BYU Education & Law Journal


William Thro


Education; Education policy; Education law; Educational equity; Education finance


Despite the Supreme Court’s recognition of the importance of public education, America’s public schools remain ravaged by “savage inequalities”which lead to failure of the public schools.Because every State, except Hawaii, partially finances local public schools through local property taxes and because there are differences in the value of real property, there are vast disparities in available funding for local school districts. While every State Constitution requires the State Legislature to establish a public school system and while the State Legislatures have enacted a variety of statutes in an attempt to meet the state constitutional obligations, virtually every State has seen a school finance suit—a claim the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner.

Yet, despite three waves of litigationspanning half a century, “there are few certainties in the school funding litigation process.” Indeed, school finance litigation is in chaos. First, courts fail to define the constitutional challenge; whether it is facial or as applied. Second, judges refuse to focus on the plain meaning of the constitutional text; Florida’s highest court insisted the text was “puffery” not law. Third, when the judiciary does interpret or construct the constitutional text, it often fails to articulate the reasons why there is or is not a constitutional violation, but instead engages in activism or abdication. Finally, when the courts have found a constitutional violation, the result has often been a constitutional crisis where the legislature refuses to comply with the judicial mandate.