Classroom, School, Education, Learning, Lecture

Danny Cundiff

The Constitution of Ohio states, “[t]he general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state . . . . ”[1]  Under a “thorough and efficient system,” it is “the state’s duty to provide a system which allows its citizens to fully develop their human potential” while “rich and poor people alike are given the opportunity to become educated so that they may flourish . . . . ”[2]  Despite the constitutional mandate that “it is the state’s obligation to fund education … the legislature has left much of that responsibility upon local school districts.”[3]  Ohio’s public schools, contrary to most public schools in the United States, are primarily funded locally through property taxes.[4]   As a result, there is inequity between school districts in affluent areas with higher property tax revenues and poorer areas with much lower property tax revenues,[5] which “starved” schools for funds and created anything but a “thorough and efficient” school financing scheme.[6]  Therefore, twenty five years ago, the Ohio Supreme Court held that the state’s public school financing system violated the Ohio Constitution.[7]  However, the same system is still in use today,[8] which begs the question: How?

Three years after its first holding, DeRolph made its way to the Ohio Supreme Court again in DeRolph II.[9]  The State claimed that it had now enacted new legislation that “[met] and even exceed[ed]” the “thorough and efficient” system requirement.[10]  In DeRolph I, the Court identified four aspects of the school-funding scheme that needed to be eliminated:

(1) the operation of the School Foundation Program, (2) the emphasis of Ohio’s school funding system on local property tax, (3) the requirements of school district borrowing through the spending reserve and emergency school assistance loan programs, and (4) the lack of sufficient funding in the General Assembly’s biennium budget for the construction and maintenance of public school buildings.[11]

DeRolph v. State, 728 N.E.2d 993, 998 (Ohio 2000) (DeRolph II).

Specifically, the Court noted in DeRolph II that, while funding systems that rely too much on local property taxes are “extremely difficult to rectify,” they “run counter to [Ohio’s] Constitution’s explicit requirement for a statewide system of public schools.”[12]  Finally, the Court recognized that this problem “underlies most of the other deficiencies in Ohio’s school system.”[13]  In neither DeRolph I nor DeRolph II did the Ohio Supreme Court instruct the General Assembly as to the specifics of new legislation.[14]

Instead, in DeRolph I, it recognized that creation of an entirely new funding structure would take time and stayed the effect of its decision for twelve months.[15]  In DeRolph II, the Court noted that the General Assembly’s new formula was “almost identical to its predecessor,” which conflicted with the Court’s mandate from DeRolph I requiring a “complete systematic overhaul” with respect to school financing.[16]  While the Court recognized the need for studies, experts, goals, and priorities, each of which required “hard choices,” the Court again declined to instruct the General Assembly on how to form a “thorough and efficient” funding structure for public schools.[17]  Three years after DeRolph II, the Court reiterated that it was up to the General Assembly to determine what the new funding structure would be and ended any further litigation surrounding DeRolph without a new funding structure.[18]

Since DeRolph I, DeRolph II, and Lewis, nothing has changed in Ohio, and the status quo continues to be, “[t]he more affluent the community, the better the education.”[19]  A former justice of the Ohio Supreme Court opined that inaction amounted to “[a]bsolute thievery,” stating that “[h]undreds of millions of dollars of education funding were stolen from the children, and the legislature did nothing.”[20]

The average school district in Ohio spends approximately $12,500 per student,[21] but that number hardly paints the entire picture.  For example, “Cleveland Municipal Schools spend $11,000 per student, while Orange Schools spend $20,000 per student,”[22] despite the two cities being separated by just 17.5 miles.[23]  Further, Wickliffe City Schools spend just $2,000 per student, the lowest in the state.[24]  The highest expenditure per student in Ohio belongs to Vanlue Local Schools, which spend over $20,000 per student, more than ten times the amount Wickliffe City Schools spends per student.[25]  This disparity clearly cuts against the mandated “thorough and efficient” funding for public education, and it is no surprise that Vanlue Local Schools have a higher performance index than Wickliffe City Schools.[26]

The funding scheme for public education in Ohio has been in need of revision for a very long time.  The courts have recognized this, but have not taken concrete steps to remedy the problem.[27]  The problem has even advanced to litigation between school districts, as public schools fight to obtain funding through tax revenue in a system that has already been found unconstitutional.[28]  Therefore, instead of investing their money into educating the next generation, public schools have been reduced to litigating over tax revenue from a 405-acre tract of land.[29]  The General Assembly, pursuant to the Ohio Supreme Court’s mandate, must enact a “thorough and efficient” funding structure for Ohio’s public schools to ensure that a sound, equal education can be had anywhere in the state, and “rich and poor people alike are given the opportunity to become educated so that they may flourish . . . . ”[30]

[1] Ohio Const. art VI. § 2.

[2] DeRolph v. State, 677 N.E.2d 733, 736, 740 (Ohio 1997) (DeRolph I).

[3] Id. at 745.

[4] Id. at 738.

[5] Karen Kasler, Report Finds Ohio Hasn’t Bridged Funding Gap between Rich and Poor School Districts, WOSU (Aug. 15, 2018, 4:06 PM),

[6] DeRolph I, 677 N.E.2d at 745.

[7] Id. at 747.

[8] Monique John, Despite Being Unconstitutional, Ohio’s School Funding System Lives On. How is it Hurting Students?, WCPO Cincinnati, (last updated Dec. 17, 2020, 1:45 PM).

[9] See DeRolph v. State, 728 N.E.2d 993, 997 (Ohio 2000) (DeRolph II).

[10] Id. at 998.

[11] Id.

[12] Id. at 999

[13] Id. at 1000.

[14] See DeRolph I, 677 N.E.2d at 747; DeRolph II, 728 N.E. at 1003.

[15] Id.

[16] DeRolph II, 728 N.E.2d at 1006.

[17] Id. at 1000, 1002-03.

[18] State v. Lewis, 789 N.E.2d 195, 202-03 (Ohio 2003).

[19] Harry Boomer & Stephanie Czekalinski, The Next 400: School Funding System Ruled Unconstitutional 4 Times, Failing Students in Poor Rural, Urban Areas, 19 News,, (last updated Mar. 12, 2021, 5:38 PM).

[20] Id.

[21] Aaron Churchill, Ohio Media Spreads Myths about School Funding, Thomas Fordham Inst. (Dec. 14, 2020),

[22] Boomer, supra note 19.

[23] Maps, Google,,+Cleveland,+OH/Orange,+Ohio/@41.4553269,-81.7230086,11z/data=!3m1!4b1!4m14!4m13!1m5!1m1!1s0x8830fa7be9bc5935:0x39e29ea31d74e9b9!2m2!1d-81.6856808!2d41.5047834!1m5!1m1!1s0x88311d2840188df1:0x1b30ac6698d6ff41!2m2!1d-81.4801687!2d41.4494132!3e0 (last visited Mar. 9, 2022).

[24] Ohio School Report Cards, Ohio Dept. of Educ., (last visited Mar. 21, 2022).

[25] Id.

[26] Id.

[27] See DeRolph I, supra note 2; DeRolph II, supra note 8.

[28] See, e.g., Beachwood City Sch. Dist. Bd. of Educ. v. Warrensville Heights City Sch. Dist. Bd. of Educ., 158 N.E.3d 906, 908 (Ohio Ct. App. 2020).

[29] Id.

[30] DeRolph, supra note 2 at 741.

Photo by Wokandapix from Pixabay

By Sarah Keller

Antitrust laws ensure that companies are not artificially impacting or controlling demand for products.[1]  Higher education institutions are uniquely situated multibillion-dollar businesses whose product is not simply degrees—but also scholarship, athletics, and the arts.[2]  Although these institutions have qualities that differentiate them from traditional businesses, they remain subject to the Sherman Act’s antitrust regulations.[3]  Notably, the Sherman Act applies regardless of the institution’s financial structure or funding sources.  Educational nonprofit status does not shield Sherman Act coverage and oversight applies whether the institution is for-profit or nonprofit.[4]  Additionally, state institutions should be specifically aware that state actor antitrust immunity[5] is often narrowly construed when applied to public institutions of higher education, subjecting both public and private institutions to antitrust regulation.[6]  Regardless of the institution’s size, structure, or funding sources, the institution competes with competitors, and is therefore subject to the same regulations as more traditional businesses. 

Generally, antitrust violations require a conspiracy, knowingly joined and formed, to affect interstate commerce or restrain competition.[7]  The conspiracy or collusive agreement need not be a formal contractual agreement and can arise informally.[8]  Enforcement of informal agreements may create tension with higher education’s spirit of collaboration.[9]  Often, colleges and universities use their peers to gain insight into “best practices” and share approaches to challenges common to the cohort.[10]  While the exchange of approaches and ideas may be an important and accepted practice for like-institutions, under federal antitrust law this action remains the exchange of ideas between competitors.[11]  As a result, antitrust lurks unassumingly behind many of the general practices of higher education administration.[12]  In antitrust regulation, collaboration among competitors does not raise antitrust concerns unless it restrains competition.[13]  In higher education, competition occurs not merely in outputs such as research, athletics, and educational outcomes, but also in inputs through student admissions. 

College admissions provide some of the strongest competition in the country.  In 2018, Harvard accepted less than 5 percent of its 43,000 applicants.[14]  The National Association of College Admissions Counseling reports that selective universities receive over one-third of all college applications yet enroll only 22 percent of freshman students.[15]  The level of competition in admissions is palpable,[16] adjudicated,[17] and hoodwinked[18] constantly. 

Most recently, a debate about college admissions testing has created a competitive debate.[19]  Colleges without testing requirements get more applicants,[20] increasing their pool of admittable students and their potential competitive advantage.  Yet, colleges should be aware that a joint decision to remove testing may be considered a removal of competition through improper cooperation between competitors.  For example, the agreement between medical schools to participate in a uniform residency admission protocol through the National Resident Matching Program (“NRMP”)[21] required a judicial and codified exception from antitrust regulation to continue operating.[22]  The NRMP creates cooperation between competitor medical schools, which raised an antitrust concern and required an exception to continue.[23]  This exception was granted based on the NRMP system’s established nature.[24]  Creation of an agreement to remove admissions testing, as a new and unestablished agreement, would likely not receive the same deference.[25]  

Prior to the pandemic, the movement away from admissions testing was growing.[26]  Early removal of testing occurred at less selective institutions; however, more selective universities followed suit in 2018 when the University of Chicago removed testing standards in admissions.[27]  Following Chicago’s decision, small and selective institutions such as Bucknell University and DePauw University also made the shift away from testing.[28]  The issue reached national publicity, pandemic notwithstanding, in 2020 when the California system chose to remove testing,[29] despite research from their own faculty finding that testing is the best predictor of collegiate success.[30]  

The pandemic-induced moratorium on admissions testing requirements is a band-aid to a bullet hole, and the issue remains unresolved beyond the 2022 admissions cycle.[31]  While COVID-19 changed admissions protocols through necessity, continued change should be made thoughtfully to avoid subjecting the institution to antitrust issues.  Modifying who attends the school, or who competes for positions at the school, if done collusively will implicate antitrust concerns.[32]  Instructive caution comes from the Department of Justice’s recent decision not to bring charges against eight D.C.-area prep schools.  In 2018 eight prep schools jointly announced a curriculum transition away from providing Advanced Placement (“AP”) courses.[33]  After extensive investigation, the Department of Justice dropped charges in January 2021 out of respect for the heavy burden on schools as a result of the pandemic.  This decision was despite evidence of an agreement between the schools to modify their curricula.[34]  Relief was granted due to extenuating circumstances; however, relief is situational, and this investigation offers helpful guidance. 

The competitive landscape between the prep schools would have shifted if only a few schools had eliminated AP courses.  Offering AP courses can affect applicant interest, which subsequently impacts tuition dollars and financial competition.  The same is true for removal of college admissions testing.  Colleges choosing to forego testing requirements receive more applications,[35] increasing their pool of admittable students and their potential competitive advantage.  Logically, competition between collegiate institutions will exist without test scores, just like competition between the prep schools would exist without AP courses.[36]  The concern here is the existence of an agreement between competitors to implement the change, which would constitute impermissible cooperation.

Collusive action need not be malicious.[37]  Defending collusive action that controls or modifies the competitive landscape with assertions of corrective or good intent may not be enough.  Again, the Department of Justice’s investigation into the D.C. prep schools is instructive.  The prep schools framed their curriculum decision as a response to the “diminished utility of AP courses,”  stating the goal of the AP program is not its modern reality.[38]  Similarly, collegiate institutions removing testing requirements cite that standardized testing has not fulfilled its original intent of diversifying the Ivy League.[39]  This lack of fulfillment assertion comports with recognition among some schools, advocates, and scholars that standardized testing favors wealthy and non-minority students who can afford test prep and multiple test attempts.[40]  However, antitrust does not distinguish between selfish or social welfare motives: collusive action cuts both ways.[41]  Collusive removal of competition, regardless of a socially beneficial intent, is a modification of competition between schools.  If admissions testing modification happens in concert with peers, colleges may be subject to antitrust investigations.

This is not to say testing should not be removed, simply that colleges should be careful to make changes after concerted internal deliberation.  The California system’s new admissions policy is the decision of one system with one overarching President and Board of Regents.[42]  This action is not a decision impacting competition because this decision is within a system, not between systems.  While other states also have state-wide public higher education systems,[43] this is not always the case.  A state with separately operating state institutions, each with unique governance structures, could be subject to antitrust investigation if it colluded with outside institutions on a decision impacting competition, such as removal of admissions testing.  Impermissible external deliberation can occur within and between states and remains collusive whether the institutions are public or private.[44]  

While communication on “best practices” is considered commonplace in higher education administration,[45] administrators should keep deliberation internal when developing a strategy for accepting or not accepting testing in college admissions.[46]  Relief granted to educational institutions in light of COVID-19[47] will not last indefinitely.  Social aims are not exempt from antitrust if they have an anticompetitive result,[48] and collusion to remove test score quantifiers in the application process could, because of its impact on competition, place schools at risk.  Institutions exploring the removal of testing from admissions requirements should proceed with caution. 

[1] Debra Wilson, Proceed with Caution: How Antitrust Law Affects Schools, The Nat’l Ass’n of Indep. Schs. (2017),

[2] Nat’l Ctr. for Educ. Stat., Postsecondary Institution Revenues (2020),,at%20private%20for%2Dprofit%20institutions.  Over $671 billion flowed into degree-granting higher education institutions in 2018. Id.

[3] 15 U.S.C. §§ 1–7; see Mary Strimel, DOJ Enforcement Update, McDermott Will & Emery: Antitrust Alert (Apr. 25, 2018),; Jeffrey Selingo, The Best Ways to Fix College Admissions Are Probably Illegal, The Atl. (Apr. 27, 2018),  Examples of antitrust issues occurring in higher education include financial aid decisions, faculty recruitment, and use of the Common Application. Molly Moriarty Lane et al., Colleges and Universities: Litigation Challenges and Risk Mitigation in the Face of COVID-19, Morgan Lewis: LawFlash (May 21, 2020),; see also United States v. Brown Univ., 5 F.3d 658 (3d Cir. 1993).

[4] Strimel, supra note 3.

[5] Ann O’Brien & Brady Cummins, Limits of State Action Protection for Colleges and Universities, BakerHostetler: Antitrust Advoc. (June 11, 2020),,recruitment%20of%20students%20and%20faculty; Jennifer R. Scullion, When Are Universities and Executive Agencies “State Actors” for Antitrust Immunity?, Proskauer: Minding Your Bus. Litig. (June 24, 2016),,relationship%20with%20%E2%80%9CParker%E2%80%9D%20immunity.

[6] O’Brien & Cummins, supra note 5.

[7] U.S. Dep’t of Just., Antitrust Resource Manual (Archived) (Nov. 2017),

[8] Lane et al., supra note 3.

[9] Id.; O’Brien & Cummins, supra note 5.

[10] Lane et al., supra note 3; O’Brien & Cummins, supra note 5; see also Paul Basken, COVID Response ‘Could Expose U.S. Colleges to Antitrust Laws,Times Higher Ed. (Apr. 30, 2020),

[11] Lane et al., supra note 3.

[12] Basken, supra note 10.

[13] Michael Bloom, Doing Good Well, Fed. Trade Comm’n, Bureau of Competition (Oct. 20, 2016, 3:39 p.m.),

[14] Selingo, supra note 3.

[15] Nat’l Ass’n of Coll. Admissions Counseling, 2017 State of College Admissions: Chapter 1 College Applications (2017),

[16] Abby Jackson, It Was the Hardest Year on Record to Get in to Elite Colleges: Admissions Experts Explain Why, Bus. Insider (Dec. 20, 2017, 11:33 p.m.),

[17] Scott Jaschik, Appeals Court Backs Harvard on Affirmative Action, Inside Higher Ed. (Nov. 16, 2020),

[18] Kate Taylor, Parents Paid to Open College Doors, Now They’re Spending to Limit Prison Time, N.Y. Times (Oct. 22, 2019),

[19] The Editorial Board, The Pandemic Changed College Admissions. That’s a Good Thing, Bos. Globe (Feb. 3, 2021 4:00 a.m.),

[20] Scott Jaschik, The College Board’s (Smaller) Future, Inside Higher Ed. (Jan. 25, 2021),

[21] The Match: Nat’l Resident Matching Prog., (last visited Feb. 17, 2021).

[22] Jung v. Ass’n of Am. Med. Coll., 339 F. Supp. 2d 26, 46 (D.D.C. 2004) (dismissing a previous finding that plaintiffs of an antitrust class action adequately alleged the existence of a collusive agreement to restrain competition in recruitment for medical residency interns through use of the National Resident Matching Program after promulgation of 15 U.S.C. § 37b). Jung and the class alleged the National Resident Matching Program , as the only avenue for placement in medical residency programs, constituted a collusive action restraining competition under the Sherman Act.  Jung v. Ass’n of Am. Med. Coll., 300 F. Supp. 2d 119, 125 (D.D.C. 2004). Following the initial motion practice in February 2004 and the prior to further motion practice in August 2004, President Bush signed the Pension Funding Equity Act of 2004. Pub. L. No. 108-218, 118 Stat. 596. The Act contained a specific antitrust exception for medical schools due to the NRMP’s established nature.  15 U.S.C. § 37b(a)(1)(A).

[23] 15 U.S.C. § 37b.

[24] Id. § 37b(a)(1)(A).

[25] Selingo, supra note 3.

[26] Scott Jaschik, Chicago Drops SAT/ACT Requirement. Will Others Follow?, Inside Higher Ed. (June 19, 2018),

[27] Id.

[28] Id.

[29] Shawn Hubler, Why Is the SAT Falling Out of Favor?, N.Y. Times (May 23, 2020),

[30] Id. (comparing test scores to high school grades). This research study itself, however, contradicts a Georgetown University report finding that based on test scores alone, only 53 percent of students at the 200 most selective schools would have been admitted.  Mack DeGeurin, 27 Great Schools That Don’t Require SAT or ACT Scores, Bus. Insider (July 2, 2019 4:09 p.m.),

[31] Nick Anderson, Applications Surge After Big-Name Colleges Halt SAT and ACT Testing Rules, Wash. Post (Jan. 29, 2021 4:28 p.m.),

[32] Strimel, supra note 3.

[33] Press Release, Dep’t of Just., Justice Department Concludes Its Investigation of D.C.-area Schools’ Decision to Stop Offering Advanced Placement Courses (Jan. 11, 2021),

[34] Id.

[35] Jaschik, supra note 20.

[36] Lee Shulman Bierer, Countdown to College: Why Is College Admission Getting More Competitive?, Omaha World-Herald (Oct. 23, 2020), (“Among the top tier of public and private liberal arts institutions, applications have increased by one-third or more during the last five years. Yet the available spaces have remained constant.”); see also Sherri Dalphonse et al., Private School Confidential: Things Washington Parents Need to Know, Washingtonian (Oct. 18, 2018), (stating the top D.C. prep schools “still have much lower acceptance rates—and applicant pools have gotten more competitive”).

[37] Jung v. Ass’n of Am. Med. Coll., 339 F. Supp. 2d 26, 37 (D.D.C. 2004) (“If lawful acts are used as the means to effectuate an antitrust conspiracy, the conspiracy itself is still unlawful.”).

[38] Scott Jaschick, Rejecting AP Courses, Inside Higher Ed. (June 19, 2018), (“The AP program, the Washington private high schools say, was started with the goal of helping students finish college early, and yet few students do so.”).

[39] Hubler, supra note 29.

[40] Id.

[41] Bloom, supra note 13. “For better or worse, folks in the educational field think that what they do is so important on a societal level that they’re exceptional, and that the ordinary rules just shouldn’t apply to them . . . and none of that’s true.” Basken, supra note 10.

[42] U. of Cal., Organizational Chart (Dec. 12, 2020),

[43] See, e.g., The U. of Tex. Sys., (last visited Feb. 17, 2021); The State U. of N.Y., (last visited Feb. 17, 2021).

[44] O’Brien & Cummins, supra note 5.

[45] Lane et al., supra note 3.

[46] Jung v. Ass’n of Am. Med. Coll., 339 F. Supp. 2d 26, 37 (D.D.C. 2004) (“If lawful acts are used as the means to effectuate an antitrust conspiracy, the conspiracy itself is still unlawful.”); see also Lane et al., supra note 3; O’Brien & Cummins, supra note 5.

[47] See Press Release, supra note 33.

[48] See Basken, supra note 10; Bloom, supra note 13.

Post Image by Nguyen Dang Hoang Nhu on Unsplash.

By Greg Berman

On October 15, 2019, Representative Bobby Scott (D-VA) introduced the College Affordability Act.[1]  The bill contains sweeping reforms in the higher education sector, including expanding Pell Grant eligibility to undocumented and incarcerated students, overhauling the federal loan repayment system, and tethering the maximum Pell Grant award to inflation.[2]  The College Affordability Act also revives policy initiatives brought by its 2018 predecessor,[3] which contained many of the same provisions but quickly floundered in the Republican-led House.[4]  Now, however, with Democrats firmly in control of the House of Representatives for the first time since 2011, some statisticians have estimated that the bill could have a chance of being enacted this term.[5]  Enacting this bill would be noteworthy for many reasons.  For starters, its comprehensive reforms to higher education will affect millions of students attending post-secondary schools.[6]  It also would ban predatory for-profit schools from receiving funds from any federal grant program.[7] However, perhaps most notably, enacting the College Affordability Act would finally reauthorize the Higher Education Act of 1965, a feat that has not been accomplished since 2008.[8] 

But why is “reauthorizing” the Higher Education Act of 1965 such a big deal?  What even is the Higher Education Act of 1965?  The Higher Education Act of 1965, better known as the HEA, was a key component of President Johnson’s “Great Society” initiative.[9]  The HEA created a series of federal aid programs relating to higher education, and currently governs all of the federal money that goes into colleges and universities.[10]  Because of the volatile nature of higher education, the drafters of the HEA feared that the bill would quickly become outdated if not periodically amended.[11]  As such, the drafters placed numerous sunset provisions throughout the HEA, ensuring that Congress would return to the bill every four to six years and “reauthorize” its funding.[12]

In 1968, only three years after first passing the HEA, Congress had its first opportunity to reauthorize the bill.[13]  In its first reauthorization, Congress only made small alterations to the bill, creating new grant programs for disadvantaged families while increasing the funding going towards existing programs.[14]  The HEA was next reauthorized from the Higher Education Amendments of 1972.  Even though Richard Nixon, a Republican, was now the president, the amendments still passed with bipartisan support.[15]  In fact, this 1972 reauthorization greatly expanded the purview of the HEA, creating the Federal Pell Grant program to provide financial assistance directly to students in need.[16]  Following this trend of bipartisanship, Congress reauthorized the HEA in 1976, 1980, 1986, 1992, and 1998.[17]  Each iteration of the act contained differing provisions, depending on the party controlling the legislative branch at the time, yet still were consistently ratified without lengthy delays.[18]  However, that all changed while Congress was attempting to reauthorize the HEA after the 1998 amendments.

In 2008, President George W. Bush signed into law the Higher Education Opportunity Act, reauthorizing the HEA for the first time since 1998.[19]  The HEA was actually due for full-scale reauthorization five years earlier, but political gridlock forced lawmakers to enact a then “unprecedented” fourteen extensions of the HEA’s statutory deadline.[20]  The Higher Education Opportunity Act took effect in late 2008, ten years after the most recent HEA reauthorization, and attempted to adapt higher education to the new millennium.[21] Among other reforms, it forced colleges to be more transparent with the price of education, it allowed students attending summer programs to obtain Pell Grant funding, and it attempted to address the ever-growing student loan debt level for recent graduates.[22]  In addition to these systematic reforms, the 2008 reauthorization also created around seventy new aid programs and increased the federal funding going towards existing programs.[23]  The HEA finally was fully reauthorized, and the funding from the bill was not set to expire until September 30, 2014, giving Congress six years to come together to form a new agreement for future funding.[24]  Congress failed.

It has been eleven years since the Higher Education Act was last reauthorized, creating an uncertain future for the many federal programs reliant on its funding.  For example, the mandatory appropriations for Title III, Part F, which provides funding to STEM programs for many HSIs and HBCUs,[25] was set to expire on September 30, 2019.[26]  To avoid this, the House of Representatives passed legislation in the Spring of 2019 to fund Title III programs for two years to give Congress time to fully reauthorize the HEA.[27]  Rather than voting on this bill, however, a recent Senate compromise has instead led them preferring a “piecemeal approach” to reauthorization, rather than a full-scale overhaul of the HEA.[28]  Because politicians refused to compromise, the end result is that Congress failed to reauthorize Title III, Part F funding, and its mandatory appropriations have officially expired.[29]

Based on the parties’ proposals in recent years, there is little indication that the parties’ impasse will be resolved without serious compromise. On December 1, 2017, House Republicans introduced the PROSPER Act, sponsored by Virginia Foxx (R-NC), which aimed to help “prepare [students] to enter the workforce with the skills they need”[30]  The PROSPER Act would have reauthorized the HEA, but it was also heavily criticized by college lobbyists and Democratic leaders alike for the burdens it places on graduating students and its weakened restrictions on predatory for-profit schools.[31]  On July 24, 2018, House Democrats responded by announcing the Aim Higher Act, which (because Democrats were the minority party at the time) only really functioned as a “point-by-point rejection” of the PROSPER Act.[32]  While neither of these bills ultimately came to fruition, they still signal that the parties’ current positions are diametrically opposite, casting further doubt on Congress’s current reauthorization efforts.

Currently, the College Affordability Act is the only full-scale HEA reauthorization bill pending before the 116th Congress.[33] So where is this reauthorization bill now? After its introduction, the House Committee on Education and Labor sent the bill to the full chamber for consideration.[34] The House of Representatives has yet to vote on the bill.[35]  However, even if the College Affordability Act makes it through the House in its current form, there is no guarantee that it would survive either the Senate or the President’s desk.  In President Trump’s most recent budget proposal, he proposed a massive series of cuts to several HEA grant programs, indicating his early disapproval with the College Affordability Act and possibly the HEA in general.[36]

When two sides have become this divided on a once-bipartisan issue, it is clear that something needs to be done. While some of this divide may be mere correlation with the overall increase in political polarization,[37] its consequences for education reform have been severe and will continue to grow worse.  The Higher Education Act needs to be reauthorized, and many essential federal programs will continue to suffer for as long as Congress fails to do so.

[1] College Affordability Act, H.R. 4674, 116th Cong. (2019)

[2] Higher Education Act, American Ass’n of Collegiate Registrars and Admissions Officers, (last visited Feb. 14, 2020).

[3] See infra text accompanying note 32.

[4] See Andrew Kreighbaum, House Dems’ Vision for Higher Ed, Inside Higher Ed. (Oct. 16, 2019),

[5] Skopos Labs, Prognosis Details: H.R. 4674, GovTrack, (last visited Feb. 14, 2020). Of course, because the increasing polarization of Washington, D.C. is not considered by Skopos Labs, this prognosis may be slightly optimistic. Id.

[6] Kreighbaum, supra note 3.

[7] Id.

[8] Id.

[9] 20 U.S.C. §§ 1001 et seq. (2018); see also Higher Education Act, Ass’n of Ctrs. for the Study of Cong., (last visited Feb. 14, 2020).

[10] Alexandra Hegji, Cong. Research Serv., R43351, Higher Education Act (HEA): Primer 2 (2016).

[11] Adam Harris, Congress Might Finally Overhaul Higher Education, The Atlantic (Mar. 8, 2019),

[12] See, e.g., 20 U.S.C. § 1071a–1(g); id. at § 1078(3)(e); id. at § 1098(k). If Congress is unable to agree on a full reauthorization bill, it can pass short-term extensions to continue funding higher education programs. Mark Kantrowitz, Reauthorization of the Higher Education Act of 1965, (Dec. 26, 2018),

[13] Lawrence E. Gladieux, Federal Student Aid Policy: A History and Assessment, U.S. Dept. of Educ. (Oct. 1995),

[14] Id.

[15] See id.

[16] Id. Previous Federal Grant programs distributed money to the universities, which in turn dispursed them to the students.  Lumina Foundation, Pell Grant: Building Block of Student Based Aid, Institute for Higher Education Policy 5, (last visited Feb. 14, 2019). The Pell Grant was the first Federal Grant program to provide assistance directly to the students themselves. Id.

[17] Hegji, supra note 8, at44 (2016).

[18] See id.

[19] Id.

[20] ACE Analysis of Higher Education Act Reauthorization, American Council on Education (last visited Feb. 14, 2020).

[21] Emily Bouck & India Heckstall, As the Higher Ed Opportunity Act Turns 10, Here’s How the Landscape Has Changed, EdSurge (Aug. 17, 2018),

[22] ACE Analysis, supra note 18.

[23] Id.

[24] See id.

[25] HSIs refers to Hispanic Serving Institutions, while HBCUs refers to Historically Black Colleges and Universities.

[26] Teri Lyn Hinds, Will the Higher Education Act Be Reauthorized in 2019?, Nat’l Ass’n of Student Personnel Administrators (Oct. 24, 2019),

[27] Id.

[28] Madeline St. Amour, Next Steps Uncertain After Bipartisan Agreement, Inside Higher Ed (Dec. 5, 2019),

[29] Andrew Kreighbaum, HBCUs Plan Cuts After Congress Misses Funding Deadline, Inside Higher Ed (Oct. 15, 2019),

[30] PROSPER Act, H.R. 4508, 115th Cong. (2017)

[31] See Andrew Kreighbaum, GOP Seeks to Shift Accountability for Colleges, Inside Higher Ed (Dec. 4, 2017),

[32] Andrew Kreighbaum, The Democratic Alternative, Inside Higher Ed (July 25, 2018), See Aim Higher Act, H.R. 6543, 115th Cong. (2018) for the full text of the proposed act.

[33] See Kreighbaum, supra note 3.

[34] H.R. 4674: College Affordability Act, GovTrack, (last visited Feb. 14, 2020).

[35] Id.

[36] Wesley Whistle, Trump Budget Proposes Cuts to Education, Forbes (Feb. 10, 2020),

[37] See Frank Newport, The Impact of Increased Political Polarization, Gallup (Dec. 5, 2019),

9 Wake Forest L. Rev. Online 21

Alexander W. Prunka*

I. Introduction

In the era of the #MeToo movement, there has been a dramatic push to name names and expose individuals accused of sexual misconduct and harassment across the world.[1] Before Harvey Weinstein was first accused and the #MeToo movement stormed onto the scene, though, college campuses were already predicting what was to come.[2]

For example, in 2014, on the heels of recent changes to the federal government’s interpretation of Title IX as it relates to peer-to-peer sexual misconduct, advocates founded the It’s On Us campaign to end sexual assault.[3] In 2015, a shocking documentary premiered detailing the prevalence of sexual assault on college campuses and institutional failure to address the issue.[4] The documentary featured prestigious universities, including the University of North Carolina at Chapel Hill ( “UNC”).

The Daily Tar Heel ( “DTH”), UNC’s campus newspaper, has long argued that UNC should disclose the names of individuals found responsible for sexual misconduct by University.[5] DTH has a history of seeking access to student disciplinary records: it took its 1996 attempt to publicize Honor Court proceedings and declassify their records to the North Carolina Court of Appeals.[6] DTH has been so dedicated to exposing UNC’s shortcomings in addressing sexual misconduct, it once published the details of victims’ complaints to the Department of Education against the victims’ wishes and without their consent.[7] So what happens when a student news organization allows its desire to spite its university and publicly shame those accused of sexual misconduct to drive its reporting agenda? Groundbreaking litigation, apparently.[8]

The Federal Educational Rights and Privacy Act of 1974[9] (“FERPA”) is a comprehensive statute protecting the privacy of student records.[10] With its broad protections, FERPA can be seen as a shield: protecting students from unwarranted invasions of privacy at all educational levels.[11] FERPA does, however, have some narrow exceptions.[12] The North Carolina Public Records Act[13] (“Public Records Act”), on the other hand, requires disclosure of a broadly defined class of public records and exceptions or exemptions are narrowly construed.[14]

On April 17, 2018, the North Carolina Court of Appeals issued a landmark decision in a lawsuit brought by DTH against UNC.[15] Reversing the superior court’s judgment in favor of UNC, the court of appeals’ decision compels UNC to disclose records identifying students found responsible by the University for virtually any violation of sexual misconduct policies over a nearly ten-year period. Thus, the court of appeals effectively endorsed DTH’s attempt to weaponize FERPA—a protective statute—through a misleading interpretation of a particular FERPA exception read in conjunction with the Public Records Act.

Part II discusses the history and background of FERPA, the Public Records Act, and Title IX of the Education Amendments of 1974 (“Title IX”). Part III discusses the case of DTH Media Corp. v. Folt[16] and the decision by the North Carolina Court of Appeals. Finally, Part IV argues the court of appeals was fundamentally incorrect in deciding for DTH. This Note concludes the North Carolina Supreme Court should properly determine that FERPA grants UNC discretion in determining whether to release the records in question, the Public Records Act is in conflict with that discretion, and FERPA preempts the Public Records Act to the extent it conflicts with the discretion given by FERPA. Further, this Note analyzes some of the public policy implications of the court of appeals decision to illustrate the need to reverse.

II. Background

FERPA and the Public Records Act form the basis of the legal question before the North Carolina Supreme Court in DTH Media Corp. v. Folt.[17] However, without recent interpretations of Title IX and subsequent changes to universities’ Title IX enforcement policies regarding peer-to-peer sexual misconduct,[18] the push to expose inadequacies in institutional responses to sexual misconduct may not have materialized. Thus, Title IX is indirectly at the heart of the litigation as well.

A. Student Disciplinary Records and FERPA

FERPA has two major purposes: to ensure access to student records for parents and students and “to protect [students’ and families’] right to privacy by limiting the transferability of their [educational] records without their consent.”[19] Educational records are “those records, files, documents, and other materials which contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution.”[20] The statue provides only a handful of narrow exceptions.[21]

FERPA protects student privacy through an exercise of Congress’ spending power.[22] However, because FERPA’s statutory scheme and enforcement mechanisms do not confer a private right of action for violations,[23] the only avenue for enforcement is for aggrieved students to file a complaint with the Department of Education.[24] While the Department of Education has broad authority to withhold funding from institutions in violation of FERPA,[25] no school has ever lost funding.[26]

FERPA has been substantively amended several times.[27] In 1990, a section of the Student Right to Know, Crime Awareness, and Campus Security Act modified FERPA by inserting a provision which permits institutions of higher education to disclose the outcome of disciplinary proceedings to the victims of crimes of violence.[28] The Higher Education Amendments Act of 1998 amended FERPA further, creating an exception and giving institutions of higher education the authority to disclose to anyone the final result of a disciplinary proceeding conducted against a student who was alleged to have committed a crime of violence or nonforcible sex offense and has been determined to have violated the institutions rules pertaining to such offenses (hereinafter the “final result exception”).[29] The final result exception, while narrow and limited in scope, includes a broad list of crimes.[30]

The day after the House of Representatives voted in favor of the final result exception, Representative Thomas Foley, the amendment’s primary sponsor, made a statement on the floor of the House,[31] claiming the amendment was designed to provide balance “between one student’s right of privacy to another student’s right to know about a serious crime in his or her college community,”[32] and that it would make reporting on such records “subject to the State laws that apply.”[33] Representative Foley discussed the allegation that schools were using student disciplinary hearings to conceal crime issues on campuses.[34] He stated the amendment was important “[b]ecause . . . parents and community leaders and others deserve to know the statistical problems that are being experienced on our Nation’s campuses.”[35]

In the mid-1990’s, a years-long battle between news media and Miami University began over student disciplinary records.[36] After the Miami Student successfully convinced the Ohio Supreme Court that student disciplinary records were not student records protected by FERPA, The Chronicle of Higher Education sought the disclosure of disciplinary records, “fraught with personally identifiable information and virtually untainted by redaction.”[37] In 2002, the Sixth Circuit held student disciplinary records were protected under FERPA, in part because of the final result exception.[38] Because Ohio’s public records law did not apply to federally-protected records, disclosure was prohibited.[39] In its decision, the Sixth Circuit opined about the significant weight Congress has placed on student privacy rights through its creation of FERPA.[40]

B. North Carolina’s Public Records Law

Until 1935, North Carolina had no public records statute and relied on common law principles to govern citizen access to public records.[41] The statute enacted in 1935 contained significantly more access rights, but it was primarily enacted for historical preservation purposes and citizen access was an afterthought.[42]

In 1975, North Carolina passed a new public records law providing for much broader access to state and local government records.[43] The law as it is now is incredibly broad.[44] Any document created by a public agency constitutes a public record, with the main limitation being specific statutory exceptions.[45] While the General Assembly has provided broad protection to the educational records of elementary and secondary students,[46] no similar provision exempting records of students within the UNC system or the North Carolina Community College system exists.[47]

It is difficult to imagine that this lack of exception was anything other than deference to FERPA[48] or a mere oversight. As Ryan Fairchild explained, the wording of the Public Records Act is so breadth and liberal that application could conceivably require absurd disclosures.[49] Despite the potential for absurdity, the North Carolina Supreme Court has been clear that “whether [exceptions] should be made is a question for the legislature, not the Court.”[50]

The North Carolina Court of Appeals first addressed FERPA’s protection of student disciplinary records in the UNC system twenty years ago in DTH Publishing Corp. v. University of North Carolina.[51] There, it held that student disciplinary proceedings were validly held in closed session under the state open meetings law because the proceedings required divulging student records.[52] The court reasoned that “FERPA was adopted to address systematic . . . violations of students’ privacy and confidentiality rights through unauthorized releases of sensitive educational records,”[53] and FERPA’s conditional funding therefore rendered the records “privileged or confidential.”[54] The court held that the minutes of disciplinary proceedings were exempt from the Public Records Act because release would “frustrate the purpose” of a closed session.[55] While DTH Publishing dealt broadly with student disciplinary records,[56] the issue of records falling under the final result exception has not been addressed by North Carolina courts until now.

