Earlier this spring, during the legislative session, the Court ruled
that the funding formula from last year was unconstitutional, partially on the
basis of when it was dealt with by the Legislature. Each year, the Board of Elementary and Secondary Education
concocts this formula, where a majority passes it on to the Legislature that
only has the power to approve or disapprove. If disapproving, BESE can try
again, but if no concurrent resolution encapsulating it is passed by both
chambers, then the formula last enacted continues to get used.
The Court declared
the 2012-13 version void on the basis that the instrument presented as the vehicle
for the formula, even if designated as a concurrent resolution, was really not,
but took on the characteristics of a law because, in its opinion, the
instrument acted like a law, because most of the time historically its path to
legislative approval replicated that used for laws (even though evidence it
presented to substantiate that, such as a trip to the Legislative Bureau, is
not defined in the Constitution or by statute, unlike what are bills to become
laws and what are resolutions). This is despite the fact that it creates no
statute, which mimics appropriations bills that way that are considered laws
but differs from them in that it does not apportion specific amounts but creates
a formula that may be adjusted by specific amounts.
Because a majority of justices made this declaration that meant the
instrument for valid enactment had to follow the same constitutional rules as for
laws, in particular the requirement that no new matter be
introduced after the twenty-third day of the session – which was not even
an issue raised by the plaintiffs and was not considered by a lower court. And
as it turns out, in all of the sessions since 2009-10 that requirement would
not have been met, with all concerned operating under the assumptions carried jurisprudentially
in print, rather than by those made up on the fly by a court.
Taking this approach also spawns a number of inconsistencies in the
entire concept. For example, in 2010 the reason why the MFP consideration and
passage occurred so late in the session was because the Legislature rejected
the initial formula. This entails having a new resolution introduced after BESE
acts, if it does. By the time that got done and BESE submitted something else,
that deadline had passed. So, practically speaking, any discretion by the
Legislature into the process – by refusing to pass a formula and with no
opportunity to convey recommendations to BESE for a change – subverts the
process entirely by effectively making it all-or-nothing proposition for the
Legislature, or at the very least severely attenuates the opportunity of the
Legislature to vet BESE proposals, and dramatically increases BESE’s ability to
dictate terms in its timing decisions about producing the formula.
It also thereby reduces decision-making authority going forward. If the
procedures to get out a valid version of the MFP make it that much more difficult
to do so, this makes school funding more likely held hostage to and dependent on
decisions of the past made in a different environment not entirely relevant to
current conditions. Surely the reduced discretion and inflexibility in policy-making
were not what the authors of the 1974 Constitution had in mind for education
policy.
All in all, as these consequences demonstrate, its decision created a
fine example of judicial activism and overreach. And it will have practical
import given the suit if successful, because the alleged latest valid formula
had an inflationary factor involved, while none of the others since have, which
means almost $200 million extra in spending if the Court were to go along with
this interpretation. That would exacerbate budgetary difficulties even more,
besides obviating the will of both BESE and the Legislature.
However, the Court can rectify this situation as it seems likely that
this case would make its way to it eventually. It may have seen this coming and
tried to dodge it by inserting in the opinion a sentence that began, “While we
reiterate that we express no opinion on the validity of the legislature’s prior
MFP approvals …” and can use this and other disavowals to rectify the error it
initially created in its waving of its magic wand to make a resolution into a
bill designed to be a law. Building on that statement and recapturing that
creativity with its sweeping view of its own powers and the Constitution’s
meaning should be enough to keep its initial ruling intact yet insulate the
effects of that previous decision from any formulas prior to last year’s.
1 comment:
Please,most intelligent one, enlighten us, the unwashed and unworthy, and, of course, the Supreme Court, too, exactly as to "... the intended philosophy behind the Constitution about how education should be funded."
[And, if possible, could you please do it without those terrible run-on, meandering sentences you seem to insist on writing, Not only did most of us learn in school that such are poor and improper writing techniques, they are really, really just plain hard to understand.]
Thanks.
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