Scholarship of education finance adequacy litigation has nearly universally acknowledged the thorny separation of powers problem that this form of litigation presents for state courts. This scholarship tacitly assumes a uniform approach to separation of powers among the states – one that defaults to the federal approach. Proposals for adjudicatory reforms purport either to respect separation of powers principles as we know them from federal case law or to reject the notion that such principles should have real operation in any state courts. However, this scholarship has not addressed, or even acknowledged, what would seem to be a very large elephant in the room: state constitutional text. Many state constitutions contain explicit separation of powers mandates, while others follow the federal implied model. Yet no education finance scholarship has attempted to assess differences in justiciability doctrine that might result from these textual differences.
In this Article, I assess the import of these omissions. I begin by attempting to identify an association between the explicitness of a state’s constitutional text relating to separation of powers and the decision of the state’s courts whether to engage in merits adjudication of educational adequacy claims, in which separation of powers principles are thought to be salient. Surprisingly, despite the near-ubiquitous consideration of separation of powers principles in the cases, I find no evidence of any association between these two variables.
Based on a review of the cases with my findings in mind, I suggest that a different factor – more fundamental but largely overlooked – appears to overshadow separation of powers text: courts’ varying and often shifting conceptions of the nature of education rights. This overlooked factor appears to impact judicial decision making both as to justiciability and as to adjudication and remediation of any constitutional harms. Critical analysis of the nature of state-level education rights is largely absent from the scholarship in the field. Accordingly, I propose and justify a new direction for inquiry in education finance litigation, one that focuses on courts’ varying conceptions of education rights and their impact on the proper scope of judicial review in state constitutional litigation.
Scott R. Bauries, Is There an Elephant in the Room?: Judicial Review of Education Adequacy and the Separation of Powers in State Constitutions, 61 Ala. L. Rev. 701 (2010)