 492-93.

53 Wood, supra note 23 at 10.

4 Thomas Lowi, The End of the Republican Era 17 (University of Oklahoma Press, 1995); See
also, Justice Cardozo's opinion in Helvering v. David, 301 U.S. 619 (U.S. 1937).

55 See Arthur Wise, Is Denial ofEducational Opportunity Constitutional?, in, 13
ADMINISTRATORS HANDBOOK 6 (1965).

5Arthur Wise, Rich Schools. Poor Schools: The Promise of Equal Educational Opportunity 197
(University of Chicago Press, 1968).

57d. at 198.

58 John Coons, et. al., Private Wealth and Public Education (Harvard University Press, 1970).

59 James G. Ward, Ethics and Legitimzation of the Pursuit ofEquity in School Finance, in, 23 ST.
LOUIS UNIV. PUB. LAW REV. 2 487, 493 (2004).

60 Coons, supra note 58 at 304; "Proposition I" their core legal principle has come to be known as
fiscal or wealth neutrality.

6Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts: The Promise and
Problems of Moving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and
Perspectives 181, 182 (Helen Ladd, et. al. eds., National Academy Press, 1999).

62 Harold Horowitz, Unseparate but Unequal: The Emerging Fourteenth Amendment Issue in
Public School Education, in, 13 UCLA LAW REV. 1147 (1970).

63 See Chapter 4 of accompanying text for a detailed discussion of the conceptual groundings of
vertical equity.

64 Paul Minorini & Steve Sugarman, School Finance Litigation in the Name ofEducational
Equity: Its Evolution, Impact, and Future, in, 34, 36-37, supra note 61.

65 293 F. Supp. 327 (N.D. Ill. 1968).

66 Mclnnis v. Ogilvie, 394 U.S. 322 (U.S. 1969).

67310 F. Supp. 572 (W.D. Va. 1969).

68 Id. at 574.

69 487 P.2d 1241 (Cal. 1971) [hereinafter Serrano I].

70 Michael LaMorte, School Laws: Cases and Concepts 348 (7th Allyn and Bacon, 2002)

7' Serrano v. Priest, 89 Cal Rptr. 345 (Cal. 1970).
72 Id. at 348.

73 Id. at 350.

74 See Serrano I, supra note 69.










7 Wood, supra note 58.

76 Charles Russo, Reutter's The Law Of Public Education 320 (5" Foundation Press, 2004) (citing
the opinion in Serrano I).

7 See R. Craig Wood, Constitutional Challenges to State Education Finance Distribution
Formulas: Moving from Equity to Adequacy, in, 23 ST. LOUIS UNIV. PUB. LAW REV. 531, 546 (2004).

8 Serrano 487 P.2d at 1253.

79 Wood, supra note 77 at 546.

80 337 F. Supp. 280 (W.D. Tex. 1971).

1 Id. at 284.

82411 U.S. 1 (U.S. 1973).

83 Id. at 27-28.

84 Wood, supra note 23 at 7.

s5 Rodriquez, 411 U.S. at 35.

86 Id. at 37.

87 Id. at 17.

88 McInnis v. Shapiro, 293 F. Supp. 327 (N.D. Ill., 1968).

8Michael Rebell, Educational Adequacy, Democracy and the Courts: The Promise and Problems
ofMoving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and Perspectives 177
(Helen Ladd, et. al. eds, National Academy Press, 1999).

90 Rodriquez, 411 U.S. at 36.

91 Id. at 54.

92 Id. at 56.

93 Id.

94 Michael Heise, State Constitutions, School Finance Litigation and the Third Wave: From Equity
to Adequacy, in, 68 TEMPLE LAW REV. 1151, 1154 (1996).

95 David Thompson, School Finance and the Courts. A Reanalysis ofProgress, in, 59 WEST'S
LAW REP. 945 (1990).

96 Plyler v. Doe, 457 U.S. 202 (U.S. 1982).
97Kern Alexander & M. David Alexander, American Public School Law (5th Wadsworth, 2001).

98 James Nowak, etl al., Constitutional Law 531 (West Publishing, 1986).

99 Plyler, 457 U.S. at 221.










100 Thompson, supra note 95 at 952.

101478 U.S. 202 (U.S. 1986).

102 "Section Sixteen" lands were originally introduced in the Land Ordinance of 1785. The
ordinance provided that such lands be utilized in generating funds for public education. Plaintiffs argued in
the instant case that the disparities in distribution resulting from the system's disruption arising from the
Civil War constituted a violation of the Equal Protection Clause.
103 Papasan, 478 U.S. at 280.

104 Id. at 285 (White, J., concurring).

105 Wood, supra note 77 at 542.

06 Thompson, supra note 95 at 950.

107 487 U.S. 450 (U.S. 1988).

108 Id. at 466 (Marshall, J., dissenting).

109 Thompson, supra note 95 at 953.

110 Wood, supra note 77 at 543.

"' See, e.g., William Thro, Judicial Analysis During the Third Wave of School Finance Litigation:
The Massachusetts Decision as a Model, in, 35 B.C. LAW REV. 4 498 (1994); G. Levine, Meeting the Third
Wave: Legislative Approaches to Recent School Finance Rulings, in, 29 HARVARD J. ON LEG.(1994); J.
Underwood & W. Sparkman, School Finance Litigation, in, 14 HARVARD J. L. & PUB. POL. 517 (1991).
112 303 A.2d 273 (N.J. 1973).

113 792 S.W.2d 186 (Ky. 1989).

114 Heise, supra note 94 at 1153.

115 Paul Enrich, Leaving Equality Behind: New Direction in School Finance Reform, in, 48
VANDERBILT LAW REV. 101, 117 (1995).

116 See, e.g., Wood, supra note 77; Lowi, supra note 53.

117 Enrich, supra note 115 at 116.

"8 351 U.S. 12 (U.S. 1956).

19 383 U.S. 663 (U.S. 1966); See also, Lubin v. Panish, 415 U.S. 709 (U.S. 1974); Shapiro v.
Thompson, 394 U.S. 618 (U.S. 1969).
120 Enrich, supra note 115 at 118.
21 Id. at 119.
122 396 U.S. 186 (1962).

123 377 U.S. 533 (1964).










24 394 U.S. 618 (1969).

125 Minorini, supra note 61 at 182.
126 Enrich, supra note 115 at 119-20.

127 Id. at 121.

128 Wood, supra note 77 at 533.

129Phillip Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence
Undefined, in, 35 U. CHI. LAW REV. 583 (1968).

130 Wood, supra note 77 at 535 (internal citation omitted).

131 Enrich, supra note 115 at 128.

32 Supra note 111.

133 Id. at 283.

134 See Wood, supra note 23.

135 N.J. Const. art. VIII, 4.

136 Robinson, 303 A.2d at 294.

137 Heise, supra note 94 at 1160.

138 Wood, supra note 23 at 69.

139Robert F. Utter, Freedom and Diversity in a Federal System: Perspective on State
Constitutions and the Washington Constitution's Declaration of Rights, in, 7 U. PUGET SOUND L. REV. 507
(1984).

140 420 U.S. 714 (U.S. 1975).

141 Id. at 719.

142 See William Karasik, Equal Protection of the Law Under the Federal and Illinois
Constitutions: A Contrast in Unequal Treatment, in, 30 DE PAUL LAW REV. 263 (1981).

143 William Thro, To Render Them Safe: The Analysis of State Constitutional Provisions in Public
School Finance Reform, in, 77 VIRGINIA LAW REV. 1639, 1670-71 (1989).
144 Heise, supra note 94 at 1157-59.

145 Wood, supra note 77 at 548-49.

146 Richard Grubb, Breaking the Language Barrier: The Right to Bilingual Education, in, 9
HARVARD C.R.-C.L. LAW REV. 9, 52 (1974).
147 Thro, supra note 143 at 1672.






58


148 Molly McUsic, The Use of Education Clauses in School Finance Reform Legislation, in, 28
HARVARD J. ON LEG. 307, 320 (1991) (citing Mont. Const. art. X, 7).

49 Id. at 325 (citing Alaska Const. art. VII, 1).

0S Id. at 324 (citing Ill. Const. art. X, 1).

15 Id. at 325 (citing Kan. Const. art VI, 1).

152 Id. at 336.

153 See, e.g, Olsen v. State, 554 P.2d 239 (Or. 1976) and Robinson v. Cahill, 303 A.2d 273 (N.J.
1973). Both courts addressed constitutional mandates that spoke to the provision of a "thorough and
efficient" system of education and reached opposite conclusions as to the phrase's implications; the Oregon
court ruling that it did not speak to an equity demand, while the New Jersey court held that financing
disparities rendered the state's funding scheme constitutionally infirm. See also, Chapter 5, accompanying
text.

154 Julie Underwood, School Finance Litigation: Legal Theories, Judicial Activism, and Social
Neglect, in, 20 JOURNAL OF EDUCATION FINANCE 143, 150 (1994).

155 Wood, supra note 77 at 550-51.

156 See, e.g., James Guthrie & Richard Rothstein, Enabling 'Adequacy' to Achieve Reality;
Translating Adequacy into State School Finance Distribution Arrangements, in, Equity and Adequacy in
Education Finance: Issues and Perspectives 209 (Helen Ladd, et. al. eds., National Academy Press, 1999).

157William Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The
Massachusetts Decision as a Model, in, 35 B.C. LAW REV. 597, 598-99 (1994).

'58 Odden, supra note 9 at 38.

'59Thro, supra note 157 at 603.

60 Heise, supra note 94 at 1162.

161585 P.2d 684 (Wash. 1978).

162Minorini, supra note 64 at 35.

163 769 P.2d 684 (Mont. 1989).

164 255 S.E.2d 859 (W.Va. 1979).

16 See, e.g., Minorini, supra note 64; Thro, supra note 110; Levine, supra note 110.

66 790 S.W.2d 186 (Ky. 1989).

