Who makes education policy-the legislature or the courts?
by David N. Mayer
September 4, 1998
Suppose the U.S. Supreme Court, citing the constitutional provision
empowering Congress to "provide for the Common Defence," rules that Congress
is violating the Constitution by failing to fund a satellite-based missile
defense system. The Court then orders Congress to allocate money for that
purpose and gives it one year in which to do so.
Most people would regard such a ruling as absurd- a flagrant intrusion by
one branch of government upon the prerogatives of another branch. But the
Ohio Supreme Court has done the same thing on the subject of education
funding.
Just as the federal Constitution empowers Congress to "provide for the
common Defence," the Ohio Constitution empowers the General Assembly to provide
for a "thorough and efficient" system of public schools. In its decision last
year in DeRolph v. State, the Ohio Supreme Court ruled that it, not the
General Assembly, was the final arbiter of just how that power should be
exercised.
As a result, Ohio now faces a bizarre scenario in which a single rural
trial judge-Linton D. Lewis, Jr., of the Perry County Common Pleas Court-sits
in judgment on the policy decisions of the General Assembly and of the
voters who elected it. Those voters made their preferences known this past Spring,
when they overwhelmingly rejected a proposed sales tax increase to fund public
schools. The voters' message is clear: whatever the problem with
public schooling, throwing more money at it is not the answer. But now, in
post-DeRolph Ohio, Judge Lewis has the power to overrule everyone else and
order that more money be thrown at the problem anyway, no matter what the
voters say.
Restraining abuses by runaway majorities, of course, is in part what
constitutions are for. The power of judicial review-the power to nullify
laws that conflict with the Constitution-is how the promise of individual
rights is fulfilled. A long list of "shall not's" in the Bill of Rights, in the
14th Amendment, and in parallel provisions of the Ohio Constitution equip the
courts to perform that function. But that power is not unlimited. It is
a power to strike down enactments, not to require enactments. It is a
power to prevent, not to compel. Recognizing these limitations, courts
traditionally refrain from deciding political questions.
DeRolph flies in the face of these bedrock principles. In his opinion
for the DeRolph majority, Justice Francis Sweeney concluded that Ohio's
public school financing system violates that provision of the Ohio Constitution
that says "the General Assembly shall make such provisions by taxation, or
otherwise, as . . . will secure a thorough and efficient system of common
schools throughout the State." The majority simply assumed that the
"thorough and efficient" clause is a mandate upon the General Assembly to
provide a particular kind of public school system. But "thorough and
efficient" is not a rights provision; it is a power provision. It
authorizes the General Assembly to levy taxes or otherwise finance a statewide
school system. It merely identifies the purpose for which the legislature may
levy taxes. It is no more a mandate upon the legislature than is the "Common
Defence" provision in the U.S. Constitution.
The framers of the Ohio Constitution, at the 1851 constitutional
convention, never anticipated that the courts would make school-funding policy.
Simeon Nash, a Gallipolis lawyer, spoke for the majority of the delegates when
he said, "[l]eave such questions to the General Assembly, and that body will
act under the influence of that general sentiment." Nash reasoned that the
level of public spending on education "will practically be controlled by public
opinion," for legislation against public opinion would be "powerless" and
ultimately "sink" the constitution "and the system altogether."
What could the future hold for Ohio? In 1997 Vermont's Supreme Court
ruled that its local property tax system for funding schools, which dated back
to Ethan Allen's days, violated the state constitution, which also
originated in that period. State lawmakers responded with Act 60, a "Robin Hood"
program which took money from well-funded districts and diverted it to poorer
ones. The result of such forced equalization has been class warfare, with
Vermonters divided into two opposing camps: the poorer "receiving towns," who
benefit from the new regime, and the wealthier "gold towns," who must share their
tax bounty and drastically cut their own schools. Not surprisingly,
Vermonters have begun to rebel. At least one town has closed its public school,
and so far nearly a half-dozen towns have threatened to defy the law and
withhold tax money from the state.
The perils of judicially-mandated school funding reform go well beyond
the schools themselves. If courts can force the legislature's hand and
dictate taxing-and-spending policy, then any special interest that fails to get
what it wants from the General Assembly can achieve its goals instead by
framing its preferences in constitutional terms.
The future of Ohio's public school system isn't the only thing at stake
in the upcoming court decisions and the General Assembly's response to them.
Also at stake is the future of constitutional law and of representative
democracy in Ohio.
David N. Mayer is Professor of Law and History at Capital University in
Columbus, Ohio and is a member of the Board of Research Advisors for The
Buckeye Institute for Public Policy Solutions, an Ohio-based, nonprofit,
nonpartisan research and education organization of professors and
scholars.
Permission to reprint, in whole or in part, with or without notes, is
granted if credit is given to the authors and the Buckeye Institute.
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Hard copy with notes available upon request.