March 2007

Oklahoma Councilof Public Affairs

2

Summary

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 OEA’s 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 Oklahoma’s 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 union’s 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 of“uniformity” 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

3

correct, 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

Provisions

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

4

word “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 andmagistrates to cherish the interest of literatureand the sciences,especially the univer-sity of Cambridge,public schools, andgrammar schools, inthe towns, is preciselyof this character. Hadthe legislature failedto comply with this injunction, and neglectedto provide public schools in the towns, orshould they so far fail in their duty as to repealall laws on the subject, and leave all educa-tion to depend on private means, strong andexplicit as the direction of the constitution is, itwould afford no remedy or redress to thethousands of the rising generation, who nowdepend on these schools to afford them amost valuable education, and an introductionto useful life.14

The New Hampshire Constitution of 1784followed the Massachusetts provision almostverbatim, as did the constitutions of several statesadmitted to the Union in the nineteenth century,including Indiana in 1816, Tennessee in 1834,Arkansas in 1836, Rhode Island in 1842, andTexas in 1845.15 In none was the clause under-stood to impose judicially enforceable require-ments upon the state legislature.

The Northwest Ordinance of 1787, which de-fined the principles on which federal territory, andultimately new states, would be governed, alsocontained a hortatory provision:

Religion, morality, and knowledge beingnecessary to good government and the happi-ness of mankind, schools and the means of

education shall forever be encouraged.16

This provision was followed in numerous states,including Ohio in 1802, Missouri in 1812 (in itsterritorial government act) and 1820, Mississippiin 1817 and 1832, Alabama in 1819, Kansas in1855, Nebraska in 1866, and North Carolina in1868.17 Like the Massachusetts provision, thesewere not intended, or interpreted, to declare ajudicially enforceable right to education, muchless mandate a certain level of funding; rather,they merely articulated a goal that the constitutiondrafters thought important to the protection ofrepublican government — a goal left to the policydiscretion of the legislatures to pursue.

Even those state constitutions with apparentlyobligatory language in their education clauseswere not understood as creating a judicially

enforceable right toeducation, much less awarrant for courts todetermine funding levels.Pennsylvania and NorthCarolina in 1776, andVermont and Georgia in1777, all mandated that

schools “shall be established” in each county ortown by the legislature, for example.18 But in noneof those states did the legislature act as thoughthe constitutional provision imposed upon it anyspecific duty (much less a judicially enforceableone), and by the end of the 18th century, Vermont,Georgia, and Pennsylvania had all replaced theobligatory language with more hortatory provi-sions.19 Although North Carolina retained itsfacially obligatory language, the legislature ofthat state did not establish a common schoolsystem until 1839 — a full 65 years after theclause was first adopted, hardly a timetable thatsuggests a judicially enforceable mandate.20

The phrase, “system of public schools,” foundin the Oklahoma Constitution first appeared in theIndiana Constitution of 1816. Article IX, Section 2,of that constitution provided: “It shall be the dutyof the General Assembly, as soon as circum-stances will permit, to provide, by law, for ageneral system of education, ascending in aregular gradation from township schools to aState University, wherein tuition shall be gratis,and equally open to all.”21

So great was the discretion afforded to thelegislature under this provision, however, that theIndiana Supreme Court held in 1850 that the

There is nothing in Oklahoma’s consti-

tution to suggest that those who drafted

and ratified the document intended to

mandate judicially enforceable levels

of education spending.

5

clause did not even to require that the schools beopen to all children, much less that it created ajudicially enforceable right to a certain level offunding for education.22

The next state to utilize the “system” formula-tion was Michigan in 1835: “The legislature shallprovide for a system of common schools, by whicha school shall be kept up and supported in eachschool-district at least three months in every year;and any school-district neglecting to keep up andsupport such a school may be deprived of its equalproportion of the interest of the public fund.”23

Iowa and California adopted similar provisionsin 1846 and 1849, respectively.24 Here were spe-cific mandates defining what was meant by a“system” of public schools — a school in eachdistrict, operating at least three months each year.But even with these specific requirements, theremedy specified by the clause was not a judicialmandate, but rather the loss of access to the stateschool fund. Contrary to the plaintiffs’ claim thatthe similar “system” provision in the OklahomaConstitution guarantees to each student a “basic,adequate education,” there was no suggestionthat a judicially enforceable individual right hadbeen created, either by the general requirementthat the legislature provide for a system of com-mon schools, or by the specific requirements thatfollowed.25

This view of the clauses was confirmed in 1869by Michigan Supreme Court Justice Campbell,writing in The People ex rel. Workman v. The Boardof Education of Detroit: “It cannot be claimed, thatthe legislature could not make or authorize anyregulation they should see fit, in regard to themanagement of different scholars.”26 It wassimilarly confirmed in Iowa in 1857 when, duringdebate over whether to extend or carry over theeducation provision to the new constitution underconsideration that year, one convention delegateargued against specifying how long to keep theschools open, contending that such a decisionshould be left to the districts, which are “mini-republics themselves, and have a right to controlthese matters.”27 Although the Iowa Constitution of1857 continued the requirement that schools beopen three months per year, the entire clause wasmade subject to legislative repeal after 1863 sothat the General Assembly itself could “providefor the educational interest of the State in anyother manner that to them shall seem best andproper.”28 The Iowa General Assembly did just

that in 1864, leaving the entire matter to legisla-tive judgment thereafter.

A few states adopted facially obligatory lan-guage of a slightly different sort. Constitutionsadopted mid-century in New Jersey, Ohio, Minne-sota, and Oregon all contained the phrase, “thelegislature shall,” followed by such phrases as“thorough and efficient system,” “general anduniform system,” or “regular and uniform sys-tem.”29 New Jersey went the furthest, requiring thatits “thorough and efficient” system be open andfree for all the children of the state.30 In 1884, theNew Jersey Supreme Court recognized thatlegislation enacted pursuant to this provisionprovided for “the legal right of [children residingin a school district] to enter [district] schools forfree instruction,” although it also recognized thata school board would be within its rights inrefusing admission to a child if “the schools …were full.”31 Following the Civil War, the require-ment that the schools be open to all the childrenof the state was adopted in numerous states,including Louisiana in 1864, Missouri in 1865,Illinois in 1870, Pennsylvania in 1873, and Ne-braska in 1875, and this became the norm foralmost every state admitted to the Union thereaf-ter. Yet in none of these states was the languageunderstood to impose a judicially enforceablemandate upon the legislature with respect to thelevel of funding that should be provided to thosechildren.

