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School-funding Showdown?
By Glenn Sheller
Dispatch Editorial Writer
If lawmakers and justices can’t agree, what
then?
Sometime after its June 15 deadline, the Ohio Supreme Court will
rule for the third time on whether state lawmakers have created
a constitutional method of financing elementary and secondary education
in Ohio.
So far, lawmakers have failed to meet the court's demand for a complete
overhaul as outlined in two previous decisions in DeRolph vs.
State of Ohio.
The primary demand in both rulings was for the state to end its
over reliance on local property taxes to pay for schools. To date,
the General Assembly has proposed nothing that fundamentally alters
this dependence, apparently believing that a sales tax increase
or imposition of statewide property taxes is politically impossible.
So what happens if the court decides lawmakers' efforts still are
not up to snuff and lawmakers declare they can (or will) do nothing
more?
In that event, Ohio would find itself in a so-called constitutional
crisis -- a situation in which two branches of government are in
a standoff, with no prescribed solution.
There is no clear way to resolve such an impasse. The Ohio Constitution
affords each branch various means to put pressure on the other,
but how far the legislators and justices might go would be the result
of a complex political calculation. Each body would have to weigh
the political cost of playing hardball against that of losing a
confrontation.
Fundamental constitutional questions are in play. By ordering the
state to overhaul the school-finance system, has the court intruded
too far into the policy-making function reserved to the legislature?
Would the legislature dare to buck the long-accepted power of judicial
review? If the court prevailed, would it mark a fundamental realignment
of political power between these branches of state government? If
the legislature prevailed, would the court be diminished?
Most important, where would public opinion fall? A recent survey
of Ohioans showed 52 percent are willing to pay more state taxes
to improve schools. Yet less than three years ago, voters rejected
a penny hike in the state sales tax that was intended to raise more
than $1 billion a year to help schools and reduce local property
taxes, both of which would have gone some way to addressing the
court's demands for change.
Justice Alice Robie Resnick, who wrote the court's most recent DeRolph
decision, was handily re-elected in November in spite of a massive
effort to unseat her. Was this the public's way of endorsing the
Supreme Court's ruling on school funding? Perhaps, but Justice Deborah
Cook, who dissented from Resnick's opinion, also was re-elected.
If a public mandate exists, what is it?
These are the factors that would be in play if the court and the
General Assembly found themselves in confrontation.
COURT'S OPTIONS
Here, according to legal experts, are some of the
things the court could do:
Specify minimum standards and services for all
students, then tell the General Assembly to enact and pay for them.
Supreme courts in other states have taken this step,
but so far, the Ohio Supreme Court has not. David N. Mayer, professor
of law and legal history at Capital University, believes that such
a move would violate the separation of powers among the three branches
of government. Deciding educational standards and services is a
policy matter, and therefore reserved to the legislature, Mayer
argues.
But Herbert R. Brown, former justice of the Ohio Supreme Court,
said that while policy decisions primarily are the domain of the
legislature, he believes the Ohio Constitution's requirement that
the legislature create a "thorough and efficient" system
of common schools leaves the courtroom to define what thorough and
efficient means. Having done this, the court may determine if the
legislature's provisions meet those requirements. But Brown believes
the court would be overstepping its bounds to detail to the legislature
what provisions to enact. In short, the court can judge what lawmakers
do, but it cannot tell them what to do.
David A. Goldberger, a professor of law at Ohio State University,
believes such a court decision would be constitutional to the extent
that the education standards are drawn from the record put before
the justices in the DeRolph case. That record includes much testimony
about the essential elements of an adequate education. The record
also includes a friend-of-the-court brief filed by Goldberger in
support of the 550 school districts that successfully challenged
the constitutionality of the school-funding system in the DeRolph
case.
But for Goldberger, the problem is enforcement. The court could
issue such an order, but it would lack a way to compel lawmakers
to comply if they decided to buck the traditional deference paid
to the judiciary.
Issue an interim funding order.
