Neoformalist Constitutional Construction and Public Employee Speech

This Article examines, evaluates, and prescribes improvements to a familiar form of constitutional construction favored by neoformalists—the preference for rules over standards. Constitutional law development can be understood as being composed of two judicial tasks—interpretation and construction. Judicial interpretation of the Constitution involves determining the semantic meaning of the words contained in the document. Once that semantic meaning is determined, the interpreted meaning must be constructed into legal doctrine for application in court. Sometimes, that construction involves the articulation of the legal doctrines based on the interpreted constitutional text that will govern a particular case and those similar to it. Legal neoformalists and legal realists disagree as to how this latter form of construction should occur—the former preferring rules and the latter preferring standards—but this portion of the “construction zone” is where the rules-versus-standards debate resides. This Article refers to the formalist, or “rules,” side of the debate as neoformalist constitutional construction. Neoformalist constitutional construction has many critics and defenders. But few, if any, scholarly treatments seek to evaluate it in the real world of judging, or seek to tease out its ideal conditions. This Article fills that gap by examining neoformalist constitutional construction on its own terms—whether it actually serves neoformalist values, and under what conditions it might do so optimally. Employing a case study, this Article shows that neoformalist constitutional construction is bound to fail, absent changes to two judicial practices: one, the inordinate deference that lower courts grant to Supreme Court dicta; and two, the tendency of Supreme Court justices to over-justify their rulings

Perversity as Rationality in Teacher Evaluation

Rational basis review is broken. Consider a vignette: Imagine a student, Lisa, who is about to graduate high school. Lisa has already completed all of the graduation course requirements early and is spending her time during her senior year taking interesting electives and dual-enrollment college courses. The state has a statute that requires school districts to deny a diploma to any student “who, during the final year of school attendance, fails to achieve a passing score on the state-approved, end-of-course exams in the courses of Language Arts, Mathematics, Science, and Social Studies in which that student is then-currently enrolled.” As part of the graduation requirements, schools must administer these “end-of-course” exams in the twelfth grade to every student enrolled in one of the aforementioned courses. It forbids early administration of the tests under any circumstances, due to concerns over cheating and test security. However, because Lisa took online courses in the summers, and completed her last graduation-required course in the eleventh grade, she took no end-of-course test then, and she will take no such test this year, as she is not enrolled in any graduation-required course. Thus, by operation of the mandate, Lisa will “fail to achieve a passing score” in all of the required subjects and will accordingly fail to graduate. When Lisa and her parents notice this anomaly and inform the school district, the response is to quote the policy to them, and to express regret that Lisa will apparently not graduate. Obviously unsatisfied, Lisa’s parents take Lisa’s issue up the chain of command, all the way to the Superintendent’s Office. The Superintendent, recognizing the absurdity of the situation, offers a solution. A random student from Lisa’s graduating class will be selected, and Lisa’s graduation requirement will be held satisfied if, and only if, that student passes all of the end-of-course exams. Would that seem absurd or arbitrary? How about irrational? Thankfully, no school district has such an arbitrary requirement, but what if one did? Would that pass muster in a challenge under the Fourteenth Amendment’s Due Process Clause? Under current approaches, the answer would likely be yes. Focusing on a teacher evaluation plan in Florida, this contribution to the Symposium considers why this is, critiques that state of affairs, and offers the beginnings of a way forward, which, as it turns out, is somewhat a call for a way backward in Constitutional Law

American School Finance Litigation and the Right to Education in South Africa

This paper addresses the South African Constitution\u27s invitation to the Constitutional Court to \u27consider foreign law\u27 when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word \u27basic\u27. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a fiduciary theory of socioeconomic duties, could provide the Constitutional Court with a principled theory to undergird its ongoing rights-protective project that seeks to operationalise socioeconomic rights while also respecting institutional boundaries

Florida’s Past and Future Roles in Education Finance Reform Litigation

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development. If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts, the people, and the elected representatives of the people in the development of policy—one would be hard pressed to find a better state in which to do so than Florida. The state of Florida has had in place since the time of San Antonio v. Rodriguez an education finance system called the Florida Education Finance Plan (FEFP), which makes substantial effort to equalize per-pupil spending in all of the state\u27s school districts while recognizing the local factors that may necessitate changes in that spending. Still, that system has been subject to state constitutional challenges. This article outlines the two distinct avenues through which the FEFP and other Florida school funding statutes have been challenged. Each of these approaches involves the education article of the Florida Constitution. The first part traces the historical development of the education article, and the second part examines the early challenges that were based mostly on the uniformity provision of the education article and the initial failed effort to bring what many would call a third-wave challenge to the adequacy of education spending under the education article. The second part also examines the court\u27s perception of its role in Florida\u27s three-branch government and its willingness to fulfill that role in equity and adequacy cases. This article concludes that the unique referendum process through which Florida residents can amend their constitution adds a new dimension to the education finance reform process that shapes the arguments supporting litigation and ultimately may provide a new avenue through which reformers can seek their objectives with minimal court involvement

