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Summer 1998
How Judges Are Making Public Schools Worse
William A. Fischel

Just last December, the Supreme Court of New Hampshire declared that the state's use of the local property tax to finance public education was unconstitutional. New Hampshire isn't unique in this respect: it is the 20th state in 27 years to have its top court junk this traditional method of school finance, only ten months after neighboring Vermont became the 19th. This growing trend would be objectionable enough because of the flimsy constitutional foundation the judges used to force such sweeping changes on the voters—even more objectionable in a state that stamps on its license plates the defiant Revolutionary War- era motto: Live Free or Die. But there's a still more troubling aspect to the trend: despite all the representations of its advocates that school-finance reform—finance reform is a step forward for public education, it has, in fact, failed to improve the quality of education in any state where it has been imposed. Still worse, it appears to have dumbed down education in states with especially stringent reforms.

I had a ringside seat to the goings-on in New Hampshire: the property tax is on my economics beat, and I had signed on with the state as an expert witness. Here's how the decision came about—and, more important, here's why it and the decisions like it are, inevitably, deeply destructive.

In 1992, a group called the Claremont Coalition had sued New Hampshire, charging that the state's method of financing its public schools was unconstitutional. Reliance on local property taxes, the suit alleged, unfairly permitted wealthier communities to have better-funded schools at a lower tax rate than poor communities. The trial judge, seeing nothing unconstitutional in this, threw out the suit, but the state supreme court reversed that decision in December 1993, holding that the coalition did indeed have a constitutional basis for proceeding. After all, the high court declared, "Part II, article 83 imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding."

Article 83, known as the "cherishment of literature" clause, is, to say the least, nebulous. "Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end;" it declares, "it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people. . . ."

Just how these eighteenth-century words relate to the state's use of the property tax to finance schools is a mystery that makes the Kabala seem like one of McGuffey's Readers. But on that basis, the New Hampshire Supreme Court in its 1997 decision held that the Legislature had to define and fund an "adequate" level of education for all public schools. The funds had to come from a tax whose rate could not vary from place to place; locally controlled property taxes could not be the basis for "adequate" funding. The court made it clear, moreover, that the Legislature could not evade its order by using a low number for "adequacy." For most towns, this means that nearly all school revenue will henceforth come from the state. In New Hampshire, in which nearly 90 percent of all public funding had traditionally come from local property taxes, this would be an enormous change.

If the court could deploy these eighteenth-century exhortations to require statewide taxation to fund public schools, could it also order the Legislature to set up and fund a program to "inculcate the principles of humanity and general benevolence"? It could be like one of those state-sponsored self-esteem programs that used to emanate occasionally from California.

Ultimately, in fact, the Claremont case did emanate from the Left Coast. The judicial snowball that just flattened New Hampshire began rolling with the California Supreme Court's 1971 Serrano v. Priest decision. The California court ruled that local financing of education by the property tax was a violation of the state constitution's equal protection clause. After a subsequent trial, the court upheld in 1976 a simple remedy that the trial judge had imposed on the state: publicly funded education expenditures per student could not vary among school districts, with only the most trivial and inconsequential exceptions. As a practical matter, all public-education funds, regardless of their source, fell under state control. Educational equality had arrived with a vengeance. And vengeance is what California got.

The Legislature responded to Serrano with a 1977 bill that attempted to pull all districts up to the spending of education-minded places like Berkeley, if not of Beverly Hills. The bill did this first by funneling most of the state's inflation-driven budget surplus into education spending. In order to meet the court's insistence on equality, it also imposed a stiff handicap on the "property-rich" districts. Districts with large amounts of commercial and industrial property or expensive homes could lavish money on their own schools only if they shared their property tax revenues with the rest of the state. Its proponents called this idea "district power equalization." They hailed it as a way of "recapturing" concentrations of property wealth—as if the locals had stolen something from the state—and the tax base equalization idea has propelled the school-finance movement ever since.

Trouble began in California during the very summer that the new school-finance bill was in preparation. A persistent reformer named Howard Jarvis, previously unable to get his property-tax-limitation proposals on the California ballot, suddenly hit pay dirt. Property values were spiraling up everywhere, and legislators weren't reducing tax rates sufficiently to prevent homeowners' taxes from going through the roof. Jarvis's property-tax-limitation initiative began attracting signatures at a rate that made it certain to be on the statewide ballot in 1978.

