Friday, September 29, 2017

Pennsylvania Supreme Court Makes Momentous Leap Forward for School Funding: Does It Also Signal a New Trend?

On three prior occasions, the Pennsylvania Supreme Court has been asked to consider the possibility that school funding and other inequities in the state violate the state constitutional provision that the General Assembly "provide for the maintenance and support of a thorough and efficient system of public education.”  Each time the Supreme Court has said no.  The net result for students is one of the most arcane school funding systems in the nation.  For a long time, the state did not even have a school funding formula, instead funding schools randomly, inequitably, and inadequately.

Yesterday, in William Penn School District v. Pennsylvania, the court entered a new era and took the position of most other state supreme courts--that it had the authority and duty to determine whether "the General Assembly imposes a classification whereunder distribution of state funds results in widespread deprivations in economically disadvantaged districts of the resources necessary to attain a constitutionally adequate education."  It added: "We cannot avoid our responsibility to monitor the General Assembly’s efforts in service of its mandate and to measure those effects against the constitutional imperative, ensuring that non-constitutional considerations never prevail over that mandate."

As momentous as this step is for the children of Pennsylvania, the logic is over 200 years old.  The Pennsylvania constitution sets out a specific legislative duty in education.  That basic fact implicates the courts as well.  

It is settled beyond peradventure that constitutional promises must be kept. Since Marbury v. Madison, 5 U.S. 137 (1803), it has been well-established that the separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements. That same separation sometimes demands that courts leave matters exclusively to the political branches. Nonetheless, “[t]he idea that any legislature . . . can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions.” Smyth v. Ames, 169 U.S. 466, 527 (1898). Thus, we must be skeptical of calls to abstain from a given constitutional dispute. We hold that this is not a case that requires such abstention.

The decision also serves as an important counterpoint to recent trends among the courts.  As I detail in Averting Educational Crises, the Great Recession may have motivated several state supreme courts to give legislatures a pass for the massive education cuts they have imposed over the past decade.  There were no direct reversal of prior precedent but a seeming unwillingness to enforce it.  This new decision in Pennsylvania, particularly given the negative precedent in the state, may be reason to hope that the troublesome trend of the past decade is nearing a trend.  For now, it is too early to project.  Regardless, as I emphasize in the article, the ebb and flow of constitutional enforcement is a dangerous game for the judiciary to play--one that will not serve education or the general institutional authority of the courts well in the long run.  As I argue here, courts and constitutional enforcement in education are best served by prompting state legislatures to plan for educational crisis--because they will necessarily occur--not by giving states a pass when they do occur.

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