Tuesday, April 10, 2018

In light of the talk of a renewal of McDuffy

It is worth seriously considering this op-ed in the Los Angeles Times which argues the following:
The majority of state courts have opted to retreat. For instance, the California Supreme Court — the first state high court to strike down a school funding system as unconstitutional in 1971 — recently declined to review two cases invoking its right to education, one challenging teacher tenure statutes, the other alleging that school funding is constitutionally inadequate.
A number of courts retreat by deferring to their state legislatures to devise the remedy. The legislature predictably resists or returns with a modest plan, which then provokes successive rounds of litigation, and in the end judges usually throw up their hands. As one court put it, all but admitting defeat, getting the legislature to make a good faith effort is "the best we can do." State legislatures thus win by attrition.
Still other courts have waved the white flag before the first shot, claiming their constitutions vest the legislature with absolute authority over education and therefore courts cannot get involved. The Oklahoma Supreme Court is one of seven state high courts to have surrendered in this manner. The constitutional right to education in these states is thus unenforceable in a court of law.
Amid this crisis of judicial confidence, striking teachers have appealed directly to the court of last resort: the court of public opinion.
Personally, I'd argue--though I'm looking forward to hearing from those more learned than I on this--that the Hancock case fell into the first case above: the court essentially declined to intervene further into the Legislative funding of education.
I wonder if current courts feel the same.

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