In response, the Legislature did what it had done successfully when faced with previous initiatives like this: it began to draft a milder counterproposal for property tax relief. But this time, the legislators ran into a problem. The school-finance bill they had just passed had eaten up the funds that otherwise could have gone for tax relief. A further complication was that many of the voters who complained loudest about property tax increases lived in the property-rich communities whose supposedly excessive wealth was the Serrano decision's target. To use state money to lubricate these squeaky wheels would conflict with the court's decision and surrender funds that were part of the Legislature's response to it.

So Sacramento put off property tax reform until 1978. By then, it was too late. Proposition 13, as Jarvis's initiative was known, passed in June 1978 by a two-to-one margin. It cut property tax revenues by more than half. Because localities had to use most of the remaining property tax revenues to finance local government operations other than schools, the state took over financing of the schools with little contribution from property taxes. Golden State schools—once a national paragon, like the state's university system—have gone into the tank. Almost no education professional has a kind word for the chronically underfunded system, and most people blame Proposition 13.

I suspected, however, that Proposition 13 was not the root cause of the twin problems of underfunding and declining quality. Nothing prevented the state Legislature from using other taxes to "level up" school spending to its previous average, as it had just done the previous summer. I wrote two professional papers, one in 1989 and another in 1996, explaining how the Serrano decision caused Proposition 13 by undermining support for local education.

Prior to Serrano, most voters saw a close connection between what they paid in property taxes and the quality of their local schools. As the Legislature applied Serrano's equalization principles with increasing rigor, however, voters watched this connection evaporate. Indeed, polls found in 1978 that even families with kids in public schools favored Proposition 13 as much as other voters did. The reason was, I believe, that Serrano had, as its proponents desired, severed the fiscal connection between local taxes and schools. Without the support of local voters, statewide funding has never been able to replace the lost property tax revenues. (Ohio voters' recent refusal to raise state sales taxes to fund its court-ordered reform indicates that Californians are not exceptional in this respect.) I've managed to convince the economists who have read my articles that I am right, but for such an unusual thesis, one always looks for confirmation. I found it in one of the least expected places.

Left-wing author Jonathan Kozol's Savage Inequalities has become the emotional bible of the school-finance reform movement. It heads the reading list of nearly every education-reform course in American universities. The book relates Kozol's cross-country visit to rich and poor schools in the late 1980s, when he discovered what Mae West told us long ago: rich is better. (This conclusion is more surprising than it sounds: most researchers have found little linkage between public school spending and academic success.)

Kozol's book is not a compliment to the successes, though. It is a 1960s-style indictment of "the system" for the failure of schools in poor areas, and Kozol advocates Serrano-style remedies. Kozol had formed his conclusion long before he set out, and he was careful to avoid any contrary evidence. This was his usual procedure: he had taken a similar journey to schools in Cuba during the 1970s, and his account of it, Children of the Revolution, offered nothing but praise for a system that he contentedly observed with Castro government officials always by his side—as translators and helpmates, he explains. His inability to criticize any aspect of Castro's regime indicates that he surely didn't need them as ideological guides.

In Savage Inequalities, Kozol drew attention to Baldwin Park, a poor community near Los Angeles that had been the poster child of the Serrano litigation, which had paired it with Beverly Hills to show how unequal they were. Kozol found that Baldwin Park was still underfunded and inferior more than a decade after Serrano. Kozol blamed Proposition 13. But he also had an explanation for why Proposition 13 had passed. "As soon as Californians understood the implications of [the Legislature's 1977 response to Serrano]—namely, that funding for most of their public schools would henceforth be approximately equal—a conservative revolt surged through the state. . . . Proposition 13, as the tax cap would be known, may be interpreted in several ways. One interpretation was described succinctly by a California legislator: 'This is the revenge of wealth against the poor. If the schools must actually be equal, they are saying, then we'll undercut them all.' "

In the end, Kozol concluded, the Serrano plaintiffs "won the equity they sought, but it is to some extent a victory of losers." All the more reason, he contends, for undertaking even more extreme measures to equalize school spending. But less tendentious observers might consider it a reason to rethink the idea of getting courts into the school-finance business.

After all, 70 percent of the voters in poor Baldwin Park voted for Proposition 13.

