The power of the purse lies with legislatures—except, sometimes, where education funding is concerned. In that realm one finds a long history of judicial intervention, originally on questions of equity—ensuring that school funding formulas did not disadvantage certain communities or discriminate against minorities—and, subsequently, on questions of adequacy. Whereas equity cases flowed out of equal protection and did not concern themselves with the size of the overall appropriation but rather its distribution, adequacy litigation challenged legislative primacy over the budget while drawing upon state constitutions’ guarantees of public education. A constitutional ballot initiative in Mississippi, to be placed before the voters on Tuesday, would take the next step by explicitly granting the courts a role in the appropriations process.
Initiative 42 would amend Section 201 of Mississippi’s voluminous state constitution as follows, where new language is indicated by underlining and deletions are indicated by strikethrough:
SECTION 201. To protect each child's fundamental right to educational opportunity, The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.
A competing amendment, lacking a direct invocation of judicial authority, is also on the ballot in an iterated voting process (discussed later) which could result in the adoption of a constitutional amendment opposed by the majority of voters.
Equity cases began in the 1960s, redressing funding disparities which frequently, though not exclusively, disadvantaged racial minorities. In 1989, however, education litigation took a new direction, beginning with the Kentucky Supreme Court's landmark ruling in Rose v. Council for Better Education, which gave unexpected force to the state constitution's guarantee that "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state." The court adopted a nine-factor definition of an "efficient" system of education, the most notable being that the General Assembly was obligated to "provide funding which is sufficient to provide each child in Kentucky with an adequate education." The court then ordered the Kentucky legislature to restructure the state’s educational system in conformity to these judicial factors, including the new principle of adequacy. A new era of litigation had begun.
Since 1989, plaintiffs have prevailed in adequacy litigation in twenty-two states, with cases currently pending in fourteen, including nine in which prior litigation has succeeded. Unlike the earlier equity cases, these cases involved courts making a determination that state legislatures were not spending enough on education—and ordering them to do so. What proponents view as an important tool in support of larger education budgets (and, it is hoped, improved outcomes), opponents tend to see as an encroachment upon the legislative branch’s inherent authority to appropriate funds, and of budget writers being accountable to the electorate.
Just what a confrontation between the branches over education funding can look like played out in Washington state earlier this year, when the state Supreme Court, having concluded in 2014 that the state's progress toward objectives stipulated by the court in 2012 was inadequate, held the state in contempt and demanded resolution in the 2015 session, then slapped sanctions—a $100,000 a day fine—on the state government this August, when the newly enacted budget left the justices nonplussed.
All fifty states guarantee a free public education in their constitutions. Many of these constitutional provisions promise that the system of schools will be “thorough” or “efficient,” and several specifically guarantee adequacy. Florida declares it a “paramount duty of the state to make adequate provision for the education of all children residing within its borders,” Georgia declares “[t]he provision of an adequate public education for the citizenry” to be a primary obligation of the state, and Washington goes even farther by enumerating “the paramount duty of the state to make ample provision for the education of all children residing within its borders.”
The language of several other states’ provisions regarding thoroughness is similarly specific, though with or without such explicit guarantees, the courts in many states have ruled that constitutional education guarantees imply a funding obligation which can be ascertained by the judiciary. A constitutional adequacy provision has not always been necessary for such litigation to prevail—but it certainly doesn’t hurt.
To date, Mississippi has not been among the states subject to a judicial mandate, and while litigation has been brought, the state’s constitutional guarantee does not easily lend itself to a pro-plaintiff interpretation. It provides, merely, that “The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.”
Enter Initiative 42.
If adopted, the new constitutional amendment would outstrip all other states’ language in its direct grant of judicial authority. The courts would not need to determine if the constitution authorized such intervention; the right to intervene would be explicitly vested in the state’s chancery courts, trial-level courts typically presided over by a single judge, and which hear cases on, inter alia, adoptions, custody disputes, wills, and matters of equity. In the hierarchy of state courts, they are above municipal court, on par with county court, and below the circuit courts, the court of appeals, and the state supreme court.
The proposed Mississippi amendment would flip the approach in other states. While courts in other states have concluded that the education budget violated state education guarantees, this is (at least theoretically) a high bar to clear. Here, locally-elected judges would be established as referees, expressly called upon to rule on whether the budget is adequate, while given no guidance on what adequacy entails. The constitution would, moreover, be rendered mute on the role of the legislature in establishing education policy, with the matter to be left, more ambiguously, to “the State.”
Since 1997, Mississippi has operated under what is known as the Mississippi Adequate Education Program (MAEP), which establishes a formula for state education funding. The legislature has only met its own standards twice since then, and many proponents envision Initiative 42 as granting the courts the authority to enforce MAEP requirements. It is possible that the chancery courts may choose to interpret “adequate” in light of the 1997 statute, but nothing requires them to do so. Many proponents also speak of phasing in compliance over time, but the language of the proposed amendment makes no provision for a gradual move toward compliance. It is on these grounds that Mississippi Governor Phil Bryant, an outspoken opponent of the Initiative, has termed it the “greatest power grab in state history.”
The successful litigation in Washington notwithstanding, successful adequacy cases have been on the decline in recent years, possibly due to the lack of evidence that the increased funding mandated by court orders has appreciably improved educational quality or attainment. The U.S. Supreme Court itself has evinced skepticism in this area, writing in Horne v. Flores (2009) that the “weight of the research” suggests that structural, curricular and accountability-based reforms, “much more than court-imposed funding mandates, lead to improved educational opportunities.” Initiative 42, however, would—at least in Mississippi—put the ball squarely in the judiciary’s hands.
Such mandates come at a cost. Elected representatives are forced to balance the many legitimate needs of citizens—public education, public safety, infrastructure, the social safety net—and are accountable to the voting public for their decisions. Should the courts, empowered to impose funding determinations in one realm (education), mandate additional expenditures, the money has to come from somewhere. Either other expenditures must be curtailed or taxes must be raised. Either or both of these approaches may be legitimate options, and the need to improve Mississippi’s public schools is undeniable—but historically, such decisions have been the prerogative of elected representatives, not of the judiciary.
The constitutional question, then, is complex. So, it turns out, is the ballot. Voters actually have the opportunity to choose among Initiative 42, which explicitly authorizes the judiciary to establish education funding mandates, Initiative 42A, which establishes a constitutional right but does not explicitly provide for an enforcement mechanism (which would still rank Mississippi among the states with the most explicit guarantees), and the rejection of both. But it’s not quite that simple.
The ballot issue consists of two parts: (1) approval of “either” the initiative or the alternative measure or rejection of both, and (2) only for those who approve, indication of preference between the competing initiatives. Should the voters approve the adoption of an amendment, the provision with majority preference among supporters of an amendment will be deemed ratified.
A voter who approves of the more modest constitutional amendment but has qualms about a direct grant of budgetary authority to the judiciary is forced to decide whether to support ratification in the hopes that her more modest preference comes out on top, or oppose it to avoid the risk despite favoring Initiative 42A. An opponent of Initiative 42 is unable to express a preference for 42A over 42. Either the primary or alternative initiative could be ratified without winning the support of a majority of voters. Under this system of counter amendments, Initiative 42 or 42A could be enshrined in the state constitution with the support of as little as 40 percent of the electorate.
Mississippi voters have a lot to consider when they go to the polls this Tuesday. And it’s entirely possible that, when all is said and done, the state constitution could be amended in accordance with the preference of a minority of voters.
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