67 Id. at 215.

168 See Odden, supra note 9 at 39.

169 Rose, 790 S.W.2d at 197.


170Id.












I7 d. at 212; See Chapter 5, accompanying text for detailed discussion of Rose.

172 Kern Alexander, The Common School Ideal and Limits of Legislative Authority: The Kentucky
Case, in, 28 HARVARD J. ON ED. 341,345 (1991).

73 Michael Rebell, Educational Adequacy, Democracy and the Courts, in, Achieving High
Educational Standards for All: Conference Summary 218, 235 (T. Ready, et. al. eds., National Academy
Press, 2002).

174 Enrich, supra note 115 at 145.

75Id. at 150.

76 Id at 160.

177 Id

178 Rebell, supra note 173 at 231.

179 Ward, supra note I at 18.

180 Id. at 22.

181 A. Reschovaky, Fiscal Equalization and School Finance, in, 47 NATIONAL TAX JOURNAL 185
(1994).

182 Cass Sunstein, The Partial Constitution 168 (Harvard University Press, 1993).

183 Id.

184 Enrich, supra note 115 at 154-55.

185 Id. at 167.

186 344 F. Supp. 1068 (D. Md. 1972).

187 Id. at 1079; See Chapter 5, accompanying text for a discussion of Parker.

8 Enrich, supra note 115 at 167.

19 Thro, supra note 157 at 603.

190 Id. at 605.

191 Id. at 608.

192 Id.

193 Wood, supra note 77 at 551 (internal citations omitted).
194 Id. at 552.

Deborah Verstegen, Judicial Analysis During the New Wave ofSchool Finance Litigation: The
Adequacy in Education, in, 24 JOURNAL OF EDUCATION FINANCE 51 (1998).






60



196 Id.

197 Rebell, supra note 173 at 228.

198Odden, supra note 9 at 1; See also Wood, supra note 77 at 552-53 detailing adequacy studies in
North Dakota, South Carolina, California, and Oregon.

199 506 N.W.2d 349 (Neb. 1993).

200Id. at 353.

201 Minorini, supra note 61 at 186.

202 Heise, supra note 94 at 1174.

203 Id

204 Id. at 1170.

205 Enrich, supra note 115 at 160.

206 Heise, supra note 94 at 1176.

207 Id.

208 Minorini, supra note 61 at 177.

209 175 U.S. 528 (U.S. 1899).

210 305 U.S. 337 (U.S. 1938).

211 339 U.S. 629 (U.S. 1950).

212 339 U.S. 637 (U.S. 1950).

213 Minorini, supra note 61 at 177.

214 Id

215Id. at 187.

216 See David Tatel, Desegregation Versus School Reform, Resolving the Conflict, in, 61
STANFORD LAW REV. (1992) for a discussion of the reaction to a changing judicial paradigm.

217 Minorini, supra note 61 at 188.

218 See, e.g., Enrich, supra note 115.

219 See Wood, supra note 193.

220 See Heise, supra note 94 at 1176.

221 Minorini, supra note 61 at 184.






61


222 William Fischel, DidSerrano Cause Proposition 13?,in, 42 NATIONAL TAX JOURNAL 467
(1989).

223 Minorini, supra note 61 at 185.

224 Id. at 186.

225 Id. at 188.

226 Samuel P. Huntington, American Politics: The Promise of Disharmony (Belknap Press, 1981).

227 Id.

228Michael Rebell, Fiscal Equity Litigation and the Democratic Imperative, in, 24 JOURNAL OF
EDUCATION FINANCE 23, 24 (1998).

229 Id. at 30-33.

230 Id. at 31-32.

231 Id. at 34-36.

232 Id. at 36.

233 Thomas Jefferson, cited in Wisconsin v. Yoder, 406 U.S. 205 (U.S. 1972) at 221.

234 Alex de Tocqueville, Democracy in America 329 (Vintage Press, 1961).

235Verstegen, supra note 194 at 67.

236 Campbell City School District v. State, 907 P.2d 1238 (Wis. 1995).















CHAPTER 3
THE JUDICIAL BRANCH

Scarcely any political question arises in the United States that is not resolved,
sooner or later, into a judicial question. Hence, all parties are obligated to borrow
in their daily conversation, the ideas and even the language peculiar to judicial
proceedings.'

Jurisprudence in the American democracy remains an integral part of the nation's

political and social "conversation," subject only to gradations of intensity as particular rulings or

judicial dispositions seize popular and scholarly attention. Education finance litigation lies

squarely within this discussion, given the fiscal, normative, and jurisdictional implications and

premises at play in these actions. In order to better appreciate this area of American jurisprudence

amidst the totality of the nation's judicial "conversation," it is necessary to consider judicial

theory, constitutional interpretation, and the unique nature of state courts and constitutions. Such

consideration must distinguish state judiciaries and these courts' institutional and administrative

roles from that of the federal courts. While the concept of judicial function and role has often

been considered in general terms, the doctrines which apply to the United States Supreme Court

and the lower federal courts, referred to herein as Article III courts,2 are not completely apposite

to state court adjudication. This chapter of the study offers a treatment of each in turn, providing

the context within which the course of education finance litigation may be contemplated.

Constitutions specify the delegation of governmental powers, while identifying rights

which the government cannot violate. The authority granted to courts to consider whether the

actions of the government are consistent with these tenets and to invalidate those which fail to

evidence fidelity with same is known as judicial review.3 The simple directness of this principle

belies the complexity of the fundamental question it continues to present to constitutional law and

the role of the judiciary: the justification for and scope of judicial review. Considerations of








judicial restraint and judicial activism, justiciability, separation of powers and constitutional

theory and interpretation are enveloped within the basic tenets of judicial review. Care must be

exercised not to confuse the polarities exhibited within these considerations with the power of

judicial review itself; the fact that a court may interpret a constitution and other laws is not

indicative in and of itself of a particular judicial posture.4

The authority to determine the meaning and application of a written constitution failed to

garner even mention in the Federal Constitution.5 Yet, as Alexander Bickel observed, thishs is

not to say that the power of judicial review cannot be placed in the Constitution; merely that it

cannot be found there."6 Considering the development of the institution of the judiciary and

judicial review Bickel noted that:

Congress was created very nearly full blown by the Constitution itself. The vast
possibilities of the presidency were relatively easy to perceive and soon,
inevitably, materialized. But the institution of the judiciary needed to be
summoned out of the constitutional vapers, shaped, and maintained... [yet] it is as
clear as such matters can be that the Framers of the Constitution specifically, if
tacitly, expected that the federal courts would assume a power-of whatever
dimensions--to pass on the constitutionality of the actions of Congress and the
President, as well as of the several states.7

Constitutional historian David O'Brien provided the perspective that:

The Framers failed to think through the power of judicial review and its
ramifications for constitutional politics...The Constitution...is not self-
interpreting and crucial principles such as judicial review...are presupposed
rather than spelled out...in creating separate institutions that share specific and
delegated powers, the Constitution amounts to a prescription for political struggle
and an invitation for an ongoing debate about constitutional principles.

The essence of the difficulty in defining and establishing the parameters for the institution was

that judicial review presents as a "countermajoritarian force" in American democracy.9 Bickel,

while weaving an historical and jurisprudential justification for review, nonetheless

acknowledged that "judicial review is a deviant institution"'0 in a democracy; given the power

conferred to the judiciary to apply and construe a constitution or law against the wishes of

legislative majority and hence the citizenry of the republic. The inherent anti-democratic nature of

an independent and strong judiciary drew the attention of Federalists and Anti-Federalists alike as








the nascent nation struggled though a constitutional confirmation. Alexander Hamilton, a

proponent of a judiciary serving to check the executive and legislative branches, conceived that it

would stand as an intermediate body between the people, with a constricted authority. Regarding

the judiciary as the "least dangerous branch," Hamilton wrote that:

Whoever attentively considers the different departments of power must perceive,
that in a government in which they are separated from each other, the judiciary,
from the nature of its functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity to annoy or injure
them. The executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but prescribes the
rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the purse, no
direction either of the strength of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither FORCE nor WILL, but
merely judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments."

The Anti-Federalist, Robert Yates was not as sanguine as Hamilton, asserting that:

There is no authority that can remove [supreme court justices], and they cannot
be controuled by the laws of the legislature. In short, they are independent of the
people, of the legislature, and of every power under heaven. Men placed in this
situation will generally soon feel themselves independent of heaven itself...The
opinions of the supreme court, whatever they may be, will have the force of law;
because there is no power provided in the constitution, that can correct their
errors, or control their adjudication.12

Powers and Rothman remarked that "Hamilton defended the Court's independence by arguing

that judges would primarily rule on the letter of the law and refrain from pronouncements as to its

spirit."" While wagering that institutional and cultural constraints would provide a sufficient

check on the judicial branch, Hamilton acknowledged that in granting the independent power to

interpret the law there was no guarantee that judges would not stray beyond the "letter of the

law." In The Federalist #81,14 Hamilton, while recognizing that mistakes and abuses were

possible, did not perceive a significant threat to democracy, writing that:

The supposed danger of judiciary encroachments on the legislative authority
which has been upon many occasions reiterated is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may now and
then happen; but they can never be so extensive as to amount to an
inconvenience, or in any sensible degree to affect the order of the political
system. This may be inferred with certainty from the general nature of the








judicial power; from the objects to which it relates; from the manner in which it
is exercised; from its comparative weakness; and from its total incapacity to
support its usurpation by force.s1

It remained for Chief Justice John Marshall's opinion in the 1803 case of Marbury v.

