Abstract

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that one form of specification—process-based specification—found in many state constitutions, and in the Louisiana education article itself, can be defended normatively as a way of establishing effective checks and balances where socioeconomic policy development is concerned. In particular, in cases of potential political crisis or exigency, process-based specification (in contrast with no specification or substance-based specification) enables the judiciary to be a legitimate check on the legislature's policy choices without making the judiciary into the oft-maligned "super-legislature" of judicial activism lore.

In Part II, I examine the role of state constitutional design in shaping the challenges of educational reform. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation—the principal vehicle for enforcing education rights in the states—and how they have been modified in response to such litigation. From this review, I conclude that this litigation has caused at least some state reformers to secure changes to the constitutional text, but that these reforms have secured few of the results intended by reformers. In Part III, I outline the education provisions in Louisiana's current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude from this Part that Louisiana's reformers have chosen a decidedly unique, process-oriented path in amending Louisiana's education article, as compared with reformers in other states.

In Part IV, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes. I base the situational argument on a case study of Louisiana's constitution in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state's schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design.

Document Type

Article

Publication Date

1-2011

Notes/Citation Information

Journal of Law & Education, Vol. 40, No. 1 (January 2011), pp. 1-56

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