Hugh D. Spitzer and Andy Omara, Catalytic Courts and Enforcement of Constitutional Education Funding Provisions, 49 Ga. J. Int’l & Comp. L. 45 (2021), https://digitalcommons.law.uw.edu/faculty-articles/798
public schools, school funding litigation, state constitutions, interest groups, constitutional courts, legislatures, civil law, common law
It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches into spending more on education—often against the backdrop of potential political retaliation. Focusing principally on Indonesia and the American states of Washington and Kansas, we found Young’s model helpful in describing how judges shifted their tactical and rhetorical approaches among “peremptory,” “managerial,” “experimentalist,” “conversational” and “deferential” modes of review. Our study confirms Varun Gauri’s and Daniel M. Brinks’ observation that “judges . . . craft their opinions with an eye on the likelihood of compliance . . . , the political reaction and its effect on the standing of the judiciary.” These and other social scientists help explain why it is so difficult for courts to push the political branches to act, particularly when action requires higher taxes or a redirection of existing funds. We conclude that a court’s approach to judicial review of legislative and executive actions (or inaction) depends on the judiciary’s institutional strength, the remedies sought, and the specific political context within which the judicial review occurs. The three courts we studied were catalysts in contentious, multi-year education finance cases that were ultimately successful, in significant part, because of the strong support for judicial action from civil society groups and the media.