Judges Putting Themselves in Control of Education Policies

Judges are increasingly assuming policy-setting roles that were once left to the other branches of government.

Major changes are underway this month in how states pay for education, and the new policies are coming not so much from state legislatures or departments of education, but from courts. Whether we love or loathe each particular decision, the developments aggregate to an inescapable macro-conclusion — judges are increasingly assuming policy-setting roles that were once left to the other branches of government. One consistent element is that rather than admitting their actions are fundamentally activist, the judges generally explain that they’re obligated to take action because of century-old state constitutional phraseology, the same constitutions that somehow never compelled such action from their myriad of predecessors.

Add to that a certain stately quality to the judges’ pronouncements, gussied up in the sartorial majesty of berobed, high-minded jurisprudence, and you get a kind of aristocratic theater of projected educational wisdom.

In the West:

Yesterday in Olympia, Washington, representatives from the state’s executive branch were doing more than discussing school funding plans, they were asking the court to remove a head-scratching contempt order that the court imposed in 2014. That’s when the Washington Supreme Court fined the legislature $100,000 every day until a new school funding law could be passed that the judges found acceptable. In other words, for the last 13 months, one branch of a state government (judiciary) has been imposing a fine on another branch of the same state government (legislature).

The Washington Supreme Court’s reason for fining the legislature? The state was in “violation of its constitutional obligation to amply provide for public education.” [Emphasis mine] Who should define the subjective dollar amount that is “ample”? The court bashfully decided the constitution obligated them to come up with the exact dollar amounts that are ample-worthy. Does the theoretical principle of ample funding, or even the word “ample,” appear in the state constitution? Well, no. But previous court decisions invoked the standard, and the justices seized the ripe opportunity for mission creep.

In explaining the fine, the court also complained that, “The State has provided no plan for how it intends to pay for the facilities needed for all-day kindergarten….” Try as you might to locate references to all-day kindergarten in the Washington State constitution, the phrase will elude you. But divining sentiments quietly implied in the 19th century constitutional language is just part of the gig, and the fact that those sentiments might happen to match the justices’ preferred 21st century policy prescriptions should be viewed as coincidence.

The most interesting admission from the court yesterday was that its scary $100,000/day fine had been utterly ignored by an insubordinate legislature. While the contempt order had called for the legislature to put the accruing funds into a special account set aside for public education, the legislature just didn’t do it. And rather than than this triggering any soul-searching from the court as to its possible overreach, justices seemed more like rebellious sailors whose mutiny was starting to crumble. During oral arguments Justice Susan Owens asked in frustration, “If $100,000 a day isn’t coercive, how is announcing something else that can be easily changed by the Legislature going to be coercive?”

The question of why it was the court’s role to coerce the legislature in the first place on a policy matter came from… no one.

In the East:

Yesterday in Connecticut, Superior Court Judge Thomas Moukawsher ruled on a case that’s been bouncing around for more than eleven years. Imagine: Over 5,000 pieces of evidence entered as exhibits; over 50 witnesses. The result: The Judge announced he was giving the legislature 180 days to “assume unconditional authority to intervene in troubled school districts.” Some parts of the massive 90-page decision with 161 pages of appendices felt more like a university study of educational demography than a court ruling. It offered, for example, a scatter plot showing wild variations in the percentage of children identified as special needs from school-to-school, also showing that the variations were not correlated to poverty. Meanwhile, some of the decision’s language would have seemed more at home in a blog post or a newspaper commentary than a judicial decision like, “Deputy Education Commissioner [and witness] Ellen Cohn was a breath of fresh air.”

Judge Moukawsher’s version of the policy-setting bench-style offered some outright reform-ey ideas, writing that the state “cannot churn out uselessly perfect teacher evaluations nor can teacher pay consider solely what degrees teachers have and how long they have been on the job.” Still, while the decision was activist in the sense of ordering more funds to low-income districts, when it came to the matter of explicit dollar amounts, here’s where the Judge deferred. A court order requiring a particular increase in spending, the original goal of the plaintiffs, was answered in plain language, “The court can’t dictate the amount of education spending….”

Separately, in Rochester, New York, a new case was underway yesterday, and this time it was the reformers sitting in the plaintiffs’ chairs. They told a judge that upstate New York charter schools shouldn’t only be getting the measly $0.68 on the dollar that they presently get, compared to the traditional public schools. Might this have been taken to the legislature? Of course. But with the judiciary emerging as the primary branch of government in these matters, they might have wondered “why bother?” A decision is expected in a few weeks.

In the Middle of the Country:

In two weeks, on September 21, the Kansas Supreme Court justices will listen to that state’s version of a lawsuit about whether school funding is adequate. As the oral arguments commence, the justices are likely to feel pretty emboldened. That’s because in a different school funding case just last May, the same court threatened an order to shut down all the public schools in Kansas if the legislature didn’t capitulate and direct more money to the less affluent school districts as per the court’s wishes. The very next month, the elected legislators dutifully complied with this particular black robe gang.

This time the issue will not be the hard scrabble impoverishment of the low-income districts. This time the Kansas Supreme Court will ruminate on the adequacy of the state’s overall education spending. In short, they’ll be courageously asking the question “Is the 2016 Legislature budgeting enough for public schools, or do they believe the state constitution ratified in 1859 requires different dollar amounts?” It has the makings of a do-gooder’s holiday.

Some Others:

Also this month, in New Hampshire superior court judge Brian T. Tucker made his disagreement with a cap on the growth of state education support known. He declared the state aid spending limit, which had been passed by the legislature, unconstitutional. The same week Nashville public schools wanted more education dollars. They turned not to stronger appeals to legislators, but to the courts. That lawsuit joined similar ones in Tennessee.

What Do These Have in Common?

The continuous encroachment of judicial activism is built on the principle of stare decisis, which is Latin for “previous judicial power grabs will be our starting point, then we’ll only grab a little more.” Actually, it directly translates to “let the decision stand,” but it generally means courts are supposed to respect precedent. These kinds of decisions, however, do tend to rely on previous activist decisions and then expand them. The familiar rationale is to observe that if those previous court orders didn’t fully fix education policy in their great states, due diligence requires the court to assume even more power this time, and threaten to take more yet again until problems are vanquished.

Where does this end? Many believe the logical conclusion would be what’s called nullification, where a governor publicly rejects the court, like a metaphorical “You and what army?”  Chris Christie almost did this in 2011. The Washington State legislature, with its flaunting of the order to set up a penalty account, gets close. But with more and more lawyers in black robes assuming broadly expansive powers in setting education policy, it seems only a matter of time until a court, hell bent on running a state government over the objections of a legislature and governor, is defiantly told “no.”

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