Madison,16 to establish the authority of the courts to review under the Constitution the actions of

the other branches of government. Justice Marshall proposed that:

The question, whether an act, repugnant to the constitution, can become law of
the land, is a question deeply interesting to the United States; but, happily, not of
an intricacy proportioned to its interest. It seems only necessary to recognize
certain principles, supposed to have been long and well established, to decide it.1

Marshall's confident tone continued as he asserted that:

The powers of the legislature are defined, and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing, if
these limits may, at any time, be passed by those to be restrained? The
distinction, between a government with limited and unlimited powers, is
abolished if these limits do not confine the persons on whom they are imposed,
and if acts prohibited and acts allowed, are of equal obligation. It is a proposition
too plain to be contested, that the constitution controls any legislative act
repugnant to it or, that the legislature may alter the constitution by an ordinary
act.

In essence, to leave the decision to the legislature was to allow those who the constitution was

constructed to limit to set those limits."9 The Chief Justice held that "[i]t is emphatically the

province and the duty of the judicial department to say what the law is...[and that] the judicial

power of the United States is extended to all cases arising under the constitution."20

Over 150 years later, Chief Justice William Rehnquist, distilled the decision in Marbury, writing

that:

The ultimate source of authority in this Nation, Marshall said, is not Congress,
not the states, not for that matter the Supreme Court of the United States. The
people are the ultimate source of authority; they have parceled out the authority
that originally resided entirely with them by adopting the original Constitution
and by later amending it. They have granted some authority to the federal
government and have reserved authority not granted it to states or to the people
individually...if the popular branches of government-state legislatures, the
Congress, and the Presidency-are operating within the authority given them by
the Constitution, their judgment and not that of the Court must prevail. When
these branches overstep the authority given them by the Constitution...the Court
must prefer the Constitution to government acts.21









According to Chief Justice Rehnquist, John Marshall's opinion justified an independent federal

judiciary vested with the power to review government actions given that it framed the role of the

justices as detached and objective observers engaged in the interpretation of an instrument framed

by the people.22 Another heir to the Chief Justice position, Earl Warren commented that:

Insistence upon the independence of the judiciary in the early days of our nation
was perhaps John Marshall's greatest contribution to constitutional law. He aptly
stated that controlling principle when, speaking of the court during his tenure, he
said that he had "never sought to enlarge the judicial power beyond its proper
bounds, nor feared to carry it to the fullest extent that duty required."23

Stimson has drawn attention to the Marshall's concurrence with Hamilton's thesis that

the courts should be vested with the power of judicial review, remarking that "Marshall shared

Hamilton's legalistic conception of constitutional structure as a hierarchy of laws which placed

judgment and judicial authority firmly at the center of liberal politics...."24 Marshall's reasoning

also reflected Hamilton's response to the countermajoritarian ramifications of judicial review; of

the possible usurpation of power at the expense of the elected government, Hamilton contended

that the principle did not "suppose superiority of judicial to legislative power."25 Rather, judicial

review "only supposes that the power of the people is superior to both; and that where the will of

the legislature declared in its statutes, stands in opposition to that of the people, declared in the

Constitution, the judges ought to be governed by the latter rather than the former."26

Warren Burger, yet another Chief Justice in 1972 commented on Marbury, and noted that

although the Constitution made no mention of judicial review, "Marshall was not and never

claimed to be the originator of the doctrine since he was well aware of the growing acceptance of

the idea that constitutional adjudication was inherent in the very nature of a written

constitution."27 Beyond his notation of the opinion itself, the historical record supports Chief

Justice Burger's view on the era's legal climate. A decade prior to Marbury the Supreme Court

confirmed that state laws contrary to the Federal Constitution were invalid. In Van Home Lessee

v. Dorrance,2 Justice Patterson wrote "I take it to be a clear position; that if a legislative act








oppugns a constitutional principle, the former must give way and...it will be the duty of the Court

to adhere to the Constitution and to declare the act null and void."29 A leading jurist of the time,

Spencer Roane, then a judge on the Virginia Court opined in Kamper v. Hawkins,30 that "[i]fthe

legislature may infringe upon this Constitution [of Virginia], it is no longer fixed...and the

liberties of the people are wholly at the mercy of the legislature."31 These two opinions also

present as congruent with the response to the countermajoritarian fears proffered by John

Marshall and Alexander Hamilton. Alexander Bickel, credited with actually introducing the

epigram [countermajoritarian] would subsequently justify judicial review not on the basis of an

inherent institutional weakness; rather he proclaimed it the Court's role to pronounce and guard

public values in principled fashion and to build consensus around them. Bickel's thesis was that

the legislative and executive branches are not sufficiently insulated from the political process to

make difficult decisions grounded on principle, while asserting that:

Judges have, or should have, the leisure, the training, and the insulation to follow
the ways of the scholar in pursuing the ends of government. This is crucial in
sorting out the enduring values of a society...Their insulation and the marvelous
mystery of time give courts the capacity to appeal to men's better natures, to call
forth their aspirations, which may have been forgotten in the moment's hue and
cry.32

It may be ventured that Bickel's appreciation is best considered within the context of current

constitutional theory given the confines of judicial review as it presented at the turn of the

Eighteenth Century. Christopher Wolfe has marked that:

Judicial review "won out" in early American history after genuine struggles, but
the form in which it won was critical to its success. In a different form, it is likely
that it would not have survived. The form it took was "moderate" judicial review,
and the major qualifying components it incorporated were inherent limits of
judicial power, legislative deference, and the political questions
doctrine...[judicial review] was not to be exercised in a "doubtful" case." In
cases in which they had doubts about the proper interpretation of the
Constitution, judges would defer to legislative opinions of constitutionality.33

Of the exercise of judicial review in the early republic, Powers and Rothman found that:

Even when it did act against legislatures, it could only do so to uphold a higher
constitutional principle. It never functioned as a "council of revision" an
institution that was contemplated but did not survive the deliberations of the








Constitutional Convention. A council of revision would have been a more purely
policy-making adjunct to the legislative branch, continually "revising"
legislation.34

Graglia cited the limited scope of review as articulated by Marshall, suggesting that:

Such a power of judicial review, limited to judicial enforcement of definite,
specific constitutional provisions, would constitute only a very limited intrusion
on democracy, the intrusion inherent in any constitutional provision that restrains
the policy choices of a current majority.3

This conceptualization of judicial review as a discrete and restricted institutional

intervention is borne out in the years subsequent to Marbury. Chief Justice John Marshall never

again invalidated federal legislation during his remaining thirty-two years on the bench, and the

Court did not so act until 1857, when in the Dred Scott36 decision it held that Congress was

without authority to regulate slavery.37 Undoubtedly, in theory and application judicial review has

undergone significant, if not tumultuous transformation. As Alexander Bickel noted, judicialil

review is a present instrument of government. It represents choices men have made and

ultimately we must justify it as choice in our own time. What are the elements of choice?"38

Considering these elements is an exercise cognizant of the sentiments expressed by Chief Justice

Warren Burger that someoe residual controversy remains as to the exercise of judicial review

today, but is largely as to scope, not basic power."39 In the realm of that "residual" controversy (a

characterization that is arguably too benign) Peretti has proposed that:

The self-perceived task for legal scholars is to resolve the two problems
associated with the Court's power of judicial review. The first is the legitimacy
problem-the problem of reconciling the Court's power with democratic values.
What possibly legitimate role can an undemocratic institution perform in a
democracy? What are the legitimate uses of judicial review and limits on its use?
The second problem is how to police or enforce those limits. How can we
effectively constrain judicial power and guard against judicial abuse?40

Doctrinal limits regarding judicial review are the essence ofjusticiability. Although in

principle it has many components, at its core it asks when a court can resolve a given dispute.

The complexity in responding to that query lies within the inherent judicial subjectivity at play in

the delineation of these doctrinal limitations. Bickel observed that, "[t]he case does not exist in








which the power of judicial review has been exercised without some misgiving being applicable

in some degree."41 Differences of degree reflect the nature of the particular principle being

utilized to gauge justiciability. To present as justiciable, all parties and the subject matter in a

particular action must be in compliance with the jurisdictional requirements for the court to

consider the legal issue. Prior to consideration it must be determined that the court have

jurisdiction over the parties and issue of the lawsuit.

Alexander Bickel coined the term "passive virtues" to describe the various techniques a

court may employ to avoid or delay deciding a legal controversy.42 Another commentator has

opined that the interpretation of justiciability "affords federal judges opportunities for what

Justice Brandeis called 'not doing,' on the view that federal courts 'may exercise power only' in

the last resort, and as a necessity."43 Comprising the doctrine ofjusticiability, issues of standing,

mootness, ripeness, and a political doctrine question, address the parties to a suit, the issue at

hand, and, from the outset, establish a court's orientation. It has been observed that the

calculation of the "justiciability doctrine both reflects and shapes underlying assumptions about

the judicial function...."44

The doctrine of standing focuses on who may seek remedy before the court for a

violation of the law; the plaintiffs must have been injured, impacted, or otherwise substantially

affected.45 Standing doctrine limits in federal courts compel plaintiffs to manifest a concrete

injury; a violation distinct from the public and thus precluding the utilization of Article III

courts46 to expound on generalized concepts.47 A connected line of legal reasoning addressing

when a court may entertain a dispute involves the principles of ripeness and mootness. Ripeness

considers whether a charge has yet to evolve into ajusticiable threat subject to adjudication, while

mootness resides at the opposite end of the spectrum; characterizing issues before the court which

have already been resolved and cease to present as a current or "live" controversy.48 The

utilization of these precepts serves as a bulwark against an Article III court's speculative venture

into the realm of abstraction and hypothetical discourse. Hershkoff has observed that "no federal








judiciability doctrine is more entrenched than the ban on advisory opinions."49 Justice Thomas

Clark, in addressing the boundaries of judicial review, wrote that:

The case or controversy presented must be a genuine dispute [with real and
adverse litigants], raising a substantial question. The Court does not deal in
advisory opinions [or abstract or hypothetical questions], moot questions [already
resolved by changing circumstances], or political issues [more appropriately
resolved by the President or Congress, or which the Court is incapable of
resolving]. Traditionally it shies away from deciding constitutional questions; not
rendering such a decision unless it is absolutely necessary to the disposition of
the case. Even though a substantial constitutional issue is presented it will not be
passed upon if the case can be disposed of on a non-constitutional ground...An
attack on an act of Congress on constitutional grounds is by-passed in the event a
construction of the statute is fairly possible by which the constitutional question
may be avoided.0

Having established the general power of the judiciary via acquiescence with review, the

application of the doctrinal strands ofjusticiability demonstrates the legitimacy of the court's

exercise ofjurisdiction.51 Yet within this judicial institution rests the fact that its boundaries are

not "are not universally recognized or well defined."52 This is particularly evidenced in the

justiciable treatment of the political question and separation of powers doctrines; the scrutiny of

which is of direct consequence to a contextual appreciation of education finance litigation.

