By Elinor Aspegren (PZ ’20)
A product of frustrations with state disinterest in public education over the past decade, teachers’ strikes began in March 2018 in West Virginia, and in April 2018 in Kentucky and Oklahoma These protests and walkouts, while presumably about state budgets, may also be in response to the teachers’ frustrations regarding state courts neglect to enforce the state constitutional right to education. Further, the response to these walkouts represents the growing debate of what role the judiciary plays in the United States government.
According to the constitutions of all 50 states, children are entitled to a quality education. Many state courts enforced that right for decades before the late 2000s, striking down school funding when it was inadequate and dismantling the achievement gap.
Then, as the Great Recession occurred, the amounts allocated to school budgets within each state’s budget drastically decreased. Even though the recession is over, the funding still remains at 2008 levels. Currently, general funding per student remains below pre-2008 levels in at least 12 states, down more than 11% in West Virginia, 15% in Kentucky, and a staggering 28% in Oklahoma, the largest percentage decline in the nation. In total, 29 states provided less overall state funding per student in 2015, when the recession was over, than in 2008 when the recession occurred.
The majority of state courts have abandoned efforts to challenge issues regarding school funding. For example, the California Supreme Court — the first state court to rule a school funding system in 1971 unconstitutional — recently rejected to review two cases invoking its right to education.
A number of courts avoided addressing the issue by deferring to their state legislatures to devise a remedy. This creates stagnation between the two branches, which is unproductive.
Some experts have claimed that the state legislatures have total power over education — Oklahoma Supreme Court is one of seven state high courts to have surrendered in this manner. Thus, the constitutional right to education has been made unenforceable by law.
The fact that the education system is not getting the budgets they need, and thus teacher wages are low and they do not have the necessary resources to teach, shows a growing dysfunction among the justice system. In fact, there is an effort underway in state legislatures across the country to amend state constitutions to weaken education rights or strip courts of jurisdiction to enforce them. Much of the reliance has been on these lawmakers to create change.
Turning to the courts can be effective and efficient: the judicial process may appear to be faster and cheaper, allowing policy advocates to focus their limited resources on a policy they care about. The decision to juridify politics, simultaneously, can help lawmakers to effectively shape and constrain the development of future policy choices, as well as offer ways around political and institutional barriers. At the same time, courts can be uncertain — both in making the decision and enforcing it. In turning to the courts, people must turn to far fewer lawmakers than in the legislative branch.
With no forthcoming help anticipated from the federal government, state courts must re-engage and fulfill their constitutional duties. Further, teachers, parents and students must advocate for the educational institutions in their states demand compliance with the state constitutional right to education.
