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Judicial Review and the Separation of Powers in State Constitutional Litigation Challenging the Adequacy of Education Sp...

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Title: Judicial Review and the Separation of Powers in State Constitutional Litigation Challenging the Adequacy of Education Spending Complementary Analyses and a Proposed Adjudicatory Model
Physical Description: 1 online resource (242 p.)
Language: english
Creator: Bauries, Scott
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2009

Subjects

Subjects / Keywords: abstention, adjudication, constitution, courts, duties, education, finance, judging, judicial, law, litigation, political, powers, question, review, rights, separation, state
Educational Administration and Policy -- Dissertations, Academic -- UF
Genre: Educational Leadership thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: 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 JUDICIAL REVIEW AND THE SEPARATION OF POWERS IN STATE CONSTITUTIONAL LITIGATION CHALLENGING THE ADEQUACY OF EDUCATION SPENDING: COMPLEMENTARY ANALYSES AND A PROPOSED ADJUDICATORY MODEL By Scott Robert Bauries December 2009 Chair: R. Craig Wood Major: Educational Leadership This study focused on state constitutional litigation challenging the adequacy of education spending. Much legal and educational research has been directed at determining the factors that influence judicial decision making in this form of litigation. Limited numbers of empirical studies have sought to analyze the existing cases using one or more quantitative methodologies, but none have included separation of powers text in the state constitution as a legal variable. Similarly, much normative legal and policy scholarship has evaluated existing adjudicatory approaches and has proposed alternate adjudicatory models, and much of this scholarship has considered separation of powers to be an important concern, but none these studies have examined the textual differences among state constitutions relating to separation of powers. Understanding that separation of powers concerns have surfaced in nearly every education finance adequacy case, this study sought to examine the nature of the courts? use or rejection of these principles in deciding whether to engage in judicial review. Exploratory analysis yielded research questions seeking to determine first, whether differences in separation of powers text in state constitutions are associated with differences in judicial decisions on separation of powers questions in state highest courts; second, whether patterns of reasoning among state highest court judicial decisions suggest that other legal factors are associated with differences in judicial decisions; and finally, whether and to what extent any such patterns of reasoning justify adjudicatory reforms. These questions were analyzed using complementary methods. These analyses yielded no evidence indicating that differences in separation of powers text in state constitutions are associated with differences in judicial decisions. Rather, patterns of reasoning among the state highest courts cases indicated that differences in judicial conceptions of education rights and duties are closely associated with differences in judicial decisions; however, these differences were unstable across different stages of litigation, leading to the conclusion that adjudicatory approaches and conceptions of education rights become disconnected as a case progresses from justiciability through remediation. Based on the results of these complementary analyses, this study proposed an adjudicatory model for education finance litigation based on judicial conceptions of education?s constitutional status.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Scott Bauries.
Thesis: Thesis (Ph.D.)--University of Florida, 2009.
Local: Adviser: Wood, R. Craig.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2009
System ID: UFE0024795:00001

Permanent Link: http://ufdc.ufl.edu/UFE0024795/00001

Material Information

Title: Judicial Review and the Separation of Powers in State Constitutional Litigation Challenging the Adequacy of Education Spending Complementary Analyses and a Proposed Adjudicatory Model
Physical Description: 1 online resource (242 p.)
Language: english
Creator: Bauries, Scott
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2009

Subjects

Subjects / Keywords: abstention, adjudication, constitution, courts, duties, education, finance, judging, judicial, law, litigation, political, powers, question, review, rights, separation, state
Educational Administration and Policy -- Dissertations, Academic -- UF
Genre: Educational Leadership thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: 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 JUDICIAL REVIEW AND THE SEPARATION OF POWERS IN STATE CONSTITUTIONAL LITIGATION CHALLENGING THE ADEQUACY OF EDUCATION SPENDING: COMPLEMENTARY ANALYSES AND A PROPOSED ADJUDICATORY MODEL By Scott Robert Bauries December 2009 Chair: R. Craig Wood Major: Educational Leadership This study focused on state constitutional litigation challenging the adequacy of education spending. Much legal and educational research has been directed at determining the factors that influence judicial decision making in this form of litigation. Limited numbers of empirical studies have sought to analyze the existing cases using one or more quantitative methodologies, but none have included separation of powers text in the state constitution as a legal variable. Similarly, much normative legal and policy scholarship has evaluated existing adjudicatory approaches and has proposed alternate adjudicatory models, and much of this scholarship has considered separation of powers to be an important concern, but none these studies have examined the textual differences among state constitutions relating to separation of powers. Understanding that separation of powers concerns have surfaced in nearly every education finance adequacy case, this study sought to examine the nature of the courts? use or rejection of these principles in deciding whether to engage in judicial review. Exploratory analysis yielded research questions seeking to determine first, whether differences in separation of powers text in state constitutions are associated with differences in judicial decisions on separation of powers questions in state highest courts; second, whether patterns of reasoning among state highest court judicial decisions suggest that other legal factors are associated with differences in judicial decisions; and finally, whether and to what extent any such patterns of reasoning justify adjudicatory reforms. These questions were analyzed using complementary methods. These analyses yielded no evidence indicating that differences in separation of powers text in state constitutions are associated with differences in judicial decisions. Rather, patterns of reasoning among the state highest courts cases indicated that differences in judicial conceptions of education rights and duties are closely associated with differences in judicial decisions; however, these differences were unstable across different stages of litigation, leading to the conclusion that adjudicatory approaches and conceptions of education rights become disconnected as a case progresses from justiciability through remediation. Based on the results of these complementary analyses, this study proposed an adjudicatory model for education finance litigation based on judicial conceptions of education?s constitutional status.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Scott Bauries.
Thesis: Thesis (Ph.D.)--University of Florida, 2009.
Local: Adviser: Wood, R. Craig.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2009
System ID: UFE0024795:00001


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1 JUDICIAL REVIEW AND THE SEPARATION OF POWERS IN STATE CONSTITUTIONAL LITIGATION CHALLENGING THE ADEQUACY OF EDUCATION SPENDING : COMPLEMENTARY ANALYSES AND A PROPOSED ADJUDICATORY MODEL By SCOTT ROBERT BAURIES A 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 2009

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2 2009 Scott Robert Bauries

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3 To my wi fe, Dana, for her love, patience, and support

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4 ACKNOWLEDGMENTS This dissertation was a multiyear project, and consequently, many deserve thanks for the contributions they made to this dissertations final completion. I begin by thanking the Chair of the Supervisory Committee, Dr. R. Craig Wood. It is not an overstatement to say that I would not have pursued advanced study in both education and law without his influence. This project came to my mind in large part due to Dr. Woods skillful presentati on of the nuances of legal and financial issues in education, and his willingness to engage in dialogue with me to attempt to flesh these issues out. I am honored to be able to associate with Dr. Wood as a fellow scholar, and I hope that I manage to live up to the expectations that he has set. Next, I thank the other members of the Committee. Dr. Dave Honeyman, another renowned expert in education finance, taught me the meaning of the word policy and encouraged me to think critically about how policy is made and how it can be improved. Dr. Jim Doud taught me that leadership has many facets and multiple domains, and that these are related systemically. Dr. Doud also taught me that organic systems often develop chaotically, following patterns that are at once hidden and in plain sight. This thinking has influenced me to look for such patterns in legal decision making on education. Finally, Professor Sharon Rush, the sole member of the Committee from outside the faculty of the Department of Educational Administration and Policy, has been what I would consider a true mentor to me both during my legal studies and afterwards. I have felt privileged to know these fine scholars, and I know that my own scholarship will continue to show their influences. I would further like to express my thanks to a man who was my fellow student and classmate during both of our residential periods in Gainesville. During this time, he was known as George Lange, but he now goes by Br. Jeremiah Lange, Ph.D. Although George ( as I continue to reflexively call him) ultimately finished years before me, we worked alongside each

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5 other for two years, learning the many facets of education law doctrine and tirelessly debating issues ranging from judicial review, to classroom managemen t, to electoral politics. I value these times that I spent with my former colleague, and I am gratified to know that he is serving a cause higher than himself and using his considerable gifts in the endeavor. Finally, I would like to thank the faculty a nd staff of the Department of Educational Administration and Policy, some of whom continue their dedicated service in the positions they held while I was a doctoral student in residence, and others of whom have since moved on. In particular, I wish to tha nk Ms. Angela Rowe, who has, over the years, graciously offered her help and guidance to me and to others whenever it seemed that the bureaucratic portions of this endeavor were becoming insurmountable. He r patience has been a great strength of the program.

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6 TABLE OF CONTENTS page ACKNOWLEDGMENTS ...............................................................................................................4 LIST OF TABLES ...........................................................................................................................8 ABSTRACT .....................................................................................................................................9 CHAPTER 1 INTRODUCTION TO STUDY .................................................................................................11 Overview of Topic ..................................................................................................................11 Research Questions .................................................................................................................22 Methodologies ........................................................................................................................23 Underlying Principles .............................................................................................................24 Data Sources and Limitations .................................................................................................26 Outline of the Study ................................................................................................................29 2 REVIEW OF THE LITERATURE ...........................................................................................31 Empirical Scholarship Examining Factors Influencing Education Finance Litigation Outcomes ............................................................................................................................31 Dominant Theories of Judicial Behavior ................................................................................32 Legal Factors ..........................................................................................................................35 Political Factors External to Judges ........................................................................................40 Political Factors Internal to Judges .........................................................................................43 Empirical Scholarship Addressing Separation of Powers Doctrine as a Legal Factor in Education Finance Litigation ..............................................................................................48 Normative Scholarship Addressing the Separation of Powers in Education Finance Litigation .............................................................................................................................52 Conclusion ..............................................................................................................................72 3 METHODOLOGIES .................................................................................................................74 The Quantitative Analyses ......................................................................................................74 The Traditional Legal Case Analysis .....................................................................................82 4 RESULTS AND INTERPRETATION OF QUANTITATIVE ANALYSES ...........................85 Initial Results ..........................................................................................................................85 Interpretation of Results .........................................................................................................85 5 LEGAL CASE ANALYSIS ......................................................................................................92

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7 Cases in Which the Court Ultimately Abstained from Reaching the Merits of the Constitutional Question .......................................................................................................95 Alabama ...........................................................................................................................95 Florida ............................................................................................................................100 Illinois ............................................................................................................................103 Pennsylvania ..................................................................................................................105 Rhode Island ..................................................................................................................107 Nebraska ........................................................................................................................109 Oklahoma ......................................................................................................................110 Indiana ...........................................................................................................................111 Cases in Which the Court Ultimately Reached the Merits of the Constitutional Question ..113 Arizona ..........................................................................................................................113 Massachusetts ................................................................................................................116 Texas ..............................................................................................................................121 New Je rsey .....................................................................................................................125 New York ......................................................................................................................135 North Carolina ...............................................................................................................144 Ohio ...............................................................................................................................148 South Carolina ...............................................................................................................151 New Hampshire .............................................................................................................153 Vermont .........................................................................................................................158 Kentucky ........................................................................................................................161 Montana .........................................................................................................................165 Idaho ..............................................................................................................................167 Wyoming .......................................................................................................................170 Arkansas ........................................................................................................................173 Kansas ............................................................................................................................176 West Virginia .................................................................................................................179 Washington ....................................................................................................................185 Oregon ...........................................................................................................................192 Conclusion ............................................................................................................................196 6 DISCUSSION AND CONCLUSIONS ...................................................................................202 Discussion .............................................................................................................................202 A Proposed Model of Adjudication ......................................................................................208 Conclusion ............................................................................................................................223 LIST OF REFERENCES .............................................................................................................224 Constitutions and Codes .......................................................................................................224 Cases .....................................................................................................................................225 Scholarly Works ...................................................................................................................232 General Reference Works .....................................................................................................241 BIOGRAPHICAL SKETCH .......................................................................................................242

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8 LIST OF TABLES Table page 4 -1 Separation of Powers*Judicial Re view Level Crosstabulation .....................................86 4 2 Directional Measures Somers d ................................................................................86 4 3 Symmetric Measures .....................................................................................................87 4 -4 Separation of Powers Reduced*Judicial Review Reduced Crosstabulation .................88 4 5 Symmetric Measures .....................................................................................................89 5 -1 Nature of the Rights*Judicial Review Level Crosstabulation ......................................198 5 2 Symmetric Measures ....................................................................................................198

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9 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 JUDICIAL REVIEW AND THE SEPARATION OF POWERS IN STATE CONSTITUTIONAL LITIGATION CHALLENGING THE ADEQUACY OF EDUCATION SPENDING: COMPLEMENTARY ANALYSES AND A PROPOSED ADJUDICATORY MODEL By Scott Robert Bauries December 2009 Chair: R. Craig Wood Major: Educational Leadership This study focused on state constitutional litigation challenging the adequacy of education spending. Much legal and educational research has been directed at determining the factors that influence judicial decision making in this form of litigation. Limited numbers of empirical studies have sought to analyze t he existing cases using one or more quantitative methodologies, but none have included separation of powers text in the state constitution as a legal variable. Similarly, much normative legal and policy scholarship has evaluated existing adjudicatory appr oaches and has proposed alternate adjudicatory models, and much of this scholarship has considered separation of powers to be an important concern, but none these studies have examined the textual differences among state constitutions relating to separatio n of powers. Understanding that separation of powers concerns have surfaced in nearly every education finance adequacy case, this study sought to examine the nature of the courts use or rejection of these principles in deciding whether to engage in judi cial review. Exploratory analysis yield ed research questions seeking to determine first, whether differences in separation of powers text in state constitutions are associated with differences in judicial decisions on separation of powers questions in sta te highest courts; second, whether patterns of reasoning among state highest court

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10 judicial decisions suggest that other legal factors are associated with differences in judicial decisions; and finally, whether and to what extent any such patterns of reasoning justify adjudicatory reforms. These questions were analyzed using complementary methods. These analyses yielded no evidence indicating that differences in separation of powers text in state constitutions are associated with differences in judicial decisions Rather, patterns of reasoning among the state highest courts cases indicated that differences in judicial conceptions of education rights and duties are closely associated with differences in judicial decisions; however, these differences we re unstable across different stages of litigation, leading to the conclusion that adjudicatory approaches and conceptions of education rights become disconnected as a case progresses from justiciability through remediation Based on the results of t hese comp lementary analyses, this study proposed an adjudicatory model for education finance litigation based on judicial conceptions of educations constitutional status

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11 CHAPTER 1 INTRODUCTION TO STUDY Overview of Topic Public education, more than any other public service, affects the lives of each and every American citizen. Those who do not attend public school nevertheless fund it, either directly or indirectly. Thus, virtually every American has some interest in how schools are funded and how schools e xpend those funds. Despite this apparent unity of interest among the populace, however, it is most likely an understatement to say that education is not without its share of institutional conflicts. Solutions to the problems of the public education system have sometimes come through litigation, and this litigation has often resulted in courtordered or court supervised policy making.1 For example, Brown v. Board of Education2 and its progeny3 ultimately led to court ordered and court supervised desegregat ion at the state and local levels, some of which continues to this day.4 Pennsylvania Association for Retarded Children v. Pennsylvania5 and Mills v. Board of Education of the District of Columbia6 1 See Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 HARV. L. REV. 465, 46768 n.7 (1980) (explaining the concept of Institutional Litigation, which generally involves courts in the supervision of large public institutions, such as school districts, following a finding that constitutional rights have been broadly violated in such institutions). resulted in the enactment of the Education of 2 347 U.S. 483 (1954) ( Brown ). 3 Brown v. Board of Education, 349 U.S. 294 (1955) ( Brown II ); Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1 (1971). 4 See, e.g. Youngblood v. Board of Pub. Inst. of Bay Coun ty, 958 F.2d. 1082 (11th Cir. 1992) (reaffirming the original 1970 order establishing court supervision); Sharpton v. Board of Pub. Inst. of Indian River County, 432 F.2d 927 (5th Cir. 1970), cert. denied 402 U.S. 944 (1971) (establishing court supervision that remains to this day); see also Crawford v. Los Angeles Board of Education, 458 U.S. 527, 542 (1982) (acknowledging that California law imposed a duty on the district to remedy de facto segregation). 5 334 F. Supp. 1247 (E.D. Pa. 1971). 6 348 F. Su pp. 866 (D. D.C. 1972).

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12 All Handica pped Children Act,7 later reformed into the Individuals with Disabilities Education Act,8In such cases, the prospect of court involvement is rarely subject to criticism, as the judiciary occupies its traditional role of protecting individual liberties from being invaded by the whims or the apathy of the majority. each of which contemplates substantial federal judicial monitoring of local educational practices relating to the education of disabled children. 9 In education finance litigation, however, court involvement is more suspect.10 Constitutional challenges to state education finance systems are extremely important, if only because of the sheer dollars at stake in such suits.11 But even more important than money are the concepts that school policy is t he paradigmatic province of state legislatures, and that courts are particularly illsuited to render decisions approving or disapproving of what are essentially subjective, priority setting policy decisions of a legislative body that more or less evenly affect all who make use of the public education system.12 7 Pub. L. 94 142, 89 Stat. 773 (Nov. 29, 1975). One 8 20 U.S.C. 1400 et seq. (2006) (hereinafter, IDEA). 9 Michael D. Blanchard, The New Judicial Federalism: Deference Masquerading as Discourse and the Tyrrany of the Locality in S tate Judicial Review of Education Finance 60 U. PITT. L. REV. 231, 26869 (1998). 10 Id. at 272 73. This greater concern for the judicial role may result from the fact that a constitutional challenge based on adequacy grounds in effect challenges the deci sion of a majoritarian branch of government and is purportedly brought on behalf of the same majority that elected it. 11 See, e.g., Kern Alexander, The Common School Ideal and the Limits of Legislative Authority: The Kentucky Case 28 HARV. J. LEGIS. 341, 343 (1991) (describing the outcome of what many consider the seminal education finance case of the adequacy era: The case caused the legislature to fashion new tax legislation which resulted in increased revenues of over one billion dollars. ). 12 See Bl anchard supra note 9 Several commentators have suggested that the recent move to standardize education and insert test based accountability has provided the courts with appropriate standards by which they can make such judgments. See, e.g. William F. D ietz, Note, Manageable Adequacy Standards in Education Reform Litigation, 74 WASH. U. L. Q. 1193, 1200 (1996). However, these scholars misconstrue the nature of a constitutional challenge to an education finance plan. The nature of such a challenge is th e question whether the legislature has done what the state constitution mandates; that is, whether it has fulfilled its responsibility to organize and fund an education system that is aimed at achieving whatever subjective criteria are set forth in the Edu cation Clause (e.g., thorough and efficient, high quality, adequate, uniform). These articles ignore the fact that most state standards are not tested, but rather are merely stated as stretch goals. See, generally LAWRENCE BRADEN, CHESTER E. FI NN, JR., LAWRENCE S. LERNER, SUSAN MUNROE, MICHAEL J. PETRILLI, RALPH A. RAIMI, DAVID W. SAXE, TERRY SMITH, & SANDRA STOTSKY, THE STATE OF STATE STANDARDS (2000),

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13 aspect of school policy decisions about adequate funding levels and priorities draws attention above all others from both courts and commentators when it becomes the subject of litigation. Th is study attempted to explain the special category of litigation involving adequacy based challenges to state education finance systems, specifically the special scrutiny that the judiciary often receives, and often imposes upon itself, in addressing such litigation. The studys main purpose was to examine the operation of legal doctrine relating to the separation of powers as it is applied to govern court access in state education finance adequacy challenges, and to evaluate the application of such doctri ne in the varying contexts of judicial enforcement of affirmative constitutional mandates, as opposed to limitations. The results of the analyses performed herein generated a proposal for a procedural reform that may balance the judiciarys sensitivity to its own involvement in such cases, while allowing the judiciary to continue to occupy its traditional role of protecting individual liberties where appropriate. In the United States, public education is overwhelmingly a state function.13 The federal gov ernment has its role to play,14 and some say that this role has become overbearing of late,15 http://www.edexcellence.net/institute/publication/publication.cfm?id=24&pubsubid=216. Theref ore, judging the adequacy of legislative action based on their achievement places an impossibly high burden on legislative bodies and gives them every incentive not to propose educational goals that are difficult to achieve. See Paul E. Peterson, A Lens t hat Distorts, 7 EDUC. NEXT 46 (Fall 2007) (outlining the lowering of state standards that has resulted from increased scrutiny of testing results due to the federal No Child Left Behind Act). 13 R. CRAIG WOOD, EDUCATIONAL FINANCE LAW: CONSTITUTIONAL CHALLE NGES TO STATE AID PLANS AN ANALYSIS OF STRATEGIES 11 (3d ed. 2007); Avidan Y. Cover, Note: Is Adequacy a More Political Question than Equality?: The Effect of Standards Based Education on Judicial Standards for Education Finance 11 CORNELL J. L. & PUB. POLY 403, 404 (2002). 14 Cover, supra note 13, at 404. 15 E.g., Lynn A. Baker & Mitchell M. Berman, Getting off the Dole : Why the Court Should Abandon its Spending Doctrine, and How a TooClever Congress Could Provoke it to Do So, 78 IND. L. J. 459 (2 003).

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14 but under current legal standards, no federal right to an education exists in the United States.16 Early efforts to locate a federal constitutional right to an educ ation quickly failed.17 It is clear from the relevant historical research that the Founders considered education to be a personal or community pursuit, rather than a federal one, and as a result, the text of the United States Constitution contains no refer ence to education.18 In contrast, the constitution of each of the fifty states contains a provision mandating the provision of free public education.19 Accordingly, the vast majority of litigation over the right to an education, and the extent of this right, has occurred in the courts of the several states.20This state court litigation has developed along two distinct lines. The first involved theories of equality or equity, based primarily upon state constitutional provisions guaranteeing equal protecti on of the laws, similar to the Fourteenth Amendment of the United States Constitution. 21 16 Barabara J. Staros, School Finance Litigation in Florida:A Historical Analysis 23 STETSON L. REV. 497, 498 (1994); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.1, 35 (1973). Although the Supreme Court in Rodriguez held that education was n ot a federal fundamental right for purposes of analysis under the Equal Protection Clause of the Fourteenth Amendment, the Court left open the possibility that at least some minimal level of education necessary to exercise other federal fundamental rights might exist. Id. at 37; s ee also Plyler v. Doe, 457 U.S. 202, 22123, 230 (1982) (describing education as a quasi findamental interest). But see Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 458 (1988); Papasan v. Allen, 478 U.S. 265, 285 (1986) (reaf firming the lack of a federal right to education). Perhaps as a result of this ambiguity, scholars have begun to return to a long abandoned argument that a federal right to an adequate education exists under the United States Constitution. See, e.g. Goo dwin Liu, Education, Equality and National Citizenship, 116 YALE L. J. 330 (2006) (arguing that a positive right to education exists within the provisions of the federal Fourteenth Amendment). For plaintiffs, establishing a lack of equity required the use of expert witnesses in 17 Rodriguez 411 U.S. at 35. 18 Cover, supra note 13, at 404 19 See Jon Mills & Timothy McClendon, Setting a new Standard for Public Education: Revision 6 Increases the Duty of the State to Make Adequate Provision for Florida Schools 52 FLA. L. REV. 329, 342 n.56 (2000) (setting forth the education provision in each states constitution). 20 Kelly Thompson Cochran, Beyond School Financing: Defining the Constitutional Right to an Adequate Education 78 N.C. L. REV. 399 408 (2000). 21 During the 1970s and 1980s, seven states saw the state school finance system struck down based on equality or equity theories. See Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90 (Ark. 1983); Serrano v. Priest, 487 P.2d 1241 (Cal. 1971), aff'd Serrano II, 557 P.2d 929 (Cal. 1976), cert. denied 432 U.S. 907 (1977) (decision base d on state equal protection provision); Horton v. Meskill, 376 A.2d 359 (Conn. 1977); Robinson v. Cahill, 287 A.2d 187 (N.J.

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15 the area of statistical and economic analysis, and their role was to illustrate f or courts and juries the extent to which a states education finance system tended to treat that states residents or school districts neutrally without regard to income.22 The more recent wave of state litigation, however, has involved questions of a much different type, and is based on the affirmative language contained in each states education clause.23 In the current period of litigation based reform, courts have been presented with state constitutional language often littered with subjective criteria and are tasked with the challenge of determining whether these subjective requirements were met by a given school finance system or by a certain level of funding that is, whether education funding was constitutionally adequate.24 The rise of the adequa cy based strategy has given rise to new proof requirements,25 1972), cert. denied 414 U.S. 976 (1973); Seattle Sch. Dist. No. 1 of King County v. State, 585 P.2d 71 (Wash. 1978) (en banc); Pau ley v. Kelley, 255 S.E.2d 859 (W.Va. 1979); Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980), cert. denied sub nom. Hot Springs County Sch. Dist. No. 1 v. Washakie County Sch. Dist. No. 1, 449 U.S. 824 (1980). In fifteen states duri ng the same period, the school finance system survived an equitybased challenge. See Shofstall v. Hollins, 515 P.2d 590 (Ariz. 1973) (en banc); Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo. 1982) (en banc); McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981); Thomas v. Engelking, 537 P.2d 635 (Idaho 1975); Louisiana Ass'n of Educators v. Edwards, 521 So. 2d 390 (La. 1988); Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758 (Md. 1983); Governor v. State Treasurer, 212 N.W.2d 711 (Mich. 1973); Board of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 439 N.E.2d 359 (N.Y. 1982), appeal dismissed 459 U.S. 1138 (1983); Britt v. North Carolina State Bd. of Educ., 357 S.E.2d 432, appeal dismissed, 361 S.E.2d 71 (N.C. 1987); Board of Educ. v. Walter, 390 N.E.2d 813 (Ohio 1979), cert. denied 444 U.S. 1015 (1980); Fair Sch. Fin. Council v. State, 746 P.2d 1135 (Okla. 1987); Olsen v. State, 554 P.2d 139 (Or. 1976); Danson v. Casey, 399 A.2d 360 (Pa. 1979); Richland County v. Campbell, 364 S.E.2d 470 (S. C. 1988); Kukor v. Grover, 436 N.W.2d 568, reh'g denied, 443 N.W.2d 314 (Wis. 1989). and the theory underlying the adequacy strategy has often caused the judiciary to consider its role among the coordinate branches of government. 22 WOOD, supra note 13, at 41 44 (outlining the statistical tools employed by such experts in litigation based on theories of equity). 23 R. Craig Wood, Constitutional Cha llenges to State Education Finance Distribution Formulas: Moving from Equity to Adequacy 23 ST. LOUIS. U. PUB. L. REV. 531 551 52 (2004). The term education clause was used throughout this study as a shorthand term to denote the provision(s) of a stat e constitution that provide for the establishment of a public education system in the state. 24 WOOD, supra note 13, at 71. 25 See WOOD, supra note 13 at 72 77 (analyzing and critiquing the four generally accepted methods for establishing inadequacy of ed ucation spending).

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16 The effects of the change in strategy can be mos t easily seen through proof requirements. Most education finance suits require determinations of the constitutionality of certain expenditure levels or funding models either during litigation or after a judgment has been rendered against the state.26 In e quity suits, the outcome often turned on the results of comparative statistical analyses of expenditure levels or property tax bases among districts.27 The statistical tools used in these cases were well developed and familiar to education finance research ers, and they were geared toward an indisputably proper judicial purpose whether the legislation at issue had the purpose or effect of depriving individuals of their constitutional right to equal protection under the law.28In contrast, the methodologie s employed in adequacy suits are far less well accepted, and the studies performed incident to such litigation have had a purpose far more judicially suspect to determine whether legislation has gone far enough in providing a state education system in ge neral to all state residents. Additionally, it has been argued that the methodologies employed by plaintiffs expert witnesses in adequacy based constitutional challenges to state education finance plans have serious flaws, and that they do not meet the r igors of serious science. 29 26 WOOD, supra note 13, at 50. More fundamentally, though, in these cases, rather than employing a well developed statistical tool to illustrate the level of inequality inherent in a particular system (which almost everyone agrees is undesirable), experts are now required to develop measures by which they attempt to quantify 27 See WOOD, supra note 13 at 71 (contrasting equity and adequacy based strategies); Wood, supra note 23, at 551 (same). 28 WOOD, supra note 13 at 44 49. Among these statistical tools are the range, the inter quartile range, Pearsons r coefficient of correlation, and McLoones Index, each of which gives users progressively more precise information regarding the influence of local property wealth on total education funding per pupil. See id. at 41 45 (outlining the various measures of equity). 29 E.g., Eric A. Hanushek, Is the EvidenceBased Approach a Good Guide to School Financy Policy?, EDUC. NEXT (Summer 2007), available at http://www.hoover.org/publications/ednext/7560457.html (last visited Sept. 6, 2007).

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17 adequacy (a subjective concept upon which it seems no one is capable of agreeing).30 As a result, in this current reform period, judges are placed in the role of evaluating the qualitative sufficiency of legislators subjective priority setting funding decisions based on the inherently limited information that comes to light during the litigation process, as opposed to the legislative process.31Since 1989, nineteen state highest courts ha ve ruled that the education finance systems in the states in which the courts sat were unconstitutional on adequacy grounds. 32 Courts in eight states have rejected such challenges for one reason or another.33 Nine other state level cases are either pending or on the verge of being decided.34 Interestingly, despite the qualitative nature of a judgment against the state in an adequacy suit, in the cases that have resulted in both a judgment and a remedial order against the state, courts ordering a specific remedy have thus far ordered quantitative changes such as increases in spending or reallocation of resources among school districts.35 30 Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS 32728 (Martin R. West & Paul E. Peterson, eds. 2007). Importantly, though, states have provided courts with a convenient starting point o r benchmark for such analysis through their moves in recent decades to impose regimes of standards and accountability. Smith argues that these moves have provided courts with the judicially manageable standards that often are said to be lacking in cases dismissed in state courts. I d. at 328; see also Wood, supra note 23, at 554 (arguing that states, by establishing rigid standards of achievement and systems of accountability in education, may have unwittingly established quantitative criteria by which a dequacy can be measured). In other cases in which a states finance program has been found to be 31 Scott R. Bauries, Floridas Past and Future Roles in Education Finance Reform Litigation, 32 J. EDUC. FIN. 89, 9798 (2006). 32 Education Adequacy Decisions Since 1989 (Natl Acess Network, Teachers Coll., Columbia U. August 2 007), available at http://www.schoolfunding.info/litigation/AdequacyDecisions07.pdf (last visited Dec. 20 2007) (hereinafter, EAD). 33 Id. 34 Id. 35 See Montoy v. State, 112 P.3d 923 (Kan. 2005) (ordering remedial expenditures and retaining jurisdiction); Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002) (ordering adequacy study and retaining jurisdiction to ensure implementation); Derolph v. State, 780 N.E.2d 529 (Ohio 2002) (clarifying that prior order of court mandated a complete overhaul of th e state education system, rather than a simple increase in funding); Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) (ordering specific expenditures and retaining jurisdiction to

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18 unconstitutional, courts have abstained from orde ring any remedy at all, or have simply mandated generally that the legislature reform the education system to make it constitutional.36 This latter group of decisions has been derisively (and correctly) referred to as a group of binding advisory opinions.37Scholarly attention in the area of education finance has generally focused on the influence of various stimuli on the results of education finance cases. These s timuli have included the Thus, a disconnect was identified between the perceived right to educational quality or a certain level of education spending and the enforcement of this right in the courts. This disconnect gave rise to the broad questions of whether and to what exte nt judicial involvement in determining absolute educational quality was useful or desirable, and whether and to what extent such involvement should be limited. However, a predicate to these questions was the question of what legal factors influence whether the judiciary will engage in review of a legislatures education funding determinations. evaluate legislative performance); Abbott v. Burke, 495 A.2d 376 (N.J. 1985) (ordering specific expenditure increases to remedy state wide educational inadequacy). 36 See Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005) (plurality finding constitutional violation, but leaving remedy to the legislature, with a two judge concurrence advocating complete abstention); Idaho Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 2005) (finding a violation, but leaving the remedy to the legislature); Hoke County Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004) (r eaffirming violation found in earlier case, but leaving remedy up to the legislature); Campaign for Fisc. Equity v. State, 665 N.E.2d 661 (N.Y. 1995) (finding constitutional violation, but leaving remedy to the legislature); Abeville County Sch. Dist. v. S tate, 515 S.E.2d 535 (S.C. 1999) (reversing dismissal of the case based on separation of powers principles, but counseling judicial restraint as to the eventual remedy); Brigham v. State, 889 A.2d 715 (Vt. 2005) (reversing dismissal of the case on separati on of powers grounds, but counseling judicial restraint as to remedy); Rose v. Counsel for Better Educ., 790 S.W.2d 186 (Ky. 1989) (finding a violation, but leaving the remedy to the legislature). Two cases might be considered hybrids between total cour t abstention and court abstention only from the remedial phase because each resulted in an ambiguous remand to the legislature to define the relevant constitutional term. See Londonderry Sch. Dist. v. State, 907 A.2d 988, 99596 (N.H. 2006) (reaffirming r emand to the legislature to define adequate and formulate a system meeting the definition, but finding that the current system is not adequate under any possible definition); Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005) (remanding to legislature for a definition of quality, but predicting that the current system will fail to meet any such definition). 37 George D. Brown, Binding Advisory Opinions: A Federal Court's Perspective on the State School Finance Decisions 35 B.C. L. REV. 543 546 (1994).

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19 language of state constitutional education clauses,38 the attitudes and beliefs of selected judges,39 the political affiliations of the judges,40 the differing methods for selecting judges in differing states,41 and varying characteris tics of the plaintiffs or the state population.42 Commentators have also focused limited, but important, critical attention on the quasi statistical and other quantitative methods that experts have employed to assist courts and legislatures in defining an adequate education.43 Finally, political and social scientific scholarship has analyzed and evaluated the effectiveness of remedial measures constructed by courts and legislatures in the midst of education finance litigation or pursuant to court orders res ulting from such litigation.44This study focused attention instead on the role of legal doctrine, specifically analyzing what was arguably the most important legal principle to state education finance litigation: the separation of powers and its implemen ting procedural device, the political question doctrine. 45 38 Paula J. Lundberg, State Courts and School Funding: A Fifty State Analysis 63 Albany L. Rev. 1101 (2000); Karen Swenson, School Finance Reform Litigation: Why are Some State Supreme Courts Activist and Others Restrained?, 63 Albany L. Rev. 1147 (2000); William E. Thro, The Role of Language of the State Education Clauses in School Finance Litigation, 79 EDUC. L REP. 19, 22 (1993). 39 Michael P. Vriesenga, Judicial Beliefs and Education Finance Adequacy Remedies Unpublished Dissertat ion (Dec. 2005) (on file with Vanderbilt University Library). This study proceeded from the assumption that preexisting judicial beliefs have some influence on the outcomes of adequacy cases, but also assumed that this influence will always exist and must be accounted for through legal doctrine as best as possible. 40 Lundberg, supra note 38, at 1136. 41 Swenson, supra note 38, at 1174. 42 Yohance C. Edwards & Jennifer Ahern, Note, Unequal Treatment in State Supreme Courts: Minority and City Schools in E ducation Finance Reform Litigation, 79 N.Y.U. L. REV. 326 (2004); James E. Ryan, The Influence of Race in School Finance Reform 98 MICH, L. REV. 432, 45556 (1999). 43 E.g., Bruce D. Baker, The Emerging Shape of Educational Adequacy: From Theoretical A ssumptions to Empirical Evidence, 30 J. EDUC. FIN. 259 (2005); Wood, supra note 23 at 553. 44 E.g., Larry J. Obhof, Derolph v. State and Ohios Long Road to an Adequate Education, 2005 B.Y.U. EDUC. & L. J. 83, 110147 (2005); William S. Koski, Of Fuzzy S tandards and Institutional Constraints: A Re examination of the Jurisprudential History of Educational Finance Reform Litigation, 43 SANTA CLARA L. REV. 1185, 127274 (2003). 45 See Michael Heise, Schoolhouses, Courthouses, and Statehouses: Educational Fi nance, Constitutional Structure, and the Separation of Powers Doctrine 33 LAND & WATER L. REV. 281 (1998) (arguing in part for judicial sensitivity for separation of powers principles, particularly in cases that might implicate political questions, in res ponse to the then recent ruling of the Wyoming Supreme Court in Campbell County School District v. State 907

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20 Of the state highest courts that have declined to invalidate education finance systems on adequacy grounds, all but two have done so at least in part based on separation of powers concerns, often e mploying the political question doctrine.46 Further, all but one of the state courts that have invalidated state funding systems on adequacy grounds have considered and rejected dispositive motions grounded in the separation of powers or the political ques tion doctrine, or have otherwise considered separation of powers concerns in issuing opinions.47 P.2d 1238 (Wyo. 1995)). The political question doctrine as a means for preserving the separation of powers arguably has its roots in the granddad dy of all judicial review decisions, Marbury v. Madison, 5. U.S. (1 Cranch) 137, 16566 (1803), but saw its most authoritative and comprehensive treatment in the Supreme Court case of Baker v. Carr, 369 U.S. 186, 217 (1962), wherein the Court outlined the contours of the doctrine as then understood: 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 d iscoverable 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 courts undertaking independent resolution without expre ssing lack of the respect due coordinate branches of government; or an unusual need of unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one questio n. 46 Neb. Coalition for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164 (Neb. 2007); Okla. Educ. Assn v. State, 158 P.3d 1058 (Okla. 2007); Campaign for Fisc. Equity v. State, 861 N.E.2d 50 (N.Y. 2006) (declining to invalidate the governors chosen remedy due to separation of powers concerns, considered for the first time in the remedial phase); Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005); Ex Parte James, 836 So. 2d 813 (Ala. 2002); Marrero v. Com., 739 A.2d 110 (Penn. 1999); Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996); Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996); City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995). But see Neely v. W. Orange Cove Consol. Ind. Sch. Dist. 176 S.W.3d 746, 779, 78485(Tex. 2005) (considering and rejecting separation of powers concerns, but crafting a highly deferential arbitrariness standard of review in handing down a verdict for the state); Pendleton School District 16R v. State 200 P. 3d 133 (Or. 2009) (reaching the merits without explicitly considering the separation of powers, but deciding for the state due to the courts interpretation of the education clause as imposing only the duty to provide a basic education). 47 Montoy v. Sta te, 112 P.3d 923 (Kan. 2005); Brigham v. State, 889 A.2d 715 (Vt. 2005); Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005); Hoke County Bd. of Educ. v. State, 599 S.E.2d 365, 37879 (N.C. 2004) (basing justiciability on the Courts prior re solution of the issue in Leandro v. State 488 S.E.2d 249 (N.C. 1997); Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002), issue considered again on rehg, 220 S.W.3d 645 (Ark. 2005); Derolph v. State, 677 N.E.2d 733, 737 (Ohio 1997); Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wy. 1995), issue considered again on rehg, 32 P.3d 325 (Wyo. 2001); Idaho Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 1993) (deciding justiciability issue before the Court finally considered the merits in 2005); Campaign for Fisc. Equity v. State, (N.Y. 1995); Abeville County Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999); Rose v. Counsel for Better Educ., 790 S.W.2d 186 (Ky. 1989). The Supreme Court of New Jersey has addressed separation of powers co ncerns in ways unique among school finance cases. First, the Court abstained for an initial eighteen month period from ordering a remedy for the violation of the state constitutions Education Clause on equality grounds, pending legislative action. Robinson v. Cahill, 306 A.2d 65, 65 (N.J. 1973). Second, after adjudging subsequent legislative action to be insufficient, the Court ordered a limited provisional remedy to give the legislature time to act, while stating its intention to refrain as much as p ossible from intru[ding] into the legislative process. Robinson v. Cahill, 351 A.2d 713, 718 19 (N.J. 1975). Third, the Court remanded the merits of a later challenge to the states then new statute to the Commissioner of Education for exhaustion of

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21 Indeed, it is entirely plausible that the three outlier courts also considered separation of powers concerns, but that these deliberations did not appear in the courts opinions.48The separation of powers structure inherent in the United States Constitution and in every state constitution, and explicit in most state constitutions, is most often operationalized through the application of the political question doctrine. Based on the near universality of its consideration, then, the separation of powers appeared to operate as a hurdle that nearly always must be cleared by plaintiffs seeking to invalidate state education finance systems on adequacy gro unds. 49 As currently applied, the doctrine counsels a reviewing court to completely abstain from judicial review of the merits of substantive matters more properly reserved to the unreviewable discretion of another branch of government, regardless of whether the cour t has subject matter jurisdiction over the controversy.50 In the federal courts, such matters have in the past included the f oreign policy decisions of the P resident,51 the impeachment power lodged in the Senate,52 the Constitutions guarantee of a republic an form of government,53 a dministrative remedies. Abbott v. Burke, 495 A.2d 376, 393 (N.J. 1985). The New Hampshire Supreme Court has not explicitly considered the separation of powers question as it relates to justiciability at any time during the ongoing proceedings, but it ha s engaged in remedial restraint based on its perception of its proper inter branch role. See Londonderry Sch. Dist. v. State, 907 A.2d 988, 99596 (N.H. 2006). and the qualifications for active membership in the House of 48 For example, in most of the many cases comprising the storied history of education finance li tigation in New Jersey, no discussion of separation of powers principles appears, as the issue was decided by the Court early in the litigation, and later cases simply assumed that the issue was foreclosed. See discussion of New Jersey, infra Chapter Fiv e. 49 Jesse Choper, The Political Question Doctrine: Suggested Criteria 54 DUKE L. J. 1457 1458 (2005) (explicating the federal political question doctrine as follows: that courts should abstain from resolving constitutional issues that are better left to the other departments of government, mainly the national political branches). 50 Id. 51 Goldwater v. Carter, 444 U.S. 996 (1979). 52 Nixon v. United States, 506 U.S. 224 (1993). 53 Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

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22 Representatives.54 State courts generally attempt to apply the political question doctrine based on the standards that have developed under federal law, if such courts apply it at all.55 The doctrine is regarded is prudential, rather than jurisdictional, because it does not categorically limit the power of the judiciary to intervene; instead, it operates as a means of institutional restraint where a case presents a question that requires the judiciary to assume the role of another branch or that jeopardizes the judiciarys institutional standing or its political capital among the other two branches, thus potentially threatening inter branch comity and the judiciarys credibility and effectiveness in resolving disputes.56Research Questions Understanding that separation of powers concerns have surfaced in nearly every education finance adequacy litigation, this study sought to examine the nature of the courts use or rejection of these principles in deciding whether to engage in judicial review. Exploratory analysis yielded the following four research questions: 1. In adequacy based education finance litigation, does the legal factor of separation of powers doctrine inf luence court decision making regarding whether to engage in review of legislative action in providing for education? 2. Is there a relationship between state constitutional text regarding separated powers and state court decision making regarding judicial re view in education finance adequacy litigation? 3. In adequacy based education finance litigation, do patterns of interpretive reasoning exist within the opinions of highest state courts justifying decisions whether and to what extent to engage in review of legislative action? 54 Powell v. McCormack, 39 5 U.S. 486 (1969). 55 See, e.g. Neb. Coalition for Educ. Equity & Adequacy v. Heineman, (Neb. 2007) (adopting and applying the Baker factors); Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, (Fla. 1996) (same). 56 Choper, supra note 49, at 1458. But see Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine 80 N.C. L. REV. 1203 (2002) (tracking the doctrinalization of the political question doctrine and other initially prudential justiciability doctrines, and arguing that this doctrinalization has robbed such doctrines of their true prudential character).

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23 4. If patterns of reasoning exist among education finance adequacy opinions addressing judicial review, what implications do these patterns have on the future development of theory and doctrine in the areas of education finance adequac y, state constitutional law, and judicial review? Methodologies This study initially sought to discern whether a relationship existed between state constitutional language relating to the separation of powers and the states courts judicial review determi nations. This analysis began by categorizing the states based on state constitutional language relating to the separation of powers. The states were categorized based on the relative flexibility afforded the judiciary by the text of state constitutions e stablishing separated powers; that is, whether each states constitutional text was explicit and rigid, reflecting a strict formalist approach; explicit but flexible, reflecting a functionalist approach explicitly mandated; or implicit, allowing for a judicially constructed approach. Once the states were categorized in this way, highest state court opinions in adequacy based education finance litigation were categorized based on whether the court issuing the opinion abstained from review of the merits of t he substantive constitutional claims asserted, or whether the court engaged in or approved judicial review on the merits, and further, to what extent the court engaged in or approved merits review. These two variables were initially analyzed using the Som ers d statistic for whether any association existed between them, and then analyzed under several follow up measures, some of which were used on collapsed versions of the two variables to account for certain limitations of the study. The findings of t he quantitative analyses were compiled and interpreted, and the research questions set forth above were supplemented by a more focused research question for the next portion of the study:

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24 Do state courts perceptions of the education clauses in state const itutions as repositories of affirmative duties, positive rights, or negative rights influence the courts decisions whether and to what extent to engage in or approve merits review of education finance litigation? The study then proceeded through a legal c ase analysis of the twenty six education finance cases presenting theories of adequacy that had reached a state highest court at least once, wherein the court made a determination of the propriety of judicial review, either expressly or by implication.57Underlying Principles I n an attempt to explain the results of the statistical analyses in this study, the legal case analysis particularly focused on each courts justifications for its engagement in judicial review. The statistical analysis in this stu dy proceeded with two principles in mind. The first was that, in comparing constitutional language relating to the separation of powers, constitutional text making the doctrine explicit should be viewed less flexible than language merely mandating a const itutional structure that implied separate functions for each branch of government.58 57 Although 1989 to the present is generally regarded as the period during which the adequacy theory of education finance reform litigation has been ascendant and dominant, s ee, e.g. William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model 35 B.C. L. REV. 597, 60408 (1994), this study sou ght to capture all of the opinions engaging in judicial review of adequacy based challenges, and some of these opinions were rendered prior to 1989. Where appropriate, these opinions were included in the analyses reported herein. The 58 See Sturges v. Crow ninshield 17 U.S. 122, 20203 (1819) (Marshall, C.J.) ( Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, constructi on becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the fra mers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. ); see also Michael Sinclair, Only a Sith Thinks Like That: Lewellyns Dueling Canons, One to Seven, 50 N.Y. L. SCH. L. REV. 919, 923 (2006) ( If the statute is clear as enacted, then it must be applied without further ado as it is the legislature's only off icial expression of its intent. ); Michael Sinclair, Only a Sith Thinks Like That: Lewellyns Dueling Canons, Eight to Twelve 51 N.Y. L. SCH. L. REV. 101617 (2007) ( Where the intent of the legislature is clearly and unambiguously manifest in the sta tute, legislative supremacy and notice to the governed are in sympathy. One cannot doubt that the reasonable reader's understanding is that which the legislature intended. But where there is uncertainty in the statutory language, the promulgated expression of legislative intent, the fundamental principles of

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25 second was that language forbidding encroachment on any powers relegated to a coordinate branch should be viewed as less flexible, due to its reflection of formalist separation of powers theory,59 as compared with provisions forbidding encroachment on the general powers or functions of a coordinate branch, which language would reflect a functionalist theory.60These classifications of the explicit provisions were base d on the well known dichotomy in separation of powers theory whereby formalists claim that any exercise of any power of a coordinate branch violates the separation of powers, while functionalists would hold the doctrine violated only if a member of one bra nch assumes the core functions or the whole power of another branch. 61 legislative supremacy and notice to the governed part company. Then it is merely happenstance if the reader chooses the same meaning as intended by the legislature. ); G. Alan Tarr, Interpreting the Sep aration of Powers in State Constitutions 59 N.Y.U. ANN. SURV. AM. L. 329, 3339440 (2003) (examining the explicit mandate for separated powers in the Indiana Constitution and concluding that the provision forecloses judicial flexibility in determining tha t different branches can share their powers); s ee also Rose v. Council for Better Education, 790 S.W.2d 186, 214 ( Ky. 1989) ( One last point must be disposed of. We are referred by appellees to several federal cases where federal courts maintained continu ing supervision over its own order e.g., supervision of prisons, court ordered busing, etc. The United States Constitution has no separation of powers provision within it. The separation of powers doctrine in the Federal area, has been recognized in federal common law. We on the other hand, are faced with a strongly written, definitive constitutional scheme. We must, perforce, follow our constitution. The federal cases and situations referred to are clearly not even persuasive here. ). Each of these principles can be subjected to criticism, and based on such 59 See, e.g., R obert F. Williams, Rhode Islands Distribution of Powers Question of the Century: Reverse Delegation and Implied Limits on Legislative Powers 4 ROGER WILLIAMS U. L. REV. 159, 166 (1998) ([t]he formalist approach is committed to strong substantive separat ions between the branches of government, finding support in the traditional expositions of the theme of pure separated powers, such as the maxim that the legislature makes, the executive executes, and the judiciary construes the law. (quoting Rebecca L. Brown, Separated Powers and Ordered Liberty 139 U. PA. L. REV. 1513, 152324 (1991) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825)) (alterations in Williams)). 60 See Williams, supra note 59, at 16667 (In contrast, advocates of the fun ctionalist approach urge the Court to ask a different question: whether an action of one branch interferes with one of the core functions of another.) (quoting Brown, supra note 59, a t 152728); Tarr, supra note 58, at 334 (explaining that James Madison s lax conception of the separation of powers held that only the assumption of the whole power of a coordinate branch constituted a violation) (quoting THE FEDERALIST 32526 (Jacob E. Cooke, Ed. 1961)). 61 Adrian Vermeule The Judicial Power in the State (and Federal) Courts 2000 SUP. CT. REV. 357 360 (2000) (critically reviewing the literature relating to separation of powers theory: In one prominent strand of that literature, functionalists argue that judges should assess claims of interbranch encroachment by means of a balancing test. They argue that balancing allows flexible adjustments of the separation of powers to accommodate social change while preserving the core or essential functions of each branch from invasion. Formalists, by contrast, charge that functionalist adjudication underprotects the separation of powers by allowing intrusions into the affected branch's core functions. On this view, judges applying core functions analysis tend systematically to overweigh the

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26 criticism, further research may seek to modify the categories created within the Separation of Powers variable herein. However, for the purposes of the statistical portion of this study, it was determined that the categorization utilized herein was both theoretically defensible and useful in answering the research questions. The legal case analysis portion o f this study sought to go beyond merely proposing an explanation for the findings of the quantitative portion. Rather, in addressing the relevant research questions, the legal case analysis had as its goal the determination of future directions for development of theory and doctrine in the areas of education finance, state constitutional law, and judicial review. Data Sources and Limitations The empirical data used in this study were limited to appellate case reports, and where possible, to state hi ghest court opinions, due to the general inaccessibility of the trial court record and the fact that appellate decisional law, especially in the states highest court, has the effect of establishing or altering state policy. This limitation was addressed through examination of the representative appellate opinions to determine whether the final reviewing court evaluated separation of powers or judicial review concerns at any stage in the litigation. concrete exigencies t hat gave rise to the challenged legislation, while undervaluing the abstract and structural interest in the separation of powers. Formalists therefore propose a rulebound approach, one that will prevent the gradual degradation of the separation of powers that they fear will occur in a functionalist regime. ); Vale Krenik Note, No One Can Serve Two Masters: A Separation of Powers Solution to Conflicts Within the Department of Health and Human Services 12 TEX. WESLEYAN L. REV. 585 601 02 (2006) (T he fo rmalist approach requires that the three functions of legislative, executive, and judicial must be strictly relegated to respective bran ches of the government. The functionalist approach only requires that the respective branches retain exclusive jurisdict ion over core functions that cannot be usurped, but allows for ebb and flow of powe r between the branches. Under the formalist model, there can be no inter branch interference not expressly authorized by the Constitution and separation of powers disputes are to be resolved predominantly by clas sification of function. Functionalism contrasts with formalism by allowing inter branch blending, and dispute resolution is analyzed by reference to characteristic functions of separation of powers such as maintaini ng a system of checks and balances, preventing excessive concentrations of powers, an d protecting individual liberty.); see also Williams, supra note 59, at 167 (The functionalist approach permits more judicial discretion than the formalist approach.) ( citing Brown, supra note 59, at 1528). At least two scholars would add two additional categories to the traditional ones of formalist and functionalist, those of originalist and fused. See Bruce G. Peabody & John D. Nugent, Toward a Unifying The ory of the Separation of Powers 53 AM. U. L. REV. 1, 12 14 (2003).