State Constitutional Design and Education Reform: Process Specification in Louisiana

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana\u27s constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year. It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that one form of specification—process-based specification—found in many state constitutions, and in the Louisiana education article itself, can be defended normatively as a way of establishing effective checks and balances where socioeconomic policy development is concerned. In particular, in cases of potential political crisis or exigency, process-based specification (in contrast with no specification or substance-based specification) enables the judiciary to be a legitimate check on the legislature\u27s policy choices without making the judiciary into the oft-maligned super-legislature of judicial activism lore. In Part II, I examine the role of state constitutional design in shaping the challenges of educational reform. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation—the principal vehicle for enforcing education rights in the states—and how they have been modified in response to such litigation. From this review, I conclude that this litigation has caused at least some state reformers to secure changes to the constitutional text, but that these reforms have secured few of the results intended by reformers. In Part III, I outline the education provisions in Louisiana\u27s current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude from this Part that Louisiana\u27s reformers have chosen a decidedly unique, process-oriented path in amending Louisiana\u27s education article, as compared with reformers in other states. In Part IV, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes. I base the situational argument on a case study of Louisiana\u27s constitution in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state\u27s schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design

Individual Academic Freedom: An Ordinary Concern of the First Amendment

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court\u27s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching

Perversity as Rationality in Teacher Evaluation

Rational basis review is broken. Consider a vignette: Imagine a student, Lisa, who is about to graduate high school. Lisa has already completed all of the graduation course requirements early and is spending her time during her senior year taking interesting electives and dual-enrollment college courses. The state has a statute that requires school districts to deny a diploma to any student “who, during the final year of school attendance, fails to achieve a passing score on the state-approved, end-of-course exams in the courses of Language Arts, Mathematics, Science, and Social Studies in which that student is then-currently enrolled.

The Education Duty

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries. In this Article, I examine the nature of the fiduciary duties that state constitutions place on state legislatures. Generally, I develop the concepts of legislative duties of loyalty and care and propose principles for the enforcement of these duties. Specifically, I consider how these duties might function in the context of the affirmative obligations that state constitutions place on state legislatures to pursue certain policy goals. Ultimately, I present the case that specific affirmative duties placed upon legislatures by state constitutions are governed by general fiduciary duties, and that they ought to be adjudicated as such, using the tools of deference appropriate to the review of discretionary decisions by individuals in positions of trust. One policy area in which every state constitution imposes specific affirmative obligations is education, and education is the one area in which courts in nearly all American states have been asked to enforce such affirmative obligations. Accordingly, I focus my analysis on what I term the education duty. I define the duty as a mandatory specific obligation of the state legislature, which also carries with it a general duty of care. Contrary to the existing scholarship and case law, I argue that, although the education duty in each state\u27s constitution should be subject to judicial enforcement, the proper focus of judicial review should be the general duty of care imposed by each state\u27s constitution, rather than the nebulous qualitative terms contained in each state\u27s education clause. Approaching enforcement as an application of the qualitative terms in the education clause has resulted in both overenforcement and underenforcement of the education duty. Moving the focus of judicial review to the underlying duty of care will remedy both of these problems and preserve a role for the judiciary in ensuring the legislature\u27s performance of its constitutional obligations, while also protecting the separation of powers in state governments. This Article proceeds in three subsequent Parts. Part I sets the stage for the discussion that follows by distinguishing between negative and positive constitutional rights, and further distinguishing between positive constitutional rights and duties, as discussed in the constitutional law cases and scholarship. Part II then sets about identifying and defining a duty-based approach to constitutional analysis, focusing on the provisions in every state constitution mandating the legislative provision of a system of education. Drawing from the history and political theory underlying constitutionalism in the United States, from the current texts of the fifty state constitutions and from the history of litigation over these provisions, I establish that state legislative duties in general, and affirmative legislative duties in particular, are fiduciary duties to the public as a whole. I ultimately develop a conception of the fiduciary foundations of the legislative duty to provide for education. In Part III, I then outline how state courts might alter their approaches to enforcement of the education duty and other similar duties to reflect these fiduciary foundations. Ultimately, I conclude that a fiduciary duty-based approach to affirmative constitutional provisions will allow for enforcement without institutional encroachment and will provide the necessary space for a principled consideration of whether individual rights to education and other public services exist and whether they are enforceable

“Testing” Fuller’s Forms and Limits: A Brief Response to Oldfather, Bockhorst, & Dimmer

In Triangulating Judicial Responsiveness, Chad Oldfather, Joseph Bockhorst, and Brian Dimmer give us a methodology by which we can empirically assess (among other things) the effects that argumentation has on judicial decision making. Unlike the vast majority of empirical legal scholarship of judging, the authors do not use this methodology in their current study to compare “legalist” explanations of judging with “realist” explanations of judging. Rather, the study operates almost entirely within the “legalist” frame. This is a welcome development for many reasons, one on which this Response focuses—the authors’ methodology illustrates a way of scientifically “testing” descriptive legal theory claims, and it suggests an empirical way out of some longstanding theoretical disputes