C. Title IX and Sexual Misconduct

Title IX declares: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . .”[57] On April 4, 2011, in response to a growing epidemic of sexual misconduct on college campuses,[58] Vice President Joe Biden and Secretary of Education Arne Duncan announced a “Dear Colleague” letter outlining the Department of Education’s interpretations of how peer-to-peer sexual misconduct relates to Title IX.[59] The significant policy pivots in the letter were not subject to notice and comment rulemaking procedures.[60]

In response, universities refined how they addressed peer-to-peer sexual misconduct.[61] Along with new policies came a substantial increase in disciplinary enforcement of sexual misconduct policies.[62] Since the release of the Dear Colleague Letter, complaints of noncompliance to the Office for Civil Rights have increased exponentially each year,[63] and to date, the Office has opened more than 500 investigations into universities’ handling of sexual misconduct allegations.[64]

Accompanying these changes has been a host of litigation against universities by students accused or disciplined in Title IX sexual misconduct proceedings.[65] Doe v. The Ohio State University,[66] claimed that The Ohio State University’s disciplinary procedures relating to Title IX sexual misconduct allegations would violate an accused student’s right to privacy.[67] The district court, noting that such a claim would not be ripe without disclosure, concluded the claim was without merit because all parties, the district court, and the Sixth Circuit Court of Appeals were in agreement that student disciplinary records produced in Title IX disciplinary proceedings were protected under FERPA.[68] The court noted that there was no concern about disclosure under the final result exception because the records in question did not constitute a final result of a disciplinary proceeding.[69]

Since the beginning of President Donald Trump’s term, the Department of Education has rolled back the clock on the interpretation of how Title IX applies to peer-to-peer sexual misconduct. In September 2017, the administration rescinded the Dear Colleague Letter and subsequent clarifying guidance,[70] issuing interim guidance that gives colleges and universities more flexibility in crafting peer-to-peer sexual misconduct policies and allows the use of the more stringent clear and convincing standard in disciplinary proceedings.[71] These changes were implemented in hopes of making the process more fair for all parties and with the intention that official rules would be promulgated in the future.[72]

In November 2018, the Department of Education proposed new rules.[73] The proposed rule features more protections for the accused and narrows the definition of actionable sexual misconduct.[74] Further, universities would have discretion in determining whether to investigate allegations of off-campus sexual misconduct.[75] While the exact impact these changes will have is unclear,[76] it is plain that Title IX will remain the driving force behind universities enforcing peer-to-peer sexual misconduct policies.

III. The Case: DTH Media Corp. v. Folt

On September 30, 2016, DTH sent a letter to UNC requesting “copies of all public records made or received by [UNC] in connection with a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct.”[77] In a column days later, DTH Editor-in-Chief Jane Wester argued disclosure of names was necessary because she “badly want[ed] to know” how many people UNC has found responsible for sexual assault and what sanctions were being imposed.[78]

UNC denied the request, and DTH filed a declaratory judgment action on November 21, 2016.[79] Eventually, the Superior Court entered judgment in favor of UNC, concluding that FERPA grants universities discretion in determining whether to release records to the public under the final result exception and that this grant of discretion preempted required disclosure under the Public Records Act.[80] DTH appealed, and the North Carolina Court of Appeals issued its shocking decision on April 17, 2018.[81] The court reasoned that under proper canons of statutory interpretation, FERPA and the Public Records Act should be read to avoid conflict.[82] Reading the statutes in such a way, the court concluded the final result exception did not grant public universities absolute discretion in making disclosures.[83] The court determined that DTH was entitled to the records to the fullest extent they fell under the § 1232g(b)(6)(B) exception, fully granting the request except as to the date of the offenses.[84] Finally, the court explained its belief that FERPA did not preempt the Public Records Act in this case.[85]

IV. FERPA Preempts the Public Records Act

The North Carolina Supreme Court should first determine that the final result exception is a grant of discretionary power to universities to disclose particular records. Next, it should determine that the Public Records Act does not yield to the final result exception because the exception does not serve as an express statutory exemption which prohibits disclosure of the records in question. Finally, the court should conclude that FERPA and the Public Records Act conflict, and FERPA’s grant of discretion preempts the Public Records Act through implicit conflict preemption.

The court of appeals’ interpretation of the final result exception is based on the exception’s plain language.[86] However, the reasoning suggests the court’s interpretation of FERPA’s text relies on the conclusion that FERPA is in pari materia with the Public Records Act, and that they must be read in context with one another.[87] Statutes are considered in pari materia when they share a common aim or purpose or when they speak on the same subject.[88] When the text of a statute under consideration is clear, though, statutes in pari materia should not control construction.[89]

Even assuming, arguendo, the court of appeals read the statutes in pari materia to resolve ambiguity, such a reading would be improper because FERPA and the Public Records Act cannot reasonably be considered in pari materia. FERPA is a shield providing comprehensive protections to students by preventing disclosure of student records.[90] The Public Records Act, on the other hand, is a sword, broadly requiring disclosure of a vast array of records.[91] No matter how the subjects, purposes, and aims of the statutes are framed they will never be in pari materia.[92] Since much of the court’s analysis of the final result exception rests upon the faulty notion that it must be read in context with the Public Records Act,[93] it is a fair assumption that the mistake substantially and fatally flawed the court’s entire analysis.

A. The Meaning of the Section 1232g(b)(6)(B) Exception

1. The Plain Text

North Carolina courts have long followed the plain language rule in statutory interpretation: “If the language of the statute is clear and is not ambiguous, we must conclude that the legislature intended the statute to be implemented according to the plain meaning of its terms.”[94]

While the court of appeals concluded that nothing in the text of the final result exception[95] “required” UNC to exercise discretion in determining whether to disclose results within the final result exception,[96] a plain reading of the statute indicates the final result exception grants universities the discretion to determine whether to make such disclosures.

The language “[n]othing in this section shall be construed to prohibit . . .” indicates that the conduct is allowed, but not required.[97] The exception creates a discretionary decision: the university may choose whether to engage in the excepted conduct.[98] Thus, a university clearly has a discretionary choice of whether to disclose the final result of certain disciplinary proceedings.[99]

The court of appeals ignores this common-sense reading, arguing the only hint of discretion within the final result exception is the limiting condition that the exception applies only when “the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.”[100] Further, the court of appeals insists that FERPA’s judicial order exception demonstrates that the FERPA exception does not grant institutions discretion in determining whether to release records.[101]

The court’s logic misses the mark, ignoring that the judicial order exception is an independent exception.[102] “Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices.”[103] In 1998, Congress chose to amend FERPA to add the final result exception.[104] The court should have presumed Congress was deliberate in its structural placement and wording of the final result exception, rather than focus on such a circular argument.[105]

2. Legislative Intent Demonstrates That Discretion is Appropriate

Although the meaning of the final result exception is plain on its face, even if the language is ambiguous, FERPA evinces a legislative intent to leave the decision to disclose records under the exception within the discretion of universities. Our supreme court notes that “legislative intent controls the meaning of a statute” and directs that to determine intent, “a court must consider the act as a whole, weighing the language of the statute, its spirit, and that which the statute seeks to accomplish.”[106]

Because we must presume that Congress was deliberate in its wording of the final result exception,[107] it is telling that Congress crafted a permissive exception.[108] Under the court of appeals’ decision and the language of the Public Records Act, virtually any request for disclosure coming within the final result exception would become mandatory for the sixteen constituent universities within the UNC system. For public universities in North Carolina, the final result exception would become a required disclosure. Where Congress did not choose to require disclosure of these records, such a requirement for disclosure is surely inconsistent with the intent of the law.

Requiring disclosures in such a way is grossly inconsistent with the spirit and goals of FERPA. The court of appeals places great emphasis on the statement Representative Foley made the day after the provision was approved by the House of Representatives.[109] In regards to this type of misguided reliance, Justice Scalia said it best: “Arguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously, not even in a footnote.”[110] Considering, for the sake of discussion, that Representative Foley’s statement has even a scintilla of importance in determining the intent of Congress, the statement clearly demonstrates that the intent of the amendment was to balance the interest “between one student’s right of privacy to another student’s right to know about a serious crime in his or her college community.”[111] Balance requires the measurement and offsetting of competing interests to achieve the most desirable result,[112] and universities would be in the best position to balance the interests of the community against the privacy interest of the students.[113] It is preposterous to conclude that Congress expected that the law these records would be subject to would require blind disclosure without any balancing of interests.

B. The Public Records Act Does Not Yield to the Discretion Granted by the Final Results Exception

Because the conflicting law exemption found in section 132-1(b) of the Public Records Act is construed so narrowly,[114] our supreme court should not determine that the Public Records Act yields to FERPA. Construing this provision narrowly, the court should note that while FERPA itself would specifically provide a broad exemption for student records under the Public Records Act,[115] the final result exception removes certain records from that category. Thus, the final result exception does not “otherwise provide” that records within the exception may not be disclosed. Instead, because the final result exception permits disclosure the records, they are therefore subject to section 132-1(b)’s disclosure requirements unless preempted by FERPA.

C. FERPA’s Grant of Discretion to Colleges and Universities Preempts the Public Records Act

The supreme court should determine that the Public Records Act is in conflict with the final result exception of FERPA, and therefore FERPA implicitly preempts the Public Records Act to the extent it requires disclosure of records within the final result exception.[116] The court of appeals relies on the notion that it should presume both that the Public Records Act does not conflict with FERPA[117] and that federal preemption does not apply.[118] While it would be logical to presume that two statutes enacted by the same sovereign are not meant to contradict one another, there is little sense in assuming that two unrelated legislatures would avoid conflict to any extent.[119]

Federal preemption may be either express or implied.[120] Courts have taken two avenues of analysis of implicit conflict preemption: “obstacle” preemption occurs when a state statute “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,”[121] while “impossibility” preemption occurs when compliance with both state and federal law is a “physical impossibility.”[122]

It has been argued that the federal judiciary has grossly misapplied implicit conflict preemption through a broad reading of purposes and objectives preemption.[123] Since at least 2000, Supreme Court justices have warned of such an overwhelming expansion.[124] Advocates for change often argue in favor of a much stronger presumption against preemption and/or an increased reliance on the nuanced and cumbersome “physical impossibility” analysis.[125] In response to the seemingly artificial requirement of choosing between ridiculously broad or the uncompromisingly narrow analyses, analysis of implicit preemption should simply be “an inquiry into whether the ordinary meanings of state and federal law conflict.”[126]

Such a plain text approach to implicit preemption analysis requires a full understanding of the purposes underlying the Supremacy Clause.[127] The Supremacy Clause contains a rule of applicability requiring application of federal law in state courts with equal force as state law[128] and a rule of priority requiring application of federal law over state law when conflict exists.[129] These two rules, without further historical understanding, leave the final phrase of the Supremacy Clause –“anything in the Constitution or laws of any State to the contrary notwithstanding”[130]– seemingly redundant.[131]

Understood in the context of the ratification debates, however, this phrase was critically necessary to the success of the Supremacy Clause.[132] At the time of ratification, there was a judicial presumption against reading statutes in a manner which resulted in conflict, which would result implied repeal.[133]

In response to the presumption against implied repeals, legislatures sometimes include a non obstante provision to indicate to courts that new legislation may indeed contradict other statutes and that possible conflict should not skew the meaning of the statute.[134] The language of such clauses often dictated that the statute would apply “any law to the contrary notwithstanding,” or similar wording to the same effect.[135] Instead of leaving the Supremacy Clause’s rule of priority open to the interpretation of state courts, which might still apply the presumption and stretch the meaning of a federal statute to avoid conflict and implied repeal, the drafters of the Constitution included the phrase “anything in the Constitution or laws of any State to the contrary notwithstanding” as the final phrase of the Supremacy Clause as a universal non obstante clause, applying to all federal laws, and specifically contemplating potential conflict with state law and cautioning interpreting courts not to stretch their interpretation of federal statutes.[136] A plain text approach to implicit preemption, free from judicial policymaking, gives meaning to the framer’s express words and their intent that courts should strain to find harmony between apparently conflicting state and federal statutes.[137]

In 2011, the Supreme Court came its closest to implementing a plain text approach, guided by the Supremacy Clause’s non obstante provision, to implicit preemption. In PLIVA, Inc. v. Mensing,[138] Justice Thomas delivered the opinion of the court.[139] Although the critical implied preemption analysis was only a plurality portion of the opinion, the time may soon arrive that our nation’s courts finally do away with difficult and nuanced tests for conflict preemption.[140]

Though PLIVA specifically discusses judicial speculation about actions which could reconcile federal and state law under an impossibility preemption analysis,[141] it stands for a broader textualist approach to conflict preemption: “The non obstante provision of the Supremacy Clause indicates that a court need look no further than the ordinary meaning of federal law, and should not distort federal law to accommodate conflicting state law.”[142]

Taking a textual approach to implicit conflict preemption simply requires determining whether the text of the state law conflicts with the text of the federal law.[143] Focusing on the text of statutes would simplify the analysis by removing the need to classify the conflict in terms of obstacle or impossibility. A clear rule based in a textual analysis will remove the need to speculate and stretch meaning, producing more consistent results and comporting more fully with the non obstante provision of the Supremacy Clause.

It is clear that the Public Records Act conflicts with FERPA to the extent that it would require blind disclosure of all records falling within the final result exception. The ordinary language of the exception clearly reveals Congress’ intent to grant universities discretion in disclosing these records.[144] Because the Public Records Act would require UNC to blindly disclose the records, it interferes with UNC’s ability to exercise the discretion the final result exception grants.

D. Policy Implications

North Carolina courts generally defer questions of public policy to the General Assembly.[145] Though the North Carolina Supreme Court need not give much weight to considerations of policy implications, it is important to consider some potential implications of affirming the court of appeals.

The most troubling policy consideration is that the release of records identifying students as responsible for “rape, sexual assault or any related or lesser included sexual misconduct” could create constitutional privacy issues. Doe v. The Ohio State University left open the possibility that if Title IX investigation records were not protected, an accused may have a cognizable substantive due process claim under the United States Constitution.[146] Named students certainly would have a legitimate concern: the Southern District of Ohio framed it as “the interest in avoiding disclosure of highly personal matters.”[147] State run universities would be required to disclose their conclusions, often based on “investigations” with low evidentiary standards and limited due process rights, that individuals committed crimes.

Furthermore, what about the negative effects that required blind disclosure would have upon the goals Title IX’s peer-to-peer sexual misconduct policy enforcement? Confidentiality in the process is at the crux of Title IX and a major reason why victims often prefer reporting to their university rather than the police.[148]

Finally, there are instances where false accusations occur.[149] In a system where for at least the majority of the last ten years the federal government has required adjudication of these allegations by universities using the low standard of preponderance of the evidence,[150] are we ready to risk upending lives by labeling people as predators[151] and rolling back progress made for victims?[152] The Duke Lacrosse and Rolling Stone cases show that such risks should be considered.

These few concerns beg the question: with so much at stake, and a grant of discretion so clear, is there a need to weaponize the final result exception in conjunction with the Public Records Act?

V. Conclusion

In the end, what would truly serve the interests of progress and student welfare would be a release of detailed, non-personally identifiable information about sexual misconduct on campus. Indeed, Wester has gone on the record several times describing the needs allegedly at the heart of DTH’s request.[153] These needs do not require naming names. Even Representative Foley, who sponsored the final result exception, noted the importance of using statistics to inform the community.[154]

It is frustrating that no exception to the Public Records Act is on the books for student records in the University of North Carolina system.[155] The General Assembly could have created such a provision and still could moot this litigation by fixing it now. Perhaps Congress, too, should reconsider the need for the final result exception.

For now, the question is before the North Carolina Supreme Court. With a proper textual approach to statutory construction, our supreme court should conclude that the final result exception does give discretion to universities, and therefore the Public Records Act’s requirement to disclose is in conflict with FERPA. Without acrobatic harmonizing, the supreme court should find that FERPA preempts the Public Records Act to the extent this conflict exists, and reverse the court of appeals.

* J.D. Candidate 2020, Wake Forest University School of Law. Many thanks to my family, the Michael Bublé Fan Club, and most importantly my ever-patient fiancée, Kelsie. Additional thanks to Ms. Andie Harrelle and Dr. Tamika Wordlow-Williams for giving me the opportunity to work at the Office of Student Rights and Responsibilities at East Carolina University where I gained appreciation for student conduct topics.

    1. See generally, Christen A Johnson & KT Hawbaker, #MeToo: A Timeline of Events, Chicago Tribune (Mar. 7, 2019, 9:43 AM), (outlining the history of the #MeToo movement).

    2. Lena Felton, How Colleges Foretold the #MeToo Movement, Atlantic (Jan. 17, 2018),

    3. Our Story, It’s On Us, (last visited Dec. 20, 2018).

    4. See The Hunting Ground (The Weinstein Company 2015). The author notes the painful irony of the fact that Harvey Weinstein’s company was behind a film on this subject.

    5. Jane Wester, Column: We Should Know Who’s Found Responsible for Sexual Assault, Daily Tar Heel (Oct. 2, 2016, 11:47 PM),

    6. DTH’s arguments fell flat at the court of appeals. See DTH Publ’g Corp. v. Univ. of North Carolina, 496 S.E.2d 8 (N.C. Ct. App. 1998).

    7. See Tyler Kingkade, The Daily Tar Heel Published Details of Rape Victims’ Federal Complaint Without Consent, Huffington Post (Jan. 29, 2013),

    8. See, e.g., DTH Media Corp. v. Folt, 816 S.E.2d 518 (N.C. Ct. App. 2018) (bringing suit against university to compel disclosure of records naming those found responsible for sexual misconduct by the university); DTH Publ’g Corp., 496 S.E.2d at 10 (bringing suit against university to compel disclosure of records university was allegedly wrongly withholding).

    9. 20 U.S.C. § 1232g (2012).

    10. See infra Part II.A.

    11. Id.

    12. See, e.g., 20 U.S.C. § 1232g(b)(6)(A)–(B) (2012) (permitting the release of records in certain instances).

    13. N.C. Gen. Stat. § 132-1 et seq. (2017).

    14. See infra Part II.B.

    15. DTH Media Corp. v. Folt, 816 S.E.2d 518, 518–21 (N.C. Ct. App. 2018).

    16. 816 S.E.2d 518 (N.C. Ct. App. 2018).

    17. See generally id. at 523–26 (deciding whether FERPA and the North Carolina Public Records act conflicted and whether the records must be released).

    18. See infra Part II.C.

    19. See 120 Cong. Rec. 39,862 (daily ed. Dec. 13, 1974) (joint statement of Sens. Buckley and Pell). FERPA, introduced as a floor amendment in the Senate, was never considered by a committee and thus lacks much of the typical legislative history, such as committee reports and hearings. See Robert W. Futhey, Note, The Family Educational Rights & Privacy Act of 1974: Recommendations for Realigning Educational Privacy with Congress’ Original Intent, 41 Creighton L. Rev. 277, 311 (2008). As discussed later, subsequent legislative history is nearly worthless in determining legislative intent. See infra Part IV.A.2. This is, however, the only dependable signal of the legislative intent behind FERPA.

    20. 20 U.S.C. 1232g(a)(4)(A) (2012).

    21. See 20 U.S.C. 1232g(a)(4)(B) (2012).

    22. See 20 U.S.C. § 1232g(b) (2012) (“No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records . . . .”).

    23. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002).

    24. See 34 C.F.R. § 99.63 (2008); see also Gonzaga Univ., 536 U.S. at 287.

    25. See 20 U.S.C § 1232g(b) (2012).

    26. See Tyler Kingkade, Why Colleges Hide Behind this One Privacy Law All the Time, Huffington Post (Feb. 1, 2016, 6:44 PM),

    27. See Lynn M. Daggett, Bucking Up Buckley I: Making the Federal Student Records Statute Work, 46 Cath. U. L. Rev. 617, 617 (1996–1997).

    28. See Student Right-to-Know and Campus Security Act, Pub. L. No. 101-542, § 204, 104 Stat. 2381, 2385-87 (1990) (codified as amended at 20 U.S.C. § 1232g(b)(6) (2012)); Daggett, supra note 27, at 621.

    29. In the student disciplinary record disclosure system there are two separate, yet equally important exceptions: 20 U.S.C. § 1332g(b)(6)(A) which applies only to disclosure to the victims, and 20 U.S.C. § 1332g(b)(6)(B) which applies to disclosure to anyone. As noted supra, and as applies infra, this is Section 1332g(b)(6)(B)’s story only. See, e.g., Law & Order: Point of View (NBC television broadcast Nov. 25, 1992) (providing the framework for this witty citation and serving as the world’s introduction to the legendary Detective Lennie Briscoe).

    30. Included in the list of offenses which fall under into the category of “crime of violence” are arson; burglary; criminal homicide; destruction, damage, or vandalism of property; kidnapping or abduction; robbery; forcible sex offenses; and perhaps most broad “assault offenses.” 34 C.F.R. § 99.39 (2000).

    31. See 144 Cong. Rec. 8435 (daily ed. May 7, 1998) (statement of Rep. Foley) (“It did pass yesterday. We hope the Senate will consider the amendment.”).

    32. See id. at 8434.

    33. See id.

    34. See id.

    35. See id. at 8435.

    36. See United States v. Miami Univ., 294 F.3d 797, 803 (6th Cir. 2002).

    37. Id. at 803–04, 811.

    38. See id. at 811–13.

    39. See id.

    40. See id. at 807.

    41. See Thomas H. Moore, You Can’t Always Get What You Want: A Look at North Carolina’s Public Records Law Comments, 72 N.C. L. Rev. 1527, 1543 (1993–1994)

    42. Id.

    43. See Moore, supra note 41, at 1544–45.

    44. See id. at 1544. The law encompasses:

      all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government

      N.C. Gen. Stat. § 132-1(a) (2017).

    45. See News & Observer Pub. Co., Inc., v. Poole, 412 S.E.2d 7, 12 (N.C. 1992); see also Ryan C. Fairchild, Giving Away the Playbook: How North Carolina’s Public Records Law Can Be Used to Harass, Intimidate, and Spy, 91 N.C. L. Rev. 2117, 2126 (2013).

    46. See N.C. Gen. Stat. § 115C-402(e) (2017).

    47. The only exceptions for records of UNC on the books are for personally identifying information from or about an applicant to a constituent institution, or pertaining to liability insurance programs of constituent institutions. See Fairchild, supra note 45, at 2129–30.; N.C. Gen. Stat §§ 132-1.1(f), 116-222 (2017).

    48. Some states’ failure to enact student privacy laws may be the result of a belief that FERPA adequately provides robust protection for student privacy rights, or that the federal government has occupied the field. See Lynn M. Daggett, FERPA in the Twenty-First Century: Failure to Effectively Regulate Privacy for All Students, 58 Cath. U. L. Rev. 59, 113 (2008).

    49. See Fairchild, supra note 45, at 2130–31. Such disclosures could include football playbooks, academic exams, and academic research work. See id.

    50. News & Observer Pub. Co., Inc., 412 S.E.2d at 18.

    51. 496 S.E.2d 8, 8 (N.C. Ct. App. 1998).

    52. See id. at 13.

    53. Id. at 12 (quoting Smith v. Duquesne Univ., 612 F. Supp. 72, 80 (1985), aff’d, 787 F.2d 583 (1986)). The “privileged and confidential” status of the records allowed disciplinary hearings to be held in closed session under an exception to the state open meetings law. See id.

    54. See id.; see also N.C. Gen. Stat. § 143-318.11(a) (2017).

    55. See DTH Publ’g Corp., 496 S.E.2d at 13; see also N.C. Gen. Stat. § 143-318.10(e) (2017).

    56. See DTH Publ’g Corp., 496 S.E.2d at 8–9 (discussing the factual background of the case).

    57. Education Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 373 (1972) (codified as amended at 20 U.S.C. 1681(a) (2012)).

    58. See, e.g., Christopher P. Krebs et al., The Campus Sexual Assault (CSA) Study at xiii (2007) (stating that almost twenty percent of women report being victims of sexual assault since entering college). For a more thorough discussion on the issue of sexual misconduct on college campuses, see Brian A. Pappas, Out from the Shadows: Title IX, University Ombuds, and the Reporting of Campus Sexual Misconduct, 94 Denv. L. Rev. 71, 74–75 (2016–2017).

    59. See Press Release, U.S. Dep’t of Educ., Vice President Biden Announces New Administration Effort to Help Nation’s Schools Address Sexual Violence (Apr. 4, 2011),; U.S. Dep’t of Educ. Office for Civil Rights, Dear Colleague Letter (Apr. 4, 2011) [hereinafter Dear Colleague Letter]. The Dear Colleague Letter dramatically altered prior understanding of Title IX by requiring universities to address allegations of sexual misconduct originating on and off campus and by prescribing required knowledge and a preponderance of the evidence standard in addressing such allegations. See Brian A. Pappas, Dear Colleague: Title IX Coordinators and Inconsistent Compliance with the Laws Governing Campus Sexual Misconduct, 52 Tulsa L. Rev. 121, 127 (2016); Dear Colleague Letter, supra note 59, at 11.

    60. See Lance Toron Houston, Title IX Sexual Assault Investigations in Public Institutions of Higher Education: Constitutional Due Process Implications of the Evidentiary Standard Set Forth in the Department of Education’s 2011 Dear Colleague Letter, 34 Hofstra Lab. & Emp. L.J. 321, 333 (2017). The Dear Colleague Letter was designated a “significant guidance document.” Dear Colleague Letter, supra note 59, at 1 n.1. The Dear Colleague Letter thus purported to create interpretive rules of general rather than creating new regulations. See generally, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007) (defining and discussing significant guidance documents).

    61. See Erin E. Buzuvis, Title IX and Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault, 78 Mont. L. Rev. 71, 71 (2017).

    62. See id. at 71–72. Victims choose to pursue investigations with universities for a host of reasons: the confidentiality of the process, misunderstanding of the law, fear they would not be believed by the police, and lack of control in the criminal justice system. See Eliza Gray, Why Victims of Rape in College Don’t Report to the Police, Time (June 23, 2014),

    63. See Buzuvis, supra note 61, at 82.

    64. See Title IX: Tracking Sexual Assault Investigations, Chronicle of Higher Educ., (last visited Dec. 18, 2018).

    65. See Buzuvis, supra note 61, at 85. No disciplined student has ever prevailed against a university defendant in a Title IX suit. See id.

    66. Doe v. The Ohio State Univ., 136 F. Supp. 3d 854 (S.D. Ohio 2016).

    67. See id. at 860, 868.

    68. Id. at 869.

    69. See generally id. at 864.

    70. Stephanie Saul & Kate Taylor, Betsy DeVos Reverses Obama-Era Policy on Campus Sexual Assault Investigations, N.Y. Times (Sept. 22, 2017),

    71. See generally U.S. Dep’t of Educ. Office For Civil Rights, Q&A on Campus Sexual Misconduct (Sept. 2017) (discussing interim interpretations of Title IX).

    72. See Press Release, U.S. Dep’t of Educ., Department of Education Issues New Interim Guidance on Campus Sexual Misconduct (Sept. 22, 2017),

    73. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,642 (proposed Nov. 28, 2018) (to be codified at 34 C.F.R. pt. 106).

    74. Sophie Tatum, Education Dept. Unveils New Protections for Those Accused of Sexual Misconduct on Campuses, CNN (Nov. 16, 2018, 1:17 PM),

    75. Andrew Kreighbaum, What the DeVos Title IX Rule Means for Misconduct Off Campus, Inside Higher Educ. (Nov. 27, 2018)

    76. Sarah Brown & Katherine Mangan, What You Need to Know About the Proposed Title IX Regulations, Chronicle of Higher Educ. (Nov. 16, 2018, 4:40 PM),

    77. Transcript of Record at 29, DTH Media v. Folt, 816 S.E.2d 518 (N.C. Ct. App. 2018) (No. 17-871).

    78. See Wester, supra note 5. Ironically, based on the explanation Wester gives in her column, all of the needs underlying the request could be met without identifying students. See id.

    79. Transcript of Record, supra note 77, at 6–7. Wester again went on the record and demonstrated that the needs underlying the request did not require identifying students, saying

      It would help us tremendously into figuring out basically how seriously UNC is taking these cases, how many of the cases that enter the system get resolved — because we can’t really even see that right now — so basically, there’s stuff we can report, we can talk to survivors and stuff without the record, but we really need to see more on UNC’s side of it.

      Katie Rice, The Daily Tar Heel Files Lawsuit against UNC to Obtain Campus Sexual Assault Records, Daily Tar Heel (Nov. 22, 2016, 12:52 AM),

    80. Transcript of Record, supra note 77 at 37–39.

    81. DTH Media Corp. v. Folt, 816 S.E.2d 518, 518 (N.C. Ct. App. 2018).

    82. See id. at 523.

    83. See id. at 524.

    84. See id. at 521, 526.

    85. See id. at 526–29.

    86. See id. at 524.

    87. See id. at 523–24.

    88. See Hous. Auth. of City of Greensboro v. Farabee, 200 S.E.2d 12, 15–16 (N.C. 1973).

    89. See id. at 16.

    90. See, e.g., Daggett, supra note 27, at 617–19. See also supra Part II.A.

    91. See supra Part II.B.

    92. While the court of appeals does not explain how, exactly, the statutes are in pari materia, the mere fact that they both speak to “records” in some respect would be decidedly insufficient to support a threshold determination that they are on the same subject.

    93. See DTH Media Corp. v. Folt, 816 S.E.2d 518, 523–24 (N.C. Ct. App. 2018).

    94. Lanvale Props., LLC v. Cty. of Cabarrus, 731 S.E.2d 800, 809 (N.C. 2012) (internal quotations and citations omitted).

    95. The final result exception reads as follows:

      Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence . . . or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.

      20 U.S.C. § 1232g(b)(6)(B) (2012).

    96. See DTH Media Corp., 816 S.E.2d at 524–25.

    97. Prohibit is defined as “to forbid by law.” Prohibit, Black’s Law Dictionary (10th ed. 2014). Because the subsequent action is not forbidden, but is not required it, it is allowed. Indeed, the Department of Education notes that the final result exception is a permissive exception. See Family Educational Rights and Privacy, 65 Fed. Reg. 41,852, 41,860 (July 6, 2000) (to be codified at 34 C.F.R. pt. 99). The comment response notes that the new provision does not require a university to disclose any records under the FERPA exception, but concludes that FERPA “does not prevent” disclosure required under state public records laws. Id. For the reasons described in Part IV.A, the court’s conclusion would make little sense in this case because the North Carolina Public Records Act would require disclosure of all records falling under the FERPA exception.

    98. See 20 U.S.C. § 1332g(b)(6)(B). Discretion is defined as “[w]ise conduct and management exercised without constraint.” Discretion, Black’s Law Dictionary (10th ed. 2014).

    99. Comparing UNC to federally funded private universities outside the reach of the Public Records Act reinforces this rationale. For private universities, administrators would obviously be required to make a decision about whether to release records under the final result exception. Their decision would be an exercise of discretion, despite the lack of language requiring the exercise of discretion. Why would FERPA treat public and private universities differently without explicit wording to such an effect?

    100. See DTH Media Corp., 816 S.E.2d at 524.

    101. See id. at 524–25. This logic is rather circular. The court focuses on the conclusion that because the judicial order exception does not differentiate between judicial orders which require disclosure and those which merely authorize disclosure, an institution could not lose funding for complying with a judicial order requiring disclosure of records under the final result exception. See id. Further, in this portion of the analysis the court of appeals appears to confuse and side-step the true issue, twice turning its conclusions on whether disclosures under these two exceptions would leave an institution in violation of FERPA. See id. at 525. The question is not whether release of records under the final result exception would violate FERPA: it decidedly would not. The question is whether the Public Records Act can completely annihilate the discretion FERPA gives. Answering the first question says nothing about the second.

    102. Existing in its own independent sub-sub-sub section, the judicial order exception is broader than the final result exception and encompasses records well outside the scope of the final result exception. See 20 U.S.C. § 1232g(b)(2)(B) (2012).

    103. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013).

    104. See supra note 29 and accompanying text.

    105. Theoretically a judicial order could compel the release of records under the final result exception. See DTH Media Corp., 816 S.E.2d at 598 (remanding the litigation to superior court to issue a judicial order compelling disclosure). That said, it makes very little sense to stretch a whimsical argument about lack of distinction in the judicial order exception into substantive support for the incorrect conclusion that the final result exception does not grant institutions discretion in deciding whether to disclose records.

    106. North Carolina Ins. Guar. Ass’n v. Bd. of Trs. of Guilford Tech. Cmty. Coll., 691 S.E.2d 694, 699 (N.C. 2010) (internal quotations and citations omitted).

    107. Univ. of Tex. Sw. Med. Ctr., 570 U.S. at 353.

    108. See supra Part IV.A.1.

    109. See DTH Media Corp., 816 S.E.2d at 527.

    110. Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring). Justice Scalia is hardly alone in this belief. See also Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 407 (1987) (noting that the Court does not attach substantial weight to statements made by sponsors of legislation after the passage of an act); Wallace v. Jaffree, 472 U.S. 38, 86–87 (1985) (Burger, C.J., dissenting) (proselytizing that statements made by a bill’s sponsor after its passing do not offer a “shred of evidence” that the body shared the sponsor’s intentions in passing the legislation). For a detailed explanation of reasons underlying the uselessness of post-passage legislative history, see Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438 (7th Cir. 1988).

    111. See 144 Cong. Rec. H2984 (daily ed. May 7, 1998) (statement of Rep. Foley).

    112. See Balance, Black’s Law Dictionary (10th ed. 2014) (third definition).

    113. Universities are in a position to know the case facts, the severity of the offense, and the community’s need to know, whereas an appellate court is not in a position to balance the interests in what is now eleven years’ worth of disciplinary records. The court of appeals paid special attention to the language “make reporting subject to state laws that apply.” See 144 Cong. Rec. H2984 (daily ed. May 7, 1998) (statement of Rep. Foley). Had Congress intended that the final result exception would require disclosure, as the Public Records Act allegedly requires, it would have chosen language conveying such an intent.

    114. See supra Part II.B. In brief, UNC contends that FERPA and the Public Records Act can be reconciled by applying the deference the Public Records Act affords to conflicting laws. See Brief of Defendant-Appellees at 19–21, DTH Media v. Folt, 816 S.E.2d 518 (N.C. Ct. App. 2018) (No. 17-871). This argument should be unpersuasive, however, because the court should narrowly construe the meaning of “unless otherwise specifically provided by law.” See News & Observer Pub. Co., Inc. v. Poole, 412 S.E.2d 7, 18 (N.C. 1992).

    115. See generally 20 U.S.C. § 1232g (2012) (withholding substantial funding from institutions that impermissibly disclose student records).

    116. While there may be some merit to the argument that FERPA preempts the Public Records Act through implicit field preemption, the argument would be more complex and less compelling than conflict preemption argument based on a clear-cut conflict.

    117. See DTH Media Corp. v. Folt, 816 S.E.2d 518, 524 (N.C. Ct. App. 2018).

    118. See id. at 526. In describing its presumption against federal preemption, the court of appeals relies on State ex rel. Utilities Comm’n v. Carolina Power & Light Co., but neglects to address the subsequent explanation therein that such a presumption exists when the field supposedly preempted is one traditionally occupied by the states, which are those fields relating to the exercise of a state’s police powers over health and welfare. See 614 S.E.2d 281, 287 (2005) (citing Hillsborough Cty. v. Auto. Med. Labs., Inc., 471 U.S. 707, 715 (1985)). It is difficult to see how the Public Records Act is an exercise of North Carolina’s police power over health and welfare and equally difficult to understand how North Carolina has traditionally occupied the field of the privacy of student records when there is only one provision in all of the general statutes relating to the confidentiality of student records. See supra note 47 and accompanying text.

    119. See Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 233 (2000).

    120. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).

    121. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

    122. See Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963).

    123. See Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in judgment); see also Nelson, supra note 119, at 229.

    124. See, e.g., Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 907 (2000) (Stevens, J., dissenting) (opining about the potentially limitless application of purposes and objectives preemption).

    125. See Nelson, supra note 119, at 230–31.

    126. Wyeth, 555 U.S. at 588 (Thomas, J., dissenting) (internal quotations and citations omitted).

    127. U.S. Const. art. VI, cl. 2.

    128. Nelson, supra note 119, at 246.

    129. See id. at 250. This rule of priority would displace the traditional rule, which would apply the law of the statute more recently passed in the event of a conflict. See id.

    130. U.S. Const. art. VI, cl. 2.

    131. Nelson, supra note 119, at 254.

    132. See id. at 255.

    133. See id. at 241–42.

    134. See id.

    135. Id. at 238.

    136. See id. at 255.

    137. See Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 911 (2000) (Stevens, J., dissenting).

    138. PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).

    139. See id. at 622–23.

    140. Following the death of Justice Scalia in 2016 and Justice Kennedy’s retirement in 2018, Justices Gorsuch and Kavanaugh have been elevated to the high court, leaving the court even more conservative than it was at the time of PLIVA. See, e.g., Adam Liptak, Confirming Kavanaugh: A Triumph for Conservatives, but a Blow to the Court’s Image, N.Y. Times (Oct. 6, 2018),

    141. See PLIVA, 564 U.S. at 623.

    142. Id. (internal quotations, punctuation, and citations omitted).

    143. See Wyeth v. Levine, 555 U.S. 555, 588 (2009) (Thomas, J., concurring in judgment).

    144. See supra Part IV.A.

    145. See Martin v. N.C. Hous. Corp., 175 S.E.2d 665, 671 (N.C. 1970).

    146. Doe v. The Ohio State Univ., 136 F. Supp. 3d 854, 869 (S.D. Ohio 2016) (concluding that because Title IX investigation records were protected under FERPA plaintiff did not have a substantive due process claim).