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27 Another limitation of this study was the continuous gene ration of new appellate decisions in cases presenting constitutional challenges based on adequacy theories. At the time of this study, four adequacy based constitutional challenges were pending in state highest courts.62 Because the fifty state system nat urally limited the size of the data set, any additional rulings from state appellate courts rendered after the completion of this study could significantly affect the descriptive conclusions herein; for example, if a states high court were to rule one way prior to the completion of this study and then reverse itself or rule the opposite way based on different factors after the completion of this study, then the trends observed here could reverse themselves.63Data examined in this study consisted entirely of primary source material, in the form of reported state appellate case law. Secondary sources utilized in this study included law review articles; other journal articles; unpublished dissertations; and monographs relating to education finance reform in general, the adequacy based litigation strategy in particular, the role of the judiciary relative to the other two branches, and the procedural devices available to defendants to prevent courts from considering the merits of such cases. Therefore, this study did not seek to set forth a rigid predictive model of state decision making, but rather to utilize existing empirically observed relationships between the identified doctrinal constructs to inform the development of theory and doctrine in education finance adequacy litigation, in the hopes of improving state judicial decision making in education finance and other policy arenas relating to affirmative state duties. 62 EAD, supra note 32. 63 E.g., compare Shofstall v. Hollins, 515 P.2d 590, 592 (Ariz. 1973) (holding that the state's school financing system was not in violation of the equal protection pr ovisions of the Arizona or United States Constitution), with Hull v. Albrecht, 960 P.2d 634, 639 (Ariz. 1998) (holding the same state system to be unconstitutional on equity grounds).

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28 The main repository from which both primary source case law and secondary source law re view articles were obtained was the electronic Westlaw database.64In addition to these sources, articles from nonlegal jour nals, as well as academic monographs, were located through searches performed in the University Systems Online Catalogue, Search terms included education finance, education funding, education reform, public schools, public education, political question, expert witness, motion in limine, summar y judgment, motion to dismiss, dispositive motion, gatekeeping, state constitution, constitutional mandate, and separation of powers, each of which was reformulated and juxtaposed in multiple orders with the other terms, along with related ter ms contained within the headnotes of cases retrieved. In addition, the citations and headnotes within retrieved cases and articles were mined for further potential primary and secondary sources. 65 which provided access to other libraries in the State University System, as well as inter library loan capabilities. Searches for n onlegal periodicals were performed in the Universitys E Journal Locator,66 as well as the education periodical database, ERIC.67 Similar to the cases and law review articles, the citations in the articles and monographs obtained through these searches wer e mined for further sources. Finally, a search was conducted in the database Pro Quest Digital Dissertations ,68 and in the online Social Science Research Network database.69 64 http://www.westlaw.com Ne i ther of these latter two sources yielded any unpublished work similar to this 65 http://www.uflib.ufl.edu 66 http://www.uf lib.ufl.edu/ejournal 67 http://www.uflib.ufl.edu/ERIC 68 http://www.lib.umi.com/dissertations/gateway 69 http://www.ssrn.com

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29 w ork, but some dissertation works were identified as being of direct or indirect assistance in identifying scholarly trends in the area. Outline of the Study The goal of this study was to identify and explain interpretive patterns existing in judicial r eview determinations in education finance adequacy litigation, as well as to propose a procedural reform that might be used to improve judicial reasoning in this area. In pursuit of this goal, this study proceeded through six chapters. Chapter One introduced the study and its methodology and data sources. Chapter Two reviewed education finance scholarship attempting to explain the outcomes or judicial decision making in litigation presenting theories of adequacy, with particular focus on legal and educat ional research scholarship addressing the separation of powers and judicial review in such litigation. The goal of Chapter Two was to place the current adequacy based reform strategy into the proper historical and doctrinal context, as well as to illumina te the absence of similar scholarship addressing the topic of this study. Chapter Three presented the definition of the data set used in this study, as well as the methodologies employed in analyzing these data. Chapter Four reported the results of the quantitative analyses analyzing the relationship between state constitutional language relating to the separation of powers and court determinations of whether to engage in merits based review of state education finance litigation. Chapter Five presented the legal case analysis of the same set of published state level highest court opinions to determine whether patterns of judicial reasoning existed that impacted courts willingness to engage in judicial review in adequacy litigation. Finally, Chapter Six concluded the study by interpreting the results of the foregoing analyses as revealing a systemic interpretive problem in judicial decision making when courts were faced with adequacy based education finance litigation. Based on this interpretive

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30 problem Chapter Six proposed a reform to the political question doctrine that would account for such judicial behavior while improving judicial decision making in education finance cases and potentially in other litigation presenting constitutional challenges ba sed on positive rights and affirmative constitutional duties. The study concluded with some suggestions as to how this reform could be further developed through future research.

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31 CHAPTER 2 REVIEW OF THE LITERA TURE This Chapter reviews the state of the sc holarly literature relating to judicial decision making in education finance adequacy litigation. This Chapter concludes by identifying the absence of empirical education finance scholarship examining separation of powers principles in this area of study, as well as the lack of attention in normative and critical education finance scholarship to issues of judicial review and separation of powers principles. Empirical Scholarship Examining Factors Influencing Education Finance Litigation Outcomes Existing s cholarship relating to judicial decision making in education finance adequacy litigation has attempted to determine the legal factors and the political factors that might influence the outcomes of such litigation. Some scholars have analyzed these potenti al influences empirically and descriptively, attempting to look backward for explanations for overall case outcomes. Others have looked forward and laterally, employing normative and critical analyses of the appropriate influences that these legal and pol itical factors should or should not have on overall case outcomes. Much of the research in both areas has focused on a small subset of the larger population of decided adequacy cases typically whichever few cases were most recently decided at the time and those not limited in this way have generally included analyses of all education finance litigation, rather than focusing on adequacy based cases. No scholarship was identified focusing on judicial decision making in early procedural stages of adequacy l itigation. At most, the existing studies merely point out that some courts dismiss adequacy based constitutional challenges for procedural reasons. The overwhelming majority of normative and critical studies focus on the ultimate outcomes of these challe nges, directing their attention primarily to cases in which the courts reached the constitutional

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32 challenge on the merits and employing critical analyses of the remedial orders. As to the empirical scholarship, the studies generally examine the influence of different legal and political factors on either (1) the ultimate outcomes of cases; or (2) the remedies imposed in cases leading to plaintiff verdicts. The review of this scholarship began with the empirical studies. Dominant Theories of Judicial Beh avior Scholars have generally recognized two main theories of the factors that influence judicial decision making. The first of these is generally termed the legal perspective theory1 or the legal subculture theory.2 In its purest form, the legal per spective theory, associated with the legal formalist theoretical approach to judicial review, posits that judges make decisions in litigation from a purely legal perspective.3 That is, judges are assumed to decide cases based on the facts presented and th e law applicable to those facts, detached to the extent possible from external political factors and personal preferences.4It is intuitive that judges do not always rely strictly on legal principles and established facts when rendering their decisions. Thus, another theoretical approach to explaining judicial behavior has developed and has become dominant in the literature. This approach is referred to as the political perspective 5 or the democratic subculture.6 1 G. ALAN TARR, JUDICIAL PROCESS & JUDICIAL POLICYMAKING 27071 (3d ed. 2003); s ee also Paula J. Lundberg, State Courts and School Funding: A Fifty State Analysis 63 ALBANY L. REV. 1101, 110506 (2000) (citing HENRY R. GLICK, COURTS, POLITICS, & JUSTICE 291308 (3d ed. 1993) in explaining the continuing relevance of the legal perspective theory). Under this theoretical approach, ju dges are assumed to be political actors, who make decisions based on nonlegal factors, such as 2 ROBERT A. CARP & RONALD STIDHAM, JUDICIAL PROCESS IN AMERICA 283 (5th ed. 2001) (citing RICHARD J. RICHARDSON & KENNETH N. VINES, THE POLITICS OF FEDERAL COURTS (1970)). 3 TARR, supra note 1 at 249. 4 TARR, supra note 1 at 249. 5 TARR, supra note 1 at 249. 6 CARP & STIDHAM, supra no te 2 at 283 (citing RICHARDSON & VINES, supra note 2 ).

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33 their personal attitudes and beliefs, their institutional roles, their interactions with other appellate judges, and the political culture of the states in whic h the courts sit.7The legal perspective theory of decision making is idyllic when considered in the absolute. Most would agree that judges are expected to render their decisions based on the law and facts, and to disassociate themselves from their own p assions and prejudices. Intuitively, however, no human can completely divorce himself from his environment and his personal opinions. Nevertheless, scholars continue to view legal factors as a relevant explanatory variable. 8 Based on the scholarship, the most justifiable position appeared to be that legal factors constitute an important element of judicial decision making, but not a completely determinative one.9 7 See TARR, supra note 1 at 261 62; CARP & STIDHAM, supra note 2 at 291; CHRISTOPHER E. SMITH, COURTS, POLITICS, & THE JUDICIAL PROCESS 137 (1993); GLICK, supra note 1 at 312 13. Still, if a nation were to have laws at all, then the content of such laws should bear some influence on judicial decisions implicating them. Nevertheless, the purpose of this study was not to resolve 8 See, e.g. Yoh ance C. Edwards & Jennifer Ahern, Note, Unequal Treatment in State Supreme Courts: Minority and City Schools in Education Finance Reform Litigation, 79 N.Y.U. L. REV. 326, 334 (2004) (including several legal factors in a multi factor analysis of case outco mes in education finance litigation); Paula J. Lundberg, State Courts and School Funding: A Fifty State Analysis 63 ALBANY L. REV. 1101, 110507 n. 1929 and accompanying text (2000) (explaining the continuing relevance of the legal perspective theory of judicial decision making, despite the recent importance of attidudinal theories and political institutional theories); s ee also Carp & Stidham, supra note 2 at 314. According to the authors, the legal subculture is most predictive of results where the law is clear. This conclusion is, of course, intuitive, but also helpful in organizing research relating to legal principles as a determinant of case outcomes. Recent political science scholarship comparatively analyzing several familiar predictive model s of judicial decision making concluded that most, including the pure legal model (which states that only legal factors influence judicial decision making), have poor predictive value in the separation of powers context, but that a more complex model considering the historical and institutional mission of the judiciary, along with the clarity of legal text it interprets, has significant predictive force. See Katayoun Mohammad Zadeh, THE SEPARATION OF POWERS AND THE SUPREME COURT: A NEW INSTITUTIONAL ANAL YSIS OF INTERBRANCH DISPUTES, 1946 2005 (unpub. dissert., Univ. of S. Calif. Dept. of Pol. Sci. 2005). In the words of the author, the findings of the study indicate that law in fact does matter. Id. at 385 (emphasis in original). 9 See, e.g. Tarr, supra note 1 at 261 (explaining that, although judges appear to be constrained by legal rules, other factors such as political preferences influence their decisions); But see James L. Gibson, From Simplicity to Complexity: The Development of Theory in th e Study of Judicial Behavior 5 POLITICAL BEHAVIOR 7, 9 (1983) (In a nutshell, judges' decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.). Based on Gibsons formulation, judicial decision making can be explained as a function of the political preferences and role orientations of the judges, tempered by the institutional environment within which the courts exist. Although it has not been broadly int erpreted as such, Gibsons formulation appears to leave room for legal factors as part of the feasibility element.

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34 the ongoing debates among the legal traditionalists, the attitudinalists, and the new institutionalists. Rather, this study intended to focus first on a particular overlooked legal factor salient in nearly every education finance adequacy case, analyze its true importance, identify competing legal factors that impact judicial review determinations, and propose ways in which all of these factors can serve a purpose in future litigation. The outcomes of constitutional challenges to state school finance legislation have been analyzed using many different variables within the competing theories of judicial decision making. The variables analyzed under the legal perspective theory have included both the facts of each case and the legal principles enunciated thorough the language of each states education clause. The variables analyzed under the political perspective theory were grouped into two categories. The first included factors external to the judges, such as the political structure of the state, the states judicial selection methods, the demographics of the litigants and the states, and the history of legislative activity relating to educat ion finance. The second category included factors internal to the judges, such as their political affiliations and their beliefs and values. The small number of empirical studies comprehensively addressing education finance litigation generally have examined both legal and political factors together.10 10 See Paula J. Lundberg, State Courts and School Funding: A Fifty State Analysis 63 ALBANY L. REV. 1101 (2000) (conducting a logistic regression analysis including legal factors, demographic factors, and political factors in the context of education finance litigation in general); Karen Swenson, School Finance Reform Litigation: Why Are Some State Supreme Courts Activist and Others Restr ained?, 63 ALBANY L. REV. 1147 (2000) (conducting a similar logistic regression analysis, but defining variables and variable categories somewhat differently from those defined in Lundbergs study); Michael Heise, Preliminary Thoughts on the Virtues of P assive Dialogue 34 AKRON L. REV. 73 (2000) (empirically examining the effectiveness of competing theories of judicial review on remediation of adequacy based constitutional violations); James E. Ryan, The Influence of Race in School Finance Reform 98 MIC H. L. REV. 432, 45556 (1999) (empirically examining the influence of race and other demographic factors on education finance litigation outcomes); Yohance C. Edwards & Jennifer Ahern, Note, Unequal Treatment in State Supreme Courts: Minority and City Schools in Education Finance Reform Litigation, 79 N.Y.U. L. REV. 326 (2004) (conducting a percent difference contingency table analysis of the influence of several variables analyzed in prior empirical analyses of education finance litigation outcomes). The Lundberg and Swenson studies were sharply criticized by Edwards and Ahern for their methodological flaws. Specifically, Edwards and Ahern pointed out that the small size of the samples studied by both Lundberg and Swenson, considered along with the many predictors utilized in their regression models, rendered the statistical reliability of their conclusions suspect. See Edwards & A smaller number

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35 of studies focused on more limited variables, some from the legal perspective and some from the political perspective.11Legal Factors Taken together, these studies offered the only empirical conclusions existing to date relating to the influence on education finance litigation of many of the legal, internal political, and external political categories of variables identified herein. Most empirical studies seeking to identify relationsh ips between case outcomes and independent variables have included as variables factors external to the judges, including the facts before the courts in education finance cases and the applicable legal rules. Several scholars have argued that the relative strength of the language of a states education clause12 ought to determine the outcome of adequacy litigation in relation to outcomes in other states.13 However, little scholarship has been able to identify a relationship between the language of a state education clause and the outcome of education finance litigation in that state.14 Ahern, supra at 333 n. 41. These methodological objections were one factor motivating Edwards and Ahern to attempt to replica te the conclusions of Lundberg and Swenson. See id. and accompanying text. One of the stated purposes of the Edwards and Ahern study was also to replicate the analysis performed by Ryan. See id. In an early 11 One study examined only legal factors. Bill Swinford, A Predictive Model of Decision Making in State Supreme Courts: The School Financing Cases 19 AM. POL. Q. 336, 347 (1991) (analyzing the influence of education clause language on case outcomes). Two studies examined only attitudinal factors and their inf luence on outcomes of education finance litigation. See Michael P. Vriesenga, Judicial Beliefs and Education Finance Adequacy Remedies unpublished dissertation (2005) (on file with Vanderbilt University Library) (examining the influence of judicial political attitudes on the content of remedial orders); William S. Koski, The Politics of Judicial Decision Making in Education Policy Reform Litigation 55 HASTINGS L. J. 1077, 1083 (2004) (examining the influence of judicial ideology on case outcomes in Ohio and Wisconsin). 12 Classification of state education clauses by the relative strength of their text was first suggested by Grubb in his 1974 article, Breaking the Language Barrier: The Right to Bilingual Education, 9 HARV. C.R. C.L. L. REV. 52, 66 70 (1 974), and was first accomplished by Ratner in his 1985 article, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills 63 TEX. L. REV. 777 81416, n. 143146 (1985). The most authoritative statement of this typology is found in William Thros 1993 article, The Role of Language of the State Education Clauses in School Finance Litigation, 79 ED. L. REP. 19, 2325 (1993). 13 See Thro, supra note 12 at 22; Jonathan Banks, Note, State Constitutional Analyses of Public School Financ e Reform Cases: Myth or Methodology?, 45 VAND. L. REV. 129, 15354 (1992); William E. Thro, To Render Them Safe: The Analysis of State Constitutional Provisions in Public School Finance Reform Litigation, 75 VA. L. REV. 1639, 166169 (1989). 14 James E. R yan, The Influence of Race in School Finance Reform 98 MICH. L. REV. 432, 45556 (1999); William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation, 14 J. L. & POL. 525, 540

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36 political science study, Swinford identified a positive relationship between state education clause language and case outcomes.15 Swinfords study analyzed the ca ses decided from 1971 through 1989, and the typology he used to classify the relative strength of the state education clauses differed from the one generally accepted in the education finance scholarly community.16 Nevertheless, his findings lent some support to the thesis that a states education clause language matters, at least in primarily equity based litigation.17 Lundberg identified a strong positive relationship between strength of education clause language and case outcomes, but only in cases where the courts rendering a verdict against the state principally relied on the education clause (rather than some other constitutional provision) in making their decisions. 18 (1998); Julie K. Underwood, School Finance Lit igation: Legal Theories, Judicial Activism, and Social Neglect 20 J. EDUC. FIN. 143, 150 (1994). Thus, the implications of Lundbergs conclusions were very limited. Specifically, b ecause the analysis focused on cases in which the majority deciding judges principally relied on the education clause and rendered or upheld a verdict against the state, then a finding that the education clauses language did not influence the outcome woul d be surprising 15 Bill Swinford, A Predictive Model of Decision Making in State Supreme Courts: The School Financing Cases 19 AM. POL. Q. 336, 347 (1991). 16 Swinford, su pra note 15, at 340 41. 17 Swinfords studys time period encompassed primarily cases decided within the second wave of education finance litigation. See id. ; see also William Thro, Judicial Analysis During the Third Wave of School Finance Litigation: Th e Massachusetts Decision as a Model 35 B.C. L. REV. 597 603 (1994) (outlining the waves of litigation based education finance reform). Because of this timing, Swinfords conclusions should be viewed with care. Many courts examining claims during the second wave of education finance litigation did not address the education clause in their decisions, as most of these cases were founded on theories of equity and were brought pursuant to the states equal protection clause. Thro, supra Thus, the identi fied relationship between education clause language and case outcomes could have been a mere coincidence. This conclusion seemed particularly plausible due to the failure of later scholarship to identify a clear relationship. 18 Paula J. Lundberg, State Courts and School Funding: A Fifty State Analysis 63 ALBANY L. REV. 1101, 113335 (2000).

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37 indeed.19 Moreover, contemporaneous scholarship by Swenson examining the same set of cases at a more general level reached the opposite conclusion.20Karen Edwards and Yohance Ahern attempted to replicate these results, combining the facto rs analyzed by both Lundberg and Swenson with certain demographic factors studied by Ryan, as described herein, while also adding the factor of the numerosity of the plaintiffs in each case. 21 Like Swenson, Edwards and Ahern were unable to identify a rel ationship between education clause language and case outcomes.22These and other scholars have expressed puzzlement at this lack of relationship; intuitively, it should be much easier for a legislature to meet its constitutional obligation in a state with less demanding education clause language than in a state with more demanding 19 See Lundberg, supra note 18, at 1133 (explaining that, to create a modified education clause variable, she multiplied the initial education clause variable by one if the court rendered a judgment in favor of the plaintiffs and relied primarily on the education clause, and zero if the court either rendered a judgment for the state or rendered a judgment for the plaintiffs without relying primarily on the education cl ause). This codification would include both state and plaintiff verdicts in the zero category, and would conflate plaintiff and defendant judgments in equity claims with defendant judgments in adequacy claims. 20 Karen Swenson, School Finance Reform Li tigation: Why Are Some State Supreme Courts Activist and Others Restrained?, 63 ALBANY L. REV. 1147, 117475 (2000). Defenders of Lundbergs conclusion might point out that the analysis would be meaningless if it focused on cases not explicitly interpreti ng the education clause, but because a sizeable portion of the education finance cases that have reached the highest court of a state do not engage in merits review (or invalidate lower court merits review) of the state constitutional provision, any conclu sion that the language of the education clause has a general influence on outcomes would have to be discounted accordingly. Put another way, courts dismissing litigation grounded on the language of the education clause due to separation of powers concerns are not likely to principally rely on the education clause, as the clauses terms are generally held to be non justiciable in such cases. Accordingly, framing the unit of study as cases in which courts have principally relied on the education clause remo ved about one third of the cases from the analysis, and it is this third that might have eliminated the significant effect ostensibly caused by the differences in state constitutional language. To be fair, though, the Lundberg study was published prior to several of the more recent separation of powers dismissals, and this fact alone may indicate that the education clause factor should be revisited empirically. Still, it is telling that the contemporaneous Swenson study and the more recent Edwards and Ahe rn study, which both used more general groupings, came to the opposite conclusion. See Swenson, supra ; Edwards & Ahern, infra note 21. 21 Yohance C. Edwards & Jennifer Ahern, Note, Unequal Treatment in State Supreme Courts: Minority and City Schools in E ducation Finance Reform Litigation, 79 N.Y.U. L. REV. 326 (2004). 22 Edwards & Ahern, supra note 2, at 349 50.

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38 education clause language.23 However, it may be that the relative strength of the subjective terms in a states education clause has had no demonstrable relevance to outcomes i n education finance cases in general because about onethird of such cases have not proceeded to a substantive interpretation of the constitutional language, but were instead ultimately dismissed on procedural grounds rooted in the separation of powers.24One of the studies referenced, the Edwards and Ahern study, also analyzed whether relationships existed between case outcomes and other legal factors, such as the legal theories presented to the court (i.e., equity versus adequacy). 25 Edwards & Ahern categ orized the theory presented to each court by proxy, based on the wave of litigation in which the case was presented.26 The authors concluded that the dominant theory of constitutional violation presented to the court did not have a significant influence on case outcomes.27 23 Edwards & Ahern, supra note 21, at 334; see also Lundberg, supra note 10; Swenson, supra note 10; Thro, supra note 12. 24 Neb. Coalition f or Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164 (Neb. 2007) (dismissing adequacy litigation as non justiciable) ; Okla. Educ. Assn v. State, 158 P.3d 1058 (Okla. 2007) (same) ; Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005) (declining to in validate the states education system due to the failure of the plaintiffs to show that legislative action was irrational) ; Ex Parte James, 836 So. 2d 813 (Ala. 2002) (dismissing ongoing adequacy litigation as non justiciable) ; Marrero v. Com., 739 A.2d 110 (Penn. 1999) (dismissing adequacy litigation as non justiciable) ; Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996) (same) ; Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996) (same) ; City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995) (same); see also Campaign for Fisc. Equity v. State, 861 N.E.2d 50 (N.Y. 2006) (declining to invalidate the governors chosen remedy for a previously identified adequacy based constitutional violation due to separation of powers concerns, considered fully for the first time in the remedial phase); Neely v. W. Orange Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746, 779, 78485(Tex. 2005) (considering and rejecting explicit separation of powers concerns, but refusing to inval idate the state system because the plaintiffs failed to show that it was arbitrary ); Roosevelt Elem. Sch. Dist. v. State, 74 P.3d 258, 266 67 (Ariz. 2004) rev. denied (Jan. 7, 2004) (reaching the merits without explicitly considering the separation of po wers, but deciding for the state due to the local districts failure to show that the alleged inadequacy in funding actually caused decreases in student performance). 25 Edwards & Ahern, supra note 21, at 334. 26 The use of the word wave is common to researchers describing education finance litigation. The usage comes out of a classic article by Thro, in which the historical trends in education finance litigation were divided into three distinct waves, beginning with federal equal protection litiga tion, then moving to state litigation presenting theories of educational equality or equity, and ending with the dominant current approach, employing theories of educational adequacy. See William E. Thro, The Third Wave; Implications of the Montana, Kentucky, and Texas Decisions for the Future of Public School Finance Reform Litigation, 19 J. L. & EDUC. 219 (1990). Scholars have generally adopted Thros typology since the publication of the 1990 article. See generally Michael Heise, State

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39 All three of these studies further tested for relationships between case outcomes and case facts, such as per pupil spending, wealth disparities, revenue sources, and average teacher salary levels.28 The findings relating to case facts variables were mixed, similarly to those relating to education clause language.29 Swenson concluded that existing state per pupil expenditures levels were weakly significant positive predictors of the likelihood of plaintiff verdicts in education finance cases, but that the states level of reliance on local funding sources and the size of gaps in property wealth among its districts were not significant predictors of case outcomes.30 Both the Lundberg and the Edwards and Ahern studies found no relationships between these variables and case outcomes.31In two of the three comprehensive studies, the variation in facts among the cases ultimately reaching highest state courts had no meaningful impact on the outcomes of the cases. While Swenson found a signifi cant relationship related to the exiting level of per pupil expenditures, this effect was subject to some question. Swenson identified a relationship whereby courts in states with lower existing per pupil expenditures at the time of litigation were more likely to overturn the school finance systems in these states. 32 Constitutions, School Finance Litigation, and the Third Wave: From Equity to Adequacy 68 TEMP. L. REV. 1151 (1995). However, this proxy classification might not be an accurate representation of the legal theory presented in each case because pure equity cases can occur in the new era of adequacy. Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS: THE LEGAL PURSUIT OF EDUCATIONAL ADEQUACY 322 (Martin R. West & Paul E. Peterson, Eds. 2007). However, since the publication of her study, school financing systems in several highspending states have been overturned, while 27 Edwards & Ahern, sup ra note 21, at 350. 28 Edwards & Ahern, supra note 21, at 350; Lundberg, supra note 10, at 1133; Swenson, supra note 10, at 115962. 29 Edwards & Ahern, supra note 21, at 350; Lundberg, supra note 10, at 1133; Swenson, supra note 10, at 117475. 30 Swenson, supra note 10, at 117475. 31 Edwards & Ahern, supra note 21, at 350; Lundberg, supra note 10, at 1133. 32 Swenson, supra note 10, at 117475.

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40 some lower spending states have experienced the opposite.33Political Factors External to Judges At a minimum, Swensons findings on this point should be revisited, both due to the potential dynamic changes wrought by recent cases and due to the initial weakness of the identified effect. Scholars have predict ed that the political characteristics of the states in which court decisions are rendered should have great influence on the outcomes of cases.34 Indeed, such relationships have been identified as to certain variables in education finance cases. For examp le, in her 2000 study, Lundberg found that courts in states with what she termed traditionalistic, as opposed to moralistic or individualistic, cultural demographics were more likely to strike down education systems, and that states with fewer urban residents were also more likely to see the education system invalidated.35 Similarly, Swenson found a positive relationship between the liberalism of the states populace and the likelihood that a states courts would overturn the states education fundi ng system, and this effect did not depend on political factors such as the method of selecting judges or the political party of the governor.36 33 See, e.g. Okla. Educ. Assn v. State 158 P.3d 1058 (Okla. 2007) (in which the Supreme Court of Oklahoma, one of the lowest spending states in the nation, dismissed an adequacybased challenge on separation of powers grounds); Campaign for Fiscal Equity, Inc. v. State, 801 N.E.2d 326 (N.Y. 2003) (in which the Court of Appeals, the highest court in New York State, one of the highest spending states in the nation, ordered the General Assembly to commission a costing out study to determine the cost of a sound basic education, as interpreted by the Court, and as found by the Court not to exist in the plaintiff districts). Data comparing the current per pupil expenditures of the several states was located at School Finance in QUALITY COUNTS (2009), available at: http://www.edweek.org/go/qc09 (last accessed Jan. 30, 2009). Edwards and Ahern corroborated these findings as to cultural demographic factors, but found that these effects w ere greatly influenced by the presence of plaintiffs from predominantly urban 34 See, e.g. Melinda Gann Hall & Paul Brace, Justices Responses to Case Facts: An Interactive Model 24 AM. POL. Q. 237, 244 (1996) (constructing a predictive model based on such factors). 35 Lundberg, supra note 10, at 1142. 36 Swenson, supra note 10, at 117778.

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41 districts, who were far less likely to succeed in education finance litigation than those from suburban districts, unless they joined forces, which improved the odds of success f or both.37One demography based study was notable due to its troubling conclusions. Ryan found a negative relationship between the predominance of minority races in the school districts that were plaintiffs in school finance litigation and the success of reform mandates issued after judgments against the state in education finance cases. 38 This relationship was primarily based on legislative recalcitrance to court judgments already issued in favor of plaintiffs, rather than the actual case outcomes themselves, so it did not necessarily fit the literature reviewed herein.39 Nevertheless, Edwards and Ahern corroborated Ryans finding in the context of a racial effect on actual case outcomes. Interestingly, though, they found that this effect was influenced by several of the other measured factors and that it was overshadowed by the urbansuburban effect.40 Further, the implications of all of the education finance studies related to demographic and political factors were limited because each study examined bo th equity based and adequacy based cases. No such studies have limited themselves to adequacy based litigation, which should implicate different legal, cultural, and political values than equity based litigation, such that eliminating pure equity cases fr om the analysis might change the identified results.41 37 Edwards & Ahern, supra note 21, at 351. 38 Ryan, supra note 14, at 471 72. 39 Ryan, supra note 14, at 471 72. 40 Edwards & Ahern, supra note 21, at 34950. 41 See, e.g. Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS: THE LEGAL PURSUI T OF EDUCATIONAL ADEQUACY 324 (Martin R. West & Paul E. Peterson, Eds. 2007) (explaining that separation of powers issues are plainly relevant in adequacy litigation). Some scholars have begun to analyze whether adequacy litigation, as a separate catego ry of litigation, even exists. See, e.g. James E. Ryan, Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 122526 (2008); Richard Briffault, Adding Adequacy to Equity: The Evolving Legal Theory of School Finance Reform 4 8 (Working Paper 2006), available at http://ssrn.com/abstract=906145 (last visited Nov. 22, 2008). These scholars have argued that litigation said to be founded on theories of adequacy usually merely masks an underlying equity based claim. These developing argument s have strong force. However, as argued infra it is equally plausible that, in cases where equity claims

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42 The research based on political factors external to the judges deciding education finance cases has thus far yielded few significant findings. Swenson found that judicial selection procedures (i.e., whether judges in each state were elected or appointed) had no significant influence on the outcomes of education finance cases.42 This result, like many others in the empirical scholarship in this area, was counter intuitive because of the obvious politic al implications of education finance adequacy rulings. For example, education finance decisions have in the past arguably resulted in majoritarian political revolts of which most state judges must be aware.43 Nevertheless, Lundberg came to a conclusion si milar to that of Swenson.44 In fact, Lundberg also found that neither term length nor the political partisanship of judicial selection was significantly related to case outcomes in education finance litigation.45 In contrast, Edwards and Ahern identified a relationship between judicial selection procedures and case outcomes.46 They found that, in states where judges were elected, plaintiffs were slightly more likely to win than in states where judges were appointed.47 masquerade as adequacy claims, the negative rights equity component emerges as a means for the court to engage in merits review without truly confr onting the separation of powers concerns made plain by most state education clauses. However, as was true with their other f indings of relationships, this finding was difficult to interpret because it resulted from a simple 42 Swenson, supra note 10, at 1174. 43 See, e.g. William A. Fischel, How Serrano Caused Proposition 13, 12 J. L. & POL. 607 (1996) (reviewing Californias tax revolt that resulted directly from the state Supreme Courts decision in Serrano v. Priest which led to higher state property taxes, which in turn led to the popular passage of Proposition 13, a very strict property tax limitation measure). 44 Lundberg, supra not e 10, at 113738. 45 Lundberg, supra note 10, at 1138. 46 Edwards & Ahern, supra note 21, at 349. 47 Edwards & Ahern, supra note 21, at 34950.

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43 cross tabulation percent difference analysis in which the authors specified their criteria for the existence of a relationship somewhat arbitrarily.48One final conclusion as to external political factors was notable. In their study, Edwards and Ahern identified an intriguing and apparently strong relationship between the size of each plaintiff class (i.e., how many school districts joined as plaintiffs in each case) and the outcomes of the cases. 49 To date, the Edwards and Ahern study is the only one to have included this variable, and their results suggest that coalition building may be important to success.50Political Factors Internal to Judges The studies examining factors internal to the judges deciding adequacy based cases were somewhat sparse. Lundberg analyzed the influence of the political party affiliations of judges on the outcomes of all state education finance cases.51 After conducting logistic regression analyses including many other factors, Lundberg was unable to identify any significant relationship between party affiliation and case outcomes.52This failure to find a relationship involving political affiliation, although initially surpris ing, could be explained by the fact that educational policy tends to transcend political divisions. That is, a Republican may be no less likely than a Democrat to support increases in education funding or reform of educational policy in general. Evidence for this view can be 48 See Edwards & Ahern, supra note 21, at 348 ( To determine what merits discussion, the authors decided a priori th at discussion was warranted whenever there was more than a 10.0% difference between two of the groups for categorical variables. For continuous variables, when the authors found a difference of more than 30.0% between the overall mean, and the mean for the cases that won or for those that lost, and 30.0% represented a substantial difference in the means, they considered it a meaningful magnitude of association. ). 49 Edwards & Ahern, supra note 21, at 350. 50 Edwards & Ahern, supra note 21, at 350. 51 Lundbe rg, supra note 10, at 1118. 52 Lundberg, supra note 10, at 1136.

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44 found in the recent, Republicanled, but bi partisan, enactment of the federal No Child Left Behind Act,53 which greatly enlarged the federal role in education policy and substantially increased federal funding of education, both of wh ich are policy results that would traditionally be disfavored by Republican politicians. As a result of the failure of the reported studies to link judicial decision making in education finance litigation to political affiliations, legal scholars have recently attempted to move beyond the inappropriate proxy of political labeling and examine the influence of personal judicial political attitudes on the outcomes of education finance adequacy cases, employing the technique of attitudinal modeling.54Attitudinal modeling of judicial decision making is well known to political science and education policy researchers. 55 Most studies employing attitudinal modeling have found significant relationships between modeled judicial attitudes and case outcomes, although the vast majority of such studies have focused on the United States Supreme Court and its decisions.56 Few of these studies have addressed statecourt decision making,57 53 No Child Left Behind Act of 2001 (NCLB), Pub. L. 107110, 115 Stat 1425 ( January 8, 2002 ) (now codified as part of the Elementary and Secondary Education Act of 1965 (the ESEA), 20 U .S.C. 6301 et seq. (2008)). and only two attitudinal 54 Interestingly, other models of judicial behavior favored by political scientists have not been used as analytical frames in education finance scholarship as of yet. As explained by Mohammad Zadeh, these models include the strategic model, a game theoretic approach which holds that judges exhibit self interested rational choices in an effort to maximize their personal goals and interests while operating within the confines of their institutional roles; the ruling coalition model, which posits that, on multijudge appellate courts, the court as a whole tends to follow a sub group of elite ideological leaders within the court, despite the political orientation of the court as a whole; and the historical new institutionalist model, which explains that judicial personal preferences and concepts of role are shaped and determined by the institution of the judiciary itself, in that judges internalize a shared mission and act to further this mission, whether consciously or unco nsciously. See generally, Mohammad Zadeh, Katayoun, The Separation of Powers and the Supreme Court: A New Institutional Analysis of Inter Branch Disputes 1946 2005 1849 ( Unpublished Dissertation, University of Southern California, 2007). 55 See, e.g. Tarr, supra note 1 at 266; Carp & Stidham, supra note 2 at 34950. 56 See generally, Lori Ringhand, Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Natural Court 24 CONST. COMMENT. 43 (2007); J. A. Segal & H. J. Spaeth, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002); J. A. Segal & Avidan J. Cover, Ideological Values and the Votes of Supreme Court Justices 83 AM. POL. SCI. REV. 557 (1989). 57 See Michael P. Vriesenga, JUDICIAL BELIEFS AND EDUCATION FINANCE ADEQUACY REMEDIES, unpub. dissertation, Vanderbilt U., Dept. of Lead. & Poly Stud. (2005) (citing Kenneth M. Dolbeare, TRIAL COURTS IN

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45 studies have thus far been completed relating to education finance adequacy cases.58 The first, an unpublished dissertation, was itself limited to linking judicial attitudes to the remedies imposed by the highest state courts after deciding adequacy challenges in favor of plaintiffs, rather than each cases merits based outcome on the constitutional question.59 In this dissertation, Vriesenga found a significant relationship between judicial beliefs about education, as modeled in the dissertation, and the size and nature of the remedies awarded in successful educat ion finance challenges.60In the second of the two studies, an indepth and rigorous case study, Koski identified a relationship between the liberalism of a state court, as modeled based on prior noneducation related decisions, and case outcomes. 61 However, similarly to Vriesenga, Koski limited his case study to two (albeit a wellselected two) state high court decisions, those in Ohio and Wisconsin.62 Thus, the conclusions of both studies were difficult to generalize. Several other education finance s cholars have suggested that judicial attitudes, beliefs, or philosophies are the most likely explanation for the outcomes of education finance litigation,63 URBAN POLITICS: STATE COURT POLICY IMPACT AND FUNCTIONS IN A LOCAL POLITICAL SYSTEM (1967) as an example of one such st udy). but no empirical 58 Vriesenga, supra note 57; William S. Koski, The Politics of Judicial Decision Making in Education Policy Reform Litigation 55 HASTINGS L. J. 1077, 1083 (2004). 59 Vriesenga, supra note 57, at 219. 60 Id. 61 Koski, supra note 58, at 1083. 62 Id 63 See, e.g. Karen Swenson, School Finance Reform Litigation: Why Are Some State Supreme Courts Activist and Others Restrained? 63 ALBANY L. REV. 1147, 117879 (2000) (concluding that education finance decision making might be predicted only based on t he whimsy of state supreme courts); William Thro, The Third Wave: The Impact of the Montana, Kentucky, and Texas Decisions on the Future of Public School Finance Reform Litigation, 19 J OF L & EDUC. 219, 235 (1990) (concluding that two rulings from the s ame states highest court, one of which upheld the states education finance system and the other of which invalidated the same system, could only be justified by an intervening change in the courts membership).

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46 studies other than Vriesengas and Koskis exist in the scholarly literature to dat e. Nevertheless, the limitations of these types of analyses have subjected them to much criticism.64First, absent some sort of survey instrument or unfettered access to the private papers of each judge studied (options which would each present logisti cal problems), judicial attitudes can only be modeled based on what jurists say publicly, and far fewer public statements of state court judges exist than do public statements of the justices of the United States Supreme Court. Because of this fact, Vri esenga, for example, was forced to glean the jurists attitudes analyzed in his study from the very opinions awarding the remedies that he was analyzing, many of which were stated in dissents and special concurrences. 65Analyzing based on statements made in other education cases, or in noneducation cases, as Koski did, Basically, then, the conclusion that a relationship existed amounted to a finding that judges who indicated that they would decide a certain case a certain way in the opinion deciding that case did, in fact, tend to vote in conjunction with their statements. 66 64 See, e.g. Brian Z. Tamanaha, The Distort ing Slant in Quantitative Studies of Judging 50 B .C. L. Rev 685, 689 98 (2009) ; Carolyn Shapiro, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court 60 HAST. L. J. 477 (2009); Joshua B. Fischman & David S. Law, What is Judic ial Ideology and How Should We Measure It? available at: http://ssrn.com/abstract=1121228 ( last visited December 5, 2008 ). might prove more fruitful, but court memberships change far more rapidly in state courts than on the United States Supreme Court, so it would be difficult to identify such prior stat ements in significant number to form a reliable model of judicial beliefs from one set of cases to the next. Perhaps further, more comprehensive research including more than a few states will illustrate whether the attitudinal effect is general or more limited. In any event, 65 Vriesenga, supra note 57, at 121, 13638. 66 See Koski, supra note 58.

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47 another more practical limitation to attitudinal research has necessitated the continuation of other approaches. Assuming that judicial beliefs can be accurately gleaned and categorized from the reasoning appearing in state court ed ucation finance opinions, or from the reasoning or dicta of unrelated cases with strong political implications, the conclusion that judges tend to vote based on what they believe, in addition to (or rather than) based on the facts before them or the legal rules applicable to the case, is not very helpful to policy makers, or even to the courts themselves, in the absence of consistent legal doctrine that might make such attitudinalism readily apparent on a caseby case basis. Policy makers cannot force judges to ignore their beliefs. Judges might be shamed into ignoring their own beliefs, or they might be punished at the ballot box for failing to do so, but without consistently and predictably applicable legal doctrine, the failure of judges to ignore their beliefs would be detectable only through further attitudinal modeling. If, however, a consistent legal doctrine were to exist governing the rigorousness of judicial review, then judges seeking to abstain from review at one extreme, or to order policy di rective remedies at the other extreme, would have to justify such actions based on the existing consistent legal doctrine through their judicial opinions, which might be viewed as a check on attitudinalim.67 67 Glick, supra note 1, at 307. Considering the salience of separation of powers concerns particularly in education finance adequacy litigation, the legal doctrine serving this function might be more effective if it were grounded in separation of powers doctrine. With this principle in mind, both descriptive scholarship and normative /critical scholarship examining the role of separation of powers doctrine in education finance litigation were reviewed.

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48 Empirical Scholarship Addressing Separation of Powers Doctrine as a Legal Factor in Education Finance Litigation To date, only one published empirical study has attempted to directly address the effects that separation of powers concerns have had on education finance litigation.68 In that study, Heise examined the comparative effectiveness of two competing dialogic approaches to judicial review in education finance adequacy litigation. In general terms, the dialogic approach to judicial review posits that court involvement in this controversial and policy laden area will be far less suspect, and far more effective, if courts refrain from specifically ordering any remediation of an identified constitutional violation.69 Heise divided dialogic approaches used by courts in three states into active approaches and passive approaches and examined a sample of recent education finance adequa cy cases in these states to determine whether a courts tendency to engage in active dialogue or passive dialogue with the other branches in crafting a remedy to a constitutional violation had any influence on the effectiveness of such remedies.70In Heises study, active dialogue was exemplified by courts that, after reaching the merits of education finance litigation and finding a constitutional violation, chose to provide specific guidance as to the contours of mandated legislative remedial actio n. 71 68 Michael Heise, Prelimin ary Thoughts on the Virtues of Passive Dialogue 34 AKRON L. REV. 73 (2000). Such guidance, as part of active dialogue, would take the form of either exemplification, which would involve a courts suggestion as to a policy that would achieve the proper constitutional standard, or demarcation, which would clarify the point pa st which a policy would violate the constitutional 69 See infra this Chapter, for discussion of the normative foundations of this approach. 70 Heise, supra note 68, at 75 76. 71 Id. at 87.

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49 standard.72 Passive dialogue would exist in education finance litigation if a court were to reach the merits and find a constitutional violation, but decline to provide the legislature with any guidance in remedying the violation.73 Heise limited his study to three lines of education finance cases that he determined were exemplars of the two approaches.74Examining the Robinson/ Abbott line of cases in New Jersey and the Edgewood line of cases in Texas as exemplars of active dialogue and the McDuffy /Hancock line of cases in Massachusetts as the exemplar of passive dialogue, Heise examined whether one or the other approach appeared to effectuate the stated goals of those who advocate active judicial involvement in education finance cases, namely increasing democratic participation and inter branch cooperation. 75 Ultimately, Heise concluded that, based on his limited sample of exemplars, the passive model was paradoxically more successful at achieving t he stated goals of those who favor the active model.76This result would have been counter intuitive to those who would accept the premises advanced by most scholars of judicial review and constitutional decision making in state courts. As several of t hese scholars have argued, from an institutional perspective, state courts appear to be better suited for more active models of judicial review than the federal courts, which have 72 See id. at 80 (explaining exemplifica tion and demarcation as judicial dialogic tools). The latter function demarcation can be considered a synonym for the signaling function that was identified in this study as very important to public rights litigation and as the main characteristic disti nguishing public rights litigation from the more familiar negative rights litigation. See infra Chapter 6. 73 Heise, s upra note 68, at 104; see also George D. Brown, Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions 35 B.C. L. REV. 543 (1994) (advocating an active dialogic approach); Larry J. Obhof, Rethinking Judicial Activism and Restraint in State School Finance Litigation, 27 HARV. J. L. & PUB. POLY 569, 57273 (2004) (advocating a passive dialogic approa ch). 74 See Heise, s upra note 68, at 13 15. 75 See Heise, s upra note 68, at 87 88 (explaining Kaytals defense of active judicial dialogue through advisory opinions) (citing Neal K. Kaytal, Judges as Advicegivers 50 STAN. L. REV. 1709, 1715 n.24 (1998)) 76 Heise, s upra note 68, at 104 05.

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50 taken a very restrictive posture toward education finance litigation.77 Thus it would seem to follow that more active forms of review than that practiced by the federal courts should work better in state courts at achieving particular policy outcomes. Taken in isolation, Heises findings on passive dialogue would seem to support this conclusion, although paradoxically, the effectiveness of judicial dialogue does not have a direct relationship with the level of judicial activity, as Heises findings comparing passive with active dialogue show. It would be interesting to see the s ame study replicated, but including cases from states whose courts completely abstained from review. It may be that education funding and outcomes have improved in at least some of these states despite the lack of any court involvement.78Heises study c oncluded that, rather than achieving the stated goals of those who favor active dialogue, more activist judicial review actually worked as a detriment to these goals, creating far more conflict, mistrust, and diminishment of judicial capital than did the more passive form of judicial dialog. The results of Heises study, though limited, suggested that the mainstream view of inter branch relations in the governments of the several states was mistaken. However, Heises study was very limited, not just because he only considered three lines of cases, but also because all three lines of cases involved what some scholars would call active or even activist judicial review, meaning the willingness to engage in merits review of claims 77 See generally, Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001); Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 Harv. L. Rev. 1131 (1999); Johnathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government, 24 Rutgers L.J. 1057 (1993); Burt Neuborne, Foreward: State Constitutions and the Evolution of Positive Rights 20 Rutgers L.J. 881 (1989). 78 For example, it appears that the people of Florida have managed to enact certain policy reforms that might otherwise have been sought in litigation, such as smaller class si zes, despite the fact or perhaps due to the fact that that Florida Supreme Court completely abstained from the lone adequacy based suit brought in that state. See Scott R. Bauries, Floridas Past and Future Roles in Education Finance Reform Litigation, 32 J. EDUC. FIN. 89, 103 (2006) (holding this popularly enacted reform out as an example of a nonjudicial education reform).

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51 presenting political ques tions.79Further, since Heise published his study in 2000, two of his exemplar courts, the Texas exemplar of active dialogue and the Massachusetts exemplar of passive dialogue, have issued recent rulings retreating from involvement with the ongoing litigation in their states. Thus, further refinement of Heises conclusions may be necessary. 80 In Texas, the Court, ruling on the latest adequacy based iteration of the Edgewood line of cases, now known as Neely v. West Orange I.S.D., recently held that the st ate system was not in violation of the states education clause because the plaintiffs had not shown that legislative action in establishing it was arbitrary.81In Massachusetts, in a fragmented opinion, the Court dismissed the most recent iteration of its McDuffy line of cases, now known under the Hancock v. Commissioner of Education caption. 82 In issuing its order, the Court split itself into one plurality concurrence of three justices favoring dismissal due to the failure of the plaintiffs to establish arbitrary action on the part of the General Assembly, much like the Texas Court.83 A separate two justice dissent argued that the previous McDuffy line of cases should be overruled because educational adequacy should be viewed as nonjusticiable.84 79 See William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation, 1 4 J.L. & POLY 525, 530 (199 8) (setting up a dichotomy of activism and abdication in education finance decisions, based on court that, relatively, apply their own preferences instead of state constitutional language, or dismiss based on separation of powers concerns); Larry J. Ob hof, Rethinking Judicial Activism and Restraint in School Finance Litigation 27 HARV. J. L. & PUB. POLY 569, 58586 (2004) (adopting Thros dichotomy). One can interpret the promulgation of these 80 Neely v. W. Orange Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746 (Tex. 2005); Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005). 81 Neely, 176 S.W.3d at 784. 82 Hancock 822 N.E.2d at 1134. 83 Hancock 822 N.E.2d at 1140 (Marshall, C.J., concurring). 84 Hancock 822 N.E.2d at 1160 62 (Cowin, J. concurring).

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52 new arbitrariness standards in both states as either a vindication of the passive approach, as both standards were crafted following rulings establishing a constitutional violation and a legislative response, o r as an expression of renewed vigor for judicial restraint based on separation of powers concerns. Normative Scholarship Addressing the Separation of Powers in Education Finance Litigation Although one empirical study has evaluated the effects of dif ferent approaches to judicial review on the success of case outcomes, no empirical studies of education finance decision making have examined separation of powers principles as an external legal factor influencing judicial decision making in these cases. The normative scholarly literature examining the role of the separation of powers in education finance litigation has been burgeoning, however. It has become clear that the separation of powers is a central principle in all education finance litigation, p articularly in adequacy cases,85 and a small but growing body of normative scholarship has begun to explore the implications of that principle. Much of this recent scholarship comes under the banner of examining judicial activism, which may or may not be the appropriate label for the studies to which it is attached.86 85 Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS: THE LEGAL PURSUIT OF EDUCATIONAL ADEQUACY 324 (Martin R. West & Paul E. Peterson, Eds. 2007). 86 The term judicial activism generally refers to the perceived or actual tendency of some jur ists to decide issues not before them or to read their own policy preferences into statutes and constitutional provisions that do not contain such preferred policies as written. See Judicial Activism, BLACKS LAW DICTIONARY, 8TH ED. 862 (2004) (defining judicial activism as A philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decisions .); William E. Thro, A New Approach to State Constitutional Analysis in Scho ol Finance Litigation 14 J. L. & POLY 525, 54043 (1998) (classifying several courts deciding adequacy cases in favor of plaintiffs as exhibiting judicial activism because the courts found content in their education clauses that no fair reading of thes e clauses would reveal). However, the term activism has also been used to describe the failure of courts to exhibit judicial restraint based on separation of powers concerns. See, e.g. Swenson, supra note 10, at 114950 ( Striking d own a statewide sys tem of public school finance is a quintessential example of judicial activism --the least accountable branch of state government overrules the highly visible public policies set by state and local legislative bodies, and uses relatively novel legal preceden t. ).

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53 Beginning in the early 1990s, and in response to the thenrecently decided landmark case of Rose v. Council for Better Education87 in Kentucky, scholars began to examine whether the newly as cendant adequacy based suits would prove preferable to the previously dominant suits presenting equity based theories of relief.88 Several of these studies cited the perception that adequacy suits implicate separation of powers concerns less directly than equity suits as a basis for preferring adequacy as a theory of relief because they do not result in redistributive remedies.89 More recently, this perception has somewhat reversed itself in the literature,90In 1991, McUsic saw in the then emerging adequacy suits the opportunity for courts to eschew the role of super education board or legislative policy maker by focusing their decisions on output, rather than input, measures; namely, the content learning standards that had already been promulgated in each of the fifty states. but early studies took it to be true. 91 McUsic proposed that courts faced with adequacy suits declare the state content standards as the constitutional standard, declare any system where students are not meeting them as unconstitu tional, and order that student achievement be brought up to the articulated standards.92 87 790 S.W.2d 186, 212 (Ky. 1989). Beyond those tasks, she argued, the courts should not dictate any increases in expenditures, but should leave such decisions to the 88 See, e.g. Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307, 327 (1991) (Minimum standards claims are less likely to disrupt local control of schools, pit the judiciary against the legislature, or require legislators to enact a funding scheme that thwarts the interests of their wealthier constituents.). 89 See, e.g. McUsic, supra note 88, at 329 30. 90 See, e.g. Heise, supra note 88 at 104 05. 91 McUsi c, supra note 88, at 330. 92 McUsic, supra note 88, at 330.