Only two state constitutions actually mandatednot only that its schools be open to all the childrenof the state, but also specified the source andamount of financing for those schools as well. ArticleX of the Wisconsin Constitution of 1848 read:

Sec. 3: The Legislature shall provide by lawfor the establishment of District Schools, whichshall be as nearly uniform as practicable; andsuch schools shall be free and without chargefor tuition, to all children between the ages offour and twenty years; and no sectarianinstruction shall be allowed therein.Sec. 4: Each town and city shall be required toraise, by tax, annually, for the support ofcommon schools therein, a sum not less thanone half the amount received by such town orcity respectively for school purposes from theincome of the school fund.Sec. 5: Provision shall be made by law, for thedistribution of the income of the school fundamong the several towns and cities of the

6

State, for the support of common schoolstherein, in some just proportion to the numberof children and youth resident therein, be-tween the ages of four and twenty years, andno appropriation shall be made from theschool fund to any … school district for theyear in which a school shall not be main-tained at least three months.32

Although Section 5 contains the same enforce-ment clause limited to the forfeiture of state schoolfunds by any district that does not maintain aschool as contained in some of the other constitu-tions discussed above, Sections 3 and 4 of theprovision are much more specific in their man-date. The district schools were to be “as nearlyuniform as possible,” and “free … to all childrenbetween the ages of four and twenty years.”33

Moreover, the State schoolfund proceeds were to beaugmented by a local taxof at least 50 percent of theschool fund amountreceived.

The Supreme Court ofWisconsin had occasion tointerpret this constitutionalprovision in The State exrel. Comstock v. Joint School District No. 1 ofArcadia. The plaintiff in that case sought to sendhis son to an adjoining school district becausethere was no school in session in the district inwhich he resided. The defendant district sought tocharge the plaintiff tuition for the privilege, andwhen the plaintiff refused to pay the tuition, thechild was denied admission to the school. Thecourt focused on the language in the constitu-tional provision providing for “the establishmentof district schools,”34 (emphasis in original), andstated:

We find ourselves unable to assent to theproposition that a child residing in one schooldistrict has any absolute right, under anycircumstances, to the privileges of the commonschool of another district. … One feature of[the district system] is, and, so far as we areadvised, always has been, wherever thesystem has prevailed, that the absolute right tothe privileges of the school in any given district isconfined to children residing in such district, andhaving the prescribed qualifications.35

The court did not address whether the constitu-tional mandate to establish schools in each

district “as nearly uniform as possible” wasviolated; it only held that there was no absoluteright to attend school in another district, and thusthat the imposition of a tuition for the privilegewas not a violation of the constitutional mandatethat the schools be free. While the court’s lan-guage may appear to give a legally enforceableright to free education to children residing in thedistrict, it must be remembered that the casearose only because no school was in session inthe district where the Comstock child resided. Onecan only infer from the court’s language, togetherwith the constitutional provision depriving districtsof their share of the state school fund if they failedto keep a school open at least three months eachyear, that had Comstock sought to require schoolofficials in his own district to open a school, he

might have been non-suited on the ground thatthere was only an abso-lute right to attend adistrict school if, and tothe extent that, the schoolofficials saw fit to providefor one.

The only other state toadopt a specific funding

requirement (other than the protection of stateschool funds, which a number of states adopted)prior to Oklahoma statehood was Pennsylvania in1873:

The General Assembly shall provide for themaintenance and support of a thorough andefficient system of public schools, wherein allthe children of this Commonwealth above theage of six years may be educated, and shallappropriate at least one million dollars eachyear for that purpose.36

Quite obviously, this level of specificity is a farcry from the generic provision in the OklahomaConstitution that “The Legislature shall establishand maintain a system of free public schoolswherein all the children of the State may beeducated.”37

In sum, by the time Oklahoma adopted itsconstitution in 1907, the principle that state consti-tutional provisions for public education set outhortatory goals for legislative consideration ratherthan judicially enforceable mandates was wellestablished in almost every state. There is nothingin Oklahoma’s constitutional provisions to suggestthat those who drafted and ratified the constitu-

Judicial school-finance decisions have

effected a fundamental shift of

policymaking power away from legis-

latures and to the courts, posing a

serious threat to the principle of sepa-

ration of powers and ultimately to

government by consent itself.

7

tion intended to mandate judicially enforceablelevels of spending.Recent Judicial Activism

The “hortatory” story from the eighteenth andnineteenth centuries holds true through the firstthree quarters of the twentieth century. Even statesthat adopted somewhat obligatory languagecontinued to treat that language as setting legis-lative goals, not as imposing judicially enforce-able mandates. Not until the 1970s, following the“rights revolution” of the Warren Court, does onefind a few courts actually starting to hold that theeducation provisions in state constitutions af-forded fundamental-right status to public educa-tion, conferring a judicially enforceable individualright not just to an education but to a certain levelof financing for — and even a certain quality of —education.

In a couple of the cases, state courts appliedrelatively new amendments to the state constitu-tional provisions that arguably could be viewedas imposing some judicially enforceable man-date. But in most of the cases, those court deci-sions were rendered without much focus on theactual language of the particular educationprovision at issue and without much considerationof the inherent policy judgments that underlie adetermination of funding level and quality. Farfrom enforcing a constitutional mandate, there-fore, those decisions have effected a fundamentalshift of policymaking power away from legisla-tures and to the courts, posing a serious threat tothe principle of separation of powers and ulti-mately to government by consent itself. Oklahomajurists should resist this temptation — not onlybecause the language of the Oklahoma Constitu-tion has not been changed to invite it, but be-cause other states where courts initially suc-cumbed to the temptation to appropriate tothemselves the educational policy-making judg-ments of the state have begun to retreat from thejudicial foray.

