Courting Trouble

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Transcript of Courting Trouble

  • March 2007

    Oklahoma Councilof Public Affairs

  • 2Summary

    On January 11, 2006, the Oklahoma Educa-tion Association (OEA) and three Oklahomaschool districts (Jenks, Foyil, and WesternHeights) filed an adequacy and equity lawsuitagainst the State of Oklahoma and the Okla-homa Legislature seeking, in their words, adeclaration by the Oklahoma County DistrictCourt that the Oklahoma Legislature has failedto meet its constitutional mandate to adequatelyfund a system of public education. On July 28,2006, a district court judge dismissed the law-suit, but the OEAs attorneys have asked theOklahoma Supreme Court to reverse thatdecision and remand the case to the districtcourt.

    This paper will demonstrate that by the timeOklahoma adopted its constitution in 1907, theprinciple was well established in almost everystate that state constitutional provisions for

    public education set out aspirational goals forlegislative consideration rather than judiciallyenforceable mandates. Indeed, there is nothingin Oklahomas constitutional provisions tosuggest that those who drafted and ratified theconstitution intended to mandate judiciallyenforceable levels of spending. Educationfinance is inherently a matter for legislativejudgment, requiring the balancing of competingpolicy interests for which there is no correctlegal answer.

    Quite apart from the threat to separation ofpowers, judicial activism which mandatescertain levels of spending threatens the veryessence of government by consent and, collater-ally, the benefits to be gained from participatorydemocracy. The unions attempt to lead the courtdown that constitutionally problematic pathshould be soundly rejected.

    Legislative Judgment, Not Judicial Fiat

    The basic provision for public education in theOklahoma Constitution has remained unchangedsince it was first adopted a century ago, at state-hood in 1907. Article XIII, Section 1, simply pro-vides: The Legislature shall establish and main-tain a system of free public schools wherein allthe children of the State may be educated.1

    Section 5 of Article I, which deals with relationsbetween the state and the federal government,parallels that basic commitment: Provisions shallbe made for the establishment and maintenanceof a system of public schools, which shall be opento all the children of the state and free fromsectarian control; and said schools shall alwaysbe conducted in English: Provided, that nothingherein shall preclude the teaching of other lan-guages in said public schools.2 Save for anamendment abolishing a provision which counte-nanced segregated schools, that provision, too,remains unchanged since it was first adopted in1907.

    At the time the constitution was adopted, noone contemplated that these provisions containedany judicially enforceable mandate. Rather,consistent with the historical trend of educationclauses in other state constitutions, they wereviewed as setting forth merely aspirational goals,the particular details of which were left to thediscretion and policy judgment of the legislature,

    as long as the public education provided was free.Nevertheless, the plaintiffs in the current ad-

    equacy lawsuit somehow read into these horta-tory3 clauses specific commands, enforceable bythe courts of law, that would require the statelegislature to spend an additional $1 billion eachyear on the operation and maintenance ofschools, and an additional $3 billion for capitalimprovements amounts above and beyond the35 percent of the total state budget that the plain-tiffs concede is already spent by the state onpublic education.4 Yet the language upon whichthe plaintiffs base their claim of mandate simplydoes not exist.

    The plaintiffs complaint asserts violation ofuniformity and adequacy requirements whichsimply are not found in the Oklahoma constitu-tion.5 The plaintiffs claim that the OklahomaConstitution defines education as a fundamentalright, but that language is nowhere to be foundin the Constitution either.6 Nor does the stateconstitution mandate that the legislature providea sufficient level of funding at anywhere nearthe level the plaintiffs claim, as the plaintiffsrepeatedly assert, and there is certainly nothingin the constitution that allows the courts, ratherthan the legislature, to determine what level offunding qualifies as sufficient.7

    Indeed, if the plaintiffs interpretation of ArticleI, Section 5, and Article XIII, Section 1 were

  • 3correct, there would have been no need for the1946 voter initiative, which amended the constitu-tion to mandate that the legislature raise andappropriate funds for the annual support of thecommon schools of the State to the extent of forty-two ($42.00) dollars per capita based on totalstate-wide enrollment for the preceding schoolyear.8 Curiously, the plaintiffs do not mention thisclause at all in their complaint, undoubtedlybecause the minimal level of funding it actuallymandates does not hold a candle to the billions inadditional funding the plaintiffs are seeking. Thepeople of Oklahoma are perfectly free to imposeadditional such mandates on their legislature, butby way of constitutional amendment as they didwith Section 1a, not by judicial fiat, as the plain-tiffs urge.