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54 legislatures.93 In this way, McUsic argued, courts could avoid the separation of powers concerns that had plagued earlier litigation.94McUsics proposal was based on the language of the rulings of the Kentucky Supreme Court in Rose and the West Virginia Supreme Court in Pauley v. Kelley. 95 Although neither court adopted the states content learning standards as constitutional principle, each court chose to define its state constitutions education clauses requirements in output based terms, indicating that the states school system must be designed to educate children in certain competencies.96 McUsic argued that adopting these types of output standards would prevent courts from acting outside the traditional judicial role through mandating expenditures and revenue raising.97 She even sug gested that courts use achievement test scores to determine whether such standards had been met, and fashion remedies that would require certain performance levels on such tests.98To date, no court has adopted McUsics proposal. 99 93 McUsic, supra note 88, at 330. This outcome likely has resulted from the fact that standards promulgated by state education agencies are difficult to test, and they are 94 McUsic, supra note 88, at 330 31. 95 255 S.E.2d 859, 877 (W.Va. 1979). 96 See McUsic, supra note 88, at 33132 n. 109 (quoting Pauley 255 S.E.2d at 877) & 110 (quoting Rose 790 S.W.2d at 212). 97 McUsic, supra note 88, at 330. 98 McUsic, supra note 88, at 333. 99 See William S. Koski & Rob Reich, When Adequate Isnt: The Retreat from Equity in Educational Law and Policy and Why it Matters 56 EMORY L. J. 545, 571 (2006) ([N]either [the New York Court of Appeals] nor any other court has gone so far as to constitutionalize the outcomes accountability movement.). Koski is correct that the New York Court of Appeals did not actually set the state Regents stan dards as the constitutional standard, but the trial courts remedial order in that case, which was affirmed by the Court of Appeals, relied for its funding orders on a private, third party adequacy study based on an assumed goal of educating all New York C ity students sufficiently to pass the rigorous requirements for a Regents diploma. See Alfred A Lindseth, The Legal Backdrop to Adequacy in COURTING FAILURE: HOW SCHOOL FINANCE LAWSUITS EXPLOIT JUDGES GOOD INTENTIONS AND HARM OUR CHILDREN 52 (Eric A. Han ushek, ed. 2006) (hereinafter, COURTING FAILURE). In addition, the Kansas Supreme Court has come very close to constitutionalizing the state content standards. See James E. Ryan,

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55 often designed as aspirational guidelines, rather than minimum requirements.100 Such standards would therefore be quite onerous if they were s et as the absolute minimum level of educational attainment for all students, enforceable under the state constitution. In fact, when examined with a practical eye, even the guidelines from Rose Pauley, and other subsequent adequacy cases decided in favor of plaintiffs, which guidelines were devised by the courts themselves rather than gleaned from state standards, appear to be completely unattainable in the absolute.101Beyond this early study, sever al normative studies were examined in depth, as each was directly relevant to the goals of this study and the further research directions proposed in Chapter Six. The first was conducted in 1998 by William E. Thro. Thus, it was difficult to see how an approach like McUsics could ever work, regardless of its assumed greater potential to avoid separation of powers concerns. In fact, because such an approach would virtually guarantee that a states system would be unconstitutional in perpetuity, and because this perpetual state of unconstitutionality would serve as a lure for serial lawsuits guaranteeing plaintiff victories against the state (and possibly attorneys fees), this approach would likely offend the separation of powers even more greatly than other approaches. 102 Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 1 237 (2008) (citing the Kansas Court as the only one to date that had adopted legislatively created standards as the constitutional standard). This study identified an emerging tren d in education finance decisions, such that courts deciding these challenges took on one of 100 See P aul T. Hill & Robin J. Lake, Standards and Accountability in Washington State in BROOKINGS PAPERS ON EDUCATION POLICY 233 (2002), available at : http://muse.jhu.edu/journals/brookings_papers_on_education_policy/v2002/2002.1cohen.pdf (last visited Feb. 23, 2009) (concluding, based on an extensive case study, that although rhetoric surrounding standards adopti on consistently characterizes them as minimum requirements for completion of certain levels of education, the processes in adopting standards reflect an aspirational view of standards). 101 See Thro, infra note 79 at 548 ( If [the Kentucky] standard is ta ken literally, there is not a public school system in America that meets it. ). 102 William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation, 14 J. L. & POLY 54043 (1998).

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56 two postures either that of activism or that of abdication.103 Thro argued that this polarization was harmful to judicial legitimacy, and that a more moderate ap proach was necessary for the judiciary to assume its proper role in education finance reform.104To that end, Thro proposed a three step approach to adjudication of education finance claims. First, a court should determine whether the states education clause establishes a quality standard or a fundamental right to education. 105 If this question is answered in the negative, then the litigation should be terminated in favor of the state defendant.106 If not, then the court should examine what is mandated by t he quality standard or what is the nature of the fundamental right.107 According to Thro, the court should approach this inquiry by asking two questions: first, whether a standard can be adopted from a coordinate branch; and second, what level of educationa l quality is necessary to meet the standard.108 Thro proposed that a standard should be adopted from another branch where possible, but that if the judiciary were to adopt or create one, it should be demanding, but attainable.109 Finally, the court should de termine how to remedy a violation if it were to find one.110 103 Id. at 530 32. Thro proposed that courts identifying a violation should defer to the more politically accountable branches for remediation, but that, in contrast to many courts, which completely abstain from rem ediation, these courts should give guidance to the coordinate 104 Id. at 533. 105 Id. at 537 38. 106 Id. at 544. 107 Id. 108 Id. at 544 45. 109 Id. at 549. 110 Id. at 550.

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57 branches as to how to remedy the violation by admonishing them to consider both financial and nonfinancial means of remedying inadequacies.111Using Heises terminology, Thros proposed approach could be termed an active dialogic approach of the exemplification variety. 112 Similarly to other scholarly and judicial approaches, Thros approach decided without much discussion that education finance cases should always be justiciable on the mer its.113In a similar vein, Obhof proposed an analytical framework for courts pursuing the passive dialogic approach empirically examined by Heise. Obhof first categorized the three typical outcomes of education finance adequacy li tigation total abstention (which Obhof and others called abdication); To the extent that any separation of powers concerns entered Thros analysis, they did so through his proposed strict application of weak state constitutional education clauses, leading to dismissal on the merits, rather than on direct separation of powers grounds. The virtue of Thros proposed approach was that it would add predictability to education finance litigation, and it would require courts, at least at the initial merits review stage, to stand on principle. However, its ultimate result wo uld amount to ongoing judicial supervision of legislative policy making, unless the legislature were to somehow fix the system perfectly on the first try. This outcome would only be an insignificant move away from the judicially activist approach that T hro decried in the article. 114 111 Id. at 552. engagement in review of constitutionality with abstention from the remedial phase (which Obhof termed the middle ground approach); and total engagement in review including fashioning a specific remedy and possibly supervising its implementation 112 See Heise, supra note 68, at 80. 113 Thro, supra note 79 at 546 47. 114 Obhof, supra note 79, at 572 73 (2004); Thro, supra note 79 at 546 47.

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58 (which Obhof called judicial activism).115 Building from Thros 1998 study, Obhofs study more restrictively concluded that his middle ground approach wherein the court finds a constitutional violation but always abstains from the remedial phase on separation of powers grounds was the correct approach.116 This approach differed from that favored by Thro in that Thro contemplated deference to legislative bodies, but clearly saw a role for th e courts albeit a limited one in directing the remediation of identified constitutional violations.117 As mentioned, Thros suggested approach could be likened to the active dialogic approach examined empirically by Heise, whereas the approach favored by Obhof could be likened to the passive dialogic approach examined by Heise.118Obhofs study correctly identified the three typical outcomes possible in education finance litigation, and he correctly pointed out that total abstention from review of all e ducation finance adequacy litigation on one hand, and full judicial involvement including specific policy directives and ongoing supervision of the implementation of a remedy on the other hand, were opposite extremes which were both normatively problematic 119 115 Obhof, sup ra note 79, at 572 73. 116 Id. at 602. As Obhof pointed out, this was the approach loosely followed by the Ohio Supreme Court in DeRolph v. State 677 N.E.2d 733 (Ohio 1997) ( DeRolph I ). 117 See Thro, supra note 79 at 551 52 (advocating for deference t o the political branches in crafting a remedial response to an identified constitutional violation, but indicating that courts should signal to the political branches that financial as well as non financial factors should be remedied). 118 See Heise, supra n ote 68, at 80. 119 Obhof, supra note 79, at 593 96. In this section of his article, Obhof referred to the type of judicial activism that most education finance scholars purport to study that which causes the court to invade the province of the legislatu re by ordering the legislature to enact policy. In other sections of the same study, Obhof identified the more common form of judicial activism that which arises when a court or jurist decides issues not presented in the case or inserts preferred poli cies into a statute or constitutional provision not containing them as written. See id. at 592 (explaining that the Vermont Supreme Court, in Brigham v. State 692 A.2d 384 (Vt. 1997), when presented only with an equity challenge, not only rejected any separation of powers concerns over judicial review, but also went on to issue an adequacy ruling interpreting a very weak constitutional education clause to impose very specific policy preferences on the state legislature).

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59 However, Obhofs proposed alternative to these extremes suggested that state courts in all cases follow the middle ground approach, which the Ohio Supreme Court exemplified in DeRolph v. State .120 Under this middle ground approach, a court would follow a three step process. First, determine whether the state education clause sets a standard of quality.121 Next, determine what the standard of quality demands.122 Finally, determine whether the current state system meets the standard.123 Beyond these det erminations, Obhof argued, courts should have no role.124 That is, in every adequacy case in which the court finds the state constitution violated, the court should abstain from taking any remedial role. This approach would go far beyond the dialogic app roach advocated by Brown and others, and would truly limit state court rulings to a set of binding advisory opinions, as first articulated by Brown.125Obhof argued that this remedial abstention would limit the courts to their proper role of interpreting the state constitutions text, would stem judicial activism, and would lead to predictability in school finance litigation. 126 120 DeRolph v. State, 677 N.E.2d 733 (Ohio 1997) (DeRolph I). However, Obhof did not address what the judiciarys proper role might be if the state legislature were to fail to act to reme dy its own violation of the state constitution, nor did he appear in the final analysis to acknowledge the type of judicial activism that manifests itself through jurists insertion of their own policy 121 Obhof, supra note 79, at 593 96. 122 Obhof, supra note 79, at 593 96. 123 Obhof, supra note 79, at 593 96. 124 Obhof, supra note 79, at 593 96. 125 See George D. Brown, Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions 35 B.C. L. REV. 543 (1994) (coining the term binding advisory opinions to describe the tendency of state courts to issue rulings finding constitutional violations, but to abstain from ordering any specific remedies); s ee also Cover, supra note 56, at 419 n.107 (citing Brown, supra ); Margaret Rose Westbrook School Finance Litigation Comes to North Carolina, 73 N.C. L. Rev. 2123, 2181 (1995) (same). 126 Id.

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60 preferences as interpretations of generalized cons titutional text. For example, after the Ohio Supreme Court followed the middle ground approach in DeRolph I the state legislature was alleged to have failed to act sufficiently to remedy the constitutional violations identified by the court, so the Court was forced to revisit the case several times before it was finally dismissed.127Dunn and Derthick recently completed an indepth critical analysis of adequacy based education finance litigation. 128 Ultimately, the authors concluded that separation of powers principles and concerns will often pose an insurmountable obstacle to reform through the courts.129 The authors argued that adequacy litigation will always be plagued by a lack of judicially manageable standards, thus making it vulnerable to dismis sal under the political question doctrine, and that litigants should recognize this and consider resorting to the political process to achieve their goals.130 Bauries made a similar argument for political reform, concluding that the initiative processes ava ilable under some state constitutions could provide reformers with a means to establish judicially manageable standards by placing proxies for educational quality directly into state constitutions.131 Similarly, Dayton and Wood have concluded that separat ion of powers principles remain a significant obstacle to education finance litigation, but these scholars expressed confidence that despite these concerns, litigationbased reform would continue to be the dominant strategy.132 127 See DeRolph v. State, 780 N.E.2d 529 (Ohio 2002) (hereinaft er DeRolph V ) (recounting the serial relitigation of the case in the states courts). 128 Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS: THE LEGAL PURSUIT OF EDUCATIONAL ADEQUACY 322 (Martin R. W est & Paul E. Peterson, Eds. 2007). 129 Dunn & Derthick, supra note 128. 130 Dunn & Derthick, supra note 128. 131 Bauries, supra note 78, at 10304. 132 John Dayton & R. Craig Wood, School Funding Litigation: Scanning the Event Horizon, 224 ED. L. REP. 1 (20 07).

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61 In contrast, Rebell has argu ed that, in the context of education adequacy litigation, concerns over separation of powers and judicial institutional competence are outdated and without factual basis.133 Rebell supported his contention that courts should become involved in political d ecision making through colloquy with the political branches with evidence that such involvement had been successful in the past.134 However, like many of the courts electing to engage in review of adequacy challenges, Rebell used evidence of court competence gleaned from federal cases adjudicating state violations of constitutional prohibitions to justify active dialogic judicial review in education finance adequacy litigation, which involves affirmative constitutional obligations .135 As discussed in Chapte rs Five and Six, the conflation of these two concepts obscures the principles underlying judicial review determinations. Rebell also criticized critics of judicial policy making for neglecting to establish that the political branches were better at it.136 However, Rebell himself neglected to consider that the main foundations of the critique of judicial policy making are not the courts actual lack of institutional competence, especially in comparison with legislative bodies, but on their perceived lack of such competence and their corresponding lack of institutional legitimacy .137 133 Michael A. Rebell, Poverty, Meaningful Educational Opportunity, and the Necessary Role of the Courts 85 N.C. L. REV. 1467, 1535 (2007). That is, similar to many other 134 Rebell, supra note 133, at 153132 (reviewing an empirical study that Rebell and a colleague completed i n the 1980s examining judicial decision making in federal educational civil rights cases). 135 Rebell, supra note 133, at 153132 (reporting that courts were adept at reviewing and applying social science evidence in cases involving desegregation); see als o id. at 1535 (setting forth a recent Establishment Clause decision as evidence that courts can resolve difficult questions of scientific validity). 136 Rebell, supra note 133, at 1538. 137 See Alexander M. Bickel, The Supreme Court 1960 Term Foreword: The P assive Virtues 75 HARV. L. REV. 40, 75 (1961) ( Such is the basis of the political question doctrine: the court's sense of lack of capacity compounded in unequal parts of the strangeness of the issue and the suspicion that it will have to yield more ofte n and more substantially to expediency than to principle ; the sheer momentousness of it, which unbalances judgment and prevents one from subsuming the normal calculations of probabilities; the anxiety not so much that judicial judgment will be ignored, as that perhaps it should be, but won't; finally and in sum (in a mature democracy), the inner vulnerability of an institution which is electorally irresponsible and has no earth to draw strength from )

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62 defenders of judicial review in educational adequacy cases, Rebell failed to consider the harm that judiciaries likely do to their own standing among the coordinate branches, as well as their own political capital, through overreaching in their judicial roles.138In 2006, Ryan authored an article that focused primarily on preschool education as a remedial measure, but this study required brief mention herein. 139 Though it was focused on a small subset of adequacy remedies court ordered establishment or expansion of state funded preschool Ryans 2006 article directly addressed the likely separation of powers objections to such remedies.140 In this article, Ryan defined a general separation of powers objection that could be lodged against court ordered preschool that determination of whether to provide preschool is a public policy issue reserved to legislative discretion.141 (emphasis added); William Bradley Colwell, Judicial R eview: Issues of State Court Involvement in School Finance Litigation 24 J. Educ. Fin. 69, 86 n. 83 (1998) (citing CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 9 11 (1993) for the proposition that overzealous judicial involvement in political decision makin g may result in political immaturity in society, in that traditional political actors may see their sense of responsibility and accountability weakened); Thro, supra note 79, at 532 (arguing that both judicial overreach and judicial abdication lead to th e undermining of judicial legitimacy). Ryan also identified a 138 Id. Rebell seems to miss the same point that many judges miss. Judges clearly can make judgments about how much education funding is enough. Most are very smart, ethical, articulate people. They are also argu ably less influenced by political considerations, and they have significant tools at their disposal, such as special master, to gather information. Thus, this study was willing to concede that judges decisions regarding adequate funding might prove more accurate and more related to actual achievement. Further, it is quite likely that the average school superintendent, principal, or teacher could make a similarly accurate judgment based primarily on intuition. Others have made these points, as well. See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131 (1999) (Institutional competence, however, is a comparative question, and the relevant question is whether the state legislature en joys a comparative advantage over the state court.). Nevertheless, the important question is not whether judges can make good judgments concerning educational adequacy, but whether they should. This is a question of institutional legitimacy not institu tional competence. The former question has to do with public perception and political capital, both of which impact the acceptance of the courts decision, while the latter only has to do with the ability to make a sensible decision. 139 James E. Ryan, A Constitutional Right to Preschool? 94 CAL. L. REV. 49, 85 87 (2006). 140 Id. 141 Id. at 85 (quoting Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 50102 (Ark. 2002) ).

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63 more spe cific objection that the legislature has plenary authority to determine the age at which education is to begin.142Ryan addressed the first objection by arguing that all constitutional text requires interpretation, even text imposing an affirmative duty on the legislature. 143 He supported this assertion with the fact that most state courts facing adequacy challenges have chosen to engage in merits review.144 Ryan then argued, If courts are willing, as they should be, to determine whether state constitutions create a right to equal or adequate educational opportunities, they must be committed to defining the content of those opportunities.145 According to Ryan, such content would likely have to include preschool, at least for some students.146 Addressing the m ore specific objection found in the Hoke case in North Carolina, Ryan argued that it would not apply in any state that already offered preschool education to any children of the relevant age.147As to the former point, it presented a mere tautology, and this study proposed a more nuanced approach, as discussed in Chapter Six. Ryans latter point was unassailable. If a state already offers preschool to a certain age group, it will not succeed at denying it to other students in the age group simply based on a claim that it has plenary authority to set beginning ages for public school. This argument would be completely illogical, and it would arguably violate equal protection. However, as presented, it was a hypothetical strawman, as Hoke did not present a state defendant making this implausible argument. 142 Id. at 86 (citing Hoke County Bd. of Educ. v. State, 599 S.E.2d 365, 3919 2 (N.C. 2004)). 143 Id. at 85. 144 Id. 145 Id. 146 Id. 147 Id. at 86.

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64 Following the preschool study, Ryan recently proposed in 2008 that courts and litigants should approach adequacy litigation in a completely different way from that suggested by the adherents of standards based adjudication or costing out studies.148 Instead of these strategies, Ryan argued, the courts should recognize that all adequacy suits are truly in the nature of equity suits and treat them as such.149 Ryan reasoned that, in most cases, courts handi ng down judgments in favor of adequacy plaintiffs do not do so based on costing out studies or based on a demonstrable failure of state public schools to meet state content standards.150 Rather, these courts have generally compared expenditures or resources of plaintiff school districts with those of exemplar school districts and judged funding to be inadequate where discrepancies were large.151Ryan argued that, recognizing this fact, courts should abandon measures urged on them to determine absolute adequacy of spending and rely instead on rough comparability of resources as the sole measure of adequacy, as most of them already have. 152 According to Ryan, such reliance would address the many institutional concerns that arise in adequacy litigation.153 148 James E. Ryan, Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 122526, 1256 (2008). Arguments for either costing out or standards based determinations of ade quacy have been dominant in the literature. See, e.g. Janet D. McDonald, Mary F. Hughes, & Gary W. Ritter, School Finance Litigation and Adequacy Studies 27 U. ARK. LITTLE ROCK L. REV. 69 (2004) (examining the adequacy study conducted in the Arkansas ad equacy litigation); Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307 (1991) (making an early argument for using state content standards as the measure of educational adequacy). Becau se the remedies associated with a rough comparability measure of adequacy would 149 Id. at 1238. A st udent note made similar arguments, though of much more limited scope, in 2004. See Avidan V. Cover, Note, Is Adequacy a More Political Question than Equality?: The Effect of Standards Based Education on Judicial Standards for Education Finance 11 C ornell J.L. & Pub. Pol'y 403, 427 (2002) (arguing for a return to equity, even if in the guise of adequacy). 150 Ryan, supra note 148, at 1232. 151 Id. 152 Id. at 125051. 153 Id. at 1251.

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65 amount to a kind of rough equalization of resources, not necessarily expenditures, they would remove the courts from the appropriations process, leaving them to judge program s, rather than budgets.154 The application of a rough comparability measure to all education finance cases would also have the salutary effect of preventing a legislature from engaging in gamesmanship, as it could by lowering state standards in response t o an adequacy ruling based on them.155 Finally, rough comparability would disempower suburban districts that want to stand in the way of expenditures in poorer inner city districts, because the measure of constitutionality would depend on the expenditures or programmatic offerings in these suburban districts.156Ryans descriptive claims were based primarily on the fact that courts deciding adequacy cases in favor of plaintiffs have done so primarily based on comparative data, not absolute expenditure data As to this point, Ryan appears to have been correct, and as a result, there was much to like in his proposal. Courts reaching the merits of education finance adequacy suits and rendering judgments in favor of the plaintiffs indeed nearly always rely substantially on evidence of comparability of funding or resources. 157 154 Id. at 125052. It is also true that establishing this point could reasonably lead one to conclude that no true adequacy suits exist, and that therefore, adequacy based suits require comparative methods However, one could just as reasonably conclude that the courts fixation on comparative evidence even when deciding claims to absolute educational quality or funding reveal their own perceptions of their lack of institutional legitimacy to adjudicate af firmative duties and rights. This conclusion, as discussed in Chapter Six, would cause one to prescribe quite different doctrinal approaches than those favored by Ryan. In the 155 Id. at 1254. 156 Id. 157 See id. at 123239 (establis hing this point through close reading of the cases).

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66 end, Ryan pointed out that all adequacy litigation thus far has required ongoi ng court supervision for success, and that this presents the possibility that such litigation, if litigants and courts continue to approach it in the same ways, will either never end or will end for unprincipled reasons, such as the weariness of courts wit h this ongoing supervisory role.158Nevertheless, much like Rebells article, Ryans two recent articles illustrated the thinking that has predominated in state courts that all constitutio nal provisions must be interpreted, and that affirmative duties and negative prohibitions in state constitutions are interchangeable and should be treated the same way for the purposes of applying separation of powers principles and determining the proprie ty of judicial review. As discussed in Chapter Six, approaching education finance adequacy litigation in this way has seemingly caused state courts to decide these cases in unprincipled ways, which has caused these courts to overreach in some cases and overprotect in others, and has created inter branch conflicts where none need have existed. This study took this final set of conclusions as well established. Finally, a number of normative scholars have taken a more theoretical approach to the question of judicial review, proposing that both searching and active state co urt judicial review of education adequacy is, on balance, normatively desirable and warranted by the uniqueness of state governmental systems and education clause provisions.159 158 Id. at 1260 (Indeed, there are no examples of states where plaintiffs have won a school finance case and legislatures have responded adequately without any further court involvement.) (emphasis in original). These scholars have focused on 159 E.g., Helen Hershkoff, Foreword: Positive Rights and the Evolution of State Constitutions 33 Rutgers L.J. 799 (2002); Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Function, 114 HARV. L. REV. 1833 (2001); H elen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131 (1999); Helen Hershkoff, Welfare Devolution and State Constitutions 67 FORDHAM L. REV. 1403 (1999); Johnathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government 24 RUTGERS L.J. 1057 (1993); Burt Neuborne, Foreword: State Constitutions and the Evolution of Positive Rights 20 RUTGERS L.J. 881 (1989); see also Sonja Ralston Elder, Note, Standing Up to Legislative Bullies: Separation of Powers, State Courts, and Educational Rights 57 DUKE L.J. 755 (2007); Josh Kagan, Note, A Civics Action: Interpreting Adequacy in State Constitutions Education Clauses 78 N.Y.U. L. REV. 2241 (2003).

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67 the fact that the education clauses of state con stitutions, and similar provisions relating to welfare, are repositories of positive rights and/or affirmative legislative duties.160 They contrast these positive state constitutional rights with those in the United States Constitution, which is regarded nearly universally as a charter of negative liberties, prohibitions, or negative rights.161 These negative rights allow individuals and entities to prevent government action that has the purpose or effect of invading protected individual interests, such a s free speech, freedom of conscience, general liberty, human life, and property.162 In the default sense, then, rights of this type do not require any action on the part of government.163In contrast, t he language of state education clauses is the language of affirmative obligations, which may imply correlative individual rights to compel affirmative action on the part of government, even where the education provisions are read in the default (i.e., nonrelative, noncontingent) sense. Instead, these rights set limits on government action. 164 160 See, e.g. Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131, 1138 (1999) (contrasting state constitutional positive rights provisions with negative rights based federal constitutional provisions). These scholars argue that, due to the uniquely positive or 161 See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131 (1999) (outlining the federal approach to the Constitution as a cha rter of negative rather than positive liberties.) (quoting Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983)); Burt Neuborne, Foreword: State Constitutions and the Evolution of Positive Rights 20 RUTGERS L.J. 881 (1989) (citing David P. Curr ie, Positive and Negative Constitutional Rights 53 U. CHI. L. REV. 864, 864 (1986)). 162 Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131, 1138 (1999) (citing Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184205 (1977), for the proposition that negative constitutional rights can be viewed as trumps against governmental action). 163 See David P. Currie, Positive and Negative Constitutional Rights 53 U. CHI. L. REV. 864, 86467 (1986) (out lining the textual, historical, and jurisprudential support for this view of the federal Constitution). 164 Several constitutional scholars have argued that even the negative rights contained in the federal Constitution can be read to imply affirmative g overnmental duties. See Goodwin Liu, Education, Equality, and National Citizenship 116 YALE L.J. 330 (2006) (locating a federal positive right to adequate education in the Fourteenth Amendment); Cass R. Sunstein, Lochners Legacy 87 COLUM. L. REV. 889 90 (1987) (explaining that deprivation depends on a baseline entitlement, and that only Lochnerian assumptions of the lack of entitlement to basic social services prevent courts from viewing the failure to provide them as such a deprivation); Frank I. Mi chelman, Welfare Rights in a Constitutional Democracy 1979 WASH U. L. Q. 659, 686 87 (1979) (outlining, in appendix

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68 affirmative nature of education provisions, along with general welfare and subsistence provisions in some states, courts should not approach them in the ways that federal courts approach the negative rights in the federal constitution.165 Because affirmative provisions in state constitutions contemplate a governmental duty to act on behalf of individuals (or the public), the argument goes, federal limitations on jud icial review are inappropriate.166 Further, in addition to the existence of uniquely affirmative constitutional provisions, many state constitutions contain provisions specifically providing for judicial review, advisory opinions, easy amendment of the cons titution, and judicial elections, all unlike the federal Constitution.167 According to these scholars, the existence of these factors mutes familiar concerns that exist over federal court judicial review concerns based on institutional competence, the counter majoritarian difficulty, and finality of adjudication, all of which are rooted in federal separation of powers doctrine and justified based on the insulated and apolitical nature of the federal judiciary.168 form, several then recent negative rights decisions that could be characterized as protective of positive welfare rights). For example, the right to state provided counsel imposes an affirmative obligation on the state to pay for a lawyer for an indigent defendant. See David P. Currie, Positive and Negative Constitutional Rights 53 U. CHI. L. REV. 864, 873 74 (1986) (considering this and o ther oft proposed counter examples to the concept of a negative rights based federal constitution). However, as Currie pointed out, none of these accounts has established these affirmative obligations as absolute. See id. All of these construed posit ive federal rights arise only as contingent on negative, prohibitory provisions, such as due process in the case of the right to state provided counsel. Id. ; see also id. at 872 85 (considering several other familiar counter examples and coming to the sa me conclusions). In contrast, the affirmative obligations in state constitutional language are absolute. That is, the duties they impose do not require any contingent or relative state action to give them force. They apply independently, and are thus co mpletely positive obligations. The 165 See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131, 116970 (1999) (proposing and defending a standard of review that would require courts to det ermine whether a challenged law actually helps effectuate the constitutional mandate); Johnathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government 24 RUTGERS L.J. 1057 (1993) (proposing an alteration to separation of powers doctrine in state positive rights claims). 166 Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131, 116970 (1999). 167 Hershkoff, supra note 166, at 116970. 168 Hershkoff, supra note 166, at 116970.

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69 scholarship in this area has advocated a unique, state specific approach to doctrines of judicial review and the separation of powers, whereby state supreme courts are expected to take a more active and participatory role in developing state public policy by providing content to affirmatively sta ted constitutional obligations and engaging in ongoing dialog with the coordinate branches as to how to fulfill them.169As discussed in Chapters Five and Six, only some aspects of these proposals have been put into practice among state courts. With very few exceptions, state courts have approached judicial review questions by initially reaffirming the limited and traditional judicial role of reviewing and invalidating legislative actions that infringe upon individual rights, thus adopting the federal app roach to judicial review used in the context of negative rights. 170 These courts have nearly uniformly made pronouncements that it is not the judiciarys function to make policy, but instead to say what the law is.171However, most of these courts have gone on to add significant content to the education clauses under the guise of interpreting them. 172 Some have gone even further by ordering significant, systemwide reforms.173 169 Michael A. Rebell, Poverty, Meaningful Educational Opportunity, and the Necessary Role of the Courts 85 N.C. L. REV. 1467, 1535 (2007); Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 HARV. L. REV. 1131 116970 (1999); Johnathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government 24 RUTGERS L.J. 1057 (1993). Thus, as discussed in Chapter Five, state courts appear to be engaging in the more searching and active variety of policy oriented review of whether state legislatures have taken sufficient affirmative action, but these courts generally have not justified 170 See infra Chapter Five. 171 See infra Chapter Five. 172 See infra Chapter Five. 173 See infra Chapter Five.

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70 this more extensive role by invoking the unique nature of the constitutional provisions interpreted. With limited exceptions, courts have rested judicial review determinations on traditional concepts of judicial review, and on the role of the judiciary as the protector of minority individual rights against the affirmative acts of a n invidious majority.174 The few courts that have not relied on traditional, negative rights based justifications for active review have pointed out the mandatory or affirmative nature of the education clause language,175 or at times have merely decided that the education clause explicitly contemplated a three branch role in policy development where its affirmative language was concerned.176 However, as mentioned herein, and as discussed further in Chapters Five and Six, the overwhelming majority of courts reaching the merits of adequacy litigation, including those rejecting traditional conceptions of negative liberties in favor of conceptions of positive rights or affirmative obligations, have evaluated educational adequacy claims using primarily comparative da ta, which are appropriate for evaluating relative equality (a negative rights concept), not absolute adequacy (a positive rights concept).177Taken as a whole, this normative scholarship illustrated to some extent conceptions of the proper influence of separation of powers concerns on judicial review determinations and on ultimate merits review in adequacy litigation. However, the conclusions of these normative 174 See infra Chapter Five. 175 See Abbeville County Sch. Dist. v. State, 515 S.E.2d 540 (S.C. 1999) (citing the mandatory nature of th e education clause as a basis for review); Seattle School District No. 1 v. State, 585 P.2d 71, 91 (Wash. 1978) (defending the decision to engage in merits review based on the conception that the constitution imposed an affirmative duty on the legislature, which implied a correlative individual right on state residents). 176 See Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 484 (Ark. 2002) (contrasting the Arkansas Constitutions designation of the State as the obligor of the duty to provide edu cation with other state constitutions designations of the General Assembly as the obligor). 177 James E. Ryan, Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 123239 (2008); Dunn & Derthick, supra note 128, at 328.

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71 analyses could be much improved if more empirical data were to exist relating to the actual, rat her than the perceived, influence of separation of powers principles in adequacy cases. For example, with the exception of Dunn & Derthick, Dayton & Wood, and Bauries,178While the existing scholarship of education finance has taken careful notice of the many similarities and differences in the states education clauses it has failed to address or even take substantial note of the fact that nearly all state constitutions, unlike the federal Constitution, also contain explicit separation of powers clauses the authors of the normative education adequacy scholarship reviewed herein have uniformly concluded that all adequacy cases should be justiciable, or have assumed justiciability. This was a dubious conclusion under traditional concepts of judicial review, considering the subjective nature of the policy judgments that such constitutional p rovisions mandate. As might be expected, the only evidence that has been offered in support are the facts that several state courts have already chosen to engage in merits review, that federal courts have in the past taken active roles in remediating violations of negative individual rights, or that state constitutions, due to their differences from the federal Constitution, provide for such review. The first of these justifications was a mere tautology and thus was not addressed herein. The remaining tw o justifications were addressed in Chapters Five and Six of this study. 179 Because separation of powers principles are inherently salient in all adequacy based educati on finance litigation, and particularly in adequacy litigation,180 178 See supra, this Chapter. these separation of powers provisions should be explored as potential legal factors 179 JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS 10 (2005). 180 See Dunn & Derthick, supra note 128, at 322 (making this point). Even in cases where the judiciary, on separation of powers grounds, declines to order legislative action directly, the courts impliedly retain their veto power by leaving the constitutional question open for future adjudication, often serial adjudication, thus converting the courts into a multi layered approval board for legislative appropriation levels. As discussed in Chapter Six, the assumption of this role by the judiciary should require a very persuasive justification with a principled basis.

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72 in studies empirically analyzing judicial decision making in such litigation. Chapters Three and Four of t his study took the first step in that direction by analyzing relationships between state constitutional language relating to separation of powers and judicial decisions whether and to what extent to engage in merits review. Chapters Five and Six then foll owed with deeper examination of the true principles at work in judicial review determinations in education finance litigation, concluding with some preliminary proposals for an analytical framework that could prove useful in deciding these cases both at the threshold judicial review stage and at the merits stage. Conclusion Much research has been conducted over the past twenty years relating to constitutional challenges to state education spending. A limited group of studies has quantitatively examined the influences of several internal or external factors on the outcomes of these cases, but the findings of these studies have largely been inconclusive. Where effects have been identified, effects have rarely, if ever, been identified as to adequacy liti gation in particular. Other empirical studies have engaged in case document analysis to identify patterns of judicial decision making, and these analyses have suggested that judicial attitudinalism may have a strong effect on case outcomes, but they have not offered prescriptions to account for such effects. Finally, a small but growing number of normative legal studies have addressed the proper influence of separation of powers principles on judicial review determinations in these cases. However, none of the quantitative studies have included any separation of powers variables in the analyses. The dearth of such work undoubtedly has imposed a limitation on the growing body of normative scholarship concerning separation of powers principles in adequacy l itigation. At times, this normative work has considered conceptions of the rights and duties in education clauses and the impacts such conceptions have on judicial review, but this scholarship has largely failed to

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73 recognize that education finance adequac y litigation comes in many forms, and that these differing forms may require differing modes of review. Therefore, this study sought to fill a void in education finance scholarship by providing two complementary empirical analyses of a complete enumerati on of highest state court opinions in education finance adequacy challenges addressing separation of powers principles as to the initial merits review determination, as well as any additional determinations as to remediation. The first of these quantitatively analyzed the extent of association between the language of state constitutional provisions providing for separated powers and the courts decisions whether and to what extent to engage in merits review. The second performed an extensive traditional legal analysis of these opinions to ascertain whether any patterns existed in the reasoning among courts either abstaining from merits review, or engaging in review of whether a constitutional violation existed, and if the latter, determining the nature an d extent of any remedies. Based on initial exploratory analysis of a limited sample of opinions, and on the growing body of scholarship drawing distinctions between positive and negative rights in state courts, this latter analysis particularly focused on the courts varying conceptions of the rights and duties established by the states education clauses. Based on the results of these analyses, this study concluded with a proposal for reform to state court approaches to review of constitutional provisions containing affirmative duties and/or positive rights, such as the education clauses found in state constitutions.

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74 CHAPTER 3 METHODOLOGIES Data collected for this study were analyzed in two stages, one quantitative and the other based on traditional le gal research methods, more commonly known as the traditional legal case method.1The Quantita tive Analyses These methods were employed together because the set of highest state court opinions addressing separation of powers principles in education finance adequacy cases did not lend itself easily to quantitative analysis, mostly because of the inherent limitation that a multistate study limited to the United States places on the size of the complete enumeration of highestcourt opinions. To perform the quantitative portion of t his study, it was necessary to use codings, and it was determined that further and deeper analysis through the traditional legal case method would serve to verify and explain the interpretations of the quantitative findings presented herein. In the initial quantitative analyses performed in this study, the independent variable was determined to be ordinal, in that state constitutional language was categorized based on its relative level of flexibility, with each category indicating a successively increased or decreased level of the flexibility attribute.2 The dependent variable, judicial review, was considered ordinal as well because the categories within it reflected increasing levels of activity in judicial review from comple te abstention, to partial abstention, to full review and remediation.3 1 Charles J. Russo, Legal Research: The Traditional Method, in RESEARCH THAT MAKES A DIFFERENCE: COMPLEM ENTARY METHODS FOR EXAMINING LEGAL ISSUES IN EDUCATION 51 (David Schimmel, Ed. 1996). 2 See GENE V. GLASS & KENNETH D. HOPKINS, STATISTICAL METHODS IN EDUCATION AND PSYCHOLOGY 7 8 (3d ed. 1996) (discussing levels of measurement). 3 GLASS & HOPKINS, supra note 2

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75 For the quantitative portion of this study, data were first organized and coded, and then analyzed using the Somers d measure of association.4 Somers d was an appropriate measure because both the dependent and independent variables were ordinal level variables, and because the research question addressed by the Somers d analysis asked whether knowledge of the independent variable could be used to predict the dependent variable.5 S omers d is appropriate for measurement of association between two ordinal variables, where one is dependent and the other independent, whether data within the variables originated as counted or ranked data or were converted for the purposes of analysis.6 Somers d is part of a family of associational measures based on two way contingency tables,7 where association is a function of the proportion of concordant pairs of observations in the frequency table in comparison with the proportion of discordant pair s of observations.8 4 See Jean Dickinson Gibbons, NONPARAMETRIC MEASURES OF ASSOCIATION 1 (1993). Measures of association assign a numerical value to the degree of association or strength of relationship between variables. Two variables are said to be associated if the behavior of one affects the behavior of the other or, equivalently, if they are not independent. Two variables are said to be independent if changes in the value of one variable do not have any effect on the value of the other variable. (emphasis i n original). In interpreting a measure of association, one must constantly guard against implications of causation from mere correlative relationships. Id. at 3. Simply put, correlation does not necessarily imply causation, although the latter cannot ex ist without the former. See, e.g. David Weisburd & Alex R. Piquero, How Well do Criminologists Explain Crime? Statistical Modeling in Published Studies 37 CRIME & JUST. 453 454 n.2 (2008) (While causation requires correlation, correlation is not proof of causation.). Nevertheless, even when limiting interpretations of causation measures, the researcher must guard against spurious correlation, which occurs either due to pure coincidence (what statisticians call Type I error), or due to both varia bles being similarly influenced by a third, unmeasured variable. Gibbons, supra at 3. This latter type of spurious correlation is illustrated by the intuitive correlation that exists between the level of sales of heating oil and the number of skiing inj uries in a particular year. As sales of heating oil increase, so do skiing injuries, but they are not truly influencing each other. Rather, they are both influenced by colder temperatures, a third, unmeasured cause. In the event of a finding of signific ant association, the researcher can use follow up tests to guard against this latter form of spurious correlation. Id. Most important to this study, Somers d was 5 G. DAVID GARSON, POLITICAL SCIENCE METHODS 294 (1976). 6 GIBBONS, supra note 4 at 2; see also id. at 62 (The association is posi tive if an increase in the level of one variable usually occurs in conjunction with an increase in the level of the other variable. The association is negative if an increase in the level of one variable tends to occur with a decrease in the level of the o ther variable.). 7 The other measures in this family include Goodman Kruskals Gamma coefficient and Kendalls tau Gibbons, supra note 4 at 67 73. 8 See GIBBONS, supra note 4 at 11 14 (explaining the logic behind Kendalls tau which applies to bo th Gamma and Somers d as well); see also id. at 73 (Another related measure of association for ordered contingency tables is

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76 useful as a predictive measure.9The Somers d statistic was also preferred over other similar measures due to the tendency of asymmetric measures, such as Kendalls tau, to overstate relationships. That is, if the results of the Somers d analysis were to yield a finding of directional associationfor example that an increase in flexibility of constitutional language is associated with an increase in the activeness of judicial review then one could predict that, if an adequacy based education finance challenge were brought in a state where the constitutional text relating to the separation of powers were implicit, or affording the most flexibility to the judiciary, then the states highest court would more likely engage in or approve more active judicial review, tending toward full merits review, issuance of a remedial order, and retention of ongoing juri sdiction. 10 Somers d This measure is appropriate when one of the primary variables is designated as an independent variable and the other is the dependent variable.). The main difference between Gamma and tau is that Gamma includes an additional calculation to correct for ties within the ranks of a variable. Id. at 71. In this study, there were only three categories, or ranks, within each of the two variables, and the total enumeration was twenty six cases. Thus, many ties existed in each cell intersection of two ranks, so tau would not have been as meaningful a measure as Gamma Nevertheless, Gamma is also not used here because Somers d is a superior measure and is based on the same logic of concordant and discordant pairs. This is so because the main difference between Somers d and Gamma is that Somers d in correcting for ties, does so only in the frequency levels of the dependent variable. Id. at 73. This particular type of correction is useful here because this directional type of controlling for ties allows interpretation of the results of the analysis to describe any identified relationship in directional terms. This is desirable because the variable judicial review is being tested here as a dependent variable. The goal of this study is to determine not only whether a mere association exists between separation of powers language and judicial review determinations, but spec ifically whether an increase in flexibility of constitutional text is associated with an increase in the activeness of judicial review, and thus, whether knowledge of the state constitutional text relating to separation of powers allows one to predict the state highest courts ruling as to judicial review of education finance adequacy claims. Nevertheless, due to the necessarily small size of the dataset, and to enhan ce the robustness of the findings of the study, once the Somers d test was conducted, data were analyzed using other measures of 9 See ALBERT M. LIEBETRAU, MEASURES OF ASSOCIATION 87 (1983) (Asymmetric measures, such as Somers d should be used for prediction.). 10 GARSON, supra note 5 at 295.

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77 association appropriate for ordinal level variables, including Kendalls tau and GoodmanKruskalls Gamma .11In order to appl y these tests, the variables required coding. 12The independent variable was identified as the relative flexibility afforded the judiciary by the language in each states constitution regarding the separation of powers. This variable w as denoted in the results as Separation of Powers or sop. Constitutional text providing for separated powers was coded, in increasing order of the interpretive flexibility it afforded the judiciary, as (1) explicit and rigid ; (2) explicit and flexible ; and (3) implicit. The goal of this coding was to reflect the differences in constitutional text that afforded courts more or less freedom to interpret the boundaries of each branchs abilities to use its powers. However, this goal could only be accompl ished by applying theoretical conceptions of the judicial discretion afforded by different varieties of constitutional text. First, the dependent variable was identified as the level of judicial review employed or approved by state highest courts in education finance adequacy litigation where the states highest court addressed sep aration of powers principles in at least one opinion. This variable was denoted in the results as Judicial Review Level or judrev. These judicial review levels were coded as (1) no merits review ; (2) merits review with no specified remedy (the opinio ns in this category also included those in which the courts engaged in merits review, but ultimately entered judgment in favor of the state defendant); and (3) merits review with specified remedy. Based on a preliminary review of the opinions included in this study, every opinion fell into one of these three categories. 11 See B.S EVERITT, THE ANALYSIS OF CONTINGENCY TABLES 130134 (1992) (discussing Somers d Kendalls tau and GoodmanKruskalls Gamma ). 12 See GARSON, supra note 5 at 153 (describing the purpose and procedure of coding).

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78 Generally, explicit constitutional commands and prohibitions are viewed as less subject to judicial interpretation than implied d uties and prohibitions.13Explicit constitutional mandates for separated powers were further divided into two categories. The first category, explicit and rigid included explicit constitutional language that reflected a formali st conception of the separation of powers. This theory would hold that the exercise by one branch of any power allocated by constitutional text or tradition to a coordinate branch would violate the separation of powers. Therefore, when coding the independent variable, it made the most sense to categorize implied constitutional commands as more flexible than explicit textual mandates. Thus, in an ordinal sense, the implicit category was designated the most flexible of the three in this variable. 14 For example, the language of the Florida Constitution, which provides, No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless ex pressly provided herein,15 13 See G. Alan Tar r, Interpreting the Separation of Powers in State Constitutions 59 N.Y.U. ANN. SURV. AM. L. 329, 33940 (examining the explicit mandate for separated powers in the Indiana Constitution and concluding that the provision forecloses judicial flexibility in d etermining that different branches can share their powers); s ee also Rose v. Council for Better Education, 790 S.W.2d 186, 214 ( Ky. 1989) ( One last point must be disposed of. We are referred by appellees to several federal cases where federal courts main tained continuing supervision over its own order e.g., supervision of prisons, court ordered busing, etc. The United States Constitution has no separation of powers provision within it. The separation of powers doctrine in the Federal area, has been reco gnized in federal common law. We on the other hand, are faced with a strongly written, definitive constitutional scheme. We must, perforce, follow our constitution. The federal cases and situations referred to are clearly not even persuasive here. ). was coded as explicit and rigid 14 See, e.g., Robert F. Williams, Rhode Islands Distribution of Powers Question of the Century: Reverse Delegation and Implied Limits on Legislative Powers 4 ROGER WILLIAMS U. L. REV. 159, 166 (1998) ([t]he formalist approach is committed to strong subst antive separations between the branches of government, finding support in the traditional expositions of the theme of pure separated powers, such as the maxim that the legislature makes, the executive executes, and the judiciary construes the law. (qu oting Rebecca L. Brown, Separated Powers and Ordered Liberty 139 U. PA. L. REV. 1513, 152324 (1991) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825)) (alterations in Williams)). 15 Fla. Const. art. II, 3 (emphasis added). The emphasized text implies that the proper interpretation of this clause is a formalist one, in that it appears that no member of one branch of government may constitutionally exercise any power of another branch.

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79 The second category of explicit constit utional text, explicit and flexible included constitutional text that reflected a functional theory of separation of powers. This theory would hold that one branch of government breaches the separation of powers when it assumes the core functions or the whole power of another branch.16 It was determined that state constitutional text reflecting this theory would indicate that some collection of powers would have to be exercised by a non designated branch for the separation of powers to be violated. F or example, the language of the Alabama Constitution, which provides, In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them; to the end that it may be a go vern ment of laws and not of men,17 was coded as explicit and flexible This clause expressed a conception of powers that provided room for judicial flexibility in it required more than a de minimis encroachment to create a violation of the separation of pow ers, as suggested by the plural term, powers unaccompanied by any limiting modifier. In contrast, in states such as Florida, the constitutional text dictated that the exercise of any power of a coordinate branch would create a violation, thus allowing little to no interpretive discretion for the judiciary.18 16 See Williams, supra note 14, at 16667 (In contrast advocates of the functionalist approach urge the Court to ask a different question: whether an action of one branch interferes with one of the core functions of another.) (quoting Brown, supra note 14, at 152728); Tarr supra note 13, at 334 (explain ing that James Madisons lax conception of the separation of powers held that only the assumption of the whole power of a coordinate branch constituted a violation) (quoting THE FEDERALIST 32526 (Jacob E. Cooke, Ed. 1961)). 17 Ala. Const. art. III, 43 (emphasis added). 18 The former would comport with the traditionally accepted functionalist view of the separation of powers, while the latter would comport with the traditionally accepted formalist view. See Adrian Vermeule, The Judicial Power i n the State (and Federal) Courts 2000 SUP. CT. REV. 357, 360 (2000) (critically reviewing the literature relating to separation of powers theory: In one prominent strand of that literature, functionalists argue that judges

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80 Based on the intuitive understanding that the above justifications for the categories used within each variable would likely generate scholarly controversy, the categories were also re conceptuali zed to create two alternative variables for follow up testing. First, the separation of powers variable was recoded in simplified form reflecting the simple and obvious differences between an explicit separation of powers clause, as existed in roughly two thirds of the state constitutions relevant to this study, and an implicit constitutional mandate for separated powers, implied from the establishment of three coordinate branches of government, each with its own set of general powers. Although a theor y employed in the above initial coding was that implicit separation of powers text afforded the judiciary with more interpretive flexibility, as mentioned above, this theory would not likely be universally accepted.19 should assess claims of interbr anch encroachment by means of a balancing test. They argue that balancing allows flexible adjustments of the separation of powers to accommodate social change while preserving the core or essential functions of each branch from invasion. Formalists, by contrast, charge that functionalist adjudication underprotects the separation of powers by allowing intrusions into the affected branch's core functions. On this view, judges applying core functions analysis tend systematically to overweigh the concrete e xigencies that gave rise to the challenged legislation, while undervaluing the abstract and structural interest in the separation of powers. Formalists therefore propose a rule bound approach, one that will prevent the gradual degradation of the separation of powers that they fear will occur in a functionalist regime. ); Vale Krenik Note, No One Can Serve Two Masters: A Separation of Powers Solution to Conflicts Within the Department of Health and Human Services 12 TEX. WESLEYAN L. REV. 585, 60102 (200 6) (T he formalist approach requires that the three functions of legislative, executive, and judicial must be strictly relegated to respective bran ches of the government. The functionalist approach only requires that the respective branches retain exclusiv e jurisdiction over core functions that cannot be usurped, but allows for ebb and flow of powe r between the branches. Under the formalist model, there can be no inter branch interference not expressly authorized by the Constitution and separation of powers disputes are to be resolved predominantly by clas sification of function. Functionalism contrasts with formalism by allowing inter branch blending, and dispute resolution is analyzed by reference to characteristic functions of separation of powers such as maintaining a system of checks and balances, preventing excessive concentrations of powers, an d protecting individual liberty.); see also Williams, supra note 14, at 167 (The functionalist approach permits more judicial discretion than the formalist ap proach.) (citing Brown, supra note 14, at 1528). At least two scholars would add two additional categories to the traditional ones of formalist and functionalist, those of originalist and fused. See Bruce G. Peabody & John D. Nugent, Toward a U nifying Theory of the Separation of Powers, 53 AM. U. L. REV. 1, 1214 (2003). Accordingly, the newly coded variable, Separation of Powers Reduced, or sopreduced, was recoded using the categories explicit and implicit, and was treated as a nominal level variable reflecting simply that implicit 19 See, e.g. Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Function 114 Harv. L. Rev. 1833, 188190 (2001) (arguing that the federal (impli ed) separation of powers need not be applied as strictly in the state courts).

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81 text is different from explicit text. As explained below, this alternate treatment allowed for the use of less stringent statistical tests as follow up measures.20Similarly, based on an understanding that some might object to the drawing of a judicial review related distinction between courts engaging in or approving merits review but not a specific remedial order, and courts engaging in or allowing both a merits review phase and a remedial phase, the judicial review variable was recoded. The new variable, Judicial Review Reduced, or judrevreduced, contained two categ ories, no merits review and merits review Unlike the reduced version of the separation of powers variable, however, this variable could not be treated as nominal level, as no serious objection could be made to the conclusion that opinions engaging in or allowing merits review contained more of the attribute judicial review than opinions disapproving of or abstaining from merits review. Nevertheless, because one of the newly coded variables was treated as nominal, certain associational measures with g reater sensitivity than the concordant pairs related measures used on the original variables were required to be used as follow up measures. 21The original variables were analyzed for directional association using Somers d, and once the results of the Somers d analysis were obtained, the analysis was replicated using Kendalls 20 See RICHARD J. SHAVELSON, STATISTICAL REASONING FOR THE BEHAVIORAL SCIENCES 57071 (3d ed. 1996) (discussing the collapsing of variable categories in the context of increasing expected frequencies in a contingency table, and pointing out that the collapsing of rows or columns in a contingency table must make conceptual sense). The main criticism of this action would likely be that, in coding the variables at a lower leve l of precision and treating a variable previously treated as ordinal as a nominal level variable, information could have been lost. See ALBERT M. LIEBTRAU, MEASURES OF ASSOCIATION 86 (1983) (explaining that one should endeavor to use ordinal ralted measur es to test ordinal level data because otherwise, information is lost). However, in light of the strong indications in the initial test and the follow up tests that no evidence supported association, it was determined that it would be beneficial in validating these results to assume less sophistication and test the variables for any possible sign of association. It was determined that such a less sophisticated form of analysis would serve this function due to its greater sensitivity to effects. 21 G. DAVID GARSON, HANDBOOK OF POLITICAL SCIENCE METHODS 20001 (2d ed. 1976) (explaining that both nominal and ordinal level data may be analyzed using phi and Cramers V ); id. at 201 (Note that when two variables from different data levels are analyzed (e.g., one ordinal, one nominal), the statistic associated with the lower order variable is used.).