Florida, for example, added a provision to itsconstitution in 1968 that “[a]dequate provisionshall be made by law for a uniform system of freepublic schools,” and shortly thereafter the FloridaSupreme Court found this “system” clause toconfer an individual “right.” That holding waseffectively overturned by a 1998 amendment to theFlorida Constitution declaring education a “fun-damental value” rather than a fundamental right,however, expressly to avoid the consequences of

the interpretation that had been given by theFlorida courts.38 The Florida Constitution wasamended again in 2002 to provide specific man-dates regarding class size, demonstrating theconstitutionally proper way to impose mandateson the legislature.39

In its 1976 revised constitution, Georgia wantedits system of free common schools to provide “anadequate education for the citizens.”40 The Geor-gia Supreme Court first interpreted the clause in1979 as creating a right, but then in 1981 held theright not to be “fundamental,” thereby recognizingthe threat to legitimate legislative authority that itsearlier ruling had posed.41

Indeed, a majority of the states have thus faradhered to the view, universally accepted throughthe end of the nineteenth century, that the provi-sion of public education is inherently a policyjudgment best left to the discretion of the politicalbranches, primarily the legislature. Idaho, forexample, which provided for a “general, uniformand thorough system of public, free commonschools,”42 adhered to the earlier, original under-standing of its 1890 constitutional clause when, in1975, the Idaho Supreme Court held that “[o]n itsface, [section 1] mandates action by the Legisla-ture. It does not establish education as a basicfundamental right. Nor does it dictate a centralstate system of equal expenditures per student.”43

Illinois, too, resisted the modern tendency ofsome courts to intrude upon the legislature’spolicy-making role, amending its constitution in1970 to designate education in its “system” of freepublic schools to be a “fundamental goal” ratherthan a “right,” a decision that the Illinois SupremeCourt respected in the 1996 decision in Committeefor Education Rights v. Edgar.44 Maine retained its1820 provision making it the duty of its towns “tomake suitable provision” for the support of publicschools, and the Maine courts have not inter-preted that provision as creating a fundamentalright or mandating certain levels of funding.45

Maryland mandated that a “thorough and effi-cient System of Free Public Schools” be estab-lished at the first legislative session after adoptionof its 1867 constitution,46 yet its Supreme Courtheld in 1983 that that provision — standing aloneor in conjunction with a related budgetary provi-sion — did not create a fundamental right:

The directive contained in Article VIII of theMaryland Constitution for the establishmentand maintenance of a thorough and efficient

statewide system of free public schools is notalone sufficient to elevate education to funda-mental status. Nor do the budgetary provi-sions of §52 of Article III of the Constitutionrequire that we declare that the right to educa-tion is fundamental. The right to an adequateeducation in Maryland is no more fundamen-tal than the right to personal security, to fireprotection, to welfare subsidies, to health careor like vital governmental services; accord-ingly, strict scrutiny is not the proper standardof review of the Maryland system of financingits public schools. 47

The Michigan appellate courts, after firstholding that Michigan’s “system” provision clearlybestowed on Michigan citizens a “fundamentalright to a free public education,” ultimately re-jected that position,holding in a series ofcases that “education isnot a fundamental rightunder Michigan’s Consti-tution of 1963" and con-cluding that “although afree public education is avitally important serviceprovided by this state,there is no fundamentalright to such an educationunder our constitution.”48

New Mexico held in1987 that its constitutionalprovision for a “uniform system of free publicschools sufficient for the education of, and opento, all the children” did not give rise to a contrac-tual relationship that would permit suits forbreach of contract.49 The supreme courts of Ohioand Oregon both declined to find a constitutionalright in their century-old provisions providing for,respectively, a “thorough and efficient” and a“uniform, and general” system of commonschools.50 Colorado continued to require theestablishment “as soon as practicable” [emphasisadded] of a “thorough and uniform system of freepublic schools” for “all” the children of the state,and the Colorado Supreme Court has expressly“refuse[d] … to venture into the realm of socialpolicy under the guise that there is a fundamentalright to education.”51

In contrast, Connecticut in 1977 found that a1965 amendment to its constitution that requiredthe legislature to “implement … by appropriate

legislation” the principle that “there shall alwaysbe free public … schools in the state” conferred ajudicially enforceable “fundamental right” toeducation that subjected legislative financingjudgments to “strict judicial scrutiny.”52

Other state courts simply reinterpretedlongstanding hortatory clauses as creating a“fundamental right” to education that permittedthe courts to impose new mandates on the legisla-tures never before imagined. The initial reticenceof the Pennsylvania courts in the 1970s to find a“fundamental right” in the state’s longstanding“thorough and efficient” constitutional provision,for example, was reversed in 1995 when the statesupreme court squarely held that “public educa-tion in Pennsylvania is a fundamental right.”53

New Jersey’s requirement for a “thorough andefficient system” of educa-tion for “all” children,which dated to the 1844constitution, was held bythat state’s supreme courtin 1975 to create funda-mental rights, enforce-able by the courts.54 So,too, with New York’sprovision for a “system offree common schools,wherein all the children ofthe state may be edu-cated,” a clause thatdated back to 1894

without any hint that judicially enforceable man-dates were created thereby.55

Similarly, the Delaware Supreme Court in 1980found a judicially enforceable right to educationin its 1897 constitutional provision providing for a“system of free public schools.”56 The Kentuckyhigh court in 1989 found a “fundamental right” inits 1891 constitutional directive to the state legisla-ture to provide “by appropriate legislation” for an“efficient system of common schools.”57 TheSupreme Judicial Court of Massachusetts and theSupreme Court of New Hampshire held in 1993and 1997, respectively, that the parallel provisionsof their respective constitutions (the 1780 Massa-chusetts Constitution and the 1784 New Hamp-shire Constitution) that made it the “duty” of thelegislature “to cherish the interests of literatureand the sciences, and all seminaries of them”conferred the right to an “adequate” educationdespite explicit acknowledgement that the word

8

The right to an adequate education is

no more fundamental than the right to

personal security, fire protection,

welfare subsidies, health care, or other

government services. Yet when one of

those services is deemed a fundamen-

tal right, courts claim for themselves

the ability to vindicate that right even

at the expense of other government

services – or by ordering the imposi-

tion of taxes not approved by the

people’s representatives.

