Court error on formula decision comes back to haunt it

The lack of logic in the Louisiana Supreme Court’s decision that invalidated the state’s funding formula for schools got exposed by a suit of a school board and union representatives that could cost the state a couple hundred million dollars – but gives the Court the opportunity to fix its error.

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.

Of course, the best thing to do would be to retract the relevant part of its previous ruling, but the Court never would admit to error so quickly after the act, thus another wave of the wand seems the best bet. Worst of all would be to uphold the new plaintiffs’ request, not only because of the financial burden, but because it would run so counter to the intended philosophy behind the Constitution about how education should be funded. If its members understand this, the rhetorical gymnastics they go through to halve the baby to accomplish this outcome ought to be quite interesting.