March 2007
Oklahoma Council of Public Affairs
Summary On January 11, 2006, the Oklahoma Education Association (OEA) and three Oklahoma school districts (Jenks, Foyil, and Western Heights) filed an “adequacy and equity” lawsuit against the State of Oklahoma and the Oklahoma Legislature seeking, in their words, “a declaration by the Oklahoma County District Court that the Oklahoma Legislature has failed to meet its constitutional mandate to adequately fund a system of public education.” On July 28, 2006, a district court judge dismissed the lawsuit, but the OEA’s attorneys have asked the Oklahoma Supreme Court to reverse that decision and remand the case to the district court. This paper will demonstrate that by the time Oklahoma adopted its constitution in 1907, the principle was well established in almost every state that state constitutional provisions for
public education set out aspirational goals for legislative consideration rather than judicially enforceable mandates. Indeed, there is nothing in Oklahoma’s constitutional provisions to suggest that those who drafted and ratified the constitution intended to mandate judicially enforceable levels of spending. Education finance is inherently a matter for legislative judgment, requiring the balancing of competing policy interests for which there is no correct legal answer. Quite apart from the threat to separation of powers, judicial activism which mandates certain levels of spending threatens the very essence of government by consent and, collaterally, the benefits to be gained from participatory democracy. The union’s attempt to lead the court down that constitutionally problematic path should be soundly rejected.
Legislative Judgment, Not Judicial Fiat The basic provision for public education in the Oklahoma Constitution has remained unchanged since it was first adopted a century ago, at statehood in 1907. Article XIII, Section 1, simply provides: “The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated.”1 Section 5 of Article I, which deals with relations between the state and the federal government, parallels that basic commitment: “Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control; and said schools shall always be conducted in English: Provided, that nothing herein shall preclude the teaching of other languages in said public schools.”2 Save for an amendment abolishing a provision which countenanced segregated schools, that provision, too, remains unchanged since it was first adopted in 1907. At the time the constitution was adopted, no one contemplated that these provisions contained any judicially enforceable mandate. Rather, consistent with the historical trend of education clauses in other state constitutions, they were viewed as setting forth merely aspirational goals, the particular details of which were left to the discretion and policy judgment of the legislature,
as long as the public education provided was “free.” Nevertheless, the plaintiffs in the current “adequacy” lawsuit somehow read into these hortatory3 clauses specific commands, enforceable by the courts of law, that would require the state legislature to spend an additional $1 billion each year on the operation and maintenance of schools, and an additional $3 billion for capital improvements — amounts above and beyond the 35 percent of the total state budget that the plaintiffs concede is already spent by the state on public education.4 Yet the language upon which the plaintiffs base their claim of mandate simply does not exist. The plaintiffs’ complaint asserts violation of “uniformity” and “adequacy” requirements which simply are not found in the Oklahoma constitution.5 The plaintiffs claim that the Oklahoma Constitution defines education as a “fundamental right,” but that language is nowhere to be found in the Constitution either.6 Nor does the state constitution mandate that the legislature provide a “sufficient” level of funding at anywhere near the level the plaintiffs claim, as the plaintiffs repeatedly assert, and there is certainly nothing in the constitution that allows the courts, rather than the legislature, to determine what level of funding qualifies as “sufficient.”7 Indeed, if the plaintiffs’ interpretation of Article I, Section 5, and Article XIII, Section 1 were 2
district shall be determined by a formula established by the Legislature. The administering agency is authorized to accept grants-inaid from the federal government for building purposes (emphasis added).9 Indeed, the deference afforded to the legislature under Article X, Section 32, is today even greater than it was when that particular provision was first adopted in 1955; a 1984 electoral referendum substituted the phrase, “shall be determined by a formula established by the Legislature,” for a specific formulaic cap that had existed in the original provision.10 That the Oklahoma constitution establishes hortatory goals rather than judicially enforceable mandates should come as no surprise. Education finance is inherently a matter for legislative judgment, requiring the balancing of competing policy interests for which there is no correct legal answer. The plaintiffs themselves recognize this, noting that the statutory finance system established by the legislature is a “complex calculation that takes into account various factors.”11 Indeed, the plaintiffs concede in their complaint that the Oklahoma constitution assigns funding decisions to the legislature: “The State Board of Education does not have the constitutional or statutory authority to appropriate funds for the maintenance of public schools in Oklahoma — a power reserved to the Oklahoma Legislature” (emphasis added).12 There is simply no warrant for the court to substitute its judgment for that of the legislature, or for that of the people of the state of Oklahoma, who assigned this policy-making function to the legislature. A Brief History of State Constitutional Provisions From the first days of the Republic, the overwhelming number of education clauses in state constitutions have been hortatory, not obligatory. The Massachusetts Constitution of 1780, for example, provides that “it shall be the duty of legislators … to cherish the interests of literature and the sciences, and all seminaries of them, especially the university at Cambridge, public schools, and grammar schools in the towns; … [and] to countenance and inculcate the principals of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments, among the people.”13 Despite the
