The Role of Courts

The controversy over school funding in Kansas is offering lessons to the rest of the country.

Writing in the Wall Street Journal (subscription required) two law professors at New York University criticize that state’s supreme court for its rulings that the New York legislature must spend another $13.9 billion for New York City schools.

Ross Sandler and David Schoenbrod write, in part:

Contrary to a widespread misconception, courts have no power to force a state legislature to appropriate money . . . . [W]hat was pulled off in Campaign for Fiscal Equity, Inc. v. New York seems to be part of a pattern. Last July in Kansas a similarly timed judicial decision prodded its state legislature to pony up a hefty increase in school funding.

Similar things are happening in Texas and other states. The New York court used a rationale similar to that employed by the Kansas court–legislators are not providing students with a suitable education. As the professors point out, however, a significant question is not whether students are getting a good education–many aren’t–but what do to about it. (They leave aside the question of whether “suitable” refers to a procedure for funding schools, or educational outcomes.)

The article mentions the possible solutions for improving educational outcomes–more money, vouchers, etc. It proceeds into the knotty question of separation of powers:

Most people assume that the legislature must cough up the cash because courts have the power of contempt, which allows them to punish those who disobey their orders. In the school case, however, the courts can’t punish anyone. State legislators are not defendants in this case, and even if they were, they can’t be punished because they are immune from suit. The state’s treasury is immune because the court lacks authority to appropriate more funds and can’t fine the state for the legislature’s unwillingness to do so. The remaining defendants are officials, including Gov. George Pataki. They can’t be held in contempt for failing to produce the money because they are powerless under the state constitution to spend money the legislature has not appropriated.

We wonder if the same could be said of Kansas. Legislators, as we recall, were not allowed to make a presentation to the court, implying that they were, in fact, not defendants.

Sandler and Schoenbrod mention the cruelty of the equality logic, which is not at play in Kansas:

The New Jersey court argued that its job was to vindicate the constitutional right to equal spending and, if the legislature would not achieve that result by increasing spending, the court would get it done by reducing spending for everyone to zero. The argument has a certain cold logic, but it’s a nonstarter in New York and Kansas, where the right being enforced is to a sound basic education.

If a New York court closed the schools, it would be the judges who violated the state constitutional right, by denying any education to all students. That would undercut the only leg the court has to stand on, the rule of law. Nonetheless, when the Kansas court raised the question of whether it should close the schools, the threat was enough to pry some money from the legislature

The essay closes with the fundamentals of constitutional governance–principles that seem to escape the attention of courts across the country:

When courts claim that they have power to make legislatures spend more to vindicate a constitutional right to basic education, they tamper with a basic tenet of our democracy — no taxation without representation. Voters are entitled to hold political officials accountable for the taxes they levy, the money they spend, and the education they produce.

If you think that schools need more money, argue that position. In the election season.

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