Yesterday the South Dakota Supreme Court upheld a district court's ruling that our state's system of funding K-12 education is not unconstitutional. Outgoing Justice Judith Meierhenry wrote the unanimous opinion affirming the prior ruling of her incoming replacement on the high court, Judge Lori Wilbur.
Journalist Bob Mercer calls Meierhenry's writing a "home run." From what I've read so far, I agree with Mercer's assessment that the ruling is a good, clear read. Download a copy and give it a look!
The justices affirmed that South Dakota's Constitution does establish a right to "a free, adequate, and quality education" (¶14). They still rejected the lawsuit because plaintiffs failed to prove that the policies enacted and revenues allocated by our state legislature don't sufficiently safeguard that right. In high school debate terms, we could say the plaintiffs won the Lincoln-Douglas battle but lost the policy war on Harms and perhaps Inherency (which is still a voting issue).
The justices grant some merit to one particularly interesting constitutional argument raised by plaintiffs: that by allowing local voters to refer school district opt-outs could violate the state constitution:
Ultimately, however, the constitution imposes the duty on the Legislature alone to "maintain" the school system and to devise the state and local tax system that will "secure" it. S.D. Const. art. VIII, §§ 1, 15. Whatever system the Legislature devises, therefore, must be sufficient to ensure the funding of a constitutionally adequate school system in every school district. A referendum conflicts with this constitutional requirement if it permits the voters in a district to reject taxes or levies necessary to fund a constitutionally adequate school system in the district [Davis et al. v. State of South Dakota, Department of Education, et al., 2011 SD 51, ¶35, filed 2011.08.31].
Allow voters to deny their school district necessary funds, and you violate the state constitution. What saved the state on this argument was that the Court saw insufficient evidence that opt-out referrals have prevented any school districts from obtaining necessary funds.
I wonder at the Court's reasoning. The Court identifies a specific statute, SDCL 10-12-43, that empowers voters to undermine a fundamental constitutional duty of the Legislature. Yet the Court leaves that apparently unconstitutional statute in place solely because it hasn't seen evidence that any community has turned that potential constitutional violation into reality.
To understand my uneasiness with the Court's logic, consider this analogy: suppose the Legislature passes a law next session allowing county residents to call public votes on whether Indians, or Mexicans, or women who've had abortions can own property within the county. Suppose a few such referenda take place, but none succeed, and no one loses any property rights. Even if the law didn't produce practical constitutional violations, wouldn't the Court still be obliged to overturn that patently unconstitutional law?
Attentive readers will recall that, unlike Governor Daugaard, I love a good referendum. As a small-d democrat, I hesitate to reduce citizens' access to direct participation in government. However, Justice Meierhenry and her honorable colleagues now have me wondering whether local referenda on school funding pose a risk to education and our constitution.
Your small d democratic process implements mob rule. So if we can combine health care employees with public education employees, then the majority can pass a 25% increase in sales tax. That means that South Dakotans will buy $180 million less products and services. What will that do to our economy?
"Your small d democratic process implements mob rule. So if we can combine health care employees with public education employees, then the majority can pass a 25% increase in sales tax. That means that South Dakotans will buy $180 million less products and services. What will that do to our economy?"
Good grief, Steve. I appreciate your indication that a 1% increase in the sales tax rate is actually a 25% tax increase, but "mob rule". That certainly demonstrates an elitist perspective on your neighbors. Also, the money that some consumers won't spend on products will be spent by the people who get paid by those taxes. There may be some losses, but it won't mean a $180 million drop in consumption.
That said, I do not think an increase in the sales tax is an appropriate way to raise revenue for schools and medical care.
Better would be to remove cities right to charge sales tax and make all the sales tax be a state tax. Then we would not be subject to taxation without representation. Then put that existing 2% tax into education and medical care. Let cities pay for their unnecessary sports circuses with taxes on business property or corporate income tax.
I'm trying to be a better human and comment only during lunch or other "legitimate" breaks, so I may not check back for a full "debate" until much later today.
I really want to see the demographics that prove that "health care employees with public education employees" constitute a majority of voters. I don't believe they make up even a plurality.