    147. Id.

    148. See supra note 62 and accompanying text. UNC notes that victims could sometimes be identified just through the release of their attacker’s identity. Transcript of Record, supra note 79, at 17.

    149. There is some dispute as to the prevalence of false allegations of sexual misconduct, but most reports suggest they are fairly rare. See Rowan Scarborough, False Sex Assault Reports Not as Rare as Reported, Studies Show, Wash. Times (Oct. 7, 2018),

    150. See supra Part II.C.

    151. William D. Cohan, The Duke Lacrosse Player Still Outrunning His Past, Vanity Fair (Mar. 24, 2014, 8:49 PM),

    152. Kurtis Lee, Fallout from Rolling Stone Feared by Advocates for Sex Assault Victims, L.A. Times (Apr. 6, 2015, 1:38 PM),

    153. See supra notes 78–79 and accompanying text.

    154. See supra note 34–35 and accompanying text.

    155. See supra text accompanying note 47.

R.F. v. Cecil County Public Schools

This case is a civil case where the parents of a child with disabilities challenged an administrative law judge’s determination that Cecil County Public Schools (“CCPS”) had fulfilled its obligation to provide the child with a free appropriate public education under the Individuals with Disabilities Education Act (“IDEA”). There were four issues on appeal: (1) whether CCPS failed to educate the “least restrictive environment” (usually, alongside children who are not disabled); (2) whether CCPS failed to sufficiently implement classroom placement in the child’s Individualized Education Program (“IEP”); (3) whether CCPS denied the child’s parents the right to participate in her education; and (4) whether CCPS provided an appropriate IEP for the child. The administrative law judge and the district court both found that any procedural violations CCPS committed did not substantively deny the child from a free appropriate public education. The Fourth Circuit held that CCPS did violate some procedural requirements of the IDEA, but that overall CCPS did not deny the child a free appropriate public education under the IDEA. Thus, the Fourth Circuit affirmed the district court’s decision. 

Lance Belville v. Ford Motor Company

Ford Motor Company (“Ford”) was sued by a group of individuals and corporations (“Plaintiffs”) for an alleged defect in Ford vehicles manufactured between 2002 and 2010. In total there are twenty-seven individual and two corporate Plaintiffs who had purchased or leased Ford vehicles with these alleged defects. The district court excluded the opinions of the Plaintiffs’ experts, dismissed various claims of certain Plaintiffs and ultimately granted summary judgment to Ford on all remaining claims. The Fourth Circuit affirmed the district court judgment. The district court excluded the opinions of Plaintiff’s three experts based on their lack of relevance and reliability. The Fourth Circuit held that the district court provided a well-reasoned analysis of the experts’ theories and testing based on consideration of the appropriate Daubertfactors for the case. Those appropriate Daubertfactors included general acceptance of a theory within a relevant field, peer review, and the scientific valid of underlying methodologies used. Therefore, the Fourth Circuit held that the district court did not abuse its discretion when they excluded the experts from the proceeding. Ultimately, the Plaintiffs could not prove their theory of defect when their experts were excluded and thus the Plaintiffs could not meet the essential element of causation. Therefore, the district court’s grant of summary judgment on all claims to Ford was appropriate.

United States v. Justin Hawley

            In this criminal case, Defendant Justin Hawley (“Hawley”) pleaded guilty to two counts of distributing heroin and to two counts of being a felon in possession of a firearm. Hawley was sentenced to fifty-seven months in prison, in part because Hawley’s prior criminal history included a sentence of thirty days imprisonment for an uncounseled misdemeanor offense. The uncounseled misdemeanor offense that Hawley was imprisoned for thirty days for was for providing false information to a police officer and for failure to wear a seatbelt. Hawley argued “that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment.” The Fourth Circuit affirmed Hawley’s fifty-seven month sentence. The Sentencing Guidelines (“Guidelines”), under U.S.S.G. § 4A1.2(c)(1), require the district court to count certain prior offenses when computing a defendant’s criminal history for sentencing, “only if (A) the sentence was a term or probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Therefore, under the plain language of Guidelines, Hawley’s offense should be counted in calculating his prior criminal history. Based on this information, the Fourth Circuit held that the district court did not err in counting Hawley’s prior voluntarily uncounseled misdemeanor offense for which he was sentenced to 30 days imprisonment in calculating his criminal history and therefore the Fourth Circuit affirmed the imprisonment term for Hawley in this case.

United States v. Michael Smith

            In this criminal case, defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt all participated in the illegal activities of a Baltimore street and prison gang named the Black Guerilla Family. All three defendants were convicted because of their involvement in the gang’s drug dealing and violent acts they committed as members of the gang. The district court sentenced Bazemore to life, Hurtt to 324 months and Smith to 210 months. Bazemore and Hurtt were convicted for, among other things, first-degree murder and attempted murder. Smith was convicted of extortion and drug distribution under a racketeering conspiracy. Defendants sought to reverse their convictions for two main reasons. First, Defendants argued that “the district court improperly handled the fears some jurors expressed to the court after learning of this gang’s predilection for violence and retaliation.” Second, Defendants claimed that the district court should have excluded the expert testimony of an FBI agent regarding the decoding of intercepted phone calls. The Fourth Circuit rejected the challenges of the Defendants. The district court had excused three different jurors that were scared because of the nature of the case and the potential for violence against them or their families after the trial if Defendants were convicted. During the trial, the Government called an Agent James to provide expert interpretations of phone calls of gang members that had been recorded as part of an FBI investigation. Agent James was qualified as an expert in drug and gang terminology in Maryland and at trial he explained the meanings of several coded gang terms used in the recorded conversations. The Fourth Circuit found that the district court in questioning each juror individually after learning that Juror No. 5, one of the juror’s ultimately excused, was experiencing great fear from being on the jury. It is the job of the trial judge to determine if affected jurors can remain fair and impartial. In the opinion of the Fourth Circuit, the trial judge acted well within his discretion in denying the request for a mistrial after excusing the three jurors he believed could not be fair and impartial and keeping those jurors that assured him of their continued impartiality. The Fourth Circuit rejected the argument that the district court abused its discretion in admitting portions of Agent James’s expert testimony and that even if any improper opinion testimony from Agent James was heard by the jury it was harmless.

U.S. v. Jose Guzman-Velasquez

            This case is a criminal case in which Jose Benjamin Guzman-Velasquez (“Defendant”) was charged with the crime of illegal reentry when he returned to the United States after being deported. Defendant was removed from the United States in 2007, but sometime after returned and was convicted of three crimes. Subsequently, in 2016, a grand jury indicted Defendant for illegal reentry in violation of 8 U.S.C. § 1326(a). Guzman made a motion to dismiss the indicted, but the district court denied the motion. Guzman plead guilty and appealed. The issue was whether United States Citizenship and Immigration Services’ (“USCIS”) denial of Defendant’s Temporary Protected Status (“TPS”) application violated his Due Process rights, and whether under the Supreme Court case United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the due process principle extends beyond removal orders to TPS denials. The Fourth Circuit did not reach the question regarding the Mendoza-Lopezcase because they determined Defendant had not asserted a due process violation that resulted in fundamental unfairness. The Fourth Circuit held that USCIS did not error in denying Defendant’s TPS application and therefore affirmed the district court’s judgment. 


M.L. was born in 2003 with Down Syndrome and lives with his family in an Orthodox Jewish community in Maryland.[1]  M.L’s faith governs almost every aspect of his life, including how he dresses, eats, and works.[2]  In 2009, M.L. enrolled in a private special education program that was tailored to his religious needs.[3]  In 2012, M.L.’s parents met with the Montgomery County Board of Education (“MCPS”) to create an individualized education program (“IEP”) as part of his public school education, but his parents rejected the IEP, complaining that it did not offer instruction on preparing for life in an Orthodox Jewish community.[4]  MCPS replied that an IEP meeting the standards of M.L.’s parents would be too specific, too religious, and not part of the public school curriculum.[5]

M.L. filed a due process claim against the School Board with the Maryland Office of Administrative Hearings, arguing a violation of the Individuals with Disabilities Education Act (“IDEA”).[6]  The administrative law judge (“ALJ”) ruled that the IDEA does not require a public school to offer specialized religious instruction in an IEP because the IDEA only requires “access [to] the general curriculum.”[7]  M.L. then filed a claim in the United States District Court for the District of Maryland where summary judgment was granted to the School Board. M.L. appealed to the Fourth Circuit Court of Appeals.[8]

Arguments for Tailoring an IEP to Religious Needs

The National Jewish Commission on Law and Public Affairs (“COLPA”) argued in its amicus brief that directing certain IDEA benefits toward “the non-practice of religion is coercive.”[9]  In support of their argument, COLPA cited the Supreme Court’s firmly established precedent that the “Free Exercise Clause bars government action aimed at suppressing religious belief or practice.”[10]  While the Court previously noted “a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability,”[11] the Court recently held that a policy that makes practicing one’s religion more expensive “imposes a burden on the exercise of religion.”[12]  Thus, COLPA raised a valid question as to whether the IEP, as written, violated the Free Exercise Clause.

M.L. argued that “a student’s religious, cultural, or other individual circumstances are relevant to the fashioning of an appropriate special education program for that student.”[13]  Specifically, the appellants observed that, because M.L. was unable to distinguish home and school settings, his religious background is part of his “unique needs.”[14]  Thus, the IEP should have accounted for “[l]earning Hebrew, recognizing kosher signs and impurities in foods, and telling time according to [M.L.’s] dietary restrictions.”[15]

Arguments against Tailoring an IEP to Religious Needs

In brief, the School Board suggested that pursuing the goals and objectives that M.L. requested would itself violate the Establishment Clause due to their religious nature.[16]  However, despite both parties’ Establishment Clause arguments, both the ALJ and the district court quickly dismissed any Establishment Clause considerations by resolving the relevant issues using only the IDEA and Maryland state law.  The School Board argued that neither the IDEA nor Maryland state law requires it to provide M.L. with IEP goals and objectives that incorporate his religious practices.[17]

M.L. also asserted that requests that his religious practices be developed through his IEP were simply requests for accommodation of his religious practices.  In response, the School Board countered by asserting that M.L. was clearly seeking “affirmative IEP goals and objectives” that were designed to incorporate M.L.’s religion into his IEP.  The School Board’s counterargument effectively diverted the court’s analysis of M.L.’s claims from a focus on accommodation toward a focus on affirmative IEP goals.[18]  In brief, the School Board reminded the court that, religious concerns aside, M.L. previously and consistently agreed that the IEP was otherwise adequate to meet M.L.’s educational needs.[19]


The Fourth Circuit Court of Appeals held that the appellants had been mistaken in reading “other education needs” as “all other educational needs.”  The court observed that the IDEA is not so comprehensive—not every limitation a disabled student may possess needs to be addressed.[20]  The court further elaborated that the IDEA does not ensure a specific scholastic result and therefore does not address a disabled student’s ability to practice his chosen religion.[21]  Relying on the reasoning in Rowley, the court emphasized the function of the IDEA, not as a guarantee for providing certain levels of education to disabled students, but as a way to “open the door of public education to handicapped children on appropriate terms.”[22]  Similarly, the court emphasized that Free Appropriate Public Education (“FAPE”) requires only that a child receives an educational benefit that is slightly more than trivial from the special instruction and services provided.[23]  The court declined to address COLPA’s Free Exercise Clause arguments because the appellants did not raise a Free Exercise argument in their opening brief.[24]

By finding for the School Board in this case, the court made clear that the IDEA does not require a school board to provide a religious or cultural curriculum to a disabled student.[25]  Under the IDEA, disable students do not need a religious curriculum in order to have equal access to education.[26]

By Mike Garrigan & Mary Kate Gladstone


[1] M.L. by Leiman v. Smith, 867 F.3d 487, 490 (4th Cir. 2017).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 492.

[8] Id.

[9] Brief for National Jewish Commission on Law and Public Affairs as Amicus Curiae Supporting Appellants at 11, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[10] See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993).

[11] See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).

[12] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014).

[13] Brief for Appellants at 19, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[14] Id.

[15] Id. at 34.

[16] Brief for Appellees at 14, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[17] Id.

[18] Brief of Appellants, supra note 13, at 14–15.

[19] Id. at 21.

[20] M.L. v. Smith, 867 F.3d 487, 498–99 (4th Cir. 2017).

[21] Id. at 499.

[22] Id. at 498.

[23] Id. at 495.

[24] Id. at 499

[25] Id. at 499.

[26] Id.

By Sarah Saint

On April 8, 2016, the Fourth Circuit released its published opinion in the civil case of S.B. v. Board of Education of Harford. S.B., a student with disabilities who attend Aberdeen High School in Harford County, Maryland, by and through his mother, A.L., sued the Harford County Board of Education (the “Board”), alleging that the Board violated § 504 of the Rehabilitation Act by allowing other students to bully and harass S.B. because of his disability. S.B.’s stepfather, T.L., who is a teacher and athletic director at Aberdeen High School, sued in his own right, alleging that the Board violated § 504 by retaliating against him for advocating for S.B. The Fourth Circuit affirmed the district court’s grant of summary judgment to the Board, ruling that neither S.B. nor T.L. provided evidence for their claims.

Facts Presented in the Light Most Favorable to S.B. and T.L.

S.B.’s disabilities included Attention Deficit Hyperactivity Disorder, weak visual-spatial ability, and a nonverbal learning disability. During high school, S.B.’s classmates severely bullied him, insulting him with homophobic slurs, sexually harassing him, physically threatening him, and calling him racist names. S.B.’s parents reported these incidents to the school, which investigated each incident. The school regularly disciplined the offenders and assigned a paraeducator to follow S.B. during school to monitor his safety. Nevertheless, this was not to A.L. and T.L.’s liking, and S.B.’s parents eventually began publicly criticizing the school’s efforts to protect S.B in November 2012.

Around the same time, the school denied T.L. the opportunity to complete a practicum for his master’s degree program at Aberdeen High School. Then, in the spring 2013, the school did not give T.L. tickets to a scholarship banquet for student-athletes and informed him that he would not be teaching the summer physical education classes that year, though he had taught it the previous years.

In April 2013, A.L. and T.L. filed the original complaint. In October 2013, T.L. raised concerns at a parents’ forum about the lack of harassment reporting forms available at the high school.

Despite the bullying, S.B. graduated Aberdeen High School on time in June 2014. He consistently achieved passing grades throughout high school and began taking classes at Harford Community College after graduation.

Procedural History

In June 2013, S.B. and his parents amended their complaints to allege violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The claims were premised on the fact that the defendants had discriminated against S.B. on his disability by failing to prevent student-on-student bullying and harassment and had retaliated against S.B.’s parents when they advocated for S.B.

In September 2013, the district court dismissed all the individual defendants and S.B.’s claims under §§ 1983 and 1985. A.L. also voluntarily dismissed her retaliation claim. Before the district court at trial and before the Fourth Circuit on appeal were S.B.’s claim of disability-based discrimination in violation of § 504 and the ADA and T.L.’s claim of retaliation under § 504.

After substantial discovery, in April 2015, the district court granted summary judgment to the Board because there was not evidence to support S.B.’s and T.L.’s claims. For one, there was no evidence in the record that the Board had acted with bad faith, gross misjudgment or deliberate indifference in responding to the harassment. Additionally, there was no evidence of a causal link between T.L. advocating for S.B. and any action taken by the Board.

Standard of Review

The Fourth Circuit reviewed the district court’s decision de novo. Summary judgment is proper when there is no genuine dispute to any material fact and the movant is entitled to a judgment as a matter of law. Fact are viewed and inferences are drawn in the light most favorable to the non-moving party, here S.B. and T.L. If no reasonably jury could find for the non-moving party, the appellate court will affirm a grant for a motion for summary judgment.

Fourth Circuit Adopted Davis Standard of Deliberate Indifference for § 504 Claims

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). S.B. claimed that he was subjected to years of sustained and pervasive student-on-student harassment and bullying based on his disability. By the Board failing to prevent the harassment, S.B. alleged that the Board engaged in disability-based discrimination prohibited by § 504.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed a similar claim under Title IX, which provides for similar protections as § 504 but for gender instead of disability. The Court held in Davis that a school could only be liable for student-on-student harassment when it was “deliberately indifferent” to known acts of such harassment. A negligent failure to learn of or react to student-on-student harassment does not subject a school to liability–only “deliberate indifference to known acts of harassment.” Id. at 642–43.

The Fourth Circuit, in alignment with most other federal courts who have reached this issue, decided that the same reasoning the Davis Court applied to Title IX also applies to § 504 claims arising from student-on-student harassment or bullying because of the statutory parallels. Schools must be on notice of the student-on-student harassment and act with deliberate indifference in order to be held liable for it.

The Fourth Circuit rejected S.B.’s argument that the Fourth Circuit had already adopted a different standard for § 504 liability in 1998: that a school can be liable if the school acted with bad faith or gross misjudgment. The 1998 case that S.B. cited in support of this theory–Sellers v. School Board of City of Manassas, 141 F.3d 524 (4th Cir. 1998)–did not involve school liability for student-on-student misconduct but a school’s own direct conduct. When a school allegedly violates § 504 through it’s own conduct, such as failing to provide a free appropriate public education, the bad faith or gross misjudgment standard applies. However, Sellers said nothing about school liability for student-on-student harassment. Accordingly, the Fourth Circuit found that it is guided by Davis and not Sellers.

S.B.’s Claim of Disability Discrimination in Violation of § 504

To succeed on a § 504 student-on-student harassment claim, a plaintiff must show that he was an individual with a disability; that he was harassed by other students because of his disability; that the disability-based harassment was sufficiently severe, pervasive, and objective offensive that it effectively deprived him of access to educational benefits and opportunities at school; and that the school knew about the disability-based student-on-student harassment and was deliberately indifferent to it.

The Fourth Circuit agreed with the district court that S.B. could not establish that the student-on-student harassment was based on his disability. It was more likely that S.B. was bullied because of his race, which is not actionable conduct under § 504. Further, the Fourth Circuit agreed with the district court that S.B. and his parents never informed the Board that he was being bullied because of his disability, only that he was being bullied. S.B. alleged that the school should have known that the harassment was based on his disability, but the Supreme Court expressly rejected such a standard in Davis.

Finally, the Fourth Circuit agreed with the district court that the Board was not deliberately indifferent under Davis, which is a high standard that requires an official decision by the school no to remedy the student-on-student harassment. The response to the harassment must be clearly unreasonable in light of the known circumstances. Because the school investigated every single incident of harassment of which it was informed, disciplined the offenders, and assigned a paraeducator to accompany S.B., the school acted reasonably. School administrators are entitled to substantial deference when they execute a disciplinary response to student-on-student bullying or harassment, so requests from parents for stronger discipline is not enough to make the school’s chosen actions clearly unreasonable. The Fourth Circuit decided that no reasonable juror could find that the school was less than fully responsive to S.B.’s situation.

T.L.’s Claim of Retaliation in Violation of § 504

Because there was no direct evidence of retaliation, T.L. had to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework to make a prima facie case of retaliation by showing (1) that he engaged in protected activity, (2) that the Board took an adverse action against him, and (3) that the adverse action was causally connected to his protected activity. The Board did not dispute that T.L. engaged in a protected activity, advocating for S.B., a student with disabilities. The Fourth Circuit found that the Board’s decision not to rehire T.L. to teach the summer physical education class was a materially adverse action. Nevertheless, the Fourth Circuit agreed with the district court that no reasonable jury could find the necessary causal connection between the Board’s adverse action and T.L.’s protected activity. The Board proffered the legitimate, non-retaliatory reason for its decision that they needed one male and one female physical education teacher for the summer, and that another male had more experience than T.L. T.L. attempted to rely on the temporal proximity between the reassignment and the protected activity to show the causal connection, but timing alone cannot defeat summary judgment once an employer offered a legitimate, non-retaliatory reason.


Because the Fourth Circuit agreed with the district court that no reasonable juror could find that the school was deliberately indifferent to the student-on-student harassment of S.B. and no reasonable juror could find that there was a causal connection between T.L.’s protected activity and the adverse action against him, the Fourth Circuit affirmed the judgment of the district court granting the Board’s motion for summary judgment.

By: Scott R. Bauries*


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.[1]

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.[2]  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.[3]  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’s constitution should be subject to judicial enforcement, the proper focus of judicial review should be the general duty of care imposed by each state’s constitution, rather than the nebulous qualitative terms contained in each state’s education clause.[4]  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’s 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.

I.  Constitutional Rights and Duties

In the part below, I begin by laying out the familiar conceptual distinction between positive rights and negative rights.[5]  This distinction sets the stage for the more difficult, and more important, distinction between positive rights and positive duties.[6]  These distinctions help to show that the affirmative duty provisions in state constitutions are sui generis in constitutional law and theory, and they therefore require a unique approach to judicial review.  This approach asks us to step back from the hopelessly indeterminate, and therefore unhelpful, text of such provisions and to consider their overall structure and the political theory of government embodied in that structure, and then calibrate the appropriate level of judicial deference that is owed to legislative action under these provisions.[7]

A.     Negative and Positive Constitutional Rights

Scholarship of constitutional law is permeated with “rights talk.”[8]  This is true in the federal context, where the Constitution places limitations on the use of federal power and often speaks of rights specifically and therefore seems to call up a rights-focused analytical framework.  But it is also true in the scholarship of state constitutions and the national constitutions adopted primarily after World War II, which, in addition to containing express limitations on the use of government power through the articulation of rights, expressly call for the use of government power to achieve certain social policy goals.[9]  In this latter case, a rights-focused approach is neither inevitable nor necessarily desirable, though rights talk has overwhelmingly dominated the debates over interpretation and enforcement.[10]

One important conceptual distinction that has informed the debate has been that between negative constitutional rights and positive constitutional rights.  As Professor David Currie explains, a negative right allows its holder to prevent government action against the holder, while a positive or affirmative right entitles its holder to demand government action.[11]

Numerous scholars, and some courts, have criticized this distinction, arguing that if it exists, the distinction is not a categorical one but rather a continuum.[12]  Under this widely held view, even ostensible negative rights require some government action or expenditure to effectuate them; therefore, all rights have some affirmative character.[13]  For example, many criminal defendants are entitled to legal representation provided by the state.  If this is so, the continuum theorists argue, then the right to counsel is at least in part a positive right.[14]

Similarly, in order for individuals to be able to freely speak their minds, it is necessary that public spaces are provided, are maintained, and are made safe, for example by providing police protection to unpopular speakers to prevent a “heckler’s veto.”[15]  All of this requires government action and expenditure, and all of it is, in some sense, mandated by the Constitution; therefore freedom of speech is a kind of positive right, the argument goes.[16]  But this view misperceives the distinction it proposes to eliminate (the distinction between rights against government action and rights requiring government action).[17]  Both the right to counsel and the right to protection of unpopular speakers are practical applications of underlying rights against government action, and neither of these “rights” would exist in any situation where government were not to first act against an individual.  The right to the “Assistance of Counsel,” as articulated in the Sixth Amendment, is not a free-standing entitlement but is predicated on one’s first having the status of a “criminal defendant.”[18]  No person has this status automatically by birth.  Rather, the state must act to place this status on a person.

The right to protection against a “heckler’s veto”—which in extreme cases would seem to require that a city police department expend resources to protect unpopular speakers from physical harm—is the best example of a true positive right, if it were to actually require the expenditure of public resources absent prior state action.[19]  But as a matter of current law, it does not.  Most cases identified as heckler’s veto cases involve police attempting to remove an unpopular speaker from a public forum to protect the speaker’s safety—to act against an individual speaker.[20]  In these cases, it is generally true that the remedy against “hecklers” of unpopular speakers cannot be to remove the speaker, as that would be a direct infringement of the speaker’s right to speak.  Thus, it is a prohibition against government action—the same as any other constitutional right.

The closest that the Supreme Court has ever come to recognizing the protection against heckler’s vetoes as a positive right was its holding in Forsyth County v. Nationalist Movement.[21]  The Court held that city officials were not permitted to charge an unpopular group more for a speaking permit than more mainstream groups on the grounds that more police protection would be needed for the unpopular group.[22]  In practical terms, this holding means that cities wishing to expend resources to protect speakers from hecklers must expend greater resources to protect unpopular speakers, whether these cities wish to do so or not.  Stated this way, police protection against hecklers sounds like a positive right.  In response to the Court’s decision in Nationalist Movement, however, a city might decide that it must provide police protection for no fee or a nominal fee, or it might decide not to provide police protection at all.  If a city chooses to provide protection, it is not permitted to decide the price of that protection based on the message to be protected.  Nothing in the Nationalist Movement case, or in any other heckler’s veto case, however, makes it a constitutional compulsion for a city to provide police protection for speakers—popular or unpopular.[23]

Thus, neither of these rights—the two best candidates thus far offered for positive federal constitutional rights—can be violated by the government unless the government first takes some action.  In the case of the right to counsel, the government must first arrest a suspect and then propose to put the suspect on trial for a crime.  Only then does the government’s obligation to provide counsel arise.[24]  If the government wishes to avoid providing counsel to indigent defendants, it need only stop arresting them.  The fact that this solution would be impractical or unwise does not make it unconstitutional.  If failure to arrest at all would be constitutional, and if an arrest and a criminal charge are preconditions to the right to counsel, then the right to counsel is not itself a positive right but is a precondition for the exercise of discretionary state power.

In the case of freedom of expression, the analysis is similar.  Concepts of freedom of expression as a fully self-actualized opportunity to speak one’s mind in an open, available, safe place with lots of people listening are simply not part of the right, and the Court has never so held.  Were the law otherwise, then an individual speaker could compel a municipality to set up and fund a public park where none currently exists.  True, governments around the country act, as a matter of policy, to provide safe venues for expression, but as with the arresting of criminal suspects, the practical value of the government activity does not render it constitutionally compelled.

Professor Frank Cross has explained this distinction succinctly.[25]  As Cross explains, distinguishing between a positive right and a negative right is as simple as imagining a world without government or where government action is impossible.[26]  In such a world, a negative right could not possibly be violated, while a positive right would always be violated.  In explaining the distinction this way, Cross elucidates a vital point: our rights are legally meaningless[27] until we decide against whom these rights run, and what obligations these rights place on the entities against whom they run.[28]  Only then can we decide whether our rights are enforceable in court and to what extent they may be enforced.  Applying this conception to the rights to counsel and police protection against a heckler’s veto leads to the conclusion that both are extensions of decidedly negative rights, respectively against conviction by trick or surprise and against viewpoint discrimination.  Neither can possibly be violated in a world without government action.

Therefore, although it is common in legal scholarship to reject “formalistic” distinctions between positive rights and negative rights,[29] the distinction clearly exists in American constitutional law, and it provides a useful way of talking about the relationship between the individual and the activist state in the modern world.[30]  The distinction between positive and negative rights is familiar, even though not universally accepted.[31]  The next Subpart focuses on a less explored distinction, but one that is more meaningful if we hope to understand the meaning of affirmative obligations in state constitutions—the distinction between positive rights and positive duties.

B.     Positive Constitutional Duties

Aside from rights, plausible arguments exist that all constitutions impose duties on the government.  Like the more commonly discussed categories of positive rights, such duties require government action of some sort.  In fact, it is plausible to claim, as some scholars have suggested, that positive rights impose correlative positive duties on government.[32]  However, this correlation does not necessarily run both ways.  It is possible to conceive of governmental duties that exist but do not run to individuals or create any individual rights to enforcement.  The President’s duty to “take Care that the Laws be faithfully executed”[33] and the obligation of the United States to “guarantee to every State in this Union a Republican Form of Government”[34] under the Constitution come to mind.  In the discussion that follows, I focus my attention on the prospect of a legislative duty to legislate as a free-standing duty that does not depend on the existence of any individual positive right.

The idea of a legislative duty to legislate does not find much purchase in legal scholarship, though as an idea it has an impressive pedigree.  Legislative duty can be thought of as a central part, or at least a natural implication, of the work of such diverse political theorists as Immanuel Kant, Thomas Hobbes, John Locke, Jeremy Bentham, John Stuart Mill, and Thomas Paine, among others.[35]  Legal philosophers such as John Finnis have developed normative accounts of the duty to govern from concepts of natural law,[36] and these accounts have gained significant texture over time due to the work of later scholars.[37]  Nevertheless, the bulk of the philosophy of law regarding the broad idea of governing focuses on three concepts separate from legislative duty—individual rights, legislative authority, and the individual’s obligation to obey law.[38]

In state and federal constitutional law, the scholarship is heavily focused on individual rights and government powers and pays very little attention to the prospect of governmental duties.[39]  For example, a mountain of scholarship exists on the contested subject of unenumerated rights under the Constitution, but a comparative molehill of scholarship exists examining the related idea of unenumerated legislative duties.[40]

This dearth of commentary is not for the lack of importance of the idea of legislative duty.  Professor Robin West points out that the idea of legislative duty, encompassing both a duty “to legislate—and to do so toward particular ends,” forms one of the pillars of liberal political thought.[41]  West further points out, however, that, to the extent that the extant scholarship hints at conceptions of positive legislative duties as a constitutional principle, it does so either as a way of illustrating the content of presupposed individual positive rights or as a way of “tak[ing] the judiciary off the hook,” by establishing residual moral legislative duties where the judiciary cannot enforce what would otherwise be positive constitutional entitlements.[42]  She pointedly asserts that, in the absence of a plausible argument for the analytically prior existence of individual positive rights, constitutional theorists generally neglect discussion of legislative duties to legislate.[43]

In federal constitutional law, this omission of duty-based analysis is somewhat understandable, as the Constitution does not contain many affirmative obligatory statements.[44]  It may be, then, that the Constitution simply will admit no affirmative legislative duties to legislate, perhaps because the Framers chose to enumerate few affirmative obligations in the Constitution, none of which expressly require Congress to enact legislation.[45]  However, as West points out, even to the extent that the Constitution embraces unenumerated legal principles, the scholarship has single-mindedly focused on rights, leaving the idea of unenumerated duties unexplored.[46]  Perhaps the structure of the federal document—as a grant of limited and enumerated powers—forestalls an “unenumerated duties” interpretation where it may not foreclose an “unenumerated rights” interpretation.[47]

State constitutions, however, both in their legislative articles and, more commonly, in separate policy-focused articles directed at state legislatures, contain numerous explicit affirmative obligations, and such provisions also have appeared prominently in national constitutions adopted around the world in the years since World War II.[48]  The prevalence of these provisions has allowed for both courts and commentators to consider whether legislative duties exist and whether they may be enforced.  But the bulk of scholarly commentary has defaulted to discussing these provisions in a rights-focused frame, leaving the equally important idea of legislative duties relatively unexplored.[49]

In state constitutional education cases, the courts more often directly address the concept of legislative duty, as words such as “shall” often appear in state constitutional education clauses.  But, as the next Part demonstrates, these courts generally conceive of the legislative duty in absolutist terms, requiring the establishment of a school system that qualitatively seems to the justices in its actual operation to be “adequate,” or some variant thereof, and usually purport do so in the context of individual rights.[50]  This substance-oriented, absolutist approach often fails to achieve the adequacy that the courts claim to seek and sometimes even results in the courts conceding the issue back to the legislatures after prolonged institutional conflicts.[51]  In the next Part, I argue that rather than approaching affirmative duty provisions in state constitutions in this way, state courts should address affirmative duties as the fiduciary duties they are by switching from such a substance-oriented approach of review to a more process-oriented form of review.

II.  The Education Duty

In education, we speak often of constitutional rights and seldom of constitutional duties.[52]  The “right to education” is frequently held up as an exemplar of a positive constitutional right created by state constitutions, and cases purporting to adjudicate education rights claims are held up as examples that positive constitutional rights are enforceable and subject to effective judicial remediation.[53]  The consequences of this rights-focused approach have been to improperly focus state judiciaries on the substantive results of legislative enactments, rather than on the legislative process, and this substantive focus has led some courts to overreach their institutional boundaries and other courts to abdicate their judicial role.

The discussion below evaluates state judicial approaches to the enforcement of state constitutional education clauses in light of text, along with the history and political theory underlying state constitutionalism.  I conclude from this review that state courts have both overenforced and underenforced the norms expressed in the affirmative duty provisions of their constitutions,[54] and that recognizing the nature of legislative duty as a fiduciary duty will guide these courts to more fruitful adjudicatory approaches.  I begin with state constitutional text.

A.     State Constitutional Education Clauses

1.     Education Clauses and Education Rights

Every state constitution imposes upon the state legislature some obligation to provide for an education system.[55]  State constitutional education clauses often contain qualitative terms, such as “thorough,”[56] “efficient,”[57] “suitable,”[58] and “adequate,”[59] that describe the legislature’s duty to provide for an education system.  In addition, education clauses uniformly state their terms affirmatively, and most often as mandatory directives rather than as admonitory encouragements.  For example, the Minnesota Constitution provides, “[I]t is the duty of the legislature to establish a general and uniform system of public schools.”[60]  Most of the other state education clause provisions take similar forms, using duty-based terms such as “shall” to impose obligations and directing these terms toward the establishment and maintenance of a system of schools.[61]

Not all state constitutions contain unambiguously mandatory language, however.  Several state constitutions employ mandatory terms, such as “shall,” but direct such terms to hortatory goals.  For example, the California Constitution provides, “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”[62]  Iowa’s education clause contains similar language,[63] as do the education clauses of Nevada[64] and New Hampshire.[65]  Other state constitutions contain a kind of patent ambiguity in their provisions.  For example, in its Education Article, North Carolina’s constitution contains an admonition that education “shall forever be encouraged,”[66] followed by a mandatory requirement for the establishment of a “general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.”[67]  But the Declaration of Rights of the same constitution unambiguously establishes an individual “right to the privilege of education,” followed by a state duty to “guard and maintain that right.”[68]  Similarly, Wyoming’s constitution provides an admonition that a right to education “should have practical recognition,” followed by a mandatory legislative duty to “encourage means and agencies calculated to advance the sciences and liberal arts.”[69]

Vermont’s education clause does not contain any mandatory terms at all.  It provides, “Laws for the encouragement of virtue and prevention of vice and immorality ought to be constantly kept in force, and duly executed; and a competent number of schools ought to be maintained in each town unless the general assembly permits other provisions for the convenient instruction of youth.”[70]  This provision has the feel of a completely optional encouragement, but it might nevertheless be read as mandatory because of the existence of the “unless” clause, which suggests that the admonitory goals must be pursued in the absence of alternative legislative action of a similar character.  Alabama’s education clause is even more explicit in denying any compulsion for legislative action, stating:

It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense, nor as limiting the authority and duty of the legislature, in furthering or providing for education, to require or impose conditions or procedures deemed necessary to the preservation of peace and order.[71]

However, this language was added to Alabama’s constitution right after Brown v. Board of Education[72] was decided, and it is followed by language explicitly authorizing segregated schooling.[73]  One trial court in Alabama has held that, due to its racist purpose, the education clause as amended following Brown may not be applied and that the original education clause found in the pre-Brown version of the state constitution, which contains squarely mandatory language,[74] must be applied instead.[75]

Many observers have argued that these provisions create positive individual rights to educational services.[76]  However, the overwhelming majority of state constitutions direct their affirmative duty or goal statements at the legislature or the state, with no mention at all of individuals.[77]  Still, numerous scholars and many state supreme courts have taken the existence of these affirmative provisions as establishing a judicially enforceable individual positive right to education in each state.[78]  Few have questioned whether the duty to provide education might exist independently of an individual right to receive it.[79]

Professors Steven Calabresi and Sarah Agudo come the closest to a full examination of whether education deserves the status of an individual “right” under state constitutions.[80]  Employing a jural correlativity analysis,[81] the authors conclude that, given the ubiquity of affirmative duty provisions among state constitutions at the time of the adoption of the Fourteenth Amendment, the conclusion that education is a right “deeply rooted in American history and tradition,” and is thus a “fundamental right,” is almost inevitable.[82]  Specifically, in discussing Prigg v. Pennsylvania,[83] the authors state, “Thus, Justice Story’s opinion stood for the proposition that an individual right can give rise to government power, which is far more tenuous than our claim that a government duty to educate implies an individual right to be educated at public expense.”[84]  Of course, as an analysis of the availability of a substantive due process right to education in federal court, Calabresi and Agudo’s analysis does not squarely address the more direct question of whether the state constitutional provisions they rely on create stateconstitutional rights, but it goes a good distance in that direction.  Only one state court, the Supreme Court of Washington, has taken the correlativity analysis this far and has specifically concluded that an individual positive right to education exists under the state constitution.[85]  However, many other state courts have at least stated that such rights are created by educational duty provisions, either as “fundamental rights” in the equal protection context (as Calabresi and Agudo did) or as free-standing individual positive rights in the adequacy context.[86]

Counterbalancing these favorable treatments of the question of education rights under state constitutions are few, but powerful, rejoinders based in textualist and original intent analysis.  Professor John Eastman’s work over the past decade establishes the proposition that no individual rights to education existed under state constitutions until very recently.[87]  Eastman’s work is based on the textual features of the education clauses of state constitutions and judicial interpretations of these textual features.[88]  Eastman demonstrates that, through much of history, the education clauses of state constitutions were stated in hortatory, rather than mandatory, terms.[89]  Only since the Civil War have more mandatory provisions become common, and only since the late 1960s have even these provisions been construed in the courts as establishing individual rights—typically the “fundamental rights” familiar to federal equal protection jurisprudence.[90]

Professor Jon Dinan provides originalist support for Eastman’s conclusions through his careful and comprehensive review of the available convention debates for the best evidence of state constitutional framers’ intent in adopting education provisions.[91]  Dinan’s analysis leaves very little room for one to conclude that such provisions were intended by their drafters and adopters to be judicially enforced by individual rights holders.[92]  As Dinan points out, rather than seeking to establish judicially enforceable provisions, the vast majority of state constitutional drafters appear to have worked to prevent the substantive components of their proposed provisions (e.g., requirements for “adequacy,” “thoroughness,” “efficiency,” “sufficiency,” etc.) from becoming judicially enforceable.[93]

Taken together, the work of these two scholars makes a strong case for categorically rejecting the recent move in the state courts to enforce the qualitative provisions in state constitutional education clauses as substantive rights provisions.  Nevertheless, it is possible, surveying the provisions extant in state constitutions today for not only text but also structure and underlying political theory, to come to a more nuanced conclusion—one that recognizes the difference between specific substantive requirements and general substantive goals, either or both of which may potentially form aspects of a legislative duty to legislate.