Armed with my cautionary tale about the unintended effects of judicial activism, I was eager to apply my ideas to a real controversy. New Hampshire, aside from being my home state, seemed an ideal place for a tournament of ideas. Its reliance on property taxation for school funding is by far the largest of any state. It is small enough—one-thirtieth the population of California—to examine carefully, and it has none of the concentrations of minority populations that complicate the judicial issue in other states.

New Hampshire's reliance on property tax financing of schools was already a hotly contested political issue when the litigation began. In 1992, the Democratic candidate for governor had adopted as her platform a new state income tax—New Hampshire has no broad-based taxes—designed to replace local school taxes. The lawyer representing the Claremont Coalition in court at the time actively campaigned for her because, as he said on TV, her platform would go a long way toward meeting the goal of his suit. But the well-funded candidate lost, and a study I did with another Dartmouth economist, Colin Campbell, concluded that her defeat came about because of the voters' aversion to her fiscal program. We also found no basis for the notion—propounded by, among others, academic lawyers in the 1991 Harvard Law Review—that states like New Hampshire needed court intervention to overcome legislative inertia and bring about tax reform that voters favored. On the contrary: the would-be governor had taken her program straight to the voters, they understood her message, and they emphatically said no.

My problem as an expert witness for the New Hampshire litigation was that I had only one story—California's—about the dire effects of court-ordered centralization of school-finance. So I made a deal with the state's attorney, whom I had contacted about the New Hampshire case. I would work as a consultant for a bargain rate, if she would cover my expenses for producing a research paper on the school-finance issue. That would allow me to determine (and give evidence about) whether what I had discovered in California—that a switch from local property taxes to uniform statewide funding caused schools to decline—applied in other states.

I found out that it did—and, somewhat to my surprise, I found out why. The school-finance reform movement has been around long enough, and has spread to enough states, to allow economists to gather statistical evidence on its effects. True, the constitutional basis for these decisions varies from state to state, but that hardly matters, for even legal scholars sympathetic to the movement—as most are—note that there is at best a tenuous connection between any particular constitutional provision and the judges' decisions in these cases. Nor does it matter that litigation has switched from the "equality" standard of California to the "adequacy" standard the New Hampshire court adopted. The upshot of all the cases is a reduction in reliance on local property taxes, an increase in reliance on state taxes, and a reduction in the differences in spending among districts.

And what is the result? Like California, several other states with Serrano-style decisions have experienced substantial declines in spending per pupil relative to the national average—though California, with one-seventh of the nation's children, is the most extreme example of decline. (The fact that in the last two decades U.S. spending per pupil has risen 70 percent faster than the rate of inflation often camouflages relative drops in school spending; the notion that as a nation we are starving our schools is nonsense.) But some states are exceptions: in New Jersey, for example, school spending has continued to rise since its court got into the act. (Significantly, though, the Garden State has never fully complied with its court's order, and the court approved a compromise in May 1998, 27 years after the first ruling in a case that even the court conceded has a "long and tortuous history.")

Although there is legitimate academic dispute about exactly how much spending these suits have engendered, it is clear to all that the widely held belief that centralization of school funding will necessarily increase average spending is wrong. Leveling down is the more likely outcome of legislation that slavishly complies with court-ordered centralization. Berkeley's Charles Benson, the late dean of American education finance and an advocate for the Serrano litigation, confessed at a congressional hearing on school-finance issues a few years ago, "You must be very careful when you wish for things, because you may just get what you wish for. We worked hard for equity in California. We got it. Now we don't like it."

Spending, however, is not the main issue. It is educational quality, and about that there is more unambiguous evidence. Is there any quantifiable evidence, or any evidence at all, that the average quality of education in any state has risen as a result of court-ordered school-finance reform? No. Is there any evidence that the gap in test scores between rich and poor districts has narrowed as a result of the litigation? Again, no.

The absence of evidence of academic success is worrisome enough, but more alarming is the evidence of decline. Several studies by reputable economists have examined SAT scores by state. SAT scores were once considered unreliable indicators of the performance of state school systems, because they were not a random sample. In some states, only a few seniors who are going out of state to selective colleges take the test. Because such students are usually better than average, states with low participation rates thus had higher scores. But in the last few years, economists have used statistical techniques to control for participation rates as well as demographic and economic differences among the states. They find that state SAT score rankings, adjusted for participation rates, are actually reasonable indicators of how much students have learned in the state's schools. (New Hampshire is consistently near the top in these rankings, which should be a clue that near-total reliance on local property taxes promotes high-quality education.)

