University of Kentucky College of Law
James and Mary Lassiter Endowed Distinguished Visiting Professor
The University of Kentucky College of Law seeks applications and nominations for the James and Mary Lassiter Endowed Distinguished Visiting Professor for one semester of the 2012-13 academic year. The Lassiter Distinguished Visiting Professor recognizes a faculty member who has demonstrated outstanding achievement in his or her field and is not limited by subject matter.
JOB QUALIFICATIONS: Applicants or nominees should have a record of scholarly excellence and of strong classroom teaching. The Lassiter Distinguished Visitor will teach one or two courses and will be encouraged to present workshops on research and participate broadly in the intellectual life of the College of Law.
The University of Kentucky College of Law is committed to diversifying its community and consequently welcomes expressions of interest from, or nominations of, professors who contribute to that diversity. The University of Kentucky is an equal opportunity campus and encourages any candidates who will contribute to the excellence of the academic community through their research, teaching, and service.
APPLICATION PROCEDURE: Review of candidates will begin upon receipt. Expressions of interest and nominations should be submitted no later than January 23, 2012 and should be directed to:
Prof. Bob Schwemm
Ashland Research Professor of Law
Chair, Lassiter Search Committee
University of Kentucky College of Law
209 Law Building
Lexington, KY 40506-0048
Schwemmr@uky.edu
859.257.6013
A couple of initial points based on the linked story. First, this is not a part of the longstanding Edgewood v. Kirby litigation, the last iteration of which was decided by the Texas Supreme Court in 2005. It is a new case. Second, it is difficult to be sure from the summary, but the claims appear to be based more on "equity" theories than on "adequacy" theories, though there is a nod to adequacy at the end of the story.
Any readers with more specific information are invited to comment.
]]>Now, what does this have to do with education law? Well, two major things. First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems. A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution. Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights. Where state judicial systems are hampered, the development of these rights is also hampered. The issue of state court funding is therefore a vital one for those interested in education policy and law.
I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium.
]]>First, the state defendant won this one on the merits, based on the evidence (particularly, the lack of evidence of causation--more on that below). This, I think, is the first adequacy case of which this can be said. The recent state victories in Indiana and Missouri were not truly of the same character, both being based on a general approach to judicial deference bordering on the political question doctrine. The recent Oregon decision, also a state merits victory, was based on a quirky textual feature of the Oregon Constitution that does not exist in any other. The South Dakota decision, while deferential to legislative policy choices (especially in stating the standard for proving unconstitutionality as "beyond a reasonable doubt"), is based on a much deeper review of the evidence.
Second, and relatedly, the opinion is very well-reasoned and fair in its explanation (I, of course, take no position as to whether the court is representing the state of the record evidence properly, as I was not involved in the trial and have no access to the record on appeal). It takes the arguments of both the state and the plaintiffs very seriously, and is does not appear to place any kind of thumb on the evidentiary scale for either party. This approach is not necessarily new, but this is one of very few school finance decisions on the merits where a state supreme court has gone out of its way to show the readers of its opinion that both sides indeed presented good arguments. I think that goes a long way toward fostering the opinion's perceived legitimacy.
Finally, and most importantly, the South Dakota decision is also the first that has required the plaintiffs to establish a causal link between the many educational deficiencies that they were able to establish in the evidence and the action or inaction of the state government. As perennial state-side litigator Al Lindseth has pointed out both in scholarship and in court, in adequacy cases in which plaintiffs prevail, there is little to no discussion of causation. This South Dakota decision hinges almost completely on the insufficiency of evidence of causation. This feature could make the South Dakota decision a very impactful one.
I look forward to seeing how this opinion works its way into the scholarship.
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Essentially, though, this is a remedial opinion reaffirming that the court meant what it said in its last remedial opinion about the levels of funding required in the target districts, meaning that the state legislature's recent deep cuts to education spending are violative of the state constitution. The opinion ends with the court ordering the appropriation of an additional $500 million to the "Abbott districts" (the property-poor districts at the center of the suit in its current posture).
I think this opinion is likely to hasten the constitutional confrontation that has been inevitable in New Jersey since the beginning of this 20-year saga. The court here is nearing a constitutional "end game," where the elected legislators know that they will lose their jobs if they raise taxes to preserve school funding, but the court is basically trapped into demanding exactly that action based on its prior rulings. If neither side blinks, then what? Jailing individual legislators for contempt of court if they vote the wrong way?
]]>In striking down the charter school law, the court's 4-3 majority explained that local school boards in Georgia have "exclusive local control" of their districts' operations, including what schools shall be established. The sole exception to this principle, the court explained, is found in the state constitution's "special schools" provision, which authorizes the state legislature to establish special schools "in such areas that may require them," subject to certain provisos limiting boded indebtedness to pay for such schools. (For a copy of the current Georgia Constitution, see here. The education article is Article VIII, and the relevant Section is Section V, beginning on page 60 of the pdf link).
The court held that the state's establishment of three charter schools of the typical, familiar variety (save one that limited enrollment to female students only) violated this principle of local control, and therefore the statute authorizing the schools was unconstitutional. Facially so, in fact.
We all are familiar with the fact that "local control" plays prominently as a governmental interest in helping governments to justify socioeconomic discrimination and pass the "rational basis" test under equal protection jurisprudence, but this opinion appears to see "local control" not as a legitimate interest that the state legislature may permissibly pursue, but rather as a constutionally required limitation on state legislation in education. Local control has now evolved in Georgia to a requirement.