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82 tau and GoodmanKruskalls Gamma The newly coded variables were analyzed using the phi coefficient and Cramers V both of which were appropriate as measures of association where the lowest measurement level between the variables was nominal.22 Because these latter tests were designed to test the existence or lack of existence of association, rather than to gauge the absolute strength or direction of association or to generate inf erences of causation, it was determined that they were more likely than the stricter measures to detect an association, if one were to exist.23The results of all tests performed were reported in Chapter Four of this study, and certain preliminary conclusions were drawn concerning judicial decision making as to the propriety of review in educati on finance adequacy litigation. Based on these conclusions, the results of an exploratory analysis of two selected representative opinions, and the existence of a burgeoning scholarly literature addressing state court judicial review of constitutional cla ims based on positive rights, further analysis of each opinion was performed using the traditional legal case method. In this way, the study attempted to address the inherent limitation on the ability to detect effect due to neces sary small number of observations in the analysis. The Traditional Legal Case Analysis The second stage of this study proceeded through a traditional legal case analysis of each judicial o pinion included in the quantitative analysis. The purpose of this secondary analysis was to develop an explanatory theory accounting for the results of the quantitative analyses. The use of complementary research methods in analyzing a research question can improve the 22 See G. DAVID GARSON, POLITICAL SCIENCE METHODS 28789, 305 (1976) (explaining that phi is an appropriate measure of association for nominal level, dichotomous var iables, and that in the case of a two by two contingency table, its value is comparable to that of Cramers V such that the two measures are for all practical purposes interchangeable in the case of a two by two table). 23 ALBERT M. LIEBTRAU, MEASURES OF ASSOCIATION 88 (1983).

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83 effectiveness of a study and the robustness of its conclusions.24 Accordingly, and particularly because the units of analysis throughout this study were legal opinions, it was determined that the legal case method was an appropriate method to complement the use of the quantitative analyses employed herein, both because it was uniquely suited to the analysis of legal primary source documents, and because legal research could be employed both for explanatory and predictive purposes, as well as for theory development.25Professor Russo explained the traditional legal case method as a form of historical legal research that is neither quantitative nor qualitative. 26 Russo further described traditional legal research as a systematic investigati on involving the interpretation and explanation of the law.27 This systematic inquiry is [r]ooted in the historical nature of the law and its reliance on precedent.28All three of these pur poses were relevant to the analysis reported in Chapter Five of this study. Beginning with an exploratory analysis of two representative opinions, one rendered by the Florida Supreme Court, dismissing on separation of powers grounds, and the other rendere d Methodologically, these explanations attempted to describe an analytical process that requires the researcher to closely read judicial opinions in an attempt to inductively derive from them general principles of legal theory, explanations of doctrinal shifts or trends, and conclusions as to matters of public policy. 24 See Russo, supra note 1, at 33 (The use of complementary methods can help bring research questions into clearer focus and can also offer solutions that might not have been considered had a single method been employed.); Grover H. Baldwin, Quantitative Research Strategies in RESEARCH THAT MAKES A DIFFERENCE: COMPLEMENTARY METHODS FOR EXAMINING LEGAL ISSUES IN EDUCATION 80 (David Schimmel, Ed. 1996) (discussing the benefits of mixing quantitative and non quantitative methodologi es in legal research). 25 Russo, supra note 1, at 34, 51. 26 Russo, supra note 1, at 34. 27 Russo, supra note 1, at 34. 28 Russo, supra note 1, at 35.

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84 by the New Jersey Supreme Court, ultimately engaging in judicial review to the point of mandating specific legislative appropriations, it was determined that the courts varying conceptions of the nature of the rights and duties contained in the education clauses of state constitutions may explain the variation in determinations of the proper scope of review among state courts addressing similar provisions for education and separated powers. The judicial opinions were then analyzed to determine the stat e of legal doctrine in the area of judicial review of education finance adequacy litigation specifically as related to judicial review and the nature of the rights and duties set forth in each states education clause, and to draw conclusions relating to t he development of public policy in the courts. In addition, the opinions were analyzed for the purpose of developing an explanatory theory of judicial decision making as to the propriety of judicial review in the face of separation of powers concerns. F rom this explanatory theory, proposals for reform in judicial approaches to adequacy litigation and suggestions for further lines of inquiry were developed and reported in Chapter Six of this study.

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85 CHAPTER 4 RESULTS AND INTERPRETATION OF QUANTITATI VE ANALYSES This Chapter reports and analyzes the results of the quantitative analyses performed on the complete enumeration of highest state court judicial opinions addressing the separation of powers in litigation presenting adequacy based constitutional chal lenges to state education finance plans. As set forth in Chapter Three, each states constitutions language relating to the separation of powers was coded as explicitrigid ; explicit flexible ; and implicit. Then, each judicial opinion in the data set wa s coded to reflect the courts choice whether and to what extent to engage in review of the merits of the appeal, based on separation of powers principles. Once this coding was accomplished, the data were analyzed to determine whether any association exist ed between the character of a states constitutional language relating to the separation of powers and the courts whether and to what extent to engage in review or abstain from review in education finance adequacy litigation. To determine whether any ass ociation existed, data were initially analyzed using the Somers d statistical test, as outlined in Chapter Three. The results of this analysis were compiled in Tables 4.1 and 4.2 below. Initial Results The primary quantitative analysis employed to tes t the relationship between the two initial variables was Somers d. The results of this test were compiled in Tables 41 and 42. Interpretation of Results The analysis using the Somers d statistical test yielded a test statistic value of .014 where t he Judicial Review Level variable was design ated as the dependent variable. This value wou ld be interpreted as showing that, in comparing two cases selected from the enumeration, and assuming that Case 1 scored higher than Case 2 on the in dependent vari able, it was nearly as likely that Case 1 would also score higher then Case 2 on the dependent variable as it was that it

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86 would score lower on the dependent variable. Thus, the Somers d results would indicate no evidence of a relationship between separat ion of powers text and levels of judicial review employed or approved in education finance adequacy litigation. Predictably the test statistic value corresponded with a very high approximate pvalue of .942. As discussed in Chapter Three, several follo w up tests were conducted to provide further assurance that the failure to discover a relationship was not due to the small number of opinions in the complete enumeration. The results of these follow up t ests were compiled in Table 4 3. Table 4 1. Separ ation of Powers*Judicial Review Level Crosstabulation Separation of Powers Judicial Review Level ExplicitRigid ExplicitFlexible Implicit Total No Merits Review Count Expected Percentage 3 3.1 30.0 % 3 3.1 30.0 % 2 1.8 33.3 % 8 8.0 30.8 % Merits Review with No Remedy Specified Count Expected Percentage 4 4.2 40.0% 5 4.2 50.0% 2 2.5 33.3% 11 11.0 42.3% Merits Review with Specified Remedy Count Expected Percentage 3 2.7 30.0% 2 2.7 20.0% 2 1.6 33.3% 7 7.0 26.9% Total Count Expected Percentage 10 10.0 100.0% 10 10.0 100.0% 6 6.0 100.0% 26 26.0 100% Table 4 2. Directional Measures Somers d Value Asymp. Std. Error Approx. T Approx. Significance Symmetric .0 14 .186 .0 73 .942 Judicial Review Dependent .014 .187 .073 942

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87 Table 4 3. Symmetric Measures Value Asymp. Std. Error Approx. T Approx. Significance Kendalls Tau c .0 13 .182 .0 73 .942 Gamma .021 .283 .073 942 N of valid cases 26 The results of the application of two othe r crosstabulation based statistical tests appropriate for ordinal level data, Kendalls tau and Goodman and Kruskalls Gamma yielded similar results. The tauc test yielded a tes t statistic with a value of .013, which corresponded with an approximate pvalue of .942, and the Gamma test yielded a test statistic with the value of .021, with the same corresponding approximate pvalue. Thus, each follow up test indicated no evidence of a relationship. As a further means of validating the results of these initial analyses, and in consideration of the possibility that the precision of the categories and the measures used, coupled with the small number of observations, could be obscuring a less sophisticated effect between the variables, the categories within the variables were re coded as dichotomous,1 and the variable sop was treated conservatively as nominal level, as outlined in Chapter Three, resulting in the newly coded nominal level variable sopreduced and the ordinal level variable judrevreduced. As outlined in Chapter Three, these newly coded variables were analyzed using the phi coefficient and Cramers V which, when applied to the newly coded variables, were thought to allow for greater sensitivity in discovering any effects that existed between them.2 1 This recoding allowed for the inclusion of a state that had to be excluded from the initial testing becau se its litigation, though it proceeded to merits adjudication, never addressed the propriety of remediation. See infra Chapter 5, West Virginia. Thus, in the follow up testing, N =27. The results were compiled in Tables 44 and 45. 2 See RICHARD J. SHAVELSON, STATISTICAL REASONING FOR THE BEHAVIORAL SCIENCES 57071 (3d ed. 1996) (discussing the collapsing of variable categories in the context of increasing expected frequencies in a contingency table, and pointing out that the collapsing of rows or columns in a contingency table must make conceptual s ense).

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88 Even under the much more lenient assumptions inherent in the new coding and measures, no evidence of a relationship between the two variables was identified. The values of the test statistics ( .023 and .023) were very small, considering that the maximum possible value for each could have approached 1.000.3Table 44. Separation of Powers Reduced*Judicial Review Reduced Crosstabulation Each of these values associated with a very high approximate pvalue of .822, close to the approximate pvalues obtained as a result of th e stricter tests employed upon the variables before re coding the categories within them. Thus, despite the unavoidably small number of observations, the stability of the finding of no evidence of association, directional or otherwise, over several diff erent measures and even after recoding to make association easier to detect, led to the conclusion that knowledge of state constitutional text relating to separation of powers does not allow one to more accurately predict judicial decision making in educa tion finance adequacy litigation. Separation of Powers Reduced Judicial Review Level Reduced Explicit Implicit Total No Merits Review Count Expected Percentage 6 6.2 28.6% 2 1.8 33.3% 8 8.0 29.6% Merits Review Count Expected Percentage 15 14.8 71.4% 4 4.2 66.7 % 19 19.0 71.4 % Total Count Expected Percentage 21 21.0 100.0% 6 6.0 100.0% 27 27.0 100.0% In light of the strong indications in the initial test and the follow up tests that no evidence supported an inference of any association, it was determined that it would be beneficial in validating these results to collapse the variables, assumin g less sophistication, and test the variables for any possible sign of association, rather than for a magnitude and direction of association suitable for prediction, as with Somers d 3 G. DAVID GARSON, POLITICAL SCIENCE METHODS 28890 (1976).

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89 Table 4 5. Symmetric Measures Value Appr ox. Significance Phi .04 3 .822 Cramers V .04 3 822 N of valid cases 27 These results were counter intuitive, as scholars have often argued without controversy that separation of powers principles are likely to be quite influential in determining the outcomes of education finance adequacy litigation.4 However, at least as relates to the provisions of state constitutions providing for separated powers, such principles appear to have no predictable influence at all.5Nevertheless, because the res ults of the quantitative analyses defied any intuitive concept of the role of separation of powers principles in judicial decision whether to exercise the power of judicial review, it was viewed as desirable to engage in complementary, nonquantitative analysis of the complete enumeration of opinions studied. Thus, an additional analysis using the traditional legal case method was conducted on all opinions in the complete enumeration, as well as on any related opinions addressing separation of powers conce rns. The research question driving this case analysis was initially stated as follows: 4 See, e.g., Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS: THE LEGAL PURSUIT OF EDUCATIONAL ADEQUACY 324 (Martin R. West & Paul E. Peterson, Eds. 2007) (Adequacy lawsuits are, then, political events: t hey allocate things of value; they propel the courts into an institutional sphere normally reserved for the legislature, which has the authority to raise revenue and appropriate funds; and they depend for implementation on the actions of governors and legi slatures.). 5 The results also provided additional support to the existing studies debunking the conventional wisdom that state court judges tend to use textualist modes of constitutional interpretation; that is, to use constitutional text as the sole, or at least the dominant, factor in determining constitutional meaning. See, e.g. Richard J. Peltz Limited Powers in the Looking Glass: Otiose Textualism, and an Empirical Analysis of Other Approaches, When Activists in Private Shopping Centers Claim Constitutional Liberties 53 CLEV. ST. L. REV. 399, 40809 (2005 2006) (describing the results of an empirical study finding that state court judges selectively employ textualist interpretivism where it suits the purpose of expanding state power to define in dividual rights); John Copeland Nagle, Book Review, The Worst Statutory Interpretation Case in History 94 NW. U. L. REV. 1445, 1468 (2000) (characterizing the point that state courts lean toward textualist methods as received wisdom).

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90 In adequacy based education finance litigation, do patterns of interpretive reasoning exist within the opinions of highest state courts justifying decisions whether and to what extent to engage in review of legislative action? However, based on a preliminary and exploratory review of a small sample of the opinions included in the quantitative analysis reported herein, it was noted that courts with very similar sep aration of powers provisions and education clause language rendered completely inconsistent decisions on the subject of judicial review, and that a legal factor distinguishing these cases from one another appeared to be the courts conceptions of the right s or duties provided by the education clause. For example, it was noticed that the Florida Supreme Court completely abstained from review, citing the legislative duty, as well as the enormous discretion provided in the states education clause.6 Conversely, the New Jersey Supreme Court initially engaged in merits review to the point of ordering specific legislative appropriations and justified its action based completely on concepts of legislative action that infringes on a fundamental right.7 Later, the Court adopted this stance of active review in adequacy cases, glossing over the differences in the rights and duties associated with adequacy, as opposed to equity or equal protection.8 6 Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996) (in denying review, We hold that the legislature has been vested with enormous discretion by the Florida Constitution to determine what provision to make for an adequate an d uniform system of free public schools. ). Both 7 Robinson v. Cahill 351 A.2d 713, 720 (N.J. 1975) (explaining that it was necessary for the Court to order legislation because the General Assembly had ignored its previous findings of unconstitutionality bas ed on vast inequalities of spending). 8 Abbott by Abbott v. Burke 575 A.2d 359, 305 06 (N.J. 1990) (recharacterizing the equity based Robinson line of cases as really being about adequacy: Rather than on equality, our decision [in Robinson I ] was based on the proposition that the Constitution required a certain level of education, that which equates with thorough and efficient; it is that level that all must attain; that is the only equality required by the Constitution. Embedded in our observation tha t if the lowest level of expenditures per pupil constituted a thorough and efficient education, then the constitutional mandate would be met was the clear implication that no matter how many districts were spending well beyond that level, the system would be constitutional. ).

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91 of these states constitutions contained explicit an d rigid separation of powers provisions.9Accordingly, it was det ermined that distinctions between conceptions of affirmative duties, positive individual rights, and negative individual rights might have influenced the decision making in all of the opinions in the set and caused courts even in states with explicit const itutional separation of powers language to dismiss or ignore these principles when confronted with education finance adequacy litigation. This preliminary determination generated a more focused research question for the traditional legal case analysis: Yet, despite the similarity of the constitutional separation of powers provisions in the two states, the outcomes of the courts judicial review determinations were diametrically opposed. T o what extent do state courts perceptions of the education clauses in state constitutions as repositories of affirmative duties, positive rights, or negative rights influence the courts decisions whether and to what extent to engage in or approve merits review of education finance litigation. With this research question in mind, the next stage of this study proceeded through a systematic analysis of the opinions using the traditional legal case method, along with a brief quantitative follow up analysis for cross verification, to determine whether courts perceptions of the concepts of rights and duties provided an explanation for the lack of association observed through the quantitative analytical portion of the study, and to develop the theoretical and practical implications of such an effect, if it were found to exist. 9 See Fla. Const. art. II, 3 ( The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. ); N.J. Const. art. III, 1 ( The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. ).

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92 CHAPTER 5 LEGAL CASE ANALYSIS This chapter of the study reports a systematic legal case analysis conducted of all judicial opinions from the highest court in each state that has heard a constitutional challenge to the states education finance system at least partially presenting an adequacy based theory of liability. The cases analyzed herein were drawn from the total number of published cases in each state beginning in 1989, with the addition of the very few cases decided at least partially on adequacy grounds before that date, or directly impacting the justiciability analyses in appeals decided in or after 1989.1When presen ted with adequacy based theories of relief, courts in nineteen states have ruled that state constitutions contain education clauses that are judicially enforceable, and have adjudicated claims of violations of these provisions through insufficient funding. Within the larger set of highest state court opinions in education fina nce cases, this analysis focused primarily on highest court opinions addressing either separation of powers principles in general or the political question doctrine in particular, or both. The analyses conducted in this Chapter were intended to address the research question whether patterns of reasoning exist among courts electing to engage in merits review of education finance adequacy challenges and among those dismissing such challenges on procedural grounds prior to addressing the merits. 2 Courts in seven states have held claims based on state education clauses to be non justiciable.3 1 It is generally accepted that the period during which the adequacy theory of education finance reform litigation has been ascendant and dominant began in 1989. See, e.g. William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model 35 B.C. L. REV. 597 604 08 (1994). However, litigants did present adequacy based arguments to courts prior to this date, and where appropriate, these cases were analyzed, as well. Two state 2 Education Adequacy Decisions Since 1989 (Natl Acess Network, Teachers Coll., Columbia U. August 2007), available at http://www.schoolfunding.info/litig ation/AdequacyDecisions07.pdf (last visited Dec. 20 2007) (hereinafter, EAD). 3 Id.

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93 highest courts have held claims based on state education clauses to be justiciable, but have not yet reviewed the merits.4 Five other statelevel highest court cases presenting adequacy based theories are either pending or on the verge of being decided either on the merits or on motions to dismiss for separation of powers reasons.5In many cases in which a states finance program has been review ed on the merits, and the system has been found to be unconstitutional, courts have nevertheless abstained from ordering any remedy at all, or have simply mandated generally that the legislature reform the education system to make it constitutional. 6 Wher e courts have ordered that the legislature take specific action to remedy a constitutional violation, such courts have thus far mostly ordered quantitative changes, such as increases in spending or reallocation of resources among school districts.7 4 Id. These states are Missouri and Maryland. See supra note 2. Of the state highest courts that have declined to invalidate state education finance systems on 5 Id. As of the date the analyses reported herein were completed, adequacy based cases were pending in the supreme courts of Connecticut, Indiana, South Carolina, Colorado, and Oregon. Id. 6 See Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005) (plurality finding constitutional violation, but leaving remedy to the legislature, with a two judge concurrence advocating complete abstention); Idaho Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 2005) (finding a violation, but leaving the remedy to the legislature); Hoke County Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004) (reaffirming v iolation found in earlier case, but leaving remedy up to the legislature); Campaign for Fisc. Equity v. State, 665 N.E.2d 661 (N.Y. 1995) (finding constitutional violation, but leaving remedy to the legislature); Abeville County Sch. Dist. v. State, 515 S. E.2d 535 (S.C. 1999) (reversing dismissal of the case based on separation of powers principles, but counseling judicial restraint as to the eventual remedy); Brigham v. State, 889 A.2d 715 (Vt. 2005) (reversing dismissal of the case on separation of powers grounds, but counseling judicial restraint as to remedy); Rose v. Counsel for Better Educ., 790 S.W.2d 186 (Ky. 1989) (finding a violation, but leaving the remedy to the legislature). Two cases might be considered hybrids between total court abstention and court abstention only from the remedial phase because each resulted in an ambiguous remand to the legislature to define the relevant constitutional term. See Londonderry Sch. Dist. v. State, 907 A.2d 988, 99596 (N.H. 2006) (reaffirming remand to the legislature to define adequate and formulate a system meeting the definition, but finding that the current system is not adequate under any possible definition); Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005) (remanding to legislatu re for a definition of quality, but predicting that the current system will fail to meet any such definition). 7 See Montoy v. State, 112 P.3d 923 (Kan. 2005) (ordering remedial expenditures and retaining jurisdiction); Lake View Sch. Dist. v. Huckab ee, 91 S.W.3d 472 (Ark. 2002) (ordering adequacy study and retaining jurisdiction to ensure implementation); Derolph v. State, 780 N.E.2d 529 (Ohio 2002) (clarifying that prior order of court mandated a complete overhaul of the state education system, rath er than a simple increase in funding); Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) (ordering specific expenditures and retaining jurisdiction to evaluate legislative performance); Abbott v. Burke, 495 A.2d 376 (N.J. 1985) (ordering speci fic expenditure increases to remedy state wide educational inadequacy).

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94 adequacy grounds, all but two have explicitly done so prior to reaching the merits at least in part based on separation of powers concerns, often employing the politi cal question doctrine, and all but one have explicitly considered the separation of powers.8 Further, all but one of the state courts that have invalidated state funding systems on the merits on adequacy grounds have considered and rejected dispositive motions grounded in the separation of powers or have otherwise explicitly considered separation of powers concerns prior to issuing opinions.9The following sections report a systematic analysis performed on the selected highest state court opinions addres sing the separation of powers, based on whether each opinion was issued in a case ultimately resulting in a merits decision or a merits abstention, and in the case of merits 8 Neb. Coalition for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164 (Neb. 2007); Okla. Educ. Assn v. State, 158 P.3d 1058 (Okla. 2007); Campaign for Fisc. Equity v. State, 861 N.E.2d 50 (N.Y. 2006) (declining to invalidate the governors chosen remedy due to separation of powers concerns, considered for the first time in the remedial phase); Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005); Ex Parte James, 836 So. 2d 813 (Ala. 2002); Marrero v. Com., 739 A.2d 110 (Penn. 1999); Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996); Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996); City of Pawtucket v. Sundlun, 662 A.2d 40 ( R.I. 1995). But see Neely v. W. Orange Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746, 779, 78485(Tex. 2005) (considering and rejecting separation of powers concerns, but crafting a highly deferential arbitrariness standard of review in handing down a ve rdict for the state); Roosevelt Elem. Sch. Dist. v. State, 74 P.3d 258, 26667 (Ariz. 2004) rev. denied (Jan. 7, 2004) (reaching the merits without explicitly considering the separation of powers, but deciding for the state due to the local districts fail ure to show that the alleged inadequacy in funding led to decreases in student performance). 9 Montoy v. State, 112 P.3d 923 (Kan. 2005); Brigham v. State, 889 A.2d 715 (Vt. 2005); Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005); Hoke County Bd. of Educ. v. State, 599 S.E.2d 365, 37879 (N.C. 2004) (basing justiciability on the Courts prior resolution of the issue in Leandro v. State 488 S.E.2d 249 (N.C. 1997); Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002), issue considere d again on rehg, 220 S.W.3d 645 (Ark. 2005); Derolph v. State, 677 N.E.2d 733, 737 (Ohio 1997); Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wy. 1995), issue considered again on rehg, 32 P.3d 325 (Wyo. 2001); Idaho Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 1993) (deciding justiciability issue before the Court finally considered the merits in 2005); Campaign for Fisc. Equity v. State, (N.Y. 1995); Abeville County Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999); Rose v. Counsel for Be tter Educ., 790 S.W.2d 186 (Ky. 1989). The Supreme Court of New Jersey has addressed separation of powers concerns in ways unique among school finance cases. First, the Court abstained for an initial eighteen month period from ordering a remedy for the violation of the state constitutions Education Clause on equality grounds, pending legislative action. Robinson v. Cahill, 306 A.2d 65, 65 (N.J. 1973). Second, after adjudging subsequent legislative action to be insufficient, the Court ordered a limited provisional remedy to give the legislature time to act, while stating its intention to refrain as much as possible from intru[ding] into the legislative process. Robinson v. Cahill, 351 A.2d 713, 718 19 (N.J. 1975). Third, the Court remanded the meri ts of a later challenge to the states then new statute to the Commissioner of Education for exhaustion of administrative remedies. Abbott v. Burke, 495 A.2d 376, 393 (N.J. 1985). The New Hampshire Supreme Court has not explicitly considered the separation of powers question as it relates to justiciability at any time during the ongoing proceedings, but it has engaged in remedial restraint based on its perception of its proper inter branch role. See Londonderry Sch. Dist. v. State, 907 A.2d 988, 99596 (N.H. 2006).

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95 decisions, whether these decisions were rendered in favor of the state or the plai ntiffs. Further, in cases resulting in a judgment for the plaintiffs, the decisions are differentiated based on whether each issuing court elected to impose a specific remedial order, or whether the court elected to leave the remediation of the violation to the coordinate political branches in the state government. With the findings of the quantitative portion of this study in mind, the analyses reported in this Chapter sought to identify and model patterns of reasoning among state courts based on whether each court elected to engage in merits review, and at what level review was authorized. Cases in Which the Court Ultimately Abstained from Reach ing the Merits of the Constitutional Question Alabama Beginning in 1990, the Alabama courts were presented w ith a series of cases that sought to challenge the states school finance system, first on grounds that it violated the state constitutions equal protection clause, and later on grounds that the system violated the state constitutions education clause.10 Each of these cases initially resulted in a trial court order mandating that the Alabama Legislature establish a school funding system meeting several substantive requirements for adequacy borrowed from Rose v. Council for Better Education,11 the 1989 Kent ucky adequacy case.12 10 See Opinion of the Justices No. 338, 624 So.2d 107, 111 (Ala. 1993) (setting forth the procedural history of the Alabama cases). Under the advisory opinion process sanctioned by Alabama law, the Alabama Senate asked the Alabama Supreme Court for its opinion as to 11 790 S.W.2d 186 (Ky. 1989). 12 See Opinion of the Justices 624 So.2d at 107 (setting forth the trial courts order, which mandates the establishment of an equitable and adequate public school system, defining adequate using the exact terminology found in the Kentucky case). For an analysis of the Kentucky case, see infra

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96 whether it had to abide by the trial courts order.13 The Justices, considering the request as a challenge to subject matter jurisdiction, quickly concluded in 1993 that, based on the original jurisdiction of the Circuit Court under Alabama law, the Senate was required to comply with the order.14The court had three further occasions to consider the ongoing cases. The court did not consider any separation of powers concerns, nor did it consider the political question doctrine, in rendering its decision. 15 In the first, the court approved the motions of two prospective intervenors to the remedial phase of the litigation on grounds that they represented parties whose interests were to be affected by the outcome.16 The court explicitly held that the original judgment as to liability, or constitutionality, which had since been certified as a final judgmen t, was not to be disturbed or reopened.17In the second, Ex Parte James I the court considered three substantive questions posed by the state defendant as challenges to the validity of the trial courts orders by way o f a writ of prohibition to the court. 18 The states first contention was that the trial courts order could not be considered valid because of the judges allegedly biased statements regarding the case in his campaign for a seat on the Alabama Supreme Court.19 13 Id. at 109 (referencing Ala. Code 122 10 (1975) and Opinion of the Justices No. 1, 96 So. 487 (1923)). The state additionally contended that the case did not present a justiciable case or controversy sufficient to afford the trial court subject 14 Id. at 110. 15 Ex Parte James, 836 So. 2d 813 (Ala. 2002) ( Ex Parte James II ); Ex Parte James, 713 So. 2d 869 (Ala. 1997) ( Ex Parte James I ); Pinto v. Alabama Coalition for Equity 662 So.2d 894 (Ala. 1995). 16 Pinto 662 So.2d at 900. 17 Id. 18 Ex Parte James I 713 So. 2d at 872. 19 Id. at 874.

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97 matter jurisdiction to issue its order because the parties were not sufficiently adversarial.20 Finally, the state contended that the trial courts orders finding a constitutional violation and ordering legislative action violated the separation of powers principles set forth in the Alabama Constitution.21The court rejected the first two of these contentions with limited discussion. 22 As to the thi rd contention, the court considered the states arguments that both the question of constitutionality, which the court termed liability, and the question of remedy were political in nature and not subject to judicial resolution.23 The court rejected the first argument based on the inherent duty of the judiciary to interpret the Constitution and to strike down legislation in derogation of its principles, as well as the fact that several other state courts had the school finance systems of the states as sub ject to judicial review.24The authorities the court cited for the first proposition were early state, federal, and English authorities, such as Marbury v. Madison, establishing the duty of judicial review in general. 25 20 Id. More importantly, all of the author ities cited in support of the more specific second proposition (that the court was competent to adjudicate a challenge to the states education system ) were 21 Id. The Alabama Constitution provides, in pertinent part, The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and ju dicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men. Ala. Const. 42, 43. 22 Id. at 875 77. 23 Id. at 878. 24 Id. at 8 79. 25 See id. at 878 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Holmes v. Walton, unrep. (N.J. 1780); Dr. Bonham's Case, 77 Eng. Rep. 646 (1610) ).

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98 either equity (i.e., negative liberties) cases or adequacy based cases in which education rights we re construed as negative liberties for justiciability purposes.26 Nevertheless, the Ex Parte James I courts reasoning did not clearly indicate whether it conceived of the rights in the states education clause as negative prohibitions or positive duties. Considering these authorities cited, however, none of which conceives of the rights at issue therein as positive in nature, it is likely that the Ex Parte James I court conceived of them as negative, as well. If not, it is likely that, in citing these cases, the court fell victim to the familiar confusion that results from a reading of an opinion ordering affirmative action to remedy the violation of a negative righttypically a right to equality or due process as a justification for the remediation of positive rights .27The court then considered the states challenge to the trial courts power to order a remedy. 28 The court held that, although the trial court did not lack the power to order a remedy, it had nevertheless abused its discretion in choosing t o do so before giving the Legislature a chance to act to cure its constitutional violation.29 The court then remanded the case to the trial court with instructions to stay the remedy to give the Legislature time to act.30 26 See id. at 879 (citing Serrano v. Priest, 487 P.2d 1241 (1971); McDaniel v. Thomas, 285 S. E.2d 156 (1981); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky.1989); Board of Educ., Levittown Union Free School Dist. v. Nyquist, 439 N.E.2d 359 (1982); Board of Educ. of the City School Dist. of Cincinnati v. Walter, 390 N.E.2d 813 (1979); City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995); Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993); Edgewood Ind. School Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); Seattle School Dist. No. 1 v. State, 585 P.2d 71 (1978); State ex rel. Bd. of Educ. v. Manchin, 366 S.E.2d 743 (1988); Kukor v. Grover, 436 N.W.2d 568 (1989); Washakie County School Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) ) See infra for discussion of the adequacy challenges. 27 See, e.g., S Burlington County NAACP v. Township of Mt. Laurel 456 A.2d 390, 415 (1983) ( Mt. Laurel II) (referring to the Courts prior decision in S Burlington County N.A.A.C.P. v. Township of Mt. Laurel 67 N.J. 151, 336 A.2d 713 (1975) ( Mount Laurel I ) ordering a munici pality to rezone its jurisdictional lands to provide a reasonable opportunity for the private building of housing for low and moderate income residents, and explaining that the constitutional rights remedies through this order were violations of the state constitutions Equal Protection and Due Process Clauses). 28 Id. at 880. 29 Id. at 882. 30 Id. at 886.

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99 In 2002 the court had another chanc e to address Ex Parte James following an order by the court in a related case vacating its 1997 remand to the trial court in Ex Parte James I .31 In this most recent case, the court fully and finally dismissed the ongoing constitutional challenge to the st ates school finance system, and based its decision entirely on the Alabama Constitutions separation of powers clause.32 The court held that, because any remedy that the trial court could order would require a usurpation of that power entrusted exclusive ly to the Legislature the case should be dismissed in its entirety.33The court did not address what it had previously called the liability phase because that final judgment had never been appealed, 34 but the courts mandate finally dismissed all of the ongoing cases, and unlike the highest court in Ohio, for example, the Alabama court did not leave the door open for future litigation,35 so the liability order was effectively nullified or rendered advisory.36 31 Ex Parte James II, 836 So. 2d 813, 817 n.3 (Ala. 2002) (referencing the Courts order in Siegelman v. Alabama Association of School Boards 819 So. 2d 568 (Ala. 2001)). Thus, Alabamas only clear ruling as to the justiciability of challenges to the education clauses substantive requirements is that the court has both the power and the duty to adjudicate such challenges. Ex Parte James II technically left this ruling undisturbed, due to the lack of an appeal on the liability phase of the litigation. However, the court also fully and finally dismissed the ongoing litigation leaving no invitation to re file, thus effectively rendering the liability judgment, and the determination of its justiciability, a nullity Thus, the fairest 32 Id. at 819. The Alabama Constitution of 1901 states, in pertinent part, The judiciary shall never exercise the legislative and executive powers, or either of them; to the end that is may be a government of laws and not of men. Ala. Con st. 43. 33 Id. 34 Id. at 816. 35 See discussion of Ohio litigation, infra this Chapter. 36 Id. at 819.

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100 reading of these cases is that, under current precedent, the adequacy based rights in the education clause of the Alabama Constitution are nonjusticiable due to separation of powers concerns. In rendering its most recent ruling, the court described the education clause not in terms of individual liberties, whether negative or positive, but in terms of legislative power, province, and matters that were beyond the judiciarys competence to adjudicate.37Florida Although the Florida Supreme Court has been faced with several actions urging it to interpret the substantive provisions of the state constitutions education clause, the court has only addressed the adequacy based terms in the education clause once.38 In Coalition of Adequacy and Fairness v. Chiles a series of plaintiffs challenged statewide spending as constitutionally inadequate, in violation of the education clauses command to make Adequate provision for a uniform system of free public schools.39 After holdi ng that the plaintiffs had standing as taxpayers to bring the action,40 the court considered the trial courts dismissal of the case based on its ruling that decision for the plaintiffs would violate the separation of powers principles set forth in the Flor ida Constitution because the case presented a nonjusticiable political question.41The state contended that any decision rendered in the case would violate the explicit mandate for separated powers in the Florida Constitution. 42 37 Id. at 818 19. The court agreed, holding t hat the 38 Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996). 39 Id. at 402. See Fla. Const., art. IX, 1 (1968). This provision has since been amended twice in response to Chiles See Scott R. Bauries, Floridas Past and Future Roles in Education Finance Reform Litigation, 32 J. EDUC. FIN. 89, 9798 (2006) (evaluating the effectiveness of subsequent amendments at addressing the problems identified by the Justices in Chiles ). 40 Id. at 403. 41 Id. at 407. 42 Id.

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101 plaintiffs had not shown that judicial intrusion into the legislative process was justified.43 Based on the states inclusion of a discussion of the political question doctrine in the section of its brief relating to the separation of powers, the c ourt also analyzed the case categorically under the six political question identifiers set forth in the United States Supreme Courts seminal decision in Baker v. Carr .44a 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 de ciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual ne ed of unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. These six disjunctive characteristics, at least one of which the Court has found in e ach case presenting a political question, are: 45The court held that the second identifier of a political question found in Baker that no judicially manageable standards exist for the cases resolution, applied to the case and mandated its dismissal. 46To decide such an abstract question of ade quate funding, the courts would necessarily be required to subjectively evaluate the L egislature's value judgments as to the spending priorities to be assigned to the state's many needs, education being one among them. In short, the Court would have to usurp and oversee the appropriations power, either directly or indirectly, in order to gr ant the relief sought by Plaintiffs. While Plaintiffs assert that they do not ask the Court to compel the Legislature to appropriate any specific sum, but merely to declare that the present funding level is constitutionally inadequate, what they seek would nevertheless require the Court to pass upon those legislative value judgments The court based its determination completely on the power of the Legislature to determine priorities among competing state policies, including the policies at the heart of the education clause, adopting the lower courts conception of state power: 43 Id. 44 See id. at 408 (analyzing the indicators of a political question set forth in Baker v. Carr, 369 U.S. 186 (1962)). 45 Baker 369 U.S. at 217. 46 Chiles 680 So. 2d at 408.

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102 which translate into appropriations decisions. And, if the Court were to declare present funding levels inadequate, presumably the Plaintiffs would expect the Court to evaluat e, and either affirm or set aside, future appropriations decisions, unless the Plaintiffs are seeking merely an advisory opinion from the Court.47Based on this adopted language, the court dismissed the case. 48In evaluating the justiciability of these terms, the court treated the education clause as establishing not rights, but positive legislative duties. That is, the court did not speak of rights being infringed at a certain level, or frame the challenge as one to legislative action exceeding co nstitutional limitations. In fact, there was no consideration of the denial of any particular stakeholders individual rights anywhere in the portion of the opinion relating to adequacy and the separation of powers. Rather, the court spoke of the educa tion clause language as imposing both a duty and enormous discretion upon the Legislature. 49This formulation, considered in light of the courts quoted portion of the trial courts dismissal order, would suggest that the education clause language confers no rights at all upon individuals and only confers a nonenforceable duty upon the Legislature. However, even though the court ultimately declared that the subjective terms of the education clause were non justiciable, the courts ul timate pronouncem ents as to the case before it were that the initial plaintiffs had made an insufficient showing to justify judicial intrusion 50 and that they failed to demonstrate in their allegations a violation of the legislature's duties under the Florida Cons titution. 51 47 Id. at 406 07. These statements seem to admit of some form of enforceable duty under the education clause, as well as the possibility that some showing might justify merits review in 48 Id. 49 Id. at 408. 50 Id. at 407. 51 Id. at 408.

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103 the future, and that this showing might involve allegations of an abuse of the Legislatures very broad discretion. Illinois Similar to the court in Florida, the Supreme Court of Illinois has addressed an adequacy based challenge on only one occasion, and like the Florida Supreme Court, the Illinois court affirmed the cas es dismissal on separation of powers grounds.52 The case actually presented claims based both on theories of adequacy and theories of equity.53 The trial court dismissed both the adequacy and equity claims for failure to state a claim upon which relief could be granted, but the Supreme Court affirmed the dismissal of each claim based on differing standards. As to the equity claim, the court considered the merits and held that the states system, which it construed as striking a balance between equality an d local control, was supported by a rational basis, and was therefore constitutional.54As to the adequacy claim, however, the court did not reach the merits, instead affirming the trial courts dismissal of the adequacy based portion of the action solely on separation of powers grounds. 55 The education clause of the Illinois Constitution provides for a high quality system of education, and the plaintiffs claimed that the current system, as applied in certain low wealth districts, was not high quality.56 52 Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1193 (Ill. 1996). Like the Florida court, though, the Illinois court applied the 53 Id. at 1183. 54 Id. at 1196. 55 Id. at 1193. 56 Id. at 1189 (citing Ill. Con st. art. X, 1, which provides, in pertinent part, The State shall provide for an efficient system of high quality public educat ional institutions and services The State has the primary responsibility for financing the system of public education. )

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104 political question doctrine, and particularly the judicially manageable standards provision, as a means of evaluating its potential encroachment on legislative prerogatives.57Also like th e Florida court, the Illinois court approached the education clauses subjective provisions as a reservoir of positive duties, explaining that the court could not interpret the education clauses subjective terms of quality because its role was limited to ensur[ing] that the enactment [of legislation] does not exceed whatever judicially enforceable limitations the constitution places on the General Assembly's power. 58 The court construed the education clause as placing the duty to determine the level of education funding, as well as to determine the meaning of high quality, squarely on the General Assembly. Implied in the courts reasoning was the conclusion that the education clause does not impose any judicially enforceable limitations on the Genera l Assemblys appropriation powers. Accordingly, deciding that educational adequacy could not be defined through judicially discoverable and manageable standards, the court ordered the adequacy claim dismissed.59Anticipating the inevitable objections to its complete abstention from review of what most would consider an important public law question, the court explained its position by citing concerns regarding its competence in the field of education, the limited nature of evidence that could be presented in court, and the anti democratic nature of court decision making in general. 60 57 Id. at 1191. The court explained that its competence was limited in the area of public policy development due to its insulation from the process of weighing the concerns of different inter est groups and 58 Id. at 1190 (emphasis added). 59 Id. at 119293. 60 Id. at 119091.

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105 prioritizing of such concerns that is involved in all legislative decision making.61 The court also pointed out that any decision it could make would be based solely on the witnesses brought before the court, effectively shutting out the voi ces of the interested voting public not on the witness list.62 Finally, the court called for a spirited public debate among legislators and the voters to resolve the funding related issues facing public education in the state.63Thus, in Illinois, the court has approached the terms of the education clause as a reservoir of positive duties, rather than negative rights and limitations. Based on its conception of its judicial role as one of enforcing only constitutional limitations on legislative action, the court has completely abstained from merits review of education finance adequacy litigation. Pennsylvania Pennsylvanias highest court has addressed an adequacy based constitutional challenge to education funding once, in Marrero v. Commonwealth.64 In Ma rrero the court upheld the lower courts dismissal of the entire action based on separation of powers principles, as operationalized through the political question doctrine.65 61 Id. at 1191. The Court stated, [T] he question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion. The trial court had dismissed the case based on three of the identifiers of a p olitical question set forth in Baker t hat the issue was textually committed to the Legislature, that it could not be resolved through judicially manageable standards, and that it required an initial policy determination reserved for legislative, rathe r than judicial, 62 Id. 63 Id. 64 739 A.2d 110 (Pa. 1999). 65 Id. at 113 14.

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106 discretion.66 The Supreme Court agreed that the case presented a non justiciable political question and adopted the reasoning of the trial court in its entirety.67Curiously, however, even though the court purported to uphold a nonmerits based, procedural dismissal of the action based on abstention from review, the court arguably went on to set forth a more substantive standard for future review of adequacy challenges, stating, As long as the legislative scheme for financing public educa tion has a reasonable relation to [providing] for the maintenance and support of a thorough and efficient system of public schools the General Assembly has fulfilled its constitutional duty to the public school students of Philadelphia. 68The co urt went on to make what reads suspiciously like a substantive holding that the Pennsylvania education system was constitutional. 69 Then, the court further muddied the waters by stating that the determination of what constitutes an adequate education and the amount of funds necessary to support it are matters which are exclusively within the purview of the General Assemblys powers, and they are not subject to intervention by the judicial branch of our government.70The courts ambiguous reasoning was interpreted by reference to its conception of the obligations set forth in the education clause. The court approved of the trial courts conception of these obligations, which it had adopted from an earlier education funding case. The Supreme Court summa rized this conception as follows: The court correctly understood Danson's 66 Id. at 111 (quoting the trial courts order dismissing the case). 67 Id. at 112 13. 68 Id. at 113 (quoting Teachers Tenure Act Cases, 19 7 A. 344 (Pa. 1938)) (alteration in original) (citation omitted from quotation). 69 Id. (This statutory scheme does not clearly, palpably, and plainly violate the Constitution.). 70 Id. at 113 14.

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107 interpretation of the constitution's mandate that the legislature provide for a thorough and effici ent system of public education not [to] confer an individual right upon each student to a particular level or quality of education, but, instead, [to] impose a constitutional duty upon the legislature to provide for the maintenance of a thorough and efficient system of public schools throughout the Commonwealth.71Rhode Island Conceiving of the e ducation clause terms as imposing a positive duty rather than any positive or negative individual right was consistent with the courts apparent default position of complete abstention, which in an appropriate case would seem to yield to some form of ratio nality or arbitrariness review. The Supreme Court of Rhode Island has encountered one challenge to the states school finance system based on the state constitutions education clause.72The trial court had judged that the states system of school funding was constitutionally inadequate under the education clause and inequitable under the equal protection clause. That case, City of Pawtucket v. Sundlun, actually pres ented challenges based on both the education clause and the equal protection clause of the Rhode Island Constitution, and the court treated the two provisions differently in important ways. 73 The trial judge had also bifurcated the trial into liability and remedial phases, and had stayed the remedial phase after issuing its lia bility order, while retaining jurisdiction.74 71 Id. at 112 (quoting Marrero by Tabales v. Com. 709 A.2d 956, 96162 (Pa. Cmwlt h. 1998) (emphasis and alterations in original) (quoting Danson v. Casey 399 A.2d 360 (1979) )) The Supreme Court addressed the education clause holding first, reversing it based first on the language of the 72 City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995). 73 Id. at 54 (setting forth the trial judges holding that the state constitution established a fundamental individual right for each citizen to an equal, adequate, and meaningful education, and explaining that the trial judge had found the system to be inequitable and inadequate). 74 Id. at 55.

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108 education clause itself, of which the court stated, a more comprehensive or discretionary grant of power is difficult to envision.75 The court also held that any judicial intervention would violate the separation of powers principles set forth in the Rhode Island Constitution, because a decision would require the court to enforce constitutional provi sions for which there were no judicially manageable standards,76 thus applying the political question doctrine without naming it as such. In making its determination, the court conceded that some right to education existed under the state constitution, but held that this right was unenforceable in the judiciary because it was committed to the legislatures virtually unreviewable discretion.77Finally, after disposing of the education clause arguments, the court determined that the equal protection cl ause was also not violated. The court reasoned that wealth was not a suspect classification under the Rhode Island Constitution, and that the disparities in spending among local districts did not put the states funding system in violation of the states equal protection clause because the state system was supported by a rational basis, that of the preservation of local control. 78Thus, although the court was willing to make a merits determination as to the plaintiffs negative rights based equity claim ( one in favor of the state, but still on the merits), the court completely abstained from any merits review of the adequacy claims. It apparently treated these challenges differently because it construed the adequacy challenge as implicating legislative di scretionary duties, rather than individual rights, while it construed the equity challenge as 75 Id. at 56. 76 Id. at 58. 77 Id. at 57 See also id. at 60, where the Court reiterated this position, stating, as discussed supra, education is not generally a judicially enforceable right under article 12, section 1, of our State Constitution. 78 Id. at 62.

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109 implicating negative individual liberties, just not liberties strong enough to outweigh competing legislative discretion. Because the Rhode Island case explicitl y involved separate claims based on both equity and adequacy theories, it provided a very good example of a courts perception of its role in adjudicating different types of constitutional mandates. Nebraska The Supreme Court of Nebraska has addressed an adequacy based challenge to its states education system once, in Nebraska Coalition for Educational Equity and Adequacy v. Heineman .79 In Heineman the court upheld the procedural dismissal of the case by the trial court on the grounds that educational funding adequacy was a nonjusticiable political question.80 Aided by the popular rejection of a proposed constitutional amendment that would have added substantive quality language to the education clause,81 the court determined that the adequacy of educat ion funding was textually committed to the Legislature,82 that the education clause was not subject to judicially discoverable and manageable standards,83 and that the court could not render a decision in the case without exhibiting a lack of due respect for the Legislature.84Throughout the relevant portion of its opinion, the court referred to the language of the education clause as establishing the Legislatures affirmative duty and its discretion. 85 79 731 N.W.2d 164 (Neb. 2007). The 80 Id. at 183. 81 Id. at 180. The proposed amendment would have declared that a quality education is a fundamental constitutional right in Nebraska, and would have made the establishment of a thorough and efficient education system a paramount duty of the state. 82 Id. at 178. 83 Id. at 179. 84 Id. at 181. 85 Id. at 179 82.

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110 court made no mention of or reference to any individual rights to education, other than to point out that schools had to be made available to all children of the state, and to refer to the rejection by popular vote of a proposed constitutional amendment that would have explicitly described a quality education as an individual fundamental right.86Oklahoma The Supreme Court of Oklahoma has addressed a constitutional challenge grounded in adequacy once, in Oklahoma Education Association v. State .87 The court in OEA similar to the Nebraska court in H eineman, upheld the dismissal of the action based on the political question doctrine.88 However, unlike the Nebraska court and the courts of other states employing the political question doctrine to dismiss cases, the Oklahoma court did not explicitly rely on Baker or any of its six political question identifiers.89 Rather, the court exclusively relied on the state constitutions explicit mandate for separated powers.90 The court held that it was powerless under the state constitution to interfere with legislative discretion in matters committed to such discretion by law, and that the Legislature was vested with exclusive authority for determining the fiscal policy of the state.91As did the Nebraska court, the Oklahoma court throughout the relevant porti on of its opinion described the language of the education clause as establishing a legislative duty, which 86 Id. at 180. 87 158 P.3d 1058 (Okla. 2007) ( OEA ). 88 Id. at 106566. The Court held earlier in its opinion that the plaintiffs lacked standing, but addressed the political questi on doctrine nevertheless because the application of the doctrine to dismiss the case would render any mandate to dismiss the case without prejudice due to lack of standing futile. See id. at 1065. 89 See id. at 106566. 90 See id. 91 Id. at 1066.

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111 was accompanied with substantial authority and discretion.92 More pointedly, the court reaffirmed its holding in a prior equity case that, Whe n the methods for carrying out this duty are challenged, the only justiciable question is whether the Legislature acted within its powers.93Indiana As with the other courts abstaining from merits review, the Oklahoma court justified its reticence on the discre tionary and positive nature of the duties established by the education clause, and the Oklahoma court went one step further by explicitly drawing a distinction between cases presenting challenges to the exercise of these discretionary duties based on suffi ciency or adequacy and challenges based on legislative action in excess of constitutional limitations. The former would be nonjusticiable as political questions, while the latter would be subject to merits review. The most recent decision inclu ded in this study was rendered June 2, 2009 by the Indiana Supreme Court under the caption, Bonner v. Daniels .94 Bonner came before the Indiana court on appeal from the trial courts grant of a motion to dismiss for failure to state a claim upon which reli ef could be granted.95 92 Id. at 106566. The plaintiffs complaint alleged, in pertinent part that the education clause of the Indiana Constitution established an enforceable legislative duty to provide f or an education system of sufficient quality, and that the current sys tem fell short of the constitutional 93 Id. at 1066 (quoting Fair School Finance Council of Okla., Inc. v. State, 746 P.2d 1135 (Okla. 1987)). 94 907 N.E.2d 516 (Ind. 2009) 95 Id. at 517.

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112 duty.96 The complaint also alleged that the education clause established an individual fundamental right to education in the state, and that the current system infringed this right.97The Indiana Supreme Court rejected both of these claims, holding that, although the education clause established a legislative duty to provide for education, this duty was devoid of any quali ty based standards, and that the legislature was imbued with sound legislative discretion in carr ying out the duty. 98 The court also explicitly held that the state constitution did not establish any individual right to education, let alone a fundamental right.99This recent decis ion did not fit neatly with the other cases in the enumeration because the Indiana court did not engage in any explicit discussion of separation of powers principles. Rather, the court simply examined the constitutional text and found it devoid of any judicially enforceable standards for evaluating legislative action. The trial courts dismissal for failure to state a claim was affirmed. 100 96 Id. at 520. In this way, however, the Indiana court employed the same reasoning as the other courts dismissing adequacy litigation based on the political question doctrine. The court merely did not re fer to its dismissal as such. Therefore, though the connections were not obvious, the Indiana case logically fit with the other cases in which the courts did not engage in merits adjudication. Importantly, and similar to the other courts dismissing on threshold procedural grounds, the Indiana court expressed a conception of the education clause as a repository only of discretionary legislative duties, rather than individual rights. 97 Id. at 522. 98 Id. 99 Id. 100 See id. (And in the absence of [an affirmat ive duty to achieve a particular standard of educational quality], there is no basis for the judiciary to evaluate whether it has been breached.).

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113 Cases in Which the Court Ultimately Reach ed the Merits of the Constitution al Question Arizona The Supreme Court of Arizona has addressed the issue of adequacy of education funding three separate times,101 and the Court of Appeals of Arizona has addressed the issue with no subsequent appellate review once more since the most recent of these Arizona Supreme Court decisions.102 In the first decision, Roosevelt Elem. Sch. Dist. No. 66 v. Bishop ( Roosevelt I ), the court disposed of the adequacy issue in a footnote, declaring that the case, which presented theories of equity based in the substantive provisions of the education clause, afford[ed] us no opportunity to define adequacy of education or minimum standards under the constitution.103 The court went on to hold that the education finance system was unconstitutionally inequitable but stayed any remedy to give the Legislature a reasonable time to act.104The next two cases that reached the Arizona Supreme Court, both captioned Hull v. Albrecht arrived after the trial court, which had retained jurisdiction over the previous equi ty claims, denied the governors motion for a declaration that the Legislatures newly enacted school finance system now met constitutional requirements. 105 The court upheld the trial courts denial of relief to the state.106 101 Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998) ( Albrecht II ); Hull v. Albrecht, 950 P.2d 1141 (Ariz. 1997) ( Albrecht I ); Roosevelt Elem. Sch. Dist. No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994) ( Roosevelt I ). The Court also reviewed the same case once more, but that ruling was based only on equity concerns. However, in so doing, the court converted the case from a simple 102 Roosevelt Elem. Sch. Dist. No. 66 v. State, 74 P.3d 258 (Ariz. App. 2004) ( Roosevelt II ), review denied (Jan. 7, 2004). 103 Roosevelt I 877 P.2d at 814 n.7. 104 Id. at 815 16. 105 Albrecht I 950 P.2d 1141, 1142 (Ariz. 1997). 106 Id. at 1146.

