Last month, the Oregon Supreme Court came down with its first opinion addressing a state constitutional challenge to its education finance plan asserting theories of inadequate spending. The slip opinion is here. The opinion is interesting for at least three reasons; First, it was the first definitive opinion from a highest state court in an adequacy case where the Court did not give any independent consideration to separation of powers concerns. The court did consider whether the case was justiciable in light of State objections based on the ripeness and mootness doctrines (and it is true that these doctrines have an indirect relationship to separation of powers concerns), but the Court did not independently consider whether it should engage in review or abstain due to the potential that its ruling might encroach on legislative functions. With the exception of Arizona (which ruled on the adequacy issue at the request of the State), all other courts have at least considered whether they should abstain.
Second (and maybe this explains the first), the opinion was the first to separately consider a constitutional provision added by voters to supplement the state's education clause and make clear the legislature's specific funding obligation. The original education clause, found in Article VIII, s. 3, simply provides: "The Legislative Assembly shall provide by law for the establishment of a uniform, and general system of Common schools." Scholars of education finance would place this clause among the weakest (or least demanding) in the nation. However, in 2000, the voters added Section 8 to Article VIII. This new section provides, in pertinent part: "(1) The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state’s system of public education meets quality goals established by law, and publish a report that either demonstrates the appropriation is sufficient, or identifies the reasons for the insufficiency, its extent, and its impact on the ability of the state’s system of public education to meet those goals." The plaintiffs argued in the alternative that (1) the challenged legislative appropriation was in violation of the new clause; or (2) the old clause incorporated the new clause's standards (which appear to incorporate the state content learning standards), and was therefore violated by the (stipulated) failure of legislative appropriations to meet these incorporated standards; or (3) the old clause required adequate funding in and of itself, and this clause was violated.
As to the first contention, the Court engaged in a strict textual analysis and held that, based primarily on the State's admission that this was so, state funding was indeed insufficient to meet the goals of the state learning standards. However, the Court also held that, by providing for a legislative explanation in the event of a failure to provide sufficient funds, the amendment itself explicitly authorized insufficient funding, so the Court could not go beyond issuing a declaration that funding was insufficient (as opposed to unconstitutional). As to the second contention, the Court held that it would be illogical to conclude that legislative discretion provided by a new constitutional provision could be nullified by an older constitutional provision said to "incorporate" it. As to the third contention, the Court interpreted the education clause as imposing the most minimal of standards--that of a basic education, and held that this standard was met (or rather, that there was no evidence that it was not met).
Thus, we have the third reason that this case is of interest--the Court, unlike almost every state court reaching the merits of an education finance adequacy challenge--ruled in favor of the state. This ruling might be explained based on the fact that the new constitutional provision--the one that was supposed to be more strict than the old one--ultimately imposed a very wishy-washy standard of "The legislature must do X, unless it does not want to do X." Armed with this indication of popular voter intent, it must have been evident to the Court that the voters of Oregon were not interested in limiting legislative discretion as to appropriations matters, even in the original education clause. I have argued elsewhere that advocates of using the judiciary to obtain increased education funding might be more successful if they were to start with a popular amendment of the state constitution imposing standards that are concrete--not inherently subjective and unclear, as most state education clauses are because they use words like "thorough," "ample," "general," and "sufficient." (Words like these can invite dismissal based on the political question doctrine, which counsels abstention where there are no "judicially manageable standards.") The reformers in Oregon succeeded in imposing a more concrete standard arguably subject to judicial manageability, but they took the wind out of their own sails by explicitly making the concrete standard optional.
Justin Bathon on 
