Appropriation by Litigation Update

December 18, 2008

In a Background Paper published last year, we considered the long-term effects of judicial mandates requiring state legislatures to “fix” allegedly inadequate education systems. Billions of dollars in taxpayer money have been ordered spent by judges, and in a few instances judges have ordered tax increases without legislative or public vote.

Far from being a panacea, these mandates have largely failed to sustain recurring spending for classroom resources, teachers’ salaries, etc. At the same time, good-intentioned “dabbling” in education policy has left some courts with years of clogged dockets and strained resources.

As we’ve noted, Indiana is a key target for these lawsuits, with one now pending before the Indiana Supreme Court. Read about that case and the friend-of-the-court brief the Tax Foundation filed.

In New Jersey, home of the Abbott litigation of seventeen cases spanning twelve years, continues on. On November 18, the New Jersey Supreme Court rejected a motion by Gov. Jon Corzine (D) to dismiss the case. Originally filed in 1985, the Abbott cases have placed 32 school districts under court control since 1999. New hearings will now be scheduled on whether the state’s funding increases are sufficient.

This recent op-ed gives a good chronology and summary of the problems New Jersey has experienced:

Way back in 1875, the New Jersey Constitution placed a major responsibility on our state Legislature: “to provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the state between the ages of five and 18 years.”

This is the famous “T-and-E” clause. Neither “thorough” nor “efficient” was defined in the constitution. The Legislature didn’t define the words, either. Instead, it dumped this new responsibility onto the backs of local school districts.[…]

In 1971, in the case of Robinson v. Cahill, state Superior Court Judge Theodore Botter said the local property tax should be abolished as the basis of school support and replaced by a state levy.[…] We were saddled with a state income tax as a result of this first judicial intrusion. Thirty-five years later, the court is still stuck in the brambles. And we are still stuck with the state income tax.

In 1981, the case got a new name, Abbott v. Burke, and a more aggressive group of justices. Ignoring the clear language of the constitution — neither the first nor the last time it has done so — the sagacious seven assumed responsibility for the term “provide” and began dictating how public education in the urban school districts should be funded.[…] Apparently they thought throwing money at the problem would solve it. The resulting waste of millions has been well documented. We are still waiting for documentation of any substantial educational results during this period.[…]

In 1998 came another manifesto: Abbott v. Burke V. Ignoring the separation-of-powers principle, the court assumed the roles of chief educational policymaker and of chief executive for these districts, and gave specific orders to the state Commissioner of Education. These included half-day preschool for 3-and 4-year-olds in the Abbott districts, on site-social services where requested and a massive facilities upgrade. It further mandated that the state completely fund the facility improvements in the Abbott districts.

This brought about the infamous Schools Construction Corp. and its waste of millions of dollars. So much for the state Supreme Court as super-Legislature, super-executive.

In January, Gov. Jon Corzine and the Legislature attempted to take back control of educational policy with a new school funding law. State Attorney General Anne Milgram appealed to the Supreme Court to back off and close the book on Abbott. No such luck. The Education Law Center’s David Sciarra, who has built himself a nice career in litigating Abbott, refused to go along: “We opposed the formula in the Legislature, and we will continue to oppose it in court.”

Attempts to obtain additional court orders in Montana and New Hampshire were also recently rebuffed, although the plaintiffs in New Hampshire may refile their lawsuit.

More on Appropriation by Litigation here.


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