Voters Defeat Amendment 66, But What If Judges Get the Final Say on Education Spending?

by Jason Richwine

On Tuesday, Colorado voters wisely rejected Amendment 66, which would have pumped almost $1 billion in new taxes into the state’s wasteful and inefficient public-school system. The amendment had powerful supporters from all corners of the education establishment – the teachers’ unions, the governor, almost every elected Democrat, Michael Bloomberg, Arne Duncan, the Gates Foundation, and many others. Remarkably, nearly two-thirds of Colorado voters still rejected Amendment 66.

It’s a gratifying demonstration that the political class, for all its wealth and influence, can still be defeated by ordinary citizens exercising the vote.

But sometimes citizens don’t get any vote at all. A favorite tactic of the more-ed-spending coalition is to bypass the democratic process via lawsuits. Judges will then use innocuous phrases in state constitutions — “effective public schooling,” or something along those lines — to seize control of education policy. Max Eden recently wrote on AEI’s blog about the Kansas supreme court, which used the word improvement in a sentence from the state’s constitution — “The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools” — to mandate that the legislature spend more money until test scores go up!

New Jersey is another infamous case. Two decades ago, the state supreme court used the New Jersey constitution’s requirement of “thorough and efficient” public education to demand a re-allocation of school spending that better fit the judges’ preferences. When Governor Chris Christie tried to reduce education spending through the normal legislative process, the court forbade the cuts from affecting its favored districts.

Perhaps the most well-known school-finance lawsuit happened in Kansas City, Mo., where a federal judge demanded salary increases for teachers, class-size reductions, preschool programs, and a host of other changes. Additional litigation went on for more than a decade, with taxpayers spending around $2 billion in court-ordered money – with, of course, no discernible impact on student achievement.

As for Colorado, earlier this year the state’s supreme court thankfully rejected a similar attempt to convert vague constitutional language (“thorough and uniform” schooling) into judicially mandated policy. Let’s hope that Colorado’s public-education establishment never wins in court what it could not win at the ballot box.

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