Indiana Supreme Court Hears Case on Judicial Funding Mandate for Education

December 8, 2008

Arguments were heard last Thursday before the Indiana Supreme Court in a case urging that the court recognize a judicially enforceable right to a “quality” education.

The Indiana Constitution’s Education Clause, which guarantees a free public education, was at the center of the discussion. The justices seemed very skeptical of the notion that this clause empowers the judiciary to order funding increases or even that additional funding necessarily means better schools.

Plaintiffs have argued that the state constitution requires not only equal opportunity but equal outcomes, and in other states their efforts have succeeded in injecting judges into micromanaging education policy. Pressed at numerous points to explain precisely the end goal his litigation seeks, Boston attorney Michael D. Weisman eventually conceded that the state would have to increase funding and shift power away from local school boards.

“I congratulate you on your candor,” replied Chief Justice Randall T. Shepard to that. Chief Justice Shepard had expressed skepticism throughout the argument at Weisman’s claims that the suit was not about judicially mandating funding increases or taking away local officials’ flexibility.

“It’s about money and Hammond and South Bend getting less flexibility,” Shepard added.

Justice Robert D. Rucker questioned the entire premise that more money equals better performance, a key point of the Tax Foundation’s brief. “But more money doesn’t solve the problem. How do we know where funds are used best? Class-size reductions? Improved buildings? Higher teacher salaries? Even if you’re right, how is more funding the remedy?”

“You want a level of performance,” added Justice Theodore R. Boehm. “We’re not a legislature,” said Justice Brent E. Dickson.

Justice Frank Sullivan, Jr., questioned to what extent the Education Clause is judicially enforceable. Solicitor General Thomas M. Fisher responded that the constitution requires a system open to all, but that subjective judgments about how best to achieve educational standards cannot be managed well by judges.

The justices’ questions got to the heart of the issue: if the plaintiffs win, juudges will have to set education policy and mandate funding. Power will be taken away from local officials in a quest to apply continually evolving standards of what a good education is.

The Tax Foundation has prepared a report, “Appropriation by Litigation: Estimating the Cost of Judicial Mandates,”, that outlines the serious problems encountered in many states after such lawsuites succeed.

These cases eventually lead to judges ordering funding and tax increases, shifting power from taxpayers, local school officials, and legislators. Legislators can do what judges cannot: hear from economic participants, gather and analyze reports, consider short-term and long-term results, evaluate transition costs and trade-offs, and employ specific standards.

When judges have ordered higher spending on education in other states, it eventually levels off over the long-term as money is shifted from other state priorities to questionable expenditures mandated by judicial order. Indiana should learn from the mistakes of its sister states and avoid judicial micromanagement of education finance and policy. I’m hopeful that the court will recognize the danger.

Read the amicus brief or the Tax Foundation Fiscal Fact explaining this brief. Read more amicus briefs submitted by the Tax Foundation.

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