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Introduction & Overview of Law Forward's Lawsuit
The Law Forward lawsuit against the Joint Committee on Finance is a sweeping effort to force the state to provide more education funding.
The Complaint hinges on the assertion that because of the state's School Funding Mechanism, educators do not have sufficient means to adequately educate students, and that therefore the JCF is derelict in its constitutional duty to guarantee to every child "the fundamental right of access to an equal opportunity for a sound basic education" (p.15, 2).
Importantly, the Plaintiffs assume that (1) such a right as they understand it actually exists in our Constitution; and that (2) the blame for failing to adequately educate or provide for students rests solely with the principals (Defendants), not the agents (Plaintiffs).
The Complaint does not adequately counter claims––such as those made by the Wisconsin Institute for Law and Liberty (here and here)––which offer ceteris paribus evidence of better educational outcomes with less total per pupil funding in the state's charter schools, or claims that funds are allocated disproportionately toward FTE administrator positions despite declining enrollment. Neither does it sufficiently address the original intent or understanding of the Framers generally, or of the Convention's Education Committee (Committee) specifically.
Instead, the Complaint relies on select statements from the Committee while omitting those which actually explain both the Framers' and Committee's intent regarding school funding. But to a much greater extent, the Complaint relies on the judicial interpretation of Wisconsin Supreme Court Justice Patrick Crooks, writing for the Court's majority in a review of the Court of Appeals' decision in Vincent v. Voight (2000 WI 93).
That case litigated the very same issue that the Plaintiffs now bring, and ultimately sided with the Court of Appeals' determination that the state's School Funding Mechanism is constitutional. The Plaintiffs' goal is to have that decision reviewed and ultimately reversed.
Focus of this Study
How did the Framers of the Constitution intend to fund Wisconsin schools?
To find out, I followed the method of Originalist Research as described by constitutional law scholar Rob Natelson.
In particular, I (1) reviewed the Framers' debates surrounding the Convention's Education Committee draft of Article X (Art. X) as recorded in the Journal of the Convention to Form a Constitution for the State of Wisconsin, with a Sketch of the Debates (Journal); (2) referred to contemporaneous dictionaries commonly used during the mid-19th century; and (3) surveyed contemporaneous encyclopedias where appropriate.
In short, the findings are four-fold:
(1) Art. X, Sec. 2, sub. 1 & 2 not only enumerate the kinds of schools which may receive funds from the School Fund, but also indicates the state's ranked preference for which of these are to receive funding first. The fact that common schools are listed first means that the school fund must first go toward supporting common schools, and if there should be any "residue" of funds, the remainder shall go to academies and normal schools.
(2) The Plaintiffs' lawsuit is imprecise and sometimes equivocatory in its use of the terms: 'common school', 'public school', 'elementary school' and 'high school'. At the time of ratification, these had specific and limited meanings. It also does not give attention to the contemporaneous meaning of the words 'sound' and 'basic'.
(2.a) At the time, 'sound' meant "in working order", "intact", "complete", "whole", or "thorough." This understanding is corroborated by Justice Crooks in Vincent v. Voight. 'Basic' meant "introductory", "fundamental" or "the principles of a subject." This lends significance to the understanding of common schools discussed in the next paragraph. However, neither 'sound' nor 'basic' appear in the Constitution, but are taken either from the Journal notes, or from the Court's opinions in Vincent v. Voight.
(2.b) The Framers' understanding of common schools referred only to government primary schools (i.e. free public elementary schools created by government) which, at the time, most often consisted of six years of schooling, but occasionally as much as eight years. The goal of common schools was to provide students with a "basic" education; i.e. to make students functionally literate in reading, writing, and arithmetic, usually delivered via textbooks and the Western Canon. The Framers believed education to be essential for human flourishing, but acknowledged that it was a luxury good. To ensure that citizens of the state all had the opportunity to receive a primary education, the Framers permitted anyone as old as twenty to attend common (government-created primary) schools. Most children had little, if any, formal schooling at the time, and those that did had school years consisting of only about 70 school days. Attendance was voluntary and not recorded.
