Monday, November 16, 2009

Oh Sure, Let the Judiciary Save Us

So it appears that our local Wichita school district, USD 259, is joining up with dozens of other public school districts around the state to sue (or at least threaten to sue) the Kansas state government, claiming that cuts in the state's education budget constitute a departure from guaranteed funding formulas--which themselves arise from a long history of previous lawsuits--and thereby violate the state constitution.

I'm mostly a big fan of public education, and think that, generally speaking, people ought to be willing to pay more in taxes to support them. But in this case...blah.

Alexis de Tocqueville observed, close to 170 years ago, that "There is almost no political question in the United States that is not resolved sooner or later into a judicial" (Democracy in America, Book 1, Part 2, Chp. 8), and that remains the case. Some people see this as a good thing: democracy doesn't work for those who have no vote or voice, the argument goes, and so it is appropriate to have an independent judiciary capable of weighing in, issuing judgments, and forcing actions in regards to, say, minority populations, unpopular religions, the poor...or, in this case, the young students that public schools serve. I wouldn't argue against that principle in an absolute sense. I agree that broad rights do sometimes trump local politics or customary traditions, and that means interventions are sometimes necessary: I have no desire to necessarily see, for example, Brown v. Board of Education overturned. (I'm a fan of the arguments against judicial review as currently practiced by Jeremy Waldon and Mark Tushnet, but neither of them, I think, would dispute that "separate but equal" was a violation of fundamental rights) But the recourse to the judiciary, and the hope that through a carefully designed lawsuit it will bring judges to discover a right that will force things to change in the favor of the plaintiff is much, much too common in the United States.

That the U.S. is lawsuit-happy has become common knowledge amongst most observers of America's political culture, and the negative social, economic, and cultural consequences on relying too much on the courts can be seen, either directly or indirectly, in matters ranging from insurance costs to abortion politics to consumer complaints and more. But that knowledge doesn't seem to affect people's decisions much. The organization Schools for Fair Funding successfully pushed, through judicial action, the Kansas state government to provide significant increases in education funding, not to mention changes in how it was distributed, but those were during relatively flush times. Now we have a situation where Kansas, like so many other states, is struggling with high unemployment rates, bankruptcies and home foreclosures, all of which cut into the available tax base. And the way to resolve this is...what, democratic deliberation? Trusting our legislators to make the best decisions they can? Getting active through interest groups to demand changes in the funding formula? No, a lawsuit--in essence, trusting courts to intervene and set up a formula (or at least, set themselves up as those responsible for approving or rejecting whatever formula the legislature comes up with) which they think is fair and mandated by the state's constitution. Which will probably similarly result in taxes being raised--essentially, if indirectly, by mandate--or the highway budget or some other portion of the state budget being deeply cut, up to and including letting people go--again, essentially by mandate.

Leave aside your complaints about the separation of powers, and about how this kind of response to a set of genuinely difficult and complex social and economic trade-offs basically cheapens our democracy, entrusting public policy and the hard compromises which self-government involves to a small group of people, as serious as those complaints may be. Think about the backlash to all this. Yes, parents like ourselves would, generally speaking, love to see more money go to the schools, and if SFFF's arguments are correct and the money is there to be cut and re-allocated, more power to them. But think more broadly than that: think about the reliance upon the judiciary this fosters; think about the political reforms to make our government's budget process more participatory and transparent which are not pursued because everyone assumes the courts, not political action, is a proper last resort. Moreover, think about who really wins these kind of defiant clashes, as opposed to those who get what they need through careful deliberation. In Arkansas, it was a tiny Lake View School district that pushed forward a case that drove that state's education policy for years...ultimately resulting in school district consolidation and, you guessed it, the disappearance of Lake View. Consolidation is a complex issue, and there are both good and bad arguments for it, but that's just the point: almost everything having to do education funding, like so many other public policy issues, has both good and bad arguments behind, requiring compromising and continual tweaking. To keep such tweaking in the hands of legislators--and thereby, ultimately, in the hands of voters--is the proper way to run a representative democracy. Insuring that issues pertaining to fundamental rights are resolved through definitive, even defiant, judicial interventions is one, often necessary thing. But figuring out yearly education budgets? Just not the same thing at all.

The Flint Hills Center for Public Policy is basically a libertarian outfit, and quasi-socialist that I am, I probably disagree with them nine times out of ten. But one of those ten times happens to occur right here, when people are tempted to turn to the judiciary to supposedly "cut through" the tough and always unsatisfying parameters and limitations of policy discussion. It's not a sign of good citizenship, ultimately, and more immediately, it almost never results in good policy. As the FHC put it, "the authority to make policy lies with the state Legislature and thus the voter." You don't have to sign up to join a bunch of Tea Party wing-nuts to recognize the truth of that.


Stuart Buck said...

This article seems relevant:

djw said...

(I'm a fan of the arguments against judicial review as currently practiced by Jeremy Waldon and Mark Tushnet, but neither of them, I think, would dispute that "separate but equal" was a violation of fundamental rights)

See, this is where Waldron goes off the rails, I think. Once this exception sneaks into Waldron's theory, I don't see how he evades the "no judicial review except in those cases Jeremy Waldron thinks are really important" trap.

More broadly, one of the reasons I can't sign on to this view despite feeling it's appeal is that it romanticizes legislatures, and simply places too much of the 'work' of democracy on the shoulders of that institution. And while I more or less agree that this is probably a lousy way to do educational funding policy, I'll hardly begrudge those who pursue the means they have been provided to protect their interests. If using established but non-ideal institutional structures to defend one's interests is 'bad citizenship' good citizens are going to be rare indeed.

Russell Arben Fox said...

David, you make a good point; expecting concerned parents and others to not make use of plainly available tools to push their interests in the name of "good citizenship" risks making my position somewhat precious. There's something to be said in response to your comment, though, and actually it kind of goes along with the comment you made on another post previously, regarding the ability of democratic communities to set up defensible prohibitions. It's too much for a comment, but I'll try to get a post on it up later this week.

Anonymous said...

Politicians and bureaucrats are only too willing and able to allow judges legislate for them, thereby avoiding the stain of an unpopular opinion appearing on their resume. Political action only occurs when the calculated risks have less to do with principle and more to do with expediency. And even then executive fiat is the preferred course.