correct, there would have been no need for the 1946 voter initiative, which amended the constitution to mandate that the legislature “raise and appropriate funds for the annual support of the common schools of the State to the extent of fortytwo ($42.00) dollars per capita based on total state-wide enrollment for the preceding school year.”8 Curiously, the plaintiffs do not mention this clause at all in their complaint, undoubtedly because the minimal level of funding it actually mandates does not hold a candle to the billions in additional funding the plaintiffs are seeking. The people of Oklahoma are perfectly free to impose additional such mandates on their legislature, but by way of constitutional amendment as they did with Section 1a, not by judicial fiat, as the plaintiffs urge. In short, the subsequent adoption of Article XIII, Section 1a makes clear that the language of Article XIII, Section 1, and the parallel language of Article I, Section 5, is simply hortatory, establishing policy goals for the Legislature, to be pursued as the legislature, in its judgment, deems best. Article X, Sec. 32 of the Oklahoma Constitution — the clause relied upon by the plaintiffs for their third claim of relief — demonstrates even more clearly that these matters are left entirely to the discretionary judgment of the legislature. Article X, Section 32 provides: For the purpose of providing buildings for school districts, there is hereby established a State Public Common School Building Equalization Fund in which shall be deposited (1) such monies as may be designated or provided for such purpose by the Legislature, other than ad valorem taxes, and (2) the proceeds of all property that shall fall to the State by escheat and penalties for unlawful holding of real estate by corporations; provided, that if such disposition and use of money from any such sources shall be declared invalid, the validity of other provisions of this section shall not be affected thereby. The State Public Common School Building Equalization Fund shall be administered by the State Board of Education, until otherwise provided by the Legislature. Such Fund shall be used to aid school districts in acquiring buildings, under such regulations as may be prescribed by the administering agency, unless otherwise provided by law, and the amount paid therefrom to or for any school 3
education shall forever be encouraged.16 word “duty,” this clause no more mandated This provision was followed in numerous states, specific levels of funding for public schools by the including Ohio in 1802, Missouri in 1812 (in its legislature, enforceable by the courts, than it manterritorial government act) and 1820, Mississippi dated a particular curriculum to advance “generous in 1817 and 1832, Alabama in 1819, Kansas in sentiments” among the people. As the Supreme 1855, Nebraska in 1866, and North Carolina in Judicial Court of Massachusetts held in 1849: 1868.17 Like the Massachusetts provision, these The proper province of a declaration of rights were not intended, or interpreted, to declare a and constitution of government, after directing judicially enforceable right to education, much its form, regulating its organization and the less mandate a certain level of funding; rather, distribution of its powers, is to declare great they merely articulated a goal that the constitution principles and fundamental truths, to infludrafters thought important to the protection of ence and direct the judgment and conscience republican government — a goal left to the policy of legislators in making laws, rather than to discretion of the legislatures to pursue. limit and control them, by directing what Even those state constitutions with apparently precise laws they shall make. The provision, obligatory language in their education clauses that it shall be the duty of legislatures and were not understood as creating a judicially magistrates to cherish the interest of literature enforceable right to and the sciences, education, much less a especially the univerThere is nothing in Oklahoma’s constiwarrant for courts to sity of Cambridge, tution to suggest that those who drafted determine funding levels. public schools, and and ratified the document intended to Pennsylvania and North grammar schools, in mandate judicially enforceable levels Carolina in 1776, and the towns, is precisely of education spending. Vermont and Georgia in of this character. Had 1777, all mandated that the legislature failed schools “shall be established” in each county or to comply with this injunction, and neglected town by the legislature, for example.18 But in none to provide public schools in the towns, or of those states did the legislature act as though should they so far fail in their duty as to repeal the constitutional provision imposed upon it any all laws on the subject, and leave all educaspecific duty (much less a judicially enforceable tion to depend on private means, strong and one), and by the end of the 18th century, Vermont, explicit as the direction of the constitution is, it Georgia, and Pennsylvania had all replaced the would afford no remedy or redress to the obligatory language with more hortatory provithousands of the rising generation, who now sions.19 Although North Carolina retained its depend on these schools to afford them a facially obligatory language, the legislature of most valuable education, and an introduction that state did not establish a common school to useful life.14 The New Hampshire Constitution of 1784 system until 1839 — a full 65 years after the followed the Massachusetts provision almost clause was first adopted, hardly a timetable that verbatim, as did the constitutions of several states suggests a judicially enforceable mandate.20 admitted to the Union in the nineteenth century, The phrase, “system of public schools,” found including Indiana in 1816, Tennessee in 1834, in the Oklahoma Constitution first appeared in the Arkansas in 1836, Rhode Island in 1842, and Indiana Constitution of 1816. Article IX, Section 2, Texas in 1845.15 In none was the clause underof that constitution provided: “It shall be the duty stood to impose judicially enforceable requireof the General Assembly, as soon as circumments upon the state legislature. stances will permit, to provide, by law, for a The Northwest Ordinance of 1787, which degeneral system of education, ascending in a fined the principles on which federal territory, and regular gradation from township schools to a ultimately new states, would be governed, also State University, wherein tuition shall be gratis, contained a hortatory provision: and equally open to all.”21 Religion, morality, and knowledge being So great was the discretion afforded to the necessary to good government and the happilegislature under this provision, however, that the ness of mankind, schools and the means of Indiana Supreme Court held in 1850 that the 4