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114 equity case about equalization of funding to a hybrid equity adequacy case about equalization of funds and adequate total state wide funding. The court did so by holding that: The general and uniform requirement applies only to the states constitutional obligation to fund a public school system that is adequate. Defining adequacy, in the first instance, is a legislative task. But, in addition to providing a minimum quantity and quality standard for buildings, a constitut ionally adequate system will make available to all districts financing sufficient to provide facilities and equipment necessary and appropriate to enable students to master the educational goals set by the legislature or by the State Board of Education pur suant to the power delegated by the legislature.107In short, the court took the opportunity, in a post judgment proceeding relating to equity, to establish a constitutional definition of adequacy, at least as to facilities and equipment, and to set that sta ndard as the floor of state wide spending. 108 The court adopted the stance that the adequacy of the facilities funding was to be measured based upon whether such funding was sufficient to provide the facilities necessary and proper for students to meet st ate goals, whether established by the Legislature or by the executive branch.109The court reaffirmed its adequacy standard when the case came before it again in Albrecht II as a result of another legislative reform. Even though the court inserted this new adequacy based reasoning into its analysis of the case, however, the court failed to consider the nature of the duties and rights involved, and the court was not presented with an argument that it should consider separation of powers concerns, most likely because it was ruling on a motion by the state defendants. 110 In Albrecht II the court again invalidated the capital funding portion of the system on equity grounds.111 107 Id. at 1145 (emphasis added). However, on its way to that result, 108 Id. 109 See id. 110 Hull v. Albrech t, 960 P.2d 634, 63637 (Ariz. 1998) ( Albrecht II ). 111 Id. at 639.

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115 the court held unequivocally that the system met t he constitutions commands to establish a standard for adequacy of education and provided sufficient funding for capital facilities necessary to meet that standard.112In most of its opinions, the Arizona court has approached the adequacy based rights contained in the state constitutions education clause as judicially enforceable positive individual rights, and the court has adopted the holding of an early opinion considering these rights to be fundamental. Thus, the most recent adequacy ruling in the highest Arizona court reached the merits and held that the system was adequate, but not equitable. 113For example, the most recent appellate ruling in Arizona However, the court has never explicitly addressed the concepts of judicial review or the separation of powers in any education finance opinion. Accordingly the study of Arizona did not add useful information in addressing the research question that was the focus of this Chapter. Nevertheless, the litigation in Arizona was instructive in that (1) it was the only set of opinions wherein the concept of separa tion of powers or justiciability was not addressed at all, even indirectly; and (2) it was one of very few lines of cases in which the court decisions ultimately trended toward requiring the proof of causation in establishing a constitutional violation rel ating to educational adequacy. 114 112 Id. at 637. applied a test of causation to the decision whether legislative funding was inadequate. This requirement represented an 113 See Roosevelt I 877 P.2d at 811 (acknowledging that the Courts decision in Shofstall v. Hollins an early equity case, had found education to be a fundamental right, an d questioning the application of the rational basis test in that case); id at 817 (Feldman, J. specially concurring) ( Assuming our constitutional framers sought substance and not mere form, Arizona's children have the right to receive a free, public, basi c education through high school. ); see also Shofstall v. Hollins 515 P.2d 590, 592 (Ariz. 1973) ( We hold that the constitution does establish education as a fundamental right of pupils between the ages of six and twentyone years. The constitution, by i ts provisions, assures to every child a basic education. ). 114 The adequacy issue came before the Arizona appellate courts once more recently, and that decision was denied review by the Arizona Supreme Court, so it bears mention here. See Roosevelt Elem Sch. Dist. No. 66 v. State, 74 P.3d 258 (Ariz. App. 2004) ( Roosevelt II ), review denied (Jan. 7, 2004). In Roosevelt II the original district plaintiffs challenged the state system, as it was reformed after Albrecht II as generally inadequate as to capital

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116 important doctrinal divergence from the exi sting adequacy cases, which more often are decided based not on proof of a connection between funding and the ability of particularized students or other plaintiffs to achieve state mandated standards, but on the assumption of the existence of such a conne ction state wide.115Massachusetts Ultimately, the Arizona opinions were more useful for what the opinions did not say, than for what the opinions did say. That is, as the lone example of a state high court seemingly completely unconcerned with judicial competence or en croachment of separate, coordinate branch functions, the Arizona court supplied a useful baseline from which the normative proposals for the future shape of education adequacy litigation could be drawn and reported in Chapter Six of this study. The fact that two of its three major opinions in education finance suits were rendered at the request of the State lent indirect support to the claim that in the typical case presenting adversarial claims against the State, separation of powers concerns are paramo unt. The Supreme Judicial Court of Massachusetts has addressed the adequacy question twice, once in 1993116 and once in 2005.117 In the first appeal, four justices of a five justice court held that the state legislative body was in violation o f its duty to provide adequate education.118 facilities because one capital facilities program set forth in the comprehensive legislatio n had not been funded at all. Id. at 259. The court held that the districts had not carried their burden to establish a violation of the constitution becau se they had failed to show that the lack of funding in the single program had negatively impacted the ability of their students to achieve the curricula r goals set by the Legislature. Id. at 26567. The court employed rules of construction arguably relat ing to the separation of powers, such as, Generally, every l egislative act is presumed to be constitutional and every intendment must be indulged by the courts in favor of validity of such an act, to justify its refusal to engage in further substantive r eview of the legislatures determination. Id. at 265. In 115 See, e.g. Alfred A. Lindseth, The Legal Backdrop to Adequacy in Eric A. Hanushek, Ed., SCHOOL MONEY TRIALS, 5766 (2006) (describing the notable absence of any evidence of causation in prominent adequacy suits). 116 McDuffy v. Secretary of Executive Office of Educ. 615 N.E.2d 516 (Mass. 1993) (hereinafter, McDuffy ) 117 Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005) (hereinafter, Hancock ). 118 McDuffy, 615 N.E.2d at 55354.

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117 reaching its decision, the court approached the issues presented with some restraint, declining to even consider whether to invalidate the existing statutory scheme. Instead, the court stated, we shall restr ict ourselves to a determination whether the constitutional language of Part II, C. 5, 2, is merely hortatory, or aspirational, or imposes instead a constitutional duty on the Commonwealth to ensure the education of its children in the public schools.119 The court declined to engage the parties various claims as to the substantive adequacy of the system, preferring to interpret the legislative duty as one to ensure education which may or may not have implied adequate education.120 However, the court did ultimately analyze the adequacy of the system as applied to certain low wealth districts and rule that the constitutional standard was not met due to large disparities in funding between these and other, higher wealth districts.121Interestingly, the McDu ffy opinion contained no discussion of separation of powers principles whatsoever. However, like many courts ruling state systems unconstitutional at least in part on adequacy grounds, the McDuffy court went only so far as to hold the system unconstitutional, set forth a set of guidelines as to the meaning of an adequate education, and send the issue to the Legislature 122 for the enactment of remedial legislation.123 119 Id. at 550 51. The court remanded the case to the county court for the issuance of an order specifying (1) t hat the Commonwealth was bound by a duty to provide for the adequate education of all children within 120 See id. at 550 n.8 ( To us the words adequate and education can be viewed as redundant as well as contradictory. ). 121 Id. at 552 54. 122 This term was used here to avoid textual confusion. Massachusetts refers to its law making body and the Gen eral Court of the Commonwealth. 123 Id. at 552 54, 561. Interestingly, the Court chose to adopt as its own guidelines the seven elements of an adequate education articulated by the Kentucky Supreme Court in the seminal Rose case. Id. at 554 (quoting Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989)); see also infra this Chapter.

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118 its borders; (2) that this duty was presently not met; (3) that the Legislature was not empowered to delegate its entire responsibility to local districts ; and (4) that the Legislature was required to enact legislation ensuring funding sources sufficient to provide adequate education.124 The court also authorized the county court judge to retain jurisdiction to determine whether any new legislation sufficien tly remedied the constitutional deficiency.125The case came before the Supreme Judicial Court on appeal again in 2005 after several years of legislative activity. 126 Unlike in the first appeal, in the second appeal, styled Hancock v. Commissioner of Educat ion, the courts majority explicitly considered the ideas of separation of powers and judicial review, but this consideration did not result in a truly definitive ruling.127 The courts majority issued a very short opinion, rejecting the Report and Recommendation of a single justice, who had recommended that the court order the legislature to commission and fund an adequacy study.128 The courts short opinion also fully and finally disposed of the case, which had been subject to the continuing jurisdiction of the Massachusetts courts based on the earlier McDuffy mandate.129 This brief opinion of the courts judgment, issued by five of the seven justices, was followed by a three justice plurality concurrence, a two justice minority concurrence and two dissenting opinions.130The plurality voted to reject the Report and Recommendation on the basis that, although the Massachusetts Constitution established a judicially enforceable duty to provide an adequate 124 Id. at 561. 125 Id. 126 Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005). 127 Id. at 1131 n.6 (Marshall, C.J., concurring) (plurality opinion); 116 0 63 (Cowin, J. concurring). 128 Id. at 113637. 129 See McDuf fy v. Sec. of the Exec. Off. of Educ., 615 N.E.2d 516 (Mass. 1993). 130 Hancock 822 N.E.2d at 1136 37.

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119 education, the current system of education, despite documented deficiencies and disparities relating to individual districts, met this standard.131 The plurality stated that the plaintiffs had failed to show that the Legislature, in enacting the current system following the adverse McDuffy decision years earli er,132 had abdicated its duty to cherish the public schools by acting in an arbitrary, nonresponsive, or irrational way to meet the constitutional mandate .133 The plurality advocated this position in spite of the fact that wide disparities in absolute funding continued to exist between districts within the state.134The minority concurrence went one step further, arguing that McDuffy should be overruled in pertinent part on separation of powers grounds. The language of the pluralitys concurrence suggested that, rather than reaching the merits of the alleged inadequacy of the states education system, the court should confine its review to whet her the Legislature has acted arbitrarily or has acted in good faith in executing its constitutional duties. 135 A ccording to the minority concurring justices, the education clause could not be subjected to substantive review by the judiciary because any remedy that the court could impose on the legislature would require it to order taxation and spending, clearly legi slative functions.136 The minority concurrence relied explicitly on the Massachusetts Constitutions separation of powers clause137 131 Id. at 1140. as a justification 132 See McDuffy, 615 N.E.2d at 516. 133 Hancock 822 N.E.2d at 1140 (Marshall, C. J., concurring) (plurality opinion). 134 Id. 135 Id. at 1160 (Cowin, J., concurring). 136 Id. at 1161 (Cowin, J., concurring). 137 Mass. Const. Pt. I, art. 30 provides, In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a g overnment of laws and not of men.

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120 for judicial abstention, concluding, Where, as here, the remedy for an alleged deprivation would require a court to order the Commonwealth to spend money that the Legislature has not appropriated, judicial intervention is not permitted.138 The minority concurrence further explained that judicial intervention is not available where the basis for a complaint is merely that the Legislature has failed to carry out a responsibility assigned to it.139The two dissents advocated precisely the opposite point. The first, penned by Justice Greaney, who was then the only remaining Justice who had sat on the McDuffy court, a dvocated reaffirmance of McDuffy and full adoption of the Report and Recommendation. 140 The remaining dissenting opinion essentially advocated the same outcome, but focused its criticism on the pluralitys conclusion that the adequacy standard had been subs tantively met by the Legislature due to its failure to act arbitrarily, non responsively, or irrationally.141Taking the four opinions together, it is clear that five of the seven Justices would agree that the education clause provides significant discreti on to the legislature in determining levels of funding. Also, it appears that all five Justices concurring in the judgment would decline to invalidate legislative action taken after deliberation or otherwise taken in good faith. The key difference between the two concurring opinions is that the plurality would engage in at least some limited review of legislative action including, at least, a review of the legislative process 138 Hancock 822 N.E.2d at 1161 (Cowin, J., concurring). 139 Id. (Cowin, J., concurring) (quoting LIMITS v. President of the Senate 604 N.E.2d 1307, 1310 (1992) (a judicial remedy is not available whenever a joint session f ails to perform a duty that the Constitution assigns to it) ) The minority concurring justices also drew the Courts attention to a familiar principle in separation of powers doctrine that has been completely overlooked in most states addressing adequacy challenges the principle that Mandamus is not available against the Legislature See id. (quoting LIMITS 604 N.E.2d at 1310) This principle has also been completely overlooked in the literature on judicial review in education finance litigation, and it presents a fertile subject for future research. 140 Id. at 1169 (Greaney, J., dissenting). 141 Id. at 1174 (Ireland, J., dissenting).

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121 resulting in the challenged funding legislation while the minority would view an y judicial review in connection with the positive duties set forth in the education clause as an improper judicial intrusion on legislative prerogatives, in direct violation of the separation of powers clause of the state constitution. In the two opinions comprising the courts majority, there was observed a tendency to view the language of the education clause as discretionary duty based, not rights based. The plurality concurrence reaffirmed the courts earlier pronouncement that the education clause imposed an enforceable duty on the Legislature.142 The minority concurrence also used the language of duty and discretionary functions to describe the Legislatures constitutional responsibility.143 The concurring opinions of the justices comprising the majority thus apparently agreed to the extent that the language of the education clause does not create an individual right, but a collectively enforceable duty. It was not surprising that the justices impliedly agreed on this point because the court had already ruled in another context that no individual fundamental right to an education exists under the Massachusetts Constitution.144Texas Thus, the Massachusetts court has held that the state constitution establishes an enforceable duty, but has also held that no individual possesses any corresponding right. The Supreme Court of Texas has had a good deal of experience with education finance lawsuits,145 142 Id. at 1158 (Marshall, C.J., concurring) (plurality opinion). but only once has the court fully addressed judicial review under separation of 143 Id. at 116061 (Cowin, J., concurring). 144 See Doe v. S up. of Schools of Worcester 653 N.E.2d 1088, 109596 (Mass. 1995) (declining to read McDuffy as recognizing a fundamental individual right to education, such that expulsion decisions would have to be analyzed using strict scrutiny). 145 Among the states, Texas may have the most storied history of education finance litigation. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.1, 35 (1973) (holding that education rights, if they exist, are defined under

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122 powers principles i n a pure adequacy based constitutional challenge to the states education finance system.146 In Neely v. West Orange Cove CISD the plaintiffs contended that the state system could not achieve a general diffusion of knowledge because total statewide fundi ng was inadequate.147 The courts review of the case came after the trial courts order enjoining the Legislature from continuing to fund the public schools.148 Many contentions were presented to the court in Neely, and among these, the state contended that the Texas courts should cease the longstanding judicial involvement with education finance litigation because the questions presented in such litigation were political in nature.149The court, relying on its earlier justiciability holdings in one of the ma ny earlier equity cases and the first Neely appeal, held that the adequacy question was justiciable. 150 Specifically, the court held that, although the state constitution contained a specific textual commitment of education policy to the Legislature, the ex istence of subjective terms in the mandate, such as suitable provision, efficient, essential, and general diffusion of knowledge rendered the provision suitable for judicial review.151 state law); see also Edgewood Ind. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989) ( Edgewood I ); Edgewood Ind. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex.1991) ( Edgewood II ); Carrollton Farmers Branch Ind. Sch. Dist. v. Edgewood Ind. Sch. Dist., 826 S.W.2d 489 (Tex.1992) ( Edgewood III ); Edgewood Ind. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex.1995) ( Edgewood IV ); West Orange Cove Consol. Ind. Sch. Dist. v. Alanis, 107 S.W.3d 558 (Tex.2003) ( West Orange Cove I ). Although justiciability was not placed at issue in the first ade quacy based appeal to come before it, the Neely court quoted its earlier language from 146 Neely v. W. Orange Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746 (Tex. 2005). 147 Id. at 752. 148 Id. at 754. 149 Id. at 772. 150 Id. at 776. Later in the opinion, the Court stated, This Court has never held an issue to be a nonjusticiable political question, and we have referred to the doctrine only in passing. Id. at 780. 151 Id.

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123 this appeal that the Legislature has the sole right to decide how to meet the [constitutional] standards and the Judiciary has the final authority to determine whether they have been met.152In addition to quoting its earlier ruling, the court included various references to cases relied upon in that appeal to support the courts decision to engage in merits review. Among these was the venerable Marbury v. Madis on, the case out of which emerged the concept of judicial review in the nascent United States. 153 Also cited in support was Love v. Wilcox, a Texas case almost identical to Marbury in its facts.154 Finally, the Neely court relied on two of the many Edgewood cases, which were earlier education finance challenges presenting equity based arguments.155The Neely court, unlike many other state courts electing to address an adequacy challenge on the merits, initially seemed to approach the judicial review issue as one about review of legislative fulfillment of positive duties, not legislative action in conflict with limitations based on individual rights. For example, in determining the propriety of judicial review, the court explained that the Legislature could not be considered the final authority on whether it has 152 Id. ( quoti ng West Orange Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 563 64 (Tex. 2003) ). 153 Id. at 777 n.169 (quoting Alanis, 107 S.W.3d at 576578 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176178 (1803) ) 154 Id. (quoting Love v. Wilcox, 28 S.W.2d 51 5, 520 (1930) ). The Love Court substantially relied on Marbury in its reasoning. See Love, 28 S.W.2d at 520. 155 Id. at 776 (quoting Edgewood Indep. Sch. Dist. v. Kir by, 777 S.W.2d 391 (Tex.1989) [ Edgewood I ] ; 777 n.169 (quoting Edgewood Indep. Sch. Di st. v. Meno, 917 S.W.2d 717 (Tex. 1995) [ Edgewood IV ] ). In Edgewood IV the Court did briefly consider an adequacy argument based on allegedly inadequate facilities, but disposed of it for lack of supporting evidence without considering whether separati on of powers concerns should be re analyzed in light of the more positive nature of the right to sufficient facilities: Certainly, if the Legislature substantially defaulted on its responsibility such that Texas school children were denied access to that education needed to participate fully in the social, economic, and educational opportu nities available in Texas, the suitable provision clause would be violated. The present record, however, does not reflect any such abdication. Total state aid has risen dramatically since 1988 89, from $4.9 billion to over $7 billion; and while the wealthiest districts are now receiving substantially less from the State than in 1988 89, total state and local revenue has grown significantly for all districts. Given these facts, we hold that the Legislature has not violated its constitutional duty to make suitable provision for the public school system. Edgewood IV 917 S.W.2d at 73637.

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124 discharged its constitutional obligation.156 However, later in its opinion, when discussing the merits, the court made clear that its conception of a constitutional violation consisted of legislative a ction so arbitrary as to be violative of the constitutional rights of the citizen.157Consistent with this concept, the court concocted a highly deferential standard of substantive review and ultimately held that the state system was not in violation of constitutional standards. Through these two lines of reasoning, the court apparently conflated the positive nature of the duty to provide adequate education and the negative individual right to prevent arbitrary legislative action. 158 Essentially, the co urt held that any state system that was not arbitrary complied with the constitutional command.159 Interestingly, substantial dicta following the courts holding of no constitutional violation focused on the fact that student performance had improved as e ducation finance had progressed in Texas, and that the system should not be held unconstitutional in the face of this progress.160 Although these dicta could be read as a means of evaluating the arbitrariness of the Legislatures action, they could also be read to allow room in the future for a very forgiving, output oriented standard, rather than the more input oriented standard of arbitrariness of legislative action espoused in the opinion.161 156 Id. at 777 (emphasis added). 157 Id. at 784. 158 Id. (establishing arbitrariness as the touchstone for whether a state education finance system is unconstitutional). 159 Id. 160 Id. at 789 90 (finding it important to the arbitrariness question that the test scores in Texas had improved even relative to those of other states). 161 Id. at 7 8990.

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125 New Jersey By a wide margin, the courts of New Jersey have engaged in the most active ongoing review of legislative action concerning education finance among the fifty states. Beginning with the seminal case Robinson v. Cahill162 in 1973, which was an equity based challenge founded on the education clause in the st ate constitution, the states Supreme Court has passed judgment on numerous challenges to the legislative system over the past thirty five odd years, and the litigation remained active at the time of this study.163For the purposes of this study, only thre e of the many New Jersey appeals were pertinent. The first was decided outside the general time frame encompassing the other cases examined in this study, but it set the stage and provided the majority of the substantive analysis justifying judicial revie w in the second and third appeals, which were both decided after 1989. This early appeal is generally referred to as Robinson IV 164 and it stemmed from the line of appeals beginning with the New Jerseys initial seminal ruling in 1973 holding the state sys tem to be unconstitutional based on the equality based provisions of the state constitutions education clause.165 162 303 A.2d 273 (N.J. 1973), cert. denied sub. nom. Dickey v. Robinson, 414 U.S. 976 (1973) (hereinafter, Robinson). In Robinson IV unlike in the cases that preceded it, the court ordered affirmative legislative action in conformance with its prior rulings that the states education system, due to 163 See Bd. of Educ. of the City of Millville v. N.J. Dept. of Educ., 872 A.2d 1052, 1053 (N.J. 2005) (reviewing the Commissioner of Educations ruling that the legislature was not required to fund locally approved early childhood education programs under the various mandates handed down by the Court in the Robinson line of cases). 164 351 A.2d 713 (N.J. 1975). 165 Robinson, 303 A.2d at 294, 297.

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126 the inequalities within it, was not thorough and efficient, as required by the education clause.166Preceding its remedial order, the court took pains to justify its intervention and its order of legislative actio n by making reference to the concept of the separation of powers. The court explained that, although the method for carrying out the commands of the state constitution was a matter reserved to legislative discretion, this discretion must be exercised cons titutionally. 167 That is, the courts role in all cases is to judge the constitutionality of legislative action, but the means for remedying unconstitutional legislative action lie in the first instance with the Legislature.168However, the court explained, w hen legislative action or inaction infringes upon a fundamental constitutional right, such as the right of New Jerseys children to a thorough and efficient education, as previously defined by the court, the court has a duty to step in and mandate that t he system be set right. 169 The Robinson IV court considered enjoining the distribution of all state education funds until the system could be rendered constitutional, but considered that remedy too harsh.170 166 Robinson IV 351 A.2d at 718. The Court had previously ordered the Legislature to enact a new school finance system in compliance with the state constitution, and had decided, in deference to the general concept of the separation of powers, t o stay its remedial hand as long as the Legislature enacted such legislation on or before December 31, 1974, with an effective date no later than July 1, 1975. See Robinson v. Cahill, 306 A.2d 65, 66 (1973) (hereinafter, Robinson II ). The issue of the separation of powers was not fully discussed until the court issued its opinion in Robinson IV relating to the issuance of a remedial order. Thus, the New Jersey courts have never made an explicit analysis as to the propriety of judicial review of the question whether a constitutional violation exists, but rather have analyzed the question only as to whether a remedy can be ordered. Instead, the court ordered that specific redistrib uted 167 Id. at 719 20. 168 Id. 169 Id. at 720. 170 Id.

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127 appropriations be made by the state to local districts for one school year, in accordance with a plan proposed to the court by the governor, who was the nominal defendant in the action.171The court justified its adoption of the traditionally legislative role of determining appropriations based on several cases in which various courts had ordered and engaged in ongoing monitoring of legislative reform after adjudicating constitutional violations. 172 The court further explained that, because the legislat ive inaction identified in the previous Robinson cases transcends [the interest] of an ordinary individual claimant against the State, the court was required to act, even in a sense seem to encroach, in areas otherwise reserved to other Branches of government.173The courts decision to involve itself in policy making in Robinson IV would not ordinarily be relevant to an adequacy based study such as this one, as Robinson IV only presented equity based theories of relief. However, the later decisions of the New Jersey Supreme court in Abbott by Abbott v. Burke and its related line of appeals, in which the court both found a constitutional violation based on an adequacy theory and ordered a specific remedy for that violation, relied without qualification or reexamination upon the courts previous discussion of separation of powers principles in Robinson IV to justify judicial review of the adequacy question. 174 171 Id. at 720 22. 172 Id. at 723 (citing Swann v. Charlotte Mecklenburg Bd. of Ed uc., 402 U.S. 1 (1971); Griffin v. School Bd. of Prince Edward County, 377 U.S. 218, 23334 (1964); Hawkins v. Shaw, 437 F.2d 1286 (5th Cir. 1971); Kennedy Park Homes Ass'n v. Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert. den. 401 U.S. 1010 (1971); Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C.1972); Jackman v. Bodine, 205 A.2d 713 (1964)). 173 Id. at 724 (citing Powell v. McCormack, 395 U.S. 486 (1969)). 174 See Abbott v. Burke, 693 A.2d 417, 427 (N.J. 1997) (hereinafter Abbott III) (citing Abbott v. Burke 575 A.2d 359, 36769 (N.J. 1990) (hereinafter, Abbott II ), in which the Court referred to the separation of powers issues identified by the Court in Robinson IV in justifying a broad definition of the constitutional command, so as to allow for the grea test legislative discretion). The Courts discussion in Robinson IV was also directly referenced and discussed in the first of the Abbott line of cases, which dealt only with an equity based challenge. See Abbott v. Burke, 495 A.2d 376, 38283 (N.J. 1985 ) (hereinafter, Abbott I ).

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128 In Abbott III the court referenced its prior reliance on the Robinson line of cases in Abbott I I the decision in which the court first defined the nature of an adequate education.175 The court in Abbott II had found the system unconstitutional and had generally ordered the Legislature to remedy the defect, but had made clear that any remedy must s ubstantially equalize spending per pupil among wealthy and poor districts.176The court in Abbott III recognized that the separation of powers principles set for th in Robinson IV and referred to in Abbott II counseled judicial deference as to the courts evaluation of thencurrent legislative efforts. Following that ruling, the Legislature engaged in a significant overhaul of the state system. 177 Based on this deference, the court concluded that the Legislatures recently promulgated state education sta ndards were facially adequate as a reasonable legislative definition of a constitutional through and efficient education.178 Nevertheless, based on the Legislatures failure to base spending in certain special needs districts on the per pupil expenditur es of the most successful school districts in the state, the court went on to hold that state funding was still constitutionally inadequate, as applied to the special needs districts.179 The court mandated that the lower court order the Commissioner of Ed ucation to commission a third party study to determine the amount of funding that would be required to make the education provided in the special needs districts adequate.180 175 Id. at 428. 176 Abbott II 575 A.2d at 387. 177 Abbott III 693 A.2d at 428. 178 Id. 179 Id. at 433. 180 Id. at 444.

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129 In response to the courts mandate in Abbott III the legislative and executive branches put forth their own proposals for reforms and funding mechanisms and brought them before the court, which ordered that they be carried out.181In initially justifying its decision to reach the merits of the constitutional claim and to impose a remedy, the Robinson IV court cited the New Jersey case of Cooper v. Nutley Sun Printing Co., Most relevant to this study was the courts mode of justification for its involvement in this ongoing su pervision of legislative action. Because the Abbott Courts based the decision to engage in full judicial review almost entirely on the fact that the court had already engaged in such review in the Robinson line of cases, it was appropriate to consider the justifications contained in Robinson IV the opinion in that line of cases most directly addressing separation of powers concerns. 182 in which the court had held that it could address and remedy an abridgement by a private employer of the plaintiffs state constitutional rights to organize and bargain collectively.183 In response to the defenses argument that the court could not reach the merits of the constitutional claim absent a statute creating a cause of action, Justice Proctor explained that the fundamental rights set forth in the state constitution are action able even in the absence of the legislative creation of a cause of action.184 181 Abbott v. Burke, 710 A.2d 450 (N.J. 1998) (hereinafter Abbott IV ). Justice Proctor explained that the court could address alleged violations of constitutional rights even absent such a statute because just as the 182 Robinson IV 351 A.2d at 718. 183 Cooper v. Nutley Sun Printing Co. 175 A.2d 639, 643 (N.J. 1962). Interestingly, the main question in the case was whether one could assert a constitutional cause of action against another individual for that individuals infringement of ones constitutional rights. The case did not involve the failure of the legislature to protect anyones rights, but merely the absence of legislation establishing a cause of action against non state actors engaging in behavior negatively affecting such rights. If the case w ere to truly serve as a source of a valid analogical principle for the Robinson case, it would have taken the form of an action against the legislature for failure to enact such legislation. 184 Id.

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130 Legislature cannot abridge const itutional rights by its enactments, it cannot curtail them through its silence. 185The Robinson IV court quoted this language in support of its order for a one year provisional remedy of the violation of the plaintiffs state education rights through unequal legislative appropriations. 186To address objections arguing that the court was institutionally incompetent to direct the Legislature to make appropriations sufficient to equalize expenditures for one year, the Robinson IV cour t cited several state and federal constitutional cases in which the same sorts of mandates The quoted provision in Cooper merely had applied the familiar rule of law that constitutional provisions establishing individual civil rights are self executing the rights do not require any enabling legislationand the c orollary proposition that a legislature cannot erase individual rights from a constitution by simply failing to create statutory causes of action to vindicate those rights. However, the Robinson IV court applied the quoted language not because the Legislature had argued that education rights were nonexistent, and not because the Legislature had failed to establish any substantive education program, but because in the courts opinion, the Legislature had not acted assiduously to remedy the constitutional violations identified in earlier stages of the Robinson case. The question of whether the identified rights were self executing (the question in Cooper ) was presented nowhere in the long line of Robinson cases. Robinson IV then, presents a classic case o f selective quotation without proper context, and the substantive pronouncement that the court selectively quoted out of context was carried through the entire line of subsequent appeals to justify the most active judicial review of education finance adequ acy in the nation to date based on legislative silence. 185 Id. 186 351 A.2d at 720.

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131 had been issued from the bench.187 In the first cited case, Jackman v. Bodine the New Jersey Supreme Court had invalidated the state constitutions apportionment of the Legislature in response to a challenge based on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.188 The Jackman court cited the then recent Equal Protection Clause case of Baker v. Carr in support of its initial decision to review the state constitutions apportionment provisions for constitutionality.189 Upon reaching the merits and identifying the constitutional violation, the court took the principal steps of (1) enjoining further elections under the unconstitutional apportionment system; (2) enjoining the use of legislative power after one of two dates by any legislator elected under the unconstitutional system; and (3) authorizing an expedited process for calling a constitutional convention to remedy the infir mity.190The second and third cases The court did not order any particular legislative action, particularly the making of expenditures. 191 187 Id. at 723 (citing Swann v. Charlotte Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Griffin v. School Bd. of Prince Edward County, 377 U.S. 218, 23334 (1964); Hawkins v. Shaw, Mississippi, 437 F.2d 1286 (5th Cir. 1971); Kennedy Park Homes Ass'n v. Lackawanna, N.Y., 436 F.2d 108 (2d Cir. 1970), cert. den. 401 U.S. 1010 (1971); Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C.1972); Jackman v. Bodine, 205 A.2d 713 (N.J. 1964). cited in Robinson IV were federal cases adjudicating local school districts to be in violation of the Fourteenth Amendme nts Equal Protection Clause, as 188 205 A.2d at 727. The constitutional violation identified was a violation of the one person, one vote principle of apportionment first articulated in Reynolds v. Sims 377 U.S. 533 (1964), a case decided by the United States Supreme Court the same year as Jackman 189 Id. at 714 (citing Baker v. Carr, 369 U.S. 186 (1962) ). The Court in Baker had considered the question of the justiciability of state apportionment systems and had concluded that they were subject to judicial review. That is, the constitutionality of a state election systems apportionment provisions does not constitute a non justiciable political question. Baker 369 U.S. at 22829. Specifically, the Baker Court stated: We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought political, can have no b earing upon the justiciability of the equal protection claim presented in this case. Finally, we emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define political questions, and no other feature, which could rend er them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable [merely] because they touch matters of state governmental organization. Id. (alteration supplied for clarity). 190 Id. at 727. 191 Swann, 402 U.S. 1, 32 (1971) ; Griffin 377 U.S. 218, 233 34 (1964).

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132 outlined in the landmark case of Brown v. Board of Education.192 The first of these, Swann v. Charlotte Mecklenberg Board of Education, resulted in the affirmance of an ambitious District Court order requiring the local school board to remedy rampant discrimination in its school system that had been perpetuated through racially discriminatory housing and school construction by, in part, forcing pupils to travel by bus to attend schools outside their local neighborhoods.193 The second of these, Griffin v. School Board of Prince Edward County resulted in a court order to cease issuing private school vouchers to white parents and to reopen the districts public schools, which the district had closed in defiance of the Supreme Courts desegregation order in Brown s follow on case, referred to as Brown II .194 This remedy even included an order to require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia .195In the fourth cited case, Hawkins v. Town of Shaw 196 the Fifth Circuit ordered a local municipality to remedy race discrimination in the provision of public services, which violated the federal Equal Protection Clause, by providing the court with a plan to extend services such as street lighting, drainage, and paved roads into predominantly minority neighborhoods.197 192 347 U.S. 483 (1954) The court had found that such services were nearly uniformly provided only to neighborhoods solely 193 Swann, 402 U.S. at 2732. 194 Griffin 377 U.S. at 23334 (applying Brown v. Bo ard of Education, 349 U.S. 294 (1955) ( Brown II ) In Brown II, the Court had ordered that desegregation proce ed with all deliberate speed. 349 U.S. at 301. In response to Brown II, the Virginia district hatched a plan to perpetuate its unequal school system by simply closing down all of the public schools in the district and providing tax rebate vouchers to the parents of white children to use for private school tuition. 195 Id. at 233. 196 437 F. 2d 1286 (5th Cir. 1971) 197 Id. at 129293.

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133 occupied by white citizens, and the intention of the ordered plan was to remedy this clearly unequal treatment.198 The fifth case, Kennedy Park Homes Ass'n v. Lackawanna, N.Y., resulted in an order for the city defendant to approve the construction of a low income housing development, which had been denied approval for discriminatory reasons, in violation of the federal Equal Protection Clause, and to provide necessary sewer fa cilities on the same basis that it would for any other new development.199 In the final case cited in justification of the New Jersey Supreme Courts order for increases in expenditures, the Washington, D.C. case of Mills v. B oar d of Education, the court or dered that disabled students either be admitted to the local public schools or be provided with alternative means of education through alternative schooling or private school vouchers.200 The Mills court issued its order to remedy violations of the federal Equal Protection Clause based on disability discrimination unjustified by any rational basis and violations of the federal Due Process Clause due to the lack of a hearing for handicapped children denied public education.201In each of the cases cited in Ro binson IV and in Robinson IV itself, the rights at issue would have been considered negative liberties, enabling one to stop government action. 202 198 Id. In Cooper the right the court protected through its remedy was the right to bargain collectively free from i nterference. The remedy prohibited the interference, even from a nongovernment actor. In all of the other cases, the right protected was the right to prevent unequal government treatment. The remedy in each case might have required government action, b ut each such 199 Kennedy Park Homes Ass'n v. Lackawanna, N.Y., 436 F. 2d 108 114 (2d Cir. 1970). 200 Mills v. Bd. of Educ., 348 F. Supp. 866, 87883 (D.D.C.1972). 201 Id. at 876. 202 See supra, Chapter 2.

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134 action was ordered only to equalize treatment in each case to remedy prior unconstitutional affirmative government action. Similarly, in Robinson IV the goal of the courts limited remedial order was to equalize expenditures among wealthy an d poor districts for one year.203Based both on the discussion of how the right to education was violated by the New Jersey Legislature, and on the discussion of the remedy of the violation, it is clear that the New Jersey Supreme Court has felt comfortable in its role only where it has approached education rights as negative liberties. Throughout the Abbott appeals, the court generally has explained that it is not enforcing a strict equality standard, and the court continuously has referred to the need for the state to provide the plaintiff districts with sufficient absolute funds. Nevertheless, in these cases, the substance of the constitutional violation appears to be solely that disadvantaged districts do not receive comparable funding to New Jerseys wealthiest districts, and the remedies imposed have been limited to the equalization of spending among poor and wealthy districts. In justifying its engagement in merits review, then, the New Jersey court failed to address the positive nature of individual rights to educational adequacy. It is true that, in Abbott II the court held that the special need districts containing mostly poor and disadvantaged students were not receiving a thorough and efficient education in the absolute. This holding, however, was explicitly predicated on the vast differences in spending and overall educational achievement between poor districts on one hand, and wealthy districts on the other. It is also true that, in pronouncing its general remedy in Abbott II the cour t mandated only equalization of spending, even conceding that such equalization could even be permissible if it were accomplished through leveling down of expenditures.204 203 Robinson IV 351 A.2d at 723 24. 204 See Abbott II 575 A.2d at 409. Specifically, the Court ordered: The Legislature may devise any remedy, including one that completely revamps the present system, in terms of funding, organization, and management, so

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135 Moreover, even after identifying a constitutional violation based ostensibly on insufficient absolute funding, the court retreated from this position and explained that unequal funding, rather than insufficient absolute funding, was at the core of the constitutional violation.205New York Thus, although it has mentioned the right to an absolute l evel of education funding, the New Jersey court has always approached the education clause from a perspective more appropriate to evaluating legislative action infringing on negative rights. Through its unqualified reliance on prior appellate opinions approving active judicial review in negative rights cases, the court has justified its engagement in judicial review based on the noncontroversial duty of the courts to stop governmental actors from taking affirmative acts in violation of negative rights. I n so doing, the New Jersey court, like many other state courts, has not evaluated the propriety of judicial review and remediation of violations of positive rights or duties as such. The highest New York court, which is the New York Court of A ppeals, has reached the merits of one adequacy based challenge.206 In Campaign for Fiscal Equity v. State the court adopted its earlier dicta in an equity based appeal in Board of Education v. Nyquist to hold that the state constitutions education clause established a constitutional duty for the Legislature to provide a sound basic education.207 long as it achieves a thorough and efficient education as defined herein for poorer urban districts. It may phase in that new system and phase out the old. It may choose, for instanc e, to equalize expenditures per pupil for all districts in the state at any level that it believes will achieve a thorough and efficient education, and that level need not necessarily be today's average of the affluent suburban districts. The most signific ant aspect of that average today is not its absolute level, but its disparity with the average of the twenty eight poorer urban districts. (emphasis added). For this reason, it was necessary to consider Nyquist along 205 Id. 206 Campaign for Fiscal Equity, Inc. v. State, 655 N.E.2d 661 (N.Y. 1995) (hereinafter Ca mpaign). This case came before the Court on a motion to dismiss for failure to state a claim, but in resolving the issue of whether a claim had been pled, the Court chose to provide substantive content to the states Education Clause. 207 Id. at 665 (citin g Board of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 439 N.E.2d 359, 369 (N.Y. 1982)).

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136 with the later New York cases, even though it was decided outside the generally accepted time frame du ring which most adequacy based cases have been heard and decided. The court in Nyquist was presented with a challenge to funding disparities between property rich and property poor districts (including inner city districts).208 The stated challenge was based on both the state and federal equal protection clauses, as well as the education clause of the state constitution.209 Most important to the purposes of this study, the court first considered sua sponte the impact of separation of powers principles on it s decision making authority in the case.210 The Nyquist court, in a nuanced discussion of the competing intergovernmental interests impacting education policies, explained that it would ordinarily be reluctant to intrude upon legislative and executive discr etion, particularly where a case presents a challenge to the entire state funding system, if only because it would be nearly impossible to fashion an appropriate remedy for an identified failure of state wide policy.211 Nevertheless, the court held the issues before it to be appropriate for judicial review.212In reaching this holding, the court construed the challenge before it as a challenge to specific legislative appropriations to individual districts based on lack of equality with appropriations made to nonplaintiff districts. 213 208 Nyquist 439 N.E.2d at 361. The court explained, With full recognition and respect, however, for the distribution of powers in educational matters among the legislative, executive and judicial branches, it is nevertheless the responsibility of the courts to adjudicate 209 Id. 210 Id. at 363 64. 211 Id. 212 Id. 213 Id.

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137 contentions that actions taken by the Legislature and the executive fail to conform to t he mandates of the Constitution, which constrain the activities of all three branches .214 The courts chosen language in justifying its justiciability holding made clear the fact that the court approached the case as one implicating limitations on legislative conduct, a posture only appropriate to analysis of negative individual rights, such as the right to equal protection, which was at issue in the case. This conclusion was further supported by the courts resort to rational basis review of the merits of the constitutional challenge.215In rejecting the challenge on the merits, the Nyquist court held that the state constitution did not prohibit inequaliti es in spending that were rationally related to the legitimate government interest in local control. 216 The court further held that the spending in the property poor districts was not shown to be low enough to result in the deprivation of a sound basic educ ation,217 which the court defined simply as an education.218 214 Id. at 363 (emphasis added). The court punctuated its ruling with the following statement: 215 See id. at 366. Rational basis review is a doctrine f ollowed to review legislative action alleged to be in violation of equal protection principles, where such action treats members of different socioeconomic groups differently, as opposed to treating members of different racial groups differently, which wou ld call instead for strict scrutiny review. See i d. Both doctrines of review are applied only in the negative rights context. The question that each effectively asks is whether a challenged legislative action treating different groups differently is suf ficiently justified. For either standard to be applied, the legislature must first take action arguably in violation of a plaintiffs negative right to prevent unequal protection under the law. 216 Id. at 366 68. 217 Id. at 368. The Court specifically stated, Nothing in the contemporaneous documentary evidence compels the conclusion that what was intended [by the Education Clause] was a system assuring that all educational facilities and services would be equal throughout the State. The enactment mandat ed only that the Legislature provide for maintenance and support of a system of free schools in order that an education might be available to all the State's children. There is, of course, a system of free s chools in the State of New York If what is made available by this system (which is what is to be maintained and supported) may properly be said to constitute an education, the constitutional mandate is satisfied (emphasis added). 218 Id at 368. Curiously, the Court reached and apparently decided the question of minimal adequacy of funding despite its explicit statement of the issues not before it as follows: No claim is advanced in this case, however, by either the original plaintiffs or the intervenors that the educational facilities or servic es provided in the school districts that they represent fall below the State wide minimum standard of educational quality and quantity fixed by

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138 Because decisions as to how public funds will be allocated among the several services for which by constitutional imperative the Leg islature is required to make provision are matters peculiarly appropriate for formulation by the legislative body (reflective of and responsive as it is to the public will), we would be reluctant to override those decisions by mandating an even higher priority for education in the absence, possibly, of gross and glaring inadequacy something not shown to exist in consequence of the present school financing system.219Thus, even though it contained significant language claiming adherence to separation of powe rs principles, and even though its own justiciability holding was justified by the negative rights bases of the claims before it, the Nyquist courts ruling in 1982 left open the door to future adequacy based challenges to New Yorks education funding syst em at least those alleging gross and glaring inadequacy. The first such challenge was heard the first time in the Court of Appeals in 1995 in Campaign for Fiscal Equity v. State .220 In a very brief discussion of separation of powers principles, the C ampaign I court adopted as precedent the dicta of the Nyquist court that the education clause imposed a duty upon the Legislature to provide a sound basic education, and that this duty was subject to adjudication in court.221 the Board of Regents; their attack is directed at the existing disparities in financial resources which lead to educational unevenness above that minimum standard. Id. at 363 (emphasis added). The Court of Appeals later construed the Nyquist Courts holding as to minimal educational adequacy as different from the issue before the Court in Campaign for Fiscal Equi ty, Inc. v. State, 655 N.E.2d 661 (N.Y. 1995) (hereinafter, Campaign I ), which the Court stated as the adequacy of the educational service and facilities provided in the plaintiffs school districts. As to the Nyquist Courts very lenient standard of mi nimal adequacy, the Campaign Court apparently adopted the standard (while adding substantive content to it), but did not consider the issue of adequacy to have been decided at all in Nyquist focusing instead on the Nyquist Courts limited statement of the issues before it, which conflicted with the issues it actually reached and apparently decided. See Campaign I 655 N.E.2d at 665; see also supra note 217. Unlike the court in Nyquist though, the Campaign I court took the opportunity to set forth a demanding explication of the meaning of 219 Nyquist 439 N.E.2d at 369. 220 Campaign I 655 N.E.2d at 661. 221 Id.

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139 sound basic education.222 The court specified that a sound basic education includes minimally adequate physical facilities, instrumentalities of lea rning, instruction, and teacher quality, but the court noted that a cause of action under the education clause could not be established solely through proof that state standards could not be achieved under current funding.223 The court held that such a caus e of action could be established on remand only if the plaintiffs could show a causal link between state funding levels and the inability of students to obtain a sound basic education.224 Interestingly, simultaneously with its adoption of the Nyquist cour ts implied decision that it should reach the merits of the adequacy claim, the Campaign I court also relied on Nyquist s language that the adequacy claim was not before it apparently to escape the precedential effect of the Nyquist courts very permissive standard for educational adequacy.225 The Campaign I court also reaffirmed the Nyquist courts holding that education was not a fundamental individual right in New York.226After making its threshold determination of the propriety of judicial review, the c ourt went beyond the minimal duty based language used by the Nyquist court and held that New Yorks school age children were possessed of certain substantive entitlements under the education clause: Children are entitled to minimally adequate physical fa cilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have 222 Id. at 666. 223 Id. 224 Id. at 667. 225 Id. at 665 (citing Nyquist 439 N.E.2d at 36869 for the proposition that the Legislature was subject to a judicially enforceable duty to provide a sound basic education; id. at 363 for the proposition that no adequacy based claims were presen ted to the Nyquist Court). 226 Id. at 668 (declining to extend heightened scrutiny to the plaintiffs equal protection claims in light of Plyler v. Doe, 457 U.S. 202, reh. denied 458 U.S. 1131 (1982) and reaffirming Nyquist s treatment of the equal protecti on claims presented there); see also Nyquist 439 N.E.2d at 366.

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140 access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up to date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas.227This language was carri ed through the remainder of the litigation, and it is clear that the New York court has relied on this concept of an individual right to education as the foundation of judicial review. 228In more recent years, the court considered the merits of the case agai n, held that the plaintiffs had established that the state was not providing a sound basic education to school age children of New York City, and ordered the General Assembly to determine the cost of remedying the situation. 229First, echoing [ Nyquist ], in [ Campaign ] we recognized that by mandating a school system wherein all the children of this state may be educated the State has obligated itself constitutionally to ensu re the availability of a sound basic education to all its children. Second, we made clear that this Court is responsible for adjudicating the nature of that duty, and we provided a template, or outline, of what is e ncompassed within a sound basic educat ion. The discussion of the separat ion of powers in Campaign II began with two sentences: 230Thus, the Campaign II court, like its predecessor, adopted the judicial review holding of the Nyquist court, which was only issued in relation to an equity based challenge, and which used limitations based terms, such as constrains. The court went on to hold that the state constitution was violated as to the New York City school system, and to order the General 227 Id. at 666. 228 See discussion of Campaign II infra 229 Campaign for Fiscal Equity, Inc. v. State, 801 N.E.2d 326 (N.Y. 2003) (hereinafter Campaign II ). 230 Id. at 328 (internal citations omitted).

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141 Assembly and the governor to conduct a study to determine the cost of providing a sound basic education in New York City.231However, aft er so holding, in the portion of the opinion marked Conclusion, in response to the dissents separation of powers concerns, the court returned to the issue of the propriety of judicial review. The court articulated very clearly its justifications for ta king the actions it took: Courts are, of course, well suited to adjudicate civil and criminal cases and extrapolate legislative intent. They are, however, also well suited to interpret and safeguard constitutional rights and review challenged acts of our c oequal branches of government not in order to make policy but in order to assure the protection of constitutional rights. That is what we have been called upon to do by litigants seeking to enforce the State Constitution's Education Article. The task bega n with Levittown 's articulation of the constitutional right to a sound basic educationnot at all a catchphrase for an in ferred constitutional guarantee but this Court's careful judgment 21 years ago as to what is meant by our State Constitution's prom ise in the Education Article.232Thus, the court morphed the duty based language of the Nyquist opinion relating to the provision of a sound basic education, issued mostly as an afterthought in dicta after the court declared that the issue was not before i t, into the Nyquist courts articulation of the constitutional right to a sound basic education and its careful judgment 21 years ago as to what is meant by our State Constitution's promise in the Education Article. 233Finally, the remedy is hardly extraordinary or unprecedented. It is, rather, an effort to learn from our national experience and fashion an outcome that will address the constitutional violation instead of inviting decades of litigation. . The court then proceeded to defend its remedy: We trust that fixing a few signposts in the road yet to be traveled by the parties will shorten the already arduous journey and help to achieve the hopedfor remedy.234 231 Id. at 348. 232 Id. at 349 (internal citations omitted). 233 Id. 234 Id. (internal citations omitted).

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142 The court justified its remedial involvement by comparing the problems encountered by the New Jersey Supreme court, which was initially reticent and later became the most active court in the nation as to remediation, with the fairly resistance free experience in Kentucky, which the New York court assumed was due to greater specification of remedy by the Kentucky court.235 Of course, the experience in Kentucky could not have been due to such specificity because the Kentucky court in fact had left the remedy up to the Legislature,236In response to the courts order in Campaign II the state made cost determinations and proposed a plan by which additional funds would be directed toward New York City. but the New York court failed to notice this particular fact. 237 The trial court adopted the proposal after accepting a modification of it by appoint ed referees.238 The Appellate Division, New Yorks intermediate appellate court, modified the trial courts judgment, increasing the courts order for funding appropriations fourfold.239 Then, the case was appealed once again to the court of Appeals as Campa ign III.240The Court of Appeals, in deciding this most recent appeal, engaged in a comprehensive discussion of separation of powers principles. 241 235 Id. at 349 50. However, this discussion was related to the courts proper standard of review of the remedial actions propose d by the state, rather than to the propriety of judicial review or the propriety of a judicial order for a remedy, so it did not alter the state of New York law relating to judicial review of education finance cases. The court 236 See discussion of the Kentucky litigation infra this Chapter. 237 See Campaign for Fiscal Equity, Inc. v. State, 861 N.E.2 d 50, 55 (N.Y. 2006) (hereinafter Campaign III ). 238 Id. at 56. 239 Id. at 57. 240 Id. 241 Id. at 57 60.

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143 fashioned a standard for the review of the remedial proposals.242 This standard was one of reasonableness.243 That is, as long as the estimates of the costs of providing a sound basic education promulgated by the governor and the General Assembly were reasonable, they would be upheld.244 Applying this standard, the court reversed the lower courts rejections and modifications of the remedial proposals and ordered that they be put into action, as initially presented.245New Yorks approach to judicial review was very similar to that of New Jersey. Like the courts in New Jersey, the courts in New York made one definitive ruling on the justiciability of all education finance constitutional challenges, and all subsequent decisions have adopted that ruling without questioning it. Also, in both states, this initial definitive ruling came out of a case primarily presenting theories of equity, rather than adequacy. 246 242 Id. at 59. That is, in each state, the relevant ruling that education finance challenges are justiciable was rendered in the face of a chal lenge to affirmative legislative action allegedly treating members of a protected class differently from similarly situated non members, thus implicating negative liberties. Also in both states, the more recent disputes, in which the courts adopted the ea rly judicial review holdings wholesale, were based not on negative liberties to prevent unequal treatment by 243 Id. 244 Id. 245 Id. at 59 60. 246 Although it may be argued that the Nyquist Court actually did render a decision as to absolute adequacy, based on the language in support of its justiciability holding, the Nyquist Court made no real consideration of the positive rights implicated by the education clause. Taken together with its statement that a substantive challenge to absolute education fund ing levels was not before the Court, see supra note 218, it is most reasonable to read the Nyquist Courts justiciability holding as one justifying review of the traditional variety of constitutional challenge one implicating only negative rights.

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144 government actors, but rather on positive rights to receive an absolute quantum of education.247North Carolina The only salient difference between the two states was the two courts differing conceptions of the actual rights afforded by the education clause. In New Jersey, as outlined above, education was considered a fundamental, individual right, while in New York, the education clause was seen as a repository o f positive individual rights, but apparently not of a fundamental character. Ultimately, it appeared that this distinction did not make much difference in the outcomes of the judicial review question. The Supreme Court of North Carolina has heard an adequacy based challenge both on appeal from the trial courts denial of a motion to dismiss in Leandro v. State248 and on appeal from a merits decision in favor of the plaintiffs in Hoke County Board of Education v. State .249 The court first add ressed judicial review in Leandro.250 The Leandro court quickly disposed of the States contention that educational adequacy was a nonjusticiable political question, holding that the court has a duty to interpret the state constitution and to reject any ac t in conflict therewith.251 247 Int erestingly, however, the courts in both states went on to analyze the alleged deprivation of the required absolute quantum of education by engaging in comparisons between wealthy and poor districts, and the remedies ordered in each case, aside from the req uired costing out studies, required the legislative bodies to make funding in the plaintiff districts more equal to that in the wealthy comparator districts. In this way, it seems that both New Yorks and New Jerseys courts have felt more comfortable add ressing the adequacy challenges brought before them as mere equity challenges. Like most of the other state courts that have elected to engage in merits review of adequacy claims, the Leandro court relied for its judicial review holding on cases coming out of the context of constitutional limitations on le gislative action, the corollary to negative rights, 248 Leandro v. State, 488 S.E.2d 249 (N.C. 1997). 249 Hoke County Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004). 250 Leandro, 488 S.E.2d at 25354. 251 Id. at 254 (quoting Maready v City of Winston Salem, 467 S.E.2d 615, 620 (N.C. 1996)).

