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Should Courts Make Education Policy?

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Should Courts Make Education Policy?

Let me guess: When the court makes a policy you like, your answer is "yes." When the court makes a policy you don't like, you're not so sure. If that's a reasonable summary of your beliefs on this, I'll ask you to reconsider.

And I'll pose a different question. Could there be a judicial overreach into policy-making so obvious that you'd oppose it, simply on the principle of separation of powers?

People in New Jersey have begun thinking about this.

Because on the matter of whether courts should represent a higher branch of government than the governor and the legislature, just in case there were still any doubt, New Jersey Superior Court Judge Peter Doyne has removed all.

Judge Doyne ruled that the courts can veto dollar amounts in state budgets, a task you might have nostalgically thought the province of executive and legislative branches. All that's needed is language from the state constitution to underpin their policy prescriptions, also known as opinions. These constitutional references are the key ingredients; they're like magic beads. The existence of a pertinent sentence or phrase from the state constitution, according to Judge Doyne, even one that just vaguely references an entire issue, gives the Court authority to set policies and make laws under the mantle of judicial review.

On the subject of education specifically, Judge Doyne determined last week that seven judges may overrule an elected Governor and make their own political decision on education budgets for the state.

No matter that this finding on the supremacy of the judiciary was written by someone in the judiciary and was commissioned by... wait for it... the judiciary.
Should we be surprised? This is a state whose Supreme Court enacted an entire pre-school program for three and four-year old children.

This isn't in dispute. The NJ Education Law Center, the very group that advocated for the program, says it on their website about as plainly as possible, "The Supreme Court Mandate for Preschool."

(Please check out the link if you think I'm kidding or exaggerating.)
The Court actually found the need for a pre-school program in the state constitution. You and I may not be able to see it in the constitution at all, but they sure did. Plain as day. It's like they have X-ray glasses.

(Please understand, I'm not discussing the merits of any particular pre-school program; I'm talking about whether courts have the authority to order such a thing, rather than a legislature and a governor.)

All of New Jersey's court-imposed education policies hang on one key phrase in the state constitution:

The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools....

See anything about pre-schools?

It begs the question, are there any state policies the Court couldn't co-opt? For example, could it declare the state sales tax rate to be unconstitutionally low? How about Turnpike tolls, or gasoline taxes? Are they too low? As long as the Court can find words like "money" or "taxation" in the state constitution, (and they are there)... voila: the Court could declare itself the right to veto particular tax rates as unconstitutional, the same way it seeks to veto education budgets.

Of course, they would likely remand the tiresome, granular details to the legislature, so as to give legislators a supporting role... just to protect their feelings, really. In addition, by giving the legislature the homework assignment of some sort, however subordinate, the courts would also preempt the claim that they've completely subsumed the legislature's role. But it would remain clear who'd be in charge. The big picture thinking of how to allocate resources in New Jersey -- this can be the Court, in areas where the Court chooses to declare its own authority, says Judge Doyne. The Court is the final "decider," if you'll excuse the Bushism. In short, New Jersey Supreme Court may decide dollar amounts that are "constitutional," and those that are not.

And there should be no restrictions on the Court's ability to legislate. Okay, "rule." Whatever.

A long way from Marbury v. Madison, eh?

So while they've been on this road for a long time, this decision takes it further. To Judge Doyne, "unconstitutional" is simply a political decision or dollar amount with which the state Supreme Court disagrees. About an issue that's referenced in the state constitution. Which is everything.

(Credit: Clip art courtesy of: