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Litigation for equal education: a question of interpreting state constitution

Few recent developments have shaken the education world as profoundly as the 1989 state supreme court decisions in Kentucky, Texas and Montana holding that those states' school funding systems violated state constitutional law. Ever since the Kentucky court handed down Rose v The Council for Better Education last June, a host of Illinois school reform advocates (including professors James Nowlan, Alan Hickrod and David Franklin), under the rubric of the Coalition for Educational Rights Under the Constitution, have been exploring the prospects for a similar legal challenge in this state. Indeed, it is all but a foregone conclusion that a lawsuit will be filed by someone, perhaps as early as this summer.

The success — or failure — of such a lawsuit is not a foregone conclusion, however, despite what you may read or hear to the contrary. The odds run from even to 10-1 against the prospective plaintiffs, depending upon who's doing the handicapping.

You could write a book about the legal and political ramifications of a school funding lawsuit in Illinois (some enterprising scholar undoubtedly will). Here is a quick look at some of the constitutional issues at stake in such a challenge, with a glance over the shoulder at similar lawsuits in other states and some informed speculation about the prospects for victory.

To begin with — and this is important — plaintiffs around the country are bringing the current round of school funding lawsuits under various state constitutions, not under the federal Constitution. The federal battle for school funding equity was waged and lost nearly two decades ago under San Antonio Independent School District v Rodriguez. In Rodriguez the U.S. Supreme Court upheld, under the federal Constitution, the same basic Texas school financing system that was struck down last fall under the Texas Constitution.

The Texas school finance system upheld in is, in fact, strikingly similar to Illinois': The state guarantees a minimum number of dollars per pupil but permits local districts to supplement the minimum without limit, resulting in spending levels in property-rich districts much higher than those in the poorest districts. The Rodriguez plaintiffs argued that this disparity — this unequal treatment of selected citizens —amounts to denial of equal protection, guaranteed under the federal Constitution, to students in property-poor districts.

Unfortunately for the plaintiffs, not all kinds of unequal treatment by the states violate the equal protection clause of the 14th Amendment. In fact, state governments are pretty much free under the federal Constitution to enact laws favoring one group over another unless they are discriminating against a constitutionally protected "suspect class'' — for example, blacks, clearly among the intended beneficiaries of the post-Civil War constitutional amendments like the 14th — or they are denying a "fundamental right" — for example, free speech, which is protected by the First Amendment.

When laws burden a suspect class or infringe upon a fundamental right, courts subject those laws to "strict scrutiny," which means the state must prove that the laws are "narrowly tailored" to serve a "compelling state interest," to use the judicial buzz-phrases. Don't worry if this seems fuzzy. The important thing to know about the "strict scrutiny" test is that it's very difficult for the government to pass.

The Rodriguez plaintiffs lost primarily because of two findings by the Burger court: First, education is not a fundamental right under the federal Constitution; second, there was no definable class of' 'poor'' victims in the case because some wealthy people live in poor districts and vice versa. No fundamental right or suspect class — no strict scrutiny; no strict scrutiny —no

The success or failure of such a lawsuit is not a foregone conclusion . . .

equal protection clause victory for plaintiffs. That's how it usually goes in these cases, and that's how it went in Rodriguez.

This effectively closed the door on federal litigation over school funding, although some scholars see a glimmer of hope for plaintiffs who might bring challenges under other federal constitutional provisions (notably the 14th Amendment due process clause). As a practical matter, though, the action is now in the state courts, where plaintiffs have fared much better overall.

Here's where the critical difference between state and federal challenges becomes important. If the Rodriguez plaintiffs had won, every similarly situated plaintiff in every state would have shared in the victory because the federal equal protection clause applies to all the states. On the other hand, the plaintiffs' victory under the Texas Constitution in Edgewood Independent

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School District v Kirby controls only Texas courts and Texas schools. The decision is not legally binding in Illinois or any state other than Texas. It may influence judges in other states, but only if they choose to be influenced. Each state constitution is unique, and so is every state constitution-based school funding challenge.

Such challenges are nothing new, although the Kentucky, Texas and Montana lawsuits are the most recent and best publicized. Disgruntled citizens challenged the Maine system in the early 1900s, and since then litigation has worked its way to the highest state court in at least 26 states. Of these challenges 14 have failed and 12 have succeeded.