“adequate” was not to be found in the constitu-tions at all.58 The Minnesota Supreme Court in1993 found a “fundamental right” to education inthat State’s 1857 constitutional provision describ-ing the duty of the legislature “to establish ageneral and uniform system of public schools.”59

The North Dakota Supreme Court found in 1992and 1994 first a “right” and then a “fundamentalright” in its 1889 provision for a “uniform system”“open to all children of the state.”60 The SouthCarolina Supreme Court likewise waited morethan a century to find in 1999 that its 1895 provi-sion providing for a “system of free public schoolsopen to all children” conferred the right “for eachchild to receive a minimally adequate education,”which it then proceeded to define ex nihilo.61

Tennessee’s high court found in 1993 that the“right to a free public education” was guaranteedto the children of the state in an 1870 provision“encourag[ing] support” of a “system” of educa-tion. It did so after discussing the opinions ofother state courts that had found a “fundamentalright” to education in their own, typically muchstronger, constitutional provisions.62 A Texasappellate court found in 1987 a “fundamentalright” in its 1876 provision to create an “efficientsystem of public free schools.”63 Washington’s1889 “ample provision for the education of allchildren” through a “general and uniform system”was held in 1975 to be a “fundamental constitu-tional right.”64 West Virginia’s 1872 requirementthat “the legislature shall provide, by general law,for a thorough and efficient system of freeschools” was interpreted in 1979 as conferring a“fundamental constitutional right,” obligating thelegislature to develop “certain high-quality state-wide educational standards.”65 And Wisconsin’s1848 provision for “as nearly uniform as possible”district schools, free to “all children,” was held in1976 to create a “fundamental right.”66

Perhaps most stark of all was the 1997 decisionof the Vermont Supreme Court in Brigham v.Vermont, interpreting a more than 200-year-oldconstitutional provision in the Vermont Constitu-tion of 1793:

Laws for the encouragement of virtue andprevention of vice and immorality ought to beconstantly kept in force, and duly executed;and a competent number of schools ought tobe maintained in each town unless the gen-eral assembly permits other provisions for theconvenient instruction of youth.67

Despite the clearly hortatory nature of thisprovision, the Vermont Supreme Court in 1997effectively treated the provision as creating ajudicially enforceable fundamental right, going sofar as to state that “[t]he contention that theframers intended these fundamental freedoms tobe mere aspirational ideals rather than bindingand enforceable obligations upon the statecannot be seriously maintained.”68

The route to finding a fundamental right inthese states, through judicial interpretation (onemight say judicial fiat), stands in stark contrast tothe route pursued in Florida, which in 2002amended its constitution to add a specific mandatefor class-size reduction to the state constitution.69

At one level, the right to pursue an educationhas always been viewed as fundamental in thiscountry. Article I, Section 23 of the WyomingConstitution of 1890 accurately conveys theprevailing sentiment: “The right of the citizens toopportunities for education should have practicalrecognition.”70 Yet the recent state court holdingshave understood the fundamental right to educa-tion at an entirely different level — not just theright to pursue the education of one’s choice, butthe “right” to have someone else (the government,which is to say taxpayers) pay for that education.

But how much education, at what cost, and forwhat purpose? Oklahoma’s provision certainlyprovides no guidance for the courts. Even statesthat have constitutional provisions which, on theirface, appear to impose qualitative mandates —“adequate,” “suitable,” “good,” “quality” or “high-quality” — hardly provide judicially manageablecriteria for answering such questions.71 Anyanswers are inherently policy judgments, notmatters that can be determined by the courts as ifthere were some scientifically correct standard tobe applied.

It should come as no surprise, therefore, thatcourts that begin with finding a constitutionallyprotected fundamental right to education quicklyprogress to making policy judgments aboutfunding levels and even curricular design. In Rosev. Council for Better Education, Inc., for example,the Kentucky Supreme Court set out the contoursof a curriculum necessary for a constitutionallyadequate education.72 Such a curriculum should,according to the Kentucky court, foster oral andwritten communication skills; provide knowledgeof different economic, political, and social sys-tems; foster mental and physical health; develop

9

an appreciation for the arts; and prepare studentsfor higher education or vocational training andultimately employment. The West Virginia Su-preme Court adopted a similar approach, deter-mining in Pauley v. Kelly that a curriculum foster-ing literacy, mathematical ability, knowledge ofgovernment, knowledge of one’s self, preparationfor a career or further education, recreationalactivities, the arts, and social ethics, was constitu-tionally mandated.73

The Maryland Supreme Court seems to haveunderstood that such judicial policy-making is anecessary consequence of court decisions con-verting aspirational goals into fundamentalrights. “The right to an adequate education inMaryland,” it correctly held in Hornbeck, “is nomore fundamental than the right to personalsecurity, to fire protection, to welfare subsidies, tohealth care or like vital governmental services.”74

Yet when only one of those fundamentally impor-tant government services is deemed a fundamen-tal right, courts claim for themselves the ability tovindicate that right even at the expense of othergovernment services (or, conversely, by orderingthe imposition of taxes not approved by thepeople’s representatives).

In 2003, for example, the Nevada SupremeCourt found that a core structural restriction onthe taxing power of the state legislature wasinterfering with the legislature’s ability to fund thestate’s $1.6 billion education budget, which thecourt found to be mandated by the state constitu-tion (even though the only requirement in the stateconstitution was that the state establish a schoolin each district for at least six months a year — amandate that would be accomplished at signifi-cantly less than the $1.6 billion budgeted foreducation). The court then issued a truly extraor-dinary opinion and writ of mandamus, subse-quently repudiated, directing the Nevada legisla-ture to consider tax-increase legislation by“simple majority rule” rather than by the two-thirds vote required by the state constitution.75

Similarly, the Kansas Supreme Court found in2005 that the largest education budget in thatstate’s history was not constitutionally adequateand so issued an order directing the legislature toappropriate additional funds to meet the court’sview of what would constitute the “suitable”funding mandated by the state constitution.76 Itdid so despite the fact that in Kansas, as else-where, the power to tax and spend the fiscal

resources of the state is assigned to the legisla-ture, not to the courts, and despite the fact that theconstitutional mandate that the “legislature shallprovide for intellectual, educational, vocationaland scientific improvement by establishing andmaintaining public schools” was expressly subjectto the discretionary caveat “which may be orga-nized and changed in such manner as may beprovided by law.”77

Admittedly, precisely defining that constitu-tional line may be a difficult task, but some stateeducational provisions provide a model of judi-cially enforceable clauses. As noted above,Florida’s constitution was amended in 2002 tospecify maximum class sizes, and Pennsylvania’s1874 constitution contained a requirement that thelegislature appropriate “at least one milliondollars each year” “for the maintenance andsupport of a thorough and efficient system ofpublic schools.”78

These provisions are specific enough to lendthemselves quite readily to judicial enforcementand also to the argument that, by enforcing suchprovisions, the courts are merely giving voice tothe higher mandate that the people have imposedthrough their state constitutions.

