School Money Trials: The Legal Pursuit of Educational Adequacy

Chapter 3: Reinterpreting the Education Clauses in State Constitutions

55 In the past decade, a number of state courts have found a new “fundamental right” to education in centuries-old provisions in state constitutions. Those courts have then used that fundamental right determination to establish the level of educational funding that, from their particular point of view, is required to be constitutionally “adequate” and even to mandate the content of the curriculum itself. In the process they have ignored considered legislative judgments to the contrary. In this chapter, I explore the historical understanding of the actual language of the state constitutional provisions on which the new state court decisions rest, concluding that in almost every instance the original provisions were designed to set only hortatory goals for the legislature, not to confer a judicially enforceable individual right to a certain level of financial support for—or quality of—public education. I next consider some recent constitutional amendments that might be read as supporting the fundamental right holdings and conclude that in most cases those amendments, too, fall short of conferring a judicially enforceable right to a constitutionally mandated “adequate ” public education. Finally, I take issue with judicial holdings that have, through the use of fundamental right determinations, injected themselves into Reinterpreting the Education Clauses in State Constitutions 3 john c. eastman The author wishes to thank Chapman University law student Kristi Collins for her stellar contribution to the research for this article and also former Chapman law students Monica Edwards and Cecilia Aguayo, who collected much of the research in an earlier phase of this project. 03-7031-6-CH03 12/11/06 2:41 PM Page 55 what is inherently a policy issue, reserved by the state constitutions to the political branches of government. I conclude with a cautionary note about the threat to participatory democracy that those holdings might pose. A Constitutional Puzzle In 1998, I published a somewhat provocative article in the American Journal of Legal History entitled “When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education, 1776–1900.”1 Starting with the Supreme Court’s doctrinaire, positive-law holding in San Antonio Independent School District v. Rodriguez that education was not a fundamental right for purposes of federal constitutional analysis because there was no mandate for education to be found, either directly or indirectly, in the U.S. Constitution, I undertook a comprehensive review of education provisions in the constitutions of the several states.2 At first glance, one might have concluded that under the Rodriguez formulation, the states would be treating education—by which I mean state-financed education—as a fundamental right. After all, from the outset state constitutions contained pretty significant provisions addressing education. My review of the first century and a quarter of U.S. history, however, led me to draw the opposite conclusion. As described more fully below, most of the education provisions in state constitutions adopted during the eighteenth and nineteenth centuries were only hortatory, and even those that contained apparently obligatory language were in most cases not interpreted as imposing any specific mandate on the legislature and certainly not as conferring a judicially enforceable right to education. The “hortatory” story from the eighteenth and nineteenth centuries holds true through the first three-quarters of the twentieth century. Even states that adopted somewhat obligatory language continued to treat that language as setting legislative goals, not as imposing judicially enforceable mandates. Not until the 1970s, following the “rights revolution” of the Warren Court, does one find courts actually starting to hold that the education provisions in state constitutions afforded fundamental right status to public education, conferring a judicially enforceable individual right not just to an education but to a certain level of financing for—and even a certain quality of—education. In most cases, those court decisions were rendered without much focus on the actual language of the particular education provision at issue and without much consideration of the inherent policy judgments that underlie a determination of funding level and quality. Far from enforcing a constitutional man56 john c. eastman 03-7031-6-CH03 12/11/06 2:41 PM Page 56 date, therefore, those decisions have effected a fundamental shift of policymaking power away from legislatures and to the courts, posing a serious threat to the principle of separation of powers and ultimately to government by consent itself. Eighteenth- and Nineteenth-Century Recap Most of the state constitutional provisions adopted during...