that in 1864, leaving the entire matter to legislative judgment thereafter. A few states adopted facially obligatory language of a slightly different sort. Constitutions adopted mid-century in New Jersey, Ohio, Minnesota, and Oregon all contained the phrase, “the legislature shall,” followed by such phrases as “thorough and efficient system,” “general and uniform system,” or “regular and uniform system.”29 New Jersey went the furthest, requiring that its “thorough and efficient” system be open and free for all the children of the state.30 In 1884, the New Jersey Supreme Court recognized that legislation enacted pursuant to this provision provided for “the legal right of [children residing in a school district] to enter [district] schools for free instruction,” although it also recognized that a school board would be within its rights in refusing admission to a child if “the schools … were full.”31 Following the Civil War, the requirement that the schools be open to all the children of the state was adopted in numerous states, including Louisiana in 1864, Missouri in 1865, Illinois in 1870, Pennsylvania in 1873, and Nebraska in 1875, and this became the norm for almost every state admitted to the Union thereafter. Yet in none of these states was the language understood to impose a judicially enforceable mandate upon the legislature with respect to the level of funding that should be provided to those children. Only two state constitutions actually mandated not only that its schools be open to all the children of the state, but also specified the source and amount of financing for those schools as well. Article X of the Wisconsin Constitution of 1848 read: Sec. 3: The Legislature shall provide by law for the establishment of District Schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition, to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein. Sec. 4: Each town and city shall be required to raise, by tax, annually, for the support of common schools therein, a sum not less than one half the amount received by such town or city respectively for school purposes from the income of the school fund. Sec. 5: Provision shall be made by law, for the distribution of the income of the school fund among the several towns and cities of the
clause did not even to require that the schools be open to all children, much less that it created a judicially enforceable right to a certain level of funding for education.22 The next state to utilize the “system” formulation was Michigan in 1835: “The legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each school-district at least three months in every year; and any school-district neglecting to keep up and support such a school may be deprived of its equal proportion of the interest of the public fund.”23 Iowa and California adopted similar provisions in 1846 and 1849, respectively.24 Here were specific mandates defining what was meant by a “system” of public schools — a school in each district, operating at least three months each year. But even with these specific requirements, the remedy specified by the clause was not a judicial mandate, but rather the loss of access to the state school fund. Contrary to the plaintiffs’ claim that the similar “system” provision in the Oklahoma Constitution guarantees to each student a “basic, adequate education,” there was no suggestion that a judicially enforceable individual right had been created, either by the general requirement that the legislature provide for a system of common schools, or by the specific requirements that followed.25 This view of the clauses was confirmed in 1869 by Michigan Supreme Court Justice Campbell, writing in The People ex rel. Workman v. The Board of Education of Detroit: “It cannot be claimed, that the legislature could not make or authorize any regulation they should see fit, in regard to the management of different scholars.”26 It was similarly confirmed in Iowa in 1857 when, during debate over whether to extend or carry over the education provision to the new constitution under consideration that year, one convention delegate argued against specifying how long to keep the schools open, contending that such a decision should be left to the districts, which are “minirepublics themselves, and have a right to control these matters.”27 Although the Iowa Constitution of 1857 continued the requirement that schools be open three months per year, the entire clause was made subject to legislative repeal after 1863 so that the General Assembly itself could “provide for the educational interest of the State in any other manner that to them shall seem best and proper.”28 The Iowa General Assembly did just 5
district “as nearly uniform as possible” was State, for the support of common schools violated; it only held that there was no absolute therein, in some just proportion to the number right to attend school in another district, and thus of children and youth resident therein, bethat the imposition of a tuition for the privilege tween the ages of four and twenty years, and was not a violation of the constitutional mandate no appropriation shall be made from the that the schools be free. While the court’s lanschool fund to any … school district for the guage may appear to give a legally enforceable year in which a school shall not be mainright to free education to children residing in the tained at least three months.32 Although Section 5 contains the same enforcedistrict, it must be remembered that the case ment clause limited to the forfeiture of state school arose only because no school was in session in funds by any district that does not maintain a the district where the Comstock child resided. One school as contained in some of the other constitucan only infer from the court’s language, together tions discussed above, Sections 3 and 4 of the with the constitutional provision depriving districts provision are much more specific in their manof their share of the state school fund if they failed date. The district schools were to be “as nearly to keep a school open at least three months each uniform as possible,” and “free … to all children year, that had Comstock sought to require school between the ages of four and twenty years.”33 officials in his own district to open a school, he Moreover, the State school might have been nonfund proceeds were to be suited on the ground that Judicial school-finance decisions have augmented by a local tax there was only an absoeffected a fundamental shift of of at least 50 percent of the lute right to attend a policymaking power away from legisschool fund amount district school if, and to latures and to the courts, posing a received. the extent that, the school serious threat to the principle of sepaThe Supreme Court of officials saw fit to provide ration of powers and ultimately to Wisconsin had occasion to for one. government by consent itself. interpret this constitutional The only other state to provision in The State ex adopt a specific funding rel. Comstock v. Joint School District No. 1 of requirement (other than the protection of state Arcadia. The plaintiff in that case sought to send school funds, which a number of states adopted) his son to an adjoining school district because prior to Oklahoma statehood was Pennsylvania in there was no school in session in the district in 1873: which he resided. The defendant district sought to The General Assembly shall provide for the charge the plaintiff tuition for the privilege, and maintenance and support of a thorough and when the plaintiff refused to pay the tuition, the efficient system of public schools, wherein all child was denied admission to the school. The the children of this Commonwealth above the court focused on the language in the constituage of six years may be educated, and shall tional provision providing for “the establishment appropriate at least one million dollars each of district schools,”34 (emphasis in original), and year for that purpose.36 stated: Quite obviously, this level of specificity is a far We find ourselves unable to assent to the cry from the generic provision in the Oklahoma proposition that a child residing in one school Constitution that “The Legislature shall establish district has any absolute right, under any and maintain a system of free public schools circumstances, to the privileges of the common wherein all the children of the State may be school of another district. … One feature of educated.”37 [the district system] is, and, so far as we are In sum, by the time Oklahoma adopted its advised, always has been, wherever the constitution in 1907, the principle that state constisystem has prevailed, that the absolute right to tutional provisions for public education set out the privileges of the school in any given district is hortatory goals for legislative consideration rather confined to children residing in such district, and than judicially enforceable mandates was well having the prescribed qualifications.35 established in almost every state. There is nothing The court did not address whether the constituin Oklahoma’s constitutional provisions to suggest tional mandate to establish schools in each that those who drafted and ratified the constitu6
