School District Lawsuit Part III: A "Right" to an Education & How to Fund Schools

Introduction & Review

In Part I of this series I presented 4 Findings regarding the original intent behind education funding. Part I specifically addressed Findings #1 and #4.

Finding #1 showed that the Framers intended for common schools to receive funding first, and with priority, to academies and normal schools. Thus, Subs. 1 & 2 of Art. X, Sec. 2 actually signify a ranked preference scale with regard to how funds within the School Fund are to be spent.

Finding #4 showed that the school funding ratio––supposedly requiring the state to provide two-thirds of all school funding––is actually a requirement for local communities to contribute, via local taxation, an amount not less than one-half that received from the state. The funding ratio is actually an imposition placed on local communities, not the state. The Framers were explicit that a community's financial contribution was essential to the support and maintenance of common schools, else they "languish."

In Part II of this series I addressed Finding #2 at length.

Finding #2 showed what the Framers meant by 'common schools', 'academies', and many other important terms. It cited contemporaneous dictionaries and encyclopedias, the Framers themselves during the Convention debates, and compared original and final drafts of the Education Article to show that common schools were the public equivalent of primary schools more generally. It also shows that normal schools and academies were the general, non-specific terms for teacher colleges and secondary schools, respectively. And lastly, it demonstrates that high schools are the public equivalent of academies more generally, and were not considered common schools by the Framers or founding generation.

Focus of this Study

This article will address Finding #3.

Finding #3 shows that the Framers placed no obligation on the state to fund schools at all. It also addresses the Plaintiffs' assertion that the children of this state have a "right" to an education.

With respect to the former, comments made by the Chairman of the Education Committee are especially revealing. Others on the Committee also acknowledge that funding is, and will be, sparse.

As for "rights", the misunderstanding of but a single word where this right is asserted has led the Plaintiffs, and some judges, to defend and advance a right which they have created de novo. The Framers' assertion of this "right" was substantially different from what people believe today.

Findings in Detail

(3.a) How to Fund Schools

In Part II of this series I quoted the Plaintiffs when they said "the framers agreed at the constitutional convention that the primary responsibility for funding public schools––indeed, up to two-thirds of the cost––would fall on the State." They continue:

"They seeded the State's obligation with the proceeds of a state trust fund...with the intention of mitigating reliance on local property taxes to fund Wisconsin public schools."

I had previously characterized this as verbal trickery by omission. It still is.

In reality, the Framers' intent was exactly the opposite of what Law Forward claims. They intended to place a burden on local taxpayers to ensure that common schools were used and maintained by those who benefited from them.

As Art. X, Sec. 4 makes clear, towns and cities are required to raise money via taxation for the support of common schools an amount "not less than one half the amount received...from the income of the school fund."

When this section was being debated during the convention (originally Sec. 6), it was explicitly stated that local contributions were necessary to ensure that common schools did not "languish." As Committee Chairman Estabrook explained, the provision requiring local support was not a careless insertion, "It was the result of thought and deliberation":

The excerpt above from the Chairman––both a drafter of the Article and a proponent of it––also reveals the Plaintiffs' mistake regarding the supposed 2:1 funding ratio discussed in Finding #4. Estabrook's statement that "one-third should be borne by each town," is not a hard-and-fast funding rule. Nor is it ideal according to him.

The very next sentence reveals this when he says: "If a sufficient sum was not contributed by the school fund, the towns should have power to raise more."

Here, the use of the word 'should' is not being used in a normative sense to make a value judgement, as when we use the word 'ought'. It is being used as a modal auxiliary verb in the conditional present tense. In other words, Estabrook is saying that towns have the power to raise more.

It's worth noting, too, that the Framers had very recent memories of a number of Panics and recessions that resulted in real estate bubbles bursting, incomes collapsing or livelihoods being ruined, and hundreds of bank failures. They would have anticipated times when the School Fund would be insufficient, or when local circumstances (such as mass migration or the growth of a particular industry) would require greater funding for schools.

For example, all of the Framers would have known of the Panic of 1819; been alive during the Panic of 1837 and the Recession of '39; and experienced the stagnation that resulted from the Mexican-American War. They also would have been quite familiar with sovereign debt crises like those which precipitated Shays's Rebellion, the inflation of the Continental Dollar, and the occasional destruction of other currencies, bank notes, and crops used to pay taxes in-kind. In short, they knew that the State might have trouble collecting tax revenue or earning a meaningful return on the School Fund, so they afforded towns and cities the ability to raise funds over-and-above the legal minimum.

Another crucial point to make regarding any claim of minimum funding levels on the part of the State is the condition that appears in Art. X, Sec 5. This section makes it abundantly clear that not only are common schools not entitled to funds from the School Fund, but that they can be denied funds if they don't raise enough money via taxation to meet their constitutionally-required minimum funding threshold:

In Sec. 5 above, we see that there are two requirements placed on cities and towns in order for them to qualify to receive school funds: 

1) raising via taxation an amount at least one-half that received from the state; and 

2) keeping a school open for at least three months.

The first is what is relevant for us.

If schools are entitled to or owed funds from the School Fund no matter what, then how can Sec. 5 rightfully place any conditions on state-provided school funding?

The fact is, Sec. 5 corroborates Sec. 4 and demonstrates that the Framers (like Estabrook) thought it crucial that local taxpayers have a stake in their common schools. Hence the mandates for local taxation and minimum local funding contributions.

