This is true irrespective of the tortured logic implicit in the title of yesterday’s column by Jeffrey Sadow: “Judge’s voucher funding ruling favors Jindal and Education reformers.” It is like asking a football team to “look on the bright side” after being beaten by four touchdowns.
The lawsuit challenging the voucher program, brought by the state’s two largest teachers’ unions (The Louisiana Federation of Teachers (LFT) and the Louisiana Association of Educators (LAE)) and the Louisiana School Boards’ Association (LSBA), raises two sets of questions. First, the plaintiffs allege that the new “education reform” law unconstitutionally diverts Minimum Foundation Program (MFP) dollars from public schools to nonpublic schools. This also includes local funds included in the MFP that they contend are being rerouted from public elementary and secondary schools to nonpublic entities. They maintain that the state constitution specifically limits the use of MFP dollars to public schools. Secondly, the plaintiffs challenge the law on procedural grounds, claiming that it was enacted improperly. They claim that the MFP formula was approved by a simple majority of members of the Louisiana House of Representatives that were present for the vote (51 votes) rather than by a majority of the membership of the chamber (53 votes). Furthermore, they assert that the fact that the legislation “bundles” a variety of subjects into the same legislation (including changes to teacher tenure, changes to transportation, the creation of new entities with the power to establish and license charter schools, etc.) also violates the Constitution.
Keep in mind that the substantive question of whether MFP dollars can be used to fund the student “scholarships” (Jindal’s euphemism for taxpayer funded vouchers) is weightier than the procedural questions (whether lawmakers dotted all of their “i’s” and crossed all their “t’s” when they enacted the legislation). It’s not that the procedural question are not important - laws are struck down and convictions are reversed on procedural grounds all the time. Rather, the funding question is more important. And on that question , Judge Kelley’s opinion is crystal clear - the plain language of the Constitution, as well as the intent of the framers and the history of the debates at the state’s constitutional convention, prohibit the use of MFP dollars for nonpublic schools.
The significance of Kelley’s ruling is only enhanced when one considers the reasoning behind his conclusion. First of all, Judge Tim Kelley is a conservative judge who utilizes very standard, conservative methods of judicial interpretation to reach the result in the case. Acts of the state legislature, Kelley observed, are presumed constitutional until proven otherwise. That is because the Tenth Amendment reserves all powers not delegated to the national government nor specifically denied to the states to the states and the people. Consequently, the legislature, because it is popularly elected, represents the plenary power of the “people,” subject to the specific limitations imposed upon its powers by the state constitution This places the burden of proof on the challengers to prove that the state law is unconstitutional, not the other way around. That means that the groups challenging the education reform law need a very sound argument to overcome the legal presumption in favor of the state.
Judge Kelley then goes on to declare that “unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning.” Constitutional law scholars refer to this form of legal reasoning as literalism (sometimes referred to as “textualism”), which holds that judges should interpret provisions based upon the plain meaning of the words of the constitution. This is one example of the so-called “neutral” modes of analysis hailed by conservatives who frequently criticize judicial rulings they disagree with because of the alleged “judicial activism” of the court (or courts) under scrutiny. For example, U.S. Supreme Court Justice Antonin Scalia is an advocate of literalism (and no one would mistake Justice Scalia for a liberal “activist” judge). Using this literal approach, Judge Kelley finds that Article VIII of the state constitution explicitly limits the power of the state Board of Elementary and Secondary Education (BESE) ( the body constitutionally charged with developing the MFP) to allocating the funds to public schools only.
But what is more, Kelley does not just rely on literalism to reach his conclusion. He also examines the debates at the Constitutional Convention in an effort to discern the intent of the framers and the history of the development of Article VIII. Judge Kelley cites evidence from the constitutional debates of the intent of the framers to specifically distinguish between public and nonpublic schools. And while the delegates specifically chose, for example, not to limit the use of public funds for bus transportation to parochial schools, they specifically limited “minimum foundation” funding to public schools. Significantly, Kelley’s use of history to discern the framers’ intent represents another “conservative” approach to judicial decision-making loudly trumpeted by the so-called critics of “judges legislating from the bench” by substituting their own political opinions for the rule of law.
Therefore, if a conservative judge like Kelley, utilizing standard, “conservative” modes of legal analysis, can nevertheless conclude that the language of the state constitution unambiguously invalidates the use of MFP funds for the voucher program, it suggests that Team Jindal has a very bad legal argument. It also poses a formidable problem for the administration and its allies when the case is heard on appeal. Jindal’s lawyers will be required to show that either (a) their constitutional rights were violated (which they will not be able to show) or (b) Judge Kelley’s decision misapplied the law. However, the painstaking manner in which Judge Kelley reaches his result will make the task of reversing his ruling a tall order for the defendants.