tion intended to mandate judicially enforceable levels of spending. Recent Judicial Activism The “hortatory” story from the eighteenth and nineteenth centuries holds true through the first three quarters of the twentieth century. Even states that adopted somewhat obligatory language continued to treat that language as setting legislative goals, not as imposing judicially enforceable mandates. Not until the 1970s, following the “rights revolution” of the Warren Court, does one find a few courts actually starting to hold that the education provisions in state constitutions afforded fundamental-right status to public education, conferring a judicially enforceable individual right not just to an education but to a certain level of financing for — and even a certain quality of — education. In a couple of the cases, state courts applied relatively new amendments to the state constitutional provisions that arguably could be viewed as imposing some judicially enforceable mandate. But in most of the cases, those court decisions were rendered without much focus on the actual language of the particular education provision at issue and without much consideration of the inherent policy judgments that underlie a determination of funding level and quality. Far from enforcing a constitutional mandate, therefore, those decisions have effected a fundamental shift of policymaking power away from legislatures and to the courts, posing a serious threat to the principle of separation of powers and ultimately to government by consent itself. Oklahoma jurists should resist this temptation — not only because the language of the Oklahoma Constitution has not been changed to invite it, but because other states where courts initially succumbed to the temptation to appropriate to themselves the educational policy-making judgments of the state have begun to retreat from the judicial foray. Florida, for example, added a provision to its constitution in 1968 that “[a]dequate provision shall be made by law for a uniform system of free public schools,” and shortly thereafter the Florida Supreme Court found this “system” clause to confer an individual “right.” That holding was effectively overturned by a 1998 amendment to the Florida Constitution declaring education a “fundamental value” rather than a fundamental right, however, expressly to avoid the consequences of
the interpretation that had been given by the Florida courts.38 The Florida Constitution was amended again in 2002 to provide specific mandates regarding class size, demonstrating the constitutionally proper way to impose mandates on the legislature.39 In its 1976 revised constitution, Georgia wanted its system of free common schools to provide “an adequate education for the citizens.”40 The Georgia Supreme Court first interpreted the clause in 1979 as creating a right, but then in 1981 held the right not to be “fundamental,” thereby recognizing the threat to legitimate legislative authority that its earlier ruling had posed.41 Indeed, a majority of the states have thus far adhered to the view, universally accepted through the end of the nineteenth century, that the provision of public education is inherently a policy judgment best left to the discretion of the political branches, primarily the legislature. Idaho, for example, which provided for a “general, uniform and thorough system of public, free common schools,”42 adhered to the earlier, original understanding of its 1890 constitutional clause when, in 1975, the Idaho Supreme Court held that “[o]n its face, [section 1] mandates action by the Legislature. It does not establish education as a basic fundamental right. Nor does it dictate a central state system of equal expenditures per student.”43 Illinois, too, resisted the modern tendency of some courts to intrude upon the legislature’s policy-making role, amending its constitution in 1970 to designate education in its “system” of free public schools to be a “fundamental goal” rather than a “right,” a decision that the Illinois Supreme Court respected in the 1996 decision in Committee for Education Rights v. Edgar.44 Maine retained its 1820 provision making it the duty of its towns “to make suitable provision” for the support of public schools, and the Maine courts have not interpreted that provision as creating a fundamental right or mandating certain levels of funding.45 Maryland mandated that a “thorough and efficient System of Free Public Schools” be established at the first legislative session after adoption of its 1867 constitution,46 yet its Supreme Court held in 1983 that that provision — standing alone or in conjunction with a related budgetary provision — did not create a fundamental right: The directive contained in Article VIII of the Maryland Constitution for the establishment and maintenance of a thorough and efficient 7
legislation” the principle that “there shall always statewide system of free public schools is not be free public … schools in the state” conferred a alone sufficient to elevate education to fundamental status. Nor do the budgetary provijudicially enforceable “fundamental right” to sions of §52 of Article III of the Constitution education that subjected legislative financing require that we declare that the right to educajudgments to “strict judicial scrutiny.”52 tion is fundamental. The right to an adequate Other state courts simply reinterpreted education in Maryland is no more fundamenlongstanding hortatory clauses as creating a tal than the right to personal security, to fire “fundamental right” to education that permitted protection, to welfare subsidies, to health care the courts to impose new mandates on the legislaor like vital governmental services; accordtures never before imagined. The initial reticence ingly, strict scrutiny is not the proper standard of the Pennsylvania courts in the 1970s to find a of review of the Maryland system of financing “fundamental right” in the state’s longstanding its public schools. 