HLPR Blog: Notice and Comment

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.

Anthony Kammer

Earlier this week, the Financial Crisis Inquiry Commission (FCIC) issued a report of its inquiry into the causes of the recent financial crisis. Modeled after the bipartisan 9/11 Commission created to examine the background of the 9/11 attacks, the FCIC was established by Congress in 2009 as a bipartisan panel designed to investigate the causes of the country’s recent financial crisis. According to the Commission’s report, critical to avoiding a repeat of the crisis is rejecting “the refrain that no one could have seen this coming and thus nothing could have been done.”

Although the Commission was somewhat split along partisan lines, the majority of the members agreed that the crisis was “avoidable” and identified a number of the entities most responsible. The following are the headings summarizing the Commission’s findings and conclusions:

[Read more…] about Coming to Terms with the Crisis

HLPR blog editorial staff 

Few topics have received greater recent national attention than education, evidenced by the prominent role the theme played in President Obama’s State of the Union Address.   It’s not surprising, then, that education has also been a popular topic amongst HLPR bloggers:

[Read more…] about HLPR Blog Roundup: Hot Topics in Education

Marshall Thompson

Recent court challenges to the Defense of Marriage Act (DOMA) have raised questions about the rational basis for the law. To combat the “threat” of legalized gay marriage in Hawaii, Congress passed DOMA in 1996. Among other things, DOMA forbids the federal government from recognizing state-sanctioned same-sex marriages. At the time, the House Record listed four governmental interests:

[Read more…] about Is there a rational basis for the Defense of Marriage Act?

Zach Luck

Imagine you are in charge of an enterprise that has to process over 140 million forms each year.  Each form, on paper, costs about $2.87 to process.  Wait, you say, it is the 21st century and computers might not be a passing fad — shouldn’t there be a way to process the form electronically at some lower cost?  Very astute.  It turns out that there is, and it will cost you about 35 cents to process each electronic version.

Obviously, you would decide that it should be entirely free to mail in the forms on paper and cost money to submit electronically, right?  (Oh, with an important exception that turning in the form electronically must be free for anyone who makes less than around $58,000 a year.)

[Read more…] about More Fun with Taxes

Michael Stephan 

Last week, the Ninth Circuit reversed an immigration court decision that denied political asylum to a Chinese immigrant who claimed to have been persecuted in China for practicing Christianity.  The immigrant, Lei Li, was initially denied asylum relief because the Immigration Judge found Li’s story of persecution to be not credible.  The reason for the IJ’s adverse credibility finding: Li thought that Thanksgiving was a Christian holiday.

The IJ, believing Thanksgiving to be not a Christian holiday, viewed Li’s understanding of Thanksgiving as an indication that Li was not really a Christian.  Accordingly, the IJ believed that Li must have fabricated his story of persecution, and Li’s asylum petition was denied.

The Ninth Circuit properly reversed in Li v. Holder, holding that “an IJ’s perception of a petitioner’s ignorance of religious doctrine is not a proper basis for an adverse credibility finding.”   Li’s case was remanded for further proceedings in immigration court.

Interestingly, the Ninth Circuit pointed out that historical American figures including George Washington and Abraham Lincoln saw Thanksgiving as a Christian holiday, so it’s not even clear that Li’s understanding of Thanksgiving was incorrect.  More importantly, however, is the Ninth Circuit’s clear directive that an IJ cannot simply deny relief if it thinks the immigrant-petitioner lacks adequate knowledge about his claimed religion.  That is, so-called “Bible quizzes” and other religious tests are improper bases of credibility determinations in the immigration context.

Immigration cases make up about 30% of the Ninth Circuit’s total caseload, and many (if not most) of those cases involve claims of religious persecution.  Various forms and intensities of Bible quizzes have been used in the past to ferret out the incredible petitioners from the credible ones (see, e.g., this 2008 case, Cosa v. Mukasey), and the Li court’s bright-line prohibition on such quizzes should clarify, at long last, that they are valueless.  The Li decision, therefore, constitutes a powerful precedent that protects the religious beliefs—and religious ignorance—of immigrants seeking removal relief.