As outlined above, the provisions in today’s state constitutions are overwhelmingly worded in mandatory terms, such as “duty” and “shall.”  While such provisions (with the single exception of North Carolina’s) do not explicitly establish individual positive rights, they certainly purport to establish affirmative legislative duties, and these duties may be judicially enforceable.  It is a familiar interpretive principle that, where a legal text is clear and unambiguous, a court should not delve beneath such text to derive the intent of its drafters.[94]  Though they may be vague as to the content of the duty, the mandatory provisions are certainly clear at least in establishing a legislative duty to provide for education.  Even the hortatory education clauses at least admonish the states to take education seriously in determining how to prioritize state appropriations and policy determinations,[95] and such admonishments might themselves be judicially enforceable, were a principled theory to undergird such enforcement.[96]

In any event, the provisions exist and will continue to generate judicial interpretations.  Thus, it behooves the scholarly community to assist with the proper conceptualization of both the mandatory and admonitory provisions.

2.              The Challenges of Enforcement and Remediation

I now turn to the judicial interpretation and enforcement of these state constitutional provisions.  I briefly review the path that brought these provisions into the state courts for review, and I show that the approaches that state courts have taken in the existing cases overlook the character of the duties they purport to enforce and ultimately devalue the idea of an individual right to education.

Education finance litigation involves constitutional challenges to state education funding systems, where the ultimate goal is an increase or reallocation of statewide education funding.  The conventional account of this litigation holds that it has proceeded through three “waves” of reform.[97]  Recently, this “wave” metaphor has drawn scholarly criticism.[98]  However, if one avoids the common flaw of assuming a clear line of demarcation between each wave and accepts that each case may draw from theories dominant in one or more waves alternatively, then the metaphor remains useful as an explanatory tool.

Under this metaphor, the first wave involved challenges brought in federal and state courts based on the Equal Protection Clause of the Fourteenth Amendment.  School finance litigation, as currently conceived, is the progeny of the decades-long development of institutional reform litigation in the federal courts.[99]  As Professor Owen Fiss pointed out years ago,[100] institutional reform litigation began in earnest[101] with the seminal education rights case Brown v. Board of Education.[102]  As Professor Abram Chayes explained in his article on the topic, the judge in institutional reform litigation does not so much adjudicate the case as manage it.[103]  Although courts do issue their own injunctions, an institutional reform claim most often results in a negotiated settlement agreement, which the court formalizes into a consent decree—a device that effectively orders performance of the settlement agreement—thus converting any breach of the agreement into a potential contempt of court.[104]  In such cases, the judge either assumes monitoring of the compliance with the injunction directly or appoints a special master to handle the monitoring on the ground.  This monitoring can extend for years or even decades.[105]  Out of the resistance to Brown, the form developed as federal judges issued injunctive remedial orders or consent decrees binding local school districts and other public entities to achieve long-term, structural changes to remedy widespread past harms with persistent present effects.[106]

Once these large-scale desegregation orders gained acceptance, reformers turned their eyes toward arguments based on socioeconomic equality, pressing claims in federal court relying on the Equal Protection Clause that education was a fundamental right and wealth was a suspect classification, and hoping that courts would apply strict scrutiny to state educational finance schemes.[107]  The Supreme Court closed the federal door on these types of challenges in San Antonio Independent School District v. Rodriguez,[108] holding that education is not a federal fundamental right,[109] and wealth is not a suspect classification for the purposes of analysis under the Equal Protection Clause.[110]  Relying on these holdings, the Supreme Court in Rodriguez applied rational basis review and upheld Texas’s school finance system, despite broad inequalities in funding, based on what the Court determined to be the legitimate governmental objective of preserving local control over educational decision making.[111]

The denial of strict scrutiny review of educational funding inequalities in federal courts had the immediate effect of directing all education finance litigation to state courts; this litigation was pursued in a second wave of reform, involving primarily equity-based challenges based on the equal protection or uniformity provisions of state constitutions.[112]  These challenges were designed similarly to the federal institutional reform litigation that spawned Rodriguez, with large plaintiff groups seeking broad structural injunctions to equalizing funding.[113]  These “second wave” challenges met with varying levels of success, typically depending on whether education was found to have the status of a fundamental right in the state—the same determination that was ultimately dispositive in Rodriguez.[114]  Ultimately, however, litigants generally migrated away from the equality-based strategy in favor of a new strategy: suits based on the absolute inadequacy of education spending.[115]  These challenges make up the “third wave” of litigation-based reform, and adequacy-based theories currently remain dominant in education finance reform litigation.[116]

Adequacy-based challenges ask state courts to interpret and enforce the quality terms of a state constitution’s education clause.  Along with the duty-based language discussed above, each state’s education clause may contain one or more terms of quality that describe the goals of the legislative duty, such as “thorough,”[117]“efficient,”[118] “suitable,”[119] “adequate,”[120] and “high quality.”[121]  The most difficult aspect of an adequacy claim is therefore the inherent indeterminacy in the language used to frame each state’s command.  Empirical studies have repeatedly been unable to document any influence that differences in the quality terms that exist in state constitutional education clauses have on the results of adequacy cases.[122]  States with comparatively weak-sounding education clause language—such as Kentucky[123]—have generated judicial decisions invalidating the entire state educational system,[124] while states with comparatively strong-sounding language—such as Illinois[125]—have generated judicial decisions rejecting the very idea of a judicial role in enforcing education clause language.[126]  Moreover, courts choosing to engage the education clause substantively, as the Supreme Court of Kentucky did, tend to reach for lofty-sounding, but often unrealistic, starkly countertextual, and even ahistorical, interpretations of the constitutional language.[127]  Education policy claims are particularly susceptible to this danger, as few judges likely relish the idea of publishing an opinion minimizing the importance of education or the legislature’s responsibility for it.

Given both the indeterminacy in constitutional language and the understandable tendency to reach for lofty and aspirational standards, approaching the education clause substantively gives rise to a significant concern—whether a state court may, consistent with the separation of powers, mandamus or otherwise enjoin a legislature to raise or allocate additional revenue for the state’s education system where the court sees current funding levels as not “thorough,” “efficient,” “suitable,” “adequate,”  or “high quality.”[128]

Facing this concern, courts have taken one of three paths.[129]  About a third of courts have dismissed cases asking for such enforcement on grounds of non-justiciability, concluding that, because affirmative duty provisions are directed at state legislatures and because their terms are so subjective, these legislatures are vested with complete and unreviewable discretion.[130]  Another third or so have engaged the merits of the claims and chosen either a deferential form of review—such as the federal “rational basis” test, upholding the legislation against the challenge[131]—or a non-deferential form of review, construing the education clause as an absolute command to create an “adequate” system of schools (or some variant of the term).  These courts ultimately hold against the state and use that holding as a justification for a public law injunction to legislate the system into constitutionally valid status.[132]  A final third have engaged in review of the merits of such cases, applied a non-deferential form of review, and found the state constitution violated, only to step back at that stage and deny the plaintiffs any sort of directive remedial order against the legislature.[133]

Proponents of this third way tout its ability to engage state legislatures and the judiciary in an ongoing “dialogue” as to the meaning of the state constitution.[134]  Proponents favor the dialogic approach because it ostensibly allows the courts to engage in a collaboration with the coordinate branches of government, and therefore mitigates separation of powers problems resulting from interbranch conflicts.[135]

Recently, Professors Charles Sabel and William Simon offered a thoughtful defense and reconceptualization of the dialogic, or what the authors term the “experimentalist,” model.[136]  Sabel and Simon argue, in part, that institutional reform litigation[137] in state courts under state education clauses succeeds because courts have abandoned the traditional model of institutional reform in these cases.[138]  Professors Sabel and Simon further argue that in the successful institutional reform cases, including, prominently, state court education clause litigation, courts do not perform a directive monitoring role.[139]  Rather, courts in these cases issue orders setting substantive goals and then step back and allow for the parties to experiment with different strategies for achieving these goals.[140]  This process of experimentation results in the formation of what Sabel and Simon term “new publics” made of interested stakeholders both within and outside the party structure of the case.[141]  These “new publics” stand as alternatives to the “control groups” that ordinarily materialized in Chayesian institutional reform litigation to control the remedial process, which scholars have criticized as harmful to democratic processes due to the control exercised over public policy by designated groups of plaintiffs’ lawyers.[142]

Though encouraging, the optimistic accounts of this new form of institutional reform litigation give short shrift to three concerns.  The first is that the new types of judicial orders that create what Sabel and Simon call “destabilization,” stripped of the gloss that might be placed upon them by comparing them to the hyperspecific and directive orders of Chayesian structural injunctions, nevertheless cannot be anything other than top-down edicts.[143]  At a certain point, a legislature may not decide for itself not to pursue or accomplish the substantive “goals” set out in one of these orders.  The goals, ostensibly at least, are operationalizations of judicial mandates, either expressed or implied, and they carry with them the latent, yet still potent, power of the court.

Second, in school finance litigation at least, the “new publics” that have developed in response to plaintiff-friendly judgments have been strikingly similar to the “old publics” that filed each suit in the first place.  The lawyers for the plaintiffs and the interest groups often at the heart of the cases, if permitted, stay closely involved during the remedial process, often returning to the court not directly for periodic reporting but for relitigation of the remedy, where they are unsatisfied with legislative efforts resulting from goal-oriented judicial orders.[144]  The cases often remain adversarial, rather than cooperative, and their progress continues to be directed by an identifiable “control group” of lawyers even where a judge issues a dialogic order.  Thus, although the days of detailing the square footage of a prison cell in a remedial order appear to be gone,[145] the new experimentalist process looks very much like the old command-and-control process in most other ways.

Finally, for all of the rhetoric of individual rights that exists in the cases, few individual plaintiffs, if any, ever receive any direct relief for the proved violation of their own individual rights to education.  In these dialogic or experimentalist cases, courts do not order any particular action to remedy any individual harms.  Rather, as Sabel and Simon describe, courts merely set statewide substantive quality goals and allow the political actors subject to the order to pursue these goals.[146]  At no point does a court order that the educational situation of a named plaintiff be set right.  This lack of specification of the remedy, while undoubtedly satisfying to judges looking at conflicts with legislatures, is destructive to the legitimacy of rights adjudication.  From the perspective of an individual plaintiff, the court has held that the plaintiff has a right and that the right has been violated.  But the court has not offered any particularized relief for the violation, and indeed has even left the ostensible violator partially in charge of determining how the violation will be remedied.  Inevitably, the right is devalued at best and eliminated at worst.[147]

Defenders may claim that plaintiffs are at peace with this adjustment of the normal process of litigation and that, as public interest representatives, or as members of new publics, plaintiffs naturally will feel vindicated by the progress and attention to their issues that a dialogic judicial decree causes.  This may be true in some cases, but it is not true in all.  For example, when the Supreme Court of Idaho held that state’s school system unconstitutional and proceeded to engage the destabilization process that Sabel and Simon advance,[148] the plaintiffs certainly did not accept the lack of direct remediation of the violation of their rights.  Instead, they filed suit in federal court against the justices of the Supreme Court of Idaho, alleging violations of their fundamental right to a remedy.[149]  Although the suit was ultimately dismissed on Rooker-Feldman Doctrine[150] grounds, it stands as a powerful rejoinder to those who would dismiss the interests of plaintiffs who are told that they have rights and that these rights have been violated, but who receive no specific relief.

Moreover, courts employing the experimentalist approach have continued to be confronted with separation of powers problems.  Some of the primary courts exemplifying the experimentalist approach have even ultimately bowed to these pressures and withdrawn ongoing judicial supervision, either by declaring that the state is now in compliance with the constitution based on a lenient standard of review that would have upheld the system in the first instance[151] or by re-affirming that the constitution is not satisfied, but holding that further court involvement is not necessary.[152]

In the final analysis, then, the dialogic or experimentalist approaches to remediation have presented the same institutional concerns as specific remedial injunctions.  In each case, because the courts make substantive judgments of the inadequacy of the state school system, the courts must also directly or indirectly supervise the substantive content of legislative policies.  Further, in each case founded on individual rights, the courts have subverted the idea of individual rights after adjudicating these rights to be violated, thus devaluing them.  Faced with these remedial issues and the inevitable risks to their institutional capital, it is understandable that a number of state courts have decided to avoid adjudicating these claims altogether, holding them to be nonjusticiable.[153]

Another approach is possible, one that protects the judiciary from encroaching on legislative functions where judges merely disapprove of the outcomes of legislative deliberations, but protects the judiciary’s ability to correct gross failures of political will in extreme cases.  To work, however, this approach must take into account the true constitutional status of education in each state.  Despite all the talk of individual rights to education, education clause litigation, as currently conceived, is not really about individual rights.  Like all other constitutional questions concerning affirmative provisions, it is about systemic duties to the public as a whole.  The next Subpart develops a theory of the nature of a systemic affirmative legislative duty and applies this theory to state constitutional education clauses.

B.     Education as a Systemic Duty

1.     The Importance of the Proper Conception

A right entitles a specific person to a specific thing, be it the action or the forbearance of another.  A negative constitutional right, therefore, entitles its holder to thegovernment’s forbearing from acting against the holder in some way, and a positive constitutional right entitles its holder to the government’s action on the holder’s behalf.[154]  In contrast, a duty obligates its holder to act or forbear from acting but does not necessarily entitle another party to any specific action or forbearance as to that party.[155]  In the world of positive constitutional duties and positive constitutional rights, this distinction makes an enormous difference.

If the affirmative provisions that exist in state constitutions and in some national constitutions are construed as rights provisions, then these provisions should entitle specific individuals to demand specific goods or levels of service to themselves.  Otherwise, in what sense are education rights, “rights”?[156]  If, however, education clauses are read as purely duty provisions, then they obligate government to pursue the ends identified but do not necessarily entitle any person to a particular level of government service.

The recognition of this distinction allows us to further recognize a vitally important point: no state supreme court has truly recognized anything that could be accurately described as a “positive right to education” under its state constitution.  Over the course of the second wave of school finance litigation, the language of fundamental rights was employed extensively.  Although some state courts came to different conclusions than the Supreme Court did in Rodriguez as to whether education should be characterized as a “fundamental right,” in each of these cases, as well as in the many cases that came to the same conclusion as the RodriguezCourt, the courts approached the question with the same purpose—to determine the level of equal protection scrutiny to apply.[157]  Of course, “fundamental rights” justifying strict scrutiny in equal protection cases are not the same thing as “positive rights.”[158]  Moreover, to the extent that individual rights justify individual remedies, especially in the positive entitlement context, no state supreme court has ordered an individual remedy pursuant to a judgment of unconstitutionality under its state constitution’s education clause.[159]  Acknowledging this set of facts does not mean that education may never be recognized as an individual entitlement under state constitutions, but it does mean that the “fundamental rights” cases do not establish the kind of “education right” (i.e., a positive entitlement) that the literature seems to assume exists in every state.[160]

Once we are able to distinguish between what state constitutions clearly and textually provide (an education duty) and what they may imply, but may also not imply (a positive education right as an individual entitlement), then we can more easily understand the pressures that state courts are put under when they review education clause claims and the choices that courts make in resolving such claims.  We can also better understand why the enterprise of education clause litigation has largely been a failure, or at least a massive disappointment.[161]

Accepting my descriptive conclusion—that state constitutions do not textually provide for more than duties and that no state supreme court has truly analyzed its constitution and found that a positive individual entitlement right to education exists—this leads to a further question.  In a world of state legislative duties that do not correlate to individual entitlements, how is a court to approach judicial review?

The first hurdle that would be presented in any such regime would be to determine who can sue to force the legislature to perform its duty.  Nearly every state court that has encountered a school finance adequacy suit has had to resolve the question of standing.  Now, it is fairly well established that the standing doctrine in state courts is often more forgiving to plaintiffs than in federal courts.[162]  Some of the reasons for this are textual—for example, explicit authorization for the rendering of advisory opinions in some state constitutions.[163]  Some of the reasons are historical—several states have authorized generalized grievance litigation, especially to challenge taxation legislation, since long before the Supreme Court began focusing its eye on standing under Article III in the mid-twentieth century.[164]  Accordingly, as it turns out, the standing issue has not presented much of a problem for education clause plaintiffs.

The second hurdle, however, as discussed above, would be the more significant question of whether and how legislative action in performing its systemic duty may be adjudicated where the challenge is based on the qualitative terms of the education clause.  In other words, assuming that the legislature has a compulsory duty to legislate on education and that the legislature has so legislated, if this legislation falls short of what a proper plaintiff thinks is “adequate,” or some variant thereof, may the courts decide whether the plaintiff is correct?  And if so, may the courts remediate the harms of this inadequate legislation?  Like the first hurdle, this hurdle must be cleared in nearly every education clause suit that is filed.  Unlike the standing question, however, it is often resolved against the plaintiff’s interest, either at the threshold stage or at the remedial stage.

At times, state supreme courts have indeed approached education clauses squarely as the sources of legislative duties, rather than (or in addition to) rights.  The most forceful of these analyses was rendered in 1978 by the Supreme Court of Washington, which held that the education clause in the state constitution “does not merely seek to broadly declare policy, explain goals, or designate objectives to be accomplished.  It is declarative of a constitutionally imposed Duty.”[165]  States drawing from the Washington analysis have at times spoken of rights and at other times spoken of duties or muddled the two concepts, but all have approached their clauses in similar ways—as demands on the legislature to meet the substantive standards stated within them.[166]

The Supreme Court of Kentucky, in perhaps the seminal third wave decision, held that the word “efficient” in the state’s education clause imposed an obligation on the state’s legislature to provide an “adequate” education, with the goal being:

to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.[167]

Some states have adopted the Kentucky formulation wholesale;[168] others have adapted it;[169] still others have created their own formulations.[170]  But as in Kentucky, state supreme courts have generally evaluated compliance with their education clauses by examining whether the state school system in fact evidences these sorts of qualitative elements,[171] usually in comparison with professionally derived standards[172] or the systems of other states.[173]  States choosing not to engage this substantive evaluation of the qualitative adequacy of the state’s school system have generally done so on the theory that, despite the existence of an education clause in the state’s constitution, the matter is nonjusticiable.[174]

With due respect to the hard work that it has taken over the years to define, develop, advocate for, and apply these qualitative standards, this substantive evaluative approach is inconsistent with the nature of the duty imposed by each state’s education clause.  Just as inconsistent, however, is the set of decisions dismissing education clause challenges as nonjusticiable, as these decisions both render the obligations stated in a state’s education clause nugatory and on their own terms fail to take account of the broader legislative duties underlying even provisions stating specific affirmative legislative obligations.  In the Subpart below, I flesh out these broader duties, which are fiduciary in character.

2.     The Fiduciary Theory of Representative Government

Legislative duties are fiduciary duties.  That is, power exercised by a legislative body is a delegated or entrusted power, which the legislature must use in the best interests of the entrustor—the people.[175]  This idea is as old as Western political philosophy.[176]  It had its origins in Plato’s “philosopher kings,”[177] found its way into Roman political philosophy through Cicero,[178] and made it into English political thought first through King James I.[179]  Once there, the fiduciary concept became a subject of political thought in England and developed further during the centuries leading to the American Revolution, culminating in the political philosophy of John Locke.[180]

John Locke is nearly universally regarded as being among the most important political philosophers to the thinking of the Framers of the United States Constitution,[181] as well as to the drafters of the early state constitutions.[182]  Along with contemporaries such as Montesquieu, Locke gave us several important ideas—the separation of powers, inalienable rights, and the power of the people to alter their government.[183]  In Locke’s conception of governance, the people agree amongst themselves, by majority, to cede a portion of the powers and rights of which they individually possess in the “state of nature.”[184]  The result of this compact is the formation of a government where the legislature exercises “supreme power,” but where it may use such power only within the boundaries of the people’s entrustment.[185]  In fact, Locke refers to the legislative power specifically as a “trust,” carrying with it only “a fiduciary power to act for certain ends.”[186]  Like all trusts, this trust confers upon the legislature both power (or discretion) and duty—fiduciary duty, to be specific.[187]

Locke’s conception of the relationship between the people and their legislature is most explicit in section 149 of his Second Treatise on Government.  There, he summarizes the features of government by consent:

Though in a constituted commonwealth standing upon its own basis and acting according to its own nature—that is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.  For all power given with trust for the attaining an end being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security.[188]

Two implications of this expression of the fiduciary construct bear further discussion.

First, it is clear that Locke viewed the fiduciary duty of the legislature—and, by extension, the government—to be an overriding limitation on the legislature’s actions, superseding any independent or specific limitations that might also exist in the constitution.  That is, under a Lockean view, it would be possible to comply with a specific limitation on government action—staying within the bounds of an enumerated power, for example—while nevertheless violating the overriding fiduciary duty to act in the interests of the public at all times—for example, by acting within an enumerated power to benefit a private actor at the expense of the public.

Second, it must therefore also be true that, where a more specific limitation on government power is not subject to enforcement by the courts in its specific terms—for example, because those terms are indeterminate or vague—the overriding fiduciary duty may provide an avenue for judicial relief.[189]  This idea that the “public interest” or a “public purpose” is an overarching requirement for all legislation is the idea that undergirded much of the Supreme Court’s Lochner-era jurisprudence,[190] and it continues to form the basis of jurisprudence under the Takings Clause (though the “public use” requirement is explicit there),[191] the Necessary and Proper Clause,[192] and the “congruence and proportionality” requirement under section five of the Fourteenth Amendment.[193]

The Lockean conception of the social compact—the conception that most influenced the Framers, as well as their state constitutional forebearers—views the legislative power as a public trust granted to the legislature for exercise only in the public’s interest.  Under the United States Constitution, this general fiduciary duty is limited by the terms of the initial entrustment.  The doctrine of enumerated powers is one expression of this limit.  The reservation of certain individual rights is another.  These explicit limitations are analogous to the circumscribing of the authority of a trustee in a trust instrument.  The fiduciary character of the relationship between the people and the state adds to these limitations the general limitations on the fiduciary’s power to act—or to refrain from acting—that exist by default.[194]  Because the nature of the arrangement is one of fiduciary trust, then, the specific limitations must be read in light of the more general limitations that all fiduciary relationships place on fiduciaries, specifically the duties of care and loyalty.[195]  I turn to these next.

a.  Legislative “Loyalty”

Throughout the history of constitutional law, and particularly in the most recent century of this history, courts have enforced aspects of Congress’s and state legislatures’ duties of loyalty.  A fiduciary duty of loyalty entails a fiduciary’s responsibility not to act against the interests of his principal, whether by self-dealing[196] or by a more general breach of trust, such as the taking of an act against the principal, regardless of direct benefit to the fiduciary.[197]  Applied to legislative action, the fiduciary principle of the duty of loyalty would seem clearly to ban self-interested legislating, such as the use of the Spending Power to earmark funds for a particular legislator’s district,[198] except, possibly, where the earmark also accomplishes a public purpose.[199]

More importantly, the duty of loyalty forms a plausible foundation for the various doctrines of negative rights enforcement developed in the federal courts and adopted by most state courts.  Where a government actor acts against the enumerated right of an individual, it inherently acts disloyally to that person—against that person’s interests.  However, the government’s fiduciary duties do not run to individuals; they run to the polity as a whole.[200]  Accordingly, while a government action against the rights of an individual may be presumptively unconstitutional, even action clearly in conflict with the individual’s rights may be valid if the interests of the polity outweigh such interests of the individual.

We operationalize this principle through various doctrinal tests, such as strict scrutiny.  For example, suppose a state legislature enacts a law making it a crime to falsely claim that one has been awarded a military medal.[201]  An individual is arrested when he is observed wearing a false Congressional Medal of Honor and claiming to those who ask that he won the medal for valorous service in Afghanistan.  He is prosecuted, and he challenges the state’s power to prosecute him as a violation of his right to free expression.[202]  If the state’s duty were to run purely to the individual, then this prosecution would be a clear violation of his rights and therefore a breach of the duty of loyalty.  But because the state’s duty runs to the polity as a whole, the state’s action may be justified as a valid attempt to serve the interests of that polity.  In effect, the state may justify disloyalty to the individual only with a showing of its overarching loyalty to the collective.

Assuming that the speech in question does not fall under one of the exceptions to the speech protections of the First Amendment,[203] which themselves are based on ex ante balancing of public and individual interests,[204] the government will survive the challenge as long as it can establish a compelling government interest to which the criminal prohibition in question is narrowly tailored.[205]  Perhaps the public interest in preserving the value of the honors it bestows on valorous individuals outweighs the individual’s right to speak falsely about his own honor.[206]  How the case comes out is not important for this discussion—only that the proper inquiry is whether the government is acting loyally to the public interest or whether it is acting against that interest by depriving a person of a reserved right without a compelling justification sounding in the overall public interest.  The legislative duty of loyalty, then, is embodied in the jurisprudence of negative rights.

b.  Legislative “Care”

If legislative loyalty is about not acting against the interests of an individual citizen unless the general interests of the public align with the action, then legislative care is about acting sufficiently responsibly in the pursuit of the general interests of the public.  In private fiduciary law, the duty of care is based on concepts of negligence.  A trustee, in administering a trust, must exercise the care “that would be observed by a prudent man dealing with the property of another.”[207] Similarly, a corporate director must act “with the care that an ordinarily prudent person would reasonably be expected to exercise in a like position and under similar circumstances.”[208]

The concepts are difficult to apply to the negative rights context, in which the problem is not the government’s lack of care but rather the government’s acting directly against a member of the polity.  However, scholars have shown that the duty of care fits well in certain contexts in the exercise of governmental powers.[209]  The fit is even stronger in the area of affirmative legislative duties to legislate.

Affirmative legislative duties resemble instruments of entrustment or incorporation, and they reflect the same sorts of concerns that cause entrustors to specify duties or purposes in such instruments.  Although the law of fiduciary relationships is permeated with default duties, settlors and incorporators, along with other entrustors, often have reasons to direct the work of their fiduciaries toward certain ends.

In the trust context, a settlor may specify to a trustee that the trust funds must be invested in certain ways.[210]  The law holds the trustee to the duty to follow such directives of the settlor, but continues to impose a general duty of care on the trustee in doing so.[211]  In the corporate-director context, the articles of incorporation may or may not so specify, but a profit-making company has “as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.”[212]  Some corporations, particularly charitable corporations, go further than this general principle of the corporate purpose and specify a purpose in the articles of incorporation.[213]  Similarly to trustees, though, the directors of both such corporations must pursue the stated purpose, or the underlying corporate purpose to seek profit, while exercising due care.[214]

Applied to affirmative duties to legislate on particular topics, it is a natural conclusion that the statement of a duty in a constitution directs the legislature’s action at a particular desired policy end, just as a similar statement of purpose might direct the action of a trustee or corporate board, while preserving the underlying fiduciary duties that the trustee or board also possesses.  In the legislative context, the imposition of an affirmative duty to legislate on a particular topic may be thought of as a mandate with strict terms that must be complied with, or as a direction of the legislature’s actions toward an end, coupled with the sort of discretion that a trustee or corporate director is expected to exercise with reasonable care even in the presence of a purpose-driven mandate.  In the Subpart below, I examine one such affirmative constitutional duty to legislate—the education duty that exists in every state constitution—and I show that the latter approach is best fit to this duty.

3.     The Education Duty

By now, it cannot be gainsaid that the Constitution was highly influenced by the fiduciary conception of governance.[215]  Examining the current text of various state constitutions adopted at differing times over the course of American history reveals a pervasive adoption of Lockean entrustment ideals in those documents as well.  Almost every state constitution, regardless of when adopted, begins with a prefatory clause that declares the establishment of the state government as a willing act of “the People,”[216] and every state constitution contains at least one clause affirming the Lockean idea of popular sovereignty as the foundation of state governmental power.[217]

These features are far from dated.  Indeed, even Hawaii, the state most recently admitted to statehood, includes an explicit Lockean clause in its state constitution.[218]  And Georgia, the state with the most recently adopted constitution (its eleventh version) makes the Lockean entrustment ideal even more explicit: “All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.  Public officers are the trustees and servants of the people and are at all times amenable to them.”[219]

Thus, far from being a relic of the colonial and early national days, the core ideal of government power as an entrustment of fiduciary duties from the people to the state is present and explicit nationwide.

State constitutions are permeated with the language of governmental power as a “public trust.”[220]  But we also see elements of distrust of legislative fidelity to the public’s entrustment.  Although it is axiomatic that state legislative power is “plenary,”[221] at varying levels in state constitutions, we see the familiar, broad, power-granting language that we find in the Constitution.[222]  As G. Alan Tarr points out, because state power is plenary in its default sense, specific grants of legislative power are best read not as authorizations, but as limitations.[223]  Enumerations of power being unnecessary in a state constitution, they function most clearly as the people’s assertion of control over their fiduciaries.

Also ubiquitous are detailed procedural requirements for legislating—for instance, requirements that legislation address a single subject, that each house keep a journal, or that a bill be read a certain number of times out loud prior to passage.[224]  Many state constitutions also contain non-right-based provisions placing substantive limitations on legislation, some of which explicitly call for judicial involvement.  For example, in stating the prohibition of “special” legislation that exists in nearly every state constitution, the Michigan Constitution explicitly calls for nondeferential judicial review:

In all cases when a general law can be made applicable, a special law shall not be enacted except as provided in section 2.  Whether a general law could have been made applicable in any case shall be judicially determined without regard to any legislative assertion on that subject.[225]

So, the people of Michigan have enshrined, as a constitutional principle, both the duty to legislate only in the general public interest and the policy of zero judicial deference to legislative defenses against claims of breach of this duty.  A reasonable reading of this provision is that the people, though entrusting the power of legislation to the state legislature, remained skeptical that this power would always be used in the public interest, and that, rather than calling for revolution in cases where the trust was broken, as Locke would have counseled,[226] the people favored a judicial resolution.  The call for no judicial deference evinces a presumption that, where special legislation has been enacted, the legislature has breached its fiduciary obligations.

State constitutions should therefore be viewed as strongly Lockean documents.  Examining the text and structure of state constitutional documents reveals a strong affirmation of the Lockean ideals of popular sovereignty[227] and the people as a repository of inalienable rights.[228]  Nearly every state constitution contains such affirmations explicitly in the text.  Several state constitutions go further, explicitly denoting state power as a “public trust” or some variant of the phrase,[229] and even in some cases reserving to the people an explicit “right of revolution.”[230]  Finally, many state constitutions, in Lockean fashion, proclaim that the rights they enumerate are “excepted out of the power of government,” as the retained rights of an entrustor are excepted out of the powers of a fiduciary.[231]  Reading their provisions more holistically reveals that state constitutions evince a distrust of legislative use of power that comports well with the residual fear of legislative tyranny that animated the Lockean conception of the legislature as a duty-limited fiduciary of the public trust.[232]

Once we understand that state constitutions stand on fiduciary foundations, it remains to inquire whether the fiduciary duties of the legislature have any operation where a state constitution has stated a more precise duty to legislate, as all state constitutions do on the subject of education, or whether the terms of the stated duty should be the sole bounds of enforceability.  As discussed above, education duties are stated in either mandatory or admonitory terms, depending on the state, and both mandatory and admonitory education clauses contain varying standards of quality.[233]  In the past, scholars and some courts have attempted to categorize the fifty states based on whether qualitative language in state constitutional education clauses calls for more or less effort from the state legislature in funding the education system.  Under this categorical framework, each state’s education clause is grouped with others depending on the strength of its qualitative terms.

Gershon Ratner was the first to group the state education clauses together into four such categories for the purpose of enforcing the duties therein.[234]  Ratner explains the categories as follows:

Provisions in the first group contain only general education language and are exemplified by the Connecticut Constitution: “There shall always be free public elementary and secondary schools in the state.”  Provisions in the second group emphasize the quality of public education, as illustrated by the New Jersey Constitution: “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this State between the ages of five and eighteen years.”  Provisions in the third group contain a stronger and more specific education mandate than those in the first and second groups.  Typical is the Rhode Island Constitution, which requires the legislature “to promote public schools and to adopt all means which they may deem necessary and proper to secure . . . the advantages . . . of education.”  Finally, provisions in the fourth group mandate the strongest commitment to education.  This group is exemplified by the Washington Constitution: “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders.”[235]

Later scholars adopted Ratner’s approach and applied it specifically to school finance litigation, the primary means by which states now interpret their education clauses in the courts.[236]

These scholars, and intuitively many observers, predicted that the differences in state constitutional education clause text would make for differences in enforcement.  However, empirical scholarship has not borne out the predictions that these categorical methods would have justified.[237]  States with lower-duty provisions have been the locus of sweeping judgments and multidecade court supervision of remedies.  For example, New Jersey’s constitution calls only for a “thorough and efficient” education,[238] but the state’s supreme court has issued decisions in no less than twenty-five appeals and has supervised the remediation of the system since the late 1970s with no end in sight, and New Jersey is one of the highest spending states in the country.[239]  Similarly, lower-spending states with higher-duty education clauses, such as Georgia,[240] have adjudicated in favor of the state in education clause litigation based on legislative deference and separation of powers.[241]  Nevada, a low-spending state, has not experienced any direct challenge to the adequacy of its education system,[242] though it has what would be termed a Category II education clause,[243] similar to that of New Jersey,[244] which has been embroiled in litigation over its education clause for more than four decades with no end in sight.[245]

Undeterred, prominent theorists of school finance have continued to search for cases in which the text of the state constitution has made a predictable difference in the outcome.[246]  Of course, examples exist, but no trends in the cases suggest that similar language in state constitutional education clauses leads to similar results.  Thus, one is left to wonder why.  The most plausible explanation for the lack of predictability in results based on constitutional language is that the language at issue is hopelessly indeterminate.[247]  Courts applying “strong-sounding” constitutional language are about as likely to issue rulings abdicating judicial review as courts applying “weak-sounding” constitutional language and about as likely to issue plaintiff-friendly judgments.

Given the indeterminacy of the language used in each education clause—and in light of Dinan and Eastman’s findings to the effect that the provisions were likely not designed to provide courts with qualitative standards for enforcement—it is most plausible to conclude that the education clauses in the states, if they are to be judicially enforced, must be enforced in their general, and not their specific, terms.  Thus, rather than attempting to figure out what “thorough” means, and whether “thorough” means something different from “adequate,” “sufficient,” “ample,” or “high quality,” courts should recognize that the specific terms chosen in each education clause are best read as general commands or admonitions to the legislature to seek what the South African Constitution terms the “progressive realization” of a goal.[248]

However, based on the fiduciary nature of the legislative responsibility, this “progressive realization” should be directed not at the specific adjectives contained in a state’s education clause but at the general goal these terms attempt to reflect—a system that educates the people as the beneficiaries of a public educational trust.[249]  The next Part considers how courts might approach education clauses from this perspective, focusing on the education duty as an example from which principles of enforcement of other affirmative duties may be derived.

III.  Enforcing the Education Duty

Most state courts that have encountered education clause litigation have expressed the familiar maxim of state-court judicial review that every presumption in favor of the constitutionality of a challenged statute should be indulged; that is, a statute must not be held unconstitutional unless its infirmity is shown “beyond a reasonable doubt.”[250]  This rule of review stems from the background conception of state legislative power as “plenary.”[251]  Interestingly, though, the courts never connect up the idea of plenary legislative power with the political theory that underlies it—Locke’s theory of the “supreme” legislature,[252] a theory that indeed justifies broad power and discretion, but which also imposes fiduciary duties.[253]  Because of this failure, the courts fail to properly calibrate the deference that is owed to the legislature, resulting in both overenforcement and underenforcement of state constitutional education clauses.

If courts are to accept my account, then the natural question that will follow is, of course, what this acceptance will mean for judicial review in the states.  As discussed above, the law of negative rights has developed doctrines quite consistent with a fiduciary theory of government.  The various doctrines by which courts enforce negative rights and weigh these rights against broad public interests appear to be applications of a legislative (and executive, in many cases) duty of loyalty.  Explicit affirmative duties, however, require courts to elucidate the more difficult concept of a legislative duty of due care[254] in the context of the explicit affirmative duty.  I turn to this concept now.

A.     The Legislative Standard of Care

The law recognizes many types of relationships as fiduciary relationships, and each carries with it a slightly different level of obligation.[255]  Some, such as a trust with one settler, one beneficiary, and one trustee, are simple.[256]  Others, such as mutual funds and ERISA-protected benefit plans, are highly complex, multilevel arrangements.[257]  Some fiduciary duties arise due to a subordinate agency, such as the fiduciary duty of loyalty that an employee owes an employer while employed.[258]  Others arise due to a personal representation, such as the fiduciary duty of an attorney to a client.[259]  But the fiduciary relationship that fits best as an analogy for the entrustment of legislative power to a legislature by the people is the relationship that arises between a corporate board of directors and the shareholders of a corporation.

The parallels between corporate boards and legislatures are too compelling to dismiss.  Both legislatures and corporate boards serve in a representative capacity, elected by those represented and entrusted to make decisions on their behalf, with the entrustors retaining the ultimate check on the use of this authority by virtue of their power to replace the representatives at periodic elections.[260]  Both have duties to make policy in the best interests of the entire body they represent, not just the majorities who elected them, and both must balance competing considerations in allocating scarce resources to maximize these interests.  Like corporate boards, legislatures would see their functions greatly impaired through constant litigation seeking post-hoc reversal or modification of decisions made in the course of carrying out these duties, and both would benefit from qualified protection from judicial overreach in evaluating policy decisions.[261]  Indeed, Professor Franklin Gevurtz has demonstrated that state constitutional representative governance owes much to the practices of the corporations that colonized Massachusetts and Virginia, as the charters of these corporations eventually became the first state constitutions.[262]  If the legislature of a state is a fiduciary, it makes sense to treat the state legislature similarly to the private fiduciary to which it is most analogous—a corporate board.