The New Jersey Supreme Court has issued such orders,
but so far, the Ohio court has said it "declines to pursue
that course. That degree of involvement in fashioning a remedy in
this case is not, nor should ever be, how we perceive our role.
Our role, as we have declared in past cases, is to decide issues
of constitutionality -- not to legislate, as some may believe."
Brown and Mayer agree that such an act would be going too far. Brown
said the court can tell lawmakers that they are not spending enough,
but "to tell the legislature how much money to spend, that
bothers me."
Goldberger again cited enforceability as a problem.
Appoint a special master to help fashion a remedy.
Brown said the idea has possibilities and dangers.
If the special master is appointed to determine what minimum standards
are needed for a thorough and efficient education, he said, that's
fine. "If it's to tell the legislature what to do, then you've
got a problem," he said. Using a special master doesn't give
the court more authority; it just gives the court another way to
exercise that authority, he added.
Mayer made the point even more strongly. If the special master were
instructed to come up with a remedy, it would be a naked and unconstitutional
foray into policy-making by the court, he said.
A special master might be useful as a mediator, said Goldberger,
and appointing one might be a more reliable way to reach a decision
on minimum standards and funding than the adversarial method employed
in a court. But if the legislature proved recalcitrant, the special
master could do nothing more than the justices themselves, he said.
Issue an injunction stopping funding of schools
until the legislature responds with a constitutional school-funding
plan.
Brown noted that such an order presumes that state
officials would obey it.
Supreme courts in Texas and New Jersey successfully used this expedient
to compel lawmakers to meet judicial demands for changes in school
funding. Mayer believes it would be up to state and local officials
in Ohio to ignore the injunction.
"If the court tries to order the General Assembly to do something
or to order the schools to do something which clearly is stepping
out of the court's legitimate function, than any government official
who took an oath to support Ohio's Constitution is bound to disobey
that injunction."
Mayer emphasized that far too many people, especially lawyers, fail
to recognize that courts can act unconstitutionally. The court's
power to judge the constitutionality of legislative acts does not
put the court above the Constitution or entitle it to exceed the
authority the Constitution allots to the judicial branch.
But Goldberger said the court could enjoin the use of local property
taxes. Such a move would be constitutionally valid, he said, because
the court already has declared the current school-funding system,
with its over reliance on local property taxes, unconstitutional.
"So they just say, 'You can't do it any more.' "
Hold the legislature or its officers in contempt.
"If the court does that, that would be close
to a declaration of war," said Mayer. "In turn, the legislature
should defend the court and institute the proper remedy, and that
is impeachment proceedings against any justice who supported that."
Brown also said the legislature could retaliate by cutting off funding
to the Supreme Court.
Goldberger was dubious about the constitutionality of such an action
by the court. The political costs would be high, too, since it would
mean ordering fines or jail terms for lawmakers. "I think that
would be a mistake," he said. "It's an unmanageable alternative,
as well as politically unwise. It would polarize people."
LEGISLATURE'S OPTIONS
As Mayer and Brown noted, the General Assembly also
has political tools at its disposal. Besides cutting funding for
the Supreme Court, lawmakers could:
Impeach one or more justices.
Mayer said the Ohio Constitution gives the legislature
the authority to remove justices. "It's part of the arsenal
intended to give the General Assembly something it could use against
an out-of-control judiciary," he said.
The framers of the document included not one, but three separate
provisions for the removal of judges. One of them -- Article 4,
Section 17 -- allows removal of a judge for any complaint serious
enough to win a two-thirds vote in the Ohio House and Senate.
But while Mayer views impeachment with favor, Goldberger is horrified
at the prospect.
"It would be absolutely disastrous, and probably political
suicide for the people who initiated impeachment proceedings,"
he said. "That would be seen as retaliatory, just as holding
the legislators in contempt would be seen as retaliatory. That's
not the way people in Ohio like to do business."
Ask Ohio voters to approve a constitutional amendment
rewriting the "thorough and efficient" clause.