47 “thorough and efficient” constitutional provision, for example, was reversed in 1995 when the state The Michigan appellate courts, after first supreme court squarely held that “public educaholding that Michigan’s “system” provision clearly tion in Pennsylvania is a fundamental right.”53 bestowed on Michigan citizens a “fundamental New Jersey’s requirement for a “thorough and right to a free public education,” ultimately rejected that position, efficient system” of education for “all” children, holding in a series of The right to an adequate education is which dated to the 1844 cases that “education is no more fundamental than the right to constitution, was held by not a fundamental right personal security, fire protection, that state’s supreme court under Michigan’s Constiwelfare subsidies, health care, or other tution of 1963" and conin 1975 to create fundagovernment services. Yet when one of mental rights, enforcecluding that “although a those services is deemed a fundamenfree public education is a able by the courts.54 So, tal right, courts claim for themselves vitally important service too, with New York’s the ability to vindicate that right even provided by this state, provision for a “system of at the expense of other government there is no fundamental free common schools, services – or by ordering the imposiwherein all the children of right to such an education tion of taxes not approved by the under our constitution.”48 the state may be edupeople’s representatives. New Mexico held in cated,” a clause that 1987 that its constitutional dated back to 1894 provision for a “uniform system of free public without any hint that judicially enforceable manschools sufficient for the education of, and open dates were created thereby.55 to, all the children” did not give rise to a contracSimilarly, the Delaware Supreme Court in 1980 tual relationship that would permit suits for found a judicially enforceable right to education breach of contract.49 The supreme courts of Ohio in its 1897 constitutional provision providing for a and Oregon both declined to find a constitutional “system of free public schools.”56 The Kentucky right in their century-old provisions providing for, high court in 1989 found a “fundamental right” in respectively, a “thorough and efficient” and a its 1891 constitutional directive to the state legisla“uniform, and general” system of common ture to provide “by appropriate legislation” for an schools.50 Colorado continued to require the “efficient system of common schools.”57 The establishment “as soon as practicable” [emphasis Supreme Judicial Court of Massachusetts and the added] of a “thorough and uniform system of free Supreme Court of New Hampshire held in 1993 public schools” for “all” the children of the state, and 1997, respectively, that the parallel provisions and the Colorado Supreme Court has expressly of their respective constitutions (the 1780 Massa“refuse[d] … to venture into the realm of social chusetts Constitution and the 1784 New Hamppolicy under the guise that there is a fundamental shire Constitution) that made it the “duty” of the right to education.”51 legislature “to cherish the interests of literature In contrast, Connecticut in 1977 found that a and the sciences, and all seminaries of them” 1965 amendment to its constitution that required conferred the right to an “adequate” education the legislature to “implement … by appropriate despite explicit acknowledgement that the word 8
“adequate” was not to be found in the constitutions at all.58 The Minnesota Supreme Court in 1993 found a “fundamental right” to education in that State’s 1857 constitutional provision describing the duty of the legislature “to establish a general and uniform system of public schools.”59 The North Dakota Supreme Court found in 1992 and 1994 first a “right” and then a “fundamental right” in its 1889 provision for a “uniform system” “open to all children of the state.”60 The South Carolina Supreme Court likewise waited more than a century to find in 1999 that its 1895 provision providing for a “system of free public schools open to all children” conferred the right “for each child to receive a minimally adequate education,” which it then proceeded to define ex nihilo.61 Tennessee’s high court found in 1993 that the “right to a free public education” was guaranteed to the children of the state in an 1870 provision “encourag[ing] support” of a “system” of education. It did so after discussing the opinions of other state courts that had found a “fundamental right” to education in their own, typically much stronger, constitutional provisions.62 A Texas appellate court found in 1987 a “fundamental right” in its 1876 provision to create an “efficient system of public free schools.”63 Washington’s 1889 “ample provision for the education of all children” through a “general and uniform system” was held in 1975 to be a “fundamental constitutional right.”64 West Virginia’s 1872 requirement that “the legislature shall provide, by general law, for a thorough and efficient system of free schools” was interpreted in 1979 as conferring a “fundamental constitutional right,” obligating the legislature to develop “certain high-quality statewide educational standards.”65 And Wisconsin’s 1848 provision for “as nearly uniform as possible” district schools, free to “all children,” was held in 1976 to create a “fundamental right.”66 Perhaps most stark of all was the 1997 decision of the Vermont Supreme Court in Brigham v. Vermont, interpreting a more than 200-year-old constitutional provision in the Vermont Constitution of 1793: Laws for the encouragement of virtue and prevention of vice and immorality ought to be constantly kept in force, and duly executed; and a competent number of schools ought to be maintained in each town unless the general assembly permits other provisions for the convenient instruction of youth.67
Despite the clearly hortatory nature of this provision, the Vermont Supreme Court in 1997 effectively treated the provision as creating a judicially enforceable fundamental right, going so far as to state that “[t]he contention that the framers intended these fundamental freedoms to be mere aspirational ideals rather than binding and enforceable obligations upon the state cannot be seriously maintained.”68 The route to finding a fundamental right in these states, through judicial interpretation (one might say judicial fiat), stands in stark contrast to the route pursued in Florida, which in 2002 amended its constitution to add a specific mandate for class-size reduction to the state constitution.69 At one level, the right to pursue an education has always been viewed as fundamental in this country. Article I, Section 23 of the Wyoming Constitution of 1890 accurately conveys the prevailing sentiment: “The right of the citizens to opportunities for education should have practical recognition.”70 Yet the recent state court holdings have understood the fundamental right to education at an entirely different level — not just the right to pursue the education of one’s choice, but the “right” to have someone else (the government, which is to say taxpayers) pay for that education. But how much education, at what cost, and for what purpose? Oklahoma’s provision certainly provides no guidance for the courts. Even states that have constitutional provisions which, on their face, appear to impose qualitative mandates — “adequate,” “suitable,” “good,” “quality” or “highquality” — hardly provide judicially manageable criteria for answering such questions.71 Any answers are inherently policy judgments, not matters that can be determined by the courts as if there were some scientifically correct standard to be applied. It should come as no surprise, therefore, that courts that begin with finding a constitutionally protected fundamental right to education quickly progress to making policy judgments about funding levels and even curricular design. In Rose v. Council for Better Education, Inc., for example, the Kentucky Supreme Court set out the contours of a curriculum necessary for a constitutionally adequate education.72 Such a curriculum should, according to the Kentucky court, foster oral and written communication skills; provide knowledge of different economic, political, and social systems; foster mental and physical health; develop 9
