Judicial "Inadequacy" in Providing Remedies for Education Finance "Inadequacy"?

I missed this when it first was filed (most likely because I was still in private practice then), but an interesting set of developments occurred during the second half of 2007 and the first half of 2008 in the Idaho school finance litigation. Those of you with interests in the area will recall that, in late 2005, the Idaho Supreme Court held the state's education system unconstitutional on adequacy grounds. (See Idaho Schools for Equal Educational Opportunity v. State.) However, like several other state courts troubled by the separation of powers issues inherent in these cases, the Idaho Court elected to abstain from ordering any remedy to the identified constitutional violation. The plaintiffs understandably became impatient with this "wait and see" approach to the remediation of the violation of their rights, and they took matters into their own hands, filing a complaint in federal court against all of the Justices of the Idaho Supreme Court. I cannot link to the documents because they are password protected, but if you have a Pacer account, you can find them in the CM/ECF system for the Idaho federal district court under case no. CIV 07-00261-S-EJL.

Initially, the plaintiffs sought a writ of mandamus, which is an ancient judicial mechanism by which a court directs an official of the government to perform his or her official duties. (The famous Supreme Court case of Marbury v. Madison came before the Court on a writ of mandamus). The problem with mandamus in this situation, though, is that a federal court may not use the procedure to force a state official to perform a duty under state law (federalism concerns prevent this), and in any event, federal district courts have no power under the Federal Rules to issue writs of mandamus (See FRCP 81(b)). So, the plaintiffs attempted to re-cast their suit as one merely for a judicial declaration that the failure to order a remedy for the identified violation of their state constitutional rights constituted a violation of their federal constitutional rights under the Due Process Clause of the 14th Amendment. They initially succeeded at re-casting their claim, but the court eventually saw through this as merely a semantic change and dismissed the claims in their entirety.

Along the way, though, the court was asked to rule on the Justices' motion for summary judgment as to the due process claims. For those unfamiliar with this procedure, it is a mechanism by which a party may obtain judgment without trial if there are "no genuine issues of disputed material fact," and the law cuts in favor of the moving party's position. The Justices' argument was essentially that no relief could be granted the plaintiffs on their claims because the Idaho Court had discretion not to order a remedy. Interestingly, the federal court did not buy this argument. Instead, the court ruled that, if the Idaho Court had indeed held that the plaintiffs' constitutional rights had been violated, yet elected not to order any remediation of such violation before closing the case, then it was conceivable that the Idaho Court's action (or inaction) constituted a violation of the plaintiffs' federal rights to due process. Again, if you are unfamiliar with the process of summary judgment, the court's denial of the Justices' motion did not mean that the plaintiffs then won the case. It just meant that the case could go forward to trial on the due process claims. As I mentioned above, the case was ultimately dismissed after the court, upon deeper examination of the plaintiffs' claims, determined that the only thing they really could be seeking was a writ of mandamus, which the court was forbidden to issue.

Nevertheless, if other federal courts (and litigants) pick up on the reasoning supporting the court's ruling on the motion for summary judgment, it has the potential to drastically alter school finance litigation. More than a third of the currently decided adequacy cases have ended with orders similar to the one in Idaho, where the court finds a constitutional violation, but elects not to order a remedy. If a group of litigants, after winning in the state courts but not receiving any remedy, chooses to sue the state court judge or justices in federal court, but is careful not to seek a writ of mandamus, there is at least a chance that they could win at least a declaratory judgment that the state court has violated their due process rights. What would be the outcome of such a ruling? Well, at the bare minimum it would be a source of great embarrassment to the state court judges, but it might also have a chilling effect on further rulings finding constitutional violations, but declining to order remedies. If such a rule of law had existed at the time (not that it actually exists now), we might have been deprived even of the seminal Rose v. Council case in Kentucky, in which the Court did almost exactly what the Idaho Court did in the ISEEO case.

I don't like much about the federal court's initial approach from a federalism and separation of powers perspective, chiefly because it would have had the effect of determining that exercising judicial restraint due to separation of powers concerns at the state level is wrong, even though doing the same thing at the federal level (such as abstaining from hearing a case that presents a political question) is clearly fine under current Supreme Court precedent. However, in a pragmatic sense, there is one thing to like about the federal court's initial approach. It puts state judges in the same position in which many of them have placed state legislatures: having an outside actor declare them to be bound by an amorphous affirmative constitutional "duty" and essentially shaming them for exercising discretion in the performance of this duty, where such discretion would otherwise have been evident from the constitutional text, as well as inherent in the judiciary's role in the three-branch system of government. (Very similar to legislative discretion in funding education). 

There's even a potential for extension: For example, assuming the Justices lost, would it have been sufficient for them to award the state plaintiffs the proverbial "peppercorn" for their troubles? If the "peppercorn" satisfies due process, then what difference is there between that and total judicial deference to the legislature as to a remedy? If the "peppercorn" is insufficient, then how much reviewing authority does a federal judge have? If the initial decision had been carried forward, would we have been talking later about whether the court's remedy was constitutionally "adequate"?