Education Finance Adequacy

Scott Bauries

Feb. 2009

The Oregon Supreme Court's Interesting Education Finance Ruling

Friday, February 6, 2009 at 02:34PM | Scott Bauries

Last month, the Oregon Supreme Court came down with its first opinion addressing a state constitutional challenge to its education finance plan asserting theories of inadequate spending. The slip opinion is here. The opinion is interesting for at least three reasons; First, it was the first definitive opinion from a highest state court in an adequacy case where the Court did not give any independent consideration to separation of powers concerns. The court did consider whether the case was justiciable in light of State objections based on the ripeness and mootness doctrines (and it is true that these doctrines have an indirect relationship to separation of powers concerns), but the Court did not independently consider whether it should engage in review or abstain due to the potential that its ruling might encroach on legislative functions. With the exception of Arizona (which ruled on the adequacy issue at the request of the State), all other courts have at least considered whether they should abstain.

Second (and maybe this explains the first), the opinion was the first to separately consider a constitutional provision added by voters to supplement the state's education clause and make clear the legislature's specific funding obligation. The original education clause, found in Article VIII, s. 3, simply provides: "The Legislative Assembly shall provide by law for the establishment of a uniform, and general system of Common schools." Scholars of education finance would place this clause among the weakest (or least demanding) in the nation. However, in 2000, the voters added Section 8 to Article VIII. This new section provides, in pertinent part: "(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." The plaintiffs argued in the alternative that (1) the challenged legislative appropriation was in violation of the new clause; or (2) the old clause incorporated the new clause's standards (which appear to incorporate the state content learning standards), and was therefore violated by the (stipulated) failure of legislative appropriations to meet these incorporated standards; or (3) the old clause required adequate funding in and of itself, and this clause was violated.

As to the first contention, the Court engaged in a strict textual analysis and held that, based primarily on the State's admission that this was so, state funding was indeed insufficient to meet the goals of the state learning standards. However, the Court also held that, by providing for a legislative explanation in the event of a failure to provide sufficient funds, the amendment itself explicitly authorized insufficient funding, so the Court could not go beyond issuing a declaration that funding was insufficient (as opposed to unconstitutional). As to the second contention, the Court held that it would be illogical to conclude that legislative discretion provided by a new constitutional provision could be nullified by an older constitutional provision said to "incorporate" it. As to the third contention, the Court interpreted the education clause as imposing the most minimal of standards--that of a basic education, and held that this standard was met (or rather, that there was no evidence that it was not met).

Thus, we have the third reason that this case is of interest--the Court, unlike almost every state court reaching the merits of an education finance adequacy challenge--ruled in favor of the state. This ruling might be explained based on the fact that the new constitutional provision--the one that was supposed to be more strict than the old one--ultimately imposed a very wishy-washy standard of "The legislature must do X, unless it does not want to do X." Armed with this indication of popular voter intent, it must have been evident to the Court that the voters of Oregon were not interested in limiting legislative discretion as to appropriations matters, even in the original education clause. I have argued elsewhere that advocates of using the judiciary to obtain increased education funding might be more successful if they were to start with a popular amendment of the state constitution imposing standards that are concrete--not inherently subjective and unclear, as most state education clauses are because they use words like "thorough," "ample," "general," and "sufficient." (Words like these can invite dismissal based on the political question doctrine, which counsels abstention where there are no"judicially manageable standards.") The reformers in Oregon succeeded in imposing a more concrete standard arguably subject to judicial manageability, but they took the wind out of their own sails by explicitly making the concrete standard optional.

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Judicial "Inadequacy" in Providing Remedies for Education Finance" Inadequacy"?

Friday, December 12, 2008 at 08:12AM | Scott Bauries

I missed this when it first was filed (most likely because I was still in private practice then), but an interesting set of developments occurred during the second half of 2007 and the first half of 2008 in the Idaho school finance litigation. Those of you with interests in the area will recall that, in late 2005, the Idaho Supreme Court held the state's education system unconstitutional on adequacy grounds. (See Idaho Schools for Equal Educational Opportunity v. State.) However, like several other state courts troubled by the separation of powers issues inherent in these cases, the Idaho Court elected to abstain from ordering any remedy to the identified constitutional violation. The plaintiffs understandably became impatient with this "wait and see" approach to the remediation of the violation of their rights, and they took matters into their own hands, filing a complaint in federal court against all of the Justices of the Idaho Supreme Court. I cannot link to the documents because they are password protected, but if you have a Pacer account, you can find them in the CM/ECF system for the Idaho federal district court under case no. CIV 07-00261-S-EJL.