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145 rather than the context of constitutional mandates for government action.252 The court went on to hold that the education clause of the North Carolina Constitution guaranteed a substantive, positive, individual right to compel the General Assembly to provide a sound basic education.253Therefore, the courts of the st ate must grant every reasonable deference to the legislative and executive branches when considering whether they have established and are administering a system that provides the children of the various school districts of the state a sound basic education. A clear showing to the contrary must be made before the courts may conclude that they have not. Only such a clear showing will justify a judicial intrusion into an area so clearly the province, initially at least, of the legislative and executive branches as the determination of w hat course of action will lead to a sound basic education. However, in a nod to the separation of powers, the court imposed the following limitation on the court on remand: 254The court then reiterated that, if competent evidence were to establish that the state was not adequately providing for a sound basic education, then the state would be in violation of the plain tiffs fundamental rights. 255When it later addressed the merits based decision of the trial court in favor of the plaintiffs in Hoke, the court did not reconsider the separation of powers issue as to whether the merits should be reached. The court upheld most of the trial courts decision holding that the state system of funding public education was unconstitutional because it allowed for the result that 252 Id. Maready presented a claim by a local taxpayer challenging a legislative enactment as a violation of the public purpose requirement of the North Carolina Constitution, which limits legislative actions to those supporting public purposes. See 467 S.E.2d at 620; see also id. (citing Mitchell v. N.C. Indus. Dev. Fin. Auth., 159 S.E.2d 745, 750 (1968) (another case challenging legislative action in conflict with the public purpose provision); Ex p arte Schenck, 65 N.C. 353, 367 (1871) (a challenge to limitations legislatively placed on the judiciary, allegedly in violation of the separation of powers principles in the state constitution) ; Bayard v. Singleton, 1 N.C. 5, 6 7 (1787) (another challenge to legislative action allegedly in violation of separation of powers principles) 253 Id. 254 Id. at 261. 255 Id.

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146 students in the plaintiff district did not receive a sound basic education.256 The court based its de cision on evidence of low standardized test scores, graduation rates, course offerings, and other factors in the plaintiff district, in comparison with statewide averages.257Curiously, although the main portion of the Leandro opinion had previously approv ed merits review in very broad terms, and although the Hoke court itself approved the concept that a trial court could order specific legislative action to remedy the constitutional violation identified, the Hoke court nevertheless reversed the trial court s remedial order based on separation of powers principles. 258 The trial court had ordered the General Assembly to enact legislation to ensure that at risk students would be entitled to schooling at public expense as of the age of four, in conflict with t he existing legislative system, which merely allowed school attendance as of the age of five and required it as of the age of seven.259 Citing Baker v. Carr the court initially applied the political question doctrine and held that the issue of determining the age at which children are to first attend school was explicitly committed to the General Assembly.260However, consistent with its general approach to judicial review, the court went on to distinguish the case before it from the issue as phrased previously. 261 256 Hoke 599 S.E.2d at 381. Rather than determining at what age to begin mandating schooling, the court stated, the issue presented was whether the state was acting sufficiently to prepare at risk students for school entrance at whatever age was 257 Id. at 381 84; 38990. 258 Id. at 391. 259 Id. 260 Id. 261 Id. at 391.

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147 mandated.262 Framed in this way, the court held that the issue was justiciable, but also held that the evidence presented in the case before it could not support the remedy that the trial court had issued mandating free pre school education for the children in the plaintiff district.263 R eferring again to the separation of powers and the textual commitment of the provision of public education to coordinate branches of government, the court explained that, although the trial court was correct in finding that the students in the plaintiff district were entitled to some school readiness assistance, and that the General Assembly was obligated to provide this assistance, it was premature, on the evidence presented, to direct the General Assembly to provide this assistance in such a specific way.264Importantly, though, the court remained committed to the principle that, if the evidence were to support it, the trial court would be empowered to order any remedy, and that separation of powers concerns would not prevent such judicial action. 265 In support of this proposition, the court cited three Equal Protection cases266 and one Due Process case267 262 Id. at 391 92. decided in the federal courts. Like most other courts deciding in favor of broad justiciability, then, the North Carolina court did not consider the positive nature of the rights at issue differently from traditional negative rights for the purposes of determining justiciability or the limits of judicial review. 263 Id. at 392. 264 Id. at 393 265 Id. at 393. 266 Id. (citing Reynolds v. Sims, 377 U.S. 533, 552, 84 S.Ct. 1362, 137677, 12 L.Ed.2d 506, 521 (1964); Faulkner v. Jones, 10 F.3d 226, 22829 (4th Cir.1993); Stephenson v. Bartlett, 357 N.C. 301, 30405, 582 S.E.2d 247, 24950 (2003) ). 267 Id. (citing N.Y. State Ass'n for Retarded Children v. Rockefeller, 357 F.S upp. 752, 76869 (E.D.N.Y.1973)).

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148 Ohio The Ohio Supreme Court has heard the same adequacy based challenge to the states education system numerous times between 1997 and the present, but the first of these cases, DeRolph v. State served to illustrate the courts approach to the issue of judicial review for the purposes of this study.268 The court first considered the states argument, which was the basis for the intermediate appellate courts dismissal of the case, that educational adequacy was a nonjusticiable political question.269 Construing the states argument as one that the court had no subject matter jurisdiction, the court held without much discussion that it was clearly within the courts authority to adjudicate educational adequacy.270 The Ohio court, like most of the others holding adequacy claims to be justiciable, cited Marbury v. Madison for the proposition that it had th e duty to review legislative action.271 The court also quoted the portions of the Texas Supreme Courts opinion in Edgewood I the states initial state law based equity case discussed supra, in support of judicial review.272 268 DeRolph v. State, 677 N.E.2d 733 (Ohio 1997) (DeRolph I). 269 Id. at 737. 270 Id. 271 Id. It is very interesting that state courts such as Ohios ha ve relied on the general judicial review holding of Marbury but have completely ignored or failed to discuss the strong language in the same opinion simultaneously giving rise to the political question doctrine. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ( The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. ). Particularly in the case of Ohio, the Court approached the question of justiciability as one of subject matter jurisdiction and held that the existence of an issue to be decided authorizes review, where even the Marbury Court would have abstained were the issue one challenging the discretionary functions of a coordinate branch of government. To date, no study of education finance has taken account of this seeming inconsistency, and no state court has seen fit to distinguish the political question principle stated in Marbury when citing it to support a decision to engage in review of educational policy setting decisions. 272 Id. at 737 (quoting Edgewood Indep. School Dist. v. Kirby 777 S.W.2d 391, 394 (1989).

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149 Each of the cases cited by the court in support of judicial review emerged out of a negative rights or limitations based challenge to governmental action,273 but based on the discussion of the constitutional issue in the DeRolph opinion, it was clear that the Ohio court approached educati onal adequacy not as an individual right, but as a mandatory legislative duty. For example, the court explicitly declined to address the plaintiffs contention, stated in the alternative, that education was a fundamental right.274 The court went on to re fer to the education clause as an explicit directive to the General Assembly and determined that the legislative history of the education clause firmly established the state's obligation, through the General Assembly, to provide for the full education of all children within the state .275The DeRolph court went on to hold that the state system was not thorough and efficient, as required by the education clause. 276 However, rather than specifying a particular set of remedial measures, the court simply m andated that the General Assembly promulgate a new system of public education that would conform to the courts decision.277 Interestingly, the court justified its reluctance to provide any guidelines to the General Assembly based on the principles of the s eparation of powers, refusing to encroach on the clearly legislative function of deciding what the new legislation will be.278 273 The actual issue decided in Marbury was whether a mandamus petition could lie in the Supreme Court under an act of Congress providing for it. The Court held that Congress could not exceed constitutional limita tions on the roles of the three branches of government by expending the original jurisdiction of the Supreme Court. 5 U.S. (1 Cranch) at 176. The issue in Edgewood I was equity of education funding, a negative rights based challenge. Edgewood Ind. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989). In a related case the same year, the court reiterated its 274 Id. at 740 n.5 ( Appellants also contend that education is a fundamental right and that the current funding system violates equal protection. However, since we decide that Ohio's school financing syste m violates the Thorough and Efficient Clause of our state Constitution, we decline to address appellants' other constitutional claims. ). 275 Id. at 740 41. 276 Id. at 747. 277 Id. 278 Id. at 747 n.14.

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150 holding that the state system was unconstitutional, but that the conte nt of the remedy should be left to the General Assembly.279 In each of these cases, the court permitted the trial court to retain jurisdiction to ensure that the needed legislation was enacted. Despite some intervening state friendly rulings, the court dec ided similarly again in 2002,280 but a simultaneous table opinion released with the main opinion contained the ambiguous statement directing the trial court to carry this judgment into execution.281Finally, however, the court addressed the cases again on a petition by the General Assembly for a writ of prohibition against the trial court, which had begun to address the plaintiffs motion for a compliance conference relating to the Ohio courts 2002 opinion. 282 At this juncture, the court took the opportuni ty to certify its withdrawal from its ongoing review of the adequacy litigation in Ohio by granting the states petition for the writ and ordering the dismissal of the case.283 The court explained its action based on the statement made in DeRolph VI that th e trial court was mandated to carry the judgment in this cause into execution, which the court held had finally disposed of the case, leaving the constitutional violations remedy up to the General Assembly, subject to no coercive order or supervis ion from the judiciary.284 279 DeRolph v. State, 678 N.E.2d 886, 888 (Ohio 1997) (herein after DeRolph II ). 280 See DeRolph v. State, 780 N.E.2d 529 (Ohio 2002) (hereinafter DeRolph V ). 281 DeRolph v. State 780 N.E.2d 282 (Dec. 11, 2002) (Table) (hereinafter, DeRolph VI ). 282 State ex rel. State v. Lewis, 789 N.E.2d 195 (Ohio 2003). 283 Id. a t 202. 284 Id. at 201 02.

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151 South Carolina The Supreme Court of South Carolina had heard one adequacy based challenge to date.285 In Abbeville the plaintiffs brought both equal protection and adequacy based challenges.286 The trial court dismissed the pe rtinent, adequacy based portion of the case on separation of powers grounds as a nonjusticiable political question.287 The Supreme Court considered this ruling as a pure procedural matter and reversed the trial courts decision.288 The court held that the case was justiciable based on the rationale that the court had a duty to interpret and declare the meaning of the Constitution.289 Oddly, in support of this proposition, the court cited the early South Carolina case of State ex rel. Rawlinson v. Ansel in w hich the court had considered a petition for writ of certiorari to review the actions of the then sitting governor in removing one of his appointed officers from service.290 After reciting the general principle that The duty of the court is to declare the law,291 the Ansel court went on to deny the petition, which essentially asked the court to pass upon the correctness of the governors action, due to the political and discretionary nature of the decision challenged.292 285 Abbeville County Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999). At the time of the completion of this study, a decision was pending in the South Carolina Supreme Court. Thus, it was curious that the Abbevill e court would cite it as authority in rejecting any application of the political question doctrine. 286 See id. 287 Id. at 539. 288 See id. at 540. 289 Id. at 5 39. 290 57 S.E. 185 (1907) 291 Id. at 192. It can only be assumed that this passage is the one to which the Abbeville Court was referring, as the Court did not specify in its citation to the case. 292 Id. ( The power of removal was vested in the Governor as Governor, and is essentially a political governmental, executive duty, and therefore beyond the control of the judiciary. ).

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152 Nevertheless, the court also cited specific text from the state constitution in support of its decision.293 Article I, Section 23 of the South Carolina Cons titution contains a specific admonition that all provisions of the constitution are to be construed as either prohibitory or mandatory, unless designated otherwise. The court examined the education clause set forth below, and based on the word shall, determined that it was mandatory, and therefore enforceable judicially.294After disposing of the justiciability question, the court went on to define the duty established by the education clause, which required that the General Assembly shall provide for the maintenance and support of a system of free public education. Thus, South Carolina joined the small number of state courts authorizing merits review based on a conception of the education clause language as positive and duty based, rather than negative and rights based. 295providing students adequate and safe facilities in which they have the opportunity to acquire: The court held that this statement of affirmative duty should be read to require a minimally adequate education, including: the ability to read, write, and speak the English language, and knowledge of mathematics and physical science; a fundamental knowledge of economic, social, and political systems, and of history and governmental processes; and 3) academic and vocational skills.296 293 Abbeville 515 S.E.2d at 53940 (quoting S.C. Const. art. I, 23 ( The provisions of the Constitution shall be taken, deemed, and construed to be mandatory and prohibitory, and not merely directory, except where expressly made directory or promissory by its own terms. ). 294 Id. at 540. 295 Id. at 539 40. 296 Id. at 540.

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153 A fter articulating this definition, the court held that the plaintiffs had stated a valid, justiciable claim under the education clause and remanded for further proceedings.297However, the court also admonished the lower courts not to invade the legislative province by specifying any particular legislative action in the event of a constitutional violation. The court stated: Finally, we emphasize that the constitutional duty to ensure the provision of a minimally adequate education to each student in South Carolina rests on the legislative branch of government. We do not intend by this opinion to suggest to any party that we will usurp the authority of that branch to determine the way in which educational opportunities are delivered to the children of our St ate. We do not intend the courts of this State to become super legislatures or super school boards. 298In the final analysis, it was clear that the merits of the constitutional claim were justiciable in South Carolina, based on the positive and mandatory duty established in the education clause, but if a constitutional violation were to be identified, the courts would not be empowered to order any specific legislative action to remedy it. The court has not yet decided another adequacy based appeal, but at the time this study was completed, one was before the court awaiting a decision. 299New Hampshire New Hampshires Supreme Court had addressed one adequacy based challenge, Claremont School District v. Governor several times at differing stages beginning in 1993.300 297 Id. at 541. In Claremont I the plaintiffs brought an adequacy based action challenging, in relevant part, the Legislatures failure to define the nature of the educational rights of the citizens of the state, and 298 Id. The Court in this section of its opinion restated the familiar phrase that it would not allow the courts of the state to become super legislatures or super school boards. 299 See Access Quality Education: South Carolina Litigation, Nat l Access Network, Teach ers College, Columbia U., available at http://www.schoolfunding.info/states/sc/lit_sc.php3 (last visited Dec. 31, 2008) 300 Claremont Sch. Dist. v. Governor, 635 A.2d 1375 (N.H. 1993) (hereinafter Claremont I ).

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154 its failure to appropriate more than 8 perc ent of total education funding from statewide sources.301 The court reversed the trial courts dismissal of the adequacy based challenge.302 The trial court had dismissed the case for failure to state a claim, based on the rationale that the states educatio n clause, which directed the Legislature to cherish and encourage public education, imposed no substantive qualitative standard for the legislature to meet.303 The court rejected this reasoning based on its analysis of the original intent of the language, ultimately holding that the education clause imposed a duty on the Legislature and the governor to provide universal education and to support the schools.304 The court also held that the duty assigned to the Legislature and the governor by the education clause extends beyond mere reading, writing, and arithmetic to include broad educational opportunities needed in todays society.305 The court also held that the duty implied an important, substantive right to an adequate education, held by the public to enforce the States duty, and that any citizen could establish standing to bring an action to enforce the right.306The court did make clear its conception of the nature of the education clause language and the obligations and rights that it afforded. The court held that the language of the education clause, properly unders tood, established an important substantive right to an adequate The court did not address the issue of justiciability or discuss any separation of powers concerns related to its review of the education clause language on the merits. 301 Id. at 1376. 302 Id. 303 Id. 304 Id. at 1381. 305 Id. 306 Id.

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155 education.307 However, the court did not conceive of this right as an individual right, but rather a collective right, which could be enforced by any citizen of the state.308 The court viewe d the collective right as corollary to a broad, statewide duty imposed on the Legislature to provide an adequate education to all children within the state.309The court t hen admonished the Legislature and G overnor to define an adequate education and appr opriately fund it. 310 The courts mandate included language that expressed the courts confidence that the Legislature and governor would both define the specifics of the education rights of the citizens and identify and provide appropriate funds to support these rights.311 In staying its hand, the court explained that the definition of the substantive content of the education right was in the first instance, for the Legislature and governor.312 The court also provided the Legislature with limited guidance as to its conception of an adequate education, stating that it was something beyond mere reading, writing, and arithmetic.313In the next appeal to come before it, the court further redefined the right stated in the education clause as an individual fundamental right. 314 307 Id. The court also gave the content to the education clause that it originally sought from the Legislature, adopting the seven competencies articulated by the Kentucky Supreme Court in the seminal Rose case and declared that the 308 Id. 309 I d. at 138081. 310 See id. at 1380. 311 Id. 312 Id. 313 Id. 314 Claremont Sch. Dist. v. Governor, 703 A.2d 1353 (N.H. 1997) (hereinafter Claremont II ).

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156 system in existence at the time was in violation of the education clause.315 As in the first appeal, the court gave no explicit consideration to questions of justiciability or the proper extent of judicial review, other than restating its general intent to leave the det ermination of what sort of education meets the constitutional standard to the Legislature in the first instance.316 Instead, the court mandated that the Legislature act to reform the public school financing system to make it constitutional and imposed a dea dline for compliance of the end of the next legislative session.317After this ruling, the Legislature attempted to reform the education system in the state by creating new property tax rules, but the court, in an advisory opinion, ruled these proposed measu res unconstitutional. 318 This ruling led to Claremont III .319 In this third Claremont appeal, the state defendants asked the court to grant them relief from the one year deadline imposed in Claremont II due to an inability to come to agreement as to how to reform the system so quickly.320 The court declined the states request.321 However, explicitly citing the separation of powers clause of the New Hampshire Constitution, which forbids one branch from encroaching on the powers of another, the court held that it had fulfilled its duty to interpret the State Constitution to declare the system of financing public elementary and secondary education in this State unconstitutional, and ordered the Legislature and the governor to put into effect a constitutional f inancing system.322 315 Id. at 135960. 316 Id. 317 Id. at 1360. 318 Opinion of the Justices, 712 A.2d 1080 (N.H. 1998). 319 Claremo nt Sch. Dist. v. Governor, 725 A.2d 648 (N.H. 1998) (hereinafter Claremont III ). 320 Claremont III 725 A.2d at 650. 321 Id. at 651. 322 Id. at 652 (citing N.H. Const. pt. I, art. 37).

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157 In a recent appeal from this litigation, Londonderry v. State the court, citing its role in the threebranch system of government, remained consistent in refraining from ordering that the coordinate branches act to fund any particular substantive goals, or that the political branches provide any particular level of funding.323 However, the courts ruling also contained a prediction that, should the coordinate branches fail to act to specify the substantive content of a constitutionally adequate education by the end of fiscal year 2007, the court would be forced to issue a remedial order either invalidating state funding legislation, appointing a special master to help the court determine the meaning of an adequate education, or remanding to the trial court for findings on the issue.324 This continued jurisdiction was recently terminated by the courts ruling that, in light of the replacement of the challenged legislation with new legislation pursuant to the courts prior mandate, the ongoi ng litigation was rendered moot, and a new challenge would have to be brought against the new legislation.325Thus, in New Hampshire, the substantive content of the education clause has been developed into a concept of fundamental positive individual rights, but these rights have been repeatedly held to be better defined by the coordinate branches. However, the court has signaled its willingness to both define an adequate education and order appropriate expenditures in an appropriate case in the absence of s uitable action on the part of the coordinate branches. 323 See, e.g. id. ( Without intending to intrude upon prerogatives of ot her branches of government, we anticipate that they will promptly develop and adopt specific criteria implementing these guidelines and, in completing this task, will appeal to a broad constituency. ) (internal citations omitted); Londonderry Sch. Dist. S. A.U. No. 12 v. State, 907 A.2d 988, 995 (N.H. 2006) (staying the portion of the case containing trial court factual findings concerning inadequacy of funding pending legislative and executive action to determine the substantive content of a constitutionall y adequate education). 324 Londonderry 907 A.2d at 99596. 325 See Londonderry Sch. Dist. SAU #12 v. State, 958 A.2d 930, 932 (N.H. 2008) (dismissing the litigation and stating, Although we are mindful of the petitioners' claims that the new legislation pre sents new problems, it is precisely for this reason that the controversy before this court is now moot. ).

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158 Vermont Vermonts Supreme Court has heard one appeal in part presenting an adequacy based theory of liability, in Brigham v. State ,326 a continuation of litigation begun as a pure equity based challenge.327 In Brigham II the court addressed the sufficiency of the pleadings in stating a cause of action, and the court also engaged in a limited consideration of separation of powers concerns.328 Although the main arguments that the plaintiffs sought to advance were rooted in equal protection, the plaintiffs also claimed that state funding of education was inadequate, in violation of the state constitutions education clause.329 These claims of inadequate funding were set forth in Brigham II in the plaintiffs complaint and appellate briefs as a means of proving that the plaintiffs were provided with unequal educational opportunities, in violation of the remedial order issued in Brigham I a pure equity case brought under the state constitutions Common Benef its (i.e., equal protection) clause.330 Accordingly, it is arguable that the case did not truly belong among the adequacy cases analyzed herein. However, the Vermont Supreme Court addressed the adequacy based claims as part of its analysis, held them to b e justiciable, and held that they stated a valid claim under the Vermont Constitution.331 326 Brigham v. State, 889 A.2d 715 (Vt. 2005) (hereinafter Brigham II ). Accordingly, these opinions were deemed relevant to this study. 327 Brigham v. State 692 A.2d 384 (Vt. 1997) (hereinafter Brigham I ). 328 Brigham II 889 A.2d at 719. 329 Id. at 721 ( To support their claim that the State has violated their constitutional right to an equal educational opportunity under Brigham I the students alleged that the State does not provide adequate funding for education. The students argued that because of Act 60's inadequate funding, their schools do not have enough money to spend on curriculum. ). 330 See id. 331 Id. at 719 21.

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159 The trial court in Brigham II dismissed the plaintiffs claims.332 The trial court justified its decis ion based on the concept of judicial restraint, referring to it as a more prudential decisional mode than the political question doctrine.333 At the time of the motion to dismiss, the Legislature was actively making changes to the existing law in respon se to the earlier Brigham I case, and the trial court was concerned that allowing related litigation to continue while the Legislature was attempting to address constitutional deficiencies identified in Brigham I would be disrespectful to the coordinate branch.334The Vermont Supreme Court reversed the trial courts dismissal of the action. Thus, the basis for the trial courts dismissal was rooted in the separation of powers, if not the actual political question doctrine. 335 The court addressed the judicial restraint portion of the trial courts order dismissively. The court outlined what it understood to be federal Article III justiciability doctrine, including the doctrines of standing, ripeness, mootness, and nonjusticiable political questions, whic h the court confirmed were applicable in Vermonts courts.336 The court passed over these doctrines, however, adopting the trial judges conception that abstention motivated by judicial restraint in the face of possible conflict with or disrespect to a coordinate branch of government constitutes something different from abstention based on the political question doctrine.337 332 Id. at 717. Rejecting the trial courts decision to abstain based on an amorphous concept of judicial restraint, the court held that where plain tiffs claim that their constitutional rights have been violated, the court has 333 Id. at 719 (quoting the trial courts order dismissing the case). 334 Id. 335 Id. at 720. 336 Id. 337 Id.

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160 a duty to hear the case, which duty it may not abdicate.338 The court declined to acknowledge the ongoing legislative action to conform the states education system to Brigham I because no record evidence reflected that effort.339 Assumedly, the court determined that taking judicial notice of this activity would be inappropriate, as well. The court then went on to hold that the plaintiffs claims that inadequate total state fu nding disproportionately impaired their local schools educational offerings, in comparison with at least one other local school, stated a valid claim under the Vermont Constitution.340 The court did not attempt to construe any meaning from the education cl ause, and it did not give any indication that it found the asserted claims to be meritorious.341The Vermont Supreme Courts only pronouncement as to the actual cont ent of the states education clause came out of Brigham I where the court apparently held that education is a fundamental individual right under the state constitution, while also holding that it is a fundamental obligation of the state. Rather, the court simply held that a claim was stated and remanded for further proceedings. 342 338 Id. at 720. In Brigham I however, after holding that the states education funding scheme violated the state constitutions equal protection clause, the court 339 Id. at 720 n.5. 340 Id. at 720 21. 341 See id. at 721. 342 Brigham I 692 A.2d at 395. The opinion seemed somewhat confused on these points. The Court spent several pages presenting arguments in support of the con clusion that education is a fundamental individual right in Vermont, primarily refuting the states arguments that it was not. However, the Court never actually made a conclusion on this point. Even while making its analysis under the states equal prote ction provision, the Court acknowledged that the existence of a fundamental right would require the application of strict scrutiny, but held that that system was unconstitutional even under rational basis review. See id. at 39697. Thus, it may be that t he existence of a fundamental individual right remains to be determined in Vermont. Nevertheless, it is clear that the Brigham II Court considered the rights contained in the education clause to be individual rights, at the very least. See Brigham II, 88 9 A.2d at 719 ( Adjudicating cases involving a lleged violations of plaintiffs constitutional rights resulting from a legislative enactment does not undermine the legislative process, nor is it disrespectful of the other branches of government. ); see also supra this Section.

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161 abstained from ordering any particular remedy, other than for the Legislature to act to make educational opportunity ava ilable on substantially equal terms.343 The court in Brigham II seemed to support this form of judicial restraint, as well, explaining that, in the event that a constitutional violation were to be identified on remand, such violation could be remedied thro ugh a declaration of unconstitutionality.344Kentucky Taking these concepts along with those set forth in the justiciability portion of Brigham II then, it was concluded that the Vermont court approached the education clause as a repository of individual rights, but that its view of these rights leaned toward a more negative, prohibitory conception, in that even the identification of a violation did not empower a court to compel legislative action, but only to prevent it. The Kentucky Supreme Court case o f Rose v. Council for Better Education345 stands as the seminal education finance adequacy case. Rose was decided at the beginning of the period of education finance reform litigation known as the Third Wave346 and has been followed or discussed in numerous subsequent state high court cases. The Rose case presented a class action, in which several individuals and local education agencies alleged that the education funding system in Kentucky was not adequate to provide an efficient system of common schools, as required by the education clause of the Kentucky Constitution.347 343 Id. at 398. 344 Brigham II 889 A.2d at 72122 (rejecting the states argument that the parties did not have standing to bring their challenges because the courts would be unable to redress the plaintiffs grievances). 345 790 S.W.2d 186. 346 See, e.g., William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model 35 B.C. L. REV. 597 604 08 (1994) (describing the three waves of education finance reform). 347 Id. at 189 (citing Ky. Const. 183).

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162 The trial court held the system unconstitutional and ordered the General Assembly to completely overhaul the system and to submit a progress report for the courts evaluation on a date specified by the court.348 The Kentucky Supreme Court upheld the trial courts ruling as to the unconstitutionality of the system, as well as its order to completely reform the system.349 However, explicitly relying on the separation of powers clauses of the state constitution, the court reversed the portion of the trial courts order retaining jurisdiction and mandating a progress report from the General Assembly.350No party contended that the court should abstain from the merits on political question or se paration of powers grounds, and the court did not independently consider these issues at length. However, it was clear that the issue came up at some point, as the courts opinion began with the following statement: In deciding that it has not, we intend no criticism of the substantial efforts made by the present General Assembly and by its predecessors, nor do we intend to substitute our judicial authority for the authority and discretion of the General Assembly We are, rather, exercising our constitutio nal duty in declaring that, when we consider the evidence in the record, and when we apply the constitutional requirement of Section 183 to that evidence, it is crystal clear that the General Assembly has fallen short of its duty to enact legislation to pr ovide for an efficient system of common schools throughout the state.351Thus, to the extent that the separation of powers issue was considered as a basis for abstaining from the case as a whole, it appears to have been dismissed very quickly. Without subst antial discussion as to the issue, the court held that education was a fundamental right under the Kentucky Constitution.352 348 See id. at 19193. The court then went on to define the 349 Id. at 215. 350 Id. at 213 14 (citing Ky. Const. 27, 28). 351 Id. at 189. 352 Id. at 201.

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163 term efficient system of common schools, as it is stated in the education clause.353 The cou rt held that an efficient system would provide students with seven capacities, as set forth in the courts opinion and the trial courts order, and that it would have nine essential, and minimal, characteristics of efficiency, as identified by the co urt.354 After identifying these parameters, the court held that the current system, as a whole, was unconstitutional.355The court then considered whether the trial courts remedial order was issued in violation of the separation of powers clauses of the stat e constitution. 356 The court explained that, unlike the federal separation of powers doctrine, which is implicit, the doctrine in Kentucky is explicit in the state constitution, and as such, must be strictly construed.357 The court ultimately held that the trial courts order mandating that the General Assembly report to the court on its progress at remedying the state educational system was an impermissible incursion, by the judiciary, on the functions of the legislature.358 The court then reversed the po rtion of the trial courts order mandating progress reporting, leaving the mandate as one to re create and reestablish a system of common schools which will be in compliance with the Constitution.359 353 See id. at 20513. Drawing a distinction between the state constitu tion and the federal Constitution as to separation of powers, the court pointed out that, as an explicit limitation, the provisions of the Kentucky Constitution were to be interpreted and applied more strictly than the implied, structural 354 Id. at 212 13. 355 Id. at 213. 356 Id. at 213 15. 357 Id. at 213 14. 358 Id. at 214. 359 Id.

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164 separation of pow ers doctrine found in the federal Constitution.360 Based on this distinction, the court rejected the plaintiffs proposals that it allow the trial court to retain ongoing remedial jurisdiction, as had been done in several highprofile federal cases.361In contrast, the court apparently did not view its engagement in merits review or its articulation of a very expansive interpretation of the word efficient as an encroachment upon a legislative function. The court seemingly resolved any predicate questions of justiciability with its statement at the outset of the opinion: The framers of our constitution intended that each and every child in this state should receive a proper and an adequate education, to be provided for by the General Assembly. This opinion dutifully applies the constitutional test of Section 183 to the existing system of common schools. We do no more, nor may we do any less.362Based on this predicate statement, it is likely that the court considered issues of justiciability and the propriety of judicial review of the merits of the constitutional claims. Moreover, from the language used, it appears that the Kentucky court approached the question whether or not to engage in review of the merits by viewing the education clause as a repository of positive individual rights, giving rise to affirmative legislative duties. Later in its opinion, the court confirmed this interpretation by specifically finding that the language of the education clause established a fundamental individual right to educ ation for each Kentucky citizen. 363 360 Id. The court also held that the clause placed an absolute duty on the state General Assembly to enact legislation establishing a system in conformity with the education clause, as interpreted by the 361 Id. 362 Id. at 189 90. 363 See id. at 212 ( A child's right to an adequate education is a fundamental one under our Constitution. The General Assembly must protect and advance that right. ).

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165 court, but this stateme nt of duty was made in rejection of the states argument that portions of the responsibility for education could be delegated.364Montana The Supreme Court of Montana has ruled on one adequacy based constitutional challenge to state education funding, in Columbia Falls Elementary School District v. State .365 The case came before the court on appeal from a trial court ruling that the state education finance system was in violation of the education clause of the Montana Constitution, which requires that The Legislature shall provide a basic system of free quality public elementary and secondary schools.366The court first addressed the state defendants contention that adequacy of education funding presented a nonjusticiable issue. 367 The court addressed the justiciability issue in a unique and curious way. First, the court held, based on the initial policy determination identifier from Baker that nonself executing provisions of the Montana Constitution are presumptively nonjusticiable political questi ons.368 Then, the court concluded that, because Section 1(3) of the education clause required legislative action, it was not self executing.369 364 See id. at 215 ( Since we have, by this decision, declared the system o f common schools in Kentucky to be unconstitutional, Section 183 places an absolute duty on the General Assembly to recreate, reestablish a new system of common schools in the Commonwealth. As we have said, the premise of this opinion is that education is a basic, fundamental constitutional right that is available to all children within this Commonwealth. ). Next, however, the court held that even a non self executing provision could be rendered 365 Columbia Falls Elem. Sch. Dist. No. 6 v. State, 109 P.3d 257 (Mont. 2005). 366 Id. at 258. See also Mont. Const. art. X, 1(3). 367 Id. at 260. 368 Id. 369 Id.

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166 justiciable through legis lative action pursuant to it.370 Finally, citing two decisions establishing a nonfundamental right to equality in participation in extracurricular activities, the court concluded that, because Section 1 of the education clause guarantees a right to educat ion, legislative action establishing an education system, though nonjusticiable in the abstract, was rendered justiciable under the independent individual right to education, as set forth in the same section.371After resolving the threshold issue of just iciability, the court held that the Legislature was required to provide adequate funding to establish and maintain a quality system of education. 372 However, the court also held that the Legislature must first determine what a quality education was, and that the court would defer to its definition of the term.373 Nevertheless, qualifying its holding, the court next held that, no matter how the Legislature chose to define quality, the current level of funding would be insufficient to ensure it.374 The cou rt justified this prediction based on its examination of the evidence of the educational product of the current education system, based on many factors that most scholars would consider inputs, rather than outputs, or products.375Based on the cour ts extensive analysis, educational adequacy was justiciable because the establishment of an education system implicated individual positive rights to adequate education 370 Id. at 260 61 (citing City of Boerne v. Flores, 521 U.S. 507 (1997) for the proposition). 371 Id. at 261. 372 Id. 373 Id. 374 Id. 375 Id. at 262 63. These products included school districts increasingly budgeting at or near their maximum budge t authority; growing accreditation problems; many qualified educators leaving the state to take advantage of higher salaries and benefits offered elsewhere; the cutting of programs; the deterioration of school buildings and inadequate funds for building re pair and for new construction; and increased competition for general fund dollars between special and general education. Id. at 263.

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167 identified in the education clause of the Montana Constitution. The court left it to the Legislature to define quality, but resolved that the level of funding existing in 2005 was insufficient to ensure it. This curious set of pronouncements was difficult to reconcile, but it was clear that, as of the Columbia decision, educational adeq uacy was deemed justiciable, and the education system in Montana was deemed unconstitutionally inadequate, but the content of the education clause was left to the Legislature to determine. The court issued no guidelines as to this definition, other than i ts determination that the current system would violate any articulated definition. Idaho The Supreme Court of Idaho has heard the same adequacy based constitutional challenge five times beginning in 1992.376 In the first of these cases, the court addresse d the justiciability of adequacy of education spending.377 Without mentioning the separation of powers or the political question doctrine explicitly, the court considered the state defendants argument that the judicial branch should defer to the coordinate branches to supply content to the education clause.378 The court construed the argument as one suggesting that the other branches of government be allowed to interpret the Constitution for [the court] and rejected it as an abject abdication of [the judi cial] role.379 Like some other state courts electing to engage in merits review of adequacy claims, the court cited Marbury v. Madisons establishment of judicial review in support of its decision.380 376 Idaho Sch. for Equal Educ. Oppor. v. Evans, 850 P.2d 724 (Idaho 1993) (hereinafter ISEEO ). Also like other courts, the Idaho court ignored the lang uage 377 Id. at 734. 378 Id. 379 I d. 380 Id.

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168 in Marbury establishing that the judiciary has no place reviewing discretionary political decisions.381Despite its rejection of the state defendants separation of powers argument, though, the court ultimately did defer in a sense to the discretion of a coordinate branch as to the definition of the relevant education clause term, thorough. 382 The court recognized that the executive branch had promulgated rules and regulations for the facilities, curriculum, textbooks, and transportation systems of th e states school districts and held that these standards were consistent with the courts view of what a thorough education system would provide.383 The court then held that, if the plaintiff school districts could prove on remand that the current level of educational funding did not allow them to meet the standards set by the executive branch, then they could succeed on their constitutional challenge.384Preceding this portion of its opinion, the court engaged in an indepth and interesting analysis of wh ether the rights afforded by the education clause were fundamental rights for the purposes of equal protection analysis. The court held that education rights were not fundamental rights, explaining its decision thus: We now hold that the fundamental rights found in our state constitution are those expressed as a positive right [ sic ]. We have considered but reject the appellants suggestion that the Rodriguez definition of fundamental rights be adopted. Although the sections in our state constitution whic h impose a duty upon the government might be said to invest a derivative right in those to whom the duty is owed, the inclusion of those derivative rights in our definition of fundamental rights would be overly broad. For example, art. 3, 26 provides that the government should promote temperance and morality; however, this section does not create a positive right to the enjoyment of the same. . 381 See supra, this Chapter. 382 See ISEEO 850 P.2d at 734. 383 Id. at 734 35. 384 Id. at 735.

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169 In light of the above holding, we further hold that education is not a fundamental right because it is n ot a right directly guaranteed by the state constitution. Rather, art. 9, 1 imposes a duty [upon] the legislature [ ] to establish and maintain a general, uniform and thorough system of public, free common schools. Art. 9, 1, [o]n its face, mandat es action by the Legislature. It does not establish education as a basic fundamental right.385The truly interesting aspect of this reasoning was its recognition of a difference between positive rights held by individuals and affirmative legislative dutie s. No other state court has seen fit to draw this distinction. 386Curiously, though, this distinction had no bearing on the courts consideration of the propriety of judicial review of the merits of the adequacy claim. The court held the adequacy issue t o be justiciable based on the general principle of judicial review without regard to any independent separation of powers concerns. 387 The court also held that the plaintiffs had stated a valid claim under the education clause that the legislature had not a ppropriated sufficient funds to fulfill its constitutional duty, as defined in the Board of Education standards.388 However, this latter holding was difficult to reconcile with the courts earlier explanation that, because no positive right to education was stated in the Idaho Constitution, education could not be considered a fundamental individual right. Further understanding was left to later appeals, as the court remanded the case for a trial as to whether the thoroughness standards, as defined by the Board, were being met.389 385 Id. at 732 33 (alterations and emphasis supplied by the Court). Nevertheless, it was inferred based on the passage quoted above that the court appeared to view the education clause as a repository of legislative duties, not individual rights. 386 Contrary to the Idaho Court, the Supreme Court of the State of Washington considered the se concepts to be jural correlatives, such that one could not exist without the other. See discussion of Washington, infra 387 ISEEO 850 P.2d at 734. 388 Id. at 734 35. 389 Id. at 735.

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170 Subsequent to the first ISEEO case, the court hear d it four other times, most recently holding that the states funding plan did not make adequate provision for the safety of school buildings because it forced local districts to rely on loans for building repair and replacement.390 However, even in this most recent case, after upholding the trial courts judgment as to the constitutional violation, the court directed that the Legislature be tasked with fashioning a remedy.391 Concluding its opinion, the court reiterated that it would not usurp the legislative role of determining policy, but that it would continue to fill its own role of ensuring that the state constitution was satisfied.392 Finally, the court retained jurisdiction to ensure compliance with the constitutional language, as interpreted by the Court.393Wyoming The Wyoming Supreme Court has heard the same adequacy based constitutional challenge several times, and has generally ruled in favor of the plaintiffs in these cases, initially styled Campbell County School District v. State .394 The court has also taken the opportunity to speak at length to separation of powers concerns twice within this line of cases.395 390 Idaho Sch. For Equal Educ. Oppor. v. State, 129 P.3d 1199, 1208 (Idaho 2005) (hereinafter ISEEO V ). The first adequacy based challenge to come before the court resulted in a declaration that the states system of public education financing w as unconstitutional, mostly due to inter district disparities, but also because the system was not afforded the proper prominence among competing state policy 391 Id. 392 Id. at 1209. 393 Id. 394 Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) (hereinafter Campbell I ). 395 See State v. Campbell County Sch. Dist., 32 P.3d 325 (Wyo. 2001) (hereinafter Campbell III ); Camp bell I 907 P.2d at 1238.

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171 priorities.396 The second also resulted in an invalidation of the state system, at least the porti ons that were based on local property values, from an equity perspective, and those that were not based on costs of the required inputs, from an adequacy perspective.397 In the final case, Campbell III the court again invalidated the system, this time base d solely on the inadequacy of capital funds for facilities.398 In this latter case, all parties also requested, and the court agreed, that the court should retain jurisdiction to monitor legislative compliance with the ruling.399In two of the three cases, th e court discussed the separation of powers, and in the most recent case, Campbell III the court explicitly considered and rejected the political question doctrine as a basis for abstention. 400 In Campbell I the court briefly brought up the issue of the co urts role among the coordinate branches of government, acknowledging that case law existed in Wyoming to the effect that the court would not engage in policy making.401 Just as quickly, though, the court dismissed any concerns over judicial encroachment on the legislative function, holding that it had the constitutional duty to declare unconstitutional that which transgresses the state constitution.402 The court preceded its disposal of the issue with the statement that Constitutional provisions imposing an affirmative mandatory duty upon the legislature are judicially enforceable in protecting individual rights such as educational rights.403 396 Campbell I 907 P.2d at 1279. From this statement, it was inferred that the individual nature of the education rights at issue influenced the 397 State v. Campbell County Sch. Dist., 19 P.3d 518, 55557 (Wyo. 2001) (hereinafter Campbell II ). 398 Campbell III 32 P.3d at 33031. 399 Id. at 331. 400 See Campbell III 32 P.3d at 33137; Campbell I 907 P.2d at 126465. 401 Campbell I 907 P.3d at 1264. 402 Id. 403 Id. (emphasis added).

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172 ju sticiability determination. The court also cited Washakie County School District Number One v. Herschler ,404 an earlier equity case, and Bulova Watch Co. v. Zale Jewelry Co.,405In Campbell III, the court was presented with the lone dissenting justices argument that the adequacy of education spending presented a nonjusticiable political question, and in response, the court comprehensively addressed the separation of powers issue and the political question doctrine. a due process case unrelated to education, in support of its justiciability holdi ng. The court did not analyze the individual rights at issue as positive. 406 However, the court ultimately rejected Justice Voights separation of powers arguments based on the courts constitutional duty to interpret the state constitution.407 The court also justified its willingness to assume continuing jurisdiction over the remedial phase of the case on the basis that courts must act when legislative bodies fail to recognize constitutional rights.408 In support, the c ourt cited two Fourteenth Amendment cases where federal courts had assumed supervisory control over state functions to ensure remediation of constitutional violations.409 404 606 P.2d 310 (Wyo. 1980). Based on these opinions, the Wyoming Supreme Court has approached the education clause as a repository of individual rights, and although the court has spoken of the duties expressed in the clause, it has held that these duties become enforceable only due to the legislatures infringement on individual rights, citing negative rights cas e law 405 371 P.2d 409 (Wyo. 1962). 406 Campbell III 32 P.3d at 33137; id at 338345 (Voight, J. dissenting). 407 Id. at 331 32. 408 Id. at 333. 409 Id. (citing Swann v. Charlotte Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) ( approving forced busing as a remedy for violations of the Equal Protection Clause and stating, Once a right and a violation have been shown, the scope of a district court's equit able powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies; Hutto v. Finney, 437 U.S. 678, 68788 (1978) (approving judicial supervision of remediation of Due Process Clause violations in prisons)).

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173 in support. It could be reasonably inferred, then, that the Wyoming courts have approached education rights as negative and individual in nature. Accordingly, not only was educational adequacy deemed a justiciable issue, but the courts of Wyoming h ave been empowered to assume an ongoing supervision and approval role relating to educational policy making, at least as to the financing of capital facilities. Arkansas The Supreme Court of Arkansas has addressed the same adequacy based constitutional challenge to the states education finance system several times, some of which appeals were relevant to this study. In 2002, the court addressed the separation of powers issue at length prior to holding the system unconstitutional in part due to inadequate t otal spending.410 The court resolved the issue based on its prior discussion of it within its opinion in an equity based challenge.411 The court also distinguished the opinions of other state supreme courts holding adequacy to be nonjusticiable.412 The court pointed out that, unlike the constitutions of the states in which such decisions had been rendered, which placed the obligation for the establishment of an education system solely on the legislative body, the Arkansas Constitution instead placed the oblig ation on the State.413 Throughout its discussion, the court referred to the education clause provisions as establishing a duty,414 a responsib[ility],415 410 Lake V iew Sch. Dist. v. Huckabee, 91 S.W.3d 472, 484 485, 495 (Ark. 2002) (hereinafter Huckabee I ). or even an 411 See id. at 483 (citing DuPree v. Alma Sch. Dist., 651 S.W.2d 90 (Ark. 1983). 412 Id. at 484. 413 Id. 414 Id. 415 Id.

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174 absolute duty.416 In fact, when considering the merits, the court specifically declined t o consider whether the education clause established a fundamental individual right.417The court construed this difference to mandate a threebranch policy development role relating to education. 418The dispositive answer to the above arguments is simply that this court is not now engaged in nor is it about to undertake the search for tax equity which defendants prefigure. As defendants thems elves recognize, it is the Legislature which by virtue of institutional competency as well as constitutional function is assigned that difficult and perilous quest. Our task is much more narrowly defined: it is to determine whether the trial court committe d prejudicial legal error in determining whether the state school financing system at issue before it was violative of our state constitutional provisions guaranteeing equal protection of the laws insofar as it denies equal educational opportunity to the public school students of this state. If we determine that no such error occurred, we must affirm the trial court's judgment, leaving the matter of achieving a constitutional system to the body equipped and designed to perform that function. In addition, the court quoted at length its earlier quotation from the California equity case of Serrano v. Priest : 419The rulings re lied upon in support of justiciability of the adequacy claims brought in Arkansas were entirely based in concepts of negative rights. The court failed to distinguish these concepts from the positive duties at issue before it. The court did not alter its conceptions of the provisions of the education clause as repositories of duties, rather than rights. The court addressed the separation of powers issue, along with the merits of the same ongoing case, in two other decisions after Huckabee.420 416 Id. at 492. In the firs t of these, the court reviewed the report and recommendation of its appointed special masters issued pursuant to the courts 417 Id. at 495. 418 Id. at 484. 419 Id. at 483 (quoting DuPree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 95 ( Ark. 1983) (quoting Serrano v. Priest, 557 P.2d 929, 946 n.38 ( Cal. 1976) (internal citations omitted) ). 420 Lake View Sch. Dist. v. Huckabee, 220 S.W.3d 645, (Ark. 2005) (hereinafte r Huckabee III ); Lake View Sch. Dist. v. Huckabee, 189 S.W.3d 1, 16 (Ark. 2004) (hereinafter Huckabee II ).

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175 prior staying of its mandate pending legislative action.421 The court disagreed with the masters and held that, even though the stat es education system would need continued reform in order to reach compliance with the state constitutions education clause, as interpreted in prior decisions, the General Assembly had engaged in a plan of compliance with the courts prior mandates.422 The court went on to explain that it was prevented by its role among the coordinate branches of government from engaging in ongoing supervision and approval of future legislative efforts.423 Curiously, though, after engaging in a spirited defense of judicial r estraint, the court ended its opinion stating, Make no mistake, this court will exercise the power and authority of the judiciary at any time to assure that the students of this State will not fall short of the goal set by this court .424The most recent iteration of the Huckabee line of appeals came before the court on a motion by the plaintiff districts to adopt the report of special masters concluding that the General Assembly had failed to meet the mandate of the education clause in the most recent leg islative cycle, due to inadequacy of spending and improper prioritization of education among other state functions. 425 In response to the motion, the state defendant contended that the court should reverse its prior position and hold that educational adequa cy was a nonjusticiable political question.426 421 Huckabee II 189 S.W.3d at 1617. As it had before in Huckabee, the court held that the education clauses language placing the education obligation on the State required a three branch role in developing 422 Id. at 12 15. 423 Id. at 16 17. 424 Id. at 17 (emphasis added). 425 Huckabee III 220 S.W.3d at 653. 426 Id.

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176 education policy.427 The court went on to hold that the General Assemblys most recent legislation fell short of the education clause mandate, and that the General Assembly was required to put into effect earlier legislation enacted in special session in response to the previous appeals.428Kansas Bas ed on the courts consistent line of cases, adequacy has been deemed justiciable in Arkansas based solely on the general collective duty or obligation placed on all three branches of government comprising the State, not on any concept of individual right s. The Supreme Court of Kansas has addressed an adequacy based constitutional challenge to the states education system numerous times at different stages in the proceedings. For the purposes of this study, however, only two appeals of this c ase before the court were relevant. In one, Montoy v. State the court rejected a separation of powers based challenge to the litigation, held that the state system failed to meet constitutional muster, and ordered that the Legislature make specific fundi ng appropriations for one fiscal year to remedy the constitutional violation.429 In the other, the court evaluated legislative action taken after the court had stayed its mandate in the 2005 Montoy III decision and concluded that the Legislature had substantially complied with the education clause mandate.430 427 Id. at 654. 428 Id. at 655 57. 429 See Montoy v. State, 112 P.3d 923 (Kan. 2005) (hereinafter Montoy III ). This case was decided two years after the Court held that the plaintiffs had stated a valid claim, see Montoy v. State, 62 P.3d 228 (Kan. 2003) (h ereinafter, Montoy I ), and the same year that the Court affirmed a finding of a constitutional violation related to inadequacy of funding and retained supervisory jurisdiction, see Montoy v. State, 102 P.3d 1160 (Kan. 2005) (hereinafter, Montoy II ). 430 See Montoy v. State, 138 P.3d 755 (Kan. 2006) (hereinafter Montoy IV ).

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177 When it addressed the separation of powers issue in Montoy II I the court quickly held that it had the authority to decide the case.431 Citing Marbury v. Madison, the court held that the judiciary has a d uty to determine the constitutionality of legislation.432 The court also cited with approval the decisions of other state supreme courts holding that the judiciary is powerless to abstain from reviewing legislation for constitutionality.433 The court did not discuss the nature of the rights or duties at issue. Ultimately, the court found the state system to be unconstitutional and ordered specific expenditure levels for one academic year.434The next time the case came before the court, the judges were tasked with reviewing the actions that the Legislature had taken in response to the 2005 Montoy III decision. 435 The court held that significant action on the part of the Legislature had evidenced compliance with the courts prior orders, even though additional expenditures would continue to be necessary to remedy the system.436 The court also reviewed the state of affairs that had prevailed in several states where the highest courts had remanded education finance adequacy cases to the lower courts for ongoing supervision of legislative action.437 Using that history as a rationale, the court declined to further supervise legislative policy development and ordered the lower court to dismiss the underlying case.438 431 Montoy III 112 P.3d at 929930. The court further justified its mandate based on the f act that the 432 Id. at 930. 433 Id. at 930 31 (citing the decisions rendered in Arkansas, Kentucky, and Kansas, discussed supra this Chapter). 434 Id. at 939 40. 435 Montoy IV 138 P.3d at 757761. 436 See id. at 76566. 437 Id. at 765 66 (reviewing the legislative stalemates that have resulted from the decisions and remands in New Jersey, Arizona, Arkansas, California, New Hampshire, and Texas, discussed supra this Chapter). 438 Id. at 766.

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178 current efforts of the Legislature were intended to take effect over several years.439One clue to the courts reticence in the area most relevant t o this study lay in the courts earlier decisions, particularly a 1994 decision in a case in part presenting an adequacy based constitutional challenge, Unified School Dist. No. 229 v. State Once again, the court did not attempt to evaluate the nature of the rights or duties at issue. 440 In USD 229 the court declined to invalidate the states school finance system on adequacy grounds.441 The court based its refusal in part on the longstanding principle that the judiciary was to give legislative actions the strongest presumptions of constitutionality and only invalidate legislation clearly in conflict with the limitations imposed by the document.442 By way of illustration, the court stated, It is generally agreed that the Kansas Constitution limits rather than confers power and any power and authority not limited by the constitution remains with the pe ople and their legislators. 443 Each of these statements focused on the limitations placed on legislative action by a constitutional provision. Applying the term suitable in the education clause as such a limitation, the USD 299 court deferred to the rec ent legislative enactment of standards and goals for the education system as a working definition of suitable.444 Measuring the current system under these goals, the court declined to find that the current system failed to meet the suitability requirement .445 439 Id. 440 885 P.2d 1170 (Kan. 1994) (hereinafter, USD 229). 441 Id. at 1197. 442 Id. at 117374 (quoting Shawnee Hills Mobile Hom es, Inc. v. Rural Water Dist. 537 P.2d 210 (1975) ( When a statute is attacked as unconstitutional a presumption of constitutionality exists and the statute must be allowed to stand unless it is shown to violate a clear constitutional inhibition.)). 443 Id. at 1174. 444 Id. at 1186. 445 Id.

