The Meaning of State Constitutional Education Clauses: Evidence from the Constitutional Convention Debates

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"No court--believe me, and any judge will confirm this and any legislator, too--is ever going to review a legislative determination of what is adequate...." (1)

I. INTRODUCTION

The meaning of state constitutional education clauses has attracted increasing attention in the last several decades as a result of numerous state court decisions. (2) On some occasions, state education clauses have served as vehicles for "equity" lawsuits seeking to overturn inter-district disparities in per pupil financing. (3) More frequently, and particularly during the post-1989 wave of school-finance suits, state education clauses have given rise to "adequacy" lawsuits seeking to compel legislatures to ensure a minimum level of school funding or student achievement. (4) In Bush v. Holmes, the Florida Supreme Court highlighted still another use of these clauses when it interpreted "uniformity" language in the state education clause to invalidate a private-school voucher program. (5)

A significant amount of research has been conducted on the consequences of these judicial interpretations of state education clauses, particularly the "adequacy" rulings, which began in 1989 with the Kentucky Supreme Court's ruling in Rose v. Council for Better Education, Inc. (6) and have been handed down routinely since then with twenty cases decided in favor of the plaintiffs and twelve others pending. (7) Although evidence is mixed regarding the effect of these rulings on school spending levels, (8) there is widespread agreement that they have had significant consequences for legislators who have seen control of key education policy decisions transferred from elected officials to outside experts, administrators, and judges. (9) In fact, in New York, such an interpretation of the state education clause at one point resulted in a $5.63 billion judgment for the plaintiffs. (10) Although most adequacy judgments have been nowhere near as grand in scale as the New York litigation, these state court rulings have had significant consequences for state legislatures around the country (11) and have dominated the legislative agenda in a number of states. (12)

In view of the important role played by state education clauses in generating these "equity," "adequacy," and "uniformity" lawsuits, the question naturally arises as to whether they were intended to be interpreted in such a manner. That is, to what extent were these clauses intended to empower courts to overturn legislative judgments regarding school financing and to what extent were they intended to serve other purposes?

For the most part, scholars who have studied the meaning of state education clauses have been concerned with analyzing and categorizing their current language. The most widely used categorization scheme was first advanced by Erica Black Grubb and divides the current clauses into four groups, ranging from weak clauses that simply establish a school system, to clauses mandating a thorough and efficient school system, to clauses containing language regarding the purpose and/or benefit of a quality education, all the way to clauses proclaiming education to be a paramount duty or mandating other specific duties. (13) Meanwhile, Molly McUsic identified various problems with this categorization and advanced an alternative scheme that divides state clauses into equity and minimum-standards clauses, and then further subdivides the latter group into four tiers ranging from bare-minimum standards clauses to explicit high-quality standards clauses. (14) However, still other scholars have expressed dissatisfaction with these various efforts to categorize the language of education clauses and have concluded that "disembodied parsing of constitutional terminology may be of limited or no value." (15)

Another group of scholars has sought to determine the meaning of these clauses by tracing their origin and development. One way of tracking the development of the language of these clauses is by comparing the various compendia of state education provisions that have been assembled through the years, beginning with Franklin B. …