I don't think anyone has to worry about the economic impact of a sales tax increase. I'm guessing that those who might want to bet this in Vegas couldn't get odds on passage or failure of passage because there's only a miniscule likelihood the initiative passing
If one wanted to bet the margin of defeat, oddsmakers would probably put the over/under against passage at 58.5%.
LK,
I base my assumption (which may be wrong) on the top two employers in Sioux Falls...Avera and Sanford with Sioux Falls public schools in the top 5 some place. DSS and Education are currently fighting over which department gets the most taxes here is SOuth Dakota.
Obamacare is (yes South Dakota is in with SB38 & SB43) expanding the numbers in Medicaid to the grave and the Educrats are heading for the womb with expanding preschools. From craddle to grave, medicaid and education will rule sooner or later.
Cory,
Here is why your analogy is not perfect. I think the court has basically said the standard is relative, subjective and objective. Thus, if the people do opt out and the court deems the Constitutional standard is met (relatively, subjectively and objectively), no harm.
Confused? I was at first and maybe still am. I will go thru what I THINK I mean.
Relative: Depends on how your results compare to others. In other words, it might be harder for a poor performing school to opt out.
Subjective: While it appears the court didn't deem money spent necessarily the measure, I guess they are using the famous pornography standard (they will know it when they see it).
Objective: There is some reference to some measures to give guidance.
Overall, I think the school boards lost more than they even imagined. They went in thinking all that could happen is:
They win and court forces the state to get them more money or they put pressure on the legislature to give them more money (win either way). No downside.
But what happened is the court turned the attention to the school boards. If they are failing to meet the relative, subjective, objective standard, it will be more likely a local responsibility to get up to snuff. In general, the court said the state is giving sufficient support to make it likely all schools can meet the test with local funds.
What the real ramifications are is: School district does opts out, someone sues because the performance doesnt meet the standard, and court agrees which sets aside the local opt out.
What do you think will happen? I think you will see a recall election (if possible) and reaction against the administration that will be fierce.
And, this might be the best part of the ruling. Accountability!!!!
Troy, you make it sound like the ruling imposes a whole new paradigm that goes in the opposite direction from what the schools wanted. Quite to the contrary, the Court affirms the paradigm the schools argued for. In the paragraph cited above, the Court says the constitutional responsibility to provide that free, adequate, and quality education lies wholly with the Legislature. The schools win the value question but lose on lack of evidence of policy impacts.
There may be some justification for suing your school district for failing to turn adequate funding into quality education, but this case doesn't provide the core justification for such a local lawsuit.
Troy, you also don't answer the question about leaving a potentially unconstitutional law on the books. The court says the Legislature creates an unconstitutional conflict by allowing local voters to refer an opt-out and potentially deny constitutionally necessary funding. Are you saying that the court is saying that it will only review and overturn local referenda on a case-by-case basis? Can the Court let stand an unconstitutional law and only address specific instances of unconstitutional behavior carried out under that law?
Cory, you'll have to spend lots of money and wait years for the results of your questions. It may be important but it will not matter in real life until someone does sue. Until that happens, schools will get whatever money the legislators will give them. Do you think that lawmakers will retaliate against the school boards by giving education less money or forcing schools to consolidate?
No, Michael, I shouldn't have to spend money to answer this pretty basic question: can the Court label a specific law unconstitutional but leave it on the books? Can anyone think of an example of a similar situation with another statute?
I am definitely not being clear.
First, I dont read that paragraph as you do. It appears to me the state's responsibility is to "devise" but that does not mean they have to control or fund it.
Second, opting out isnt "unconstitutional" but the results might be. This goes to my point about the SCOTUS view of porn.
All in all, in my mind, the school boards stepped way backwards.
As I read this again ruling after Saturdah conversation with a lawyer, the school boards have gone so backwards (read the factors the court mentions that might have more impact on education) as the courts are as likely to demand replacement of board members, administration or teachers as they are to force more taxes.
It appears that they did exactly that!
Are you suggesting that opt-outs are unconstitutional?
No, the Court is saying that allowing local voters to refer opt-outs and thus potentially deny their school district necessary funding could be unconstitutional.