Indeterminate provisions such as Oklahoma’swhich simply direct the legislature to “establishand maintain a system of free public schoolswherein all the children of the state may beeducated” — and even those in other states whichmandate a “thorough and efficient system” whichshould be “suitable” or “adequate” — are simplynot susceptible to judicial enforcement of the kindpressed upon the court by the OEA and the otherplaintiffs. Whether or not decisions such as thoserecently issued by the supreme courts of Kansasand Nevada, made possible by fundamental rightdeterminations, result in the reallocation of stateresources or the imposition of additional taxes,the fact remains that considered policy judgmentsof state legislatures are being altered by thecourts on the basis of expansive interpretations ofwhat is, in most cases, clearly hortatory constitu-tional language. Quite apart from the threat toseparation of powers, such decisions alsothreaten the very essence of government byconsent and, collaterally, the benefits to begained from participatory democracy. The plain-tiffs’ attempt to lead the court down that constitu-tionally problematic path should be soundlyrejected. �

10

11

Endnotes1 Okla. Const., Art. XIII, § 1.2 Okla. Const., Art. I, § 5.3 Urging to some course of conduct or action; exhorting;

encouraging.4 See First Amended Petition ¶¶ 42, 48, 49, 55, and

59(h).5 See First Amended Petition ¶¶ 1, 13, 65, 72, 79, 87,

but this language simply is not found in the Oklahoma

Constitution. As initially adopted in 1907, Article XIII, § 6

of the Constitution required the Legislature to “provide

for a uniform system of text books for the common

schools of the state” (emphasis added), but the word

“uniform” was deleted in 1946 by voter initiative, and

the clause now requires a committee, appointed by the

Governor, “to prepare official multiple textbook lists from

which textbooks for use in such schools shall be

selected by committees composed of active educators

in the local school districts in a manner to be designated

by the Legislature.” Okla. Const. Art. XIII, § 6 (Amended

by State Question No. 318, Initiative Petition No. 228,

adopted at election held Nov. 5, 1946).6 Id. ¶¶ 65, 72, 79, 87, but that language is nowhere to

be found in the Constitution either.7 Id. ¶¶ 66, 73, 80, 88.8 Okla. Const., Art. XIII, § 1a (added by State Question

No. 315, Initiative Petition No. 225, adopted at election

held Nov. 5, 1946).9 Okla. Const., Art. X, § 32.10 Ibid.11 First Amended Petition ¶ 22.12 First Amended Petition ¶ 18.13 Mass. Const. of 1780, Part the Second, ch. V, § 2.14 Roberts v. City of Boston, 59 Mass. (5 Cush.) 198,

206-07 (1849).15 Ind. Const. of 1816, Art. IX, § 1; Tenn. Const. of 1834,

Art. XI, § 10; Ark. Const. of 1836, Art. VII, § 1; R.I.

Const. of 1842, Art. XII, § 1; Tex. Const. of 1845, Art. X,

§ 1.16 An Act to provide for the Government of the Territory

Northwest of the river Ohio, July 13, 1787, § III,

reprinted at 1 Stat. 50 n.(a), re-enacted Aug. 7, 1789, 1

Stat. 50.17 Ohio Const. of 1802, Art. VIII, § 3; Missouri Territorial

Government Act, § 14; Mo. Const. of 1820, Art. VI, § 1;

Miss. Const. of 1817, Art. VI, § 16; Miss. Const. of

1832, Art. VII, § 14; Ala. Const. of 1819, Art. VI; Ks.

Const. of 1855, Art. I, § 7; Nebr. Const. of 1866, Art. I, §

16; N.C. Const. of 1868, Art. IX, § 1.18 Penn. Const. of 1776, § 44; N.C. Const. of 1776, Art.

XLI; Vt. Const. of 1777, § 40; Ga. Const. of 1777, Art.

LIV.19 Vt. Const. of 1786, ch. II, § 38 (“schools ought to be

maintained in each town”) (emphasis added); Vt. Const.

of 1793, ch. II, § 41 (same); Penn. Const. of 1790, Art.

VII, § 1 (“the legislature shall” provide for schools “as

soon as conveniently may be”); Ga. Const. of 1798, Art.

IV, § 13 (same).20 See “North Carolina,” 19 The Encyclopedia Britannica

774 (11th ed., 1911).21 Ind. Const. of 1816, Art. IX, § 2.22 See Lewis v. Henley, 2 Ind. (2 Cart.) 332, 334 (1850).23 Mich. Const. of 1835, Art. X, § 3.24 Iowa Const. of 1846, Art. IX, § 3; Cal. Const. of 1849,

Art. IX, § 3.25 See First Amended Petition ¶ 38.26 18 Mich. 400, 418 (1869) (Campbell, J., dissenting).

Although Justice Campbell’s statement was in a

dissenting opinion, no member of the court took issue

with it; the holding by the majority was based on

statutory grounds, not on a disagreement with Justice

Campbell over the meaning of the referenced clause in

the state constitution. Workman, 18 Mich. At 409

(Cooley, C.J.).27 The Debates of the Constitutional Convention of the

State of Iowa, at 817 (W. Blair Lord, Reporter,

Davenport: Luse, Lane & Co., 1857) (statement of Mr.

Harris).

28 Iowa Const. of 1857, §§ 12, 15.29 N.J. Const. of 1844, Art. IV, § 7, pt. 6; Ohio Const. of

1851, Art. VI, § 2; Minn. Const. of 1857, Art. VIII, § 3;

Ore. Const. of 1857, Art. VIII, § 3.30 N.J. Const. of 1844, Art. IV, § 7, pt. 6.31 Pierce v. Union Dist. Sch. Trustees, 46 N.J. Law (17

Vroom) 76, 77-78 (1884).32 Wisc. Const. of 1848, Art. X.33 Ibid.34 The State ex rel. Comstock v. Joint School District No.

