by Jay Willis
This week, the Harvard Law & Policy Review published Aaron Tang’s excellent article on the landscape of litigation over public school funding. Tang briefly provides a snapshot of the history of such litigation, before highlighting some of its challenges. As the author notes, the major problem with recent suits challenging the adequacy of state educational funding is that a court, if it finds in favor of the plaintiffs, must then necessarily define what level of school funding is “adequate.” Determining appropriate thresholds for a policy decision as nuanced and complex as school funding is not a task traditionally left to the judiciary, and legislatures in Ohio, among other states, have bristled at courts’ attempts to insert themselves into the policy-making process.
Tang outlines the latest legal theory that plaintiffs will soon test in California, which is, in part, meant to sooth judicial fears of encroaching on legislatures’ prerogatives. The “broken system” theory alleges that the state’s education funding has become “so dysfunctional, so irrational, and so insufficient that it can no longer be considered a ‘system’…” Advanced by the plaintiffs in Robles-Wong v. California (see the plaintiffs’ web site for more information about the suit), the theory – in theory – requires the court to examine the sufficiency of the legislature’s decision-making process, rather than the underlying funding scheme itself. Tang argues that such a shift may be more appealing to judges hesitant about stepping on lawmakers’ toes. He predicts that plaintiffs are likely to assert such arguments alongside more traditional “adequacy” theories in future school-funding suits.
As Tang also notes, though, the current economic climate may play a significant role in judges’ perceptions of either the process of creating school-funding schemes or the design of the schemes themselves, particularly in California. The state’s school-finance system (succinctly outlined here), framed by Proposition 13, relies much more on state-level funding than on revenue from local property taxes. Given California’s budget crunch, it comes as little surprise that Superintendent of Public Education Tom Torlakson recently declared California schools to be in a “state of emergency.”
Even if a California court is sympathetic to the plaintiffs’ theory in Robles-Wong, it will be difficult for it to compel the state legislature, which the court knows to be stuck between a budget crunch and Prop 13, to suddenly conjure up a sensible, coherent (and adequate) funding scheme. It will be interesting to see if the legislature preempts the prospect of such a daunting order by reforming or reshaping the meaning of the state constitution’s school “system” through statute. If the court does find in the plaintiffs’ favor, add the overhaul of the state’s education funding system to the long list of challenges that California lawmakers could face in an already cash-strapped environment.