If anything, the Plaintiffs are making it harder on themselves by not arguing, instead, that the state has given them so much money it's impossible for them to raise the constitutionally-required amount. Of course, the Plaintiffs don't argue this. Instead, they make reference to 'inflation', 'reimbursements', and the amount of money choice schools receive.

Their intent is simply to get more money from the State, and to do it by inventing a right they claim the JCF has violated.

(3.b) The "Right" to an Education

The Plaintiffs have advanced a right which is nothing other than an outright invention. It does not come from the Wisconsin Constitution, but rather from Justice Crooks in Vincent v. Voight (2000).

As was said in Part II, this supposed "right" is ultimately taken from the Convention Journal when Mr. Richardson read the Resolution defining the Committee's mission; and later when Chairman Estabrook introduced the Education Article:

The reader will refer to Part II to better understand the meaning of terms like 'sound'.

As for the Plaintiffs, the second item listed in the Introduction of their Complaint is as follows:

"Through those public schools, our Constitution guarantees every child in Wisconsin, ages four to twenty, the fundamental right of access to an equal opportunity for a sound basic education, without tuition."

This assertion is a mixture of what is said in Art. X, Sec. 3 and the majority opinion of Justice Crooks in Vincent v. Voight. But the word 'access' does not appear in the Constitution. The Constitution states that district schools shall be free to all children between the ages of 4 and 20:

The significance of this is that the Plaintiffs are placing the weight of their argument on everything that comes after the right. The "right" that they are actually alleging is a right of access, not a right to a "sound basic education."

Instead, the right conveyed by Section 3 is that a district school education shall be "free and without charge for tuition." But nothing is said about "access." The Constitution, in fact, is neutral on this very thing. It is actually left to local communities to decide who may "access" district schools [Access: to gain entry to].

In fact, during the Convention, Sec. 4 (now Sec. 3) had an amendment proposed that would have limited access explicitly. The Framers' comments on that amendment reveal how this section needs to be understood:

All told, 3 members voted for the amendment, and 56 voted against it.

What this indicates is that the Framers, rather than ensuring access to district schools, left it to local communities to regulate access on the basis of race. In particular, the Framers had in mind "colored" people only; i.e. blacks. American Indians, at the time, were not considered to be "colored", and were extended suffrage immediately upon the ratification of the Constitution by Article III [Webster's 1828: COLORED people, black people, Africans or their descendants, mixed or unmixed].

So how exactly does this comport with the Plaintiff's assertion of a right of access? The relevant portion of Sec. 3 has never been amended.

But even assuming there is this right of access, who today is denied entry to our district schools? The Plaintiffs wish to place all the emphasis on the "sound basic education" portion of this right. They assert that because they do not receive enough money (how much, exactly, is "enough"), their students cannot receive a sound education.

But is a sound education a right guaranteed by the Constitution? Does the Constitution guarantee this positive right?

Conclusion: Positive Rights & Preambles

The Framers––and virtually all Americans––were very dubious of positive rights, generally. It was contrary to American spirit and industry. The only exceptions to this rule were the rights to Due Process, Jury Trials and Public Defenders in criminal proceedings. And this was because defendants were being prosecuted by their state.

But beyond that, guaranteeing a positive right is almost never done, and when it is, it is never guaranteed to be of a certain quality (see: the quality of public defenders for proof). The practical reason for this is because quality can never be assured, least of all by government.

And by extension, how is the quality to be determined? If the quality of the "right" to an education is measured by the "soundness" of that education, we're in big trouble. What disgruntled parent couldn't bring suite against their government simply because they expected their child to have straight A's? Who couldn't rightly claim that that any deficiency in outcome is really a deficiency in the institution, rather than a personal or natural limitation of the student?

The Plaintiffs' and Justice Crooks's mistake in elevating this idea of a right to a "sound" education ultimately comes down to a misunderstanding of how to properly apply what is said during the Convention debates.

When Mr. Richardson reads the Resolution charging the Education Committee with their task, and when Mr. Estabrook later reiterates that charge during the Committee's "Report", these declarations function like a Preamble. They describe the "intent and goals" of the Drafters, but they are not "a source of binding rules."

So then, with respect to "soundness", at best we can say that the purpose of the Education Article as drafted was to bring about a sound education. Every Section and Clause aim at that. But whether they do is an entirely different matter. Failure to achieve this goal may be due to factors other than the JCF, or the governor. They could be economic or cultural. They could be political or structural. Whatever the facts may be, poor outcomes do not necessarily imply illegality, and especially not when an ideal goal isn't met.

What ought to matter for the Plaintiffs and others bringing similar suites to combat poor outcomes is whether Wisconsin's agents have followed the Constitution and the laws made in pursuance thereof. If so, and if we still have not managed to reach our goals, then perhaps a change in the process is warranted. Fortunately, the Constitution provides a mechanism by which this can be done.

Perhaps the State should no longer play a role in funding common schools, and leave it entirely to local communities. After all, if the Plaintiffs are truly being hamstrung by the JCF, and if their local community members are serious about providing their schools with more money, then a Constitutional Amendment could easily solve their problems. And in the meantime, those local community members could choose to pay more in tax or donate to their local schools until the structural problem is resolved.