(2.c) Similarly, an academy was understood at the time to be a secondary school. These were often one- to four-year programs almost exclusively reserved for the well-to-do, and were primarily funded by local benefactors and philanthropists who would also extend scholarships to promising, economically-disadvantaged students. Academies were intermediate, rather than "basic", in their subject matter, and were usually geared toward vocational training (job training) and college preparation.
(2.d) Lastly, normal schools were one-year vocational schools whose purpose was to train common school teachers in the "norms and pedagogy" of primary school teaching. These were teacher colleges, in other words. The Framers' inclusion of normal schools as an allowable recipient of funds from the School Fund emphasizes their belief in the essentialness of common schools compared to other kinds of schools.
(3) There is no constitutional requirement to "adequately", "sufficiently" or "totally" support and maintain either common schools, academies, or normal schools. The Framers––and in particular the Chairman of the Committee––commented on the fact that there will be times when the School Fund will be insufficient. The Framers held education in great esteem, but they did not require the legislature to fund it at all if funds were not available, or if other matters were of more pressing concern. The only requirement imposed on the state was that funds within the School Fund only be used for the three aforementioned school types, and in accordance with their ranked priority.
(4) The lawsuit incorrectly interprets Art. X, Sec. 3 when it says "state funding would account for two-thirds of public education funding and local funding would account for one-third..." and concludes that "the system still embodied the framers' 2-to-1 state-to-local funding ratio, today the ratio is far closer to 1-to-1" as if the 2:1 ratio is a constitutional requirement. The Constitution (see: Art. X, Sec. 5) and the Framers themselves are very clear that towns and cities must raise via taxation an amount at least one-half that received from the School Fund, or else lose all state funding. There is no issue with the ratio rising to 1:1 or higher. It is also clear that this minimum ratio pertains only to the ratio of the state's School Fund to local taxation, not school funding from all sources. The Plaintiffs are incorrect in their criticism that because the state's share of total school funding (which includes federal money) has fallen, that the legislature is not fulfilling its constitutional requirements. Section 3 imposes an obligation on towns and cities, not the state.
Findings in Detail
For the sake of brevity, Finding #1 and #4 will be addressed here. Finding #2 will be discussed at length in a follow-up article, and Finding #3 will be treated in its own follow-up article as well––although Finding #3 is touched upon incidentally in the section below.
In the paragraphs below I cite all the instances during the Convention in which the supporters and drafters of the Education Article (now Art. X) explain the meaning and intent of the school funding provisions.
Unambiguously, all of them repeatedly insist on common schools receiving priority funding first, while academies and normal schools shall receive only the remainder of funds, should there be any.
Sec 3. The revenues arising from the school fund shall be exclusively applied to the following objects, to wit:
1st. To the support and maintenance of primary schools in each town and district, and the purchase of suitable libraries and school apparatus therefor.
2d. The residue shall be appropriated to the support and maintenance of county academies and normal schools, and suitable libraries and apparatus therefor.
––Committee's original draft
During the Convention Mr. McClellan from Racine moved to strike out the words "county academy and." His reason for this was that "their [academies] benefits were confined to a small portion of the community."
A lawyer and member of the Committee from Waukesha, Mr. Root, reassured him that "it was not the intention of the committee to appropriate the school fund to county academies, as such. The phraseology of the section conveyed a different idea from what the committee intended" [emphasis mine].
The Chairman of the Committee, Mr. Estabrook, a lawyer from Walworth, objected to the proposed amendment saying: "As sufficient provision was made for the support of common schools in the first place, he could not see what objection could be made to giving a portion of the residue for the support of academies" [emphasis mine].
Mr. King from Milwaukee and Mr. Rountree from Grant objected to the amendment as well. Mr. King said "He hoped to see the time when the fund would be sufficiently large to afford free instruction in all the institutions of the state, from the primary schools to the universities" [emphasis mine]. Rountree said "he did not consider a provision for the support of the higher institutions so important as for the common schools. It was necessary to make ample provision for the support of common schools in the first place; then, if there should be a surplus over and above, it could be applied to the support of academies" [emphasis mine].
Later during the Convention, an amendment was proposed to change Section 7 of the Committee's Draft requiring counties of a certain size to erect academies. Mr. Lovell of Racine commented that "the third section provided that the residue after the wants of primary schools were established, might be applied to academies..." Mr. Root, a member of the Committee, corroborated this understanding when he explained that the intention of the Committee was "that after the common schools were provided for, the residue of the funds might be applied to the support of normal schools and academies" [emphasis mine].
