Courts as Catalysts: State Supreme Courts and Public School Finance Equity

Howard, Robert M

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. But for the court, the reform of school financing would not have occurred or would have looked very different.

To provide evidence for his argument, Bosworth developed a questionnaire for each state and then used the questionnaire to interview key policymakers to assess the influence of the courts on reforming education finance in their respective states. In addition to these interviews (the questionnaires for each state are presented in the appendix), Bosworth supplements the interviews with newspaper articles, editorials, public opinion information, and other sources. Through this process, Bosworth argues, he is able to assess and cross-check the reliability of the responses and assess the influence of all the key actors in the process, including the media, public opinion, interest groups, the legislature, and the executive, as well as the courts.

Through the use of this data in chapter 3, Bosworth argues that the Texas court, through a series of decisions, kept forcing a reluctant legislature to continually revisit the finance issue until it developed a school finance plan acceptable to the court. This incremental approach frustrated and annoyed the legislature, although Texas ultimately adopted a more equitable school-funding scheme. Ultimately, Bosworth argues that the lack of a strong ideological opposition in the legislature, and fear of electoral retribution should the court shut down the school system, allowed the court to push the legislature to change school funding.

The situation in the other two states was quite different. In chapter 4, the Kentucky court did not issue incremental rulings that nudged the legislature to change and modify school finance, but instead issued an initial sweeping ruling that led to fundamental change in school financing. Although in Kentucky the governor and legislature were distrustful of each other, the court was able to effect change because the decision appeared to enjoy broad institutional and public support. In chapter 5, the court in North Dakota, unlike the other two states, refused to overturn the state’s school-funding scheme. The North Dakota Constitution required a “supermajority” of the justices on the state supreme court (four out of five) to declare an act of the legislature unconstitutional, and in this case only three justices, not four, voted to overturn the current scheme of public school financing. However, the chief justice, while sustaining the funding scheme, in essence issued a “threatening” opinion. He urged the legislature to change the current method of school finance and threatened to revisit his opinion in the future. The North Dakota legislature, perhaps in response, did alter the school-funding scheme, although not as dramatically as in Texas or Kentucky.

Based on the evidence presented in these three chapters, Bosworth in the book’s final chapter argues that, contrary to Rosenberg, courts can push social reform. Courts are an important step in the policy process, and while perhaps they are not a sufficient condition for social change, they are a necessary and important player in the policy process. The courts can act as catalysts, negotiators, or even prodders to produce subsequent legislative action. It is an impressive bit of research and well argued.

However, having said that, there are still several unaddressed issues and missing items that would have significantly strengthened the book. For example, in the literature review, Bosworth fails to mention several important works by other policy and public-law scholars, such as Terry Moe, B. Dan Wood, John Scholz, Jerry Mashaw, and Robert Kagan, among others, who have systematically examined the influence of courts on public policy. There is also significant work on the theory of diffusion-how legislative or social change in one state often leads to the social or legislative change in other states. Much of this work supports Bosworth’s thesis and would have aided in the development of his argument.

Some additional development of the argument is needed because Bosworth fails to address two critical differences between his work and that of Rosenberg. First, Rosenberg’s work looks at the United States Supreme Court and federal policy, while Bosworth examines state supreme courts and state policy. There is a very different dynamic involved in each-different cultures, different concerns, and different motivations. Supreme Court justices are appointed for life, usually do not seek other offices, and are far removed from direct involvement in the policy process. Few members of the current Supreme Court, for example, have any legislative or electoral experience.

That is not the case with many state court justices, who must seek election or confirmation, often have moved from legislative positions, and usually belong to the same cultural and political elite as other members of the executive and legislative branches. Then too, state policy can “diffuse” or move from one state to another, unlike policy at the federal level. Recognition and discussion of these similarities and differences would have aided the reader in a true comparison to Rosenberg’s thesis.

Rosenberg also examined several different issues, from integration to abortion to search and seizure. Bosworth, by contrast, only examines the issue of school finance reform. Without any evidence from other policy domains, the reader is left to wonder about the generalizability of Bosworth’s study. Because of the value Americans place on education, the impact of school prestige on real estate prices, and the general anti-tax climate of the Reagan and post-Reagan years, school choice is perhaps the most salient and important state and local policy topic of the past quarter century. Because of this, one wonders if the political dynamic of school funding is very different from most other state and local policy issues. Bosworth should spend some time addressing this concern.

Finally, there is so much material presented here that is difficult for the reader to digest everything. Some tables for each chapter would help. For example, Bosworth cites the three different education clauses in various state constitutions. A table placing each state with the appropriate clause would help the reader. In the three state chapters the history of education finance reform in each state would be much easier to follow if the reader had a chronological table.

Despite these criticisms, I do strongly recommend this book to anyone interested in learning more about the influence of courts on social policy and public school finance reform.

Copyright National Center for State Courts 2003

Provided by ProQuest Information and Learning Company. All rights Reserved

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