1 of Arcadia, 65 Wis. 631 (1886).35 Ibid. at 635-6.36 Penn. Const. of 1873, Art. X, § 1 (emphasis added).37 Okla. Const. of 1907, Art. XIII, § 1.38 Fla. Const. of 1968, Art. IX, § 1; Scavella v. School

Board of Dade County, 363 So.2d 1095 (Fla. 1978).39 See Fla. Const. of 1968, Art. IX, § 1, as amended.40 Ga. Const. of 1976, Art. VIII, § 1, ¶ 1.41 Crim v. McWhorter, 252 S.E.2d 421 (Ga. 1979);

McDaniel v. Thomas, 285 S.E.2d 156, 167 (Ga. 1981).42 Idaho Const. of 1890, Art. IX, § 1.43 Thompson v. Engelking, 537 P.2d 635, 648 (Idaho

1975).44 Committee for Education Rights v. Edgar. 672 N.E.2d

1178, 1194-95 (Ill. 1996).45 Me. Const. of 1820, Art. VIII, § 1.46 Md. Const. of 1867, Art. VII, § 1.47 Hornbeck v. Somerset County Bd. of Ed., 458 A.2d

758, 786 (Md. 1983).48 See Mich. Const. of 1963, Art. VIII, § 2; Lintz v. Aplene

Public Schools of Alpena and Presque Isle Counties, 325

N.W.2d 803, 805 (Mich. Ct. App. 1982); East Jackson

Public Schools v. State, 348 N.W.2d 303, 305-06 (Mich.

Ct. App. 1984); Palmer v. Bloomfield Hills Bd. of Ed., 417

N.W.2d 505, 506 (Mich. Ct. App. 1987); Feaster v.

Portage Public Schools, 534 N.W.2d 242, 246 (Mich. Ct.

App. 1995).49 Rubio by and through Rubio v. Carlsbad Municipal Sch.

Dist., 744 P.2d 919, 921 (N.M. Ct. App. 1987).50 Board of Education of Cincinnati v. Walter, 390 N.E.2d

813 (Ohio 1979); Ohio Const. of 1851, Art. VI, § 2; Olsen

v. State, 554 P.2d 139, 144 (Ore. 1976); Ore. Const. of

1857, Art. VIII, § 3.51 Colo. Const. of 1876, Art. IX, § 2; Lujan v. Colorado

State Bd. of Ed., 649 P.2d 1005, 1017-18 (Colo. 1982).52 Horton v. Meskill, 376 A.2d 359, 374 (Ct. 1977); Conn.

Const. of 1965, Art. Eighth, § 1.53 School District of Wilkinsburg v. Wilkinsburg Ed.

Ass’n, 667 A.2d 5, 9 (Pa. 1995); Penn. Const. of 1967,

Art. III, §14; compare O’Leary v. Wisecup, 364 A.2d 770,

773 (Pa. Commw. Ct. 1976) (“A public education . . . is

not a fundamental right”); Lisa H. v. State Bd. of Ed., 447

A.2d 669, 673 (Pa. Commw. Ct. 1982) (same).54 Robinson v. Cahill, 351 A.2d 713, 720 (N.J. 1975).55 See Matter of Wagner, 383 N.Y.S.2d 849 (N.Y. Fam. Ct.

1976) (treating the clause as creating judicially

enforceable rights).56 Plitt v. Madden, 413 A.2d 867 (Del. 1980); Del. Const.

of 1897, Art. X, § 1.57 Rose v. Council for Better Education, Inc., 790 S.W.2d

186, 206 (Ky. 1989); Ky. Const. of 1891, § 183.58 McDuffy v. Secretary of Executive Ofc. of Ed., 615

N.E.2d 516 (Mass. 1993); Mass. Const. of 1780, part the

second, ch. V, § 2; Claremont School District v.

Governor, 703 A.2d 1353, 1359 (N.H. 1997); N.H. Const.

of 1784, Art. 83.59 Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993);

Minn. Const. of 1857, Art. XIII, § 1.60 Lapp v. Reeder Public Sch. Dist. No. 3, 491 N.W.2d 65,

67 (N.D. 1992); Bismarck Public Sch. Dist. No. 1 v.

State, 511 N.W.2d 247 (N.D. 1994); N.D. Const. of 1889,

Art. VIII, § 1.61 Abbeville County Sch. Dist. v. South Carolina, 515

S.E.2d 535, 540 (S.C. 1999); S.C. Const. of 1895, Art. XI,

§ 3.62 Tennessee-Small Sch. Dist. v. McWherter, 851 S.W.2d

139, 151 (Tenn. 1993); Tenn. Const. of 1870, Art. XI, §

12.

63 Stout v. Grand Prairie Ind. Sch. Dist., 733 S.W.2d 290,

294 (Tex. App. 1987); Tex. Const. of 1876, Art. VII, § 1.64 Darrin v. Gould, 540 P.2d 882, 888 (Wash. 1975);

Wash. Const. of 1889, Art. IX, § 1.65 Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979);

W.Va. Const. of 1872, Art. XII, § 1.66 Buse v. Smith, 247 N.W.2d 141, 149 (Wis. 1976);

Wis. Const. of 1848, Art. X, § 3.67 Vt. Const. of 1793, ch. II, § 68.68 Brigham v. Vermont, 692 A.2d, at 394.69 See Fla. Const. of 1868, Art. IX, § 1 (as amended

2002).70 Wyo. Const., Art. I, sec. 2371 See Ga. Const. of 1868, Art. VIII, § 1; Fla. Const. of

1968, Art. IX, § 1; Ark. Const. of 1874, Art. XIV, § 1; Ks.

Const. of 1859, Art. VI, § 6(b) (as amended 1966); Mt.

Const. of 1972, Art. X, § 1; Ill. Const. of 1970, Art. X, §

1; Va. Const. of 1971, Art. VII, § 1.72 Rose v. Council for Better Education, Inc., 790 S.W.2d

186, 215 (Ky. 1989).73 Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1989).74 Hornbeck, 458 A.2d 758, 786 (Md. 1983).75 Guinn v. Legislature of State of Nevada, 71 P. 3d 1269,

1275 (Nev. 2003), clarified on denial of rehearing, 76

P.3d 22 (Nev. 2003), overruled by Nevadans for Nevada

v. Beers, 142 P.3d 339, 348 (Nev. 2006).76 Montoy v. Kansas, 120 P.3d 306 (Kan. 2005); see also

Ks. Const., Art. VI, § 6(b) (“The legislature shall make

suitable provision for finance of the educational interests

of the state”).77 Ks. Const., Art. VI, § 1.78 Fla. Const. of 1968, Art. IX, § 1, as amended. Penn.

Constit. of 1874.

