Apparently, Mike Whalley told the House Finance Committee yesterday that his “amendment, by including the word ‘reasonable,’ would lower the standard [of judicial review]. Court review of legislative decisions would be based on whether they have a ‘rational basis.’”
There is a standard of legal review known as rational basis review. As a practical matter, review under this standard means the legislation will be deemed constitutional. However, the review is not articulated as whether the Court views the legislation as “reasonable,” but whether the legislation is rationally related to a legitimate government interest. If the purpose of the Whalley amendment is to lower the standard of review to rational basis review, then why not say so rather than take the chance that a Court would interpret the amendment to mean something else?
The amendment says “the legislature shall have the authority and responsibility to reasonably establish standards for primary and secondary education in its public schools, determine the level of state funding thereof and establish standards of accountability … .” Because “reasonable” modifies “establish” and “determine” rather than “standards,” “level of funding” and “standards of accountability” it sounds like any “standards,” “level of funding” and “standards of accountability” would be permissible as long as the Legislature was “reasonable” when it “established” and “determined.”
But what does it mean to be “reasonable” in determining and establishing the standards, etc.? Does it mean that funding of $1.00 would be constitutional as long as the legislators didn’t yell or pound their fist on the tables when they debated the cost of the standards? Or does that mean that funding of $1 billion would be unreasonable because the Legislature did not hire some “expert consultant” to say the cost is $1 billion?
The amendment also says that “every school district [must] receive a reasonable share of the state funds on a per pupil basis.” Here, the term “reasonable” applies to the result, not the process used to produce the result. So will the judge be reviewing to determine whether the amount of funding is irrational, which is apparently what Whalley intends, or whether the amount of funding is equitable, which is another meaning of the term “reasonable”? Note that, in Claremont II, the Court said the term “reasonable” as used in Part II, Article 5 means “just.”
The fundamental problem with Whalley’s approach is, in his own words, that “[w]e made no attempt to remove the court.” Courts are not supposed to make policy decisions or pass judgment on the policy decisions made by the representative branches. That is why we have elections. By writing the antiquated, failed education policy prescriptions of the misbegotten Claremont/Londonderry decisions into the Constitution, the Whalley amendment would prevent future Legislatures from meaningfully reforming public education.