Originalism and the State Education Clauses: The Louisiana Voucher Case as an Illustration

R. Craig Wood

University of Florida

William E. Thro

University of Kentucky

April 4, 2014

302 Education Law Reporter 875 (2014)

In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to provide enough money for the public schools. Historically, litigants have relied on two different constitutional theories. In “equity suits,” which dominated the 1970s and 1980s, the plaintiffs assert that all children are entitled to have the same amount of money spent on their education and/or that children are entitled to equal educational opportunities. Specifically, the plaintiffs contend the legislature violates the State Constitution’s Equality Guarantee because education is a fundamental right. In “adequacy suits,” which have dominated since 1989, the plaintiffs, relying on the State Constitutions’ Education Clauses argue that the finance system is unconstitutional because some schools lack the money to meet minimum standards of quality. In other words, all children are entitled to an education of at least a certain quality, and that more money is necessary to bring the worst school districts up to the minimum level mandated by the State Constitution.

Yet, despite the recent dominance of the Adequacy Theory, the courts are inconsistent in the interpretation of the Education Clauses. Although these provisions are limitations on legislative discretion, the cases focus not whether the legislature abused its discretion, but on the characteristics of individual school districts. While there are significant textual differences among the Education Clauses, those distinctions have been largely meaningless. Consequently, “there are few certainties in the school funding litigation process.”

In order to bring consistency to school finance litigation based on the adequacy theory, it is necessary to develop a consistent coherent theory of constitutional interpretation for the Education Clauses. One such plausible theory is the application of Originalism to the Education Clauses. Interestingly, the Louisiana school voucher case, Louisiana Federation of Teacher v. Louisiana, while technically not a school finance case, in the sense of equity or adequacy, illustrates the application of Originalism to the Education Clauses as to how schools are to be financed.

The purpose of this Article is to examine the Louisiana school voucher case through the lens of Originalism. This purpose is accomplished in three Parts. Part I provides a general overview of Originalism. Part II discusses the Louisiana school voucher case with particular emphasis on the Court’s use of Originalism. Part III explores the potential implications of an Originalism in other school finance cases.

Number of Pages in PDF File: 16

Keywords: School Finance Litigation, Originalism, Constitutional Interpretation, State Constitutional Law, Education Law

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Date posted: April 5, 2014 ; Last revised: August 6, 2014

Suggested Citation

Wood, R. Craig and Thro, William E., Originalism and the State Education Clauses: The Louisiana Voucher Case as an Illustration (April 4, 2014). 302 Education Law Reporter 875 (2014). Available at SSRN: https://ssrn.com/abstract=2420501

Contact Information

R. Craig Wood
University of Florida ( email )
PO Box 117165, 201 Stuzin Hall
Gainesville, FL 32610-0496
United States
William E. Thro (Contact Author)
University of Kentucky ( email )
Lexington, KY 40506
United States
859-257-2936 (Phone)
859-323-1062 (Fax)
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