    In short, the subsequent adoption of Article XIII,Section 1a makes clear that the language ofArticle XIII, Section 1, and the parallel languageof Article I, Section 5, is simply hortatory, estab-lishing policy goals for the Legislature, to bepursued as the legislature, in its judgment, deemsbest. Article X, Sec. 32 of the Oklahoma Constitu-tion the clause relied upon by the plaintiffs fortheir third claim of relief demonstrates evenmore clearly that these matters are left entirely tothe discretionary judgment of the legislature.Article X, Section 32 provides:

    For the purpose of providing buildings forschool districts, there is hereby established aState Public Common School Building Equal-ization Fund in which shall be deposited (1)such monies as may be designated or pro-vided for such purpose by the Legislature,other than ad valorem taxes, and (2) theproceeds of all property that shall fall to theState by escheat and penalties for unlawfulholding of real estate by corporations; pro-vided, that if such disposition and use ofmoney from any such sources shall be de-clared invalid, the validity of other provisionsof this section shall not be affected thereby.The State Public Common School BuildingEqualization Fund shall be administered bythe State Board of Education, until otherwiseprovided by the Legislature. Such Fund shallbe used to aid school districts in acquiringbuildings, under such regulations as may beprescribed by the administering agency,unless otherwise provided by law, and theamount paid therefrom to or for any school

    district shall be determined by a formulaestablished by the Legislature. The administer-ing agency is authorized to accept grants-in-aid from the federal government for buildingpurposes (emphasis added).9

    Indeed, the deference afforded to the legisla-ture under Article X, Section 32, is today evengreater than it was when that particular provisionwas first adopted in 1955; a 1984 electoral refer-endum substituted the phrase, shall be deter-mined by a formula established by the Legisla-ture, for a specific formulaic cap that had existedin the original provision.10

    That the Oklahoma constitution establisheshortatory goals rather than judicially enforceablemandates should come as no surprise. Educationfinance is inherently a matter for legislativejudgment, requiring the balancing of competingpolicy interests for which there is no correct legalanswer. The plaintiffs themselves recognize this,noting that the statutory finance system estab-lished by the legislature is a complex calculationthat takes into account various factors.11 Indeed,the plaintiffs concede in their complaint that theOklahoma constitution assigns funding decisionsto the legislature: The State Board of Educationdoes not have the constitutional or statutoryauthority to appropriate funds for the mainte-nance of public schools in Oklahoma a powerreserved to the Oklahoma Legislature (emphasisadded).12 There is simply no warrant for the courtto substitute its judgment for that of the legisla-ture, or for that of the people of the state of Okla-homa, who assigned this policy-making functionto the legislature.A Brief History of State Constitutional


    From the first days of the Republic, the over-whelming number of education clauses in stateconstitutions have been hortatory, not obligatory.The Massachusetts Constitution of 1780, forexample, provides that it shall be the duty oflegislators to cherish the interests of literatureand the sciences, and all seminaries of them,especially the university at Cambridge, publicschools, and grammar schools in the towns; [and] to countenance and inculcate the principalsof humanity and general benevolence, public andprivate charity, industry and frugality, honesty andpunctuality in their dealings; sincerity, goodhumor, and all social affections, and generoussentiments, among the people.13 Despite the

  • 4word duty, this clause no more mandatedspecific levels of funding for public schools by thelegislature, enforceable by the courts, than it man-dated a particular curriculum to advance generoussentiments among the people. As the SupremeJudicial Court of Massachusetts held in 1849:

    The proper province of a declaration of rightsand constitution of government, after directingits form, regulating its organization and thedistribution of its powers, is to declare greatprinciples and fundamental truths, to influ-ence and direct the judgment and conscienceof legislators in making laws, rather than tolimit and control them, by directing whatprecise laws they shall make. The provision,that it shall be the duty of legislatures andmagis