Cases

Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d

535 (S.C. 1999)

Bismarck Public Sch. Dist. No. 1 v. State, 511 N.W.2d

247 (N.D. 1994)

Board of Education of Cincinnati v. Walter, 390 N.E.2d

813 (Ohio 1979)

Brigham v. Vermont, 692 A.2d 384 (Vt. 1997)

Buse v. Smith, 247 N.W.2d 141 (Wis. 1976)

Claremont School District v. Governor, 703 A.2d 1353

(N.H. 1997)

Committee for Education Rights v. Edgar, 672 N.E.2d

1178 (Ill. 1996)

Crim v. McWhorter, 252 S.E.2d 421 (Ga. 1979)

Darrin v. Gould, 540 P.2d 882 (Wash. 1975)

East Jackson Public Schools v. State, 348 N.W.2d 303

(Mich. Ct. App. 1984)

Feaster v. Portage Public Schools, 534 N.W.2d 242

(Mich. Ct. App. 1995)

Guinn v. Legislature of State of Nevada, 71 P.3d 1269

(Nev. 2003), clarified on denial of rehearing, 76 P.3d 22

(Nev. 2003), overruled by Nevadans for Nevada v. Beers,

142 P.3d 339 (Nev. 2006)

Hornbeck v. Somerset County Bd. of Ed., 458 A.2d 758

(Md. 1983)

Horton v. Meskill, 376 A.2d 359 (Ct. 1977)

Lapp v. Reeder Public Sch. Dist. No. 3, 491 N.W.2d 65

(N.D. 1992)

Lewis v. Henley, 2 Ind. (2 Cart.) 332 (1850)

Lintz v. Aplene Public Schools of Alpena and Presque Isle

Counties, 325 N.W.2d 803 (Mich. Ct. App. 1982)

Lisa H. v. State Bd. of Ed., 447 A.2d 669 (Pa. Commw.

Ct. 1982)

Lujan v. Colorado State Bd. of Ed., 649 P.2d 1005 (Colo.

1982)

Matter of Wagner, 383 N.Y.S.2d 849 (N.Y. Fam. Ct. 1976)

McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981)

McDuffy v. Secretary of Executive Ofc. of Ed., 615

N.E.2d 516 (Mass. 1993)

Montoy v. Kansas, 120 P.3d 306 (Kan. 2005)

O’Leary v. Wisecup, 364 A.2d 770 (Pa. Commw. Ct.

1976)

Olsen v. State, 554 P.2d 139 (Ore. 1976)

Palmer v. Bloomfield Hills Bd. of Ed., 417 N.W.2d 505

Blake ArnoldOklahoma City

Mary Lou AveryOklahoma City

Lee J. BaxterLawton

Steve W. BeebeDuncan

G.T. BlankenshipOklahoma City

John A. BrockTulsa

David R. Brown, M.D.Oklahoma City

Aaron BurlesonAltus

Paul A. CoxOklahoma City

William FlanaganClaremore

Josephine FreedeOklahoma City

Kent FrizzellClaremore

John T. HanesOklahoma City

Ralph HarveyOklahoma City

John A. Henry, IIIOklahoma City

Paul H. HitchGuymon

Henry F. KaneBartlesville

Robert KaneTulsa

Tom H. McCasland, IIIDuncan

David McLaughlinEnid

Lew MeibergenEnid

Ronald L. MercerBethany

Lloyd Noble, IITulsa

Robert E. PattersonTulsa

Russell M. PerryEdmond

Patrick RooneyOklahoma City

Melissa SandeferNorman

Richard SiasOklahoma City

John SnodgrassArdmore

Charles SublettTulsa

Robert SullivanTulsa

Lew WardEnid

Gary W. Wilson, M.D.Edmond

Daryl WoodardTulsa

Ronald L. Moomaw, Ph.D.Oklahoma State University

Ann Nalley, Ph.D.Cameron University

Bruce Newman, Ph.D.Western Oklahoma State College

Stafford North, Ph.D.Oklahoma Christian University

Rex J. Pjesky, Ph.D.Northeastern State University

Paul A. Rahe, Ph.D.University of Tulsa

Michael Scaperlanda, J.D.University of Oklahoma

Andrew C. Spiropoulos, J.D.Oklahoma City University

OCPA Adjunct Scholars

Will Clark, Ph.D.University of Oklahoma

David Deming, Ph.D.University of Oklahoma

Bobbie L. Foote, Ph.D.University of Oklahoma (Ret.)

E. Scott Henley, Ph.D., J.D.Oklahoma City University

James E. Hibdon, Ph.D.University of Oklahoma (Ret.)

Russell W. Jones, Ph.D.University of Central Oklahoma

Andrew W. Lester, J.D.Oklahoma City University (Adjunct)

David L. May, Ph.D.Oklahoma City University

OCPA FellowsSteven J. Anderson, CPA

Research Fellow

J. Rufus Fears, Ph.D.Dr. David and Ann Brown Distinguished Fellow

for Freedom Enhancement

OCPA Legal CounselDeBee Gilchrist � Oklahoma City

OCPA StaffBrett A. Magbee / VP for Operations

Brandon Dutcher / VP for PolicyMargaret Ann Hoenig / Director of Development

Brian Hobbs / Director of Marketing and Public AffairsMary Ferguson / Executive Assistant and Event Coordinator

Daniel J. ZaloudekTulsa

The Oklahoma Council of Public Affairs, Inc. is an

independent, nonprofit, nonpartisan research and

educational organization devoted to improving the

quality of life for all Oklahomans by promoting sound

solutions to state and local policy questions. For more

information on this policy paper or other OCPA

publications, please contact:

1401 N. Lincoln Boulevard

Oklahoma City, OK 73104

(405) 602-1667 • FAX: (405) 602-1238

www.ocpathink.org • ocpa@ocpathink.org

OCPA Board of Trustees(Mich. Ct. App. 1987)

Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979)

Pierce v. Union Dist. Sch. Trustees, 46 N.J. Law (17

Vroom) 76 (1884)

Plitt v. Madden, 413 A.2d 867 (Del. 1980)

Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849)

Robinson v. Cahill, 351 A.2d 713 (N.J. 1975)

Rose v. Council for Better Education, Inc., 790 S.W.2d

186 (Ky. 1989)

Rubio by and through Rubio v. Carlsbad Municipal Sch.