With this advance in technique, it was now possible to discern something about the trend in SAT scores. The findings should have given pause to the school-finance reform movement. Reductions in reliance on local property taxation, especially if caused by court orders of the type issued in Serrano in California, seem to cause declines in average SAT scores. Nor is there evidence that finance equalization promotes equality of opportunity. The gap in SAT scores between kids from rich and poor backgrounds has not narrowed at all in states that have made spending more equalized.

I don't want to put too much credence in these studies. The samples are limited, the states are diverse, and family background is always more important than how schools are financed. But consider the public stakes. Suppose someone marketed a pill that promised that poor kids would get smarter and rich kids would at least not get dumber, so that average intelligence would increase. The pill is hyped so much that courts start to order that it be dropped in municipal water supplies; to withhold it would be a crime. But when the studies come in, the pill does not meet the FDA's test for being safe and effective. And with some alarming studies showing that the pill has exactly the opposite effects, one could imagine the Centers for Disease Control ordering a recall.

The dismaying test-score results make more sense if one understands just how the school-finance pill undermines the education system. Simply put, school-finance reform breaks down local fiscal control, a crucial political force, however reformers deride it. The genius of local property tax financing for schools is that it gives everyone in the community—not just those with kids in the public schools—an incentive to favor efficiently run, high-quality schools. The reason is as follows. Most voters own their own homes, which are their largest asset. Study after study has shown that a good school raises all home values in the community, giving every homeowner an incentive to favor good schools. It is equally well established that high property taxes reduce home values. Therefore, every homeowner has an incentive to keep taxes from rising unless the benefits of the expenditure offset the tax costs.

Local financing thus gives voters a double-barreled incentive to examine closely proposals by school administrators to raise local taxes for new school initiatives. Faced with a budget that rewards good teachers and one of the same cost that featherbeds the school administration, voters have an incentive to accept the first and reject the second. Voters' home values have a chance of going up in the first scenario; they will undoubtedly go down in the second.These key political incentives are lost when the state controls school financing. A rise or fall in spending at the state level will have only the smallest effect on individual homes, and so voters without school-age children will have little reason to pay attention to education issues. Instead of being a balance of benefits and costs, for most childless voters education becomes just another tax burden. Of course, at the state level, teachers' unions are more influential, so spending on schools may go up in some cases. But sophisticated research has shown that spending decisions controlled by such interests do little to improve the quality of education.

Many advocates of court-ordered reform say that their goal is not to have the state do the funding. They argue that the property tax is acceptable as long as a common tax rate doesn't produce disparities in per-pupil spending from district to district. Rates can vary among districts, but only as long as each rate raises the same amount per pupil. This idea, also known as district power equalization, was advanced by Berkeley law professor Jack Coons and two co-authors in 1970. It influenced the Serrano court and many subsequent decisions in other states.

Vermont recently implemented this idea as a result of its widely publicized Serrano-style decision. Now, property-rich districts, such as Stowe and other ski-resort towns, will have to increase their property taxes by more than 40 percent just to maintain their current school spending. These "gold towns," as proponents of the litigation called them, are supposed to pass this extra tax revenue on to towns with less taxable property. The evidence so far suggests, however, that the likely result is that the "gold towns" will cut their education spending and let their school systems decline. (Apparently, Vermont schools no longer teach the fable of the goose and golden eggs.)

Aside from its devastating effect on the towns subject to having their tax base "recaptured," district power equalization eliminates much of the fiscal incentive that any local district has to improve educational quality. If a district taxes itself more and its schools get better, local property values will increase. Then the Coons "wealth neutrality" formula will kick in, requiring that state aid be reduced, if it was a receiving district, or that the local tax rate be increased further if its property base was large to begin with. The incentives are like the worst aspects of the old welfare system: if a welfare family's head got a job, the family would lose all its benefits and often be no better off than before.

The Coons formula is perverse in another way. Its characterization of districts with a large tax base as being "rich" is wrong in two respects. Many property-rich places are filled with poor people, and tax-base sharing proposals would harm those people by both raising local property taxes and cutting school spending. In California, a majority of children in poor families live in districts with above-average tax bases, largely because Los Angeles and San Francisco have slightly higher-than-average property values per pupil than other places in California. On the other side, many suburbs use strict zoning laws to keep industry out, to maintain the pristine quality of their neighborhoods. Nothing wrong with that, but it should hardly entitle them to be on the receiving end of tax-base sharing.

