Courts as Catalysts: State Supreme Courts and Public School Finance Equity
Howard, Robert M., Justice System Journal
Courts as Catalysts: State Supreme Courts and Public School Finance Equity, by Matthew H. Bosworth. Albany: State University of New York Press, 2001.
Matthew Bosworth has written an engaging and informative book that should contribute to both the law and courts and school finance literature. To his credit, Bosworth wades directly into very controversial areas in both public law and school finance. While he offers no definitive proof for his positions, he offers both a compelling argument and substantial evidence for his assertions that courts can influence public policy and that courts have substantially contributed to more equitable public school financing in three states.
The extent to which courts can (and should) shape public policy is one of the major debates in the field of law and courts. This has been particularly true since the publication of Gerald N. Rosenberg's influential and controversial book The Hollow Hope: Can Courts Bring About Social Change? in 1991 (Chicago: University of Chicago Press). Rosenberg argued that, in general, courts were unable to achieve social reform unless the executive and legislative branches of government accepted the courts' position. Bosworth refutes this argument through a case study analysis of three state supreme courts and their respective impact on public school finance systems. By analyzing the extent of courts' impact on school finance reform, Bosworth also offers his assessment of the role courts play in school finance, a major topic of debate among scholars who examine this specific policy issue.
Bosworth divides his book into six chapters. In the first two chapters, he lays out the basic arguments about courts and social reform and the history of school finance reform. In the first chapter he reviews much of the important literature in the area of courts and their influence on social policy, and, in particular, he discusses Rosenberg and the subsequent scholarly reaction to, and criticism of, Rosenberg's thesis of lack of court effectiveness in influencing social reform. Bosworth also discusses the normative implications of courts moving public policy, although this is not a major theme of the book.
In the second chapter, Bosworth reviews the history of school funding and school finance litigation. As Bosworth notes, the Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S.1 (1973), effectively foreclosed using federal courts to achieve equity in school funding when the court ruled that equal funding of education was not a fundamental United States constitutional right. This decision gave impetus to an already developing movement to use state courts and to rely on state constitutions to equalize funding for public schools. Although this movement initially sought to use state equal protection clauses, plaintiff litigants soon turned to state educational constitutional clauses. Bosworth notes that although every state constitution contains an education clause, the clauses fall into three categories. The first calls for "free public schools," the second calls for schools to be "uniform" throughout the state, while the third type of constitutional provision mandates that the state have a school system that is "thorough and efficient." The more precise the education clause, the more success litigants have had in changing the school-funding system.
To demonstrate his argument, Bosworth presents three case studies. Specifically, he examines the history and outcomes of school finance litigation in Texas (chapter 3), Kentucky (chapter 4), and North Dakota (chapter 5). All three present different court outcomes, different legislative and executive relationships, different responses to the litigation, and, finally, varying degrees of success in achieving school finance equity. While each state presented a different set of facts and a different outcome, in all three the court acted as a "catalyst" in forcing change in school finance policy. …