resources of the state is assigned to the legislature, not to the courts, and despite the fact that the constitutional mandate that the “legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools” was expressly subject to the discretionary caveat “which may be organized and changed in such manner as may be provided by law.”77 Admittedly, precisely defining that constitutional line may be a difficult task, but some state educational provisions provide a model of judicially enforceable clauses. As noted above, Florida’s constitution was amended in 2002 to specify maximum class sizes, and Pennsylvania’s 1874 constitution contained a requirement that the legislature appropriate “at least one million dollars each year” “for the maintenance and support of a thorough and efficient system of public schools.”78 These provisions are specific enough to lend themselves quite readily to judicial enforcement and also to the argument that, by enforcing such provisions, the courts are merely giving voice to the higher mandate that the people have imposed through their state constitutions. Indeterminate provisions such as Oklahoma’s which simply direct the legislature to “establish and maintain a system of free public schools wherein all the children of the state may be educated” — and even those in other states which mandate a “thorough and efficient system” which should be “suitable” or “adequate” — are simply not susceptible to judicial enforcement of the kind pressed upon the court by the OEA and the other plaintiffs. Whether or not decisions such as those recently issued by the supreme courts of Kansas and Nevada, made possible by fundamental right determinations, result in the reallocation of state resources or the imposition of additional taxes, the fact remains that considered policy judgments of state legislatures are being altered by the courts on the basis of expansive interpretations of what is, in most cases, clearly hortatory constitutional language. Quite apart from the threat to separation of powers, such decisions also threaten the very essence of government by consent and, collaterally, the benefits to be gained from participatory democracy. The plaintiffs’ attempt to lead the court down that constitutionally problematic path should be soundly rejected.
an appreciation for the arts; and prepare students for higher education or vocational training and ultimately employment. The West Virginia Supreme Court adopted a similar approach, determining in Pauley v. Kelly that a curriculum fostering literacy, mathematical ability, knowledge of government, knowledge of one’s self, preparation for a career or further education, recreational activities, the arts, and social ethics, was constitutionally mandated.73 The Maryland Supreme Court seems to have understood that such judicial policy-making is a necessary consequence of court decisions converting aspirational goals into fundamental rights. “The right to an adequate education in Maryland,” it correctly held in Hornbeck, “is no more fundamental than the right to personal security, to fire protection, to welfare subsidies, to health care or like vital governmental services.”74 Yet when only one of those fundamentally important government services is deemed a fundamental right, courts claim for themselves the ability to vindicate that right even at the expense of other government services (or, conversely, by ordering the imposition of taxes not approved by the people’s representatives). In 2003, for example, the Nevada Supreme Court found that a core structural restriction on the taxing power of the state legislature was interfering with the legislature’s ability to fund the state’s $1.6 billion education budget, which the court found to be mandated by the state constitution (even though the only requirement in the state constitution was that the state establish a school in each district for at least six months a year — a mandate that would be accomplished at significantly less than the $1.6 billion budgeted for education). The court then issued a truly extraordinary opinion and writ of mandamus, subsequently repudiated, directing the Nevada legislature to consider tax-increase legislation by “simple majority rule” rather than by the twothirds vote required by the state constitution.75 Similarly, the Kansas Supreme Court found in 2005 that the largest education budget in that state’s history was not constitutionally adequate and so issued an order directing the legislature to appropriate additional funds to meet the court’s view of what would constitute the “suitable” funding mandated by the state constitution.76 It did so despite the fact that in Kansas, as elsewhere, the power to tax and spend the fiscal 10
Endnotes 1 Okla. Const., Art. XIII, § 1. 2 Okla. Const., Art. I, § 5. 3 Urging to some course of conduct or action; exhorting; encouraging. 4 See First Amended Petition ¶¶ 42, 48, 49, 55, and 59(h). 5 See First Amended Petition ¶¶ 1, 13, 65, 72, 79, 87, but this language simply is not found in the Oklahoma Constitution. As initially adopted in 1907, Article XIII, § 6 of the Constitution required the Legislature to “provide for a uniform system of text books for the common schools of the state” (emphasis added), but the word “uniform” was deleted in 1946 by voter initiative, and the clause now requires a committee, appointed by the Governor, “to prepare official multiple textbook lists from which textbooks for use in such schools shall be selected by committees composed of active educators in the local school districts in a manner to be designated by the Legislature.” Okla. Const. Art. XIII, § 6 (Amended by State Question No. 318, Initiative Petition No. 228, adopted at election held Nov. 5, 1946). 6 Id. ¶¶ 65, 72, 79, 87, but that language is nowhere to be found in the Constitution either. 7 Id. ¶¶ 66, 73, 80, 88. 8 Okla. Const., Art. XIII, § 1a (added by State Question No. 315, Initiative Petition No. 225, adopted at election held Nov. 5, 1946). 9 Okla. Const., Art. X, § 32. 10 Ibid. 11 First Amended Petition ¶ 22. 12 First Amended Petition ¶ 18. 13 Mass. Const. of 1780, Part the Second, ch. V, § 2. 14 Roberts v. City of Boston, 59 Mass. (5 Cush.) 198, 206-07 (1849). 