A part from being the newest decisions, though, the Kentucky, Texas and Montana cases are different by virtue of the part of the state constitution that courts used to strike down their school funding systems. Most other school funding challenges were decided at least in part under slate equal protection provisions, which typically resemble the federal equal protection clause at issue in Rodriguez, at least in their interpretation. State courts that found education to be a "fundamental right" or plaintiffs from poor districts to be part of a "suspect class" under their state constitutions generally struck down their school finance systems, and vice versa. But the three most recent school funding suits were decided under state education provisions, for which there is no federal counterpart.

The Rose decision from Kentucky has been criticized as less than a model of clarity. Essentially, though, the court interpreted a provision in the state constitution referring to an "efficient" system of public education to require that the state provide, among other things, "common schools [that are] substantially uniform throughout the state" and "equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances.'' It ruled that the then-current system fell short, found the entire school system — not just the financing scheme, but the entire system — unconsitutional and essentially ordered the legislature to create a new one from scratch.

The Edgewood decision from Texas, which gets higher marks from legal scholars than Rose, also interprets the term "efficient" to require a high level of equity. According to the court, the framers of the constitution "stated clearly that the purpose of an efficient [education] system was 'the general diffusion of knowledge,' " but inequities among districts under the present system produce a "limited and unbalanced" diffusion of knowledge instead and are "directly contrary to the constitutional vision of efficiency."

That, briefly, is the track record in other states. (We won't go into the Montana decision here, but the case name is Helena Elementary School District No. 1 v State.) What about Illinois? The two obvious bases for an Illinois school finance challenge are the familiar ones — the equal protection clause and education article of the state constitution.

Under Article I, section 2 of the Illinois Constitution, "[N]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the law." Though the state and federal constitutions are separate documents, Illinois courts tend to apply the familiar federal analytical framework to the state equal protection clause — that is, an equal protection claim probably won't succeed unless the court deems education a fundamental right under the Illinois Constitution or finds plaintiffs to be members of a suspect class.

Here's where the plaintiffs might seem to have a big advantage under the Illinois Constitution as opposed to the federal Constitution; unlike the latter, the Illinois charter has an education article, the first paragraph of which says that a "fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.'' That would seem to settle the question whether education in Illinois is a fundamental right — right?

Unfortunately for the prospective plaintiffs, it's not so simple. Other states with similar language have found education not to be a fundamental right under their constitutions. Furthermore, education is not one of the rights set forth in the Illinois Constitution's bill of rights. "Transportation is mentioned in the Illinois Constitution as well as education, and nobody argues that transportation is a fundamental right," said University of Illinois education professor James Ward, a proponent of more equitable funding but an outspoken opponent of litigation as a means to that end, at least for Illinois.

As to whether poor people make up a suspect class, the Illinois Supreme Court wrote in another context in the 1980 decision, Illinois Housing Development Authority v Van Meter, that poverty "does not constitute, per se, a suspect classification" (This assumes that the court would find an identifiable class of poor victims to begin with; remember that the U.S. Supreme Court in Rodriquez did not.).

Does this mean that the Illinois Supreme Court simply wouldn't find education to be a fundamental right or plaintiffs

Each state constitution is unique . . . so is every state constitution-based challenge

in poor districts to be members of a suspect class? No. The point is that just because an education clause in the constitution refers to education as a "fundamental goal" doesn't mean that education is automatically a "fundamental right" under the state's equal protection clause.

But while the plaintiffs' prospects under the equal protection clause may be iffy, the recent pro-plaintiff decisions in other states have rested entirely on those states' constitutional education clauses. How might such a challenge take shape in Illinois?

In addition to the "fundamental goal" paragraph, the education article contains two others. Let's look at the last one first.

Paragraph 3 says that the "State has the primary responsibility for funding the system of public education." In Blase v State, a 1973 case, the Illinois Supreme Court addressed the

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question whether that paragraph obliged the state to provide at least 50 percent of public school funding in Illinois. The plain meaning of the provision would seem to require the state to pay most of the freight for school funding. But the court turned to the constitutional debate for help in interpreting the term, and it found powerful evidence that the delegates intended otherwise.

In fact, this "primary responsibility" provision was an alternative to another, proposed by a majority of the education committee, which provided that "substantially all funds for the operation of the free public schools shall be appropriated by the General Assembly" and that the local contribution to school funding be limited to 10 percent of the legislature's contribution to a given district. This provision simply went further than a majority of the delegates was willing to go and was rejected.

