Originalism and School Finance Litigation


35 Pages Posted: 15 May 2017  

William E. Thro

University of Kentucky

Date Written: December 1, 2016


In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Although the constitutional theories seem straightforward, the judicial opinions raise complex jurisdictional, merits, and remedial questions. Moreover, despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.”

This uncertainty is the result of judges and attorneys asking the wrong questions. Like all constitutional litigation, a challenge to a State’s school finance system involves three fundamental questions. First, who allegedly violates the Constitution? As Rosenkranz demonstrated, answering this question tells us whether the constitutional challenge is a facial challenge to legislative authority or simply an as-applied challenge to executive enforcement of a statute. This is the question about standing and standards of proof. Second, what does the Constitution prohibit or require? Answering this question tells us how the Constitution limits the sovereign discretion of the government and what those limits mean. This is the question about constitutional meaning. Third, why is the Constitution violated or not violated? Answering this question tells us what constitutional actors must do to correct the violation or why the constitutional actors have conformed to the constitutional norms. This is the question about remedy.

I addressed the first question in a previous work and I intend to address the third question in the future, but this Article addresses the second question — what does the State Constitution require or prohibit with respect to the financing of schools? In particular, I focus on how to determine what the State Constitutions mean for school finance. My thesis is that Originalism is the best way of enforcing the constitutional limits and constraining judicial power.

Suggested Citation

Thro, William E., Originalism and School Finance Litigation (December 1, 2016). 335 EDUCATION LAW REPORTER 538 (2016). Available at SSRN: https://ssrn.com/abstract=2966319

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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