The "political question doctrine" is premised upon the understanding that certain issues

are nonjusticiable and inappropriate for judicial resolution; the courts determining that the issue

in question is more properly the province of the legislative and executive offices, these "political

branches" being more structurally and institutionally capable of addressing the controversy. The

Court has marked that:

The political question doctrine excludes from judicial review those controversies
which revolve around policy choices and value determinations constitutionally
committed for resolution to the halls of [the legislature] or the confines of the
Executive Branch. The Judiciary is particularly ill suited to make such decisions,
as "courts are fundamentally underequipped to formulate national [or state]
policies or develop standards for matters not legal in nature."5

Chief Justice Moyer of the Ohio Supreme Court, in consideration of the doctrine, wrote:

The fact that [a lawsuit] implicates other branches of government, or has political
overtones, does not automatically invoke the political question doctrine. A
political question is one that requires policy choices and value judgments that









have been expressly delegated to, and are more appropriately made by, the
legislative branch of government.54

Chief Justice John Marshall first formally recognized the principle in Marbury when he held that

questionsos in their nature political, or which are, by constitution and laws, submitted to the

executive can never be made in this court."s5 The nonjusticiability of a political question is a

function of separation of powers;56 the legal principle equating separation of powers with a set of

institutional arrangements. Philip Kurland has described the arrangement, observing that:

Separation of powers...encompasses the notion that there are fundamental
differences in governmental functions-frequently but not universally denoted as
legislative, executive, and judicial-which must be maintained as separate and
distinct, each sovereign in its own area, none to operate in the realm assigned to
another.57

Determining and codifying where institutional spheres of responsibility and authority

begin and end remains a formidable, if not novel, challenge. In The Federalist #37, James

Madison proffered that:

Experience has instructed us that no skill in the science of government has yet
been able to discriminate and define with sufficient certainty, its three great
provinces-the legislative, executive, and judiciary; or even the privileges and
powers of the different legislative branches. Questions daily occur in the course
of practice which prove the obscurity which reigns in these subjects and which
puzzle the greatest adepts in political science.58

It has been suggested that "to resort to the idea that there is a tripartite division of powers

legislative, executive and judicial, each self-defining, is to deal with phantasms."59 It is generally

conceded that the three branches were not to be completely separate; the framers of the

Constitution went to great lengths to demonstrate that the three branches should maintain a co-

operative and interactive relationship in order to check institutional and administrative excess.60

James Madison asserted that the Constitution "enjoins upon its branches separateness but

interdependence, autonomy but reciprocity."61 Chief Justice William Howard Taft held that "[t]he

fact is that the judiciary, quite as much as Congress and the Executive, is dependent on the

cooperation of the other two, that government may go on."62 Maintaining that relationship while

simultaneously guarding autonomy complicates the application of the political question doctrine.








The Supreme Court sought to clarify the principle in Baker v. Carr.63 The plaintiffs in the

action challenged the constitutionality of the Tennessee Apportionment Act of 1901, charging

that it failed to provide for the reapportionment of members of the state's General Assembly

among the state's counties subsequent to each decennial census. In reversing a district court

ruling for the defendants, the opinion dismissed the argument that the case was nonjusticiable

given the political dynamic. In doing so the Court identified several circumstances which

evidenced the presence of a nonjusticiable political question. Justice Brennan, who penned the

majority opinion, stated:

It is apparent that several formulations which vary slightly according to the
setting in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.64

Over twenty years after the Baker case, the Court, in Nixon v. United States,65 outlined a

procedure to follow in the determination if an issue was nonjusticiable. In consideration of a

constitutional text, the Supreme Court explained that:

[The Court] must, in the first instance, interpret the text in question and
determine whether and to what extent that issue is textually committed [in this
instance, to the legislative branch]...the concept of a textual commitment to a
coordinate political department is not completely separate from the concept of a
lack of judicially discoverable and manageable standards for resolving it; the lack
of judicially manageable standards may strengthen the conclusion that there is a
textually demonstrable commitment to a coordinate branch.66

Despite the pronouncements from the bench, it has been suggested that in several ways

"the political question doctrine is the most confusing of the justiciability doctrines."6 Legal

scholars have questioned the very existence of the doctrine, citing a spurious rationale,









indeterminate scope and doubtful wisdom and validity in conception and application.68

Appraising the political question doctrine, Chemerinsky ventured that:

First, the confusion stems from the fact that the political question doctrine is a
misnomer; the federal courts deal with political issues all the time...Second, the
political question doctrine is particularly confusing because the Court has defined
it very differently over the course of American history. Finally...the political
question doctrine is confusing because of the Court's failure to articulate useful
criteria for deciding what subject matter presents a nonjusticiable political
question.69

He further argued that the standards enunciated in Baker were inapplicable given that

"most... constitutional provisions are written in broad, open-textured language and certainly do

not include 'judicially discoverable and manageable standards."'70 Redish advanced the thesis,

starkly concluding that the doctrine "should play no role whatsoever in the exercise of the judicial

review power."71 Bickel has found the legal, intellectual and political premises at play in this

justiciable institution not quite as ephemeral as did the aforementioned critics. He opined that:

Such is the foundation, in both intellect and instinct, of the political question
doctrine: the Court's sense of lack of capacity, compounded in unequal parts of
(a) the strangeness of the issue and its intractability to principled resolution; (b)
the sheer momentousness of it, which tends to unbalance judicial judgment; (c)
the anxiety, not so much that the judicial judgment will be ignored, as that
perhaps it should but will not be; (d) finally ("in a mature democracy"), the inner
vulnerability, the self-doubt of an institution which is electorally irresponsible
and has no earth to draw strength from.72

The doctrinal limitations on judicial review, the foundations of which continue to

generate debate as the foregoing discussion evidenced, have evolved along with the posture of

American jurisprudence. Courts have played a significant role in the identification of difficult

social and political problems, and in some instances, dictated remedial initiatives. Powers and

Rothman noted that "most observers agree that courts have greatly expanded their role in

American political system, that the executive and legislative branches have sometimes

grudgingly, sometimes enthusiastically acquiesced in this expansion, and that the public for the

most part has also accepted it."73 Taking stock of this incremental increase of intervention,

Wilson observed that:









The court is a vitally important forum in which individuals can assert
fundamental rights and seek appropriate remedies...The courts began the process
of school desegregation, put a stop to some bestial practices in prisons and
mental hospitals and have enabled thousands of people to get benefits to which
they were entitled or ended abuses they were suffering...But like all human
institutions, courts are not universal problem solvers competent to manage any
difficulty or resolve any dispute. There are certain things courts are good at and
some things they are not so good at.74

Distinguishing the role of American courts is a legal, social, and political exercise played

out far beyond law reviews and professional journals. The contemplation of "judicial activism"

and "judicial restraint" and the growth of judicial authority has been entertained by politicians,

social activists, and pundits from the popular media. As a part of the judicial "conversation" the

ongoing colloquy not only incorporates the doctrinal basis ofjusticiability; the issue is enveloped

in normative and philosophical principles, more often than not, presenting devoid of legal

grounding. The normative question of the proper role of courts in American government is

difficult to answer in practice.75 A degree of this difficulty is attributable to the inherent power of

the judiciary and the regard the courts are accorded by the citizenry. The former dynamic reflects

the simple truth Bishop Hoady articulated before the King in a 1717 sermon, "Whoever hath an

absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all

intents and purposes, and not the person who first wrote or spoke them."76 Of a more recent

vintage, a legal scholar opined that "nearly all major changes in American society during the last

century-many of which can be described as revolutionary and many of which are not favored by

a majority of American people-have been brought about by ourjudges.'" Levi remarked that

"[a]n idea adopted by a court is in a superior position to influence conduct and opinion in the

community; judges, after all, are rulers. And the adoption of an idea by a court reflects the power

structure in a community."7 Underscoring this institutional dominion is that "courts have been

and remain far more esteemed than the democratic institutions of government...79

The ongoing consideration of judicial review has been operationalized by charting

judicial behavior within the coordinates of activism and restraint.80 However, as Fischer









observed, "except perhaps among a relatively small group of scholars there is no agreement

whatsoever even on the meaning of judicial activism, and its counterpart, judicial restraint...all

too often the matter of activism or restraint resolves itself into 'whose ox is being gored?"'81

Two perspectives provide a framework upon which to consider the complexity of the tension

between the two legal and philosophical polarities; the first of which Bosworth provided when he

wrote:

"Judicial activists" see their function as that of promoting the common good
(however defined) through law. Often they justify this goal-oriented behavior by
stressing the impossibility of interpreting the law in any other way than a modem
observer would. "Judicial activists" do not necessarily confine their activism to
the discovery of constitutional wrongs...these judges are more likely to devise
expansive remedies for these violations. The rise of "public law" litigation...was
spurred by activist judges using their equitable remedy powers to address
significant social problems thought to be solely under legislative and executive
control...judicial activism of interpretation and judicial activism of remedy are
part and parcel of the same view of the judicial role.82

Encapsulating judicial restraint, Lamb observed that:

Judicial restraint embodies at least six fundamental notions: 1. that the justices
abide by the intent of the framers of the Constitution and statutes, and that the
justices do not read their own personal preferences into the law; 2. that the
justices pay deference to the legislative and executive branches of the federal and
state governments by seldom overruling their policies and then strictly on "legal"
grounds; 3. that the justices rely upon statutory rather than constitutional
construction whenever possible; 4. that the justices accept for decision only cases
and controversies where the litigants have standing to sue in lives issues; and 5.
that the justices neither issue advisory opinions, nor 6. answer political
questions.83

Beyond these baselines, it has been suggested that as one moves "through the literature on

judicial activism and restraint it becomes obvious that everybody has an ax to grind and all too

often the discussion is more polemical than analytical."84

Considering the constrained nature of judicial review as originally conceived and

administered, the potential power of its utilization was not ascertained until the early Twentieth

Century. Christopher Wolfe has posited that from its generation through the Civil War, courts

exercised authority within the confines of judicial review as inherited from the framers.