The current paragraph 3 was offered by convention delegate Dawn Clark Netsch (now a state senator and the Democratic candidate for comptroller) with this disclaimer: "[The phrase 'primary responsibility'] is not a legally obligatory command to the state legislature.'' The Supreme Court looked to Netsch's comment in deciding that "it cannot be said that the sentence in question was intended to impose a specific obligation on the General Assembly" and found against the plaintiffs.

As proponents of school finance litigation quite rightly point out, this decision did not reach the questions of inequity and inadequacy that will be at issue in the challenge currently being considered. It merely says that the state constitution doesn't oblige the General Assembly to provide at least 50 percent of school funding.

That brings us to paragraph 2 of the education clause, where many experts think the battle is most likely to be fought. Paragraph 2 contains the word "efficient," whose interpretation was at the heart of the dramatic Texas and Kentucky decisions, and the apparently promising term "high quality" as well. The first sentence reads: "The State shall provide for an efficient system of high quality educational institutions and services." As we've seen, both the Texas and Kentucky decisions interpreted the word "efficient" to require some measure of equity, at least a greater measure than those states' funding systems were providing. The question is, would Illinois courts find the same?

As it happens, "efficient" is a word about which the framers of the Illinois Constitution had little to say; the record indicates that they simply pulled the word out of the education clause of the 1870 constitution and inserted it into the 1970 one, intending to perpetuate the law interpreting it.

In fact, a number of cases over the years have recuired Illinois courts to interpret the word "efficient" from the education clause. Most have concerned whether district boundaries are drawn "efficiently," and the courts generally have deferred to legislative judgments ("We have repeatedly held that the question of efficiency ... is solely one for the legislature," the Illinois Supreme Court said in the 1951 case, McLain v Phelps.).

To the extent that there is a track record on "efficiency," then, it appears to favor the prospective defendants. But it is one thing to define the word in the context of a relatively minor battle over the shape of a school district, and another to do so in the midst of a colossal fight over the shape of the school funding system.

Ward offers this assessment, a sobering one from the plaintiffs' perspective: "Many prospective plaintiffs are basing support on the Kentucky and Texas cases, which turn on the definition of the word 'efficient' in those state constitutions, and essentially the courts in those two cases have said that efficiency requires the equitable distribution of resources. Unfortunately, at the same time Illinois delegates were putting the word 'efficient' into the constitution, they rejected several attempts to put in language that would assure nearly equal distribution of resources. So it would require a great deal of creative rewriting of history to argue that the framers of the 1970 Constitution were discussing equitable distribution of resources when they used the word 'efficient.' "

On the other side, Robert Lenz, a Bloomington lawyer who has worked with the Coalition for Educational Rights Under the Constitution, argues that divining the intent of the delegates on most matters is very tricky business. "That floor debate is a swamp — a very, very messy swamp when you try to go bad and ask, 'Precisely what did a given number of constitutional delegates intend about a given matter?' I've read the debates carefully, and I don't think an examination of the transcripts is going to settle the issue one way or the other."

As for the term "high quality," the constitutional convention debate again contains some comments that would seem not to help the prospective plaintiffs' cause. For example, when asked to define the term, education committee member William Fogal said that "[w]e had in mind the highest, the most excellent educational system possible; leave this up to determinations of the legislature and your local districts. ..."

Did delegate Fogal speak for the majority? Again, Lenz and other lawsuit proponents would argue that it's impossible to say. Lenz makes another point as well: "In most lawsuits involving constitutional and legislative provisions, courts first look at the plain language of a provision. They'll say, 'The plain meaning of these words in 1990 is thus and so,' and whatever the debate might have been 20 or 25 years ago is not controlling. If they cannot discern a plain meaning, they may go back and try to determine what was intended from what was said on the floor of the convention." And if they go to the floor, he says, they'll find a confusing, conflicting hodgepodge of mixed messages.

So there you have it. The case seems to be up for grabs, with the cards perhaps stacked against the plaintiffs. One thing is clear — whether the law is on the plaintiffs' side may be debatable, but there is little doubt over the fact that the richest districts in Illinois spend roughly three and a half times as much per pupil as the poorest. Obviously, proponents of school finance reform litigation hope the facts will be so powerful that they "shock the conscience of the court" and produce a decision driven by the court's desire for a just result.

Mark Mathewson is managing editor of the Illinois Bar Journal. He holds the J.D. from the University of Illinois College of Law and a master's degree in writing from the University of Iowa.

16/May 1990/Illinois Issues

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