"No, not us," said the Nebraska Supreme Court when asked by rural students, parents, and school districts if Nebraska's miserly school funding system does enough to educate her youth.
The Nebraska Constitution requires "free instruction in the common schools" of the state. The plaintiffs wanted to know if those words have any meaning in a court of law, or are they just so much constitutional blather?
The Court said the meaning of those words is a "political question" for the legislature and the governor, not the courts, to decide. The court found for blather.
Political question? Don't kid yourself. Courts decide the questions they want to decide. The ones they don't want to decide they label "political." While it is true that courts should not legislate, it is also true that words have meaning, and it is the Court's duty to interpret their meaning, especially when those words are part of the Constitution. But according to the Nebraska Supreme Court, the words "free instruction in the common schools of this state" can mean a coloring book, a crayon, and a tree stump for a desk if the politicians say so.
Then the judges suggested the plaintiffs were merely angry and sullen sinners who could go to hell for daring to ask these Wizards of Oz to come out from behind their curtain and perform their public duty to interpret the Nebraska Constitution. Mind you, the Supreme Courts in over a dozen states have had no trouble ruling that their state's school funding system is inadequate without ducking behind the "political question" curtain for cover.
Classroom in Giltner, NE
Photo: Rich62
The rural Nebraska plaintiffs wanted a chance to prove the inadequacy of the "free instruction" they are getting in their schools. Over 120,000 Nebraska students attend rural schools. More than one in three of these students qualify for federally subsidized lunches and in the most remote schools, it's two in five. Over nine percent are Latino, many of whom are learning English, and their number has more than doubled in the last decade.
Average salary for a full-time teacher in rural Nebraska schools is eighth lowest in the nation for rural teachers and far below the average salary of non-rural Nebraska teachers. Teacher turnover rate in rural Nebraska is about 12 percent and only 28 percent of teachers have a master's degree, compared to 44 percent nationwide and 48 percent in non-rural Nebraska. Nearly one-third of Nebraska's rural teachers are assigned to teach a course they are not prepared to teach.
The state provides only 34 percent of the funding for schools, a level of state aid that is tragically low and woefully inadequate. Only Illinois, Nevada, and South Dakota provide less.
The plaintiffs claim the constitutional mandate to educate does not apply only to students in large, easily accessible, and prosperous places. It applies to those in remote, challenging locations, living in poverty, suffering disabling conditions, and learning English.
And to those who live in a school district where voters are unwilling or unable to override state imposed levy lids.
In ducking the issue, the Nebraska Court relied on six standards used by the U.S. Supreme Court to determine if an issue is a political question courts should not decide. Interestingly, the federal court wrote these standards in a case addressing one of the most political of all controversies "“ the reapportionment of legislative districts under the "one person, one vote" principle. In that case, the U.S. Supreme Court ruled that the reapportionment issue could not be considered a political question under any of the six standards. So it decided the case in favor of "one person, one vote." As a result, legislative districts in all states are redrawn after each Census to conform to "one person, one vote."
But the Nebraska Court said the adequacy of the school funding system is a political question on the basis of no fewer than five of the six federal court standards.
First, the court said that since the Constitution assigns the Legislature to pass school funding laws, the matter has been committed exclusively to the Legislature. Second, the court said there are no Constitutional standards to guide the court if it did take up the question of whether the funding is adequate, and that by declining to adopt constitutional amendments that would have clarified standards, the people of Nebraska have said they don't want any. Third, the Court found that it could not decide whether the Nebraska funding system is adequate without "resolving broad and complicated policy decisions or balancing competing political interests." Fourth, the court moped that it could not decide the issue "without expressing lack of the respect" due to the legislature and the governor. Finally, the judges said they could not decide the issue because they could not resolve it immediately and any ruling they made would be difficult to enforce.
With excuses like these for ducking a tough issue, "one person, one vote" would have been a horse of a different color in Oz.
The reality is that applying these tests is just an exercise in rationalization. All that matters is whether or not the court wants to address thorny constitutional issues that have unmistakable and inconvenient political content.
And the Nebraska Court said, "No, not us."
To justify their pitiful withdrawal, the Court went on a rant about courts "that have been bogged down in the legal quicksand of continuous litigation" in other school funding cases. Why, the recent Arkansas case was in litigation for ten years. The Arkansas Court ruled for the plaintiffs, then gave the legislature time to fix the system, then had to step back into action when the legislature balked. In Kansas the court not only kept its hand in the case but actually ordered additional appropriations and threatened to close schools if the legislature did not respond.
And Lordy, in New Jersey, the Nebraska court moaned, litigation has been boiling for over 30 years and three separate school funding laws have been ruled unconstitutional.
True. But it is also true that New Jersey now has the best preschool program in the nation, the achievement gap between African American and White students at fourth grade has been cut in half, and the state ranks first in graduation rates for poor and minority students. Significantly, New Jersey is the only state where the funding gap between the state's poorest and wealthiest schools has been nearly eliminated.
These achievements and those in Arkansas, Kansas, and many other states took time and effort because every branch of government was doing its job. On issues as difficult and controversial as school funding systems, it takes a lot of work to get it right. And the courts have played a pivotal role in all these states interpreting and applying Constitutional language to the political remedies forged in the legislature.
It's not supposed to be quick and easy. These protracted cases are not shameful episodes, but heroic odysseys.
But in Nebraska, it's "No, not us."
Sadly, while the Nebraska judges were determined not to show disrespect to the legislature or the governor, they did not hesitate to take a thinly veiled cheap shot at the rural plaintiffs who brought the school funding lawsuit. Referring to school funding litigation that has worn on for years with tenacious plaintiffs pitted against recalcitrant state governments, the Nebraska Supreme Court soberly announced that "we refuse to wade into that Stygian swamp."
The Stygian Lake,
with the Ireful Sinners Fighting
William Blake
Photo: National Gallery of Victoria
Stygian swamp?
That's the fifth circle of Hell in Dante's 14th Century epic poem, the Inferno. In the Stygian swamp, the angry and the sullen are condemned to bicker among themselves forever in muddy and acrid waters. The Nebraska Court relishes the image. While other courts wade among their litigious sinners searching the muddy waters for legal remedies to difficult questions, the Nebraska judges float nobly by on the good ship "Political Question," ignoring the angry and sullen sinners begging them to do their duty.
It might be that the judges were confident that anyone with a Nebraska public school education would not get the reference or take the offense. Let's hope the blow doesn't go that low.
But if Dante got it right, the learned judges may one day wish they had waded into that Stygian swamp. Because in Dante's Inferno, beyond the Stygian swamp and the River Styx, lies Satan's inner sanctuary and the final four circles of Hell.
These final four destinations are not for the passive sinners whose inability to control their petty vices has placed them for eternity in the first five, kinder and gentler circles.
No, the inner four circles are for those who sin with malice. There are the heretics, cast in flaming tombs, the murderers immersed in boiling blood, the panderers and seducers and flatterers, buried in excrement, the corrupt politicians in boiling pitch, the hypocrites, thieves and frauds.
Finally, in the innermost ninth circle of Hell, within sight of Satan himself and buried under sheets of ice, are those whose sin is greatest -- betrayal. And among them, in this most punishing destiny, where ice, not fire, supplies endless agony, are those who have betrayed their public duties.
"No, not us," was all the Nebraska Supreme Court could say when asked to decide whether the Constitution's mandate to educate children has legal meaning that the poor and the disadvantaged can take to court for a redress of their grievances.
"No, not us. No political questions, please."
Marty Strange is Policy Director for Rural Schools and Community Trust. This article first appeared on Rural Matters, 6/25/07.