Following the Civil War, the courts through the adoption of due process jurisprudence became








more active in the application of natural law principles and the protection of property rights; often

striking down state and federal statutes attempting to check economic activity. In what Wolfe has

described as a "constitutional revolution," during the New Deal the courts resumed a more

restrained posture, exhibiting deference to legislatively engendered social and economic reforms.

In yet another evolution, the Warren and Burger Courts embraced an egalitarian appreciation of

jurisprudence; attempting to spur, if not oversee, the codification of civil rights and liberties.85

Jacobson has suggested that:

Important changes in legal and political culture were preconditions for the rise of
an activist judiciary. They provided the key ideas and innovations establishing
and legitimizing modem judicial power. The progressive Wilsonian view of
regarding the Constitution not as a historically bounded document but rather as
something like an organic manifestation of the general will facilitated acceptance
of greater judicial activism even with respect to constitutional questions....

Arguing that the courts have become so "systematically involved with social, economic, and

political questions central to the nation's order and well-being" over the past fifty years to such an

extent as to "suggest a potential imbalance in [the] national institutions,"8 Powers and Rothman

paused to consider the genesis of this legal dynamic. They posited that "much of the growth of

judicial power is attributable to the historical transformation of America into a modem welfare

state," and that a strategic advantage accrues to "modem courts because they function in a heavily

bureaucratic policy making environment," facilitating an incremental "aggregation of

authority."88 It has also been ventured that:

The organizational imperatives of a reformed American political system dictated
that the courts step in...Issues came before the court as a matter of course,
because other political institutions, either through action or inaction, had failed to
resolve or had even exacerbated serious social and political problems. The courts
were simply applying constitutional provisions to new circumstances...There is
no doubt that judicial activism has paralleled and is inextricably connected with
the growth of American state power in the twentieth century. The state is more
intimately intertwined in the daily lives of American citizens than at any other
point in history, and the courts have played an active role in this.89

Of particular interest for scholars have been the implications for judicial review posed by

the Supreme Court's ruling in Brown v. Board of Education.90 Graglia believed that the ruling






77


effectively removed significant restraints on judges and diminished the recognition of the need

for judicial self-restraint. He noted that:

If the Court could bring about this revolution [through Brown], it came to be
thought by judges and others, what revolutions could it not bring about? What
need was there for proponents of basic social changes to undergo the delays and
uncertainties of the democratic process? Judges came to be seen as forces for
moral enlightenment and engines for progress, whose public policy choices were
obviously much to be preferred to those of mere politicians beholden to the
multitude of private interests.91

Bickel wrote, in reference to the expansion of jurisdiction, that:

Brown v. Board of Education was the beginning. Subsequently, the Court
declared Bible reading and all other religious exercises in public school
unconstitutional; it ordered the reapportionment of the national House of
Representatives, of both houses of state legislatures, and of local government
bodies on a one-man, one-vote basis; it reformed numerous aspects of state and
federal criminal procedures, significantly enhancing the rights of the
accused...and it laid down a whole set of new rules governing...the conduct of
police throughout the country toward persons arrested on suspicion of crime...in
addition, the Court limited the power of state and federal governments to forbid
the use of birth-control devices, to restrict travel, to expatriate naturalized or
native-born citizens, to deny employment to persons who associations are
deemed subversive and to apply the laws of libel.2

The intervention of courts into the formulation and implementation of public policy,

characterized by the interpretation and expansion of constitutional texts, an authority seldom

exercised prior to the mid-Twentieth Century, has significantly impacted legislation and

governance at the federal, state, and local levels.93 Commentators have noted the "aspect of

modern judicial review that sets its apart from earlier jurisprudence lies in the discovery and

application of appropriate remedies."9 Fuller maintained that "this increased role of the courts

represented a departure from the traditional view of the courts as passive dispensers of law. Under

the more traditional model, judges were neutral arbiters in a litigant driven adversary system."95

Bosworth noted that newer theories of adjudication dismissed the premise that courts were

incapable of entertaining social and political controversies and effecting change; an expansion of


the judicial role exhibiting a theme of "basic fairness."9








If a consensus can be detected in considerations of judicial review vis-a-vis activism and

restraint it is the acknowledgement of the significantly higher profile courts have assumed in the

American polity. Graglia observed that "'judicial review' has meant very different things at

different times, and it is only in very recent times that it has meant anything like the degree of

power our judges now possess...;"97 while Irons reasoned "that judges 'make' law rather than

'discover' it can no longer be disputed. The question is not whether judges make law, but in

whose interests, for what purposes, and in pursuit of what policies?"98 And Gunther starkly

asserted that "there has been a sea change in the political philosophy with regard to judicial

governance. In a very real sense we are today watched over by the bevy of Platonic

guardians...."99 Comity beyond this recognition of the present judicial posture is conspicuously

absent as the issue is exhaustively interpreted. It has been marked that "the endless debate over

the propriety of judicial review encapsulates the tension between judicial authority to interpret

law and the majoritarian will as embodied in legislative acts, [judges] must reconcile the principle

of the rule of law with that of popular sovereignty...."'00

Basic concepts of the proper role of the judiciary in American democracy underlie the

construction of the dimensions of judicial activism and restraint. The competency of courts to

prescribe remedial measures usurping the legislative and executive prerogatives, and the

legitimacy or illegitimacy of this judicial intervention, frame the appreciation of judicial review

within commonly articulated perceptions.101 Asserting that legitimacy and capacity are related,

Horowitz remarked that:

A court wholly without legitimacy may soon suffer from diminished capacity.
The cases for and against judicial review have always rested in part on
assessments of judicial capacity; on the one hand, the presumably superior ability
of courts to "build up a body of coherent and intelligible constitutional
principles," on the other, the presumably inferior ability of courts to make the
political judgments on which exercises of the power of judicial review often
turn...traditional judicial review meant forbidding action, saying "no" to the
other branches...now the judicial function often means requiring action, and
there is a difference between foreclosing an alternative and choosing, between
constraining and commanding.102









In consideration of the diversiform nature of these judicial concepts, Sowell wrote that:

"Judicial activism" and "judicial restraint" raise logically obvious but often
ignored questions: Activism toward what? Restraint toward what?...the current
popular majority, the legislature representing the current popular majority,
statutes passed by present or past legislatures, the acts of current or past
executive or administrative agencies, the meaning of the words in the
constitution, the principles or purposes of those who wrote the constitution, or
legal precedents established by previous judicial interpretation?103

A fundamental question-"Are judges the proper instruments of change counter to the

will of the political branches of the government, and accordingly, the desire of the people?"-is

by necessity couched in a consideration of the ramifications of an activist judiciary presents for a

representative democracy. Chief Justice Rehnquist has commented that there is "no justification

for a 'third legislative branch,' if so...it should at least ought to be elected and responsible to

constituencies...if there is going to be a council of revision, it ought to have at least some

connection with popular feeling."104 Stressing a democratic imperative to assign the construction

of law and the implementation of policy to elected representatives, Rehnquist stated that:

Representative government is predicated upon the idea that one who feels deeply
upon a question as a matter of conscience will seek out others of like view or will
attempt to persuade others who do not initially share that view. When adherents
to the belief become sufficiently numerous, he will have the necessary
armaments required in a democratic society to press his views, upon the elected
representatives.'05

Abraham Lincoln expressed a similar sentiment, referencing the frustration of the public to the

Dred Scott decision; addressing the matter the President asserted that:

The candid citizen must confess that if the policy of the government, upon vital
questions affecting the whole people, is to be irrevocably fixed by decisions of
the Supreme Court, the instant they are made, in the ordinary litigation between
parties in personal actions, the people will have ceased to be their own rulers,
having to that extent practically resigned their government into the hands of that
eminent tribunal. 106

Substantiating the premise that the "ultimate issue between judicial activism and restraint

is the institutional locus of discretion...the question as to who is to decide;"'07 the

countermajoritarian concerns articulated by Chief Justice Rehnquist and President Lincoln have

drawn advocates and detractors of an "aggressive" judicial profile into an intense and ongoing








debate. Boot has argued that "America used to be a democracy, a government by, and for, the

people. Now it has all the earmarks of ajuristocracy....',10 Sunstein, endorsing "deliberative

democracy," has maintained that the ultimate constitutional protection resides with the citizenry;

cautioning that the excessive utilization of judicial avenues serves to diminish the responsibility

of elected officials and thwarting other nonjudicial remedies.109 Bork has charged that "courts

provide the necessary means to outflank majorities and nullify their votes,""10 thus advancing