Dist., 744 P.2d 919 (N.M. Ct. App. 1987)

Scavella v. School Board of Dade County, 363 So.2d

1095 (Fla. 1978)

School District of Wilkinsburg v. Wilkinsburg Ed. Ass’n,

667 A.2d 5 (Pa. 1995)

Skeen v. State, 505 N.W.2d 299 (Minn. 1993)

Stout v. Grand Prairie Ind. Sch. Dist., 733 S.W.2d 290

(Tex. App. 1987)

Tennessee-Small Sch. Dist. v. McWherter, 851 S.W.2d

139 (Tenn. 1993)

The People ex rel. Workman v. The Board of Education of

Detroit18 Mich. 400 (1869)

The State ex rel. Comstock v. Joint School District No. 1

of Arcadia, 65 Wis. 631 (1886)

Thompson v. Engelking, 537 P.2d 635 (Idaho 1975)

Statutes and Constitutional Provisions

Ala. Const. of 1819, Art. VI

An Act to provide for the Government of the Territory

Northwest of the river Ohio, July 13, 1787, Sec. III,

reprinted at 1 Stat. 50 n. a, re-enacted Aug. 7, 1789,

1 Stat. 50 (Northwest Ordinance)

Ark. Const. of 1836, Art. VII, § 1

Ark. Const. of 1874, Art. XIV, § 1

Cal. Const. of 1849, Art. IX, § 3

Colo. Const. of 1876, Art. IX, § 2

Conn. Const. of 1965, Art. Eighth, § 1

Del. Const. of 1897, Art. X, § 1

Fla. Const. of 1968, Art. IX, § 1

Fla. Const. of 1968, Art. IX, § 1, as amended

Ga. Const. of 1777, Art. LIV

Ga. Const. of 1798, Art. IV, § 13

Ga. Const. of 1868, Art. VIII, § 1

Ga. Const. of 1976, Art. VIII, § 1, par. 1

Idaho Const. of 1890, Art. IX, § 1

Ill. Const. of 1970, Art. X, § 1

Ind. Const. of 1816, Art. IX, § 1

Ind. Const. of 1816, Art. IX, § 2

Iowa Const. of 1846, Art. IX, § 3

Iowa Const. of 1857, § 12

Iowa Const. of 1857, § 15

Ks. Const. of 1855, Art. I, § 7

Ks. Const. of 1859, Art. VI, § 6(b) (as amended 1966)

Ks. Const., Art. VI, § 1

Ks. Const., Art. VI, § 6(b)

Ky. Const. of 1891, § 183

Mass. Const. of 1780, Part the Second, ch. V, § 2

Md. Const. of 1867, Art. VII, § 1

Me. Const. of 1820, Art. VIII, § 1

Mich. Const. of 1835, Art. X, § 3

Mich. Const. of 1963, Art. VIII, § 2

Minn. Const. of 1857, Art. VIII, § 3

Minn. Const. of 1857, Art. XIII, § 1

Miss. Const. of 1817, Art. VI, § 16

Miss. Const. of 1832, Art. VII, § 14

Missouri Territorial Government Act, § 14

Mo. Const. of 1820, Art. VI, § 1

Mt. Const. of 1972, Art. X, § 1

N.C. Const. of 1776, Art. XLI

N.C. Const. of 1868, Art. IX, § 1

N.D. Const. of 1889, Art. VIII, § 1

N.H. Const. of 1784, Art. 83

N.J. Const. of 1844, Art. IV, § 7, pt. 6

Nebr. Const. of 1866, Art. I, § 16

Ohio Const. of 1802, Art. VIII, § 3

Ohio Const. of 1851, Art. VI, § 2

Okla. Const., Art. I, § 5

Okla. Const., Art. X, § 32

Okla. Const., Art. XIII, § 1

Okla. Const., Art. XIII, § 1a

Okla. Const., Art. XIII, § 6

Okla. State Question No. 315, Initiative Petition No. 225,

adopted at election held Nov. 5, 1946

Okla. State Question No. 318, Initiative Petition No. 228,

adopted at election held Nov. 5, 1946

Okla. State Question No. 526, Legislative Referendum No.

220, adopted at election held Nov. 7, 1978

Ore. Const. of 1857, Art. VIII, § 3

Penn. Const. of 1776, § 44

Penn. Const. of 1790, Art. VII, § 1

Penn. Const. of 1873, Art. X, § 1

Penn. Const. of 1967, Art. III, §14

R.I. Const. of 1842, Art. XII, § 1

S.C. Const. of 1895, Art. XI, § 3

Tenn. Const. of 1834, Art. XI, § 10

Tenn. Const. of 1870, Art. XI, § 12

Tex. Const. of 1845, Art. X, § 1

Tex. Const. of 1876, Art. VII, § 1

Va. Const. of 1971, Art. VII, § 1

Vt. Const. of 1777, § 40

Vt. Const. of 1786, ch. II, § 38

Vt. Const. of 1793, ch. II, § 41

Vt. Const. of 1793, ch. II, § 68

W.Va. Const. of 1872, Art. XII, § 1

Wash. Const. of 1889, Art. IX, § 1

Wisc. Const. of 1848, Art. X

Wyo. Const., Art. I, § 23

Other Authorities

“North Carolina,” 19 The Encyclopedia Britannica 774

(11th ed., 1911).

Eastman, John C., “Adequacy and the Rights Revolution:

Reinterpreting the Education Clauses in State

Constitutions,” in Martin West et al., eds., School

Money Trials (Brookings Institution Press 2006).

Eastman, John C., “When Did Education Become a Civil

Right? An Assessment of State Constitutional

Provisions for Education, 1776-1900,” 42 Am. J. Leg.

Hist. 1 (January 1998).

The Debates of the Constitutional Convention of the State

of Iowa, at 817 (W. Blair Lord, Reporter, Davenport:

Luse, Lane & Co., 1857) (statement of Mr. Harris).

Dr. John C. Eastman is a professor of law at the Chapman University School

of Law, where he also serves as director of The Claremont Institute Center for

Constitutional Jurisprudence. Prior to joining the Chapman Law faculty in

August 1999, he served as a law clerk with Justice Clarence Thomas at the

Supreme Court of the United States and with Judge J. Michael Luttig at the

United States Court of Appeals for the Fourth Circuit. After his clerkships, Dr.

Eastman practiced with the national law firm of Kirkland & Ellis, specializing in

major civil and constitutional litigation at both the trial and appellate levels.

Dr. Eastman earned his J.D. from the University of Chicago Law School, where

he graduated with high honors in 1995. He was selected for membership in the

Order of the Coif and was a member of the Law Review, a Bradley Fellow for

Research in Constitutional History, and an Olin Fellow in Law & Economics. Dr.

Eastman also has a Ph.D. and M.A. in Government from the Claremont

Graduate School, with fields of concentration in Political Philosophy, American

Government, Constitutional Law, and International Relations. He has a B.A. in

Politics and Economics from the University of Dallas.