For a corporate board, the duty of due care is defined, at least in the practical sense, by the business judgment rule.  Although the business judgment rule is highly controversial and is the subject of reams of corporate law scholarship,[263] resolving the many disputes that the rule in its many forms has generated is far beyond the scope of this Article.  For current purposes, I employ the business judgment rule in its idealistic sense, as stated in the American Law Institute’s Principles of Corporate Governance.[264]  Under this formulation of the rule, a director will not be held liable for a decision made on behalf of the corporation if the director “is informed with respect to the subject of the business judgment to the extent the director or officer reasonably believes to be appropriate under the circumstances,”[265]and if the director “rationally believes that the business judgment is in the best interests of the corporation.”[266]

Applied to the legislative context,[267] this formulation might seem familiar.  It contains elements of both information gathering and rationality.  These elements have found their way into different doctrines of constitutional law in the federal courts in the past.  Information gathering calls to mind the jurisprudence of Congress’s enforcement power under section five of the Fourteenth Amendment, a test of the scope of Congress’s discretionary legislative authority to legislate.[268]  Of course, the rational belief element calls to mind the rational basis test, a test applicable to claims of violations of individual negative rights of relatively low importance.[269]  But how might the business judgment formulation make these familiar doctrines work differently in the context of affirmative duties to legislate?

Education duty claims are not claims that a power has been exceeded or that a right has been violated—the traditional forms of constitutional claims, both of which sound in the duty of loyalty.  Rather, education duty claims are claims that a state legislature has acted insufficiently, either by not legislating at all (and thereby arguably violating a duty of obedience to the legislative command),[270] or by legislating insufficiently well (and thereby violating the duty of due care).[271]

In some sense, it can be said that state courts have all along been engaging in attempts to enforce a legislative duty of care in school finance litigation.  Decisions in favor of plaintiffs often reference care-based concepts, such as “inaction” and “insufficient action.”[272]  But the decisions in favor of plaintiffs have been undertheorized, and as a result, the courts reaching the merits have overenforced state constitutional education clauses.  Examples of this overenforcement abound, but we need review only one to get a sense of the problem.  In Kentucky, the state constitution’s education clause states merely that the legislature has the duty to establish “an efficient system of common schools.”[273]  Despite this minimalist language, the Supreme Court of Kentucky in 1989 issued a sweeping declaration, not only that the state education legislation that allowed for wide and irrational disparities in funding was unconstitutional but also that the word “efficient” called for a system containing nine principles, one of which incorporated seven “capacities” or learning goals.[274]  This ruling was then adopted or relied on in nearly every other successful state court case for the next two decades nationwide, regardless of differences in the substantive language of the education clauses among the states.[275]

On the other side of the ledger, state courts that approach education clause litigation in the traditional vein—whereby rights that are violated require remediation, and whereby large-scale violations require large-scale remediation, such as the structural injunctions familiar from federal institutional reform litigation—have balked.  Based on both remedial concerns and the indeterminacy of education clause language, about a third of state courts presented with education clause claims have dismissed the claims as nonjusticiable.[276]  Where activist courts such as Kentucky’s have overenforced their constitutions, restraintist courts such as Illinois’s have underenforced theirs.  Applying the corporate model of the duty of care allows for a workable path between these two extremes.[277]

Primarily, under the business judgment rule, the corporate board’s duty of care is a procedural duty to carefully consider evidence and to remain attentive to business realities in making decisions.[278]  This is a duty to avoid negligence, but a particular kind of negligence—negligence in failing to consider relevant information reasonably available to the director-fiduciary.  As noted above, the Principles of Corporate Governance add to this consideration of material and relevant information the idea that the ultimate decision must be one that the director “rationally believes” to be in the best interests of the corporation and shareholders.[279]  This standard has the feel of a subjective, good-faith test, but the word “rationally,” rather than the word “believes,” does all of the work.  Nevertheless, the idea that the ultimate decision must be “rational” or based on a “rational consideration” or “rational belief” is simply a way for courts to gauge whether the material and relevant information required to be considered has, in fact, been considered.

For example, imagine a corporate decision based on overwhelming and completely uncontradicted information indicating that voting in favor of a proposed merger would bankrupt the company.  But imagine, further, that the directors vote in favor of the merger, and the company goes bankrupt.  In such a case, it would be difficult to argue that the board failed to consider relevant information reasonably available to it if the information were presented to the board and this presentation were reflected in the minutes, perhaps accompanied by several board members’ statements that they viewed a merger to be in the best interests of the shareholders.  Rather, in voting in favor of the predictably disastrous merger, the board would appear to have acted with something other than a “rational belief” that the corporation’s best interests would be served by a “yes” vote.  Where an ultimate decision does not rationally follow from the information considered, then a recitation in the minutes of a board meeting that the information was in fact carefully considered should not be credited as true, and the decision should be subject to judicial correction.  Thus, even gilded with the substantive-sounding language of “rational belief,” the character of the corporate duty of care remains procedural at its core.

B.     Adjudicating Affirmative Duties

As they generally do in the corporate context, state supreme courts should approach all education clause claims against state legislatures with the skepticism reflected in the political question doctrine.  Education clause language is inherently indeterminate, meaning different things to different judges, and current approaches to such indeterminacy have either added so much content to the clauses as to make their initial terms meaningless or have caused judicial abdication, rendering the language nugatory.  With the foregoing analysis in mind, state courts should defer to legislative discretion in applying the nebulous terms of education clauses, but they should draw from private corporate law to apply a state-specific approach to deference distinct from the overly harsh practice of total abstention from the merits that results from an unthinking application of the federal political question doctrine.[280]

Where state constitutional affirmative legislative duties are subject to challenge, courts should limit initial review to process, rather than substance.[281]  Few large-scale legislative enactments occur without being preceded by a significant amount of information gathering and consideration.  The committee structure of Congress has largely found its way into state legislatures, and these bodies have adopted the norms of consideration and reconsideration of issues before adoption that are familiar to Congress.  Where this sort of careful consideration occurs in enacting a state school finance system, the system should not be struck down as “inadequate” because, despite the enactment process, flaws remain.  Rather, a state education finance plan should be struck down only where the legislature, in enacting a school finance system, failed to consider relevant, material information, or where its ultimate plan could not have been rationally based on the actual information presented to it.

Of course, such a deferential approach will make plaintiff victories significantly rarer, but where a case presents a wholesale challenge to the overall “adequacy” of a state financing system—as Professor William Thro puts it, a “facial challenge”[282] to school financing legislation—plaintiff victories should indeed be rare.  This conclusion need not mean that plaintiffs cannot challenge failures of equal protection, and it need not even mean that individual plaintiffs cannot challenge the inadequacies of their own individual educational services from the state.  It does, however, mean that a court challenge to an entire legislative scheme based on the substantive terms of a state’s education clause should meet a high burden of establishing a breach of the legislature’s duty of care.

Thus, to win an education clause case, a plaintiff should show that the legislature has essentially abdicated its role by failing to act at all in the face of obvious needs, or by acting without due care by failing to consider relevant, material, and available information about the state’s existing education system’s needs and flaws.[283]  Importantly, such showings would be much easier to make in the legislative context, where the press keeps a watchful eye on legislative deliberations and information gathering, than in the business context, where much deliberation occurs in private meetings.  Such press attendance would operate as a powerful check on cynical, pro forma types of “deliberation” and information presentation designed only to satisfy the procedural standard as a subterfuge.

With this in mind, any court determining that the constitution has been violated should not feel constrained to abstain from the remedial phase, as many courts in the current regime have.[284]  Rather, courts finding for the plaintiffs should make specific orders for remediation, as any separation-of-powers-based concerns should have been addressed through the process of overcoming such a deferential scheme of review.  The most natural such order would be an injunction against the use of the current unconstitutional legislative scheme, which would provide a strong signal (albeit not a direct judicial command) to the legislature that it must act immediately to replace the legislation.  Such an injunctive order need not even run directly against the legislature itself to be effective, and it would therefore not present the kinds of separation of powers problems that worry courts where the prospective remedy might be a requirement to increase funding, which inherently must run against the legislature.[285]

C.     Enforcement and Systemic Change

Remediation that consists solely of an order preventing the use of the unconstitutional statutory scheme is likely to accomplish an important purpose of judicial review of fiduciary action—informing the entrustors that the fiduciary has breached their trust.  According to Professor David Law, constitutional courts serve a vital role in protecting popular sovereignty by signaling to the populace that a constitutional principle has been breached by legislative action.[286]  Challenges to the popular monitoring of legislative action include the lack of information available to the public as to the meaning of constitutional provisions and the facts surrounding a legislative act.  Courts help to remedy this lack of information by providing recognizable, authoritative, and public signals as to whether the legislature has acted unconstitutionally and, if so, to what extent the people should be alarmed about it.[287]  Such signaling enables the people to assert their popular sovereignty by (1) coordinating in disapproval, and if necessary, (2) coordinating in action (e.g., voting, protesting, rebellion, etc.).[288]

Law’s conception of the function of judicial review fits neatly into the fiduciary framework that I have outlined here.  True to Locke’s idea of a residual right of revolution in the people, Law sees the function of the judiciary as providing information to the people that they cannot secure for themselves, that they may deliberate about it and act in ways stopping short of outright revolution, but signaling to the public’s fiduciary that there has been a breach of the public trust.[289]  The model I have outlined here enables this sort of signaling, but incentivizes state courts to be careful about sending a signal by making the path to that signal difficult and by limiting the judiciary’s role to the quality of the legislative process rather than the quality of its product.

Some might worry that, if accepted, the framework presented here will lead to the obliteration of valuable differences among state constitutions, thereby disrespecting the intent of the divergent groups of state constitutional framers over the course of American state constitutional history.  But, assuming that such differences are both real and worth preserving,[290] an approach to the review of affirmative duties that applies an underlying, generalized fiduciary duty of care to the enforcement of such duties does not inevitably eliminate such differences.  For example, in determining whether relevant, material information was in fact considered by the state legislature in making education policy, a court in, say, Montana could legitimately view a very different set of considerations as relevant and material than a court in, say, New York.  Thus, accepting and enforcing the underlying general fiduciary duty of care does not portend the elimination of independent state constitutional jurisprudence in each state.

Proponents of the experimentalist reform of state school systems through the courts may also view the approach set forth above as dangerous to their goals.[291]  However, the key to the experimentalist accounts is that a judicial decision destabilizes the status quo, thus allowing for (and incentivizing) extrajudicial cooperation from varied groups of stakeholders.[292]  If I am correct, then these proponents should not see my approach as an affront to theirs.  Although the experimentalist approaches thus far have assumed a merits judgment based on the quality terms of a state’s education clause, their approach does not require the judgment to be founded on the quality terms.  The experimentalist approach is an approach to remediation, not adjudication of the constitutional violation, and a procedural approach to judicial review can ground an experimentalist approach to remediation just as easily as a substantive approach to merits review can.

Moreover, the “destabilization” that proponents of the experimentalist approach laud as the factor that makes these suits successful may even be more effective if it occurs with less policy direction.  In their model, destabilization works because it leads to protracted and cyclical negotiations between “new publics,” presumably those stakeholders with the best interests of the institution in mind.  But it seems that destabilization alone is preferable to destabilization and negotiation under court supervision, as the former allows the political process to operate naturally once destabilized, while the latter relies on our collective suspension of political processes in the making of policy.  Such destabilization is much more likely to occur where a state supreme court disallows the continued use of a flawed school finance scheme than where it simply declares its disapproval of the scheme but does not enjoin its use.

More importantly, a persistent problem with education clause litigation as currently practiced is that quality social-science research concerning the needs of students and schools, along with the costs of providing for such needs, comes to light for the first time in litigation, or even during the remedial process, too often and then only as selected and presented by adversarial litigants whose interests may be narrower than those of the overall public.[293]  A cottage industry of school funding experts has emerged over the past few decades, and these experts now do most of their work within the litigation process, either offering testimony to show that state school systems are inadequate, or performing “costing-out” studies pursuant to remedial plans after states lose suits or sign consent decrees.[294]  Experimentalists hold that the consideration of this evidence during litigation and during the remedial process allows for a collaborative approach to public policy making, and I do not disagree.  Nevertheless, it would be far preferable for this collaborative consideration of relevant and material social-science information to occur outside the adversarial litigation context, and a fiduciary approach incentivizes this kind of consideration while policy is being developed.

Under the fiduciary approach, the courts retain an important role, but not a veto over state legislative discretion.  Where a state legislature considers a costing-out study during the legislative process but rejects that study, for example, a fiduciary approach would at least require the legislature’s representative in court to identify a principled reason for the rejection of the study.  This reason would then become a part of a visible, public court record, and if the reason were unconvincing, then the public would have its signal that its legislative fiduciary does not have the interests of its entrustors in mind.  Ultimately, the goal of both the approach I have laid out and the experimentalist approach is to get the legislature to perform its constitutional duty, and my way of providing the judiciary with an institutionally sound path to involvement secures this goal.


In this Article, I have presented a fiduciary model of judicial review and applied it to the affirmative duties that American state constitutions impose on state legislatures to legislate in the field of education.  The lessons of this analysis, however, apply to any affirmative legislative duty to legislate, and the fiduciary principles outlined above should serve as a guide for judicial review outside the education context where explicit affirmative legislative duties to legislate are at issue.[295]  Of course, important questions remain, most prominently whether the duty-based analysis conducted above forecloses further rights-based analyses.  I am inclined to answer that question in the negative, as the existence of a duty neither necessitates nor forecloses the existence of a right, but a full analysis of this difficult question will have to await future work.

Properly applied, a fiduciary approach has the potential to balance the judiciary’s reluctance to exceed its traditional role with the need for limited, fall-back judicial review of grossly deficient or completely absent legislative deliberation on an important, often fundamental, policy issue.  However, it also recognizes that legislative acts that apply statewide are often imperfect, that such acts often result from numerous compromises and negotiations, and that the interest groups that feel that they are on the losing end of such compromises have a powerful motivation to bring lawsuits.  Courts should default to a position of noninvolvement in these cases, but should retain the ability to become involved where the legislative deliberative process has broken down.  The public trust deserves no less, but state courts should do no more.

       *            Robert G. Lawson Associate Professor of Law, University of Kentucky.  My heartfelt thanks to the participants at the Washington University Junior Faculty Colloquium and the National Education Finance Conference, as well as to Joshua Douglas, Nicole Huberfeld, Kent Barnett, William Thro, R. Craig Wood, Harold Lewis, and Justin Long for helpful comments on the manuscript at earlier stages.  Thanks also to the editors of the Wake Forest Law Review for their careful editing and to the University of Kentucky for supporting this research. Errors and omissions are, of course, my own.

   [1].           This view of representative government is now ascendant in the scholarship not only of constitutional law but also of other areas of public law.  See, e.g., Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary 23–51 (2011); Gary Lawson et al., The Origins of the Necessary and Proper Clause 56–57 (2010); Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. Rev. 117, 120 (2006); Evan Fox-Decent, The Fiduciary Nature of State Legal Authority, 31 Queen’s L.J. 259, 260–61 (2005); David Jenkins, The Lockean Constitution: Separation of Powers and the Limits of Prerogative, 56 McGill L.J. 543, 565–66 (2011); Sung Hui Kim, The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, 98 Cornell L. Rev. (forthcoming 2013); Ethan J. Leib & David L. Ponet, Fiduciary Representation and Deliberative Engagement with Children, 20 J. Pol. Phil. 178, 179 (2012), available at
/10.1111/j.1467-9760.2011.00398.x/pdf; Ethan J. Leib et al., A Fiduciary Theory of Judging, 101 Cal. L. Rev. (forthcoming 2013) [hereinafter Leib et al., Judging]; Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243, 247, 274, 284–87 (2004) [hereinafter Natelson,Agency]; Robert G. Natelson, The Government as Fiduciary: A Practical Demonstration from the Reign of Trajan, 35 U. Rich. L. Rev. 191, 192 (2001); Robert G. Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239, 245–46 (2007) [hereinafter Natelson, Welfare]; David L. Ponet & Ethan J. Leib, Fiduciary Law’s Lessons for Deliberative Democracy, 91 B.U. L. Rev. 1249, 1249–50 (2011); D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. (forthcoming Jan. 2013).

   [2].           Throughout this Article, I use the terms “positive” and “affirmative” interchangeably, as the scholarship does.  See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1133 (1999) (employing both terms throughout).

   [3].           See, e.g., id. at 1186 (using education as the exemplar of positive rights that can be enforced).  The literature on this topic is voluminous.  For three very recent treatments of the debates surrounding education litigation under state constitutions, see generally Scott R. Bauries, State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation, 18 Geo. Mason L. Rev. 301, 321–25 (2011); Derrick Darby & Richard E. Levy, Slaying the Inequality Villain in School Finance: Is the Right to Education the Silver Bullet?, 20 Kan. J.L. & Pub. Pol’y 351, 354–56 (2011); William E. Thro, School Finance Litigation as Facial Challenges, 272 Educ. L. Rep. 687 (2011).  Foreign courts have attempted to enforce other affirmative obligations, such as a positive right to housing.  See generallyGovt. of the Rep. of S. Afr. v. Grootboom 2001 (1) SA 46 (CC) (S. Afr.) (holding that forced evictions violate individual rights to housing and ordering the legislature to craft a plan for dealing with homelessness).

   [4].           I use the term “education clause” throughout to denote the clause in each state’s constitution that mandates the legislative provision for an education system.  See infra note 61 (citing the education clauses of the fifty state constitutions).

   [5].           This distinction tracks, but does not exactly duplicate, the familiar distinction that international law makes between “first generation” (or political) rights and “second generation” (or socioeconomic) rights.  See Jeffrey Omar Usman, Good Enough for Government Work: The Interpretation of Positive Constitutional Rights in State Constitutions, 73 Alb. L. Rev. 1459, 1464 (2010).

   [6].           This distinction is rarely made in the constitutional law scholarship.  In fact, as Professor Robin West explains, where constitutional law theorists mention affirmative legislative duties, they generally do so only after recognizing prior affirmative individual rights.  Robin West, Unenumerated Duties, 9 U. Pa. J. Const. L. 221, 224 (2006).

   [7].           My analysis excepts out of its prescriptions precise affirmative duties, such as the duty under the Florida Constitution to limit class sizes to a certain number of students depending on the grade.  Fla. Const. art. IX, § 1(a)(1)–(3).  As we shall see, most affirmative state and national constitutional provisions are much more vague, calling for a holistic approach to interpretation and construction.  See infra notes 62–74 and accompanying text.

   [8].           Mary Ann Glendon coined this term as part of her seminal monograph on the perversion of civil and political discourse through the overly casual rhetoric of rights.  See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 14 (1991).

   [9].           See, e.g., S. Afr. Const. ch. 2, § 29(1), 1996, available at (last visited Aug. 22, 2012) (“Everyone has the right to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible.”); Hershkoff, supra note 2, at 1187–89; Usman, supra note 5, at 1461.

   [10].         For a recent example of this tendency within a very well-argued and cogent article, one which is quite typical of the scholarly discourse in this area, see Usman, supra note 5, at 1461 (“Unlike their federal counterpart, state constitutions unambiguously confer positive constitutional rights.”).  As I will show, other than a few outlier provisions specifically mentioning affirmative rights, this conclusion—widely expressed in the scholarship—is based entirely on state constitutional language establishing affirmative legislative duties rather than individual rights.  In fact, only the North Carolina Constitution can reasonably be said to “unambiguously” establish a positive constitutional right to education.  See N.C. Const. art. I, § 15 (“The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”).  Illustrating the breadth of the acceptance of the point, at different points in his fine article, Usman cites numerous other scholars, including the leaders in the field of state constitutional law, as holding the same view.  See generally Usman, supra note 5.  As a further example of the tendency that exists among most scholars and courts, Usman begins his part on the positive “rights” that exist in state constitutions by listing several types of affirmative duties that state constitutions establish without mentioning rights, or even mentioning individuals.  See id. at 1464–65.

   [11].         See David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 874 (1986) (distinguishing between positive remedies for negative rights violations and positive constitutional rights themselves).

   [12].         See, e.g., Usman, supra note 5, at 1462–63.

   [13].         Id. at 1463.

   [14].         See Mark Tushnet, Social Welfare Rights and the Forms of Judicial Review, 82 Tex. L. Rev. 1895, 1896 (2004).

   [15].         See id.; see also id. at 1896 n.7 (explaining the term “heckler’s veto,” as coined by Harry Kalven, Jr.).

   [16].         Id. at 1896.

   [17].         See Currie, supra note 11, at 873.

   [18].         U.S. Const. amend. VI.

   [19].         Illustrating the contested nature of this point, Professor Tushnet, in using the example, introduces it with the conditional statement, “if free speech law rejects the ‘heckler’s veto’ . . . .”  Tushnet, supra note 14, at 1896.

   [20].         See Kunz v. New York, 340 U.S. 290, 311–12 (1951) (prohibiting the removal of the unpopular speaker from the public forum as a way of dealing with hecklers, but not mandating any other remedy or any remedy at all); see also Bachellar v. Maryland, 397 U.S. 564, 567 (1970); Cox v. Louisiana, 379 U.S. 536, 551–52 (1965); Niemotko v. Maryland, 340 U.S. 268, 282, 289 (1951); Hague v. Comm. for Indus. Org., 307 U.S. 496, 502 (1939); Richard A. Posner, Pragmatism Versus Purposivism in First Amendment Analysis, 54 Stan. L. Rev. 737, 742 (2002) (“[T]he Supreme Court has made clear that government cannot, by banning unpopular speakers in order to prevent disorder, allow a ‘heckler’s veto.’”) (citing Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134–35 (1992); Terminiello v. City of Chicago, 337 U.S. 1, 4–5 (1949)).  But see Niemotko, 340 U.S. at 288–89 (Frankfurter, J., concurring) (“As was said in Hague v. C. I. O., uncontrolled official suppression of the speaker ‘cannot be made a substitute for the duty to maintain order.’  Where conduct is within the allowable limits of free speech, the police are peace officers for the speaker as well as for his hearers.  But the power effectively to preserve order cannot be displaced by giving a speaker complete immunity.  Here, there were two police officers present for 20 minutes.  They interfered only when they apprehended imminence of violence.  It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd, whatever its size and temper, and not against the speaker.” (citations omitted)).

   [21].         505 U.S. 123 (1992).

   [22].         Id. at 134 (“The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content.  Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.”).

   [23].         See Kunz, 340 U.S. at 311–12 (prohibiting the removal of the unpopular speaker from the public forum as a way of dealing with hecklers, but not mandating any other remedy or any remedy at all); see also Bachellar, 397 U.S. at 567; Cox, 379 U.S. at 551; Niemotko, 340 U.S. at 289 (Frankfurter, J., concurring) (“It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd, whatever its size and temper, and not against the speaker.”); Hague, 307 U.S. at 502.

   [24].         U.S. Const. amend. VI.

   [25].         Frank B. Cross, The Error of Positive Rights, 48 UCLA L. Rev. 857, 863–78 (2001); see also Cass R. Sunstein, Against Positive Rights, in Western Rights?: Post-Communist Application 225, 225–32 (András Sajó ed., 1996).

   [26].         Cross, supra note 25, at 866.

   [27].         The varying debates about the moral and political status of rights are rich and interesting but beyond the scope of this Article.  For further reading on the moral status of rights, see generally Tibor R. Machan, Individuals and Their Rights (1989).  For further reading on the political dimension of rights, see generally Michael Freeden, Rights (1991).

   [28].         See Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1210–11 (2010) (making this argument as part of a textualist reading of the Constitution).

   [29].         See, e.g., Lynn P. Freedman, Reflections on Emerging Frameworks of Health and Human Rights, 1 Health & Hum. Rts. 314, 324 (1998).

   [30].         Nevertheless, another useful distinction, which may be more palatable to those who reject the former, is that between so-called “first-generation” and “second-generation” rights, with the former being political rights, such as the freedom of speech and religion, and the latter being primarily socio-economic rights, such as the right to education, health care, or a clean environment.  Usman, supra note 5, at 1464.  This distinction maps fairly cleanly onto the distinction between positive and negative rights, where negative rights (accepting my distinction for the sake of argument) are those rights traditionally viewed as first-generation rights, and positive rights are those rights traditionally viewed as second-generation rights.  I am certainly not the first to suggest the congruence of these ideas.  See, e.g., 1461.

   [31].         See supra notes 25–28 and accompanying text (discussing the critiques of the distinction).

   [32].         Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 108–09 (2008).

   [33].         U.S. Const. art. II, § 3.

   [34].         Id. art. IV, § 4.

   [35].         See Leslie Green, The Duty to Govern, 13 Legal Theory 165, 165 (2007) (adding John Finnis and Thomas Aquinas to the list); Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077, 1097–1108 (2004) [hereinafter Natelson, Public Trust] (adding other political thinkers such as Plato, Cicero, Aristotle, and Grotius to the list); Natelson, Welfare, supra note 1, at 245 (discussing Aristotle, Cicero, and Locke); West, supra note 6, at 221–23, 240 (discussing the named scholars); see also Ekow N. Yankah, When Justice Can’t Be Done: The Obligation to Govern and Rights in the State of Terror, L. & Phil. (forthcoming 2012), available at
?abstract_id=2009944 (discussing many of the scholars mentioned above, particularly Finnis, Aristotle, Aquinas, Hobbes, and Kant).

   [36].         John Finnis, Aquinas: Moral, Political, and Legal Theory 91 (1998); John Finnis, Natural Law & Natural Rights 246 (1980).

   [37].         Green, supra note 35, at 184; Natelson, Welfare, supra note 1, at 245; West, supra note 6, at 223; Yankah, supra note 35.

   [38].         See Green, supra note 35, at 166 (commenting that, given these other subjects of focus in the scholarship, the idea of duties to govern may seem “quaint”); Yankah, supra note 35.

   [39].         West, supra note 6, at 221.  Perhaps the one exception is the area of “positive rights,” where any such rights would seem to correlate by nature with affirmative government duties.  Nevertheless, even this burgeoning body of scholarship speaks of duties mostly as an afterthought and only in the context of fleshing out the content of positive rights—not the other way around.  See id. at 228.

   [40].         Id. at 221.

   [41].         Id. at 223.

   [42].         Id. at 228.

   [43].         Id.

   [44].         The few it does contain are the “Take Care” Clause, U.S. Const. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”); the Guarantee Clause (also called the “Republican Form of Government” Clause), Id. art. IV, § 4; and the Protection from Invasion Clause in the same section, id.  Each of these imposes a non-relative, substantive obligation on a branch of the federal government, or the federal government itself.  Of course, in addition to these more substantive obligations, the Constitution establishes various procedural obligations, such as that the President give the State of the Union Address periodically, Id. art. II, § 3; and that the Congress meet in session at least once each year, Id. art. I, § 4, cl. 2.  Other than these sections and a few other procedural requirements, the Constitution consists entirely of (1) grants of power to the various branches of government; (2) prohibitions on the use of such power in certain circumstances; and (3) reservations of rights.

   [45].         Congress is arguably required to enact legislation to fund the other branches of government based at least on the mentions of the compensation of the members of these branches.  See id. art. II, § 1, cl. 7; Id. art. III. § 1 (I am indebted to Justin Long for this insight).  But this requirement, if it is actually operative against Congress, is implied rather than express.  Although it can be argued that both the Guarantee Clause and the Protection from Invasion Clause, id. art. IV, § 4, operate as legislative duties to legislate, neither requires the enactment of legislation because neither is directed at Congress itself.  Further, the former of these clauses consistently has been viewed as nonjusticiable in the federal courts.  See, e.g., Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1916) (holding that the Guarantee Clause is a question for Congress rather than the judiciary).  This has had the effect of rendering the clause “a constitutional dead letter.”  See Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. Colo. L. Rev. 849, 852 (1994).

   [46].         West, supra note 6, at 228.

   [47].         But see Green, supra note 35, at 171 (outlining Finnis’s idea that the power to govern and the duty that resides in the people to obey gives rise to a duty to govern on the part of the entity holding the power to govern).

   [48].         See, e.g., S. Afr. Const. ch. 2, § 29(1), 1996, available at (“Everyone has the right to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible.”); see also Tushnet, supra note 14, at 1913–15.  See generally Usman, supra note 5.

   [49].         See generally Helen Hershkoff, Foreword: Positive Rights and the Evolution of State Constitutions, 33 Rutgers L.J. 799 (2002); Hershkoff, Positive Rights, supra note 2; Helen Hershkoff, Welfare Devolution and State Constitutions, 67 Fordham L. Rev. 1403 (1999) [hereinafter Hershkoff, Welfare Devolution]; Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law, 65 Temp. L. Rev. 1325, 1325 (1992) (“In the past two decades, many state supreme courts have addressed for the first time the import and meaning of the education articles of their state constitutions.  As a result, a new body of state constitutional law regarding the right to education has emerged.”); Molly S. McUsic, The Future of Brown v. Board of Education: Economic Integration of the Public Schools, 117 Harv. L. Rev. 1334, 1345 (2004) (“In [state equal protection] cases that succeeded, courts found education to be a fundamental right under state constitutions at least in part by relying on the inclusion in their state constitutions of a right to education.”); Burt Neuborne, Foreword: State Constitutions and the Evolution of Positive Rights, 20 Rutgers L.J. 881 (1989); Michael A. Rebell, Poverty, “Meaningful” Educational Opportunity, and the Necessary Role of the Courts, 85 N.C. L. Rev. 1467, 1540 (2007) (“The courts’ role in articulating constitutional principles and affirming the right of all children to an adequate and meaningful educational opportunity is of paramount importance.”); Julia A. Simon-Kerr & Robynn K. Sturm, Justiciability and the Role of the Courts in Adequacy Litigation: Preserving the Constitutional Right to Education, 6 Stan. J. Civ. Rts. & Civ. Liberties 83 (2010); Paul L. Tractenberg, The Evolution and Implementation of Educational Rights Under the New Jersey Constitution of 1947, 29 Rutgers L.J. 827, 888 (1998) (speaking of the judicial interpretation of the affirmative duty language in the New Jersey Constitution, which states that “[t]he right is personal to and enforceable by the state’s children, and it has been construed to embody a very high-level of educational opportunity sufficient to enable disadvantaged urban students to be able to compete with their advantaged suburban peers in the world beyond the schoolhouse”).  To be sure, not all of the rights-focused analyses have been supportive of the role of individual rights in school finance adequacy litigation.  See, e.g., Darby & Levy, supra note 3, at 361–65.  An early and much-cited article took a more narrow duty-based approach, focusing on the schools themselves, rather than state legislatures, and that article remains notable as one of very few examples of duty-focused analyses.  Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 Tex. L. Rev. 777, 814 (1985) (“The most direct sources of the duty to educate are state constitutions.”).

   [50].         See, e.g., Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 495 (Ark. 2002) (considering the efforts of other state supreme courts to derive a fundamental right to education from their education clauses and holding, “[n]evertheless, because we conclude that the clear language of Article 14 imposes upon the State an absolute constitutional duty to educate our children, we conclude that it is unnecessary to reach the issue of whether a fundamental right is also implied”)overruled on other grounds by 142 S.W.3d 643 (Ark. 2004); McDuffy v. Sec’y Exec. Office Educ., 615 N.E.2d 516, 526 (Mass. 1993) (“[I]t is reasonable therefore to understand the duty to ‘cherish’ public schools as a duty to ensure that the public schools achieve their object and educate the people.”); Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1378 (N.H. 1993) (“We do not construe the terms ‘shall be the duty . . . to cherish’ in our constitution as merely a statement of aspiration.  The language commands, in no uncertain terms, that the State provide an education to all its citizens and that it support all public schools.”); Abbeville Cnty. Sch. Dist. v. State, 515 S.E.2d 535, 541 (S.C. 1999) (“Finally, we emphasize that the constitutional duty to ensure the provision of a minimally adequate education to each student in South Carolina rests on the legislative branch of government.”).

   [51].         See Ala. Coal. for Equity, Inc. v. Hunt, 64 So. 2d 107, 154 (Ala. 1993) (“By imposing upon the state a duty to organize and maintain a system of education, § 256 also implies a continuing obligation to ensure compliance with evolving educational standards.  Section 256’s requirement that the system operate ‘for the benefit’ of school-age children likewise obligates the state to provide its children with an education that will in fact benefit them by offering them appropriate preparation for the responsible duties of life.”).  This decision led to almost a decade of legislative recalcitrance, ultimately resulting in total judicial abdication of the constitutional question.  See Ex parte James, 836 So. 2d 813, 819 (Ala. 2003) (dismissing the ongoing case as a nonjusticiable political question); DeRolph v. State, 780 N.E.2d 529, 529–32 (Ohio 2002) (following a similar progression, although resulting not in a retroactive holding of nonjusticiability but a prospective release of jurisdiction, despite a holding that the system remained unconstitutional).

   [52].         See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989) (“A child’s right to an adequate education is a fundamental one under our Constitution.  The General Assembly must protect and advance that right.”).

   [53].         See, e.g., Hershkoff, supra note 2, at 1186 (supporting the argument that positive state constitutional welfare rights should be enforceable and explaining that positive education rights had been enforced effectively in the American states under state constitutions); Neuborne, supra note 49, at 887; Tractenberg, supranote 49, at 888.

   [54].         The theory of “under-enforced constitutional norms,” described as constitutional principles that, for reasons such as justiciability, escape full judicial enforcement, comes from Lawrence Sager’s seminal article on the topic.  Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1213–20 (1978).  Contemporaneously, Henry Monaghan developed the related idea of “over-enforced” constitutional norms, such as those constitutional principles which the courts develop as prophylactics, e.g., the Miranda rule, requiring or forbidding more of the government than a constitution’s underlying mandates require or permit.  Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 2–3 (1975).

   [55].         R. Craig Wood, Educational Finance Law: Constitutional Challenges to State Aid Plans–An Analysis of Strategies 103–08 (3d ed. 2007) (listing the education clauses of the fifty states).

   [56].         N.J. Const. art. VIII, § IV, ¶ 1.

   [57].         Ky. Const. § 186.

   [58].         Kan. Const. art. VI, § 6(b).

   [59].         Ga. Const. art. VIII, § 1, ¶ 1.

   [60].         Minn. Const. art. XIII, § 1.

   [61].         Alaska Const. art. VII, § 1; Ariz. Const. art. XI, § 6; Ark. Const. art. XIV, § 1; Colo. Const. art. IX, § 2; Conn. Const. art. VIII, § 1; Del. Const. art. X, § 1; Fla. Const. art. IX, § 1(a); Ga. Const. art. VIII, § 1; Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1; Ill. Const. art. X, § 1; Ind. Const. art. IX, § 1; Kan. Const. art. VI, § 1; Ky. Const. § 183; La. Const. art. VIII, § 1; Me. Const. art. VIII, pt. 1 § 1; Md. Const. art. VIII, § 1; Mass. Const. pt. 1, ch. V, § II; Mich. Const. art. VIII, §§ 1–2; Minn. Const. art. XIII, § 1; Miss. Const. art. VIII, § 201; Mo. Const. art. IX, § 1(a); Mont. Const. art. X, § 1; Neb. Const. art. VII, § 1; Nev. Const. art. XI, § 2; N.J. Const. art. VIII, § IV, ¶ 1; N.M. Const. art. XII, § 1; N.Y. Const. art. XI, § 1; N.C. Const. art. IX, § 2; N.D. Const. art. VIII, §§ 1, 3, 4; Ohio Const. art. VI, § 2; Okla. Const. art. XIII, § 1; Or. Const. art. VIII, §§ 3, 8(1); Pa. Const. art. III, § 14; R.I. Const. art. XII, § 1; S.D. Const. art. VIII, § 1; Tenn. Const. art. XI, § 12; Tex. Const. art. VII, § 1; Utah Const. art. X, § 1; Va. Const. art. VIII, § 1; Wash. Const. art. IX, §§ 1–2; W. Va. Const. art. XII, §§ 1, 12; Wis. Const. art. X, § 3.  For the complete text of each state’s education clause, see Wood, supra note 55, at 103–08.

   [62].         Cal. Const. art. IX, § 1.  Note that the California Constitution also has a more directive provision mandating the maintenance of a public school in each district for at least six months of each year.  Id. § 5.  This latter provision has not figured prominently in any school finance case yet.

   [63].         Iowa Const. art. IX, 2d, § 3 (“The general assembly shall encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement.”).

   [64].         Nev. Const. art. XI, § 1 (“The legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural, and moral improvements, and also provide for a superintendent of public instruction and by law prescribe the manner of appointment, term of office and the duties thereof.”).

   [65].         N.H. Const. pt. 2d, art. 83 (“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 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 . . . .”).

   [66].         N.C. Const. art. IX, § 1 (“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.”).

   [67].         Id. § 2 (“The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.”).

   [68].         Id. art. I, § 15.

   [69].         Wyo. Const. art. I, § 23 (“The right of the citizens to opportunities for education should have practical recognition.  The legislature shall suitably encourage means and agencies calculated to advance the sciences and liberal arts.”).

   [70].         Vt. Const. ch. II, § 68.

   [71].         Ala. Const. art. XIV, § 256.

   [72].         347 U.S. 483 (1954).

   [73].         Ala. Const. art. XIV, § 256 (“To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.”).

   [74].         Ala. Const. of 1901, art. XIV, § 256 (“The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years.”).

   [75].         See Op. of the Justices, 624 So. 2d 107, 147 (Ala. 1993) (reproducing a trial court opinion in an advisory opinion of the state supreme court recognizing a prior declaration of unconstitutionality by the trial judge based on the racist origins of the amendment).  As this issue was never appealed to the Supreme Court of Alabama, it is unclear whether all of the amended language, just the explicitly race-neutral language, or none of the amended language is operative.