The implication of this for the Plaintiffs in the school funding lawsuit is remarkable. When interpreted correctly, even a ruling in the Plaintiffs' favor would require the legislature to distribute the School Fund proceeds to public elementary schools and away from high schools to ensure they are sufficiently provided for. The Plaintiffs would no doubt find this result incredibly troublesome.
I anticipate that some will object, saying "Yes, but the meanings of words change. We no longer call public schools 'common schools' or 'academies'." But that is wholly irrelevant to an original interpretation of the Constitution. As Justice Roberts recently said:
"It’s a new world; it’s the same Constitution."
Officers of the state are bound to the Constitution as understood by its makers. If you could simply redefine terms to invent new meanings, there would be no constraints on government, and thus the purpose of a constitution would be destroyed. As it stands today, Art. X, Sec. 2, Sub. 1 & 2 have never been amended. The original understanding of those provisions is thus still in effect.
As stated earlier, the lawsuit fails to properly understand Art. X, Sec. 3. The Plaintiffs say in several places that the legislature has failed to meet its constitutional obligation to provide a "sound basic education" by reference to the fact that the state's share of total school funding is less than two-thirds of all that is received by schools.
On page 16 of the lawsuit the Plaintiffs assert:
"...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."
No such agreement ever took place.
This is an example of interpretive trickery by omission.
The Framers were very clear about the necessity of local towns and cities sharing the burden of supporting the common schools because, as Education Chairman Estabrook explained: "It was intended that whatever the amount of the school fund might be, one-third of the expense of supporting schools, should be borne by each town. If a sufficient sum was not contributed by the school fund, the towns should have power to raise more" [emphasis mine].
According to the Chairman, then, Art. X, Sec. 3 imposes a minimum contribution on the towns relative to funds received from the state. It does not impose a minimum contribution on the state.
Estabrook specifically mentions the fact that towns may raise more than one-third the amount they receive from the state should they want to. As mentioned in the section above, this explanation goes to show that no state funding is required at all, because there may be times when the school fund is insufficient, or even exhausted.
Estabrook goes on to explain why local contributions––contrary to being "secondary" to state funding––are crucial to the survival and support of common schools:
"Experience had shown that if nothing was contributed by the town, the common schools languished... No adequate interest was felt by the people [of Connecticut], in common schools, unless they contributed to their support."
That the state's share of school funding is "primary" is only incidental in those cases where towns and cities raise the minimum contribution required by the Constitution. There is still an allowance made for them to raise more than this minimum, which would necessarily entail the state's share of school funding relative to cities and towns falling below two-thirds.
Conclusion
The interpretation laid out here is no doubt a minority view. Accordingly, I am not holding my breath that the Supreme Court, or any court, will adopt this point of view. I also have not found any record in case law of Art. X, Sec. 2, Sub. 1 & 2 ever being litigated (via CourtListener). Courts (unfortunately) place too much weight on precedent in my opinion. But with the exception of the mostly inapplicable Vincent v. Voight, it is in some sense good that no precedent exists.
However, given that the original understanding of the U.S. Constitution––for which hundreds of records exist––has been lost with respect to terms like "commerce", "emoluments", "the law of nations", and so much more, I believe that the interpretation given here is not more commonly known simply because no one has bothered to look.
Accounts of Wisconsin's Constitutional Convention are singular. Only the Journal exists, and other secondary resources cannot be given the same interpretive weight.
Good work has been done by Dr. Will Flanders of the Wisconsin Institute for Law and Liberty which addresses the Plaintiffs' claims regarding insufficient resources to improve learning outcomes. More can be said about other claims made in the lawsuit regarding so-called "inflation" and "special needs".
A sequel to this will be published addressing Findings #2 and #3 as said before, but archived copies of contemporary dictionaries from the 19th century are freely available online (such as Webster's 1828, 1841 and 1848 editions), as are Black's Law Dictionary, John Bouvier's Law Dictionary (1839), and Encyclopedia Brittanica, 7th edition (1842).
These can be easily searched for crucial terms like "common", "academy", and so on.
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