As Justin mentioned last week, the Colorado Supreme Court recently issued its long-awaited school finance adequacy deicision--sort of. The court, in a 4-3 decision, issued three big rulings in the case--one retrospective and two prospective. First, it held that school finance adequacy was justiciable, explicitly adopting the justiciability holding it has stated in a prior equity case, notwithstanding the very explicit separation of powers clause in the state constitution, and not considering that adequacy might just be different from equity when it comes to separation of powers. The court held that, retrospecitively, it was error for the intermediate appellate court to order dismissal on separation of powers grounds.
Second, the court prospectively instructed the trial court on remand to apply the "rational basis" standard of review to its evaluation of the merits of the constitutional claim. That is, on remand, the court is to evaluate whether the challenged legislation is rationally related to the legislative objective (or duty) of establishing and maintaining a "thorough and efficient" education system. This is the first time I have seen this standard applied to the initial merits decision in an adequacy case, and it seems like a very easy standard for the state to meet, but I've learned not to assume anything in adequacy-land.
Third, the court cryptically predicted that, if a violation of the state constitution were to be found on remand, the proper remedial posture for the court to take would be that of remedial abstention. Essentially, the court explained that it could find a violation, but not direct the legislature to remedy the violation in any specific way. Instead, the court held that the trial court "must provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution." Of course, the immediate concern that leaps to mind here is whether any legislative response to a judicial order specifically holding the system unconstitutional (other than a legislative action reducing funding) could ever be held to be irrational or unrelated to the constitutional standard at the remedial stage. I'm curious as to what sort of remedy the court thinks that this approach will really yield.
Three of the seven justices dissented together, arguing that the adequacy of education spending is a nonjusticiable political question, agreeing with the minority of states to have considered the issue. Most surprising to me was the lack of any discussion whatsoever of individual rights to education, even to reject any such notion. As we watch this case on remand, it will be interesting to see whether justiciability with a highly deferential standard of review and no propect of an injunctive remedy is any better than non jusiticiability, from the plaintiffs' perspective. Taking the case all the way back up may not be smart (particularly financially), where the state supreme court has already telegraphed a very difficult road to victory and no remedy beyond a declaration in the event of such an unlikely victory.