Academic

Bauries on State Constitutional Design & Educational Reform

By Lawrence Solum

Scott R. Bauries (University of Kentucky College of Law) has posted State Constitutional Design and Education Reform: Process Specification in Louisiana (Journal of Law and Education, Vol. 40, 2011) on SSRN. Here is the abstract:

In this article, I examine the role of state constitutional design in shaping the challenges of educational reform and the enforcement of affirmative state constitutional duties. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation ? the principal vehicle for enforcing education rights in the states ? and how they have been modified in response to such litigation.

Following this analysis, I engage in a limited case study of constitutional design in Louisiana. I begin by outlining the education provisions in Louisiana?s current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude that Louisiana?s reformers have chosen a decidedly unique, process-oriented path in amending Louisiana?s education article, as compared with reformers in other states, who have attempted substance-based reforms to their states? education provisions.

Based on this case study, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles and other affirmative-duty provisions. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes in pursuing affirmative constitutional duties. I present the situational argument in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state?s schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design.

Full post as published by Legal Theory Blog on November 23, 2010 (boomark / email).