Adequacy and the Rights Revolution : Reinterpreting the Education Clauses in State Constitutions

In the past decade, a number of state courts have found a new "fundamental right" to education in centuries-old state constitutional provisions. These courts have then used the fundamental rights determinations to establish levels of educational funding that, in the court's view, are required to be constitutionally "adequate", and even to mandate the content of the curriculum itself, ignoring considered legislative judgments to the contrary in the process. In this paper, I explore the historical understanding of the actual language of the state constitutional provisions on which these new state court decisions rest, concluding that in almost every instance the original provisions were designed to set only hortatory goals for the legislature, not to confer judicially-enforceable individual rights to certain levels of financial support for, or quality of, public education. I next consider some recent constitutional amendments that might be read as supporting the "fundamental rights" holdings, and conclude that in most cases these amendments, too, fall short of conferring a judicially enforceable right to a constitutionally mandated "adequate" public education. Finally, I take issue with the judicial holdings that have, through the use of "fundamental rights" determinations, injected themselves into what is inherently a policy judgment, reserved by the state constitutions to the political branches of government, and conclude with a cautionary note about the threat to participatory democracy these holdings might pose