Initially, the plaintiffs sought a writ of mandamus, which is an ancient judicial mechanism by which a court directs an official of the government to perform his or her official duties. (The famous Supreme Court case of Marbury v. Madison came before the Court on a writ of mandamus). The problem with mandamus in this situation, though, is that a federal court may not use the procedure to force a state official to perform a duty under state law (federalism concerns prevent this), and in any event, federal district courts have no power under the Federal Rules to issue writs of mandamus (See FRCP 81(b)). So, the plaintiffs attempted to re-cast their suit as one merely for a judicial declaration that the failure to order a remedy for the identified violation of their state constitutional rights constituted a violation of their federal constitutional rights under the Due Process Clause of the 14th Amendment. They initially succeeded at re-casting their claim, but the court eventually saw through this as merely a semantic change and dismissed the claims in their entirety.

Along the way, though, the court was asked to rule on the Justices' motion for summary judgmentas to the due process claims. For those unfamiliar with this procedure, it is a mechanism by which a party may obtain judgment without trial if there are "no genuine issues of disputed material fact," and the law cuts in favor of the moving party's position. The Justices' argument was essentially that no relief could be granted the plaintiffs on their claims because the Idaho Court had discretion not to order a remedy. Interestingly, the federal court did not buy this argument. Instead, the court ruled that, if the Idaho Court had indeed held that the plaintiffs' constitutional rights had been violated, yet elected not to order any remediation of such violation before closing the case, then it was conceivable that the Idaho Court's action (or inaction) constituted a violation of the plaintiffs' federal rights to due process. Again, if you are unfamiliar with the process of summary judgment, the court's denial of the Justices' motion did not mean that the plaintiffs then won the case. It just meant that the case could go forward to trial on the due process claims. As I mentioned above, the case was ultimately dismissed after the court, upon deeper examination of the plaintiffs' claims, determined that the only thing they really could be seeking was a writ of mandamus, which the court was forbidden to issue.

Nevertheless, if other federal courts (and litigants) pick up on the reasoning supporting the court's ruling on the motion for summary judgment, it has the potential to drastically alter school finance litigation. More than a third of the currently decided adequacy cases have ended with orders similar to the one in Idaho, where the court finds a constitutional violation, but elects not to order a remedy. If a group of litigants, after winning in the state courts but not receiving any remedy, chooses to sue the state court judge or justices in federal court, but is careful not to seek a writ of mandamus, there is at least a chance that they could win at least a declaratory judgment that the state court has violated their due process rights. What would be the outcome of such a ruling? Well, at the bare minimum it would be a source of great embarrassment to the state court judges, but it might also have a chilling effect on further rulings finding constitutional violations, but declining to order remedies. If such a rule of law had existed at the time (not that it actually exists now), we might have been deprived even of the seminal Rose v. Council case in Kentucky, in which the Court did almost exactly what the Idaho Court did in the ISEEO case.

I don't like much about the federal court's initial approach from a federalism and separation of powers perspective, chiefly because it would have had the effect of determining that exercising judicial restraint due to separation of powers concerns at the state level is wrong, even though doing the same thing at the federal level (such as abstaining from hearing a case that presents a political question) is clearly fine under current Supreme Court precedent. However, in a pragmatic sense, there is one thing to like about the federal court's initial approach. It puts state judges in the same position in which many of them have placed state legislatures: having an outside actor declare them to be bound by an amorphous affirmative constitutional "duty" and essentially shaming them for exercising discretion in the performance of this duty, where such discretion would otherwise have been evident from the constitutional text, as well as inherent in the judiciary's role in the three-branch system of government. (Very similar to legislative discretion in funding education).

There's even a potential for extension: For example, assuming the Justices lost, would it have been sufficient for them to award the state plaintiffs the proverbial "peppercorn" for their troubles? If the "peppercorn" satisfies due process, then what difference is there between that and total judicial deference to the legislature as to a remedy? If the "peppercorn" is insufficient, then how much reviewing authority does a federal judge have? If the initial decision had been carried forward, would we have been talking later about whether the court's remedy was constitutionally "adequate"?

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