South Dakota Education Funding Lawsuit: What Judge Wilbur Was Thinking

Sixth Circuit Judge Lori Wilbur's ruling for the defendants in Davis and Davis et al. v. State of South Dakota et al. reads pretty much as I predicted back in September. Here's one case where I'd have preferred the judge prove me wrong.

The schools and parents had the "significant and heavy burden" [Wilbur, p. 43] of proving current funding laws unconstitutional, and they failed. Some highlights [all bracketed pages #s refer to Wilbur's proposed ruling issued 2009.04.07]:

Despite the undisputed importance of education in society, this Court’s role in this proceeding is clear. The Court is not a “super-legislature” which is in a position to choose the best policy option for schools in this state.... As recognized by the South Dakota Supreme Court, “[t]he view that judges function to fine tune legislative excess has long been discarded. Only when statutes are plainly and unmistakably unconstitutional may we declare them void. A statute is presumed constitutional until it is proved otherwise beyond a reasonable doubt.” [p. 3].

Judge Wilbur offers this numerical rhetoric in support of her ruling:

The combined general fund expenditures for all school districts in the state grew by almost $200 million from the 1997-1998 school year to the 2006-2007 school year. Ex. 2516, p. 2. Those expenditures were approximately $552 million in the 1997-1998 school year and were approximately $744 million in the 2006-2007 school year. Ex. 2516, p. 2. At the time of trial the combined total of general funds for all school districts in the state was at least three-quarters of a billion dollars [p. 10].

For context, over the same period, the state's general fund expenditures increased $390 million, from $702 million to $1.092 billion. That's an annual increase of 5.0% versus 3.4% for the schools.

Judge Wilbur cites these numbers, but emphasizes that she doesn't have to go there. She just has to determine whether the plaintiffs meet their burden of proof to demonstrate that the state is not meeting its obligation "to secure to the people the advantages and opportunities of education." To convince her of that, the plaintiffs needed to show a failing education system turning out students who are not "responsible and intelligent citizens," who are not "competitive" in college or the workforce. The plaintiffs needed to show unaccredited schools failing to offer educational opportunities, a laggardly state Department of Education with sloppy assessment and accountability practices, obsolete curriculum and technology, and an unqualified and inexperienced workforce of teachers. Judge Wilbur says the plaintiffs showed none of that [pp. 15–16].

Part of the problem was that the superintendents come to court and say their schools are failing, then put their Chamber of Commerce hats on back home and tell everyone how great their schools are. Even I can't get you out of that bind, fellas. Judge Wilbur found the superintendents testifying before her "inherently biased" and not "credible" [p. 17]. (Perhaps the supers can retort that Judge Wilbur can't spell, as she fluctuates between superintendant and the correct superintendent [p. 17]. She also uses principle instead of principal [p. 27]... but a dash of spelling neener-neener won't buy any textbooks.)

Even the Internet bites the plaintiffs' case:

Although Plaintiffs assert that some of the Plaintiffs’ districts lack school newspapers, each of these districts has a website. School news can be distributed on the website along with daily bulletins, events, and programs. The school websites also contain the parent portals so that parents with access codes can obtain individualized up-to-date information about their children [p. 22].

* * *

One line that leaps out at me under the Conclusions of Law:

Plaintiffs have not raised an equal protection or equity claim [p. 23].

Arrgghh!!! That's exactly the argument that could win this case on Constitutional grounds. I think that's the arugment that won the same-sex marriage case before the Iowa Supreme Court. If I were the judge and you couldn't make that case, I'd be throwing you out of my courtroom and back to the Legislature, just like Judge Wilbur is doing.

A big reason the plaintiffs' case founders before Judge Wilbur: the absence of education from the South Dakota Bill of Rights. Other states' courts that have found education to be a right "generally have an explicit textual, structural, or historical reason for doing so" [p. 39]. Finding no such guidance in South Dakota law or precedent ("The South Dakota Supreme Court has never addressed whether education is a fundamental right under the South Dakota Constitution" [p. 38]) Judge Wilbur maintains that education is not a fundamental right in South Dakota. (Psst—lawyers for the schools! There's where your appeal strategy starts... but note Wilbur's finding on p. 42 that even if education were a right, you still have to work to prove heightened scrutiny is warranted.)

Judge Wilbur holds that the court's job is not to determine whether spending more money on education would better fulfill the constitutional mandate but rather to find whether the Legislature is providing the "constitutional minimum" [p. 46]. Facing the argument that "thorough and efficient" means more than what we are doing now, Judge Wilbur rather cleverly cites the South Dakota Bill of Rights (Article VI, Clause 27), saying our framers also called for moderation and frugality [p. 48]. In other words, the Legislature has a constitutional obligation to be stingy bastards.

(Of course, that same clause about fundamental principles for maintenance of free government also calls for temperance... and I don't see anyone suing the Legislature for issuing more liquor licenses.)

* * *

If she hasn't already, Judge Wilbur starts to sound like she's stretching to justify a preconceived position on page 49, where she says quality doesn't matter:

Article VIII of the South Dakota Constitution does not require a “quality” education as urged by Plaintiffs. “Quality” does not appear in the education clauses, and there is no indication that the framers intended a “quality” standard in the Constitution. In addition, Plaintiffs failed to present evidence at trial which defined quality or supported inserting “quality” into the education clauses.

Really? Is Judge Wilbur ready to contend that our framers had no concern about the quality of the education the state would offer? I'll grant that plaintiffs did a crummy job of demonstrating that South Dakota students are getting a crummy education, but suppose they had: could Judge Wilbur have looked us in the eye and said a crummy education satisfies the constitutional minimum, that General Beadle, Mr. Pettigrew, and our other founders would have looked at a poor-quality education system and said, "Yup! That's what we had in mind!" It seems much more likely that the absence of the word "quality" from the education clause represents an expectation that any sensible Legislature would seek a quality education system, not some minimalistic mockery of the founders' intent.

But no matter: Judge Wilbur finds a quality education system.

* * *

An interesting thread to the argument relates to Hutterites: Part of the plaintiffs' argument was that schools like Bon Homme, Willow Lake, and Doland need more funding because they have to maintain separate schools for neighboring Hutterite colonies. Citing a 1979 case (Deerfield Hutterian Ass'n v. Ipswich Board of Ed.), Judge Wilbur says horsehockey: South Dakota schools have no constitutional obligation to provide separate schools for Hutterites [pp. 53, 209-210].

Again it feels like Judge Wilbur is stretching reality. It's like saying homsexuals are free to get married in South Dakota, as long as they marry someone of the opposite sex. Constitutionally, it's fine, but practically, it's not going to happen. I suspect if Doland or Montrose told the colony they had to send their kids to town for "English school," the school board would receive 15-20 home school applications the next day. The current system of separate public colony schools is the only practical way for the state to deliver a quality education to colony students.

* * *

Some marginalia for the blogosphere: Judge Wilbur even throws a bone for the folks afraid of state-mandated pre-K:

Given the uncertain nature of the research in this important area, the Court finds that the Plaintiffs have not shown that Pre-K is required in order to provide an adequate education [p.16]

* * *
I hate to admit it, but page 55 is as far as I'm going to get this weekend on Judge Wilbur's ruling. Homework awaits! Readers, your comments on the above and on the rest of Judge Wilbur's ruling, as well as suggestions for the lawyers, are welcome.