15 Ind. Const. of 1816, Art. IX, § 1; Tenn. Const. of 1834, Art. XI, § 10; Ark. Const. of 1836, Art. VII, § 1; R.I. Const. of 1842, Art. XII, § 1; Tex. Const. of 1845, Art. X, § 1. 16 An Act to provide for the Government of the Territory Northwest of the river Ohio, July 13, 1787, § III, reprinted at 1 Stat. 50 n.(a), re-enacted Aug. 7, 1789, 1 Stat. 50. 17 Ohio Const. of 1802, Art. VIII, § 3; Missouri Territorial Government Act, § 14; Mo. Const. of 1820, Art. VI, § 1; Miss. Const. of 1817, Art. VI, § 16; Miss. Const. of 1832, Art. VII, § 14; Ala. Const. of 1819, Art. VI; Ks. Const. of 1855, Art. I, § 7; Nebr. Const. of 1866, Art. I, § 16; N.C. Const. of 1868, Art. IX, § 1. 18 Penn. Const. of 1776, § 44; N.C. Const. of 1776, Art. XLI; Vt. Const. of 1777, § 40; Ga. Const. of 1777, Art. LIV. 19 Vt. Const. of 1786, ch. II, § 38 (“schools ought to be maintained in each town”) (emphasis added); Vt. Const. of 1793, ch. II, § 41 (same); Penn. Const. of 1790, Art. VII, § 1 (“the legislature shall” provide for schools “as soon as conveniently may be”); Ga. Const. of 1798, Art. IV, § 13 (same). 20 See “North Carolina,” 19 The Encyclopedia Britannica 774 (11th ed., 1911). 21 Ind. Const. of 1816, Art. IX, § 2. 22 See Lewis v. Henley, 2 Ind. (2 Cart.) 332, 334 (1850). 23 Mich. Const. of 1835, Art. X, § 3. 24 Iowa Const. of 1846, Art. IX, § 3; Cal. Const. of 1849, Art. IX, § 3. 25 See First Amended Petition ¶ 38. 26 18 Mich. 400, 418 (1869) (Campbell, J., dissenting). Although Justice Campbell’s statement was in a dissenting opinion, no member of the court took issue with it; the holding by the majority was based on statutory grounds, not on a disagreement with Justice Campbell over the meaning of the referenced clause in the state constitution. Workman, 18 Mich. At 409 (Cooley, C.J.). 27 The Debates of the Constitutional Convention of the State of Iowa, at 817 (W. Blair Lord, Reporter, Davenport: Luse, Lane & Co., 1857) (statement of Mr. Harris).
28
Iowa Const. of 1857, §§ 12, 15. N.J. Const. of 1844, Art. IV, § 7, pt. 6; Ohio Const. of 1851, Art. VI, § 2; Minn. Const. of 1857, Art. VIII, § 3; Ore. Const. of 1857, Art. VIII, § 3. 30 N.J. Const. of 1844, Art. IV, § 7, pt. 6. 31 Pierce v. Union Dist. Sch. Trustees, 46 N.J. Law (17 Vroom) 76, 77-78 (1884). 32 Wisc. Const. of 1848, Art. X. 33 Ibid. 34 The State ex rel. Comstock v. Joint School District No. 1 of Arcadia, 65 Wis. 631 (1886). 35 Ibid. at 635-6. 36 Penn. Const. of 1873, Art. X, § 1 (emphasis added). 37 Okla. Const. of 1907, Art. XIII, § 1. 38 Fla. Const. of 1968, Art. IX, § 1; Scavella v. School Board of Dade County, 363 So.2d 1095 (Fla. 1978). 39 See Fla. Const. of 1968, Art. IX, § 1, as amended. 40 Ga. Const. of 1976, Art. VIII, § 1, ¶ 1. 41 Crim v. McWhorter, 252 S.E.2d 421 (Ga. 1979); McDaniel v. Thomas, 285 S.E.2d 156, 167 (Ga. 1981). 42 Idaho Const. of 1890, Art. IX, § 1. 43 Thompson v. Engelking, 537 P.2d 635, 648 (Idaho 1975). 44 Committee for Education Rights v. Edgar. 672 N.E.2d 1178, 1194-95 (Ill. 1996). 45 Me. Const. of 1820, Art. VIII, § 1. 46 Md. Const. of 1867, Art. VII, § 1. 47 Hornbeck v. Somerset County Bd. of Ed., 458 A.2d 758, 786 (Md. 1983). 48 See Mich. Const. of 1963, Art. VIII, § 2; Lintz v. Aplene Public Schools of Alpena and Presque Isle Counties, 325 N.W.2d 803, 805 (Mich. Ct. App. 1982); East Jackson Public Schools v. State, 348 N.W.2d 303, 305-06 (Mich. Ct. App. 1984); Palmer v. Bloomfield Hills Bd. of Ed., 417 N.W.2d 505, 506 (Mich. Ct. App. 1987); Feaster v. Portage Public Schools, 534 N.W.2d 242, 246 (Mich. Ct. App. 1995). 49 Rubio by and through Rubio v. Carlsbad Municipal Sch. Dist., 744 P.2d 919, 921 (N.M. Ct. App. 1987). 50 Board of Education of Cincinnati v. Walter, 390 N.E.2d 813 (Ohio 1979); Ohio Const. of 1851, Art. VI, § 2; Olsen v. State, 554 P.2d 139, 144 (Ore. 1976); Ore. Const. of 1857, Art. VIII, § 3. 51 Colo. Const. of 1876, Art. IX, § 2; Lujan v. Colorado State Bd. of Ed., 649 P.2d 1005, 1017-18 (Colo. 1982). 52 Horton v. Meskill, 376 A.2d 359, 374 (Ct. 1977); Conn. Const. of 1965, Art. Eighth, § 1. 53 School District of Wilkinsburg v. Wilkinsburg Ed. Ass’n, 667 A.2d 5, 9 (Pa. 1995); Penn. Const. of 1967, Art. III, §14; compare O’Leary v. Wisecup, 364 A.2d 770, 773 (Pa. Commw. Ct. 1976) (“A public education . . . is not a fundamental right”); Lisa H. v. State Bd. of Ed., 447 A.2d 669, 673 (Pa. Commw. Ct. 1982) (same). 54 Robinson v. Cahill, 351 A.2d 713, 720 (N.J. 1975). 55 See Matter of Wagner, 383 N.Y.S.2d 849 (N.Y. Fam. Ct. 1976) (treating the clause as creating judicially enforceable rights). 56 Plitt v. Madden, 413 A.2d 867 (Del. 1980); Del. Const. of 1897, Art. X, § 1. 57 Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 206 (Ky. 1989); Ky. Const. of 1891, § 183. 58 McDuffy v. Secretary of Executive Ofc. of Ed., 615 N.E.2d 516 (Mass. 1993); Mass. Const. of 1780, part the second, ch. V, § 2; Claremont School District v. Governor, 703 A.2d 1353, 1359 (N.H. 1997); N.H. Const. of 1784, Art. 83. 59 Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993); Minn. Const. of 1857, Art. XIII, § 1. 60 Lapp v. Reeder Public Sch. Dist. No. 3, 491 N.W.2d 65, 67 (N.D. 1992); Bismarck Public Sch. Dist. No. 1 v. State, 511 N.W.2d 247 (N.D. 1994); N.D. Const. of 1889, Art. VIII, § 1. 61 Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535, 540 (S.C. 1999); S.C. Const. of 1895, Art. XI, § 3. 62 Tennessee-Small Sch. Dist. v. McWherter, 851 S.W.2d 139, 151 (Tenn. 1993); Tenn. Const. of 1870, Art. XI, § 12. 29
11
63 Stout v. Grand Prairie Ind. Sch. Dist., 733 S.W.2d 290, 294 (Tex. App. 1987); Tex. Const. of 1876, Art. VII, § 1. 64 Darrin v. Gould, 540 P.2d 882, 888 (Wash. 1975); Wash. Const. of 1889, Art. IX, § 1. 65 Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979); W.Va. Const. of 1872, Art. XII, § 1. 66 Buse v. Smith, 247 N.W.2d 141, 149 (Wis. 1976); Wis. Const. of 1848, Art. X, § 3. 67 Vt. Const. of 1793, ch. II, § 68. 68 Brigham v. Vermont, 692 A.2d, at 394. 69 See Fla. Const. of 1868, Art. IX, § 1 (as amended 2002). 70 Wyo. Const., Art. I, sec. 23 71 See Ga. Const. of 1868, Art. VIII, § 1; Fla. Const. of 1968, Art. IX, § 1; Ark. Const. of 1874, Art. XIV, § 1; Ks. Const. of 1859, Art. VI, § 6(b) (as amended 1966); Mt. Const. of 1972, Art. X, § 1; Ill. Const. of 1970, Art. X, § 1; Va. Const. of 1971, Art. VII, § 1. 72 Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 215 (Ky. 1989). 73 Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1989). 74 Hornbeck, 458 A.2d 758, 786 (Md. 1983). 75 Guinn v. Legislature of State of Nevada, 71 P. 3d 1269, 1275 (Nev. 2003), clarified on denial of rehearing, 76 P.3d 22 (Nev. 2003), overruled by Nevadans for Nevada v. Beers, 142 P.3d 339, 348 (Nev. 2006). 76 Montoy v. Kansas, 120 P.3d 306 (Kan. 2005); see also Ks. Const., Art. VI, § 6(b) (“The legislature shall make suitable provision for finance of the educational interests of the state”). 77 Ks. Const., Art. VI, § 1. 78 Fla. Const. of 1968, Art. IX, § 1, as amended. Penn. Constit. of 1874.