   [76].         See, e.g., Jonathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government, 24 Rutgers L.J. 1057, 1077 (1993); Hershkoff, supra note 2, at 1168; Neuborne, supra note 49; Rebell, supra note 49, at 1505–10.

   [77].         But see N.M. Const. art. XII, § 5 (“Every child of school age and of sufficient physical and mental ability shall be required to attend a public or other school during such period and for such time as may be prescribed by law.”); N.C. Const. art. I, § 15 (“The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”); Id. art. IX, § 3 (“The General Assembly shall provide that every child of appropriate age and of sufficient mental and physical ability shall attend the public schools, unless educated by other means.”); Okla. Const. art. XIII, § 4 (“The Legislature shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the State who are sound in mind and body . . . .”); Wyo. Const. art. I, § 23 (“The right of the citizens to opportunities for education should have practical recognition.”).

   [78].         See Hershkoff, supra note 2, at 1168; Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1839 (2001) [hereinafter Hershkoff, Passive Virtues]; Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1015, 1022–28 (2004); James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. Rev. L. & Soc. Change 183, 278–83 (2003); Rebell, supra note 49, at 1526–29.  Hershkoff’s influential work has defended state constitution-based institutional reform litigation as uniquely legitimate due to the structural features of state government and the unique, positive character of state constitutional rights to education and social welfare.  Hershkoff, supra note 2, at 1168.

   [79].         For one recent article on the side of more skepticism toward the value of individual rights to reform, see generally Darby & Levy, supra note 3.

   [80].         Calabresi & Agudo, supra note 32, at 108–09.

   [81].         The idea that rights and duties are correlative, such that, where one exists, the other does as well, is most closely associated with the scholarship of Wesley Newcomb Hohfeld.  See Bauries, supra note 3, at 306–16 (reviewing the jural correlativity theory as expressed in Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710, 710, 717 (1917), and Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 28–59 (1913)).  Hohfeld’s theory of correlativity has rarely been employed in constitutional analysis.  See generallyAllen Thomas O’Rourke, Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law, 61 S.C. L. Rev. 141 (2009).  Calabresi and Agudo do not cite Hohfeld specifically to support their case, but the idea of correlativity underlies their analysis.

   [82].         Calabresi & Agudo, supra note 32, at 108–09.

   [83].         41 U.S. 539 (1842).

   [84].         Calabresi & Agudo, supra note 32, at 108.

   [85].         Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 86–87 (Wash. 1978).

   [86].         E.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 201 (Ky. 1989); Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684, 690–91 (Mont. 1989), amended by 784 P.2d 412, 413 (Mont. 1990).

   [87].         John C. Eastman, When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education, 1776-1900, 42 Am. J. Legal Hist. 1, 2 (1998).

   [88].         See id.  See generally John C. Eastman, Reinterpreting the Education Clauses in State Constitutions in School Money Trials: The Legal Pursuit of Educational Adequacy 55 (Martin R. West & Paul E. Peterson, eds. 2007).

   [89].         Eastman, supra note 87, at 3–8.

   [90].         Id. at 2, 31.  As Eastman points out, in two states, Montana and North Carolina, the text of the state constitution provides explicitly for individual rights in education.  However, as Professor John Dinan explains, the Montana provision merely guarantees individual equality in educational services.  John Dinan, The Meaning of State Constitutional Education Clauses: Evidence from the Constitutional Convention Debates, 70 Alb. L. Rev. 927, 970 (2007).

   [91].         Dinan, supra note 90, at 929–32.

   [92].         Id. at 979.  Dinan recognizes and acknowledges the likely critiques of his originalist approach.  As Dinan states, the evidence he considers comes only out of debates during state constitutional conventions and does not include debates over proposed amendments to existing state constitutions.  Also, roughly half of the convention debates that have occurred over time either were not memorialized or the records do not exist today.  Id. at 979–81.  While these limitations in Dinan’s data certainly counsel a cautious approach in interpreting his findings, he certainly makes out at least a prima facie case on originalist terms that no state constitutional drafters intended to make the substantive provisions in state education clauses judicially enforceable and that only one state’s (Montana’s) drafters sought to render an equality provision.  See id. at 979.  A possible counterpoint to Dinan’s analysis comes out of the history of Florida’s constitutional revision in 1998.  One of the members of the Revision Commission convened in that year, which resulted in an amendment to the state constitution’s education clause, claims that the revision was adopted with the express goal of making the clause enforceable in the courts.  See Jon Mills & Timothy Mclendon, Setting a New Standard for Public Education: Revision 6 Increases the Duty of the State to Make “Adequate Provision” for Florida Schools, 52 Fla. L. Rev. 329, 366 (2000).

   [93].         Dinan, supra note 90, at 967–68.

   [94].         See, e.g., Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 7 A.3d 720, 735 (N.J. 2010) (quoting State v. Trump Hotels & Casino Resorts, Inc., 734 A.2d 1160 (N.J. 1999)) (“Our analysis begins with the plain language of the Federal Constitution.  ‘If the language is clear and unambiguous, the words used must be given their plain meaning.’”).

   [95].         See Dinan, supra note 90, at 946 (relating comments of some conventioneers that adoptions of admonitory provisions were directed at signaling the importance of education).

   [96].         At least one state constitutional scholar uses the word “admonitory” to describe similar provisions.  See Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 53–54, 85–86, 90–91 (1977) (reviewing the declarations of rights in several early state constitutions and criticizing the “admonitory” nature of the particular provisions drafted for the Virginia Constitution by George Mason, a non-lawyer).

   [97].         William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. Rev. 597, 600–04 (1994) [hereinafter Thro, Judicial Analysis] (explaining the “waves” metaphor); William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation, 14 J.L. & Pol. 525, 529–30 n.14 (1998) (outlining the “waves” metaphor).  See generally Michael Heise, State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy, 68 Temp. L. Rev. 1151 (1995) (adopting the “wave” metaphor).

   [98].         See William S. Koski, Of Fuzzy Standards and Institutional Constraints: A Re-examination of the Jurisprudential History of Educational Finance Reform Litigation, 43 Santa Clara L. Rev. 1185, 1283–96 (2003) (explaining that no clear line divides equality theories from adequacy theories and that, in fact, both theories are present in most education finance cases); James E. Ryan, Standards, Testing, and School Finance Litigation, 86 Tex. L. Rev. 1223, 1237 (2008) (calling into doubt the distinctions made between the second and third “waves”); id. at 1229 n.35 (citing Richard Briffault, Adding Adequacy to Equity, in School Money Trials: The Legal Pursuit of Educational Adequacy 25, 25–27 (2007)); see also William S. Koski & Rob Reich, When “Adequate” Isn’t: The Retreat from Equity in Educational Law and Policy and Why It Matters, 56 Emory L.J. 545, 548 (2006) (making the prescriptive case for returning to equity as the dominant theory).

   [99].         Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 2 (1979).  Other common terms for the claims that “institutional reform litigation” describes are “public law litigation,” “structural reform litigation,” and “institutional litigation.”  See Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 Geo. L.J. 1355, 1357 n.1 (1991); see also, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284, 1288–89 (1976) (“public law litigation”); Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv. L. Rev. 465, 466 (1980) (“institutional litigation”); Fiss, supra, at 2 (“structural reform litigation”); Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 Mich. L. Rev. 1994, 1995 (1999) (“institutional reform litigation”).  I favor and use “institutional reform litigation” because it is the most descriptively accurate, as this litigation’s chief distinguishing feature is its goal to cause the reorganization of public institutions, rather than to secure compensation for particular plaintiffs. See supra note 78 and accompanying text.

   [100].        Fiss, supra note 99, at 2.

   [101].        Usman, supra note 5, at 1468 (citing Michael Heise, Litigated Learning, Law’s Limits, and Urban School Reform Challenges, 85 N.C. L. Rev. 1419, 1438–39 (2007)) (“While education related litigation was not unknown prior to Brown, the Supreme Court’s watershed decision generated a substantial increase therein.”).

   [102].        347 U.S. 483 (1954).

   [103].        See Chayes, supra note 99, at 1300–02 (describing the processes involved in fashioning public law remedies).

   [104].        Sturm, supra note 99, at 1446.

   [105].        Ross Sandler & David Schoenbrod, The Supreme Court, Democracy and Institutional Reform Litigation, 49 N.Y.L. Sch. L. Rev. 915, 916 (2005).

   [106].        See Fiss, supra note 99, at 2–3; Michael Heise, Litigated Learning, Law’s Limits, and Urban School Reform Challenges, 85 N.C. L. Rev. 1419, 1438–39 (2007); Schlanger, supra note 99, at 1994–95.

   [107].        See Wood, supra note 55, at 82–85 (discussing the first wave).

   [108].        411 U.S. 1 (1973).

   [109].        Id. at 37.

   [110].        Id. at 28–29.

   [111].        Id. at 55.

   [112].        Thro, Judicial Analysis, supra note 97, at 601–03.

   [113].        See Sonja Ralston Elder, Enforcing Public Educational Rights via a Private Right of Action, 1 Duke F. L. & Soc. Change 137, 143–44 (2009) (noting that of the cases filed by 2009, “[i]n more than 80 percent of these cases, a school district or nonprofit organization was a named plaintiff.  In the remaining eight cases in which all plaintiffs were individual students, the suits were filed as or treated as class actions rather than individual suits.”).

   [114].        See Wood, supra note 55, at 69–70 (outlining the history of the “equity” wave).

   [115].        Thro, Judicial Analysis, supra note 97, at 603–04.  Many explanations exist for this migration, among them that the issues surrounding determinations of equality and equity became too complex for courts and the public to accept, that urban districts did not see many benefits in equity litigation, and that the pervasive influence of “local control” impaired the goals of plaintiffs.  See Michael Heise, Equal Educational Opportunity, Hollow Victories, and the Demise of School Finance Equity Theory: An Empirical Perspective and Alternative Explanation, 32 Ga. L. Rev. 543, 579–85 (1998) (explaining these theories and introducing the alternative explanation that remedies did not have their desired effects of centralization of and increases in spending).

   [116].        As several scholars have pointed out, equity theories have not disappeared from education finance litigation.  See supra note 98.  In fact, in some cases, equity remains the dominant theory, and at least one scholar has determined that, even in purported “adequacy” cases, the adjudication of the claims amounts to evaluating inequalities.  Ryan, supra note 98, at 1225.  Nevertheless, this third “wave” remains distinct from prior reform periods because inadequacy was not pressed by litigants as a dominant theory of relief during these prior periods.

   [117].        N.J. Const. art. VIII, § IV, ¶ 1.

   [118].        Ky. Const. § 186.

   [119].        Kan. Const. art. VI, § 6(b).

   [120].        Ga. Const. art. VIII, § 1, ¶ 1.

   [121].        Ill. Const. art. X, § 1.

   [122].        See generally Paula J. Lundberg, State Courts and School Funding: A Fifty-State Analysis, 63 Alb. L. Rev. 1101 (2000) (finding no significant relationship between education clause language, defined by the category approach, and case outcomes); Karen Swenson, School Finance Reform Litigation: Why Are Some State Supreme Courts Activist and Others Restrained?, 63 Alb. L. Rev. 1147 (2000) (revealing no significant relationship between language and case outcomes); Yohance C. Edwards & Jennifer Ahern, Note, Unequal Treatment in State Supreme Courts: Minority and City Schools in Education Finance Reform Litigation, 79 N.Y.U. L. Rev. 326 (2004) (reaching similar conclusions).  But see Bill Swinford, A Predictive Model of Decision Making in State Supreme Courts: The School Financing Cases, 19 Am. Pol. Res. 336, 347 (1991) (finding a weak relationship, but only as to equality-based cases).

   [123].        See Ky. Const. § 186 (requiring the establishment of “an efficient system of common schools”).

   [124].        See Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989) (interpreting “efficient” to require a system that follows nine aspirational principles, one of which encompasses seven specific learning goals).

   [125].        See Ill. Const. art. X, § 1 (“A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.  The State shall provide for an efficient system of high quality public educational institutions and services.”).

   [126].        See Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996) (rejecting a challenge based on the “high quality” term as a nonjusticiable political question).

   [127].        See, e.g., William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation, 14 J.L. & Pol. 525, 548 (1998) (“If [the Supreme Court of Kentucky’s] standard is taken literally, there is not a public school system in America that meets it.”).

   [128].        See generally Joshua Dunn & Martha Derthick, Adequacy Litigation and the Separation of Powers, in School Money Trials: The Legal Pursuit of Educational Adequacy 322 (Martin R. West & Paul E. Peterson eds., 2007) (explaining the salience of separation of powers concerns to system-wide adequacy claims).

   [129].        Scott R. Bauries, Is There an Elephant in the Room?: Judicial Review of Educational Adequacy and the Separation of Powers in State Constitutions, 61 Ala. L. Rev. 701, 721–34 (2010) (outlining these three approaches and their scholarly defenders); Larry J. Obhof, Rethinking Judicial Activism and Restraint in State School Finance Litigation, 27 Harv. J.L. & Pub. Pol’y 569, 572–73 (2004) (explaining the approaches).

   [130].        Bauries, supra note 3, at 340–42 (2011) (discussing this approach among state courts).

   [131].        Id. at 333–34 (discussing these cases, each of which adopts a legislative definition of adequacy in formulating its own definition of the constitutional standard).

   [132].        Id. at 334–40 (discussing the cases which have resulted in both nondeferential merits adjudication and policy-directive remediation).

   [133].        Id. at 342–46 (discussing the cases which have resulted in nondeferential merits adjudication, but no court-directed remediation).  The most common remedy is a nondirective declaration of unconstitutionality.  Id.

   [134].        See George D. Brown, Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions, 35 B.C. L. Rev. 543, 546 (1994) (advocating an active dialogic approach as a means to allow review); Larry J. Obhof, Rethinking Judicial Activism and Restraint in School Finance Litigation, 27 Harv. J.L. & Pub. Pol’y 569, 593–94, 598–600 (2004) (arguing in favor of a “middle ground” approach, which would require total remedial abstention—or passive dialogue—as a means to allow review without trampling on the separation of powers).  Other terms are used interchangeably with “dialogue.”  See Rebell, supra note 49 at 1539–42 (utilizing the term “colloquy”).

   [135].        See Sturm, supra note 99, at 1365–76 (presenting the “consensual deliberation” approach, which is the progenitor of the dialogic approach in education finance litigation).

   [136].        Sabel & Simon, supra note 78, at 1067–73, 1082–1100.

   [137].        See supra note 99 and accompanying text.

   [138].        Sabel & Simon, supra note 78, at 1022–28.

   [139].        Id. at 1025–26.

   [140].        Id.

   [141].        Id. at 1022–28.

   [142].        Ross Sandler & David Schoenbrod, Democracy By Decree: What Happens When Courts Run Government 142 (2003).

   [143].        Sabel & Simon, supra note 78, at 1020.

   [144].        For example, after the Ohio Supreme Court decided DeRolph v. State, 780 N.E.2d 529 (Ohio 2002), and issued a goal-oriented, nondirective order, the court was forced to revisit the case several times through compliance actions, and even after all of these additional appeals, the court finally dismissed the case without holding that the legislature had achieved such compliance.  Id. at 529–35 (recounting the serial relitigation of the case in the state’s courts).  Sabel and Simon use Texas and Kentucky as their examples, and it is true that, in both of these states, the courts refrained from issuing directive remedial orders, preferring to state goals instead.  Nevertheless, although conditions improved, both states found themselves faced with education clause litigation brought by the same interest groups that filed the initial suits shortly thereafter.  See generally Opinion & Order, Young v. Williams, Nos. 03-CI-00055, 03-CI-01152 (Ky. Cir. Ct., Franklin Cnty., Div. II, Feb. 13, 2007); Plaintiffs’ Original Petition & Request for Declaratory Judgment, Tex. Taxpayer & Student Fairness Coal. v. State, No. D-1-GN-11-003130 (Tex. Dist. Ct. 200th filed Oct. 10, 2011).  The Texas case is ongoing, while the Kentucky case was dismissed as nonjusticiable and was not appealed by the plaintiffs.

   [145].        Sandler & Scheonbrod, supra note 105, at 928.

   [146].        Sabel & Simon, supra note 78, at 1022–28.

   [147].        This conclusion is a natural extension of the well-known theory of “remedial equilibration” developed by Professor Daryl Levinson.  See generally Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857 (1999) (observing that the ways in which courts choose to enforce rights are influenced by the courts’ remedial concerns).

   [148].        Idaho Sch. for Equal Educ. Opportunity v. State, 129 P.3d 1199, 1208 (Idaho 2005) (“We affirm the conclusion of the district court that the current funding system is simply not sufficient to carry out the Legislature’s duty under the constitution. . . .  The appropriate remedy, however, must be fashioned by the Legislature and not this Court.”).

   [149].        Kress v. Copple-Trout, No. CV-07-261-S-BLW, 2008 WL 352620, at *2 (D. Idaho Feb. 7, 2008), dismissed on reconsideration, 2008 WL 2095602 (D. Idaho May 16, 2008).  Though this suit was ultimately dismissed, the plaintiffs’ apparent need to file and prosecute it illustrates, from a plaintiff’s perspective, the problems inherent in conceptualizing a constitutional provision that states an affirmative duty as a power.  Id. at *1–3.

   [150].        See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 463 (1983) (holding that a federal court may not sit in appellate judgment of a state law decision by a state court); Rooker v. Fid. Trust Co., 263 U.S. 413, 415 (1923) (reaching the same conclusion).

   [151].        Hancock v. Comm’r of Educ., 822 N.E.2d 1134, 1140 (Mass. 2005) (Marshall, C.J., concurring) (plurality opinion) (holding that the state system would not be invalidated because the plaintiffs failed to show that the legislature acted in an “arbitrary, nonresponsive, or irrational way to meet the constitutional mandate”); Neely v. W. Orange Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 784–85 (Tex. 2005) (establishing “arbitrariness” as the touchstone for whether a state education finance system is unconstitutional and upholding the state system due to the failure of the plaintiffs to establish that it was “arbitrary”); see alsoRoosevelt Elementary Sch. Dist. No. 66 v. State, 74 P.3d 258, 268 (Ariz. Ct. App. 2003) (holding that the failure to establish a causal link between an alleged lack of funding and low student achievement prevented the plaintiffs from proving a constitutional violation).

   [152].        State v. Lewis, 789 N.E.2d 195, 202–03 (Ohio 2003) (reaffirming that the state constitution was violated but certifying the court’s ultimate withdrawal from its ongoing supervisory role in the litigation).

   [153].        See Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 405 (Fla. 1996) (dismissing an adequacy-based challenge as a nonjusticiable political question); Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996) (dismissing the case as a nonjusticiable political question); Neb. Coal. for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164, 178–79 (Neb. 2007) (dismissing the case as a nonjusticiable political question); Okla. Educ. Ass’n v. State, 158 P.3d 1058, 1065–66 (Okla. 2007) (dismissing the case as a nonjusticiable political question); Marrero v. Commonwealth, 739 A.2d 110, 113–14 (Pa. 1999) (dismissing the case as a nonjusticiable political question); City of Pawtucket v. Sundlun, 662 A.2d 40, 58–59 (R.I. 1995) (dismissing the case as a nonjusticiable political question); see also Ex parte James, 836 So. 2d 813, 818–19 (Ala. 2002) (employing the political question doctrine retroactively to dismiss ongoing litigation that had already resulted in plaintiff victories at the Alabama Supreme Court level).

   [154].        Currie, supra note 11, at 865–66.

   [155].        M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence 357 (7th ed. 2001) (explaining that, while every individual right imposes a correlative duty on some person or entity, not every duty implies a correlative right).

   [156].        See supra note 3 and accompanying text (discussing positive rights).  I leave to the side for present purposes that the individual positive rights of which so many commentators and courts speak may actually be collective rights.  See Bauries, supra note 129, at 759 (“Are education rights, if they exist, individual or collective?”).  In practical terms, there is little to no distinction between a “collective right” and a systemic legislative duty.  See Douglas Sanders, Collective Rights, 13 Hum. Rts. Q. 368, 369–70 (1991) (explaining that, unlike group rights, such as affirmative action, collective bargaining, and class action rights, which use the power of the group to achieve rights-enhancing goals for the group’s individual members, collective rights seek to advance the group as a whole, an interest that the author describes in the human rights context as ensuring “distinct group survival,” but which can be thought of in the school finance context as enhancing the system itself, rather than (or in addition to) the interests of the individuals within the system).  In fact, one plausible way to read the Supreme Court of Washington’s decision in Seattle School District v. State, 585 P.2d 71, 91–92 (Wash. 1978), is as an interpretation of the state constitution’s education clause to establish both a systemic duty and a collective right in “all children residing within the borders of the State.”  Id. at 91 (“Therefore, all children residing within the borders of the State possess a ‘right,’ arising from the constitutionally imposed ‘duty’ of the State, to have the State make ample provision for their education.”).  For an “expressivist” account of state constitutional social and economic rights that draws substantially on collective rights theory, see Helen Hershkoff, “Just Words”: Common Law and the Enforcement of State Constitutional Social and Economic Rights, 62 Stan. L. Rev. 1521, 1553–55 (2010).

   [157].        See Bauries, supra note 3, at 327–33 (outlining the use of federal fundamental rights analysis in second-wave cases in the states).

   [158].        See supra note 11 and accompanying text (distinguishing between negative rights, such as equal protection, and positive rights).  But see Calabresi & Agudo, supra note 32, at 108–09 (using the latter concept to define the former).

   [159].        See Bauries, supra note 129, at 757–59.

   [160].        See supra note 3 and accompanying text (discussing the literature’s strongly rights-focused approach to school finance litigation).

   [161].        See, e.g., Dunn & Derthick, supra note 128, at 322.

   [162].        Hershkoff, Passive Virtues, supra note 78, at 1844–68 (discussing standing to sue in state courts).

   [163].        Id. at 1844–52 (discussing advisory opinions in the states).

   [164].        Id. at 1852–59 (discussing generalized grievances and public actions in the states).

   [165].        Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 85 (Wash. 1978) (en banc).

   [166].        See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989) (“A child’s right to an adequate education is a fundamental one under our Constitution.  The General Assembly must protect and advance that right.”); McDuffy v. Sec’y of Exec. Office of Educ., 615 N.E.2d 516, 519 (Mass. 1993) (“[W]e shall restrict ourselves to a determination whether the constitutional language of [the education clause], is merely hortatory, or aspirational, or imposes instead a constitutional duty on the Commonwealth to ensure the education of its children in the public schools.  We conclude that a duty exists.”).

   [167].        Rose, 790 S.W.2d at 212.

   [168].        McDuffy, 615 N.E.2d at 618 (“The guidelines set forth by the Supreme Court of Kentucky fairly reflect our view of the matter and are consistent with the judicial pronouncements found in other decisions.”).

   [169].        Abbeville Cnty. Sch. Dist. v. State, 515 S.E.2d 535, 540 (S.C. 1999) (“We define this minimally adequate education required by our Constitution to include providing students adequate and safe facilities in which they have the opportunity to acquire: 1) the ability to read, write, and speak the English language, and knowledge of mathematics and physical science; 2) a fundamental knowledge of economic, social, and political systems, and of history and governmental processes; and 3) academic and vocational skills.”).

   [170].        Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d 206, 253–54 (Conn. 2010) (“Thus, we conclude that [the education clause], entitles Connecticut public school students to an education suitable to give them the opportunity to be responsible citizens able to participate fully in democratic institutions, such as jury service and voting.  A constitutionally adequate education also will leave Connecticut’s students prepared to progress to institutions of higher education, or to attain productive employment and otherwise contribute to the state’s economy.  To satisfy this standard, the state, through the local school districts, must provide students with an objectively ‘meaningful opportunity’ to receive the benefits of this constitutional right.”).

   [171].        See id. at 249–50 (“[O]ur research has revealed that those state courts that have reached the merits of the issue overwhelmingly have held that there is a floor with respect to the adequacy of the education provided pursuant to their states’ education clauses; that education must be in some way ‘minimally adequate’ or ‘soundly basic.’  Furthermore, many of these decisions have articulated comprehensive standards that have defined the components of a constitutionally adequate education . . . .”).

   [172].        See R. Craig Wood & Bruce D. Baker, An Examination and Analysis of the Equity and Adequacy Concepts of Constitutional Challenges to State Education Finance Distribution Formulas, 27 U. Ark. Little Rock L. Rev. 125, 144–168 (2004) (analyzing and critiquing the different expert methodologies used to “cost out” adequate education funding in the scholarship and the cases).

   [173].        See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 213 (Ky. 1989) (justifying that in its judgment of unconstitutionality in part, “[w]e have described, infra, in some detail, the present system of common schools.  We have noted the overall inadequacy of our system of education, when compared to national standards and to the standards of our adjacent states.”).

   [174].        See supra note 144.

   [175].        The ancient idea of governance as a fiduciary responsibility has taken on new life due to recent scholarly work, some predating this Article, and some authored contemporaneously.  See supra note 1.  Each of these treatments focuses on different elements of a government’s fiduciary duty, but none confronts the important state constitutional question of affirmative constitutional duties to legislate on a particular topic—the topic addressed herein.

   [176].        For a comprehensive review of the origins and development of the “government-as-fiduciary” conception from the beginnings of Western political theory to the time of the American Revolution, see Natelson, Public Trust, supra note 35, at 1097–1123.

   [177].        Id. at 1097 (discussing Plato, The Republic 164 (H.D.P. Lee trans., 1961)).

   [178].        Id. at 1099–1100 (quoting Marcus Tullius Cicero, De Officiis (Loeb ed., Walter Miller trans., 1956)).

   [179].        Id. at 1103 (quoting James Stuart, The True Law of Free Monarchies, reprinted in The True Law of Free Monarchies and Basilikon Doron 56–57 (Daniel Fischlin & Mark Fortier eds., 1996)).

   [180].        See generally John Locke, Two Treatises on Government, in 5 The Works of John Locke 207 (New ed. 1823).

   [181].        See, e.g., Gordon S. Wood, The Creation of the American Republic: 1776–1787, at 283–84 (1969) (noting the importance of the Lockean notion of a social compact among the entrustors of power in post-Revolutionary thought); Donald L. Doernberg, “We the People”: John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action, 73 Calif. L. Rev. 52, 57 (1985) (“It would be difficult to overstate John Locke’s influence on the American Revolution and the people who created the government that followed it.”); Andrew C. McLaughlin, Social Compact and Constitutional Construction, 5 Am. Hist. Rev. 467, 467 (1900) (“Locke was the philosopher of the American Revolution, as he was of the Revolution of 1688.”); Natelson, Public Trust, supra note 35, at 1115, 1115 n.157 (terming Locke’s Second Treatise “hugely influential” and noting that “Locke was repeatedly cited during the constitutional debates”); John F. Reinhardt, Political Philosophy from John Locke to Thomas Jefferson, 13 U. Kan. City L. Rev. 13, 46 (1944–1945) (“Many of the phrases of the Declaration of Independence may be found in Locke’s Two Treatises of Government.”).

   [182].        James A. Gardner, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System 60 n.16 (2005) (“State constitutions written between 1776 and 1789 reveal a clear reliance on the Lockean model.”); Marc W. Kruman, Between Authority & Liberty: State Constitution Making in Revolutionary America 40 (1997) (outlining the influence of Lockean ideas in the early state constitutions).  In fact, it appears from the drafting history of state constitutions that, to the extent that Locke’s conception of the social compact evinces a distrust of legislative power, state constitutions have become more Lockean as history has unfolded.  See Christian G. Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth Century West, 25 Rutgers L.J. 945, 967–70 (1994) (discussing the history of state constitutional adoption and revision in the nineteenth century, and pointing out that, as distrust of legislatures grew more widespread, state constitutions became more lengthy, specific, and “legislative”).  Although James Gardner is cited in this footnote, he rejects the idea that Locke’s conception of the social compact is useful as a tool for state constitutional interpretation.  Gardner, supra, at 122.  He bases this rejection on the conclusion that a baseline assumption of the Lockean model—that a distinct polity exists in a state of nature and willfully agrees to form an autonomous state—is not met in the case of the American states, each of which is populated by individuals who have already formed a social compact to create a national government.  Gardner’s argument is a convincing case for the proposition that states ought not to be viewed as having formed their constitutional governments for the sole purpose of achieving state-specific ends (Hans Linde’s primacy thesis), but it does not establish that the Lockean ideas that illuminated the structuring of governmental powers and rights in the early state constitutions and the national constitution ought to be discarded, and I do not read Gardner as urging this result.  In fact, in Gardner’s account, which places federalism values, rather than the values of an imaginarily distinct state polity, at the center of state constitutional interpretation, each state must establish for its legislature both sufficient power to act to accomplish the ends in the public interest and sufficient limitations on that power to forestall tyranny.  See id. at 123–36.  These ends reflect the essence of Locke’s conception of the relationship between the people and the state as a fiduciary one.  Added to Locke’s conception is merely the element that, in addition to protecting the people from outside attacks and state governmental tyranny, the government must be set up to counterbalance the vast powers of the federal government.

   [183].        Doernberg, supra note 181, at 58 n.34, 67.

   [184].        The Declaration of Independence expresses this state as the state in which “all men are . . . endowed by our Creator.”  The Declaration of Independence para. 2 (U.S. 1776).

   [185].        Locke, supra note 180, § 149, at 426.  The American Founding Fathers, and their state constitutional contemporaries, saw fit to create three coequal branches of government, rather than a supreme legislature and a subordinate executive, as Locke’s framework would have suggested.

   [186].        Id. § 22, at 351 (“The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it.”); id. § 136, at 419 (“To this end it is that men give up all their natural power to the society they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of Nature.”); id. § 149, at 426 (“[Y]et the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.”).  In addition to these statements, in Locke’s direct enumeration of the limits of legislative power, he speaks explicitly in terms of a “trust”:

These are the bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government.  First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough.  Secondly: These laws also ought to be designed for no other end ultimately but the good of the people.  Thirdly: They must not raise taxes on the property of the people without the consent of the people given by themselves or their deputies.  And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.  Fourthly: The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.

Id. § 142, at 423 (emphasis added).

   [187].        Scholars have recognized that Locke’s conception of the legislature’s power is one of fiduciary power, which comes with fiduciary duties to the public. See, e.g., Jenkins, supra note 1, at 543 (“Both the executive and the legislature have a fiduciary trust to act for the public good.”).

   [188].        Locke, supra note 180, § 149, at 426.

   [189].        This is, of course, an extrapolation of Locke’s idea that the people, as entrustors, have the power to revoke the trust (to revolt) whenever the fiduciary acts outside the terms of the entrustment.  Id.  We do not have revolutions every time that Congress or state legislatures act outside their constitutional boundaries today; rather, the genius of the Founding Fathers, applying Locke’s ideas in light of Montesquieu’s refinement of separated powers and checks and balances, established judicial review as the avenue to police violations of the people’s entrustment.  Nevertheless, this use of judicial review, though short of revolution, is still a distinctly Lockean way to check abuses of fiduciary entrustment.

   [190].        See Clark Neily, No Such Thing: Litigating Under the Rational Basis Test, 1 N.Y.U. J. L. & Liberty 898, 900–03 (2005).

   [191].        See generally Kelo v. City of New London, 545 U.S. 469 (2005) (generating outrage nationwide precisely because of the perception that the city engaging in the taking was acting to deprive individuals of their property for a primarily private purpose).

   [192].        See J. Randy Beck, The Heart of Federalism: Pretext Review of Means-End Relationships, 36 U.C. Davis L. Rev. 407, 412 (2003).

   [193].        See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001).

   [194].        Tamar Frankel, Fiduciary Duties as Default Rules, 74 Or. L. Rev. 1209, 1210–12 (1995).

   [195].        See, e.g., Natelson, Agency, supra note 1, at 322 (stating that, in applying an agency principle to Congress’s action under the Necessary and Proper Clause, it is “to remain within its (somewhat restricted) realm of authority, and proceed in good faith, with reasonable care, and with impartiality and loyalty toward its constituents”).

   [196].        See, e.g., Karen E. Boxx, Of Punctilios and Paybacks: The Duty of Loyalty Under the Uniform Trust Code, 67 Mo. L. Rev. 279, 282–83 (2002).

   [197].        See, e.g., E. Haavi Morreim, The Clinical Investigator as Fiduciary: Discarding a Misguided Idea, 33 J.L. Med. & Ethics 586, 589 (2005) (“Somewhat less obviously, the fiduciary also must not compromise the entrustor’s welfare for the benefit of third parties.”).

   [198].        See Natelson, Welfare, supra note 1, at 242.

   [199].        Indeed, it is plausible to view much of the jurisprudence of the Lochner Era, including Lochner itself, as an attempt to enforce the duty of loyalty by looking behind the stated public purposes of federal and state legislation and assessing whether such legislation was really enacted for the benefit of the public or was instead enacted to benefit private parties or interest groups.  See generally David Bernstein, Rehabilitating Lochner (2011) (showing that some evidence of special interest protection existed in the facts of Lochner itself).

   [200].        See Locke, supra note 180, § 149, at 426.

   [201].        For a similar federal law, see Stolen Valor Act, 18 U.S.C. § 704(b) (2006).

   [202].        A case similar to this hypothetical was, at the initial submission date of this Article, pending before the United States Supreme Court.  United States v. Alvarez, 617 F.3d 1198, 1200–01 (9th Cir. 2010), aff’d, 132 S. Ct. 2537 (2012).

   [203].        See id. at 1212–14 (declining to apply the First Amendment exemption, stating, “Although certain subsets of false factual speech have been declared unprotected, such classes of speech were developed as the result of thoughtful constitutional analysis of what other characteristics the speech must have before it can be proscribed without clashing with First Amendment protections.  The Act does not fit neatly into any of those ‘well-defined’ and ‘narrowly limited’ classes of speech previously considered unprotected, and we thus are required to apply the highest level of scrutiny in our analysis.”).

   [204].        See Sheldon H. Nahmod, Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v. Ceballos, 42 U. Rich. L. Rev. 561, 569–73 (2008) (outlining this ex ante form of interest balancing, which Professor Nahmod terms “categorical balancing”).

   [205].        Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010).

   [206].        See Alvarez, 617 F.3d at 1217 (rejecting a similar argument based on the narrow tailoring prong).  The Alvarez case has now been decided, with the Supreme Court holding that the government’s interest (i.e., the interest of the people) in protecting the value of military honors, though compelling, does not justify preventing false speech altogether.  Alvarez, 132 S. Ct. at 2549 (2012).  Rather, more narrowly tailored means of protecting the public interest, such as “counterspeech,” are available that would not impact the individual’s presumptive right to free expression.  Id.

   [207].        Unif. Probate Code § 7-302 (amended 2006).

   [208].        Am. Law. Inst., Principles of Corporate Governance § 4.01 (1994) [hereinafter ALI].

   [209].        Natelson, Agency, supra note 1, at 322; Philip J. Levitz, A Modern Fiduciary Theory of the Necessary & Proper Clause (Mar. 1, 2012) (unpublished student scholarship), available at

   [210].        George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 102 (1987).

   [211].        Id. § 683 (“A trustee has a duty to use ordinary, reasonable skill and prudence in following the directions or authority of the settlor with regard to trust investments.”).

   [212].        ALI, supra note 208, § 2.01.

   [213].        See Model Nonprofit Corp. Act § 2.02(b)(6)(i) (2008) (permitting a purpose to be specified in the articles of incorporation).

   [214].        See Model Nonprofit Corp. Act § 8.30(b) (2008) (“The members of the board of directors or a committee of the board, when becoming informed in connection with their decision-making function or devoting attention to their oversight function, must discharge their duties with the care that a person in a like position would reasonably believe appropriate under similar circumstances.”); ALI, supra note 208, § 4.01(a).

   [215].        See Natelson, Public Trust, supra note 35, at 1088–91.

   [216].        See, e.g., Del. Const. pmbl. (“Through divine goodness, all people have by nature the rights of worshipping and serving their Creator according to the dictates of their consciences, of enjoying and defending life and liberty, of acquiring and protecting reputation and property, and in general of obtaining objects suitable to their condition, without injury by one to another; and as these rights are essential to their welfare, for due exercise thereof, power is inherent in them; and therefore all just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness; and they may for this end, as circumstances require, from time to time, alter their Constitution of government.”).

   [217].        See, e.g., Ala. Const. art. I, § 2 (“That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient.”); Alaska Const. art. I, § 2 (“All political power is inherent in the people.  All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole.”); Ariz. Const. art. II, § 2 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”); Ark. Const. art. II, § 1 (“All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.”).

   [218].        See Haw. Const. art. I, § 1 (“All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people.  All government is founded on this authority.”).

   [219].        Ga. Const. art. II, § 1, ¶ I.

   [220].        See, e.g., Colo. Const. art. XXIX, § 6 (“Any public officer, member of the general assembly, local government official or government employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state or local jurisdiction for double the amount of the financial equivalent of any benefits obtained by such actions.”); Fla. Const. art. II, § 8 (“A public office is a public trust.  The people shall have the right to secure and sustain that trust against abuse.”); Ga. Const. art. I, § 2, ¶ I (“All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.  Public officers are the trustees and servants of the people and are at all times amenable to them.”).

   [221].        See G. Alan Tarr, Understanding State Constitutions 7 (1998).  This view has long been the conventional one in state constitutionalism.  See Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 127–35 (1896) (collecting cases).  “Plenary” should not be confused for “supreme” in the Lockean sense, as the former describes the scope of the legislative power—what objects it may address—while the latter describes the authority of the power—the extent to which it may be checked by the other branches of government or by popular will.  Constitutional drafters adopted most of Locke’s prescriptions for representative government, but they left the legislative power checked by two co-equal branches, where Locke would have left it supreme and would have lodged the ultimate check in the people’s power to alter, abolish, or reform their government.  Locke, supra note 180, § 149, at 426.

   [222].        See, e.g., Fla. Const. art. III, § 1 (“The legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a senate composed of one senator elected from each senatorial district and a house of representatives composed of one member elected from each representative district.”); Vt. Const. ch. II, § 6 (“[Legislatures] may prepare bills and enact them into laws, redress grievances, grant charters of incorporation, subject to the provisions of section 69, constitute towns, boroughs, cities and counties; and they shall have all other powers necessary for the Legislature of a free and sovereign State; but they shall have no power to add to, alter, abolish, or infringe any part of this Constitution.”).

