Equal time

National Review, Sept 14, 1998 by Andrew Peyton Thomas

Mr. Thomas is an attorney in Phoenix.

Although the polls say that education is the public's top concern, voters in Ohio recently made clear the limits of their generosity: no blank checks for the shakedown known as school "equalization."

Like courts in 17 other states, the Ohio Supreme Court had struck down the state's school-finance system and ordered the legislature to equalize funding for public schools. In a 1997 ruling, the court held that the school-finance system, by relying heavily on property taxes, creates inequalities, with students in the more affluent areas generally enjoying better facilities. In response, the Ohio General Assembly placed Issue 2 on the ballot. The measure proposed raising state sales taxes by $1.1 billion and earmarking half the revenue for the mandated "equalization." On May 5, 80 per cent of the voters rejected the measure.

Curiously, state courts that strike down school-finance systems rarely come in for significant criticism from any quarter. Typical was a recent Wall Street Journal editorial discussing the Ohio measure: "While the courts have likely overstepped their boundaries, they do have the last word." Conservative writers such as David Brooks and Clint Bolick have even seized upon such judicial upheaval as affording a ripe opportunity for advancing revolutionary changes in the public-school system.

Waging war on teachers unions and bloated school bureaucracies is a wholesome project, but injustice should not be overlooked in the process. These court rulings are tyrannical, and they are destroying school-finance systems that have served some states literally since the founding of the Republic. State supreme courts in 18 states have declared their states' school-finance systems unconstitutional; another 18 states have seen their finance systems challenged but upheld. In other words, special interests seeking judicially ordered spending hikes for public schools have so far succeeded 50 per cent of the time.

BEHIND this trend is a judicial arrogance as striking as that of the Warren Court itself. The rulings in these 18 states have capriciously turned entire school systems upside-down. And unlike the case of the federal judicial system -- where, for example, the Supreme Court in Missouri v. Jenkins overruled a federal judge's order requiring Missouri to increase taxes to pay for his latest desegregation plan -- there is no curb on state supreme courts interpreting their own state constitutions. Since it is politically impossible to cut spending in more affluent districts to free up money for poorer districts, the upshot of these rulings is higher taxes.

The equalization cases began in the 1970s. In 1973, the U.S. Supreme Court considered an appeal in a case challenging Texas's reliance on local property taxation for school financing. In San Antonio Independent School District v. Rodriguez, Justice Powell, writing for a 5 to 4 majority, said that such systems do not violate the equal-protection clause of the Fourteenth Amendment. The court held that "education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected."

Rodriguez made clear that the equalization movement could not rely on the federal courts, but two years earlier the California Supreme Court had opened the way for a state-by-state approach. That court ruled in Serrano v. Priest that California's school-finance system violated the Fourteenth Amendment. In a follow-up case, the California court admitted that Rodriguez had undermined its ruling in Serrano. But it promptly switched to relying on the equal-protection clause of the state constitution, which was off limits to federal reversal.

Other state supreme courts likewise have combed through their states' constitutions in search of language capable of justifying equalization requirements. The language has ranged from equal-protection clauses, as in California, to provisions requiring an "efficient" school system (Texas, Kentucky) or a "thorough and efficient" school system (Ohio, New Jersey), to ones simply affirming the state's duty to provide "free public schools" (Missouri) or "to cherish . . . public schools" (New Hampshire). The people of these states, accordingly, are being told that their school-finance systems, many of which are as old as their state constitutions, now suddenly violate those constitutions.

These court opinions are often as condescending and treacly as those by William Brennan or Thurgood Marshall -- in fact, dissents by Brennan and Marshall are sometimes actually quoted. In Edgewood Independent School District v. Meno, the Texas Supreme Court ended its opinion by quoting Marshall's dissenting opinion in Rodriguez. The court asserted that because of the legislature's inaction, "countless children unjustifiably receive inferior educations that 'may affect their hearts and minds in a way unlikely ever to be undone."'

In New Jersey, the state supreme court has micromanaged the school system for the last 25 years. The court's sociological masterpiece was its 1990 opinion in Abbott v. Burke, which held that the state had run afoul of its constitution because urban students "are not being educated." The court continued: "This substantial segment of our population is isolated in a separate culture, in a society they see as rich and poor, for to the urban poor, all other classes are rich. There is despair, and sometimes bitterness and hostility." This sermon was delivered to a state that, as the court conceded in its opinion, spends "more dollars per student for education than almost any other state."