Protecting Ourselves from the Vagaries and Blindness of Our Politics

At the end of last week, the Education Law Center sent out an excellent and lucid summary of the significance of the recent state supreme court decision on Kansas school finance, Gannon v. State of Kansas.  I urge you to read it, for it explains the issues in the clearest possible way.  Make no mistake, adequate school funding (How much is enough?) and equitable distribution of school funding are very likely pertinent matters in your state, too.  After all, according to the Center on Budget and Policy Priorities, 34 states are spending less on public education than they did in 2007 prior to the Great Recession.  Some of this is due to ongoing economic troubles; much of it relates to the politics of austerity budgeting.

The Kansas court spoke to another matter, however, that I had never considered worrying about: are issues of school funding justiciable—subject to judicial review?   In its description of the case, the NY Times elaborated: “The court rejected the contention that it lacked the authority to make decisions on school funding, saying that it has the duty to determine whether legislative acts comply with the Kansas Constitution. ‘The judiciary is not at liberty to surrender, ignore or waive this duty,’ the decision said.”

Remembering my civics class lesson about the checks and balances provided by the three branches of government—legislative, executive, and judicial—I had never considered the possibility of losing the protection provided by court oversight, but now I learn this might be in question.  The Education Law Center reports that in Kansas, defending itself against the parents who brought the case to protest deep cuts in the funding of Kansas’ public schools, “the state argued that the legislature had the sole decision making authority over school funding.” However, in its decision the state’s supreme court decided otherwise, explaining “that the Kansas Constitution assigns to the judiciary the duty and responsibility to interpret the constitution and determine whether acts of the legislature violate it.”

Because of secretive political organizations that reach out to push the same menu of far-right policies to state legislators across the 50 state governments— organizations like the American Legislative Exchange Council and the State Policy Network of extremely conservative think-tanks—today we are watching as the same policy proposals pop up again and again from state to state—right to work, tax cutting and austerity budgeting, school vouchers, grading schools A-F, and so on.

One reason that the justiciability of school funding caught my eye in the Kansas case is that the same issue has suddenly emerged in my own state.  I recently received an update from Bill Phillis at the Ohio Coalition for Equity and Adequacy of School Funding about my state’s “Ohio Constitutional Modernization Commission” which Phillis reports is currently, “in the process of formulating recommendations for changes in the Ohio Constitution.”  One of the provisions this commission is said to be considering is “removing the courts from any decision related to school funding.”

I can certainly imagine why some of Ohio’s politicians would wish to remove the huge fiscal responsibility for funding schools from the court’s protection at this time when the legislature has perpetually cut taxes with the dream (unsuccessful so far) of luring businesses to Ohio.  Recently the Plain Dealer published a 30-year history of Ohio tax cutting:  “In 1985, legislators…  cut the income tax by 15 percent over three years.  Effective in 1987, they cut the income tax again.  In 1996, they created a mechanism to cut the income tax when Ohio runs a surplus.  In 1997, they indexed the personal exemption to inflation; and in 2005, they cut the income tax by 21 percent over five years.  What’s more, Ohio’s current budget, signed by Kasich last June, cuts the income tax by 10 percent over three years.”  Last month Governor John Kasich proposed another cut in the income tax.

Our state constitutions enshrine the lofty principles our forebears sought to protect.  The Education Law Center quotes the March 7, 2014  decision in Gannon v. State of Kansas: “Matters intended for permanence are placed in constitutions for a reason—to protect them from the vagaries of politics….”   Today we live in a time when the very idea of public education is endangered through de-funding and privatizing schools, and scapegoating school teachers.  Are we too close to our politics today to even realize these are the threats from which our founding documents were meant to protect us?

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