   [223].        Tarr, supra note 221, at 8–9.  Tarr also points out that at least one state has acted by constitutional amendment to forestall such an interpretation.  See 9 n.10. (quoting Alaska Const. art. XII, § 8).

   [224].        For a sampling of these sorts of provisions, see Scott R. Bauries, State Constitutional Design and Education Reform: Process Specification in Louisiana, 40 J.L. & Educ. 1, 7–8 (2011).

   [225].        Mich. Const. art. XII, § 1.

   [226].        Locke, supra note 180, at § 149, at 427 (calling for abolishment of the “trust” reposed by the people where the legislature acts in conflict with the trust or outside its scope).

   [227].        See, e.g., Colo. Const. art. II, § 1 (“All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”).

   [228].        See Ark. Const. art. II, § 2 (“All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness.”).

   [229].        Some state constitutions use the word “trust” to describe the legislative duty.  See Ala. Const. art. IV, § 60 (“No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.”).  Others contain provisions explicitly requiring that legislation—usually for appropriations and/or taxes—be passed only for public purposes.  See Alaska Const. art. 9, § 6 (“No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose.”).

   [230].        Some state constitutions claim this right expressly.  See Ark. Const. art. II, § 1 (“All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.”); Colo. Const. art. II, § 2 (“The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided, such change be not repugnant to the constitution of the United States.”); Ky. Const. § 4 (“All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property.  For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper”).  Most do not, but many nevertheless imply the right to revolt by explicitly stating that the government’s action outside its powers constitutes “tyranny” or “oppression.”  See Ala. Const. art. I, § 35 (“That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”).

   [231].        See, e.g., Ala. Const. art. I, § 36 (“That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.”); Ark. Const. art. II, § 29 (“[W]e declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.”).

   [232].        See, e.g., Fla. Const. §§ 10–12 (directing the legislative power at specific objects); id. § 4 (placing procedural restrictions on legislative action, including requirements for transparency, such as the public reading of each bill); see also Fritz, supra note 182 (outlining the increasing distrust of legislative power that led to the adoption or expansion of such provisions in the nineteenth century).

   [233].        See supra notes 62–77 and accompanying text (discussing the different state education clauses).

   [234].        Ratner, supra note 49, at 814–16.  Ratner’s study was preceded by one other that grouped the clauses but for a different purpose.  See Erica Black Grubb,Breaking the Language Barrier: The Right to Bilingual Education, 9 Harv. C.R.-C.L. L. Rev. 52, 66–70 (1974).  After the rise of the “third wave,” perennial school finance commentator William Thro adopted Ratner’s category method of analysis.

   [235].        See Ratner, supra note 49, at 815–16.

   [236].        See William E. Thro, The Role of Language of the State Education Clauses in School Finance Litigation, 79 Educ. L. Rep. 19, 23–25 (1993).  Thereafter, the category approach quickly became the standard way to talk about education clauses.  See, e.g., Coal. for Adequacy & Fairness in Educ., Inc. v. Chiles, 680 So. 2d 400, 405 n.7 (Fla. 1996) (employing the category approach, as adopted by Thro).

   [237].        See Yohance C. Edwards & Jennifer Ahern, Unequal Treatment in State Supreme Courts: Minority and City Schools in Education Finance Reform Litigation, 79 N.Y.U. L. Rev. 326, 353–61 (2004) (finding no significant relationship between education clause language, defined by the category approach, and case outcomes); Paula J. Lundberg, State Courts and School Funding: A Fifty-State Analysis, 63 Alb. L. Rev. 1101, 1107–14 (2000) (reaching similar conclusions); Karen Swenson, School Finance Reform Litigation: Why Are Some State Supreme Courts Activist and Others Restrained?, 63 Alb. L. Rev. 1147, 1164–80 (2000) (finding the same).  But see Bauries, supra note 129, at 713 n.57 (explaining the limitations of Bill Swinford’s study); Bill Swinford, A Predictive Model of Decision Making in State Supreme Courts: The School Financing Cases, 19 Am. Pol. Res. 336, 347 (1991) (finding a relationship in the equity-based cases during the second wave).

   [238].        N.J. Const. art. VIII, § 4, ¶ 1 (“The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”).

   [239].        According to a recent study by Education Week, New Jersey spends an average of $13,238 per pupil, compared with a national average expenditure per pupil of $9,644.  Quality Counts 2009, Educ. Wk.,
/qc2009/state_compare.html#table_5 (last visited Sept. 17, 2012).

   [240].        Ga. Const. art. VIII, § 1, ¶ I (“The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia.”).

   [241].        See, e.g., McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981).

   [242].        In Guinn v. Legislature, a dispute between the governor of Nevada and the state legislature over whether the legislature was required to provide funding for a previously approved state education budget, the Supreme Court of Nevada, citing the state constitution’s education clause and holding that it superseded a later-adopted amendment to the state constitution requiring a supermajority for all tax increases, ordered the legislature to approve the tax increases required to fund the previously approved state education budget by simple majority.  See Guinn v. Legislature, 76 P.3d 22, 34 (Nev. 2003).

   [243].        Nev. Const. art. XI, § 2 (“The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.”).

   [244].        N.J. Const. art. VII, § 4, ¶ 1 (“The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”).

   [245].        See Bauries, supra note 3, at 334 (discussing the New Jersey litigation saga).

   [246].        See, e.g., William E. Thro & R. Craig Wood, The Constitutional Text Matters: Reflections on Recent School Finance Cases, 251 Educ. L. Rep. 520 (2010), available at

   [247].        One scholar has described the clauses as “inherently nebulous,” a characterization with which I agree.  See Clayton P. Gillette, Reconstructing Local Control of School Finance: A Cautionary Note, 25 Cap. U. L. Rev. 37, 37 (1996).

   [248].        See S. Afr. Const. art. I, § 29 (1996) (providing for a “right . . . to further education, which the state, through reasonable measures, must make progressively available and accessible”).  See generally Govt. of the Rep. of S. Afr. v. Grootboom 2001 (1) S.A. 46 (CC) (calling for progressive realization of the goal of expanding access to housing).

   [249].        Nearly every state views its education system and the funds used to pay for it explicitly as a public trust.  See, e.g., Ohio Const. art. VI, § 2 (“The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but, no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.”).

   [250].        See, e.g., Davis v. State, 804 N.W.2d 618, 628 (S.D. 2011) (“In the present case, the plaintiffs have the burden of persuading the Court beyond a reasonable doubt that the public school system fails to provide students with an education that gives them the opportunity to prepare for their future roles as citizens, participants in the political system, and competitors both economically and intellectually, and that this failure is related to an inadequate funding system.”); see alsoUsman, supra note 5, at 1478–79 (providing examples from Kentucky and Colorado).

   [251].        William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 503 (1977); Robert A. Schapiro, Judicial Deference and Interpretive Coordinacy in State and Federal Constitutional Law, 85 Cornell L. Rev. 656, 695 (2000); Usman, supra note 5, at 1479; see also James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 146 (1893) (illustrating the ubiquity of the rule, as well as its resilience in the face of challenges, in early state constitutional adjudication).

   [252].        See supra note 185 and accompanying text (discussing Locke’s theory of legislative primacy).

   [253].        See supra notes 180–200 and accompanying text (discussing Locke’s conception of the legislature as the people’s fiduciary).

   [254].        There is some dispute over whether the duty of care is even a fiduciary duty.  Kelli A. Alces, Debunking the Corporate Fiduciary Myth, 35 J. Corp. L. 239, 250 (2009); William A. Gregory, The Fiduciary Duty of Care: A Perversion of Words, 38 Akron L. Rev. 181, 183 (2005).  Nevertheless, it seems that the best way to see the duty of care is as a duty that applies to fiduciaries, but not only to fiduciaries.

   [255].        See Austin W. Scott, The Fiduciary Principle, 37 Calif. L. Rev. 539, 541 (1949).

   [256].        Id.

   [257].        See, e.g., Christopher R. Stevenson, Abusing Abuse of Discretion: Judicial Review of ERISA Fiduciaries’ Discretionary Decisions in Denial of Benefits Cases, 27 Hofstra Lab. & Emp. L.J. 105, 111–12 (2009) (reviewing the adoption of trust law principles to adjudicate individual claims against ERISA fiduciaries).

   [258].        Scott, supra note 255, at 541.

   [259].        Id.

   [260].        Many have criticized the corporate election process, but each of these critiques also finds its way into critiques of legislative electoral processes, such as partisan gerrymandering.  That both systems are flawed in similar ways supports the analogy.

   [261].        See, e.g., Andrew S. Gold, A Decision Theory Approach to the Business Judgment Rule: Reflections on Disney, Good Faith, and Judicial Uncertainty, 66 Md. L. Rev. 398, 436, 436 n.246 (2007) (briefly reviewing these and other justifications for the rule).

   [262].        Franklin A. Gevurtz, The Historical and Political Origins of the Corporate Board of Directors, 33 Hofstra L. Rev. 89, 113–15 (2004).

   [263].        See Franklin A. Gevurtz, The Business Judgment Rule: Meaningless Verbiage or Misguided Notion, 67 S. Cal. L. Rev. 287, 289 (1994) (arguing that the rule is both unnecessary and misguided); Gold, supra note 261, at 432–36 (outlining some of the disagreements and concluding that the rule is an example of an “incompletely theorized agreement”—a doctrine that generates results on which most can agree, but which fails to achieve consensus as to its theoretical justification).

   [264].        See ALI, supra note 208, § 4.01(c).

   [265].        Id. § 4.01(c)(2).

   [266].        Id. § 4.01(c)(3).

   [267].        It should be noted here that this Article does not propose holding legislators accountable individually for breach of the legislature’s duty of care.  The duty to exercise due care in fulfilling an affirmative legislative duty to legislate is a duty that falls upon the legislature as a body and one that is breached only when legislation is passed pursuant to a process that violates the general duty.  See Thro, supra note 3, at 698–99 (making the point that all school finance litigation presents as facial challenges, and like a challenge to Congress’s exercise of its Commerce Power, the violation of the state constitutional duty to fund an education system is complete when the legislation is signed); see also Rosenkranz, supra note 28, at 1273–80 (making the same point about several congressional powers).  Under these formulations, and the one presented herein, which is consistent with them, even if a substantial number of individual legislators violated their duties, if the majority that passed the legislation fulfilled the general duty of care, then the legislation should stand.

   [268].        See supra note 193 and accompanying text (discussing the section five power and Garrett).

   [269].        This is true although a significant, and in my estimation well-taken, critique of the rational basis test is that it does not require the ultimate “basis” that upholds a challenged law to have been the actual basis for that law.  See Neily, supra note 190, at 899–900.

   [270].        For an explanation of the duty of obedience in the nonprofit corporation context, see Nicole Huberfeld, Tackling the “Evils” of Interlocking Directorates in Healthcare Nonprofits, 85 Neb. L. Rev. 681, 703–08 (2007).

   [271].        See supra note 267 (discussing the duty of care in the affirmative duties context).

   [272].        See, e.g., Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 80 (Wash. 1978) (“Declaratory procedure is peculiarly well suited to the judicial determination of controversies concerning constitutional rights and, as in this case, the constitutionality of legislative action or inaction.”).

   [273].        Ky. Const. § 183.

   [274].        Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212–13 (Ky. 1989).

   [275].        See Scott R. Bauries, Foreword: Rights, Remedies, and Rose, 98 Ky. L.J. 703, 709–10 (2010); supra notes 166–67, 173, and accompanying text (discussing Rose).

   [276].        See Bauries, supra note 3, at 325–27 (discussing cases resulting in outright dismissals at the premerits phase).

   [277].        Other scholars have, in the past, proposed mediate approaches, but these proposals have not focused on mediating the merits—only the remedy.  See, e.g., Brown, supra note 134, at 550–56 (arguing in favor of a “middle ground” approach, which would require dialogue during the remedial phase, but not particular judicial deference on the merits); Obhof, supra note 134, at 593–96 (advocating a similar approach).

   [278].        See Alces, supra note 254, at 251 (“[T]he standard [of the corporate duty of care] is a procedural one.  In order to fulfill the ‘duty of care’ directors must only be sure to inform themselves regarding business decisions they make on the corporation’s behalf and must exercise the most rudimentary monitoring of the corporate enterprise.”).

   [279].        ALI, supra note 208, § 4.01(c)(3).

   [280].        See Rachel E. Barkow, More Supreme than Court?  The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 258–63 (2002) (describing the abstention function of the political question doctrine).

   [281].        Smith v. Van Gorkom, 488 A.2d 858, 874 (Del. 1985) (holding that board members who voted to approve a merger after only two hours of debate and without reviewing any documentation regarding the adequacy of the proposed purchase price violated the duty of care), overruled on other grounds by Gantler v. Stephens, 965 A.2d 695, 710 n.45 (Del. 2009).  Most corporate cases appear to conceive of the business judgment rule as a standard of review, rather than a rule of abstention.  Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000) (reaffirming the business judgment standard but rejecting the appellate standard of review).  But some scholars favor the “abstention” approach.  See Stephen M. Bainbridge, The Business Judgment Rule as Abstention Doctrine, 57 Vand. L. Rev. 83, 90 (2004).

   [282].        See Thro, supra note 3, at 688 (arguing that, properly conceived, all education clause litigation presents facial challenges).

   [283].        As discussed below, the “costing-out” studies now familiar to the remedial stages of school finance litigation would seem to fit naturally within this category.  See Wood & Baker, supra note 172, at 143–58 (discussing educational adequacy cost studies).

   [284].        See Bauries, supra note 129, at 735 (discussing remedial abstention).

   [285].        See, e.g., Dunn & Derthick, supra note 128, at 322–23.

   [286].        See David S. Law, A Theory of Judicial Power and Judicial Review, 97 Geo. L.J. 723, 774 (2009).

   [287].        Id. at 777.

   [288].        Id. at 778.  As developed in a forthcoming piece by Ethan Leib, David L. Ponet, and Michael Serota, judges may also have fiduciary duties to the public, one of which is what the authors term “deliberative engagement,” a duty that this kind of signaling supports.  See Leib et al., Judging, supra note 1.

   [289].        See Law, supra note 286, at 774.

   [290].        For a view critical of this assumption, see generally James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992). But see generally Hans A. Linde, State Constitutions Are Not Common Law: Comments on Gardner’s Failed Discourse, 24 Rutgers L.J. 927 (1993) (challenging Gardner’s argument).

   [291].        See Koski, supra note 98, at 1189; Liebman & Sabel, supra note 78, at 184–92; Sabel & Simon, supra note 78, at 1016–21.

   [292].        See generally Sabel & Simon, supra note 78.

   [293].        See Wood & Baker, supra note 172, at 144–68 (reviewing the history of social science “costing-out” studies of educational equity and adequacy and identifying a then-emerging trend whereby advocacy groups conduct their own studies to support planned arguments in litigation); cf. William S. Koski, Courthouses vs. Statehouses?, 109 Mich. L. Rev. 923, 933–936 (2011) (reviewing Eric A. Hanushek & Alfred A. Lindseth, Schoolhouses, Courthouses, and Statehouses: Solving the Funding-Achievement Puzzle in America’s Public Schools (2009) and Michael A. Rebell, Courts & Kids: Pursuing Educational Equity Through the State Courts (2009)).  After a very fair and even-handed review of two books with competing views, Professor Koski seems ultimately sympathetic to Professor Rebell’s view that the consideration of social science evidence by courts is not as problematic as critics would hold it to be, based primarily on the many tools that courts possess, such as the appointment of masters and monitors, to assist them with their work.  Id. at 934–35.  My own view is that it makes little difference whether the judiciary canconsider social-science evidence before we consider whether it should.  Professor Rebell’s argument makes the answer to the former question the answer to the latter as well.  The adoption of the fiduciary approach presented herein clarifies that these are two separate inquiries and that the judiciary’s role in assessing social-science evidence is best limited to a determination of whether the social-science evidence a legislature considered was in fact relevant and material to its funding decision.

   [294].        Wood & Baker, supra note 172, at 143–58 (reviewing the proliferation of this industry and critiquing the methodologies employed in expert costing-out studies).

   [295].        Some state constitutions contain affirmative duties of this sort directed at subjects other than education.  See, e.g., Hershkoff, Welfare Devolution, supranote 49, at 1407 nn.20–23 (citing articles outlining challenges based on state constitutional provisions requiring the legislative provision of welfare services, health care, education, and housing).  In addition, many national constitutions contain these sorts of duties, often directed at multiple policy goals, including education.  See, e.g., Eleanor D. Kinney & Brian Alexander Clark, Provisions for Health and Health Care in the Constitutions of the Countries of the World, 37 Cornell Int’l L.J. 285, 291–301 (2004) (reviewing constitutions requiring the provision of health services); Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 Stan. J. Int’l L. 103, 103–04 n.5 (1991) (reviewing constitutions requiring the protection of the natural environment).


By: Catherine LoTempio*


Today, education reform continues to be at the forefront of issues important to the American public.  Although education reform has taken various forms over the years, one of the more noteworthy developments has been the creation of charter schools through state legislation.[1]  Charter schools emerged in 1991 when Minnesota enacted the first charter school statute, and, since then, the charter school movement has taken off around the country.[2]  Twenty years later, forty-two states and the District of Columbia have enacted charter school legislation.[3]  Nationwide there are more than 4700 charter schools, with a total enrollment of over 1.4 million children.[4]

Recently, the federal government has jumped on the charter school movement bandwagon.  The Obama Administration has demonstrated its support for charter schools by allocating competitive federal funds to states that have fostered charter school growth.[5]  This federal support, combined with the movement’s expansion over the past two decades, makes it likely that charter schools will continue to flourish across the country over the next twenty years.

But today, even after twenty years of expansion, the question of how to properly classify charter schools remains—are charter schools public or private schools?  Although the answer to this question might seem to make little difference to the millions of students educated at charter schools, this classification becomes extremely important when it comes to the legal rights of these students and their teachers.[6]  Specifically, a teacher or student seeking to enforce her constitutional rights against a charter school must allege that the charter school’s actions can be “fairly attributable to the state.”[7]  Unfortunately, federal courts have yet to reach a consensus on whether charter schools are state actors or private entities.

This Comment will explore the Supreme Court’s state action doctrine and how it has been applied to charter schools.  Although courts may lean toward deeming charter schools as state actors, this holding has been called into question by a recent circuit court opinion.[8]  This Comment discusses precedent relied on by some courts and analyzes whether courts should contemplate a different approach when considering state actor status.

Part I begins with the background and history of charter schools, discussing the charter-granting bodies, public funding, and governmental regulations of charter schools.[9]  Part II focuses on the Supreme Court’s state action doctrine, exploring the various tests the Supreme Court has employed in its state action jurisprudence.[10]  Part III identifies ways the state action doctrine has been applied to educational institutions, in both the publicly funded private school and charter school contexts.[11]  Finally, Part IV identifies why precedent cases in the publicly funded private school context are unpersuasive in the charter school context.[12]  Part IV also suggests that a less obvious, but potentially more fitting, comparison for charter schools may be privately owned and operated prisons, and concludes that an application of the public function test leads to a finding of state action.[13]

I.  The Classification of Charter Schools

A charter school is by definition a statutorily created public school run by a private party.[14]  Specifically, charter schools are publicly funded schools under the oversight of private management companies.[15]  Traditionally, public schools have been defined as “school[s] established under state law, regulated by the local state authorities in the various political subdivisions, [and] funded and maintained by public taxation”; while private schools have been defined as “school[s] maintained by private individuals, religious organizations, or corporations.”[16]  Thus, charter schools contain elements of both public and private schools and may be classified as “quasi-public” or “hybrid public schools.”[17]

The original idea behind the creation of charter schools was to reform traditional public schools by holding the individual schools responsible for educational achievement.[18]  To reach this goal, charter schools must be exempt from many of the governmental and bureaucratic controls that plague traditional public schools.[19]  Indeed, education reform would result from parents’ ability to choose between schools and the resulting competition among schools.[20]  This founding theory remains a major influence on the expanding charter school movement across the country.

The creation and requirements of charter schools vary by state.  Although each state’s legislation may differ in certain respects, there are a few characteristics that are present across state lines.  Specifically, charter schools operate through contracts with authorizing bodies, receive public funding, and are subject to various education regulations.[21]  Taken together, these characteristics blur the line between public and private education.

A.     Charter-Granting Bodies

As is evident from their name, charter schools are typically created when a governing body grants a charter to an independent school operator.[22]  Although state law determines which bodies are allowed to grant charters, generally public entities provide such authorization.[23]

The majority of states have permitted local school boards to grant charters.[24]  The rationale is that local school boards have the administrative and educational expertise to best serve the community.[25]  Additionally, various states have looked to existing and newly created agencies to sponsor charters, either exclusively or in conjunction with the local school boards.[26]  Still, some states have chosen higher education institutions as the authorizing bodies for charter schools.[27]  Here, the belief is that post-secondary institutions, especially those with education programs, have the required expertise to grant charters.[28]

Charters are granted for short periods of time, typically between three and five years.[29]  Once granted, a charter functions as a contract that designates the obligations of the school and expectations of the authorizing body.[30]  Thus, the charter may detail the particular mission of the school, the curriculum, and the factors determining whether a charter should be extended.[31]

B.     Funding

Charter schools can be characterized as “public schools of choice.”[32]  This is because the amount of public funding allocated to charter schools depends on the number of students that attend.[33]  Thus, students do not pay tuition to attend a charter school, making charter schools an alternative to the local public schools.  Indeed, charter schools that fail to attract enough students to cover their costs must close.[34]

Moreover, most state statutes explicitly prohibit charter schools from charging tuition.[35]  The few states that do allow tuition to be charged do so only in the limited situations in which a traditional public school would also be permitted to charge tuition.[36]  Federal law, under the No Child Left Behind legislation, explicitly defines a charter school as a school that “does not charge tuition.”[37]  To even qualify for grants or credits under the legislation, a charter school is prohibited from requiring students to pay tuition to attend.[38]

Recently, the federal government has shown its support for charter schools in the American Recovery and Reinvestment Act of 2009.[39]  This legislation provided for 4.35 billion dollars in competitive grants to be allocated to state education agencies from the Department of Education’s Race to the Top Fund.[40]  Grants are awarded to states based on a scoring system which allocates points for a variety of educational reform goals.  When applying for these grants, states that encourage charter school growth may receive up to forty points, out of a total of five hundred.[41]

C.     Regulation

The concept underlying charter schools is to free the operators from some of the bureaucratic regulations that constrain traditional public schools.[42]  For example, charter schools are not subject to the same collective bargaining rights for teachers and thus have more control over employment decisions.[43]  Charter schools are also in charge of their own budget, class size, school-day length, and academic calendar.[44]  In exchange for such freedom, charter schools must meet the student achievement goals detailed in their charters.[45]

Still, charter schools are not free from all governmental regulation.  Generally, state law requires charter schools to be operated by a nonprofit entity, although recently a few states have provided for legislation permitting for-profit operators.[46]  Additionally, charter schools are typically prohibited from charging tuition or administering selective admission practices.[47]  Charter schools are also subject to federal regulation.  Under the No Child Left Behind legislation, charter schools must submit to a yearly progress review.[48]  Moreover, charter schools that receive Title I funding must meet federal accountability guidelines.[49]  Charter schools are further prohibited from discriminating on the basis of disability, race, color, gender, national origin, religion, or ancestry.[50]

II.  Getting Into Court: How Private Litigants Encounter State Action Issues

A.     Color of State Law

Private litigants may allege deprivations of their constitutionally protected rights under 42 U.S.C. § 1983.[51]  In order for an individual to make a claim under Section 1983, she must allege she was deprived of a right secured to her by the Constitution and that such deprivation was committed under the color of state law.[52]  According to the Supreme Court, “if a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for Section 1983 purposes.”[53]  Thus, courts often skip any independent color of state law analysis and proceed directly to the question of state action.[54]  Accordingly, understanding the state actor analysis is essential to the analysis of a Section 1983 claim.

B.     State Action

The Supreme Court first developed the state action doctrine in 1883 while hearing The Civil Rights Cases.[55]  In this set of five consolidated cases, the Supreme Court considered the constitutionality of the Civil Rights Act of 1875.[56]  The Court ruled that the challenged provisions of the Civil Rights Act were unconstitutional and held that the Fourteenth Amendment applied only to state actors, not private parties.[57]  Thus, when a party challenges the actions of another under the Fourteenth Amendment, a court must first determine whether the challenged actions constitute state action.[58]

After the initial development of the state action doctrine, it was the role of the courts to determine the line between purely private activity and state action.[59]  Drawing this line has been one of the most “troublesome areas of civil rights litigation,”[60] and there is no “precise formula” that the Supreme Court will apply.[61]  Therefore, each case’s particular facts and circumstances must be evaluated.[62]  Still, over the years, the Supreme Court has employed five various tests to help guide its analysis.  The five tests include (1) the public function test; (2) the symbiotic relationship test; (3) the close nexus test; (4) the joint participation test; and (5) the pervasive entwinement test.[63]  Each of these tests will be discussed in turn below.

Before discussing the various tests employed by courts, it is important to note some principles that have emerged from the case law.[64]  First, a private entity may be considered a state actor for some purposes but not for others.[65]  As a result, courts consider whether the party’s particular conduct qualifies as state action, not whether the particular party is itself a state actor.[66]  Second, each court’s holding must be considered in light of the judicial viewpoints employed during that particular era.[67]  For example, the Warren Court was characterized by an expansive view of the federal government and state action, while the later Burger and Rehnquist Courts attempted to narrow the reach of federal power through the state action doctrine.[68]  The current Court has continued to apply the state action doctrine in a restrictive and stringent manner.[69]

1.     The Public Function Test

One test established by the Supreme Court is commonly referred to as the “public function test.”[70]  Under the public function test, state action is found where the state has delegated to the private sector functions that have historically and traditionally been governmental functions.[71]  This test is founded on the theory that the government cannot avoid its constitutional obligations by delegating its functions to the private sector.[72]  Rather, if the government is going to delegate particular functions, it must also delegate the accompanying constitutional obligations.[73]

The Supreme Court has since narrowed the public function test by adding the requirement that any delegated function must not only be historically and traditionally a function of the state, but must also be “the exclusive prerogative of the State.”[74]  Applying this requirement demonstrates that providing important functions or public services is alone insufficient to meet the public function test.[75]  Because few functions can meet the “exclusivity” requirement, the narrowed version of the public function test has proven extremely difficult to satisfy.[76]

2.     The Symbiotic Relationship Test

In its 1961 decision, Burton v. Wilmington Parking Authority,[77] the Supreme Court established a test known as the “symbiotic relationship test.”[78]  Although the Court never coined the phrase “symbiotic relationship,” it held that the state municipal parking garage had “so far insinuated itself into a position of interdependence” with a privately owned restaurant by leasing part of its lot to the restaurant.[79]  Indeed, the Court reasoned that any alleged constitutional violations “[could not] be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.”[80]  However, in the 1972 case, Moose Lodge No. 107 v. Irvis, the Supreme Court failed to find state action on the basis of a symbiotic relationship where a private party was issued a liquor license by the state.[81]  Rather, the Court distinguished Burton stating, “[h]ere there is nothing approaching the symbiotic relationship between lessor and lessee that was present in Burton.”[82]

Although the symbiotic relationship test has never been overruled, it has fallen out of favor with the Supreme Court over the years.[83]  For example, the Supreme Court’s analysis in Jackson v. Metropolitan Edison Co.[84] demonstrates the narrow interpretation of the rule now employed by the Court.[85]  The Court held that a utility company’s termination of services did not amount to state action even though the utility was highly regulated, entitled to partial monopoly status, and provided an essential public service.[86]  Subsequent lower courts have also adhered to the narrow interpretation of the symbiotic relationship test, rarely finding state action.[87]  Accordingly, the symbiotic relationship test remains severely restricted and an unpersuasive tool for a litigant attempting to establish state action.

3.     The Close Nexus Test

The “close nexus test” employed by the Supreme Court seeks to determine “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”[88]  In defining the parameters of the test, the Court has established that “[m]ere approval of or acquiescence in the initiatives of a private party” is not sufficient to meet the close nexus test.[89]  Furthermore, neither government licensing and regulation nor the provision of governmental benefits satisfy the close nexus test.[90]

The close nexus test is not easily satisfied.[91]  Ultimately, the test is a fact-specific analysis under which a court will only find state action where the state has “ordered, coerced, or significantly encouraged the specific conduct under attack.”[92]

4.     The Joint Participation Test

The Supreme Court has found state action where private parties act jointly or in concert with state officials.[93]  Thus, the “joint participation test” is met when the parties conspire to violate the plaintiff’s constitutional rights.[94]  Furthermore, the test is also met where a private party cooperates with the state in a procedure that violates constitutional rights.[95]  Cooperation implicating state action exists where the state creates procedures and a private party invokes the help of state officials to take advantage of those procedures.[96]

As previously noted, the modern Supreme Court has limited the state action doctrine by applying restrictive versions of the public function, symbiotic relationship, and close nexus tests.[97]  Thus, litigants often rely on the joint participation doctrine when attempting to allege constitutional deprivations that constituted state action.[98]  However, the joint participation requirement is not easily met because the lower courts require a plaintiff to plead more than a conclusory allegation of joint action.[99]  Rather, “the pleadings must specifically present facts tending to show agreement and concerted action.”[100]

5.     Pervasive Entwinement Test

In the 2001 decision Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, the Supreme Court established yet another test for resolving the state action issue.[101]  In Brentwood Academy, the Court held that a statewide interscholastic athletic association’s enforcement of a regulatory prohibition constituted state action.[102]  The Court found a “pervasive entwinement” between state officials and the association because almost all of Tennessee’s public schools were members of the association, most of the association’s members were public school officials, the majority of the association’s funding came from the state, and the association governed intercollegiate athletics in lieu of the state’s Board of Education.[103]

The pervasive entwinement test can be viewed as the Court’s attempt to expand the state action doctrine outside the scope of the more restrictive state function, close nexus, and joint participation doctrines.  In Brentwood Academy, the Court did not rely on coercive acts or joint action by the state, nor did the Court claim the association was performing an exclusive state function.[104]  Rather, the Court relied on the appearance of state action through the association’s sufficient contacts with state officials, which the Court referred to as entwinement.[105]  Compared to the other state action doctrines, the entwinement test examines the totality of the circumstances.[106]

III.  State Action Applied to Educational Institutions

When courts have faced state actor issues in cases involving various types of educational institutions, they have attempted to apply the aforementioned state actor tests.  However, courts’ application of the tests in the education realm has been less than consistent.  That is, courts employ various tests and approaches and have ultimately come to some incongruous conclusions.  This Part discusses the details of various courts’ application of the state action doctrine to private schools receiving public funding as well as charter schools.

A.     State Action Applied to Private Schools Receiving Federal Funding

Before courts began addressing state action issues in cases involving charter schools, courts were faced with an analogous issue when constitutional violations were asserted against private education institutions receiving public funding.  Not surprisingly, divergent court approaches have effectively created an inconsistent body of case law on the issue.

1.     The Supreme Court: Rendell-Baker v. Kohn

In 1982, the Supreme Court granted certiorari in Rendell-Baker v. Kohn[107] to decide whether “a private school, whose income is derived primarily from public sources and which is regulated by public authorities, acted under color of state law when it discharged certain employees.”[108]  The underlying cases involved claims by employees of New Perspectives School against the director of the school, Kohn.  The employees claimed Kohn wrongly discharged them, in violation of their First and Fourteenth Amendment rights, for speaking out against school policy.[109]

New Perspectives School was a nonprofit private institution operated by a board of directors, none of whom were public officials.[110]  The school specialized in educating maladjusted teenagers, with a majority of the students being referred to the school by city school committees or the Drug Rehabilitation Division of the Massachusetts Department of Mental Health.[111]  During the years in question, the school’s budget consisted of between ninety and ninety-nine percent public funds, and none of the school’s students paid tuition.[112]  Additionally, New Perspectives School’s public funding was conditioned upon compliance with a variety of regulations.[113]

In 1980, the District Court for the District of Massachusetts granted summary judgment to the defendant in the lawsuit brought by plaintiff Rendell-Baker, holding that New Perspectives School was not a state actor.[114]  However, nine days earlier a different judge in the District of Massachusetts reached the opposite conclusion in a lawsuit brought by five other teachers at New Perspectives School.[115]  The Court of Appeals for the First Circuit consolidated the two actions and held that, although the school was regulated by the state, it was not dominated by the state and therefore its actions in dismissing the various plaintiffs did not constitute state action.[116]

In affirming the First Circuit’s opinion, the Supreme Court addressed four factors the petitioners claimed required the Court to find that the school’s decision to discharge them amounted to state action.[117]  First, the Court reasoned that even though the state subsidized the students’ tuition, “the school’s receipt of public funds does not make the discharge decisions acts of the state.”[118]  Although the lower court found public funding to be a strong factor supporting a claim of state action, the Supreme Court relied on its holding in Blum v. Yaretsky,[119] where the Court held “that the similar dependence of nursing homes did not make the acts of the physicians and nursing home administrators acts of the State . . . .”[120]  Furthermore, the Court analogized to a public defender paid by the state whose “relationship with her client was ‘identical to that existing between any other lawyer and client.’”[121]  The Court stated that public funding of student tuition did not change the relationship between the school and its employees.[122]

Second, the Court reasoned that although the school was heavily regulated, “the decisions to discharge the petitioners were not compelled or even influenced by any state regulation.”[123]  Again, the Court based its holding on Blum, where even extensive regulation did not make a private party’s actions state action.[124]  Third, the Court reasoned that the fact that the school was providing an important state function was insufficient to find state action; rather, the issue was “whether the function performed has been ‘traditionally the exclusive prerogative of the state.’”[125]  While the education of “maladjusted high school students” was undoubtedly a public function, the legislative policy to provide for the education does not make it an exclusive state function.[126]  Lastly, the Court reasoned that there was no “symbiotic relationship” between the school and the state.[127]  Instead, “the school’s fiscal relationship with the State [was] not different from that of many contractors performing services for the government.”[128]

2.     The Tenth Circuit: Milonas v. Williams

In a subsequent 1982 decision, Milonas v. Williams, the Tenth Circuit held that a private boys school’s treatment of its students was sufficiently connected to the state to be characterized as state action.[129]  The plaintiffs alleged that the Provo Canyon School had allowed their students to be subjected to “cruel and unusual punishment, antitherapeutic and inhumane treatment, and denial of due process of law.”[130]  The Provo Canyon School was a privately owned and operated school that specialized in educating teenage boys who required treatment in a restricted environment.[131]  Many of the students at the school were placed there by the local school districts, with state and federal agencies funding their tuition.[132]

In holding that the school’s treatment of its students amounted to state action, the Tenth Circuit distinguished the case from the Supreme Court’s holding in Rendell-Baker.[133]  Although the Tenth Circuit found that the Provo Canyon School was quite similar to the defendant school in Rendell-Baker, the court noted that “[t]he plaintiffs in the present case [were] not employees, but students” and therefore Rendell-Baker was not controlling on the state action issue.[134]  The court also emphasized that the Supreme Court’s holding in Rendell-Baker was limited to a private school’s action in discharging employees.[135]  Furthermore, the court pointed out that the First Circuit’s Rendell-Baker opinion stated that students in the school “would have a stronger argument than do plaintiffs that the school’s action toward them” is state action.[136]

Additionally, the Tenth Circuit held that “the state ha[d] so insinuated itself in the Provo Canyon School as to be considered a joint participant in the offending actions.”[137]  The court’s holding was supported by the fact that state agencies placed many of the students in the Provo Canyon School and that state officials were aware of, and even approved of, the school’s practices.[138]  The Court also found it relevant that there was significant state funding and regulation of the school.[139]

3.     The Third Circuit: Robert S. v. Stetson School

In a 2001 decision, Robert S. v. Stetson School, Inc., the Third Circuit held that a private school’s treatment of its students was not state action.[140]  The lawsuit involved a student’s claim that Stetson School and its staff members violated his constitutional rights by subjecting him to “physical and psychological abuse.”[141]  Stetson School was a private residential school specializing in the education and treatment of sex offenders.[142]  The school received funding from the state in the amount of $200 per day per student, and any costs not covered by tuition were paid by private grants or other charitable contributions.[143]

Mainly relying on the Supreme Court’s holding in Rendell-Baker, the Third Circuit held that Stetson School’s actions did not amount to state action.[144]  The court reasoned that Stetson School’s receipt of federal funding did not make it a state actor.[145]  The court also explained that Stetson School did not provide a function that was traditionally an exclusive province of the state because “the only schools that offered services similar to those provided by Stetson were private schools.”[146]

4.     The First Circuit: Logiodice v. Trustees of Maine Central Institute

In 2002, the First Circuit, in Logiodice v. Trustees of Maine Central Institute, held that a private school under contract with the local government to provide secondary education was not a state actor.[147]  In Logiodice, the underlying dispute involved a student’s allegations that the Maine Central Institute (“MCI”) violated his due process rights by suspending him without a hearing.[148]  MCI was a private high school that contracted with a local government agency to provide secondary education to students.[149]  The local government did not operate a public high school in the area, but rather underwrote secondary education exclusively through its contract with MCI.[150]  The contract required MCI to accept and educate all the students in the district, and, in exchange, the school district paid the students’ tuition.[151]

In holding that MCI’s decision to suspend the plaintiff without a hearing was not state action, the First Circuit rejected both the public function and entwinement tests as methods of finding state action.[152]  First, the court reasoned that public education was not an exclusive province of the state because private schools receiving public funding were widespread even before municipalities developed their own public schools.[153]  Second, the court reasoned that MCI was not entwined with the government because it was run by private trustees who had the sole right to enforce disciplinary rules.[154]

B.     State Action and Charter Schools: The Circuit Split

1.     The Federal Courts’ Initial Lack of Analysis

When federal courts were first faced with alleged constitutional violations by charter schools, the courts failed to address the initial issue of whether charter schools are state actors for the purposes of Section 1983 claims.[155]  Rather, the courts simply assumed that charter schools were state actors and moved on to the merits of the underlying cases.[156]

For example, in Jones v. SABIS Educational Systems, Inc., the United States District Court for the District of Illinois assumed that the management company of a charter school was a state actor.[157]  In Jones, the charter school’s former principal alleged, among other things, that his discharge was in violation of his First Amendment rights.[158]  The court never made a factual inquiry pertaining to the state actor issue, but rather assumed the charter school was a “public school,” and therefore characterized it as a “governmental body.”[159]  The court dismissed the complaint on alternative grounds, holding that the plaintiff failed to allege his dismissal was motivated by the school’s official custom or policy.[160]

Similarly, in Daugherty v. Vanguard Charter School Academy, the United States District Court for the Western District of Michigan also failed to undergo any state actor analysis.[161]  Daugherty involved a charter school’s alleged violation of the Establishment Clause.[162]  As in Jones, the court referred to the charter school as a “public school” but made no factual determinations as to whether it was a state actor.[163]  Instead, the court assumed the charter school’s alleged actions constituted state action but nevertheless dismissed the complaint because the plaintiff failed to provide sufficient evidence of an official custom or policy.[164]

2.     A Movement Toward a Traditional State Actor Analysis

Eventually, some federal courts began to recognize a need to address the state action issue when charter schools were sued for constitutional violations under Section 1983.  Although courts have attempted to apply the various state action tests to resolve the issue, most courts have faced a muddled precedent of case law and have therefore failed to come to consistent resolutions.