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179 However, in using this familiar constitutional language of limitations on legislative activity prior to ruling for the state defendant, the court initially justified review on the merits of the adequacy based challenge in USD 229. In addition to this, the USD 229 court opened the door for future such review by qualifying its holding, stating: However, the issue of suitability is not stagnant; past history teaches that this issue must be closely monitored. Previous school finance legislation, when initi ally attacked upon enactment or modification, was determined constitutional. Then, underfunding and inequitable distribution of finances lead to judicial determination that the legislation no longer complied with constitutional provisions.446The Montoy cou rt picked up on this statement as a justification to decline to revisit the complicated issues of the proper extent of judicial review briefly raised in USD 229. 447West Virginia The recent decisions have not offered analyses conflicting with that offered in USD 229, as to the nature of the education clause as a limitation on legislative power, a concept most at home when evaluating infringements on negative individual rights. Although not typically thought of as one of the cases in the adequacy based move ment in education reform litigation, the West Virginia case of Pauley v. Kelly448 was considered as one of the earliest instances in which a state supreme court addressed a challenge grounded explicitly in total adequacy of funding and reached the merits suf ficiently to construe the adequacy based content of the states education clause. The case was styled as both an equity challenge and an adequacy challenge in the trial court, and the trial court entered an initial finding that the plaintiff school distri cts funding was inadequate, in comparison with that of other districts.449 446 Id. 447 See, e.g. Montoy I 62 P.3d at 234 (quoting USD 229, 88 5 P.2d at 1186). 448 255 S.E.2d 859 (W.V. 1979) (hereinafter, Pauley I ). 449 Id. at 861 62.

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180 However, despite this finding, the court dismissed the action on the pleadings for the failure to establish a violation of the state constitutions due process clause, which had been interpreted to guarantee equal protection, as well.450 The plaintiffs appealed, arguing that the courts findings that the plaintiff district was not provided a thorough and efficient education, as set forth in the state constitutions education claus e, should have been sufficient to entitle the plaintiffs to a declaratory judgment of unconstitutionality.451The West Virginia Supreme Court agreed that the plaintiffs claims stated under the education clause, alleging that their education system was not th orough and efficient, were subject to judicial adjudication even in the absence of a violation of the equal protection provisions in the due process clause of the West Virginia Constitution. However, the court reversed the lower courts dismissal of the case on purely procedural grounds, holding that the trial courts dismissal of the case was improper because it was based on evidence outside the pleadings. 452 The Supreme Court remanded for further proceedings, including the submission of evidence lead ing to a potential summary judgment motion.453In reaching this decision, the Supreme Court briefly considered whether the content of the education clause was subject to adjudication. 454 Reviewing many old decisions of the highest courts of surrounding stat es, the court found evidence that other state courts had been reluctant to engage in review of the legislative mandates in state education clauses.455 450 Id. at 862 63. However, the court 451 Id. at 863. 452 Id. at 878. 453 Id. 454 Id. at 869 74. 455 Id. at 869 ( Broad legislative authority and discretion have been acknowledged, and c ourts have made for themselves guidelines for testing legislation against the clause. ).

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181 also identified several instances in which courts had invalidated legislative actions based at least in part on the failure to comply with state education clauses.456From this clause it is plain, the people intended that the thoroughness and efficiency of the system of free schools, adopted by the legislature, should in no wise be prejudiced by the want of ample means. They make it obligatory upon the legislature to provide for the support of such schools thus placing in the hands of the legislature, for that purpose, plenary, if not absolute, power. The court also quoted with approval a very early pronouncement from the West Virginia Supreme court concerning the nature of the education clause: 457In that early case, the court employed the education clause as a means of shielding the Legislature from a challenge to its establishment o f local school boards with taxing authority. 458 The court held that the education clause, in addition to other constitutional provisions, embued the Legislature to judge what was necessary and proper for the organization of such institutions of lear ning as the best interests of general edu cation in the State may demand, and have all powers, consistent with the principles of right and justice, as recognized and protected by the constitution, to provide the means for their support.459Nevertheless, des pite these strong early pronouncements regarding the nearly absolute legislative power and discretion over education, the court examined the decisions of several other state courts that reviewed whether actions by legislatures or local elected bodies, such as local 456 Id. at 870 ( But these jurisdictions have not hesitated to examine legislative performance of the mandate, and we think properly so, even as they recite that court s are not concerned with the wisdom or policy of the legislation. ). 457 Id. (quoting Kuhn v. Board of Educ. of Wellsburg 4 W.Va. 499, 509 (W.Va. 1871), overruled on unrelated grounds Williams v. Grant County Court, 26 W.Va. 488 (W.Va. 1885) ). 458 Kuhn, 4 W.Va. at 509 10. 459 Id. (quoting W.Va. Const., art. X, 4. ).

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182 school boards, exceeded the discretion and power provided by the state constitution.460 The court explained that legislative action in violation of state education clauses had been repeatedly invalidated in the courts of several states.461 However, with the exception of the New Jersey Supreme Court, the West Virginia court did not identify any other state highest court that had chosen to engage in review of a state legislative bodys compliance with the adequacy based provisions of the state educati on clause.462 The courts citations were almost entirely to cases invalidating local school board action in violation of negative liberties, and those that were not were to cases either affirming legislative power or invalidating a complete denial of education.463 460 Pauley I 255 S.E.2d at 871 ( However, courts have not stopped there. Nearly every one has intervened when an act by a legislature or a proceeding by a local school board, as agent of the legislature, is offensive to judicial notions about what a thorough and efficient education system is. ). Only the New Jersey case of Robinson v. Cahill could arguably be viewed as a decision purportedly adjudicating legislative action by interpreting the adequacy based provisions in the state constitutions education clause, but as discussed supra, the New Jersey court itself relied 461 Id. 462 See id. at 87172 (citing People v. Deatherage, 81 N.E.2d 581 ( Ill. 1948) (invalidating, on equal protection grounds, legislative changes t o district boundaries, and stating, This court has also been consistent in holding that the question of the efficiency and thoroughness of the school system established by legislative permission is one solely for the legislature to answer and that the cou rts lack power to intrude. ); In re Kindergarten Schools, 32 P. 422 ( Colo. 1893) (affirming the legislatures power to establish kindergartens if it so desired); Granger v. Cascade County School District No. 1, 499 P.2d 780 ( Mt. 1972) (enjoining a local sc hool board from collecting fees for textbooks); State ex rel. Lien v. School District No. 73, 76 P.2d 330 (Mt. 1938) (compelling a local school board to provide education to two students completely denied it); Wooley v. Spalding, 293 S.W.2d 563 (Ky. 1956) (compelling a local school board to re open a high school, which the Court found had been closed for discriminatory reasons); Howard v. County School Board of Allegheny County, 122 S.E.2d 891 ( Va. 1961) (invalidating a legislative change to voting procedur e due to its imposition on the power of a local board over education funding)) The Court also cited its own prior rulings in this vein. See id. (citing Vandevender v. Cassell, 208 S.E.2d 436 ( W.Va. 1974) (denying a petition for a writ of mandamus agains t the local school board on the grounds that the relief sought the provision of free textbooks had already been provided); State ex rel. Brotherton v. Blankenship, 207 S.E.2d 421 ( W.Va. 1973) (invalidating the governors line item veto of the state budget, in which he reduced state education funding to zero dollars). The Court also discussed at length the Pennsylvania case of Danson v. Casey in which the Pennsylvania Court had affirmed the dismissal of claims based on the education clause, citing the Legi slatures discretion in enacting the system, absent discrimination. 382 A.2d 1238, 124647 (Pa. 1978). However, the West Virginia Court chose to credit the dissents view of the education clause, rather than the majoritys. Pauley I 255 S.E.2d at 872. 463 See supra, note 462

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183 completely on notions of equal protection and negative rights not adequacy and positive duties that it located within the education clause in justifying its review and remediation of legislative action.464The relative pauci ty of authority on the question whether the education clauses substantive, adequacy based provisions rendered incomplete the courts ultimate terse pronouncement as to the propriety of judicial review: So, on the threshold question: no court has been hesi tant to affirm legislation; many have required specific actions by local boards to bring them to compliance with the constitutional mandate; and legislation has been declared unconstitutional because it failed the mandate. There is therefore ample authorit y that courts will enforce constitutionally mandated education quality standards.465That is, the West Virginia court utilized authorities adjudicating the actions of governmental bodies other than the state legislature, or adjudicating legislative action ba sed on violations of negative rights to equality, as a basis for construing the positive mandates contained in its own state constitution. After disposing of the threshold question of judicial review, the court rendered its decision as to the substanti ve content of the education clause: We may now define a thorough and efficient system of schools: It develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupa tions, recreation and citizenship, and does so economically. Legally recognized elements in this definition are development in every child to his or her capacity of (1) literacy; (2) ability to add, subtract, multiply and divide numbers; (3) knowledge of g overnment to the extent that the child will be equipped as a citizen to make informed choices among persons and issues that affect his own governance; (4) self knowledge and knowledge of his or her total environment to allow the child to intelligently choose life work to know his or her options; (5) worktraining and advanced academic training as the child may intelligently choose; (6) recreational pursuits; (7) interests in all 464 See supra, this Chapter. 465 Pauley I 255 S.E.2d at 874.

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184 creative arts, such as music, theatre, literature, and the visual arts; (8) social ethics, both behavioral and abstract, to facilitate compatibility with others in this society. Implicit are supportive services: (1) good physical facilities, instructional materials and personnel; (2) careful state and local supervision to prevent was te and to monitor pupil, teacher and administrative competency.466After articulating this definition of thorough and efficient education, the court went on to declare, Certainly the mandatory requirement of a thorough and efficient system of free schools, found in Article XII, Section 1 of our Constitution, demonstrates that education is a fundamental constitutional right in this State. 467Based on these formulations, the court then remanded the case to the trial court to (1) determine, using strict scrutiny, whether the state education system violated the equal protection provisions of the state constitution; and (2) develop standards by which the thoroughness and efficiency of the state system could be tested, based on the courts formulation, and determine whether the system should be invalidated based on the education clause. Thus, the court implied a fundamental, positive, individual right to a particular quality of education based on th e affirmative duty stated in the education clause. 468 The appe al has been followed by several legislative acts, and by several procedural appeals, none of which has related to justiciability or the separation of powers.469 466 Id. at 877. None of these appeals has itself again raised the issue of educational adequacy as a constitutio nal matter, either. Nevertheless, it was clear from 467 Id. at 878. 468 Id. 469 See Pauley v. Gainer, 177 W.Va. 464, 353 S.E.2d 318, 37 Ed. Law Rep. 953 (W.Va. 1986) (appealing based on the failure to join the governor, an indispensable party); Pauley v. Bailey, 174 W.Va. 167, 324 S.E.2d 128 (W.Va. 1984) (appealing a challenge to the state Board of Educations implementation of statutes enacted in response to Pauley I ); Pauley v. Bailey, 171 W.Va. 651, 301 S.E.2 d 608 (W.Va. 1983) (appealing the denial of a motion to intervene as a party plaintiff in the ongoing litigation).

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185 the Pauley opinion that education is justiciable, and the courts are not prohibited from prescribing policy directive remedies in the event of a violation. Washington The Washington case of Seattle Sc hool District No. 1 v. State470Seattle came before the court on appeal by the plaintiffs after they were denied attorneys fees in the trial court after winning a declaratory judgment that the state system was unconstitutional due to a failure to satisfy the para mount duty to make ample provision for education, as specified in the education clause. was extremely important to the analyses conducted herein for two reasons. First, it was the first state high court appeal in which educational adequacy in the absolute not relative sense was addressed and adjudicated. Second the Washington court engaged in an explicit and lengthy analysis of the nature of the rights and duties set forth in the state education clause as a means of determining whether judicial review of the education clause was appropriate. Thus, despite the fact that the decision was rendered prior to the generally accepted date of the beginning of the adequacy movement or the Third Wave of litigationbased education finance reform, the case presented a very useful consideration of all of the issues analy zed in this chapter. 471 The case was converted from one over attorneys fees to one over the correctness of the trial courts judgment through the cross appeal of the State.472As a princ ipal basis for its appeal, the State contended that the trial court had overreached in adjudicating the substantive terms in the education clause and declaring the Legislature to be 470 585 P.2d 71 (Wash. 1978) (hereinafter Seattle ). 471 Id. at 76 (citing Wash. Const. art. IX, 1). 472 Id.

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186 in violation of them.473 The court rejected this contention, engaging in the most lengthy and comprehensive analysis of the question of judicial review found among all adequacy cases decided as of the time of this study.474 The court began its discussion in the same way that other state courts haveby citing to the general power o f judicial review, as established in Marbury v. Madison.475 However, the court also acknowledged that some constitutional provisions are so dedicated to the authority and discretion of a coordinate branch of government that the judiciary should refrain from adjudicating cases based on such provisions.476Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a resp onsibility of this Court as ultimate interpreter of the Constitution. The court also began by quoting the familiar admonition from Baker v. Carr where the Supreme Court stated that, in determining whether a case presents a non justiciable political question: 477With these principles in mind, the court then proceeded to analyze whether legislative action pursuant to the education clause was subject to adjudication. The court first dismissed the States contention that, because it was labeled Preamble and because of its placement at the head of a collection of more specific provisions within the constitution, the education clause was merely hortatory, and that it did not establish any rights or duties.478 473 Id. at 83. The court declared that the clause was not a mere preamble and would be analyzed as 474 Id. at 83 93 (analyzing the propriety of judicial review in light of separation of powers concerns, as impacted by the nature of the rights and duties set forth in the education clause). 475 Id. at 83 (citing In re Juvenile Director, 552 P.2d 163, 169 (1976) (quoting United States v. Nixon, supra, 418 U.S. 683, 703(1974) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)). 476 Id. at 86 (citing Gottstein v. Lister, 153 P. 595 ( Wash. 1915) ). 477 Id. at 84 (quoting Baker v. Carr, 369 U.S. 186, 211 (1962) ). 478 Id. at 84 85.

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187 a substantive provision. Next, the court quickly disposed of the States contention that the education clause, even if not a mere preamble, imposed no affirmati ve duty upon the Legislature.479 This portion of the opinion was the easiest for the court, as the Washington Constitution contained a provision specifically stating, The provisions of this Constitution are Mandatory, unless by express words they are Decla red to be otherwise.480Arguably anticipating these two rulings, the State made the ad ditional argument, grounded in the separation of powers, that because the duty imposed by the education clause was directed solely to the Legislature, it was not the proper subject of judicial enforcement. Finding no declaration in the education clause declaring it not to be mandatory, the court held that it was mandatory and as such, that it imposed an affirmative duty. 481 The court conceded the existence of what appeared to be Washingtons version of the political question doctrine, citing the controlling Washington case of Gottstein v. Lister .482Of course, When it comes to considering individual rights such as are protected by the guaranties, that the Right to trial by jury shall remain inviolate; that No person shall be deprived of life, liberty or property without due process of la w; that no law shall grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens; And many other constitutional guaranties that look to protection of personal rights, the courts have ample power, and will go to any length within the limits of judicial procedure, To protect such constitutional guaranties. However, the court viewed the challenge before it as falling within the exception to the doctrine that was articulated in Gott stein itself: 483 479 Id. at 85. 480 See id. (quoting Wash. Const. art. I, 29). 481 Id. at 86. 482 Id. (citing Gottstein v. Lister 153 P. 595 (1915) 483 Id. (quoting Gottstein 153 P. at 606).

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188 The court then articulated additional individual rights, which it held were affirmative, or positive, rights to which the exception would apply, and then connected these rights to the individual right to education: In this regard we could have then added the affirmatively stated personal guarante es expressed in Const. art. 1, 5, fre edom of speech; Const. art. 1, 11, freedom of rel igion; Const. art. 1, 19, freedom of election; as well as the constitutional righ ts expressed in Const. art. 1, 20, authoriz ation for bail; Const. art. 1, 10, entitlement to public trial; and Const. art. 1, 22, the right of an accused to appear and defend in person. At this late date in our judicial history we doubt that one could seriously contend any of the foregoing do not set forth judicially enforceable affirma tive duties of the State. Equally illogical would be a rule that a mandatory constit utional provision placing an affirmative paramount duty on the State to make ample provision for the education of a specific class of citizens is not judicially enforceable. If our exception in Gottstein stands for anything, it recognizes the need to p rotect those constitution al guarantees of a personal nature.484Thus, the courts rejection of the States political question argument depended on the similarity of the nature of the positive individual right to education 485 and the allegedly affirmative ind ividual rights to freedom of speech, religion, election, the right to post bail, the right to be tried in public, and the right to appear in ones own defense.486 484 Id. at 86 87. Of course, any scholar of rights would immediately know these listed rights to be negative liberties, not positive 485 Id. The Court later explained how it arriv ed at the conclusion that education was a positive, individual right under the Washington Constitution. The Court recognized that the education clause had placed on the State a Paramount duty to make ample provision for the education of all children resi ding within the State's borders Id. at 91 (citing Wash. Const. art. 9, 1). Citing several seminal theoretical jurisprudential works outlining the jural correlatives concept of rights pioneered by Wesley Newcomb Hohfeld, the Court held that the exis tence of an affirmative duty of the State gave rise to an affirmative correlative right to control the States actions, on the part of each individual state resident. See id. ; id. n.10 (citing Wesley Newcomb Hohfeld Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 3037 (1913); Arthur L. Corbin, Jural Relations and Their Classification 30 YALE L.J. 226 (1921); Walter Wheeler Cook, Hohfeld's Contribution to the Science of Law 28 YALE L.J. 721 (1919) ; Layman E. Allen, Formalizing Hohfeldian Analysis to Clarify the Multiple Senses of Legal Right: A Powerful Lens for the Electronic Age 48 S. CAL. L. REV. 428 (1974). A jurisprudential critique of the Courts application was beyond the scope of this study, but it was n oted that, contrary to the Courts conception, it is widely accepted even among scholars of Hohfeld that, although individual rights give rise to correlative duties, duties do not necessarily give rise to correlative individual rights. Joel Feinberg, Duties, Rights and Claims 3 AM. PHILOSOPHICAL Q. 137, 137142 (1966); David Lyons, Rights, Claimants and Beneficiaries 6 AM. PHILOSOPHICAL Q. 173, 173185 (1969). 486 Id.

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189 rights,487 but the court thought it beyond debate that these rights were affirmative duties of the State.488Based on well accepted theories of rights, the court was incorrect in its conception of the nature of the rights it enumerated 489 487 For example, Hohfeld would compare these concepts as claim rights (i.e., positi ve rights to compel another to act) versus liberties (i.e., negative freedoms to prevent anothers actions interfering with such freedoms) Hohfeld, supra note 485, at 47. None of the rights the court listed would allow one to require any independent affirmative action on the part of the government. Ones rights to freedom of speech, religion, and the vote do not require the government to make any independent provision of the mechanisms by which one can exercise these freedoms. Only where government action impedes ones ability to exercise these rights, usually in comparison with governments actions toward others, do these rights become subject to judicial review. Similarly, only where the government seeks to convict or imprison one do ones rights to bail, a public trial, and an appearance in ones own defense come into play. Without state action, none of these rights are placed at issue. Thus, these are negative li berties, entitling one to prevent government action, not positive rights, entitling one to compel it. In contrast, the right to education, where it exists, is a right to compel the delivery of educational services. No state action is necessary to enable one to assert that this right has been violated. In fact, in sharp contrast to the negative liberties discussed by the court, the total absence of legislative action would itself constitute a violation of ones right to education. For this reason, the absolute individual right to educationas opposed to the relative right to equal education, for instance is positive. 488 Id. 489 See supra notes 48488 and accompanying text.

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190 Notwithstanding the courts theoretical mistake regarding the nature of the rights that were subject to adjudication under its precedent, the court further explained its reasoning based on the apparent stipulation by all parties that the education clause was in need of interpretation.490 If interpretation were so clearly needed, the court explained, then it should be done by the branch of g overnment charged with the interpretation of laws.491 The court stated, Once it has been determined that the court has the power or the duty to construe or interpret words or phrases in the constitution and to give them meaning and effect by construction, it becomes a judicial issue rather than a matter to be left to legislative discretion. 492Continui ng to address the separation of powers arguments of the State, the court next set up a dichotomy between the ideas of separation of powers and judicial restraint. According to the court, separation of powers concerns could never exist where the judici ary had the power to act, and that this power existed in every case in which a constitutional provision required interpretation. This statement would seem to indicate that no provision of the constitution could ever be exempt from judicial review unless its meaning were beyond doubt. 493 Where such power exists, the court explained, courts may nevertheless consider the impact of a decision on the other br anches of government, and determine whether judicial action would encroach on another branchs function.494 490 Id. at 87. However, the court reasoned that such considerations were inappropriate where the duty to interpret the 491 Id. 492 Id. 493 Id. at 88. 494 Id.

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191 constitution was at issue, particularly wher e, as here, Const. art. 9, 1 is addressed to the State Not [ sic ] merely to the Legislature. 495Based on its preceding analyses, the court declared in no uncertain terms: Consequently, we hold that the trial court's interpretation and c onstruction of C onst. art. 9, 1 and 2, as well as its subsequent application thereof to pertinent legislative enactments, does not violate separation of powers principles. In addition, the judgment as subsequently modified herein does not violate the doctrine of separa tion of powers. Such determinations fall within the traditional role accorded the judiciary to interpret and construe the constitution and involves [ sic ] no lack of respect due a coordinate branch of government. It is [ sic ] the constitutional exercise of a legitimate judicial duty.496The court went on to hold, in broad terms, that the state constitution mandated a particular standard of quality of education: Consequently, the State's constitutional duty goes beyond mere reading, writing and arithmetic. It also embraces broad educational opportunities needed in the contemporary setting to equip our children for their role as citizens and as potential competitors in today's market as well as in the market place of ideas.497However, in seeming direct conflict with all of its prior analyses, the court apparently rediscovered both the legislative nature of the duties that it had found in the education clause and the legislative responsibility to give specific content to the vague terms in which the duties were expressed in constitutional text: While the judiciary has the duty to construe and interpret the word education by providing broad constitutional guidelines, the Legislature is obligated to give specific substantive content to the word and to the program [ sic ] it deems necessary to provide that education within the broad guidelines.498Ultimately, the court held that the Legislature was compelled to define the nature of the education that met the constitutional standard and determine a reliable, state centric source of 495 Id. 496 Id. at 90. 497 Id. at 94 (citing Robinson I, 303 A.2d 273 (N.J. 1973); Keyishian v. B d of Regents, 385 U.S. 589, 603 (1967) ). 498 Id. at 95.

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192 funding for such an education.499Oregon Since its decision in Seattle the court has not addressed a further challenge to educational adequacy. A very recent decision included in this study was issued by the Oregon Supreme Court in 2009. In Pendleton School District 16R v. State ,500 the court was presented with two constitutional challenges. The Oregon Constitution contains an education clause of similar variety to the constitutions of the other states studied herein, providing, The Legislati ve Assembly shall provide by law for the establishment of a uniform, and general system of Common schools.501 In addition to its general education clause, however, the state constitution also contains a more specific provision added by popular constitutional amendment in 2000.502(1) The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state's system of public education meets quality goals established by law and publish a report that either demonstrates the appropriation is sufficient, or identifies the reasons for the insufficiency, its extent, and its impact on the ability of the state's system of public education to meet those goals. This newer provision provides, in pertinent part: 503The plaintiffs prese nted the court with alternate theories of a constitutional violation. First, they contended that the Legislative Assembly was in violation of this latter education appropriations clause due to its failure to appropriate funds equal to those specified in a cost study that the Legislative Assembly had commissioned based on its own education standards. 504 499 Id. at 96 97. 500 200 P.3d 133 (Or. 2009). 501 Id. at 136 (quoting Or. Const. ar t. VIII, 3). 502 See id. at 13536 (describing the adoption of the amendment). 503 Id. at 136 (quoting Or. Const. art. VIII, 8) (hereinafter, the education appropriations clause). 504 Id. at 139 40.

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193 Next, the plaintiffs contended that, even absent a violation under the education appropriations clause, the Legislative Assembly had violated the general edu cation clause in one of two ways. Either (1) the education clause incorporated the standards set forth in the education appropriations clause, which incorporated the standards of quality set by the Legislative Assembly and its delegates, and the failure t o provide enough funding to meet these standards therefore amounted to a violation of the education clause; or alternatively, (2) the education clause imposed its own quality standard, and the Legislative Assembly had failed to adequately fund the state sc hool system in accordance with this standard.505The court, without addressing any separation of powers concerns, rejected the States argument that the plaintiffs adequacy based constitutional claims were moot in part and unripe in part. 506 Next, the cour t held that the trial court should have entered a declaratory judgment that the Legislative Assembly had failed to provide sufficient funds to meet the standard adopted in the education appropriations clause.507 However, the court also sharply limited this holding, clarifying that, conversely, the trial court was not empowered to enter the other declaration the plaintiffs sought, or the injunction that they sought to enforce it, which would have declared that the Legislative Assembly must abide by the Orego n Constitution and appropriate [adequate funds].508 505 Id. at 142 In rejecting these forms of relief, the court focused on the remaining language of the education appropriations clause, which clearly contemplated that the Legislative Assembly 506 Id. at 139 507 Id. at 141 42. 508 Id.

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194 would have the option of not meeting the funding goals, and that it would then incur a duty to explain the apparent shortfall.509Finally, and most relevant to this study, the court addressed the merits of the plaintiffs alternative claims and held that the state had not failed to meet the standard established by the education clause. 510 First, the court quickly rejected the plaintiffs contentions that the education clause impliedly incorporated the state quality standards that were textually incorporated into the education appropri ations clause, and that these standards therefore were mandatory legislative duties under the education clause itself .511 The court explained that it would be illogical to conclude that the voters had enacted an ultimately discretionary funding amendment that would immediately become completely non discretionary by virtue of a pre existing constitutional provision.512Then, the court addressed the education clause on its own terms. Adopting the conception of the education clauses meaning from an early equity case decided in the state, the court held that the education clause merely requires that the legislature provide a minimum of educational opportunities. 513However, the legislature s failure to fund the public schools sufficient to meet the quality goals established by law does not demonstrate that the legislature has ipso facto failed to provide a minimum of educational opportunities. Moreover, plaintiffs' allegations that insufficient funding has produced a number of negative conditions in the public schools that they describe as inadequate are insufficient to claim that the public education system is no longer uniform. Applying this interpretation, the court held: 514 509 Id. 510 Id. at 143 45. 511 Id. at 142 512 Id. 513 Id. at 144 (quoting Olsen v. State ex rel Johnson, 554 P.2d 139, 148 (1976) 514 Id.

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195 The court, in both Pendleton and the equity case, Olsen approached the education cla use as a repository of legislative duties, never mentioning the word rights anywhere in either opinion.515The Pendleton case was not as useful as others analyzed herein for the purposes of this study, due to the lack of any analysis or apparent argument relating to separation of powers principles, outside the limited discussion of ripeness and mootness, doctrines which confine the judicial role to adjudicating controversies, rather than advising parties. 516 This lack of discussion of an issue deemed of threshold relevance in all but one of the other opinions examined in this study was explainable, though. The nature of the main challenge brought by the plaintiffs seems to have rendered separation of powers concerns immaterial. The plaintiffs mainly based their claims on the very specific language of the 2000 amendment, only pleading the violation of the education clause in the alternative.517 515 See id. ( We conclude that the wording of Article VIII, section 3, requires the legislature to establish free pub lic schools that will provide a basic education. ); Olsen 554 P.2d at 148 ( We are of the opinion that Art. VIII, 3, is complied with if the state requires and provides for a minimum of educational opportunities in the district and permits the districts to exercise local control over what they desire, and can furnish, over the minimum. ). The Legislative Assembly, in defending the suit, could have reasonably concluded that, based on the explicit, discr etion based language of the amendment, it could achieve a better and more lasting result by simply contesting the plaintiffs claims on the merits, rather than by seeking to dismiss them on uncertain procedural grounds. Thus, similar to the state defendant in the Arizona line of cases, the state defendant in Oregon did not assert any separation of powers based objections to adjudication. 516 See id. at 139. 517 See id. at 13943.

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196 Conclusion The highest courts of twenty seven518Of the thirteen courts expressing a view of the education clause as a repository of individual rights, none dismissed litigation on separation of powers grounds, so all engaged in some level of merits review. In addition, six of the courts expressing a view of the education clause as a repository of affirmative duties or discretion engaged in some level of merits review. Of the nineteen courts enga ging in at least some form of merits review, seven engaged in merits review to the extent of ordering or sanctioning the ordering of specific, affirmative remedial legislative action, while the other twelve adjudicated the existence of a constitutional vio lation and either ultimately ruled for the state or abstained from issuing any binding remedial order after finding a constitutional violation. Of the six courts with an affirmative duties discretion states were part of the analyses reported in this chapter of the study. Of these, fou rteen courts expressed indications in opinions that the education clauses of the relevant state constitutions contained only affirmative legislative duties or grants of power and discretion. The other thirteen courts viewed education clause s as guaranteeing individual rights of either a positive or negative nature. Of the fou rteen courts viewing education clauses as repositories of affirmative duties or legislative discretion only, eight ultimately dismissed adequacy based constitutional challenges on separation of powers grounds either before reaching the merits, or invalidated prior merits review. Every single state court that dismissed litigation on these grounds ultimately expressed a view of the education clause as a repository of affi rmative duties or legislative discretion, but of no individual rights to a substantive level of education. 518 Although N =27 for the legal case content analysis performed in this chapter, the West Virginia litigation could not be code d meaningfully into one of the three judicial review level categories for purposes of quantitative analyses, so the quantitative f indings reported in Table 51 and the text accompanying it reflected an N of 26.

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197 concept of the education clause that engaged in merits review, all found the state constitutions to be violated except Oregon, which ruled for the state defendant. Nevertheless, all of the affirmative duty courts finding a constitutional violation abstained from ordering any specific remediation. Of the rem aining thirteen courts that had an individual rights view of the education clause, all except Texas found the constitution to be violated, and seven not only found the state constitution to be violated, but also issued specific remedial orders for affirmat ive legislative action, often retaining jurisdiction for the purpose of enforcement. Finally, of the thirteen courts with an individual rights view of the education clause, eight viewed the clause as affording positive rights to compel legislative action Of these eight courts, half abstained from issuing any remedial order, leaving remediation to the legislature. The other half not only adjudicated the existence of a constitutional violation, but also issued, or held that it would be proper for the tri al courts to issue, orders for specific remedial legislative action, including expenditure increases. Five courts with an individual rights view of the education clause treated these rights as negative liberties, carrying with them the right to act free o f state interference with the liberties. Of these courts, two abstained from the remedial phase, while three issued or sanctioned the issuance of specific remedial orders, directing legislative actions. These findin gs were summarized in Table 5 1. Plain ly, based on these observations, the extent of judicial review in each state was greatly impacted by the courts tendencies to view the state education clause as either a repository of affirmative duties and discretion or individual rights. Further, based on the orientation of the cell counts in Table 51, it was determined that a statistical association between these two variables was quite likely. This determination was validated through follow up testing using the Cramers V statistic, which is appropr iate where at least one of the variables is at the nominal level of

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198 measurement. As reported in Table 52, t his follow up analysis yielded a test statistic value of .470, a high value, which corresponded with an approximate pvalue of .022, indicating sig nificance well beyond the .05 level. Table 5 1. Nature of the Rights*Judicial Review Level Crosstabulation Nature of the Rights Judicial Review Level Duty or Power Positive Individual Right Negative Individual Right Total No Merits Review 8 0 0 8 Merits Review with No Remedy Specified 6 3 2 11 Merits Review and Specified Remedy 1 3 3 7 Total 15 6 5 26 Table 5 2. Symmetric Measures Value Approx. Significance Cramers V .470 .022 This tendency for courts with an individual rights view of the education clause to be more likely to engage in more searching judicial review illuminated the findings of the quantitative analysis reported in Chapter Four of this study. For example, several courts defended the decision to engage in merits review based on the judicial duty to protect individual rights from majoritarian infringement. This conception of judicial duty undoubtedly caused courts, even courts that explicitly considered the text of the separation of power s provisions in the state

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199 constitution, to reject separation of powers principles in favor of the more traditional and uncontroversial judicial role of protecting minorities from invidious majoritarian will. Nevertheless, this conception of the judicial role may have been inappropriate when applied to the adequacy based language of state education clauses. These clauses differ in the relative specificity of the adjectives contained within them, but the clauses all contain subjective and nebulous terms, a nd no state education clause contains any rights based language. Inferring individual rights from duty based language was not necessarily improper, as it is at least arguable that a positive duty placed on one party implies a positive right held by the pa rty in whose favor the duty is imposed. However, it is not inevitable that all positive duties should create positive rights of enforcement, and it was likely a mistake for courts to construe the affirmative, duty based language in state education clauses as conferring any sort of negative liberties, as these would not even arguably be correlative to any positive duty. More fundamentally, knowing a courts conception of the rights or duties contained in the education clause would cause an outside observe r without knowledge of the courts decision as to the propriety of judicial review to make intuitive predictions of what this decision would be. Intuitively, a court with a completely duty based conception of the education clause should be more likely to defer to legislative discretion in the definition and performance of the duty, but this intuitive assumption seems to have been only partially borne out by the opinions analyzed herein. Of the thirteen courts expressing a duty based view if the education clause, only half abstained from review of the merits, and the distinction between those engaging in review and those abstaining was not attributable to the differences in these states separation of powers provisions. Nevertheless, as an outside observer would likely predict, none of the duty based courts issued orders, or approved the issuance of orders, for specific legislative action.

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200 As to rights based conceptions of the education clause, an observer would intuitively predict that, if a court were t o find a violation of a positive individual right, then the court would impose a remedy mandating specific affirmative action to remedy such violation, due to the compulsory nature of a positive right. However, as discussed, half of the courts with a posi tive rights view of the education clause have abstained from ordering any remedy for a constitutional violation, leading to the conclusion that positive education rights may not be enforceable in any practical sense in these states. On e might justifiably wonder whether a positive individual right can exist if no remedy exists for its violation. Conversely, an outside observer might intuit that a court with a negative rights based view of the education clause would tend to go no further than invalidating legislative action that it perceived to be in violation of such liberties. However, as discussed, of the negative liberties based courts, more than half have imposed or approved affirmative remedial orders. Moreover, based on recent research, it appears that nearly all state highest courts reaching the merits of education finance adequacy litigation and finding a constitutional violation have done so based primarily or solely on comparative evidence.519 This type of evidence seems best suited for questions of equity and other negative rights, rather than absolute quality evidence, which would be appropriate for questions of adequacy, a positive right, if a right at all. It has been suggested based on these recent findings that courts should recognize the c oncept that there is no adequacy without equity and address adequacy claims employing comparative standards.520 519 James E. Ryan, Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 1238 (2008). However, based on the findings of this study, it was determined that the tendency of courts reaching the merits of adequacy claims to ultimatel y decide them, and often remediate 520 Id. at 122526, 1256.

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201 them, as equity claims, indicates that, despite the rhetoric about the judicial duty to say what the law is, the courts have not been comfortable sitting in judgment of matters of absolute quality, which is an inherently subjective concept. Because of this uneasiness, these courts have reverted to methodologies that the judges find familiar, which have included the examination of purely comparative data in education finance litigation. These results, when considered along with the findings of the quantitative analysis reported in Chapter Four of this study and the existing literature on the topic, led to the conclusion that decision making in education finance adequacy litigation has often been unrelated to courts t heoretical justifications for judicial review. The finding of no evidence of association between separation of powers text and judicial review decisions was quite striking and counter intuitive. Similarly, although the finding of association between judi cial review decisions and rights duties conceptions of the education clause suggested that some unifying principles of judicial review might exist in state courts, when analyzed further, it became clear that a substantial number of the opinions could not be explained by these principles. The final chapter of the study examined a possible explanation for these findings and proposed some doctrinal alterations that could make decision making in future cases more principled, and therefore more susceptible to prediction and rational justification.

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202 CHAPTER 6 DISCUSSION AND CONCL USIONS Discussion As reported in this study, the extent of judicial review and remediation in education finance adequacy litigation could not be predicted based on the relative rigidity or flexibility afforded the judiciary by the text of the state constitution relating to separation of powers. Rather, the extent of judicial review appeared to much more closely track a courts willingness to view the education clause as a repository of individual rights, rather than solely legislative duties and powers. In the states where the education clause was interpreted as a repository of adequacy based individual rights, however, it was less apparent whether the judicial review determination was influenced by whether the rights were considered positive or negative in nature, as courts often used the concepts related to both of these types of rights interchangeably, and there was very little difference in either the rates of remediation or the chos en types of remediation between positive rights and negative rights courts. Plaintiffs nearly always succeeded in cases where they could clear the initial procedural hurdle of convincing the courts not to completely abstain based on separation of pow ers grounds. Of course, state defendants always succeeded where they were able to convince the courts that separation of powers principles required total abstention from the merits. All courts completely abstaining from merits review perceived state educ ation clauses as repositories only of affirmative duties, rather than of any individual rights. Courts identifying individual rights in the education clause uniformly engaged in merits review, but many of these courts, after identifying a constitutional v iolation, abstained from ordering any remediation. Rather, these courts left remediation of the violation of ostensibly individual constitutional rights to the legislature or the executive, who were the alleged violators of such rights.

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203 As Professor Hei se has identified, this type of remedial abstention has been termed the dialogic approach because its justification is that it causes the courts to engage in a collaborative dialog with the coordinate branches of government.1Thus, the ultimate result of both forms of judicial dialog is much the same as deciding that a defendant is liable to a plaintiff for breach of contract, but leaving the def endant as the sole determiner of the amount of the damages. The only difference is that the active approach would direct that the court identify amounts of damages that clearly would be unacceptable, or suggest ways of computing damages that would allow the defendant to arrive at a proper number. In this hypothetical, if the defendants conclusion were not satisfactory to the plaintiff, the case would have to be brought back in front of the court, either through enforcement jurisdiction or through a new lawsuit. Clearly, this procedure would not suffice in the typical case, but it is viewed as very desirable in education finance adequacy cases, and even in other positive rights cases. The likely reason for this view is that commentators perceive the se paration of powers problems that inevitably arise in this type of litigation and have offered the dialogic approach as This dialog has taken o ne of two forms in the cases either active dialog, which denotes courts identifying constitutional violations and guiding remediation with a statement of examplars or delimitations; or passive dialog, which merely denotes courts identifying constitutional violations and trusting legislative bodies to remedy them with no court guidance as to how. Under both approaches, courts do not order specific remedial measures. Rather, the two approaches simply describe different levels of guidance provided by courts for legislative action following judicial declarations of unconstitutionality. 1 Michael Heise, Preliminary Thoughts on the Virtues of Passive Dialogue 34 AKRON L. REV. 73 (2000); see also Susan P. Sturm, A Normative Theory of Public Law Remedie s 79 GEO. L.J. 1355, 1365 76 (1991) (presenting the consensual deliberation approach, which is the progenitor of the dialogic approach in education finance litigation).

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204 a means of addressing these problems. The problem with this reason is that it is mistaken. Where courts have used either type of dialo g, these courts have continued to be confronted with separation of powers objections. Some of the primary exemplars courts of the dialogic approach have even ultimately bowed to these pressures and withdrawn ongoing judicial supervision, either by declar ing that the state is now in compliance with the constitution based on a lenient standard of review that would have upheld the system in the first instance,2 or by re affirming that the constitution is not satisfied, but holding that further court involvem ent is not necessary.3Doctrinally, the dialogic approach also presents challenges. Specifically, the courts engaging in the dialogic model of adjudication of adequacy claims have essentially decided the justiciability question under separation of powers principles twice, when it has always been understood doctrinally to be a single threshold inquiry. 4 2 Neely v. W. Orange Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746, 784 (Tex.2005) (e stablishing arbitrariness as the touchstone for whether a state education finance system is unconstitutional and upholding the state system due to the failure of the plaintiffs to establish that it was arbitrary); Hancock v. Commr of Educ., 822 N.E.2d 1134, 1140 (Mass. 2005) (Marshall, C.J., concurring) (plurality opinion) (holding that the state system would not be invalidated because the plaintiffs failed to show that the legislature acted in an arbitrary, nonresponsive, or irrational way to meet t he constitutional mandate ); see also Roosevelt Elem. Sch. Dist. No. 66 v. State, 74 P.3d 258 (Ariz. App. 2004), review denied (Jan. 7, 2004) (holding that the failure to establish a causal link between an alleged lack of funding and low student achievement prevent the plaintiffs from proving a constitutional violation). In each case, the first justiciability determination has been made as to whether a constitutional violation can or should be identified on the merits. Onc e this question has been decided in the affirmative and the court has found a violation of the constitution, the court has then revisited the justiciability question and asked whether the court can or should order a remedy. Both determinations have been m ade with 3 State ex rel. State v. Lewis, 789 N.E.2d 195, 202 (Ohio 2003) (reaffirming that the state constitution was violated, but certifying the Courts ultimate withdrawal from its ongoing super visory role in the litigation). 4 See, e.g. Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy 102 COLUM. L. REV. 237, 243 44 (2002) (describing the threshold nature of the politic al question inquiry).

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205 reference to separation of powers principles, but in the dialogic cases, the determinations have yielded opposite results. It is difficult to understand how separation of powers concerns do not prevent adjudication of the sufficiency of legisla tive action retrospectively, but do prevent judicial determination of what must be done prospectively to render unconstitutional legislative action constitutionally sufficient. In both cases, the judiciary passes judgment as to whether a certain level of public funding is sufficient. The only difference is that the adjudication of the violation merely establishes that a certain level of funding is not sufficient, while the ordering of a remedy would specify a level of funding that is sufficient, at least as a minimum constitutional floor. Any argument that there is a real distinction between these two outcomes is not very convincing. Nevertheless, the dialogic courts, and the commentators who approve of this method of adjudication, see a distinction, a nd they often see this distinction as the difference between justiciability and non justiciability.5 The effect of this remedial abstention is to place state legislatures into a difficult position. On the one hand, the legislatures know that current leve ls of funding are not sufficient. On the other hand, however, the lawmakers have no guidance as to what level of funding would be sufficient. This dilemma inevitably leads to one of two results. Either the legislature might view the courts involvement as illegitimate and refuse to comply, generating an ongoing constitutional crisis like that which has existed in New Jersey since the 1970s;6 5 See, e.g. Larry J. Obhof, Rethinking Judicial Activism and Restraint in School Finance Litigation, 27 HARV. J. L. & PUB. POLY 569, 59396 (2004) (arguing in favor of a middle ground approach, which would require total remedial a bstention or passive dialog as a means to allow review without trampling on the separation of powers); George D. Brown, Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions 35 B.C. L. REV. 543 (1994) (advocating an active dialogic approach for similar reasons). or the legislature might generally seek to remedy the deficiency, but become trapped in a 6 See City of Pawtucket v. Sundlun, 662 A.2d 40, 59 (R.I. 1995) (justifying abstention due to the potential for judicial review to engage the court in a morass comparable to the decades long struggle of th e Supreme Court of

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206 game of fiscal hot and cold, continuously being forced to guess at whether a proposed level of funding will be sufficient to satisfy the courts.7 Neither of these results is more likely to produce efficient or effective policy making than the simple operation of the political process, with all its flaws, and both results carry with them the prospect of permanent judicial approval of legislative appropriations, a backdoor veto power for the judicial branch.8Further, as Ryan has established, where courts have engaged in merits review, these courts have relied almost exclusively on comparative data in determining constitutional violations. In the final analysis, the dialogic approaches to adjudication have presented the same institutional concerns as full review and specific remedial injunctions. In each case, the courts must directly or indirectly supervise the content of legislative policies. 9 This study verified that more than half of the courts engaging in merits review either held an affirmative duty view or a positive ri ghts view of the education clause, and yet Ryans findings extended across all courts engaging in merits review.10 New Jersey that has attempted to define what constitutes the thorough and efficient education specifi ed in that states constitution ). Thus, existing scholarship has established that the nature of the claims brought (adequacy based or equity based) made little difference in t he methods of analysis courts used in making a merits decision, and this study 7 See, e.g. Paul L. Tractenberg, The Evolution and Implementation of E ducational Rights Under the New Jersey Constitution of 1947, 29 RUTGERS L.J. 827, 892935 (1998) (outlining the repeated legislative efforts in New Jersey to frustrate, evade, and comply with initially dialogic orders from the state supreme court). 8 Cf. McDaniel v. Thomas, 285 S .E.2d 156, 165 (Ga. 1981) (To [invalidate the states education system] would be an unwise and unwarranted entry into the controversial area of public school financing, whereby this Court would convene as a super legislature, legislating in a turbulent field of social, economic and political policy.) (quoting Thompson v. Engelking, 537 P.2d 635, 640 (Idaho. 1975)). 9 James E. Ryan, Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 122526, 1256 (2008). 10 See Ryan, supra note 9, at 1225. ( Indeed, I found only a single decision from a state's highest court (the Kansas Supreme Court) that relied on legislative standards. )

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207 clarified that, among the courts issuing such decisions were found large numbers holding either affirmative or negative views of education clause provisions. Further, this study established that the nature of the rights or duties ostensibly at issue (affirmative duties for adequate provision of education, positive rights to adequacy, or negative rights to equity) often did match courts decisions whether and to what extent to e ngage in judicial review in the first instance. However, similar to Ryans study, this study found that the differences in the two competing conceptions of individual rights (positive and negative) did not lead to differences in the nature or extent of re medies afforded for constitutional violations. Professor Ryan has proposed that both litigants and courts recognize that adequacy cases, where these cases have not been dismissed, have nearly been universally decided on equity grounds, and treat them as s uch, employing a measure of rough comparability of spending or resources in every education finance adequacy challenge.11 Another way of saying this is that courts should approach all positive and negative rights claims using the same methodology because at bottom, these rights are the same. However, as discussed in preceding sections of this study, the use of comparative methods is likely not an indication that all adequacy claims are really about equity or equality though some clearly are.12 11 Ryan, supra note 9, at 122526, 1256 (2008). Rather, i t is more likely an indication that, despite the rhetoric about judicial competence, judicial duties, and the inherent legitimacy of judicial review in deciding questions of the sufficiency of legislative policy making in education, judges harbor deep rese rvations about deciding these cases as adequacy cases, so the courts default to comparative methods, which are more familiar and more suited to judicial determination. 12 E.g., Brigham v. State, 889 A.2d 715 (Vt. 2005).

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208 This study proposes a different approach that would recognize the differing types of education finance suits for what rights these suits present, and would approach all questions of review of state policy making with an eye toward maintaining proper institutional balance, while ensuring the protection of individual rights. The following section sets forth this proposal. Further research will test it and refine it. A Proposed Model of Adjudication Any proposal for modification of adjudicatory practices in education finance litigation must begin with an understanding of the nature of t he claims that can be brought under the education finance adequacy banner. In statecourt education adequacy litigation, three types of claims may be found to exist, two of which are real and presently asserted, and one of which arguably the most valid of the threehas thus far been relegated to obscurity.13The first type is the general challenge to adequacy of education services or spending system wide. The second, which has not yet been brought before any state highest court, but which should really c onstitute most of this litigation, consists of an individual claim challenging the denial of individual positive rights to educational services. The third type of claim has become the dominant type, either through alternative pleading or judicial methodol ogical construction, but it often does not fit the rights ostensibly associated with it. This type consists of claims that, on their face, appear to be adequacy based claims, but on deeper analyses, are revealed to be equity or equality claims masqueradin g as adequacy claims. The first two types of claims implicate affirmative legislative duties and positive rights, while the last truly implicates only negative rights. Rather than approaching adjudication of these varied claims in the same ways, state co urts should be careful to recognize that different types of claims require different 13 But s ee Debra P. v. Turlington, 474 F.Supp. 244 (M.D. Fla. 1979) (presenting what could arguably be construed as individual adequacy based claims in a class action grounded in federal equal protection and due process doctrine).

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209 methodologies both at the threshold justiciability stage and at the merits stage, and approach them accordingly. The first type of claim to invalidate the entire state education systems legislative foundation as failing the constitutional mandate to provide for adequate levels of education funding, programs, or outcomes has been likened to what has been termed public law litigation in the federal courts.14 The most familiar type of public law litigation involved the many cases following Brown v. Board of Education.15In these cases following Brown the typical pattern of adjudication was for the constitutional violation to be identified as the existence of a segr egated school system, or its vestiges. 16 Following this identification, courts exercised judicial power to direct all manner of legislative or local board actions to eliminate existing segregation, or to remedy vestigial segregation.17 These remedial order s, often imposed and supervised by federal judges and special masters for decades, have been offered up as evidence that state judiciaries can engage in ongoing conversation,18 dialog,19 or colloquy20 14 See Abram Chayes, The Role o f the Judge in Public Law Litigation 89 HARV. L. REV. 1281, 1284, 1288 89 (1976) (developing the concept of public law litigation for the first time). with the political branches to remedy 15 Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds 117 HARV. L. REV. 1016 (2004) To be sure, the idea of public law litigation is not without its critics, see, e.g. id. (citing Ross SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT 139 182 (2003); GERALD N. ROSENBE RG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 11 (1991); Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions 1983 DUKE L.J. 1265 (1983); Colin S. Diver, The Judge as Political Powerbroker: Superint ending Structural Change in Public Institutions 65 VA. L. REV. 43, 46 (1979)), and its defenders, see, e.g. id. (citing William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy 91 YALE L.J. 635, 636 (1982); Pau l Gewirtz, Remedies and Resistance 92 YALE L.J. 585, 589, 674 79 (1983)). Nevertheless, there is no doubt that these cases have indeed been heard and decided in the federal courts, and they are repeatedly cited in support of the courts institutional co mpetence to engage in ongoing supervision of legislative policy making. Interesting to note is the fact that none of this litigation was brought against states themselves. 16 See Chayes, supra note 14, at 1300 (describing the processes involved in fashi oning public law remedies). 17 Id. 18 See Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Function, 114 HARV. L. REV. 1833 (2001) (advocating for participatory judicial review based on judicial competence to manage larg e scale

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210 educational inad equacy. Most separationof powers based objections to judicial review in adequacy cases are based on the unavoidable intrusiveness of any judicial remedy of inadequacy,21 so the proponents of searching and active judicial review claim that the success22 of these public rights cases in avoiding institutional conflicts addresses such objections.23However, state constitutional litigation relating to affirmative state wide duties ultimately is distinct from the more familiar form of federal public law litigation. Public law litigation stems from an aggregation of numerous claims of individual rights or interests, all of which have been violated similarly. 24 Often, such cases are brought against a governmental unit, rather than the state legislature.25 public law litigation remedies); Johnathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government 24 RUTGERS L.J. 1057 (1993) (same); Burt Neuborne, Foreword: State Constitutions and the Evolution of Positive Rights 20 RUTGERS L.J. 881 (1989) (same). Systemic state wide education adequacy challenges amount to more of a 19 George D. Brown, Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions 35 B.C. L. REV. 543 (1994) 20 Michael A. Rebell, Povert y, Meaningful Educational Opportunity, and the Necessary Role of the Courts 85 N.C. L. REV. 1467, 1535 (2007). 21 See, e.g. Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996) (citing the inability of the C ourt to issue any remedy that would not inevitably intrude on legislative prerogatives). 22 For the purposes of this study, it was of no consequence whether this claimed success was borne out by empirical data. Indeed, several public law cases were ult imately either stopped by appellate courts or abandoned by the initiating courts in the face of institutional concerns. See, e.g. Missouri v. Jenkins, 515 U.S. 83 90 (1995) (reversing, on institutional and federalism grounds, the district courts ambitio us remedial plan to desegregate the Kansas City school system). Nevertheless, for the purposes of this study, it was assumed that the public law injunctions and consent decrees in federal court have been successful. 23 Helen Hershkoff, State Courts and t he Passive Virtues: Rethinking the Judicial Function, 114 HARV. L. REV. 1833 (2001); State v. Campbell County Sch. Dist., 32 P.3d 325 (Wyo. 2001); Abbott v. Burke, 693 A.2d 417, 427 (N.J. 1997) (citing Robinson v. Cahill, 351 A.2d 713 (N.J. 1975)). 24 C hayes, supra note 14, at 1310 ( In a public law system persons are usually affected by litigation in terms of an interest that they share with many others similarly situated, whether organized or unorganized, that is to say, as members of an interest group. ). Professor Currie has correctly pointed out that, although such litigation often results in remedial orders requiring affirmative legislative action, these positive orders stem from violations of negative rights. See David P. Currie, Positive and Negative Constitutional Rights 53 U. CHI. L. REV. 864, 874 (1986) 25 But see Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds 117 HARV. L. REV. 1016, 102228 (2004) (examining education finance equity and adequacy litigation together as a species of public law litigation).