However, from a school finance litigation perspective, the REALLY interesting bit of the opinion is this little gem:
"The constitutional history of Georgia could not be more clear that, as to general K-12 public education, local boards of education have the exclusive authority to fulfill one of the "primary obligation[s] of the State of Georgia," namely, "[t]he provision of an adequate public education for the citizens." Art. VIII, Sec. I, Par. I." (p. 3 of the slip opinion).
I'm particularly intrerested in the implications of this quote. If accepted as an operative holding in the court's opinion, it seems to mean that no suit for educational inadequacy may lie against the legislature or any other state-level entity in Georgia. If one's right to "adequate education" (assuming such a right exists in Georgia) is violated, then it is the school district that is at fault, not the state. This conclusion would turn education finance litigation as currently conceived on its head.
Even if you are not interested in these issues of state constitutional interpretation, the opinion, which contains a lengthy and well-reasoned dissent, is well worth a read.
]]>I am often skeptical that school finance remedial orders will be effective, mostly because I believe that, at a certain point, most legislatures will simply choose not to comply (or enough legislators will simply not vote to increase funding), and no state grants its Supreme Court the power to hold individual legislators in contempt for failing to vote a particular way. But I have to confess that I never expected a state legislature to go on the offensive like this.
Essentially, if passed and ratified, this provision would take the relatively prudential determination of whether to order a coercive judicial remedy after identifying a constitutional violation, and decide it for the court. I have argued in the past that courts which hold a state constitution to be violated, but choose not to issue remedial orders, engage in an illegitimate form of "remedial abstention," which leaves plaintiffs whose rights have ostensibly been violated with no redress. In an upcoming paper, I argue that this has the effect of devaluing any "education rights" that the plaintiffs possess. The Kansas provision, if passed and ratified, makes that outcome much more likely.
]]>The decision tracks the recent trend that I and others have identified of state courts shying away from deciding systemic educational adequacy claims. The court dismissed the adequacy-based claims with prejudice, holding that the California Constitution does not require any particular quantity of spending. Although the court forcefully rejected the state's non-justiciability argument, this dismissal effectively has the same effect as a dismissal for non-justiciability. If sustained on appeal, it would mean that one cannot state a claim for educational inadequacy under the California Constitution.
However, the court did recognize that, under the canonical Serrano v. Priest decisions, one may state an individual claim for inequality of educational opportunity, typically as a class action brought by students in a resource-deprived district. The court dismissed the equality claims presented in the plaintiffs' complaint, which did not contain allegations of individual harm, but also granted the plaintiffs leave to amend to sharpen up their allegations. Thus, the case is still alive, but has been trimmed down substantially (for now).
It remains to be seen what the California appellate courts will do with the trial court's dismissals. As I stated a few months back, watch this one--it could be a very significant decision when all is said and done.
]]>However, the court took pains to note that the "beyond a reasonable doubt" standard of unconstitutionality is not an evidentiary standard, but a way of calibrating the extreme deference that the court affords legislative policy judgments. Thus, on a broader reading, the decision seems in line with the current trend in the adequacy cases to (1) reach the merits; but (2) apply a highly deferential standard of review (see my posts on Colorado, Connecticut, and Missouri).
The court also hinted that the challege to the statute's constitutionality was an "as-applied" challenge, rather than a "facial" challenge. Bill Thro's most recent article would argue agaist that characterization for state constitutional challeges to funding statutes, and I tend to agree normatively. Nevertheless, descriptively, the way the case was presented to the Washington court, I think that the "as-applied" label might fit there.
By way of shameless self-aggrandizement, I must also point out that two concurring justices saw fit to cite my recent Alabama Law Review piece in criticizing the "beyond a reasonable doubt" standard of constitutionality.
]]>I have been in contact with the organizers, who include some of the more well-recognized scholars of school finance and education funding litigation, and the conference sounds really terrific. Best of all, the venue is beautiful Tampa, Florida (one of my former hometowns). If you have a paper in the works on a school finance-related topic, please consider submitting a proposal to present. The deadline is January 15th, 2011. For more information see here.
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Following this analysis, I engage in a limited case study of constitutional design in Louisiana. I begin by outlining the education provisions in Louisiana’s current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude that Louisiana’s reformers have chosen a decidedly unique, process-oriented path in amending Louisiana’s education article, as compared with reformers in other states, who have attempted substance-based reforms to their states’ education provisions.
Based on this case study, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles and other affirmative-duty provisions. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes in pursuing affirmative constitutional duties. I present the situational argument in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state’s schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design.
Justices Kagan and Kennedy appeared to be following the same intuitions about the case, as both were very concerned that, by forgiving, dollar-for-dollar, the tax obligations of donees to scholarship organizations that discriminate based on religion, the state could do through intermediaries what it could not do legally itself (i.e., fund religious discrimination). The Chief Justice even seemed a bit sympathetic to that line of thinking. This may end up a 6-3 decision striking the law down.
On the other hand, there is also an issue of "taxpayer standing" in the case, so the Court may punt, as it did in the Pledge of Allegiance case a few years back. Watch this one closely.
UPDATE: I forgot my manners: Hat tip to my good friend Cory Andrews for information on the case.
]]>1. The case ultimately presents a pretty straighforward application of the Garcetti holding, finding that classroom teaching and expressive curricular choices, as expression "pursuant to the official duties" of a teacher, is unprotected.
AND
2. The case should allow for a more definite (as opposed to hypothetical) inquiry as to whether the Garcetti rule makes sense, and whether it deserves to be rethought in the context of academic speech.
The Sixth Circuit's slip opinion is here.
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