"ends that democratic branches of government would never sanction."'" The former Court

nominee identified the "American Disease;" the "seizure by judges of authority properly

belonging to the people and their elected representatives,"112 a malady presenting when judges

have been accorded, or appropriated, the power to override the popular will. Nisbet has cited the

creation of a legal paradigm which "sees in the [courts] precisely what Rousseau saw in his

archetypical legislators and Bentham in his omnipotent magistrate: sovereign forces for

permanent revolution.""'3 Rosenberg distinguished a "constrained court" view that "maintains

that courts will generally not be effective producers of significant social reform for three reasons;

the limited nature of constitutional rights, the lack of judicial independence, and the judiciary's

inability to develop appropriate policies and its lack of power to implement.""4 Stressing the

imperative within a democracy to assign policy construction and oversight to those branches

subject to popular checks as opposed to a generally unfettered judiciary, Justice Harlan Stone

opined that:

While unconstitutional exercise of power by the executive and legislative
branches of Government is subject to judicial restraint, the only check on our
own exercise of power is our own sense of self-restraint...For the removal of
unwise laws from the statute books lies not to the courts but to the ballot and to
the processes of democratic government.115

Justice Robert Jackson, while marking that the judiciary is "an institution of distinctive

characteristics which were intended to give it independence and detachment, but which tend to

make it antidemocratic," remarked that there is "no evading the basic inconsistency between

popular government and judicial supremacy."'6 Writing in 1941, the Justice opined that, "this is








government by lawsuit. These constitutional lawsuits are the stuff of power politics in

America.""1 Bickel questioned "which values, among adequately neutral and general ones,

qualify as sufficiently important or fundamental...to be vindicated by the [court] against other

values affirmed by legislative acts?"'18 Of the relationship between the political branches and the

judiciary, he cautioned that the legitimacy of the courts is guarded by "keeping the judicial

function distinct from the legislative and thus capable of being justified.""19 Thayer believed that:

[Judicial review], even when unavoidable, is always attended with a serious evil,
namely, that the correction of legislative mistakes comes from the outside, and
the people thus lose the political experience, and the moral education and
stimulus that comes from fighting the question out in the ordinary way, and
correcting their own errors. The tendency of a common and easy resort to this
great function, now lamentably too common, is to dwarf the political capacity of
the people, and to deaden its sense of moral responsibility.120

Colwell spoke to another dimension of the legislative process, considering that:

[A] problem that emerges from judicial review is excessive limitation of
legislative alternatives...if states' legislative bodies perceive the judiciary as
having limited or mandated any viable remedies to correct an unconstitutional
[statute], legislatures may decide not to abide by the court's ruling or else not
cooperate and hinder any attempt at resolution.121

Power and Rothman suggested that intervention "whether it brings about desirable

institutional reforms or not, comes at a cost...if political compromise is less likely to come from a

court battle than from [the legislative process] then at least some of the political polarization

evident in the political system can be attributed to court decisions that settle pubic policy

disputes...."'22 Illuminating the rigidity engendered through a dependence upon a judicial

resolution, given the treatment accorded a specific issue divorced from the total polity, Justice

Oliver Wendell Holmes wrote, "all rights tend to declare themselves absolute to their logical

extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other

than those on which the particular right is founded, and which become strong enough to hold their

own when a certain point is reached."'23

McCleasky ventured that arguments for judicial activism are premised upon a distrust of

democracy, a belief "that someone somewhere must over see and protect the people from








themselves...."' 4 Reflecting that sentiment, Graglia proffered that "the strength of judicial

review...derives in part from the undying but forlorn human hope of somehow relieving

ourselves of the difficulties and uncertainties of decision making on basic questions of public

policy by finding persons of exceptional wisdom and goodness to whom the responsibility can be

entrusted."125 It has been suggested that "only a small degree of distrust in democracy is required

to favor a system of judicial review in which judges are authorized to invalidate the acts of

elected representatives...."'26

J. Clifford Wallace proposed that the gradations in the application of judicial review

evidence conflicting conceptualizations of democracy. The justice from the United States Court

of Appeals, Ninth Circuit, offered that if democracy were considered "an intrinsic, fundamental

value, then the area of legislative discretion is presumably larger than would be if democracy

were a minor or derivative value."'27 If democracy were afforded treatment as an instrumental

value, it "is valuable only to the extent that it produces substantially 'better' decisions than would

any other decision making procedure."'28 Justice Wallace wrote that:

A noninstrumental theory of democracy...places value in the democratic process
even when decisions fall short of the best possible-indeed even when the
majority makes a decision that is stupid, irrational or completely wrong
headed...[while] constitutional limits remain...it is better that the majority make
a wrong decision than that a judge make the decision, even if the judge would
make a socially more beneficial decision...[in essence] the process by which the
decision is made may have greater value than the decision itself.129

Making the assumption that no judge believes that he or she can correct any enactment

considered unwise absent a constitutional or statutory rationale, Wallace maintained that "if one

believes in the instrumental theory of democracy...one is likely to find the required constitutional

argument or statutory construction when faced with what one perceives to be a bad statute,"'30

and endeavors to override legislative intent.

Advocates of restraint have cited review as culpable in the facilitation of efforts of

organized interest groups to circumvent the legislative process, and hence the necessity of taking

their case to the public at large; rather presenting an agenda to a judiciary which may be more








predisposed to provide a forum and sanction. Bosworth observed that the "use of litigation by

organized interest groups battling for social change is a relatively recent feature in American

history. In earlier times...going to court was the preferred option for interests that wanted to slow

or halt social reform....""13 Melnick has concluded that public interest groups have played a

major role in the transformation of courts into policy making institutions. He found that these

groups "all saw the advantage of presenting their position in terms of rights and of using litigation

as a central element of their political strategy."132 Melnick cited groups such as the National

Association for the Advancement of Colored People and the American Civil Liberties Union as

"sophisticated players with long-range litigational strategies," and, what is perhaps most troubling

to "restraintists," through the initiation of litigation "they have an opportunity to engage in forum

shopping to argue before the most sympathetic judges."133 Butler succinctly observed that "all it

takes is one person with a good argument that can convince a judge and that's that,"'34 while

Graglia opined that "it is probably only a small exaggeration to say there is no policy so

inconsistent with the possibility of a harmonious society that some organization has not urged or

considered urging its adoption by some judge."'35

Legal theorists supporting judicial review acknowledge a distrust of democracy and the

appreciation of the judiciary as a check on the conduct of the other branches. They suggest that

"judicial intervention is not antidemocratic; rather it is a constitutional mechanism necessitated to

counter those aspects of the legislative majority seen to suppress democratic values."'3

Countering the countermajoritarian, or anti-democratic, fears Miller wrote that a tension has

always "existed between the ideal of popular sovereignty and the institution of judicial review.

But if one asks how government can be obliged to control itself, the answer must not come from a

sense...of self-restraint by the avowedly political branches...but by some institution external to

them.""37 He argues that critics of judicial activism "assume without evidence that the political

process is up to the needs of America." A blind adherence to the political process ignores the fact

that "the system of pluralism has either broken down or is rapidly breaking down...because it








provides no spokesman for the public (or national) interest....""38 Of the supposition that the

public interest is produced "by an invisible hand," Miller contends that "political pluralism as a

self-correcting system is as mythical as the market of the classical economist."139 Asserting that

the political process "rewards only the powerful," the professor believes that because judges have

possessed a unique insight into a "system of absolute values," segments of American society

unable to benefit from the pluralistic political process "have found a champion" in the

judiciary.140 As for concerns that the judicial system through an aggressive application of review

negates the popular will, Miller confidently states that the courts "cannot long be out of step with

the dominant political forces of the nation...[decisions] tend to reflect the actual political power

at any time."'41 Tushnet articulated a similar posture; while observing that judicial review had not

operated historically to the advantage of liberal or conservative political interests, he wrote:

Looking a judicial review over the course of U.S. history, we can see that courts
have regularly been more or less in line with what the dominant national political
coalition wants...we can say that judicial review amounts to noise around zero. It
offers essentially random changes, sometimes good and sometimes bad, to what
the political system produces.1

While McCloskey may hold that "judicial activism is a slippery term,"143 others in

addition to Miller have found it a concrete remedy to a flawed political system. Downing marked

that the "fact the courts are the principal forums for resolving so many political issues is

indicative of serious default on the part of...legislative and executive institutions."'44 Seeing little

prospect that the political branches can soon be reconfigured to adequately address "society's

deepest problems," he contended that while "it is very doubtful that our courts can save the

country, only they may be able to buy the time necessary for revitalization of our other

institutions."'45 Powers and Rothman, decidedly not proponents of judicial activism admitted that

"legislative institutions have often failed to live up to the responsibilities of representative

governance, and the courts are an important check against unbridled executive discretion as well

as legislative aggrandizement."'46 Cohen remarked that "it is evident that even if the judiciary's








actions might be viewed as a usurpation of the legislative prerogative, this intrusion may be

justified as being clearly justified in the face of legislative inaction...."'47

The argument has been proffered that "while the democratic process rather than judicial

review must be relied upon to justify policymaking, it is as a consequence the specific province

and duty of judges to protect the democratic process itself."'14 This view can be traced to Justice

Harlan Stone's famous footnote in United States v. Carolene Products;149 citing the limits to the

presumption of constitutionality afforded legislative initiatives which appeared to

"seriously...curtail the operation of those political process ordinarily relied upon to protect

minorities," thus requiring a "more searching judicial inquiry."'50 Developing a thesis that

judicial review serves to protect the republic from threats to democracy engendered by

overbearing majorities, Choper argues that if "judicial review were non existent for frustrated

minorities, the rights already lost in the legislative halls, would have only one remaining

battlefield-the streets...the alternatives to judicial review...are either disobedience or

discontented acceptance."''1 Ward has offered that while public discourse within the context of

legislative resolution of policy issues is ideal, political power is not equally distributed to all

participants in the political process.152 Justice William Brennan contended that courts were in a

unique position from which to address this flaw, opining that "insulated as they are from the

political pressures, and charged with the duty of enforcing the constitution, courts are in the

strongest position to insist that unconstitutional conditions be remedied, even at significant

cost."153

Taking issue with call for dependence upon the political system and the necessity of

heeding the popular will, Perretti stressed that:

The American political system is not in any way directed to the goal of majority
rule, it is in virtually all respects an antimajoritarian system, including its
rejection of legislative supremacy...[it] consists of numerous diverse political
institutions, none of which is hierarchically superior to another. This provides
groups, especially minorities, with a variety of arenas in which to advance their
interests and contest policies with which they disagree. In this pluralist system,
judicial review is neither deviant nor illegitimate rather, it is a quite normal








expression of the pluralist principles of redundancy and diversity in political
representation. 154

Perretti maintained that the "ordinary democratic means for resolving political issues...are on

occasion inappropriate...issues [such as] minority rights or fundamental constitutional rights,

such as freedom of speech, and the right to vote, are unlikely to receive fair treatment in the

political arena."'55 Wallace Justice, while serving on the U.S. District Court, Eastern District of

Texas, found that "the source of our enduring and venerable ideals to be more than the vox

populi,"'56 while Lippmann, considering the rule of the majority, warned that:

[It] may easily become an absurd tyranny if we regard it worshipfully, as though
it were more than a political device. We have lost all sense of its true meaning
when we imagine that the opinion of fifty-one percent is in some high fashion the
true opinion of the whole hundred percent, or indulge in the sophistry that the
rule of the majority is based upon the ultimate equality of man.57

Beth provided a tempered justification of review within a democracy, commenting:

Lest he be misunderstood, it should be added that the present writer has no
illusions concerning the long range effectiveness of judicial protection for civil
liberties; he subscribes rather to the now commonly held idea of the [judiciary]
as, at best, a delaying agency. If popular enthusiasm for repression is short lived,
however, judicial decisions may be of extreme importance in forcing that second
thought, which may eliminate the very desire to repress.15

Concisely appraising the issue, Wallace remarked that:

The partisans of both judicial activism and judicial restraint agree that
government cannot act beyond the outer limits established by constitutional
boundaries without becoming subject to judicial intervention. The controversial
question is just where those limits are and thus how extensive the territory is
within which government can function free of judicial intervention.'59

The propriety of judicial review superimposes a frame of reference upon considerations

of constitutional interpretation and conceptions of the role ofjudges; deliberations which are

centered on contesting legal theories. The intensity of these discussions has paralleled the

emergence of an activist judiciary. Gavison observed that the "relationships between law,

adjudication, theories of law and theories of adjudication, be they descriptive (what in fact do

judges do?) or normative (what should judges do?) have been the subject of serious debate in

contemporary legal philosophy for some decades now."160 Distinguishing different modes of








decisionmaking; their methods, sources and scope, and the philosophical groundings they exhibit

is a subjective exercise; the parameters they evidence often being blurred and dismissing any

notion that there is anything "essential or inherent about these alternatives."'16 One of the

strongest advocates of a restrained judiciary, Justice Felix Frankfurter, once remarked,

"constitutional law is not at all a science, but applied politics."'62 Constitutional theory, in a

general sense, is designed to chart this application within the context of constitutional

interpretation. The controversies are centered upon the extent to which jurists decide issues before

the court on grounds intrinsic or extrinsic to the text, or in the extreme, counter to the document.

Operating on the premise that judicial review is fundamentally at odds with democratic

values, what Perretti has coined "conventional constitutional theorists" maintain that its

introduction requires a "special or exceptional source of legitimacy."'63 A significant

characteristic of this approach is the embrace of "legal autonomy"-a conviction that the

constitutional text can be deciphered in an objective and detached manner; an exercise free of a

judge's personal values, policy preferences, or biases. Beneath this overarching presumption,

reside interpretive and non-interpretive orientations.164

An interpretive approach to constitutional law and adjudication may also be referenced as

"original intent," "strict construction," or "cognitive meaning." Two points distinguish

interpretivism; the insistence that courts are only to act upon principles specifically articulated

within the text, and that it presents as the only method of interpretation which can justify the

introduction of review while simultaneously serving as a check on judicial power.165 According to

Ely, this approach requires that:

Judges deciding constitutional issues should confine themselves to enforcing
norms that are stated or clearly implicit in the written constitution...[thus]
interpretivism fits our ordinary notion of how law works, if your job is to enforce
the constitution, the constitution is what you should be enforcing, not whatever
may happen to strike you as a good idea at the time.166

J. Clifford Wallace, acknowledging the limitations of the approach, did stress that:








Interpretivism will not always provide easy answers to difficult constitutional
questions. The judicial role will always involve the exercise of discretion. The
strength of interpretivism is that it channels and constrains this discretion in a
manner consistent with the constitution. While it does not necessarily insure a
correct result, it does exclude from consideration entire ranges of improper
judicial responses...[and] even if judges might reach more and just and
enlightened decisions...a benevolent judicial tyranny is nonetheless a tyranny.16'

Sir William Blackstone offered a series of steps toward carrying forward those

"intentions at the time law was made."'"6 The words of the text were "to be understood in their

usual and most known signification... [according to] their general and popular use.""69 If the

"words happen to still be dubious" the jurist was then permitted to "establish their meaning from

context" provided that it did not supersede the cognitive meaning.170 Lastly, if the words still had

no significance or "a very absurd signification," Blackstone counseled that only then was a jurist

justified in "considering the reason and spirits" of the text or the "cause which moved the

legislator to enact it."'l It has been suggested that these steps defined the role ofjudges,

prescribing that they were solely tasked with the "carrying out instructions, with a meaning

already given whether given clearly or in a manner requiring further steps of discovery."72 The

construction of new meanings, be they based upon "later insights, judicial conscience, or the

philosophical values presumed to motivate the original law," was not a legitimate component of

adjudication. 73

Robert Bork emerged as a leading contemporary proponent of interpretivism. He called

upon jurists to restrict their scrutiny of constitutional texts to the "original understanding;" an

interpretative process that does not engage in a speculative consideration of the subjective

intentions of the authors, rather utilizes the words as they "would have been understood at that

time."'74 Bork maintained that historical constitutions were understood by those who enacted

them to have a meaning of their own and it is "that meaning that judges ought to utter."'75 Of

jurists who stray beyond these confines, it was marked that:

Activist judges are those who decide cases in ways that have no plausible
connection to the law they purport to be applying, or who stretch or even
contradict the meaning of that law. They arrive at results by announcing









principles that were never contemplated by those who wrote and voted for the
law...they can be properly active in the enforcement of liberties confided to their
care, but not activist in creating new and unwarranted rights and liberties in
defiance of democratic authority. Self denial is unattractive, and judges have
manifold opportunities to surrender to the temptation to enact their own beliefs.
Such performances do not accord with any known version of the rule of law.176

While acknowledging that "two judges equally devoted to the original purpose may disagree

about the reach or application of the principle at stake and so arrive at different results,"'77 Bork

asserted that if the constitutional text does not clearly and persuasively justify intervention,

"judges must stand aside and let current democratic majorities rule...where the law stops, the

judge must stop."'78 Graglia argued that to rely upon anything other than original intent was to

reduce constitutions to irrelevancy; serving only to provide "the peculiar phrases...used by judges

to state their ultimate conclusions when they disagree with the public policy choices made by

others."179

Many of the most forceful and substantive articulations of an interpretivist philosophy

have been offered by Federal and Supreme Court Justices. Oliver Wendell Holmes long

maintained that the cognitive meaning or original intent of the laws provided judicial instruction;

a guide that took precedent over psychological motivations or philosophical dispositions. The

jurist asserted that when the text "does not disclose one meaning conclusively according to the

rules of language,"180 the interpretive process did not countenance attempting to discern what an

individual had written or spoken by getting "into his mind;" if not clear, the question was "not

what this man meant, but what those words would mean in the mouth of a normal speaker of

English, using them in the circumstances in which they were used."'8' In Lochner v. New York,182

Justice Holmes criticized the majority for becoming a superlegislature enforcing a laissez-faire

economic philosophy. In dissent, Holmes opined that:

[A] constitution is not intended to embody a particular economic theory, whether
of paternalism and the organic relation of the citizen to the state or of laissez-
faire. It is made for people of fundamentally differing views, and the accident of
our finding certain opinions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States."83










In a decision nearly forty years subsequent, Justice Felix Frankfurter wrote that:

As a member of this Court I am not justified in writing my private notions of
policy into the Constitution, no matter how deeply I may cherish them or how
mischievous I may deem their disregard. The duty of a judge who must decide
which of two claims before the Court shall prevail...is not that of an ordinary
person. It can never be emphasized too much that one's own opinion about the
wisdom or evil of a law should be excluded altogether when one is doing one's
duty on the bench. The only opinion of our own...that is material...is our opinion
whether legislators could in reason have enacted such a law.184

Justice Hugo Black, dissenting in Griswold v. Connecticut,85 cautioned that, "unbounded judicial

[creativity] would make of this Court's members a day-to-day constitutional convention."'86 Of

Black's reasoning, O'Brien has observed that the Justice had argued "the threshold of permissible

judicial creativity is crossed...when the Court discovers and enforces values that are neither

specifically enumerated in, nor fairly traceable to, some provision in the text of the

Constitution."'87 Justice Black exhibited a textual appreciation of an interpretive approach, a line

of legal reasoning which finds certainty in the wording of the text and dismisses the need to

further consider the history of a provision's enactment."88 In his famed Commentaries on the

Constitution of the United States,189 first published in 1833, Joseph Story who was both a Justice

of the Supreme Court and a Harvard professor grounded the interpretation of constitutional texts

on his understanding that, uponpn subjects of government it has always appeared to me, that

metaphysical refinements are out of place. A constitution of government is addressed to the

common sense of the people; and never was designed for trials of logical skill, or visionary

speculation."'9

The Supreme Court, in 1936, held in United States v Butler,191 that:

When an act of Congress is appropriately challenged in the courts as not
conforming to the constitutional mandate, the judicial branch of the Government
has only one duty-to lay the article of the Constitution which is invoked beside
the statute which is challenged and to decide whether the latter squares with the
former. All the court does, or can do, is to announce its considered judgment
upon the question.192









The decision, which indicated an interpretivist tack in addition to demonstrating disinclination to

encroach on legislative and executive policy prerogatives,m93 addressed concerns interpretivists

have maintained as to the consequences of judges restricting the democratic process without a

clearly articulated constitutional authorization. The investment into constitutions and statutes of

new and unintended meanings, strict constructionists contend, threaten the legitimacy of the

courts and the balance maintained amongst the three branches of government.194 Chief Justice

Rehnquist warned that:

Once we have abandoned the idea that the authority of the courts to declare laws
unconstitutional is somehow tied to the language of the Constitution that the
people have adopted, a judiciary exercising power of judicial review appears in a
quite different light. Judges then are no longer the keepers of the covenant;
instead they are a small group of fortunately situated people with a roving
commission to second guess Congress, state legislatures, and state and federal
administrative officers concerning what is best for the country.95

J. Clifford Wallace has argued that a concern for legal predictability, facilitated by a strict

constructivist consideration of the constitutional text fosters restraint and speaks to judicial

economy. He marks that "courts are cost-effective, for the most part in settling dispute. They

become cost-ineffective when asked to re-engineer social structures and reorganize social

priorities."'96 Further, it is consistent with, and complementary to the balance of power among the

three branches; accomplishing this by minimizing inter-branch interference by the judiciary and

exhibiting a deferential posture. To act otherwise creates unpredictability on the part of the

judiciary that makes courts and their rulings "a moving target," to the consternation of the other

independent branches.197 Making particular note of the latter point, Wallace believes that restraint

in application and interpretation also serves to protect the independence of the judiciary, opining

that "when courts become engaged in social legislation, almost inevitably voters, legislators and

other elected officials will conclude that the activities of judges should be closely monitored."'98

By avoiding the temptation to "spin twentieth century sociology out of eighteenth or nineteenth

century language," judges will correctly present as neutral expounders of justice under the law as

opposed to moral reformers and social crusaders.199 Wallace does pause to acknowledge that an








activist court and a broad interpretive style is not the province of any political orientation, noting

that "many who deplored the activism of economic substantive due process earlier in [the

twentieth century] praised the activism of the Warren Court."200 Observing that "virtue seemed to

be dictated by result;" in application, anything beyond discerning the cognitive meaning of

constitutions was "merely a rationalization of a willingness to use whatever means are expedient

to reach one's preferred results."201 Diver remarked that:

Arguably, judicial protection...aided people the courts attempted to protect [and]
curtailed most of the worst of institutional abuses. Such success however might
have come at the price of judicial legitimacy...courts derive a great deal of their
power from the social perception that judges are neutrally and fairly applying the
law, not imposing their own personal political opinions...as public law moved
judges from a role as passive, impartial arbiters toward the position of
powerbroker it threatened court legitimacy.202

Horowitz asserted that finding legal justification beyond the text inevitably leads the courts into

ventures of institutional reform litigation, an exercise they are inadequately structured to address.

Maintaining that judges are trained to be "generalists," he argued that in attempting to ascertain

"social" facts in lieu of "legal" facts, jurists involve themselves in interpretations of the social

sciences and produce decisions with a limited understanding of the possible consequences.203

Encroaching on the domain of the legislative and executive branches, institutionally designed to

deal with these concerns only served to threaten judicial legitimacy.204 Commentators have

suggested that this trend has forced courts to make increasingly political judgments while

attempting to construct remedies, and gauging the extent of same has become "a complex and

contingent exercise in prediction."205 Considering intervention and possible consequences, Posner

remarked that, "those judges who believe...in judicial restraint...will consider ignorance of the

consequences of a challenged governmental policy that is not completely outrageous as a

compelling reason for staying the judicial hand in the absence of sure guidance from the

constitutional text...[while] activists will plow ahead.'206 Further, he observed that for the strict

constructionist, "it shouldn't be enough that the litigant claiming a constitutional right has the

better of the arguments...the alleged violation of the constitution has to be certain."207









The elusive nature of that "certainty" underscores the rationale for a non-interpretive

appreciation of constitutional considerations. Within the neutral construction of constitutional

theory this school, in concurrence with interpretivists, holds that the jurist act in an objective

manner, eschewing any reference to personal preference, philosophy or bias when interpreting the

constitutional text. As noted, those of the interpretivist school contend that these "references" are

precisely what non-interprevisits introduce into the judicial exercise. Peretti has observed that

"the central issue of contention among neutralist scholars is not whether judges should be

principled, but what is the proper source of constitutional values which the Court may

legitimately advance in opposition to majority desires."208 The differences between the two

schools again returns to "defining those boundaries between the apolitical judicial sphere, where

the people can and should be told, 'No,' and the democratic sphere, where the people should have

free rein."209

Non-interpretivists stress the need to look beyond the plain text, calling upon courts to

advance society's fundamental values, even if not clearly articulated in the document. In essence,

courts were tasked with identifying core constitutional values in the abstract, then applying in

concrete decisions. Despite the operative premise that these fundamental rights exist independent

of social consensus or a contemporary popular appreciation, the question remains as to how to

instruct courts how to distinguish and apply them. 210 Tribe had stressed "rights of privacy and

personhood,"2" while Wellington has advocated a reliance upon a conventional morality.212

Richards has spoken of "human rights" with a particular emphasis upon "rational liberty;" a

denial of which is evidenced "when the community has unnecessarily infringed on conduct

generally considered to be essential to the rational self-governance of some persons."213 In light

of this marker, courts should be cognizant of those rights "integral to the rational self guidance of

most persons,".., i.e., rights addressing education, voting, free speech, and treatment by the

criminal justice system. 214 Karl has proffered the "principle of equal citizenship" which calls for








the recognition that "each individual is presumptively entitled to be treated by the organized

society as a respected, responsible, and participating member."215

The literature presents with a greater degree of substantial accord as to the rationale of a

non-interpretive constitutional theory. Considering the reasons advanced for going beyond

"original intent" Sowell cited that:

(1) there has been significant social changes since enactment, [and] (2) there are
moral questions involved, only imperfectly addressed or cryptically suggested by
the explicit language of the enactment and, more generally, the enactment...is
not to be read as a set of rules but as an expression of values, to be given specific
content in the particular case by the jurist.216

Shea has also noted objections to the interpretivist school, writing that:

The principal dissatisfaction with original intent theory is twofold. First, although
courts ordinarily purport to follow the original intent of the constitutional
language, it is widely believed that decisions are really made on the basis of the
judge's view of social policy as applied to the case before them. Thus, it would
be more honest and less circumlocutory in a particular case to advance simply the
social concerns involved as a basis for the decision. The second objection to the
theory is that it often prevents the judiciary from achieving its proper goal of
doing justice in a case before it because of restrictions imposed by the dead hand
of two hundred years ago.217


Dworkin has rejected strict construction because it limits constitutional rights, "to those

recognized by a limited group of people at a fixed date in history."218 Further, "it seems plainer

that we have no fixed concept of group intentions," nor any way of determining "which aspects of

individual mental states are relevant to group intentions."219 Dworkin argued that conflicting

interpretations present on their own merits, thus "judges must decide which of the...competing

justifications is superior as a matter of political morality...[and rule] so as to further [the superior]

justification."220 Of the countermajoritarian concerns, he opines that "a more equal society is a

better society even if its citizens prefer inequality."221

This tack implicitly acknowledges that extrinsic meanings are frequently preferable in

application even if the intrinsic meanings were clear. It has been ventured that non-interpretivist

scholars "admit to speaking for a much narrower constituency among their contemporaries... [but]









do anticipate vindication fiom later and presumably more enlightened generations."222 The

argument can be advanced that Justice Thurgood Marshall went as far as making the "test" what

the public would believe if properly informed.223

The non-interpretivist school posits that the construction of constitutions compel a

broader interpretive approach. In consideration of these documents, Ely observed that they

"contain several provisions whose invitation to look beyond their four corners...cannot be

construed away."224 Hufstedler has ventured that constitutions are the product of a myriad of

compromises necessary to secure agreement in the process of enactment. These "creative

ambiguities" often present as grand, ambiguous phrases, yet without them, constitutions would be

reduced to "mere parchment under glass."225 Hufstedler notes that "the very elusiveness of their

content has made it possible to shape and reshape constitutional doctrine to meet the needs of an

evolving, pluralistic, free society. Precision has an honored place in writing a city ordinance, but

it is a death warrant for a living constitution."226 The absence of specificity has not been lost on

proponents of the interpretive theory; Chief Justice Rehnquist acknowledged that, "the

Constitution is in many of its parts obviously not a specially worded document but one couched

in general phraseology. There is obviously wide room for honest different of opinion over the

meaning of general phrases...."227 Justice Holmes is often cited for his characterization of a

"living constitution." In Missouri v. Holland,228 he said:

When we are dealing with words that are also a constituent act, like the
Constitution...we must realize that they have called into life a being the
development of which could not have been foreseen completely by the most
gifted of its begetters. It was enough for them to realize or to hope that they had
created an organism; it has taken a century and has cost their successors much
sweat and blood to prove that they created a nation.229

Chief Justice Marshall commented that in considering the document justices must be continually

mindful that "it is a constitution we are expounding...a constitution intended to endure for ages to

come, and consequently adapted to the various crises of human affairs."230 Chief Justice William

Howard Taft considered a strict constructionist approach to be the theory of "one who does not