Why Checks and Balances Need to Include the Courts

Just last week the Education Law Center, whose attorneys have litigated the landmark New Jersey school funding case in Abbott v. Burke, announced that the Education Law Center has “joined the legal teams in Maisto v. State of New York and Bacon v. NJ Department of Education, lawsuits on behalf of students in 8 Small City New York school districts and 16 poor, rural, New Jersey districts, respectively.  These cases challenge deep resource deficits and unconstitutionally low funding by each State, in violation of their state constitutions.”

It would be so nice to think that when school districts are short of money, citizens would raise their taxes to pay for what’s needed for the children. What does it say about our society that funding our schools has become deeply contentious?

According to the Education Law Center, the towns bringing the lawsuit in New York are Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie, and Utica. Together they serve 55,000 students.  All have poverty rates over 50 percent; in at least one community the poverty rate is 94 percent. “All have low property wealth and income and have experienced substantial shortfalls and state cuts in school funding in recent years.”

In New Jersey, attorneys say that a remedial order from the New Jersey Department of Education in 2009 ordered that students in 16 rural districts be fully funded under the School Funding Reform Act of 2008.  The state has not complied.  David Sciarra, executive director of the Education Law Center commented: “Governor Chris Christie’s stubborn resistance to investing in our children leaves no alternative but to take appropriate legal action.”  In New York, Governor Andrew Cuomo continues to promise tax cuts as part of his platform for reelection this coming November.

Being free from such court oversight to enforce the mandates of a state constitution appeals to Chad Readler, a Columbus, Ohio attorney who chairs Ohio’s Constitutional Modernization Commission.  Readler is also, according to Karen Kesler of StateImpact Ohio, the chairman of the Ohio Alliance of Public Charter Schools.  Kesler updates earlier reports that Readler’s goal is to have the Constitutional Modernization Commission remove protection for school funding from Ohio’s constitution by deleting this clause: “The General Assembly shall provide and fund a thorough and efficient system of common school throughout the state.” Kesler quotes Readler:  “That language has been used as a vehicle to take those disputes to court and have judges set our education policy rather than boards of education and legislatures.  And in my mind that’s a concern.  I think that boards of education and legislatures are better equipped to address education policy issues.”  (This blog most recently posted on the Ohio controversy here.)

Kesler interviews members of the Ohio Senate and the Ohio House serving on the Constitutional Modernization Commission who agree with Readler and want to remove the language that makes school funding justiciable in Ohio.  They say they want the Ohio Constitution to protect school choice instead.  Kesler also quotes Charlie Wilson, a professor at the college of law at the Ohio State University, who “fears if that language is removed, there would be no right to public education in Ohio, because the U.S. Supreme court has already held that education is not a federal fundamental right and has left it to the states.” Wilson comments, “If there’s not some kind of enforcement mechanism, then it’s very easy for the General Assembly to ignore the Constitution, and then you get to the question of why even bother having a Constitution.”

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