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211 re examination of state wide prioritization and appropriations decisions, which may have been incidentally helpful to some, incidentally harmful to others, and benign to most, but which might, on balance, benefit the state as a whole. For example, it would be highly dubious to claim, in a system wide adequacy suit, that all of a states students have been deprived of the adequate education to which they are entitled. In contrast, in a system w ide suit challenging segregation or its vestiges, it would be completely reasonable to claim that all members of the protected classification have been victimized by actual or vestigial segregation because segregation itself is the harm, and one court orde red remedy will remove the harm from all. Thus, conceptually, system wide adequacy claims are distinct from public law negative rights claims, even those based on the equal provision of services, such as education. In addition to this distinction, t he signaling function that constitutional litigation is supposed to have implicates separation of powers concerns in judicial decisions adjudicating affirmative, state wide duties more than those implicating negative rights, even in the aggregate.26 26 See, e.g. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration 99 COLUM. L. REV. 857, 906 n.203 (1999) (discussing the the expressive or signaling funct ion of cons titutional decisions as a means to alter congressional behavior in the procedures that it follows in enacting statutes). By a djudicating that a legislative act has impermissibly infringed a negative right (or the negative rights of multiple claimants), judicial decision making invalidating legislative action in negative rights cases has the effect of signaling to the legislature This far is too far. After receiving the signal, the legislature has clear information regarding when it is likely to run into constitutional trouble, and it can refrain from taking action that will do so in the future. There are many permutations of remedies for harms to negative rights, especially in public law

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212 litigation,27In contrast, in a system wide adequacy based education finance challenge, a court decision invalidating legislative action effectively signals to the legislature, This far is not far enough. The legislature knows only that it must do more (provide more funds, more programs, more oversight, and so on), but has very little information as to how much more unless the court provides guidance, either through an order for specific legislative action or through some form of active dialog, such as exemplification or demarcation, which are functionally identical to specific remedial orders, as discussed. Without some judicial specification of what policy outcomes are desired, the legislature has almost the same amount of information after a ruling as it had before being sued, and it must continue to guess as to how much more it mus t do to meet the constitutional mandate. This constant guessing process is inefficient, and it may have a negative effect on the legitimacy of judicial decision making and inter branch relations. but the fact remains that, once a violation has been found, the legislature knows the limit of its powers. Thus, in education finance adequacy litigation brought to c hallenge the system itself, a court electing to review legislative action is faced with (1) risking its own institutional capital to provide a decision that helps very little, if at all, in ensuring future legislative compliance with constitutional command s; or (2) the other extreme risking its own institutional capital to, in effect, assume the legislative role of setting policy and funding priorities for all state functions. Many courts, obviously troubled by this Hobsons choice, have reverted to the le ssintrusive passive dialog option and issued rulings finding a constitutional violation, but providing no guidance to remedy it, and many others have simply avoided the choice by completely abstaining 27 Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds 117 HARV. L. REV. 1016 (2004) (di scussing the differing ways of remedying violations of individual rights in public law litigation).

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213 from any merits review on separation of powers grounds. Another approach is possible, one that protects the judiciary from encroaching on legislative functions where judges merely disagree with the outcomes of legislative deliberations, but protects the judiciarys ability to correct gross failures of poli tical will in extreme cases and leaves the courts with an institutional justification for specific remediation should it become necessary. Viewed fairly, true system wide adequacy claims, which ask the court to declare the entire state system unconstitutional, implicate only affirmative legislative duties with no corresponding individual rights attached to them, except under the implausible scenario where all of a states residents can claim similar individual harms. If one individual interest or right w ere enough, then one plaintiff would theoretically be able to invalidate a state system due to the failure of his own education, even if education were completely stellar for every other state resident. Thus, because system wide adequacy challenges are br ought to alter a state wide legislative plan, such challenges do not implicate the rights of any individual, other than indirectly as a citizenbeneficiary of the state wide system. Rather, these claims are brought to vindicate the systemic interests of every resident in ensuring that government power is not abused.28The affirmative statewide duties mandated by state education clauses necessarily imply significant legislative policy discretion. Nearly all education finance opinions have either starte d from this premise or reached this conclusion. 29 28 See Richard H. Fallon, Jr., Individual Rights and the Powers of Government 27 GA. L. REV. 343 355 (1993) (describing several types of interests that give rise to rights, which must be balanced against governmental powers). No individual rights can exist to trump this discretion because what is being challenged in a system wide claim is a duty to the state public 29 See supra, Chapter Five.

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214 as a whole, not to any particular member of it.30 In this way, the design and funding of an education system is committed to the discretion of the legislature,31 to use the terminology of the political question doctrine,32 and judicial review of such discretion therefore inherently implicates separation of powers con cerns.33Understanding these facts, s tate supreme courts should approach all claims challenging the system wide adequacy of a states education system as political questions in the first instance, but should apply a modified approach to the overly harsh f ederal practice of automatic total abstention from the merits of political question cases 34 Where state affirmative duties implying legislative discretion are challenged on constitutional grounds, courts should limit initial review to process and procedur e, rather than substance. Courts can do this in much the same way that decisions initially limit review of corporate board discretionary acts through the process care conception of the business judgment rule.35 30 Cf. Fallon, supra note 28, at 389 (coming to the conclusion that state wide education interests held by the government do not necessarily translate into individual rights to compel educational services due to the comparative institutional competency of political bodies in making decisions on such matters). 31 The small number of courts that have split textual hairs to determine that the word State (as opposed to Legislature or General Assembly) in the education clause mandates a three branch duty plainly have it wrong. See, e.g. Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472, 484 (Ark. 2002) (holding that the constitutions command that the State provide for education mandated a threebranch role in developing educational policy). One need only look at the defending party in the litigation to see why. If the duty were truly a three branch duty, then the courts would be just as accountable, just as much to blame for the current state of affairs, and just as much subject to any remedial order issued by the courts. This result would be quite absurd, so the proposals herein assume the incorrectness of these decisions. 32 Baker v. Carr, 369 U.S. 186 (1962). 33 See, e.g. Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers in SCHOOL MONEY TRIALS: THE LEGAL PURSUIT OF EDUCATIONAL ADEQUACY 322 (Martin R. West & Paul E. Peterson, Eds. 2007) (explaining the salien ce of separation of powers concerns to system wide adequacy claims). 34 See Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy 102 COLUM. L. REV. 237 258 (2002) (describing the abst ention function of the political question doctrine). 35 The business judgment rule is a presumption of good faith that generally limits judicial review of a corporations boards actions in the absence of a violation of the duty of care, the duty of loy alty, or the duty of good faith. Some corporate cases appear to conceive the business judgment rule as a standard of review, rather than a rule of abstention. See Aronson v. Lewis, 473 A.2d 805 (Del. 1984). However, this study proceeded on the assumptio n

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215 In the corporate context, the business judgment rule ensures that board action or inaction directly in conflict with the corporations best interests will be corrected, but it also ensures that mere policy disagreements will not lead to serial litigation and court supervision.36 In one well known formulation of this doctrine, the court serves these functions by evaluating, in the first instance, whether the board has examined relevant data and engaged in deliberation prior to taking action.37 Conceived as an abstention doctrine,38 the business judgment rule forestalls merits review of board decisions under the duty of care unless the plaintiff can rebut the rules presumption of good faith, informed decision making on the boards part.39 A plaintiff can rebut the presumption by showing, in relevant part, that the board of directors reach [ed its] decision by a grossly negligent process that include[d] the failure to consider all material facts reasonably available.40 that the rule is more properly conceived as a rule of qualified abstention. See Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985) (denying business judgment protection to a board that entered into a merger transaction after only two hours of debate and with out any investigation of the value of the shares it was purchasing); Stephen M. Bainbridge, The Business Judgment Rule as Abstention Doctrine 57 VAND. L. REV. 83, 90 (2004) ( In this conception, the rule's presumption of good faith does not state a standa rd of liability but rather establishes a presumption against judicial review of duty of care claims. The court therefore abstains from reviewing the substantive merits of the directors' conduct unless the plaintiff can rebut the business judgment rule's pr esumption of good faith. ). One might object to this approach on the ground that corporate boards often simply go through the motions in engaging in process due care, rather than actually carefully considering their decisions. A response to this obje ction would point out that corporate boards do not have to deliberate in public, but legislatures do. The existence of a free press in attendance during deliberations and evidence gathering would have a significant chilling effect on cynical pro forma met hods of compliance. 36 See FRANK H. EASTERBROOK & DANIEL R. FISCHEL, ECONOMIC STRUCTURE OF CORPORATE LAW 93 (1991) (Behind the business judgment rule lies recognition that investors' wealth would be lower if managers' decisions were routinely subjected t o strict judicial review.). 37 Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985). 38 Bainbridge, supra note 35, at 89 90. Professor Bainbridge analyzes the competing considerations that the rule could be conceived as either a very demanding standard of subs tantive review or as a procedural doctrine of qualified abstention, ultimately favoring the latter. This study found Banbridges conception of the rule as an abstention doctrine persuasive, and the proposal to adopt a modified version of it in education f inance adequacy litigation assumed this conception of the rule. 39 Bainbridge, supra note 35, at 90. 40 Bainbridge, supra note 35, at 90 n.41 (quoting Brehm v. Eisner, 746 A.2d 244, 264 n.66 (Del. 2000) ).

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216 Applying this doctrine to legislative actions or inaction relating to constitutionally imposed affirmative duties to provide for education would admittedly be controversial, especially considering the rights based rhetoric that has thus far surrounded education adequacy litigation.41Applied in the context of challenges to state wide education system adequacy, the adopted version of the corporate business judgment rule would mandate that a reviewing court apply a presumption that the challenged statutory scheme was enacted in good faith, for a proper purpose, and with sufficient consideration of information. This presumption would be only a very small step removed from the more familiar presumption, which is oft stated but seldom applied in adequacy litigation, that legislative acts are constitutional unless conclusively shown not to be. Nevertheless, the parallels between board functions and legislative functions are too compelling to reject the application of a trimmed down version of the corporate rule. Both legislatures and corporate boards serve in a representative capacity, elected by those represented. Both have duties to make pol icy in the best interests of the entities represented, not just the people within those entities who elected them, and both must balance competing considerations in allocating scarce resources to maximize value and efficiency. Each would see its functions greatly impaired through constant litigation seeking reversal or modification of decisions made in the course of carrying out these duties, and each would benefit from qualified protection from judicial overreach in evaluating policy decisions. 42 41 See supra, Chapter Five. The only difference would be a very important one. Whereas the constitutionality presumption is directed at the substantive correctness of the legislative act, the legislative deliberation presumption would be directed at the processes and procedures followed in 42 See, e.g. Rooseve lt Elem. Sch. Dist. No. 66 v. State, 74 P.3d 258 (Ariz. App. 2004) ( Roosevelt II ), review denied (Jan. 7, 2004) (stating, as a justification for lenient review, Generally, every l egislative act is presumed to be constitutional and every intendment must be indulged by the courts in fa vor of validity of such an act.).

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217 enacting a challenged piece of legislation or maintaining a set of public programs. The substantive constitutionality could only be reviewed if the plaintiff were to rebut the initial presumption of proper deliberation. A plaintiff could rebut this presumption by showing that, in enacting the legislative scheme, the legislature failed to take into consideration material information available to it through reasonable efforts. A small modification to the rule would additionally be necessary because, unlike a corporate board, which may choose not to act at all in the interests of conservation of resources, a legislature is bound take some action to provide for an education system in every state. T hus, in the education finance adequacy context, the rule would be modified such that a plaintiff would also be able to rebut the presumption by showing that the legislature has essentially abdicated its role by failing to act at all.43If a plaintiff were to be successful at this stage, then the court could engage in full merits review of the legislative schemes substantive adequacy, including the interpretation of the constitutional language and the derivation of any constitutional standards needed, with the understanding that any separation of powers concerns would have been overcome through the legislatures failure to exercise process care. Courts proceeding to this step should not lose sight of the fact that the courts review educational adequacy, and these courts should accordingly refrain from defaulting to comparative methodologies in analyzing the merits. With this in mind, any court determining that the constitution has been violated should not feel constrained to abstain from the remedial pha se, and should make specific orders for setting the system right, if appropriate. Such orders might range from ordering the deliberative process that has been 43 Importantly, such showings would be much easier to make in the legislative context, where the press keeps a watchful eye on legislative deliberations and information gathering, than in the business context, where much deliberation occurs in private meetings. Such press attendance would operate as a powerful check on cynical, pro forma types of deliberation designed only to evade substantive review.

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218 neglected, to requiring the commission of studies, to mandating specific appropriations in the proper, extreme case. Properly applied, this approach has the potential to balance the judiciarys reluctance to exceed its traditional role with the need for limited, fallback judicial review of grossly deficient or completely absent legislative deliber ation on an important, often fundamental, policy issue. However, it would also recognize that legislative acts that apply state wide are often imperfect, that such acts often result from numerous compromises and negotiations, and that the interest groups that feel that they are on the losing end of such compromises have a powerful motivation to bring lawsuits. The courts should default to a position of noninvolvement in these cases, but should retain the ability to become involved where the legislative deliberative process has completely broken down. As to cases in which individual rights are placed at issue, such as those where the adequacy of a funding or offerings impacting only portions of the state is challenged, courts should look carefully at the allegations of these complaints and determine, as a threshold inquiry, whether such claims are really equity claims masquerading as adequacy claims. If so, such claims should be evaluated based on the same standards by which all equity based claims have been evaluated in state courts, or a new jurisprudence could be developed in this area unique to the evaluation of equity based claims in state courts, understanding that the federal standards for equal protection analysis need not be applied in state cour t as a matter of course.44 44 See, e.g. Nina L. Pickering Loc al Control vs. Poor Patrol: Can Discriminatory Police Protection be Remedied Through the Education Finance Litigation Model?, 86 B.U. L. REV. 741, 773 74 (2006) ( It is worth noting however, that absent such a previous ruling, some state courts would be wi lling to interpret their state constitution more broadly, even if the clause is similar in structure and language to the federal Equal Protection Clause. In addition, there is a trend in current jurisprudence giving state courts more leeway to interpret state constitutions unencumbered by the boundaries set by the Supreme Court with respect to the federal Constitution. ).

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219 Evaluation of individual negative rights claims of educational deprivation, including those purportedly claiming educational inadequacy but really claiming inequity or inequality of expenditures or programmatic offerings (i.e., comparative inadequacy claims), should be approached distinctly from system wide adequacy claims for several reasons. First, comparative inadequacy claims do not implicate separation of powers concerns because such claims ultimately ask the court to inv alidate legislative action that exceeds constitutional limitations by affirmatively treating a certain identified class differently from similarly situated comparators. Nothing could be more familiar to judicial adjudication. Contrast this with a judgmen t invalidating legislation that does not affirmatively do any harm itself, but that ostensibly does not do enough good overall to satisfy the court. Nothing could be more unfamiliar to judicial adjudication. Second, remediation of any identified const itutional violation based on comparative inadequacy (which is really just inequality in different clothing) can be accomplished through enjoining the offending legislation until it is rendered equitable, or by invalidating a specific appropriation to a favored group until the appropriation to a disfavored group is made comparable. In neither case is the court required to direct policy, and in both cases, the legislature knows that which it is not empowered to do. Third, proof of inequity or inequality wou ld typically be based on well developed and familiar statistical tools, none of which have caused much controversy thus far, in sharp contrast to the tools that have been developed for adequacy litigation.45 45 E.g., Eric A. Hanushek, Is the EvidenceBased Approach a Good Guide to School Financy Policy?, EDUC. NEXT (Summer 2007), available at http://www.hoover.org/publications/ednext/7560457.html (last visited Sept. 6, 2008). Finally, the values underlying adjudication of a llegedly unequal or even inequitable legislative treatment of an identified group are uncontroversial from a separation of powers perspective. This is why so many state courts cite equality based claims in support of the

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220 duty to adjudicate adequacy clai ms.46 Thus, where equity claims are masquerading as comparative adequacy claims, such claims should be adjudicated as equity claims, possibly employing Professor Ryans proposed standard of rough comparability.47The foregoing discussion leaves only indi vidual adequacy based claims, which might be brought by one plaintiff or by a group of plaintiffs as a class. Such claims would only arise in states where education has been found to be, or may be found to be, an individual right. Plaintiffs would assert that positive individual rights to a certain quality of education have been denied in the absolute, not relative, sense to an individual student (or a group of similarly situated students suing as a class). These claims should not pose any obstacle to justiciability for several reasons. First, only individual cases or controversies would be placed at issue. This fact would militate against any claim that the courts will be asked to engage in policy making. Second, because individual rights would be at issue, prudential concerns over the separation of powers would become more muted. The legislature should not be able to use separation of powers as a shield where its actions have deprived an individual of a constitutional entitlement. Even in federal co urt, it would not be able to do so. 48 46 See supra, Chapter Five. If a suit were to challenge a statewide duty to provide education as part of public policy, no individual rights would be at issue unless one has an individual right to judicially compel appropriate state policy making so legislative prerogatives for the exercise of discretion would entitle that states legislature to judicial deference, as discussed. In contrast, where the right to education has been identified in the state 47 See generally, Ryan, supra note 9 48 See David P. Currie, Positive and Negative Constitutional Rights 53 U. CHI. L. REV. 864, 87376 (1 986) (reviewing cases adjudicating government deprivations of welfare entitlements in federal court). The difference here is that federal rights to welfare arise from statutes, not the Constitution.

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221 as an individual entitlement, as it has in several states,49Third, in the event of identification of a constitutional violation of the individual positive right to adequate education, the remedy of such violation, properly formulated, would be individual, as well. For example, if a court were to find that a student plaintiff has not been provided sufficient high school mathematics instruction that meets the adequacy standard, then the court could remedy this deprivation by ordering the state to waive tuition for the students remedial community college studies. If the plaintiff were young er, the same principle could apply to tutoring, after school programs, and other remedial measures. Importantly, this type of remedy could never succumb to the familiar criticism of judicial policy making, as it would be tailored to the individual litigan t who brought the case, and whose rights were found to be individually violated. if a case were to be brought challenging the deprivation of such a right, the courts role would be to ensure that the right is protected, and the legislatures discretion to violate it would be minimal, if any. Adjudicating claims in this way could require the courts to adopt state content standards as the measure of adequacy, or it could allow them to interpret constitutional text as requiring certain competencies, but under either approach, the courts would have to come to terms with the effects of such standards on individual students and claims. This might have the salutary effect of causing courts that derive standards of educ ational adequacy judicially to consider whether such standards are realistic, or will inevitably lead to a flood of individual claims.50 49 See supra, Chapter Five. 50 There is significant evidence that courts concocting their own standards of education adequacy do not consider whether they are realistic. See, e.g. William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation 14 J. L. & POLY 525, 548 (1998) ( If [the Kentucky] standard is taken literally, there is not a public school system in America that meets it. ).

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222 In addition, in individual education adequacy suits, courts would have to revive the requirement that a plaintiff prov e causation. This requirement has all but disappeared from education finance litigation over the years, as plaintiffs have apparently succeeded at getting courts to assume that lack of money ipso facto causes inadequacy of educational outcomes, or that state legislative schemes are always the reason for local inadequacies.51Most importantly, j udgments in these individual adequacy cases would also have a signaling effect that would put the legislature on notice of the potential for further judgments Moving the majority of this litigation away from system wide claims and toward individual claims would necessitate the revival of the causation requirement, and would put courts on str onger institutional footing in the event of the issuance of a specific remedial order. 52 51 See Alfred A Lindseth, The Legal Backdrop to Adequacy in COURTING FAILURE: HOW SCHOOL FINANCE LAWSUITS EXPLOIT JUDGES GOOD INTENTIONS AND HARM OUR CHILDREN 6061 (Eric A. Hanushek, Ed. 2006) (describing the disappearance of causation as a legal element of education adequacy claims); R. Craig Wood & David C. Thompson, Politics of Plaintiffs and Defendants in MONEY, POLITICS, AND LAW: INTERSE CTIONS AND CONFLICTS IN THE PROVISION OF EDUCATIONAL OPPORTUNITY 44 (Am. Educ. Finance Assn Ann. Yearbook 2004) (in describing education finance adequacy suits, stating, Generally, it is unclear how the state aid distributional formula led to the failure of these children to achieve.). A state legislature would not be directed to engage in any reforms as a result of such a judgment. Rather, either the legislature could elect to let each individual case run its course, taking the chance that large numbers of individual judg ments could indirectly impact state coffers, or it could be motivated to be proactive and reform the system to create better outcomes on its own terms. Because the judiciarys remedies would be directed at compensating only the harmed individual, there would be no danger of judicial policy making or invasion of the legislative province. 52 See, e.g. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration 99 COLUM. L. REV. 857, 906 n.203 (1999) (discussing the the expressive or signaling funct ion of constitutional decisions as a means to alte r congressional behavior in the procedures that it follows in enacting statutes). Cf. Debra P. v. Turlington, 474 F. Supp. 244 (M.D. Fla. 1979) (a judgment on comparative inadequacy grounds in one school district which ultimately caused Florida schools al l over the state to voluntarily link all lesson plans to specific state standards tested on the states exit exam for several years )

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223 Conclusion This study had several purposes, among them to empirically examine the influence of separation of powers as a formal doctrine on court adjudication, to e xamine actual judicial reasoning for the courts use of conceptions of rights and duties in making threshold determinations of judicial review, to develop an explanatory theory of judicial review in education finance adequacy litigation, and to propose ref orms that would address failures of principle identified in the analyses conducted herein. Descriptively, this study filled an important gap in the empirical literature of education finance reform and provided novel explanations for judicial behavior in e ducation adequacy cases based on concepts of rights. Normatively, this study proposed procedural reforms that would recognize the varied nature of rights, interests, and duties at issue in adequacy litigation, with the hope of improving adjudication of these claims, as well as remediation of true constitutional harms. Further research is necessary both for the purpose of testing the empirical and descriptive conclusions rendered herein, and for the purpose of testing the theories of judicial behavior and the adjudicatory model proposed in this study.

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224 LIST OF REFERENCES1Constitutions and Codes 1. Pub. L. 94142, 89 Stat. 773 (Nov. 29, 1975). 2. 20 U.S.C. 1400 et seq. 3. Pub. L. 107110, 115 Stat. 1425 ( Jan. 8, 2002). 4. 20 U.S.C. 6301 et seq. (2008). 5. Fla. Co nst. art. II, 3. 6. Ala. Const. art. III, 43. 7. Ala. Const. art. III, 42. 8. Fla. Const., art. IX, 1. 9. Ill. Const. art. X, 1. 10. N.J. Const. art. III, 1. 11. Mass. Const. Pt. I, art. 30. 12. S.C. Const. art. I, 23. 13. N.H. Const. Pt. I, art. 37. 14. Ky. Const. 183. 15. K y. Const. 27. 16. Ky. Const. 28. 17. Mont. Const. art. X, 1(3). 18. W.Va. Const., art. X, 4. 19. Wash. Const. art. IX, 1. 20. Wash. Const. art. I, 29. 21. Or. Const. art. VIII, 8. 1 References are listed by category and in the order in which they are first cited in the study in full citation format

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225 Cases 22. Brown v. Bd. of Educ., 347 U.S. 483 (1954). 23. Brown v. B d. of Educ., 349 U.S. 294 (1955) 24. Swa nn v. Charlotte Mecklenburg B d. of Educ., 402 U.S. 1 (1971) 25. Youngblood v. Board of Pub. Inst., 958 F.2d. 1082 (11th Cir. 1992) 26. Sharpton v. Bd. of Pub. Inst., 432 F.2d 927 (5th Cir. 1970), cert. denied 402 U.S. 944 (1971) 27. Crawford v. Los Angeles Bd of Educ., 458 U.S. 527, 542 (1982) 28. P a Ass n for Retarded Children v. P a ., 334 F. Supp. 1247 (E.D. Pa. 1971) 29. Mills v. Bd. of Educ., 348 F. Supp. 866 (D. D.C. 1972). 30. San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S.1, 35 (1973). 31. Plyler v. Doe, 457 U.S. 202 (1982). 32. Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988). 33. Papasan v. Allen, 478 U.S. 265 (1986). 34. Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90 (Ark. 1983). 35. Serrano v. Priest, 487 P.2d 1241 (Cal. 1971), aff'd 557 P.2d 929 (Cal. 1976), cert. denied 432 U.S. 907 (1977). 36. Horton v. Meskill, 376 A.2d 359 (Conn. 1977). 37. Robinson v. Cahill 303 A.2d 273 (N.J. 1973), cert. den. sub. nom. Dickey v. Robinson, 414 U.S. 976 (1973). 38. Seattle Sch. Dist. No. 1 of King County v. State, 585 P.2d 71 (Wash. 1978) (en banc). 39. Pauley v. Kelley, 255 S.E.2d 859 (W.Va. 1979). 40. Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980), cert. denied sub nom. Hot Springs County Sch. Dist. No. 1 v. Washakie County Sch. Dist. No. 1, 449 U.S. 824 (1980). 41. Shofstall v. Hollins, 515 P.2d 590 (Ariz. 1973) (en banc). 42. Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo. 1982) (en banc).

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226 43. McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981). 44. Thom pson v. Engelking, 537 P.2d 635 (Ida. 1975). 45. La Ass'n of Educ. v. Edwards, 521 So. 2d 390 (La. 1988). 46. Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758 (Md. 1983). 47. Governor v. State Treasurer, 212 N.W.2d 711 (Mich. 1973). 48. Bd of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 439 N.E.2d 359 (N.Y. 1982), appe al dismissed 459 U.S. 1138 (1983). 49. Britt v. N.C. State Bd. of Educ., 357 S.E.2d 432, appeal dismissed, 361 S.E.2d 71 (N.C. 1987). 50. Bd of Educ. v. Walter, 390 N.E.2d 813 (Ohio 1979), cert. denied 444 U.S. 1015 (1980). 51. Fair Sch. Fin. Council v. State, 746 P.2d 1135 (Okla. 1987). 52. Bonner v. Daniels, 907 N.E.2d 516 (Ind. 2009). 53. Olsen v. State, 554 P.2d 139 (Or. 1976). 54. Danson v. Casey, 399 A.2d 360 (Pa. 1979). 55. Richland County v. Campbell, 364 S.E.2d 470 (S.C. 1988). 56. Kukor v. Grover, 436 N.W.2d 568, reh'g denied, 443 N.W.2d 314 (Wis. 1989). 57. Montoy v. State, 112 P.3d 923 (Kan. 2005). 58. Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002). 59. Derolph v. State, 780 N.E.2d 529 (Ohio 2002). 60. Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995). 61. Abbott by Ab bott v. Burke, 495 A.2d 376 (N.J. 1985). 62. Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005). 63. Ida Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 2005). 64. Hoke County Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004). 65. Campaign for Fisc. Equity v. State, 665 N.E.2d 661 (N.Y. 1995). 66. A bbeville County Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999).

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227 67. Brigham v. State, 889 A.2d 715 (Vt. 2005). 68. Rose v. Counci l for Better Educ., 790 S.W.2d 186 (Ky. 1989). 69. Londonderry Sch. Dist. v. State, 907 A.2d 988 ( N.H. 2006). 70. Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005). 71. Campbell County Sch. Dist. v. State 907 P.2d 1238 (Wyo. 1995). 72. Marbury v. Madison, 5. U.S. (1 Cranch) 137 (1803). 73. Baker v. Carr 369 U.S. 186 (1962). 74. Neb. Coalition for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164 (Neb. 2007). 75. Okla. Educ. Assn v. State, 158 P.3d 1058 (Okla. 2007). 76. Campaign for Fisc. Equity v. State, 861 N.E.2d 50 (N.Y. 2006). 77. Hancock v. Commr of Educ., 822 N.E.2d 1134 (Mass. 2005). 78. Ex Parte James, 8 36 So. 2d 813 (Ala. 2002). 79. Marrero v. Com wlth ., 739 A.2d 110 (Penn. 1999). 80. Coalition for Adequacy & Fairness in Sch. Fund., Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996). 81. Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996). 82. City of Pawtucket v. Sundl un, 662 A.2d 40 (R.I. 1995). 83. Neely v. W. Orange Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746 (Tex. 2005). 84. Pendleton School District 16R v. State ___ P.3d ___, 345 Or. 596, 2009 WL 152666 (Or. 2009) (slip opinion). 85. Montoy v. State, 112 P.3d 923 (Kan. 2005) 86. Brigham v. State, 889 A.2d 715 (Vt. 2005). 87. Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005). 88. Hoke County Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004). 89. Leandro v. State, 488 S.E.2d 249 (N.C. 1997).

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228 90. Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002), issue considered again on rehg, 220 S.W.3d 645 (Ark. 2005). 91. Derolph v. State, 677 N.E.2d 733 (Ohio 1997). 92. Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wy. 1995), issue considered again on rehg, 32 P.3d 325 (Wyo. 2001). 93. Id aho Sch. for Equal Educ. Oppor. v. Evans 850 P.2d 724 (Ida. 1993). 94. Campaign for Fisc. Equity v. State, 655 N.E.2d 661 (N.Y. 1995). 95. Robinson v. Cahill, 306 A.2d 65 (N.J. 1973). 96. Robinson v. Cahill, 351 A.2d 713 (N.J. 1975). 97. Goldwater v. Carter, 444 U.S. 996 (1979). 98. Nixon v. United States, 506 U.S. 224 (1993). 99. Luther v. Borden, 48 U.S. (7 How.) 1 (1849). 100. Powell v. McCormack, 395 U.S. 486 (1969). 101. Sturges v. Crowninshield 17 U.S. 122 (1819). 102. Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). 103. Shofstall v. Hollins, 515 P.2d 590 (Ariz. 1973). 104. Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998). 105. Roosevelt Elem. Sch. Dist. v. State, 74 P.3d 258 (Ariz. App. 2004) rev. denied (Jan. 7, 2004) 106. Brigham v. State 692 A.2d 384 (Vt. 1997). 107. Abbott by Abbott v. Burke 575 A.2d 359 (N.J. 1990). 108. Idaho Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 2005). 109. Columbia Falls Elem. Sch. Dist. v. State, 109 P.3d 257 (Mt. 2005). 110. Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002), issue considered again on rehg, 220 S.W.3d 645 (Ark. 2005). 111. Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wy. 1995), issue considered again on rehg, 32 P.3d 325 (Wyo. 2001).

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229 112. Idaho Sch. for Equal Educ. Oppor. v. State, 850 P.2d 724 (Ida. 1993). 113. Opinion of the Justices No. 338, 624 So.2d 107 ( Ala. 1993). 114. Ex Parte James, 713 So. 2d 869 (Ala. 1997). 115. Pinto v. Alabama Coalition for Equity, 662 So.2d 894 (Ala. 1995). 116. Holmes v. Walton, unrep. (N.J. 1780). 117. Dr. Bonham's Case, 77 Eng. Rep. 646 (1610) 118. Board of Educ. of the City School Dist. of Cincinnat i v. Walter, 390 N.E.2d 813 (1979) 119. Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993) 120. Edgewood Ind. School Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989) 121. State ex rel. Bd. of Educ. v. Manchin, 366 S.E.2d 743 (1988) 122. Kukor v. Grover, 436 N.W.2d 568 (1989) 123. Washakie County School Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) 124. S Burlington County NAACP v. Township of Mt. Laurel 456 A.2d 390 ( N.J. 1983). 125. S. Burlington County N.A.A.C.P. v. Township of Mt. Laurel 336 A.2d 713 ( N.J. 1975). 126. Sieg elman v. Al a Assn of Sch. Bd., 819 So. 2d 568 (Ala. 2001). 127. Teachers Tenure Act Cases, 197 A. 344 (Pa. 1938). 128. Marrero by Tabales v. Com wlth ., 709 A.2d 956 (Pa. C omwlth. 1998). 129. Danson v. Casey 399 A.2d 360 ( Pa. 1979) 130. Hull v. Albrecht, 950 P.2d 1141 (Ari z. 1997). 131. Roosevelt Elem. Sch. Dist. No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994). 132. McDuf fy v. Sec. of the Exec. Off. of Educ., 615 N.E.2d 516 (Mass. 1993). 133. LIMITS v. President of the Senate 604 N.E.2d 1307 (1992) 134. Doe v. Sup. of Schools of Worcester 653 N .E.2d 1088 (Mass. 1995). 135. Edgewood Ind. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex.1991). 136. Carrollton Farmers Branch Ind. Sch. Dist. v. Edgewood Ind. Sch. Dist., 826 S.W.2d 489 (Tex.1992).

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230 137. Edgewood Ind. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex.1995). 138. West Orang e Cove Consol. Ind. Sch. Dist. v. Alanis, 107 S.W.3d 558 (Tex.2003). 139. Love v. Wilcox, 28 S.W.2d 515 ( Tex. 1930) 140. Bd. of Educ. of the City of Millville v. N.J. Dept. of Educ., 872 A.2d 1052 (N.J. 2005). 141. Griffin v. School Bd. of Prince Edward County, 377 U.S. 218 (1964). 142. Hawkins v. Shaw, 437 F.2d 1286 (5th Cir. 1971). 143. Kennedy Park Homes Ass'n v. Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert. den. 401 U.S. 1010 (1971). 144. Jackman v. Bodine, 205 A.2d 713 (1964) 145. Powell v. McCormack, 395 U.S. 486 (1969). 146. Abbott by Abbott v. Burke, 693 A.2d 417 (N.J. 1997). 147. Abbott by Abbott v. Burke, 575 A.2d 359 (N.J. 1990). 148. Abbott by Abbott v. Burke, 710 A.2d 450 (N.J. 1998). 149. Cooper v. Nutley Sun Printing Co., 175 A.2d 639 (N.J. 1962). 150. Plyler v. Doe, 457 U.S. 202, reh. denied 458 U.S 1131 (1982). 151. Campaign for Fiscal Equity, Inc. v. State, 801 N.E.2d 326 (N.Y. 2003). 152. Campaign for Fiscal Equity, Inc. v. State, 861 N.E.2d 50 (N.Y. 2006). 153. Maready v. City of WinstonSalem, 467 S.E.2d 615 (N.C. 1996). 154. Mitchell v. N.C. Indus. Dev. Fin. Auth., 159 S.E.2d 745 (N.C. 1968). 155. Ex p arte Schenck, 65 N.C. 353 (1871) 156. Bayard v. Singleton, 1 N.C. 5 (1787) 157. Reynolds v. Sims, 377 U.S. 533 (1964) 158. Faulkner v. Jones, 10 F.3d 226 (4th Cir.1993) 159. Stephenson v. Bartlett, 582 S.E.2d 247 ( N.C. 2003) 160. N.Y. State Ass'n for Retarded Children v. Rockefeller, 357 F.S upp. 752 (E.D.N.Y. 1973). 161. DeRolph v. State, 678 N.E.2d 886 (Ohio 1997).

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231 162. DeRolph v. State, 780 N.E.2d 529 (Ohio 2002). 163. DeRolph v. State 780 N.E.2d 282 (Dec. 11, 2002) (Table Op. ) 164. State ex rel. State v. Le wis, 789 N.E.2d 195 (Ohio 2003). 165. State ex rel. Rawlinson v. Ansel 57 S.E. 185 (1907) 166. Claremont Sch. Dist. v. Governor, 635 A.2d 1375 (N.H. 1993). 167. Claremont Sch. Dist. v. Governor, 703 A.2d 1353 (N.H. 1997). 168. Opinion of the Justices, 712 A.2d 1080 (N.H. 1998). 169. Claremont Sch. Dist. v. Governor, 725 A.2d 648 (N.H. 1998). 170. Londonderry Sch. Dist. SAU #12 v. State, 958 A.2d 930 (N.H. 2008). 171. City of Boerne v. Flores, 521 U.S. 507 (1997). 172. State v. Campbell County Sch. Dist., 32 P.3d 325 (Wyo. 2001). 173. State v. Campbe ll County Sch. Dist., 19 P.3d 518 (Wyo. 2001). 174. Washakie County School District Number One v. Herschler 606 P.2d 310 (Wyo. 1980). 175. Bulova Watch Co. v. Zale Jewelry Co., 371 P.2d 409 (Wyo. 1962). 176. Hutto v. Finney, 437 U.S. 678 (1978). 177. DuPree v. Alma Sch. Dist ., 651 S.W.2d 90 (Ark. 1983). 178. Lake View Sch. Dist. v. Huckabee, 220 S.W.3d 645, (Ark. 2005). 179. Lake View Sch. Dist. v. Huckabee, 189 S.W.3d 1 (Ark. 2004). 180. Montoy v. State, 62 P.3d 228 (Kan. 2003). 181. Montoy v. State, 102 P.3d 1160 (Kan. 2005). 182. Montoy v. State, 138 P.3d 755 (Kan. 2006). 183. Unified School Dist. No. 229 v. State 885 P.2d 1170 (Kan. 1994). 184. Shawnee Hills Mobile Hom es, Inc. v. Rural Water Dist., 537 P.2d 210 (1975). 185. Pauley v. Kelly 255 S.E.2d 859 (W.V. 1979). 186. Kuhn v. B d. of Educ. of Wellsburg 4 W.Va. 499 (1871), overruled on unrelated grounds Williams v. Grant County Ct., 26 W.Va. 488 ( 1885)

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232 187. People v. Deatherage, 81 N.E.2d 581 ( Ill. 1948) 188. In re Kindergarten Sch., 32 P. 422 ( Colo. 1893) 189. Granger v. Cascade County Sch. Dist. No. 1, 499 P.2d 780 ( Mt. 1972) 190. State ex rel. Lien v. School District No. 73, 76 P.2d 330 (Mt. 1938). 191. Wooley v. Spalding, 293 S.W.2d 563 (Ky. 1956) 192. Howard v. County School Board of Allegheny County, 122 S.E.2d 891 ( Va. 1961) 193. Vandevender v. Cassell, 208 S.E.2d 436 ( W.Va. 1974). 194. S tate ex rel. Brotherton v. Blankenship, 207 S.E.2d 421 ( W.Va. 1973) 195. Danson v. Casey 382 A.2d 1238 (Pa. 1978). 196. Pauley v. Gainer, 353 S.E.2d 318 (W.Va. 1986) 197. Pauley v. Bailey, 324 S.E.2d 128 (W.Va. 1984) 198. Pauley v. Bailey, 301 S.E.2d 608 (W.Va. 1983) 199. In re Juvenile Director, 552 P.2d 163 (Wash. 1976). 200. Gottstein v. Lister, 153 P. 595 ( Wash. 1915) 201. Keyishian v. B d. of Regents, 385 U.S. 589 (1967) 202. Pendleton School District 16R v. State ___ P.3d ___, 345 Or. 596, 2009 WL 152666 (Or. 2009) (Slip Op.). 203. Olsen v. State ex rel Johnson, 554 P.2d 139 (1976) 204. Thompson v. Engelking, 537 P.2d 635 (Ida. 1975) 205. Debra P. v. Turlington, 474 F.Supp. 244 (M.D. Fla. 1979) 206. Aronson v. Lewis, 473 A.2d 805 (Del. 1984). 207. Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985). 208. Brehm v. Eis ner, 746 A.2d 244 (Del. 2000) Scholarly Works 209. Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation 93 HARV. L. REV. 465 (1980).

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233 210. Michael D. Blanchard, The New Judicial Federalism: Deference Masquerading as Discourse and the Tyrrany of the Locality in State Judicial Review of Education Finance 60 U. PITT. L. REV. 231 (1998) 211. Kern Alexander, The Common School Ideal and the Limits of Legislative Authority: The Kentucky Case, 28 HARV. J. LEGIS. 341 (1991). 212. William F. Dietz, Note, Manageable Adequacy Standards in Education Reform Litigation 74 WASH. U. L. Q. 1193 (1996). 213. LAWRENCE BRADEN, CHESTER E. FINN, JR., LAWRENCE S. LERNER, SUSAN MUNROE, MICHAEL J. PETRILLI, RALPH A. RAIMI, DAVID W. SAXE, TERRY SMITH, & SANDRA STOTSKY, THE STATE OF STATE STANDARDS (2000), available at http://www.edexcellence.net/institute/publication/publication.cfm?id=24&pubsubid=216 (last visited Nov. 12, 2008) 214. Paul E. Peterson, A Lens that Distorts 7 EDUC. NEXT 46 (Fall 2007). 215. R. CRAIG WOOD, EDUCATIONAL FINANCE LAW: CONSTITUTIONAL CHALLENGES TO STATE AID PLANSAN ANALYSIS OF STRATEGIES (3d ed. 2007). 216. Avidan Y. Cover, Note: Is Adequacy a More Political Question than Equality?: The Effect of Standards Based Education on Judicial Standards for Education Finance 11 CORNELL J. L. & PUB. POLY 403 (2002). 217. Lynn A. Baker & Mitchell M. Berman, Getting off the Dole : Why the Court Should Abandon its Spending Doctrine, and How a TooClever Congress Could Provoke it to Do So, 78 IND. L. J. 459 (2003). 218. Barabara J. Staros, School Finance Litigation in Florida:A Historical Analysis 23 STETSON L. REV. 497 (1994). 219. Goodwin Liu, Education, Equality and National Citizenship, 116 YALE L. J. 330 (2006). 220. Jon Mills & Timothy McClendon, Setting a ne w Standard for Public Education: Revision 6 Increases the Duty of the State to Make Adequate Provision for Florida Schools 52 FLA. L. REV. 329 (2000). 221. Kelly Thompson Cochran, Beyond School Financing: Defining the Constitutional Right to an Adequate Educ ation 78 N.C. L. REV. 399 (2000). 222. R. Craig Wood, Constitutional Challenges to State Education Finance Distribution Formulas: Moving from Equity to Adequacy 23 ST. LOUIS. U. PUB. L. REV. 531, 55152 (2004). 223. Eric A. Hanushek, Is the EvidenceBased Approac h a Good Guide to School Financ e Policy? EDUC. NEXT (Sum. 2007), available at http://www.hoover.org/publications/ednext/7560457.html (last visited Sept. 6, 2007).

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234 224. SCHOOL MONEY TRIALS (Martin R. West & Paul E. Peterson, eds. 2007). 225. Scott R. Bauries, Flor idas Past and Future Roles in Education Finance Reform Litigation 32 J. EDUC. FIN. 89 (2006). 226. Education Adequacy Decisions Since 1989 (Natl Acess Network, Teachers Coll., Columbia U. August 2007), available at http://www.schoolfunding.info/litigation/A dequacyDecisions07.pdf (last visited Dec. 20, 2007). 227. George D. Brown, Binding Advisory Opinions: A Federal Court's Perspective on the State School Finance Decisions 35 B.C. L. REV. 543 (1994). 228. Paula J. Lundberg, State Courts and School Funding: A Fifty State Analysis 63 Albany L. Rev. 1101 (2000). 229. Karen Swenson, School Finance Reform Litigation: Why are Some State Supreme Courts Activist and Others Restrained?, 63 Albany L. Rev. 1147 (2000). 230. William E. Thro, The Role of Language of the State Education Cl auses in School Finance Litigation 79 EDUC. L REP. 19 (1993). 231. Michael P. Vriesenga, JUDICIAL BELIEFS AND EDUCATION FINANCE ADEQUACY REMEDIES, Unpublished Dissertation (Dec. 2005) (on file with Vanderbilt University Library) 232. Yohance C. Edwards & Jennife r Ahern, Note, Unequal Treatment in State Supreme Courts: Minority and City Schools in Education Finance Reform Litigation, 79 N.Y.U. L. REV. 326 (2004). 233. James E. Ryan, The Influence of Race in School Finance Reform 98 MICH, L. REV. 432 (1999). 234. Bruce D. B aker, The Emerging Shape of Educational Adequacy: From Theoretical Assumptions to Empirical Evidence 30 J. EDUC. FIN. 259 (2005). 235. Larry J. Obhof, Derolph v. State and Ohios Long Road to an Adequate Education, 2005 B.Y.U. EDUC. & L. J. 83 (2005). 236. William S. Koski, Of Fuzzy Standards and Institutional Constraints: A Re examination of the Jurisprudential History of Educational Finance Reform Litigation, 43 SANTA CLARA L. REV. 1185 (2003). 237. Michael Heise, Schoolhouses, Courthouses, and Statehouses: Educational Finance, Constitutional Structure, and the Separation of Powers Doctrine 33 LAND & WATER L. REV. 281 (1998).

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235 238. Jesse Choper, The Political Question Doctrine: Suggested Criteria 54 DUKE L. J. 1457 (2005). 239. Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine 80 N.C. L. REV. 1203 (2002). 240. William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model 35 B.C. L. REV. 597 (1994). 241. Michael Sinclair, Only a Sith Thinks Like That: Lewellyns Dueling Canons, One to Seven 50 N.Y. L. SCH. L. REV. 919 (2006). 242. Michael Sinclair, Only a Sith Thinks Like That: Lewellyns Dueling Canons, Eight to Twelve, 51 N.Y. L. SCH. L REV. 1016 (2007). 243. G. Alan Tarr, Interpreting the Separation of Powers in State Constitutions 59 N.Y.U. ANN. SURV. AM. L. 329 (2003). 244. Robert F. Williams, Rhode Islands Distribution of Powers Question of the Century: Reverse Delegation and Implied Limits on Legislative Powers 4 ROGER WILLIAMS U. L. REV. 159 (1998). 245. Rebecca L. Brown, Separated Powers and Ordered Liberty 139 U. PA. L. REV. 1513 (1991). 246. THE FEDERALIST (Jacob E. Cooke, ed. 1961). 247. Adrian Vermeule The Judicial Power in the State (and Federal) Courts 2000 SUP. CT. REV. 357 (2000). 248. Vale Krenik Note, No One Can Serve Two Masters: A Separation of Powers Solution to Conflicts Within the Department of Health and Human Services 12 TEX. WESLEYAN L. REV. 585 (2006). 249. Bruce G. Peabody & John D. N ugent, Toward a Unifying Theory of the Separation of Powers 53 AM. U. L. REV. 1 (2003). 250. G. ALAN TARR, JUDICIAL PROCESS & JUDICIAL POLICYMAKING (3d ed. 2003). 251. HENRY R. GLICK, COURTS, POLITICS, & JUSTICE (3d ed. 1993) 252. ROBERT A. CARP & RONALD STIDHAM, JUDIC IAL PROCESS IN AMERICA (5th ed. 2001). 253. RICHARD J. RICHARDSON & KENNETH N. VINES, THE POLITICS OF FEDERAL COURTS (1970). 254. Katayoun MohammadZadeh, THE SEPARATION OF POWERS AND THE SUPREME COURT: A NEW INSTITUTIONAL ANALYSIS OF INTERBRANCH DISPUTES, 19462005, unpublished dissertation (May 2007) (on file with University of Southern California Library)

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236 255. James L. Gibson, From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behavior 5 POL. BEHAVIOR 7 (1983). 256. Michael Heise, Prelimin ary Thoughts on the Virtues of Passive Dialogue 34 AKRON L. REV. 73 (2000). 257. Bill Swinford, A Predictive Model of Decision Making in State Supreme Courts: The School Financing Cases 19 AM. POL. Q. 336 (1991). 258. William S. Koski, The Politics of Judicial Dec ision Making in Education Policy Reform Litigation 55 HASTINGS L. J. 1077 (2004). 259. Erica Black Grubb, Breaking the Language Barrier: The Right to Bilingual Education, 9 HARV. C.R. C.L. L. REV. 52 (1974). 260. Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills 63 TEX. L. REV. 777 (1985). 261. William E. Thro, The Role of Language of the State Education Clauses in School Finance Litigation 79 ED. L. REP. 19 (1993). 262. Jonathan Banks, Note, State Constitutional Analyses of P ublic School Finance Reform Cases: Myth or Methodology?, 45 VAND. L. REV. 129 (1992). 263. William E. Thro, Note, To Render Them Safe: The Analysis of State Constitutional Provisions in Public School Finance Reform Litigation, 75 VA. L. REV. 1639 (1989). 264. Willia m E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation 14 J. L. & POL. 525 (1998). 265. Julie K. Underwood, School Finance Litigation: Legal Theories, Judicial Activism, and Social Neglect 20 J. EDUC. FIN. 143 (1994). 266. William Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model 35 B.C. L. REV. 597 (1994). 267. William E. Thro, The Third Wave; Implications of the Montana, Kentucky, and Texas Decisions for the Future of Public School Finance Reform Litigation, 19 J. L. & EDUC. 219 (1990). 268. Michael Heise, State Constitutions, School Finance Litigation, and the Third Wave: From Equity to Adequacy 68 TEMP. L. REV. 1151 (1995). 269. EDUC. WK., QUALITY COUNTS (2009), available at: http://www.edweek.org/go/qc09 (last accessed Jan. 30, 2009). 270. Melinda Gann Hall & Paul Brace, Justices Responses to Case Facts: An Interactive Model 24 AM. POL. Q. 237 (1996).

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237 271. James E. Ryan, Standards, Testing, and School Finance Litigation, 86 TX. L. REV. 1223, 122526 (2008). 272. Richard Briffault, Adding Adequacy to Equity: The Evolving Legal Theory of School Finance Reform 48 (Working Paper 2006), available at http://ssrn.com/abstract=906145 (last visited Nov. 22, 2008). 273. See generally First to Worst trans cript of PBS t elevision series The Merrow Repo rt (2004), available at http://www.pbs.org/merrow/tv/transcripts/ftw.pdf (last visited May 2, 2009) (reviewing Californias tax revolt that resulted directly from the state Supreme Courts decision in Serrano v. Priest which led to higher state property taxes, which in turn led to the passage in 1978 by popular referendum of Proposition 13, a very strict property tax limitation measure). 274. Lori Ringhand, Judicial Activism: An Empirical Examination of Voting B ehavior on the Rehnquist Natural Court 24 CONST. COMMENT. 43 (2007). 275. J. A. Segal & H. J. Spaeth, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002). 276. J. A. Segal & Avidan J. Cover, Ideological Values and the Votes of Supreme Court Justices 83 AM. POL. SCI. REV. 557 (1989). 277. Kenneth M. Dolbeare, TRIAL COURTS IN URBAN POLITICS: STATE COURT POLICY IMPACT AND FUNCTIONS IN A LOCAL POLITICAL SYSTEM (1967). 278. Brian Z. Tamanaha, The Distorting Slant of Quantitative Studies of Judging, 50 B.C. L. REV. ___ (2 009) (forthcoming). 279. Carolyn Shapiro, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court 60 HAST. L. J. 477 (2009). 280. Joshua B. Fischman & David S. Law, What is Judicial Ideology and How Should We Measure It? available at: http://ssrn.com/abstract=1121228 (last visited Dec. 5, 2008). 281. Neal K. Kaytal, Judges as Advicegivers 50 STAN. L. REV. 1709 (1998). 282. Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001). 283. Helen Hers hkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review 112 Harv. L. Rev. 1131 (1999). 284. Johnathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive G overnment 24 RUTGERS L.J. 1057 (1993).

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BIOGRAPHICAL SKETCH Scot t R. Bauries received his Bachelor of Arts degree in December of 1995 from the University of West Florida, majoring in English. Thereaft er, for six years, D r. Bauries worked in many roles as a secondary school educator, coach, and professional staff devel oper. During these years, D r. Bauries also completed a Master of Education degree, which was awarded in May of 2001 by the University of South Floridas Department of Leadership Development. In the Fall of 2001, D r. Bauries matriculated at the Universit y of Florida, beginning his studies as a joint degree student, pursuing the degrees of Juris Doctor from the Levin College of Law and Doctor of Philosophy from the Department of Educational Administration and Policy in the College of Education. D r. Baurie s completed the Juris Doctor degree in May 2005, graduating first in his class and summa cum laude D r. Bauries was also elected to the Order of the Coif at that time. After compl eting his Juris Doctor degree, D r. Bauries served as a judicial law clerk for the Honorable Emmett Ripley Cox in the United States Court of Appeals for the Eleventh Circuit D r. Bauries then entered the private practice of law with the firm McGuireWoods, LLP. Af ter two years as an associate, D r. Bauries left private practice t o join the faculty at the University of Kentucky College of Law, where he currently is employed as an Assistant Professor of Law Dr. Bauries successfully defended this dissertation on August 10, 2009. Subsequently, Dr. Bauries was selected by the Education Law Associations blind review committee as the 2009 recipient of the Joseph C. Beckham Dissertation of the Year Award.