The other error of characterizing property-rich places as rich is that people who bought homes in such places had to pay in advance for the fiscal benefits they get. I have lots of statistical evidence for this, but most people find the following concrete example more convincing.

In my local research in the New Hampshire case, I found instances in which a developer had built nearly identical houses on two sides of a town border. The two towns had different tax bases: one had a power-generating plant, and the other did not. The towns shared a high school, each paying only for the students it sent there. Real estate records showed that the houses in the property-rich town sold for a higher price than nearly identical houses in the other town, less than a mile away. The people who bought the house in the property-rich town did indeed pay less in school taxes, but their annual mortgage payments, as I calculated them, almost exactly offset the tax advantage. The fiscal advantage of living in the property-rich community had been eliminated by the housing market.

Economists have known for almost three decades that the benefits and costs of school taxes are reflected in home values—the name for the result is "capitalization." A precondition for capitalization is that homebuyers have a choice of communities into which they move when they take new jobs, get married, or upgrade their homes. Economists regard the process of voting by moving van as no less important for an efficient system of public services than voting in local elections. The threat of exit (and the unwillingness to enter) has always been a protection against governmental abuse. But not until the last few years has this idea, which started with the work of economists Charles Tiebout and Wallace Oates, been applied rigorously to the issue of local education.

The undisputed star of this enterprise is a young Harvard economist named Caroline Hoxby. Her research has gone beyond the evidence about capitalization to show that competition among public schools (and with nearby private schools) measurably improves the quality of education for all students. In areas with many independent school districts, which allow potential residents to shop for schools when they shop for homes, the quality of education is clearly better. Hoxby's prodigious sets of data and state-of-the-art econometrics have shown that property tax funding by local school districts is the most effective way to obtain high-quality public education at reasonable cost. Her research confirms the May 15, 1996, story in USA Today: under the headline HOME BUYERS GO SHOPPING FOR SCHOOLS, the paper reported that "childless house hunters are increasingly asking for houses in quality school districts." Hoxby and others have shown that competition among communities to attract such buyers works to provide good public schools nearly as effectively as it works among providers of ordinary goods. The fiscal race is to the top, not, as is commonly alleged, to the bottom, when local school quality is the prize.

I introduced the New Hampshire attorney in charge of defending the Claremont case to Hoxby in the hope that she would hire her as an expert, too. She did, and Hoxby testified so effectively at the trial that the Concord Monitor, a local newspaper that favored the plaintiffs, wrote a special editorial attacking her as the carpetbagger from Harvard. My testimony the next day seconded Hoxby's, but as a homeboy I was exempt from the carpetbagger charge, and I was disappointed not to get any editorial notice.

The state won at trial; the reversal came on appeal. I had a hint that things would not go well. During the state's oral argument before the New Hampshire Supreme Court, one of the judges wondered aloud why the trial judge had paid so much attention to the experts. And who is to gainsay him? Why pay attention to the experts when your authority to guide schools into the twenty-first century comes from an eighteenth-century admonition to "cherish the interest of literature and the sciences, and all seminaries and public schools"?

Of course, the actual constitutional language makes no difference in these cases, and fair-minded studies of state constitutional history reveal no basis for such decisions, either. They are purely political, and it is important to understand how the courts wandered into this labyrinth. One impetus is the enduring influence of Brown v. Board of Education. Many lawyers regard Serrano and its progeny as extensions of the special place that Brown gave to schools. It is perhaps this idea that has drawn such moderate and thoughtful scholars as Jack Coons into this endeavor. The courts fixed segregated schools, goes this story, so they should be able to fix the unequal financing of education. And, in fact, the U.S. Supreme Court avoided embedding school-finance in the U.S. Constitution by only a single vote in 1973.

Yet the Brown analogy does not come close to fitting the facts. The plaintiffs in New Hampshire's Claremont litigation were as white as the rest of the state; they are not a "discrete and insular minority"—the test for judicial intervention in Brown—-in any sense. The citizens of property-poor towns are as well represented as (and more numerous than) those who live in property-rich places. Contrary to media-generated impressions that he was a poor Chicano, California's John Serrano was a middle-class social worker whose son's public education was going just fine, thank you. In any event, the plaintiffs are irrelevant in these cases: the suits are part of an ideological agenda, and financing for the early ones came not from local school districts but from such left-leaning foundations as Ford and Carnegie. (Attorneys who brought the later cases may serenely have kept in mind that the California Supreme Court ordered the taxpayers to pay the Serrano plaintiffs' legal fees, reviving the tradition of requiring the condemned man to pay his executioner.)

