Many public schooling advocates chafe at our constitutional tradition that public moneys be appropriated only at the behest of voters or their elected lawmakers, since it means school budgets often wind up getting rejected, trimmed, or balanced off against other budgetary priorities. As I’ve noted previously in this space, a well‐organized, foundation‐backed movement has pursued litigation around the 50 states urging courts instead to seize control of school funding in the name of “equitable” or “adequate” school funding.
Such an effort succeeded last week in Kansas, where the state supreme court ruled in favor of a challenge and “ordered increases by July 1 that, according to the state Department of Education, would total $129 million annually.” The case will go back to litigation in a lower court and conceivably could result in further court decrees that could be broader and much more expensive. The Kansas affiliate of the National Education Association can hardly contain its jubilation, while the Associated Press writes that “If the courts order more spending in the future, lawmakers may have to reconsider personal income tax cuts in 2012 and 2013 that were championed by [Gov. Sam] Brownback.”
As I wrote a while back on New Jersey’s Abbott school finance litigation (one broken link removed):
school reform lawsuits like Abbott are much more than just vehicles for inefficiency and waste of tax dollars: they’re examples of an alternative method of governance.… Typically, successful litigation of this sort transfers control over an important issue like school funding from branches of government that are accountable to taxpayers and voters to a cluster of private litigators, expert witnesses, special masters, consultants, law professors, backers in liberal foundations, and so forth. The legal basis for the power grab is often flimsy in the extreme; in the Garden State, for example, the state constitution vaguely mandates that there be a “thorough and efficient” system of public education, and “educational equity” lawyers have prevailed on the courts to erect the whole thirty‐year edifice of Abbott orders on a filling in of those mysterious blanks, a process that Gov. Christie has accurately described as “legislating from the bench”. (Our friend Hans Bader at CEI has more here.) In New Jersey, as in many other states and cities subject to these suits, governors and legislators may come and go, but the permanent government of court orders and negotiated consent decrees grinds on and on, conferring a curiously unaccountable power on the lawyers who manage and advance the litigation and their circle of allies.