All of this makes Sadow’s column sound rather curious indeed. He is correct that Kelley does not buy the arguments raised by the plaintiffs on procedural grounds: the court did not conclude that the fact that 51 and not 53 legislators approved the MFP formula and the fact that Act 976 bundles a panoply of subjects into one bill invalidate the educational reform measure, without regard to its funding mechanism. But this leads Sadow to jump to a laughably absurd conclusion. He writes:
So, interestingly, Kelley. . . . . . . affirmed in his ruling that the state was all right on the
procedural question, but not on the constitutionality of the funding mechanism [my emphasis].
Given the contortions necessary to conclude with the latter, whether this had to do with an
attempt at wise jurisprudence or other extraneous factors, it has produced a situation (courtesy
of the law’s severability clause) of an entire win for the reformers [my emphasis again}. All
supporters must do now is appeal about the MFP part of the ruling and get a stay on halting
funding. . . . .even if that presumed final decision surprisingly went against reformers, what
then would be the remedy, have the state pay back to the MFP? You can’t take back the year
of education. The fact is, the program with this ruling gets ratified and now it’s all just a
matter of finding the money.
It is no small matter that Judge Kelley’s opinion holds that using the Minimum Foundation Program to fund Jindal’s voucher program is unconstitutional. Yet, Sadow seeks to render Kelley’s “judicial smackdown” of the Jindal administration as a minor technicality. In his rendering, Team Jindal actually won on the most important legal questions, save for a few minor details. In other words, black is really white, up is down, down is up, right is really left, and truth is whatever we conveniently want to believe. This is political spin masquerading as serious legal analysis.
To be sure, it is a victory for the administration that the education reform law was not found unconstitutional on procedural grounds as well. Such a finding would be the equivalent of saying that the law was never really a law at all. The administration would then have been required to start the legislative process all over again – giving opponents an additional opportunity to convince lawmakers that the proposed reforms are unsound and unwise. But Kelley’s ruling does not preclude the plaintiffs from challenging the specific aspects of Act 976 that were bundled into the law. Therefore, expect there to be continued legal challenges to the evisceration of teacher tenure rights, the authority of these new entities empowered to create charter schools, and so forth. In other words, rather than allowing the plaintiffs to take out all of the objectionable aspects of the law in one swoop, Kelley’s ruling forces them to challenge each of the provisions they disagree with separately.
Moreover, Sadow is simply wrong to argue that even if Kelley’s ruling on the MFP is upheld, Jindal and his allies merely need to secure another revenue source for their voucher program. The conclusion should not be drawn that only the use of MFP funds is unconstitutional. Rather, the legal issue here is whether it is constitutional to use taxpayer dollars to support nonpublic and/or parochial schools period (as opposed to funding special services or programs). And even if the Louisiana Supreme Court reverses Judge Kelley on this point, such a decision would be vulnerable to a federal challenge that such funding violates the Establishment Clause of the First Amendment of the U.S. Constitution.
In conclusion, Friday’s decision is more than simply a “bump in the road” for the supporters of the voucher program. Rather, it represents a significant setback. It will be interesting to see what happens next. No doubt the Jindal administration will appeal this decision and keep this controversy going. He and his supporters will continue to vilify their opponents by portraying them as “defenders of the status quo” who “don’t care about kids.” Sadow tips his readers off that that is in fact the administration’s strategy: the opponents, he writes, “can be painted convincingly as grinches trying to trap children in bad schools just to satisfy their ideological leanings and worship of big government.”
In Sadowland, only conservative “reformers” whom he agrees with have good intentions and “care about kids,” whereas those who dare raise legitimate concerns about the wisdom of these so-called “reforms” are merely “traditional educational special interests.” He even subtly raises doubts about Judge Kelley’s motives, wondering whether he reached the result because of an effort at “wise jurisprudence or other extraneous factors.” In his view, the parochial institutions, the “fly by night” voucher schools, and for-profit charter school entities who stand to benefit from the redirecting of public dollars into private hands should the law be upheld are not self-interested “special interests.” Rather, these groups only want “what is best for children.”’ This view refuses to acknowledge the possibility that perhaps teachers and unions also care about reform and have much to offer to the debate about how to improve schools.
Despite the unfortunate decision of the Jindal administration to needlessly politicize the issue of reforming Louisiana’s system of public education, Judge Kelley’s decision on Friday is an important reminder of one fact: politics aside, the Constitution and the rule of law still matters.
by Albert Samuels, Ph.D., Southern University
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