While the Brown tradition may have inspired the lawyers who take these cases, it does not explain why they so often prevail. Lots of liberal-minded litigation goes nowhere. A more likely cause of the success of school-finance litigation is the disdain that intellectuals feel for local government—only the people love local government and local schools. To left-wing intellectuals, local government is a refuge for the privileged. Former labor secretary Robert Reich epitomizes this attitude with his criticism of the suburbs as enabling "the secession of the successful." The state and national governments embrace more territory, which makes it more difficult to escape the Robin Hood taxation that Jonathan Kozol and Reich frankly advocate.

Intellectuals on the right fault local schools because they are publicly run. The term "public school monopoly" trips off the lips of conservative libertarians, despite the fact that in most metropolitan areas there are scores of different school systems. For much of the right, vouchers are the only reform worth considering. I would agree with this for big-city systems such as New York and Chicago, in which the school bureaucracy has become unaccountable to the voters, but for the majority of American families, who live outside big cities, public-school competition is a reality wherever schools are allowed to be locally financed.

The more active political forces behind the school-finance cases are the teachers' unions. The National Education Association is the nation's most powerful union. It has consistently favored the Serrano-style suits. The rewards are clear. At the local level, voters can resist union featherbedding and excessive salary demands by rejecting school budgets. At the state level, voters and parents have far weaker incentives, since state spending does not affect their property values, and access to state legislatures is more complicated than showing up at your local school board. The enhanced influence of unions that follows from Serrano-style victories may sometimes result in bigger school budgets, but, as Caroline Hoxby has shown, it does not produce more effective schools.

The other critical element in brewing the school-finance disaster is the nature of the courts themselves. American courts are accustomed to common-law decision methods. They look for guidance to other courts in their own state and, in the common-law tradition, in other states as well. When an important court like California's engages in creative constitutional interpretation and wins kudos for it from the legal academy, other courts are inclined to do the same. In New Hampshire, the Supreme Court mentioned that the Massachusetts Supreme Judicial Court had recently issued a Serrano-like decision, and the New Hampshire Constitution was originally patterned closely on that of Massachusetts. In a judicial culture in which precedent is the guiding principle, imitation is regarded as a virtue.

Unfortunately, courts are not well suited to correct their mistakes. Judicial authority for intervening in school-finance is supposedly derived from constitutional principles—principles that should not be cut to fit passing fashions. So while the present California Supreme Court might decline to entertain the Serrano claims were it a new case, the justices can't simply reverse their decision. They would undermine their authority in other constitutional cases.

A final rationale for court intervention is to give the legislature a helping hand. The judges watch the legislators flail around with reform, never quite able to pass it, even though it seems to be a popular idea among the elites they associate with. So they decide to give the legislators some courage, or at least an excuse to override the opposition of potentially irate voters—never mind that such opposition is part of democratic processes. This was surely the case in Vermont, whose Supreme Court issued its Serrano-style decision just months after Democrats had swept into the Legislature promising property tax reform for schools.

Separation of powers aside, what is the matter with this? I tell the story of a father who tired of watching his daughter's unavailing attempts to learn to ride a bicycle. She always swerved from one side of the driveway to the other and fell off. So he decided to help her by welding the front wheel to the frame so it always rolled forward. Once she got the hang of balancing the bike, he reasoned, he could remove the weld to allow her to steer. But she never could balance the rigid bike, and you couldn't, either. Many people do not realize that the way they balance on a bike is by subtly steering the front wheel to avoid falling. That is why a unicycle is so much harder to ride.By constitutionalizing school-finance issues, state courts have welded the front wheel of the school-finance bicycle to the constitution. Some reform is often justified. Low-income communities could use state aid, and the aid least likely to disrupt the subtle virtues of local control would be based on personal income, not property values. Legislatures can discover this by trial and error, just as most people learn to balance and steer a bicycle. But they cannot do this if the courtsattempt to lock their reforms forever in a particular direction.

The notion that courts should use their constitutional authority to restructure educational financing is among the most destructive conceits they have indulged in in the last quarter century. It is time they stopped.



In the name of fairness and equality, courts across the nation have outlawed using local property taxes to pay for schools. The result: worse education for all.
City Journal Summer 1998.
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