The New State Preemption, The Future of Home Rule, and The Illinois Experience

This article examines the rise of new forms of state preemption of local government legal authority in states across the nation, a trend that is prompting scholars, advocates, and officials to re-examine the underlying nature of home rule. The article lays out core components of a new approach to home rule that might remedy contemporary shortcomings in the doctrine, then reflects on lessons for reforming home rule from the Illinois experience

Intergovernmental Cooperation, Metropolitan Equity, and the New Regionalism

The economic gap between affluent suburbia and the urban core has recently received widespread attention among state and local government law scholars. Although the underlying normative arguments rest on very different rationales, scholars with a wide range of doctrinal approaches appear to have formed a consensus that the current concentration of wealth and resources in metropolitan areas is unacceptable. Their common goal of reducing regional disparities has made the scholarly dialogue a dispute over how, rather than whether, to achieve a better distribution. For many of what can be described as the New Regionalist scholars, voluntary intergovernmental cooperative efforts may appear to offer the potential to accomplish many of their stated goals. This Article examines the common types of intergovernmental cooperative efforts and concludes that they fail to correct, and often exacerbate, the socioeconomic gap. Thus, the regionalist agenda must be reworked to take account of the negative impacts that many of the highly touted regional governance efforts actually produce in metropolitan areas

Full State Funding of Education as a State Constitutional Imperative

After nearly four decades of school finance litigation, with numerous plaintiff victories based on state constitutional law doctrines of equality and adequacy, subsequent generations of lawsuits reveal that the earlier court decrees have not eliminated sustained inequality and inadequacy in public schools. This disappointing state of affairs, when coupled with the fact that a growing number of state courts are increasingly reluctant to take on the merits of school finance cases, suggests that the future trajectory of school finance and school finance litigation is not positive. In this Article, I suggest that both of these negative trends are at least partially explained by the fact that in the overwhelming majority of cases, courts have not dealt with the inherent structural inequality produced by a finance system that is based on local property taxation. I suggest that plaintiffs should rely on well-established principles of state and local government law to argue that local financing of schools is unconstitutional and that only a system of full state funding of public schools is consistent with the states\u27 affirmative constitutional duty to provide education

Skybox Schools: Public Education As Private Luxury

For the past three decades, plaintiffs in hundreds of state and federal court lawsuits have challenged state laws that fund public schools with the local property tax. As socioeconomic segregation remains at extremely high levels across the country, reliance on a tax that is based on the wealth of the property within a school district’s territory produces huge inequality in revenues. As the result of numerous court opinions, legislative reforms, and public pressure, many states have revised their funding formula to shift some of the burden to the state level. However, notwithstanding the wide-ranging statutory amendments and increased state funding, the tremendous gap between wealthy and poor districts remains. In some cases the gap has increased, even in many of those states whose highest courts have invalidated their school finance statutes. This Article asserts that this entrenched inequality stems from two related facts: first, that the local property tax remains the single most important source of public school dollars; and second, that most state finance reforms have left untouched the ability of school districts to raise as much money from the local property tax as the district’s property owners will tolerate. This Article considers the insights of Professor Robert Frank’s book Luxury Fever and explores the spending patterns of wealthy school districts. It concludes, much like Frank concluded in his analysis of the private consumer market, that unchecked taxing and spending powers have created a pattern of luxury spending by the nation’s wealthy school districts. It then evaluates, and rejects, the arguments used by those who support the preservation of unlimited local taxing discretion. Subsequent sections describe the statutory schemes of those few states that have purported to implement caps, showing how the caps themselves typically contain so many exemptions and exceptions that they fail to impose a real limit on wealthy district spending. Suggesting that it is time to reconsider the widespread support of the local property tax for school funding, this Article concludes by proposing that states completely replace the local property tax with a statewide tax on real property and narrowly limit the ability of wealthy districts to “overspend.” Although the proposals leave unanswered many difficult questions about educational policy and equal school funding, this Article concludes that a cap on school district taxing powers is a fundamental prerequisite to meaningful school finance reform