In Reister v. Riverside Community School, the United States District Court for the Southern District of Ohio finally addressed the state actor issue with regard to a charter school.[165]  In Reister, a former teacher at a community school alleged that her discharge violated of her First Amendment rights.[166]  Initially, the court determined that the community school was a state actor because community schools are public under the state legislation.[167]  The court continued its analysis by addressing the issue under the public function test, holding that “free, public education, whether provided by public or private actors, is an historical, exclusive, and traditional state function.”[168]  The court also employed the entwinement test, holding that because the community school was “granted the authority to provide free public education to all students in a nondiscriminatory manner,” it was “so entwined with governmental policies” that it must be considered a state actor.[169]  Finally, the court distinguished the case from Rendell-Baker and Logiodice on the grounds that, as a charter school, the community school was created under state legislation unequivocally designating it as a public school.[170]

In Scaggs v. New York State Department of Education, the United States District Court for the Eastern District of New York faced the state action issue while addressing a constitutional violation alleged against a charter school.[171]  In Scaggs, the underlying claim involved allegations against a charter school for failure to provide adequate education to disabled children in violation of the Equal Protection Clause.[172]  The court differentiated the case before it from Rendell-Baker and held that “claims addressing the nature and quality of education received at charter schools may be properly brought against such schools and their management companies under Section 1983.”[173]  The court reasoned that the state is only minimally involved in claims concerning employment, like the claims underlying theRendell-Baker case.[174]  Rather, the court held that where “the claims relate to the alleged total inadequacy of a school to provide free public education to its students while receiving state funding, being bound to state educational standards and purporting to offer the same educational services and facilities as any other public school,” the charter school must be considered a state actor.[175]

Most recently in Caviness v. Horizon Community Learning Center, Inc., the Ninth Circuit held that a charter school was not a state actor.[176]  The underlying claim in the case was brought by a former teacher at the Horizon charter school alleging violations of his due process right to obtain employment.[177]  In holding that the charter school was not a state actor, the Ninth Circuit made the preliminary determination that “the relevant inquiry” was whether the charter school’s role “as an employer was state action.”[178]  Furthermore, the court noted that “a private entity may be designated a state actor for some purposes but still function as a private actor in other respects.”[179]

Moreover, the court in Caviness understood the holding in Rendell-Baker to mean that the Supreme Court foreclosed any argument that public education was a traditional and exclusive province of the state.[180]  The court was not persuaded by the fact that the school in Rendell-Baker was private, while the charter school was designated as public.[181]  Notably, the Ninth Circuit emphasized that the statutory designation of a charter school as public is not necessarily controlling.[182]  The court stated that the plaintiff’s characterization of the charter school as public “does not itself avail him in the employment context.”[183]

IV.  Analysis

A.     State Action as Applied to Charter Schools Lacks Comprehensive Precedent

Although most courts faced with a state actor issue in the charter school context have found charter schools to be state actors, courts have rarely employed a comprehensive analysis.[184]  Rather, courts have tended to simply assume charter schools to be state actors.[185]  Even the courts that have analyzed the issue have employed different approaches,[186] with the Ninth Circuit distinctly refusing to find state action.[187]

The result of these conflicting and often cursory analyses is a lack of persuasively reasoned precedent.  This creates the unfortunate possibility that some courts may be tempted to start from the wrong end of the analysis—deciding the outcome before fully analyzing the issue.  Practically, a court may thus pick and choose the arguments that will ultimately lead to desired outcomes.  All too often, this may be a consequence of the muddled state actor doctrine and its inconsistent application to the education context, combined with the general inclination of courts to find that charter schools are in fact public schools.[188]

Courts are not wrong to be inclined to characterize charter schools as public schools.  Charter schools were first envisioned as public schools, and are now created by state law and publicly funded.[189]  Furthermore, the federal government has backed charter schools in efforts to reform state public education.[190]  However, the Supreme Court’s recent attempts to limit the state actor doctrine have made it more difficult for courts to hold a charter school as a state actor without a more thorough analysis.[191]

1.     Limitations on the Public Function Test

One reason courts addressing state action issues in the charter school context are faced with an uphill battle is the currently limited application of the public function test to educational institutions.  Initially, the Supreme Court held in Rendell-Baker that the education of maladjusted students is not an “exclusive province of the State,” thus preventing application of the public function test.[192]  Later, circuit courts applied this same analysis to negate a public function argument.  For example, the First Circuit broadened the premise and held that education generally, and specifically public education in Maine, was never a function ‘“exclusively’ provided by government.”[193]

The problem is that courts analyzing the state actor issue in the charter school context are faced with precedent holding that public education is not the “exclusive province of the State.” [194]  Thus, any public function argument may be null due to the exclusivity requirement.  Indeed, the Ninth Circuit accepted this argument inCaviness.[195]  The court reasoned that charter schools are similar to the school for maladjusted students in Rendell-Baker, and thus the Supreme Court had foreclosed any argument that charter schools provide an exclusive public function.[196]

However, this reasoning is ill conceived for two major reasons.  First, courts, including the Ninth Circuit, have broadened the holding in Rendell-Baker further than the Supreme Court intended.  The Supreme Court stated that the education of maladjusted students was not an “exclusive province of the State.”[197]  The Court focused on the education of maladjusted students in particular and did not seek to address a broader educational context.  Although the school in Rendell-Baker was similar in some respects to a charter school, the Supreme Court has not explicitly spoken on whether charter schools provide an exclusive public function.[198]

Second, while the exclusivity requirement may be necessary to limit the far-reaching scope of the public function test, it is at odds with the doctrine itself when considering the characteristics of charter schools.[199]  The rationale of the public function test is to prohibit the government from delegating its functions to private actors and thus avoid constitutional obligations.[200]  The exclusivity requirement seems to be an attempt to prevent a private actor performing a “traditionally” public function from being deemed a state actor where delegation has not truly come from the state.  Rather, where the function is for the public but not exclusively provided for by the government, private actors are not necessarily acting as the state.

Most charter schools, however, are performing a state function through a contract with the public school system.[201]  Charter schools are an attempt by the state to delegate its education function to a private party in order to realize the benefits of choice and competition, which are otherwise lacking in public education.[202]  Although private parties run and manage charter schools, the government is still providing for the students’ education through contracts and public funding.  Thus, a charter school is performing a public function delegated by the state and should be considered a state actor, regardless of whether public education has been “exclusively” provided for by the government.

2.     The Downplayed Role of Public Funding and Governmental Regulation

A second reason courts may struggle to find state action in the charter school context is that previous opinions have continually downplayed the role of public funding and governmental regulation in the state actor analysis such that any argument relying on such features are seemingly unpersuasive.  Indeed, the various courts that have addressed state action in the charter school context have failed to effectively analyze the issues of public funding and governmental regulation as a result of the Supreme Court’s decision in Rendell-Baker and its progeny.[203]  In Rendell-Baker, the Supreme Court held that public funding was insufficient to find state action for a school’s discharging decisions.[204]  Furthermore, the Court held that state regulation of schools was not enough to constitute state action because the regulation did not compel or influence any such decisions.[205]  Once again, subsequent federal courts have relied on Rendell-Baker to support the conclusion that public funding and state regulation are never sufficient to turn a private actor’s decisions into state action.  Specifically, the Third Circuit relied on Rendell-Baker to hold that state funding and regulation were insufficient to establish state action in Robert S. v. Stetson School.[206]

However, this same conclusory analysis is inapplicable in the charter school context—at least without further review.  First, charter schools differ from the private schools at issue in Rendell-Baker and other publicly funded private schools.[207]  In Rendell-Baker, only students who were referred to the school by the city or state did not pay tuition.[208]  While ninety to ninety-nine percent of the school’s budget was publicly funded during the few years leading up to the case and none of its students paid tuition, the school was not required to prohibit private funding.[209]  Indeed, students were permitted to attend the school by choice and pay tuition.[210]  On the other hand, tuition at charter schools is exclusively publicly funded.[211]  Furthermore, compared with the school in Rendell-Baker, which contracted with the city school district to provide education on a student-by-student basis, charter schools are chartered to provide education to a community as a whole and are prohibited from using selective admissions practices.[212]  Charter schools must also continuously meet the standards set in their charters and are subject to federal progress reviews.[213]  Thus, although charter schools may seem similar to the school in Rendell-Baker, they have their own unique characteristics, which deserve a specified state actor analysis.  Without further review, any conclusory holdings that public funding and state regulation are not sufficient to establish state action are inadequate.

Second, reliance on Rendell-Baker should not excessively broaden the proposition that state regulation and funding are insufficient to establish state action; any holdings which depend on this rationale outside the context of a plaintiff’s wrongful discharge tend to go too far.  According to the Supreme Court, state actor analyses should always begin by determining what action taken by the alleged state actor is in dispute.[214]  It is a sound principle of constitutional law that a private party may be deemed a state actor in some contexts, but not others.[215]

The Supreme Court in Rendell-Baker made clear that its analysis of state action is applicable only in relation to the school’s discharge of the plaintiffs.[216]  The Court reasoned that “the school’s receipt of public funds [did] not make its discharge decisions acts of the state.”[217]  Furthermore, the Court stated that regulations did not compel or influence the school’s discharge decisions, and thus, such decisions were not sufficient to find state action.[218]  However, where a school is acting as an educator rather than an employer, a different analysis comes into play, and a court’s reliance on Rendell-Baker may be misguided.

In sum, Rendell-Baker and subsequent circuit court decisions are ill-suited precedents for courts to rely on in the charter school context.  Rather, courts should develop a new line of case law that fully analyzes the issue with regard to charter schools and their unique characteristics.

B.     State Action & Private Prisons: A Useful Comparison for Charter Schools

In developing the state action doctrine in the charter school context, one useful area of jurisprudence may be state action as it has been applied to privately run prisons.  Indeed, prisons may be more like schools than one might think, at least in understanding state action.  Much like charter schools, prisons may be privately owned or run by private management companies.[219]  Generally, where plaintiffs allege constitutional violations against private prisons or a private prison management company, the courts find state action.[220]

1.     State Action in the Private Prison Context

In West v. Atkins, the Supreme Court addressed the issue of whether a physician under contract with the state to treat prisoners at a state-run prison hospital was a state actor.[221]  The Court held that the physician was an employee of the state, and therefore a state actor.[222]  Specifically, the Court reasoned that the physician was authorized and obligated to provide medical services to inmates, and thus did so “clothed with the authority of state law.”[223]  Additionally, in 2001, the Supreme Court in Correctional Services Corp. v. Malesko held that private prisons may be state actors.[224]  The Court stated that “state prisoners . . . already enjoy a right of action against private correctional providers under 42 U.S.C. § 1983.”[225]

Where plaintiffs allege violations of their constitutional rights against private prison management companies, courts have often cited West and held that actions by private prison management companies constitute state action.[226]  For example, in Skelton v. Pri-Cor, Inc., the Sixth Circuit held that a private corporation managing a prison was a state actor for Section 1983 purposes.[227]  The court reasoned that a private corporation managing a prison was “performing a public function traditionally reserved to the state.”[228]  Furthermore, the court stated that “the power exercised by [the private prison] [was] ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’”[229]  The Fifth Circuit adopted the Sixth Circuit’s reasoning when it found state action by a private prison-management corporation in Rosborough v. Management & Training Corp.[230]

One potential obstacle present when trying to find state actor status for private prisons may arise because of the exclusivity requirement of the public function test.[231]  Notably, in Richardson v. McKnight, the Supreme Court was presented with the question of whether a private prison’s employees were entitled to qualified immunity.[232]  Although it never directly addressed the issue, the Court necessarily assumed that private prisons were state actors.[233]  However, in analyzing the immunity issue, the Court explored the history of prison operations in the United States and stated “correctional functions have never been exclusively public.”[234]

Accordingly, if the exclusivity requirement was strictly applied in the case of private prisons, prisons would fall outside the realm of state action under a public function test.[235]  Disturbingly, the consequences of such a decision might prevent courts from using the Fourteenth Amendment to prohibit the brutal treatment of prisoners.[236]  Although the Supreme Court has never directly resolved the issue of whether a privately run prison is a state actor, it is for this reason that lower courts have largely held that private prisons are state actors.[237]  Otherwise, the policy behind the public function test, to prevent the delegation of governmental functions without the joint delegation of constitutional obligations, would be effectively lost.

2.     Public Function Test Applied to Charter Schools

It is easy to see why private prison management companies that own and operate state prisons serve as guidance to courts analyzing the state action issue in the charter school context.  The funding and management of charter schools tend to be very similar to that of private prisons.  Much like private prison management companies that own and operate state prisons, charter school management corporations own and operate public schools.[238]  Thus, a public function test similarly applied to charter schools should allow for a finding of state action.

State law provides the authority for the chartering of schools within the state.  This authority allows school districts and other governmental bodies to contract with private management companies who own and operate a charter school to provide public education.[239]  Thus, any wrongdoing alleged against a charter school in its provision of public education is only made possible “because the wrongdoer is clothed with the authority of state law.”[240]  Furthermore, by providing public education, charter schools are “performing a public function traditionally reserved to the state.”[241]

Once again, it is important to note that the public function doctrine should not be limited by the exclusivity requirement in the charter school context.[242]  As stated above, the Supreme Court has previously suggested that prison management functions have never been reserved exclusively to the state.[243]  Rather, private individuals have operated jails throughout this country’s history.[244]  However, like in the private prison context, a failure of the exclusivity requirement should not limit the application of the public function doctrine to charter schools.[245]  Much like the right to operate private prisons, the ability to provide public education has been delegated by the state.  Without a delegation from the state, public education would not be possible.  Thus, the fact that private actors may have provided public education throughout history should not exempt publicly funded schools, like charter schools, from meeting the public function test to find state action.

The state actor analysis of privately owned prisons may also suggest that plaintiffs alleging wrongful termination against a charter school may not have a valid claim for state action compared to a plaintiff alleging wrongdoing by the charter school in its education function.  In its 2005 opinion Cornish v. Correctional Services Corporation, the Fifth Circuit refused to deem a privately owned prison a state actor when a former employee alleged wrongful discharge.[246]  Rather, the court held that although the private prison was performing a public function when it provided juvenile correctional services, the same prison was not a state actor when it acted in its role as an employer.[247]  The Fifth Circuit’s conclusion is also persuasive in the charter school context.  Although a charter school may be performing a state function by providing public education, it is not performing a state function when it acts in its role as an employer.[248]  Thus, it is important for each court addressing a state function issue to first determine what function the charter school was performing at the time of its alleged wrongdoing.


As discussed in this Comment, the Supreme Court’s application of the state action doctrine is anything but consistent.  This reality is apparent when federal courts have attempted to analyze the issue in the charter school context.  As states across the country have facilitated the spread of charter schools, courts have begun to flirt with a limited application of the state action doctrine to charter schools.  This flirtation is a result of the Supreme Court’s ruling in Rendell-Baker and subsequent federal cases holding that private schools receiving public funds are not state actors.  However, reliance on this jurisprudence as precedent may be misguided; the unique characteristics of charter schools differentiate them from the private schools considered by the Supreme Court and its progeny.

Rather, Rendell-Baker and the subsequent federal cases holding private schools receiving public funds are not state actors should be limited to their specific facts rather than extended inappropriately to seemingly similar schools.  Courts need to develop an analysis that is specific to charter schools, taking into account their unique attributes.  Still, a better comparison may be with the public function doctrine applied to privately owned and managed prisons.  In the end, a simple application of the public function test should allow a court to hold a charter school to be a state actor under the specific circumstances, keeping in mind the charter schools may be state actors in some contexts and not in others.


        *   J.D. Candidate 2012.  The Author would like to thank Professor Wendy Parker for her inspiration and the entire Law Review for its work on this piece, especially Tom Filopoulos, Jess Rutledge, and Hannah Davis for their hard work, encouragement, and support.

        [1].   Julie F. Mead, Devilish Details: Exploring Features of Charter School Statutes That Blur the Public/Private Distinction, 40 Harv. J. on Legis. 349, 349 (2003).

        [2].   Id. at 349–50.  See generally Minn. Stat. Ann. § 124D.10 (West 2008).

        [3].   Charter School Law, The Center For Educ. Reform, (last visited Oct. 27, 2011).

        [4].   Multiple Choice: Charter School Performance in 16 States, Center for Research on Educ. Outcomes at Stanford Univ. 6 (June 2009),

        [5].   See American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, § 703, 123 Stat. 115,181–84 (2009); see also Race to the Top Fund, 74 Fed. Reg. 59,688 – 59,691 (Nov. 18, 2009) (implementing the educational reform goals of the ARRA, including funding to charter schools).

        [6].   See infra Part III.

        [7].   Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

        [8].   See generally Caviness v. Horizon Cmty. Learning Ctr., 590 F.3d 806 (9th Cir. 2010) (finding a former teacher’s allegations insufficient to raise a reasonable inference that a charter school was a state actor).

        [9].   See discussion infra Part I.

      [10].   See discussion infra Part II.

      [11].   See discussion infra Part III.

      [12].   See discussion infra Part IV.A.

      [13].   See discussion infra Part IV.B.

      [14].   Lori A. Mullholland & Louann A. Bierlein, Understanding Charter Schools 7–8 (Phi Delta Kappa Educ. Found. ed., 1995).

      [15].   See generally Stephen D. Sugarman & Emlei M. Kuboyama, Approving Charter Schools: The Gatekeeper Function, 53 Admin. L. Rev. 869 (2001).

      [16].   Black’s Law Dictionary 1372 (8th ed. 2009).

      [17].   Mead, supra note 1, at 352; see also Thomas L. Good & Jennifer S. Braden, The Great School Debate: Choice, Vouchers, and Charters 120 (2000); Sandra Vergari, The Charter School Landscape 2 (Sandra Vergari ed., 2002).

      [18].   Joe Nathan, Charter Schools: Creating Hope And Opportunity For American Education 1 (1996).

      [19].   Id.

      [20].   Id.

      [21].   Sugarman & Kuboyama, supra note 15, at 917–24.

      [22].   James Forman, Jr., Do Charter Schools Threaten Public Education? Emerging Evidence from Fifteen Years of a Quasi-Market for Schooling, 2007 U. Ill. L. Rev. 839, 843.

      [23].   Sugarman & Kuboyama, supra note 15, at 880.

      [24].   Id.  For a more detailed description of chartering authority in the states, see Eileen M. O’Brien & Chuck Dervarics, Charter Schools: Finding Out the Facts, Center for Pub. Educ. (Mar. 24, 2010),

      [25].   Sugarman & Kuboyama, supra note 15, at 880.  In seven states the sole responsibility of sponsoring charters rests with the local school board.  O’Brien & Dervarics, supra note 24, at tbl.1.  These states include Illinois, Maryland, Oregon, Pennsylvania, Tennessee, Virginia, and Wyoming.  Id.

      [26].   Sugarman & Kuboyama, supra note 15, at 881.  For example, in ten states the State Board of Education approves charters in conjunction with the local school board, while three states assign the entire responsibility to the State Board of Education.  Moreover, the District of Columbia and Hawaii have created charter boards to make charter approval decisions.  O’Brien & Dervarics, supra note 24, at tbl.1.

      [27].   Sugarman & Kuboyama, supra note 15, at 880, 882.  For example states including Michigan, Wisconsin, and New York have assigned authorizing authority to public universities or community colleges.  Id. at 882.

      [28].   Id.

      [29].   O’Brien & Dervarics, supra note 24.

      [30].   Julia L. Davis, Contracts, Control and Charter Schools: The Success of Charter Schools Depends on Stronger Nonprofit Board Oversight to Preserve Independence and Prevent Domination by For-Profit Management Companies, 2011 BYU Educ. & L.J. 1, 6.

      [31].   Id.

      [32].   Robin J. Lake, Can Charter Schools Become a Crossover Hit?, in Hopes, Fears, & Reality: A Balanced Look at American Charter Schools in 2009 at vii, vii (Robin J. Lake ed., Univ. of Wash. Ctr. on Reinventing Pub. Educ. 5th ed. 2010), available at

      [33].   Id.

      [34].   Id.

      [35].   Mead, supra note 1, at 367.

      [36].   Id.  For example, tuition may be charged where the student lives outside of the particular school district.  Id.

      [37].   Id. (quoting No Child Left Behind Act of 2001, 20 U.S.C. § 7221i(F) (2006)).

      [38].   Mead, supra note 1, at 367.  “The credit enhancement provision of the No Child Left Behind Act provides federal funds to be used as collateral to facilitate the ability of the ability of charter schools to borrow funds ‘to address the cost of acquiring, constructing, and renovating facilities.’”  Id. at 367 n.155 (quoting 20 U.S.C. § 7223 (2002)).

      [39].   Pub. L. No. 111-5, 123 Stat. 115 (2009); O’Brien & Dervarics, supra note 24.

      [40].   74 Fed. Reg. 59,688 (Nov. 18, 2009); O’Brien & Dervarics, supra note 24.

      [41].   O’Brien & Dervarics, supra note 24.  Under the program the government will compare per-student funding at charter schools with traditional public schools and look for the existence of charter school legislation or the removal of caps preventing charter schools from entering the state.  Id.

      [42].   See O’Brien & Dervarics, supra note 24; see also Forman, supra note 22, at 843.

      [43].   See O’Brien & Dervarics, supra note 24.

      [44].   Id.

      [45].   Forman, supra note 22, at 843.

      [46].   Id.  However, nothing usually prevents nonprofit operators from partnering with for-profit companies to manage the schools.  Id.; see also Davis, supra note 30, at 8.

      47.   Sugarman & Kuboyama, supra note 15, at 873.

      [48].   20 U.S.C. § 7325 (2006); O’Brien & Dervarics, supra note 24.

      [49].   Id.

      [50].   Id.

      [51].   42 U.S.C. § 1983 (2006).  The present day Section 1983 was originally enacted as Section 1 of the Civil Rights Act of 1871 for the purpose of enforcing the Fourteenth Amendment.  Section 1983 provides a cause of action for an individual whose federally protected rights were violated by state or local officials.  Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 1.03 (Aspen Publishers 2011).

      [52].   Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

      [53].   Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 n.2 (2001) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982)).

      [54].   Schwartz, supra note 51, § 5.10.

      [55].   Jason Lance Wren, Charter Schools: Public or Private? An Application of the Fourteenth Amendment’s State Action Doctrine to These Innovative Schools, 19 Rev. Litig. 135, 151 (2000) (citing The Civil Rights Cases, 109 U.S. 3 (1883)).

      [56].   The Civil Rights Cases, 109 U.S. 3, 4 (1883).

      [57].   Id. at 11.

      [58].   See id. at 11–12.

      [59].   Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).

      [60].   Schwartz, supra note 51, § 5.12 (quoting Int’l Soc’y for Krishna Consciousness, Inc. v. Air Canada, 727 F.2d 253, 255 (2d Cir. 1984)).

      [61].   Id. (quoting Burton v. Wilmington Park Auth., 365 U.S. 715, 722 (1961)).

      [62].   Id.

      [63].   Id.

      [64].   Id.

      [65].   Id. (citing Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968)); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171–72 (1972) (finding that a private club granted a liquor license by state liquor authority was not considered to be acting under state action).

      [66].   Schwartz, supra note 51, § 5.12.

      [67].   Id.

      [68].   Id.

      [69].   Id.

      [70].   Id. § 5.14.

      [71].   Id. (“We have, of course, found state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State.”) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)).

      [72].   Id.

      [73].   Id.

      [74].   Id. (quoting Jackson, 419 U.S. at 352).

      [75].   Id; see, e.g., Blum v. Yaretsky, 457 U.S. 991, 1011 (1982) (holding that the provision of nursing home care did not meet the public function test); Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (holding that the education of maladjusted children did not meet the public function test); Jackson, 419 U.S. at 352–53 (holding that furnishing essential utility services did not meet the public function test).

      [76].   Schwartz, supra note 51, § 5.14; see, e.g., Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 260 (2d Cir. 2008) (holding that the care of the mentally disabled was not an exclusive state function); Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26–27 (1st Cir. 2002) (holding that private schools did not provide an exclusive state function); United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 907–08 (4th Cir. 1995) (holding that arranging fairs and festivals was not an exclusive governmental function).  But see Pollard v. Geo Grp., Inc., 607 F.3d 583, 592 (9th Cir. 2010) (holding that a private group that provides medical services for incarcerated individuals was a state actor because the incarceration of convicted individuals is an exclusive state function); Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 24-25 (2d Cir. 1979) (holding that volunteer fire department was a state actor because fire fighting in Connecticut was an exclusive governmental function).

      [77].   365 U.S. 715 (1961).

      [78].   Schwartz, supra note 51, § 5.13.

      [79].   Burton, 365 U.S. at 725.

      [80].   Id.

      [81].   407 U.S. 163, 177 (1972).

      [82].   Id. at 175.

      [83].   Schwartz, supra note 51, § 5.13.  For an explanation of the Supreme Court’s analysis of the symbiotic relationship test in Rendell-Baker, see discussion infraPart III.A.1.

      [84].   419 U.S. 345 (1974).

      [85].   Schwartz, supra note 51, § 5.13.

      [86].   Jackson, 419 U.S. at 358.

      [87].   Schwartz, supra note 51, § 5.13.

      [88].   Jackson, 419 U.S. at 351 (emphasis added).

      [89].   Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982).

      [90].   See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Jackson, 419 U.S. at 350.

      [91].   Schwartz, supra note 51, § 5.15.

      [92].   Id.  “[A] State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”  Blum, 457 U.S. at 1004.

      [93].   Schwartz, supra note 51, § 5.16; see Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

      [94].   Schwartz, supra note 51, § 5.16.

      [95].   Id.

      [96].   Id.; see Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982).

      [97].   Schwartz, supra note 51, § 5.16; see discussion infra Part III.B.1–3.

      [98].   Schwartz, supra note 51, § 5.16.

      [99].   Id. (citing Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008)).

    [100].   Sooner Prods. Co., v. McBride, 708 F.2d 510, 512 (10th Cir. 1983).

    [101].   531 U.S. 288, 291 (2001).

    [102].   Id.

    [103].   Id.

    [104].   Michael A. Culpepper, A Matter of Normative Judgment: Brentwood and the Emergence of the “Pervasive Entwinement” Test, 35 U. Rich. L. Rev. 1163, 1184 (2002).

    [105].   Id.

    [106].   Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 35 (1st Cir. 2002) (Lipez, J. dissenting); Megan M. Cooper, Case Note, Dusting Off the Old Play Book: How the Supreme Court Disregarded the Blum Trilogy, Returned to Theories of the Past, and Found State Action Through Entwinement in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 35 Creighton L. Rev. 913, 985–86 (2002).

    [107].   457 U.S. 830 (1982).

    [108].   Id. at 831.

    [109].   Id. at 833–35.

    [110].   Id. at 832.

    [111].   Id.

    [112].   Id.

    [113].   Id. at 833.

    [114].   Rendell-Baker v. Kohn, 488 F. Supp. 764, 767 (D. Mass. 1980), aff’d 641 F.2d 14 (1st Cir. 1981), aff’d 457 U.S. 830 (1982).

    [115].   Rendell-Baker v. Kohn, 457 U.S. 830, 836 (1982).

    [116].   Rendell-Baker v. Kohn, 641 F.2d 14, 28 (1st Cir. 1981), aff’d 457 U.S. 830 (1982).

    [117].   Rendell-Baker, 457 U.S. at 840–43.

    [118].   Id. at 840.

    [119].   457 U.S. 991 (1982).

    [120].   Rendell-Baker, 457 U.S. at 840.

    [121].   Id. at 841 (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)).

    [122].   Id.

    [123].   Id.

    [124].   Id. (citing Blum, 457 U.S. at 1011).

    [125].   Id. at 842 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974)).

    [126].   Id.

    [127].   Id. (citing Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)).

    [128].   Id. at 843.

    [129].   691 F.2d 931, 939–40 (10th Cir. 1982).

    [130].   Id. at 934.

    [131].   Id. at 935.

    [132].   Id. at 936.

    [133].   Id. at 940.

    [134].   Id.

    [135].   Id.

    [136].   Id. (emphasis added) (quoting Rendell-Baker v. Kohn, 641 F.2d 14, 26 (1st Cir. 1981) aff’d 457 U.S. 830 (1982)).

    [137].   Id.

    [138].   Id.

    [139].   Id.

    [140].   256 F.3d 159, 169 (3d Cir. 2001).

    [141].   Id. at 161.

    [142].   Id. at 162.

    [143].   Id. at 163.

    [144].   Id. at 164–69.

    [145].   Id. at 165.

    [146].   Id. at 166.

    [147].   Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 31 (1st Cir. 2002).

    [148].   Id. at 25.

    [149].   Id. at 24.

    [150].   Id.

    [151].   Id. at 24–25.

    [152].   Id. at 26–28.

    [153].   Id. at 27.

    [154].   Id. at 28.

    [155].   See Riester v. Riverside Cmty. Sch., 257 F. Supp. 2d 968 (S.D. Ohio 2002); Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000); Jones v. SABIS Educ. Sys., Inc., 52 F. Supp. 2d 868 (N.D. Ill. 1999).

    [156].   See cases cited infra notes 208, 217.

    [157].   Jones, 52 F. Supp. 2d at 876–80.

    [158].   Id. at 872.

    [159].   Id. at 876.

    [160].   Id. at 878–79.  In Monnell v. Department of Social Services, 436 U.S. 658, 691 (1978), the Supreme Court held that a municipal entity is not held liable for constitutional violations of its employees simply on a theory of respondeat superior.  Rather, a plaintiff must allege that unconstitutional acts were made under an official custom or policy.  Id. at 694.

    [161].   Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000).

    [162].   Id. at 903.

    [163].   Id.

    [164].   Id. at 917.

    [165].   Reister v. Riverside Cmty. Sch., 257 F. Supp. 2d 968, 971–73 (S.D. Ohio 2002).

    [166].   Id. at 969.

    [167].   Id. at 972.

    [168].   Id.

    [169].   Id. at 973.

    [170].   Id. at 972–73.

    [171].   Scaggs v. N.Y. State Dep’t of Educ., No. 06-CV-0799, 2007 WL 1456221, at *13 (E.D.N.Y. May 16, 2007).

    [172].   Id. at *1–2.

    [173].   Id. at *13.

    [174].   Id.

    [175].   Id.

    [176].   Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 818 (9th Cir. 2010).

    [177].   Id. at 811.

    [178].   Id. at 813.

    [179].   Id. at 814.

    [180].   Id. at 815.

    [181].   Id.

    [182].   Id. at 815–16.

    [183].   Id. at 814.

    [184].   See discussion supra Part III.B.

    [185].   See Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897, 903 (W.D. Mich. 2000); Jones v. SABIS Educ. Sys., Inc., 52 F. Supp. 2d 868, 871 (N.D. Ill. 1999).

    [186].   See Scaggs v. N.Y. State Dep’t of Educ., No. 06-CV-0799, 2007 WL 1456221, at *12–13 (E.D.N.Y. May 16, 2007) (using primarily the nexus test to determine that a charter school “engaged in state action, despite being a private corporation”); Riester v. Riverside Cmty. Sch., 257 F. Supp. 2d 968, 971–73 (S.D. Ohio 2002) (using “(1) the public function test, (2) the state compulsion test, (3) the symbiotic relationship/nexus test; and (4) the ‘entwinement’ test” to conclude that the charter school was a state actor).

    [187].   Caviness, 590 F.3d at 818.

    [188].   See Daugherty, 116 F. Supp. 2d at 903 (categorizing a charter school as “public” without engaging in a full state action analysis); Jones, 52 F. Supp. 2d at 871 n.2 (similarly defining a charter school as a “public, nonsectarian . . . school” without a full state action analysis).  Compare Rendell-Baker v. Kohn, 457 U.S. 830, 831 (1982) (finding state action where a private school receiving public funding under regulation by state agencies fired its employees), with Milonas v. Williams, 691 F.2d 931, 940 (10th Cir. 1982) (distinguishing Rendell-Baker by differentiating between treatment of students and employees).

    [189].   Nathan, supra note 18, at 1; Mead, supra note 1, at 349.

    [190].   American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115, 182 (2009).

    [191].   See discussion supra Part II.B.

    [192].   457 U.S. 830, 842 (1982).

    [193].   Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 27 (1st Cir. 2002).

    [194].   Rendell-Baker, 457 U.S. at 842.

    [195].   590 F.3d 806, 815 (9th Cir. 2010).

    [196].   Id.

    [197].   Rendell-Baker, 457 U.S. at 842.

    [198].   See discussion supra Part IV.A.1.

    [199].   See discussion supra Part II.B.1.

    [200].   See discussion supra Part II.B.1.

    [201].   See O’Brien & Dervarics, supra note 24, at tbl.1.

    [202].   See discussion supra Part I.

    [203].   Rendell-Baker v. Kohn, 457 U.S. 830, 840–43 (1982); see, e.g., Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26–28 (1st Cir. 2002).

    [204].   See Rendell-Baker, 457 U.S. at 841.

    [205].   Id. at 841.

    [206].   256 F.3d 159, 165–69 (3d Cir. 2001).

    [207].   For a description of schools in cases following Rendell-Baker, see supra Part III.A.2–4.

    [208].   See Rendell-Baker, 457 U.S. at 845–46 (Marshall, J., dissenting).

    [209].   Id. at 832 (majority).

    [210].   Id. at 845–46 (Marshall, J., dissenting).

    [211].   Lake, supra note 32, at vii.

    [212].   Rendell-Baker, 457 U.S. at 832–33; Sugarman & Kuboyama, supra note 15, at 873.

    [213].   See discussion supra Part I.

    [214].   Schwartz, supra note 51, § 5.12 (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999)).

    [215].   See id.

    [216].   Rendell-Baker, 457 U.S. at 841–42.

    [217].   Id. at 840–41 (emphasis added).

    [218].   Id. at 841–42.

    [219].   E.g., Richardson v. McKnight, 521 U.S. 399, 401 (1997); Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 459 (5th Cir. 2003).

    [220].   See Rosborough, 350 F.3d at 461.  But see Holly v. Scott, 434 F.3d 287, 294 (4th Cir. 2006) (holding that employees of a private corporation operating a prison are not federal actors for the purposes of a Bivens claim).  Similar tests are employed in order to determine federal action under Bivens and state action sufficient for a Section 1983 claim.  Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997).

    [221].   West v. Atkins, 487 U.S. 42, 43 (1988).

    [222].   Id. at 56–57.

    [223].   Id. at 55 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

    [224].   534 U.S. 61, 72 n.5 (2001).

    [225].   Id. (emphasis omitted).

    [226].   E.g. Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991).

    [227].   Skelton, 963 F.2d at 102.

    [228].   Id.

    [229].   Id. (quoting West v. Atkins, 487 U.S. 42, 49 (1988)).

    [230].   350 F.3d at 461.

    [231].   Schwartz, supra note 51, § 5.14; see discussion supra Part II.B.1.

    [232].   Richardson v. McKnight, 521 U.S. 399, 401 (1997).

    [233].   Id. at 403.

    [234].   Id. at 405.

    [235].   Schwartz, supra note 51, § 5.14.

    [236].   Id.

    [237].   Minneci, 132 S. Ct. at 627 n.2.  Accordingly, courts have held that providing medical services to incarcerated individuals constituted state action.  See, e.g., West v. Atkins, 487 U.S. 42, 54 (1988); Pollard v. Geo Grp., Inc., 607 F.3d 583, 588 (9th Cir. 2010), rev’d on other grounds sub nom. Minneci v. Pollard, 132 S. Ct. 617 (2012).  In reversing Pollard, the Supreme Court did not address the issue of state actor status.  Id. at 627 n.2 (Ginsburg, J., dissenting) (“The Ninth Circuit ruled that petitioners acted under color of federal law, and petitioners did not seek this Court’s review of that determination.”).

    [238].   Forman, supra note 22, at 843.

    [239].   Id.

    [240].   United States v. Classic, 313 U.S. 299, 326 (1941).

    [241].   Skelton v. Pri-Cor, Inc. 963 F.2d 100, 102 (6th Cir. 1991).

    [242].   See discussion supra Part IV.A.1.

    [243].   Richardson v. McKnight, 521 U.S. 399, 405 (1997).

    [244].   Id.

    [245].   Federal courts have found the actions of private prisons and their employees to constitute state action.  See Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003); Skelton, 963 F.2d at 102; discussion supra Part IV.B.1.

    [246].   Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005).

    [247].   Id.

    [248].   Although Caviness may have gotten this point right, its reliance on Rendell-Baker is inappropriate.  The Supreme Court was reviewing state action in the context of the education of maladjusted teenagers, not charter schools.  See discussion supra Part IV.A.