Cases Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535 (S.C. 1999) Bismarck Public Sch. Dist. No. 1 v. State, 511 N.W.2d 247 (N.D. 1994) Board of Education of Cincinnati v. Walter, 390 N.E.2d 813 (Ohio 1979) Brigham v. Vermont, 692 A.2d 384 (Vt. 1997) Buse v. Smith, 247 N.W.2d 141 (Wis. 1976) Claremont School District v. Governor, 703 A.2d 1353 (N.H. 1997) Committee for Education Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996) Crim v. McWhorter, 252 S.E.2d 421 (Ga. 1979) Darrin v. Gould, 540 P.2d 882 (Wash. 1975) East Jackson Public Schools v. State, 348 N.W.2d 303 (Mich. Ct. App. 1984) Feaster v. Portage Public Schools, 534 N.W.2d 242 (Mich. Ct. App. 1995) Guinn v. Legislature of State of Nevada, 71 P.3d 1269 (Nev. 2003), clarified on denial of rehearing, 76 P.3d 22 (Nev. 2003), overruled by Nevadans for Nevada v. Beers, 142 P.3d 339 (Nev. 2006) Hornbeck v. Somerset County Bd. of Ed., 458 A.2d 758 (Md. 1983) Horton v. Meskill, 376 A.2d 359 (Ct. 1977) Lapp v. Reeder Public Sch. Dist. No. 3, 491 N.W.2d 65 (N.D. 1992) Lewis v. Henley, 2 Ind. (2 Cart.) 332 (1850) Lintz v. Aplene Public Schools of Alpena and Presque Isle Counties, 325 N.W.2d 803 (Mich. Ct. App. 1982) Lisa H. v. State Bd. of Ed., 447 A.2d 669 (Pa. Commw. Ct. 1982) Lujan v. Colorado State Bd. of Ed., 649 P.2d 1005 (Colo. 1982) Matter of Wagner, 383 N.Y.S.2d 849 (N.Y. Fam. Ct. 1976) McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981) McDuffy v. Secretary of Executive Ofc. of Ed., 615 N.E.2d 516 (Mass. 1993) Montoy v. Kansas, 120 P.3d 306 (Kan. 2005) O’Leary v. Wisecup, 364 A.2d 770 (Pa. Commw. Ct. 1976) Olsen v. State, 554 P.2d 139 (Ore. 1976) Palmer v. Bloomfield Hills Bd. of Ed., 417 N.W.2d 505
(Mich. Ct. App. 1987) Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979) Pierce v. Union Dist. Sch. Trustees, 46 N.J. Law (17 Vroom) 76 (1884) Plitt v. Madden, 413 A.2d 867 (Del. 1980) Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849) Robinson v. Cahill, 351 A.2d 713 (N.J. 1975) Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989) Rubio by and through Rubio v. Carlsbad Municipal Sch. Dist., 744 P.2d 919 (N.M. Ct. App. 1987) Scavella v. School Board of Dade County, 363 So.2d 1095 (Fla. 1978) School District of Wilkinsburg v. Wilkinsburg Ed. Ass’n, 667 A.2d 5 (Pa. 1995) Skeen v. State, 505 N.W.2d 299 (Minn. 1993) Stout v. Grand Prairie Ind. Sch. Dist., 733 S.W.2d 290 (Tex. App. 1987) Tennessee-Small Sch. Dist. v. McWherter, 851 S.W.2d 139 (Tenn. 1993) The People ex rel. Workman v. The Board of Education of Detroit18 Mich. 400 (1869) The State ex rel. Comstock v. Joint School District No. 1 of Arcadia, 65 Wis. 631 (1886) Thompson v. Engelking, 537 P.2d 635 (Idaho 1975) Statutes and Constitutional Provisions Ala. Const. of 1819, Art. VI An Act to provide for the Government of the Territory Northwest of the river Ohio, July 13, 1787, Sec. III, reprinted at 1 Stat. 50 n. a, re-enacted Aug. 7, 1789, 1 Stat. 50 (Northwest Ordinance) Ark. Const. of 1836, Art. VII, § 1 Ark. Const. of 1874, Art. XIV, § 1 Cal. Const. of 1849, Art. IX, § 3 Colo. Const. of 1876, Art. IX, § 2 Conn. Const. of 1965, Art. Eighth, § 1 Del. Const. of 1897, Art. X, § 1 Fla. Const. of 1968, Art. IX, § 1 Fla. Const. of 1968, Art. IX, § 1, as amended Ga. Const. of 1777, Art. LIV Ga. Const. of 1798, Art. IV, § 13 Ga. Const. of 1868, Art. VIII, § 1 Ga. Const. of 1976, Art. VIII, § 1, par. 1 Idaho Const. of 1890, Art. IX, § 1 Ill. Const. of 1970, Art. X, § 1 Ind. Const. of 1816, Art. IX, § 1 Ind. Const. of 1816, Art. IX, § 2 Iowa Const. of 1846, Art. IX, § 3 Iowa Const. of 1857, § 12 Iowa Const. of 1857, § 15 Ks. Const. of 1855, Art. I, § 7 Ks. Const. of 1859, Art. VI, § 6(b) (as amended 1966) Ks. Const., Art. VI, § 1 Ks. Const., Art. VI, § 6(b) Ky. Const. of 1891, § 183 Mass. Const. of 1780, Part the Second, ch. V, § 2 Md. Const. of 1867, Art. VII, § 1 Me. Const. of 1820, Art. VIII, § 1 Mich. Const. of 1835, Art. X, § 3 Mich. Const. of 1963, Art. VIII, § 2
Minn. Const. of 1857, Art. VIII, § 3 Minn. Const. of 1857, Art. XIII, § 1 Miss. Const. of 1817, Art. VI, § 16 Miss. Const. of 1832, Art. VII, § 14 Missouri Territorial Government Act, § 14 Mo. Const. of 1820, Art. VI, § 1 Mt. Const. of 1972, Art. X, § 1 N.C. Const. of 1776, Art. XLI N.C. Const. of 1868, Art. IX, § 1 N.D. Const. of 1889, Art. VIII, § 1 N.H. Const. of 1784, Art. 83 N.J. Const. of 1844, Art. IV, § 7, pt. 6 Nebr. Const. of 1866, Art. I, § 16 Ohio Const. of 1802, Art. VIII, § 3 Ohio Const. of 1851, Art. VI, § 2 Okla. Const., Art. I, § 5 Okla. Const., Art. X, § 32 Okla. Const., Art. XIII, § 1 Okla. Const., Art. XIII, § 1a Okla. Const., Art. XIII, § 6 Okla. State Question No. 315, Initiative Petition No. 225, adopted at election held Nov. 5, 1946 Okla. State Question No. 318, Initiative Petition No. 228, adopted at election held Nov. 5, 1946 Okla. State Question No. 526, Legislative Referendum No. 220, adopted at election held Nov. 7, 1978 Ore. Const. of 1857, Art. VIII, § 3 Penn. Const. of 1776, § 44 Penn. Const. of 1790, Art. VII, § 1 Penn. Const. of 1873, Art. X, § 1 Penn. Const. of 1967, Art. III, §14 R.I. Const. of 1842, Art. XII, § 1 S.C. Const. of 1895, Art. XI, § 3 Tenn. Const. of 1834, Art. XI, § 10 Tenn. Const. of 1870, Art. XI, § 12 Tex. Const. of 1845, Art. X, § 1 Tex. Const. of 1876, Art. VII, § 1 Va. Const. of 1971, Art. VII, § 1 Vt. Const. of 1777, § 40 Vt. Const. of 1786, ch. II, § 38 Vt. Const. of 1793, ch. II, § 41 Vt. Const. of 1793, ch. II, § 68 W.Va. Const. of 1872, Art. XII, § 1 Wash. Const. of 1889, Art. IX, § 1 Wisc. Const. of 1848, Art. X Wyo. Const., Art. I, § 23 Other Authorities “North Carolina,” 19 The Encyclopedia Britannica 774 (11th ed., 1911). Eastman, John C., “Adequacy and the Rights Revolution: Reinterpreting the Education Clauses in State Constitutions,” in Martin West et al., eds., School Money Trials (Brookings Institution Press 2006). Eastman, John C., “When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education, 1776-1900,” 42 Am. J. Leg. Hist. 1 (January 1998). The Debates of the Constitutional Convention of the State of Iowa, at 817 (W. Blair Lord, Reporter, Davenport: Luse, Lane & Co., 1857) (statement of Mr. Harris).
Dr. John C. Eastman is a professor of law at the Chapman University School of Law, where he also serves as director of The Claremont Institute Center for Constitutional Jurisprudence. Prior to joining the Chapman Law faculty in August 1999, he served as a law clerk with Justice Clarence Thomas at the Supreme Court of the United States and with Judge J. Michael Luttig at the United States Court of Appeals for the Fourth Circuit. After his clerkships, Dr. Eastman practiced with the national law firm of Kirkland & Ellis, specializing in major civil and constitutional litigation at both the trial and appellate levels. Dr. Eastman earned his J.D. from the University of Chicago Law School, where he graduated with high honors in 1995. He was selected for membership in the Order of the Coif and was a member of the Law Review, a Bradley Fellow for Research in Constitutional History, and an Olin Fellow in Law & Economics. Dr. Eastman also has a Ph.D. and M.A. in Government from the Claremont Graduate School, with fields of concentration in Political Philosophy, American Government, Constitutional Law, and International Relations. He has a B.A. in Politics and Economics from the University of Dallas.
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