In recent years this idea has been floated several
times, inside and outside the legislature. Though the proposals
died from lack of support, the possibility remains.
An amendment could say whatever lawmakers wanted it to, with the
basic idea being to reserve unequivocally the making of education
policy to the legislature.
Goldberger thinks a constitutional amendment is a far more politically
palatable solution than impeachment. "I think it would be the
right alternative if Ohioans really thought the school-funding decision
was a bad one," he said. "Handling the whole thing by
the book, that's the one way out for the legislature."
Mayer said amending the state Constitution is "no more radical
or extreme than impeachment proceedings." He said he favors
an amendment that not only changes the constitution's language on
schools but also clarifies the separation of powers. He suggested
an amendment to make clear that "the General Assembly and only
the General Assembly has the authority to make policy." The
earliest states' constitutions were much more clear about the separation
of powers than later constitutions were, Mayer said. In an era when
activist judges make law from the bench, the distinction between
the legislative and judicial branches has become blurred, he said.
"We've forgotten what legislative powers are," he said.
Impose a school tax, but name it after the Supreme
Court justices, so that every Ohioan knows whom to blame.
If the legislature found itself backed into a corner
and forced to approve some sort of statewide tax for schools, at
the very least, it could name the tax after the four justices who
formed the DeRolph majority.
Amusing as the idea is, Goldberger pointed out that it might not
have the intended result. He said that if the state held a referendum
on the court's DeRolph decision, a majority of Ohio voters might
approve it. If so, then four justices in the DeRolph majority --
Resnick, Andy Douglas, Francis E. Sweeney and Paul E. Pfeifer --
might be happy to be linked to the Resnick-Douglas-Sweeney-Pfeifer
school-funding tax.
WHAT'S AT STAKE?
For Mayer, the future of representative democracy
in Ohio rides on how the court and the General Assembly settle the
school-funding issue. If lawmakers allow the high court to prevail
in DeRolph -- as it did in overturning the legislature's efforts
to revise the workers' compensation system and to limit awards in
civil lawsuits -- the legislature will be weakened permanently,
he believes.
In the legislature, 132 state representatives and senators elected
by the people represent and balance a welter of competing interests,
including parents, businesses, teachers, unions, taxpayers, students,
state officials and school boards. Every viewpoint has a chance
to make itself heard, Mayer argues.
But in court, he said, this rich mix of representation is lost.
The DeRolph case has just two sides: the school districts that brought
it and the state officials defending against it. The multitude of
other people and interests affected by education policy are essentially
left out of the process, he maintains.
This is why the framers of the Ohio and U.S. constitutions intended
that legislatures, not courts, make public policy, Mayer said.
He believes that in the tort-reform and workers' comp cases, the
justices have basically short-circuited representative democracy
and told special interests that if the legislature won't give them
what they want, the Ohio Supreme Court will.
Goldberger, however, believes that the history of school funding
before DeRolph represents a failure of representative democracy.
Lawmakers left school districts dependent on inherently unequal
local property taxes, doing little for financially strapped school
districts, he said.
"State legislators avoided funding statewide by making it appear
that local school officials are the ones responsible," he said.
"It's deceitful; it's a way to get off the hook."
The court was right to call the legislature back to its constitutional
responsibility for education, Goldberger believes. "The court
is saying the people in poor districts don't have the power to fix
their own problems."
Mayer and Goldberger both say public opinion would be crucial in
how any conflict between legislature and court plays out.
Goldberger suspects that if a referendum were held on the DeRolph
decision, most Ohioans would support the high court's ruling.
Whether that's so or not, Mayer thinks the public-relations deck
is stacked against lawmakers.
"Most people don't understand abstract principles like separation
of powers. People are liable to misunderstand whether the legislature
is a good guy or a bad guy. People have a knee-jerk reaction in
favor of schools."
This article is reprinted with the permission from
The Columbus Dispatch. The original article ran in the March 4,
2001 edition. Contact Glenn Sheller at gschller@dispatch.com.
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