State Constitutional Design and Education Reform: Process Specification in Louisiana

"Constitutions tempt those who are much too sure they are right." -Hon. J. Harvie Wilkinson III1 I. INTRODUCTION Among the fifty United States, Louisiana is unique in many ways. The state maintains a hybrid civil-law system, closer in many ways to the Continental European model than the traditional English-American common-law model.2 The state is nominally subdivided into parishes, rather than counties.3 The state statutes contain several references to the French origins of the state and the continuing relevance of French and its Cajun and Creole derivatives as spoken languages in the state.4 The food is just, well, better. The list goes on. These important differences aside, Louisiana, like every other state in the Union, lives under a ratified foundational document of primary law that the state terms its Constitution. Depending on the source one consults, the current Louisiana Constitution is either its eleventh (the most of any state) or its ninth (tied with Georgia for the most among the states).5 It is also second to Georgia's in recentness of ratification.6 Regardless of its relative youth or the numerosity of its antecedents, though, the current Louisiana document substantially resembles the constitutions of many other states. As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions.7 But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.x It is well-known that state constitutions often treat numerous- sometimes trivial- subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features.9 In this Article, I argue that one form of specification- process-based specification- found in many state constitutions, and in the Louisiana education article itself, can be defended normatively as a way of establishing effective checks and balances where socioeconomic policy development is concerned. In particular, in cases of potential political crisis or exigency, process-based specification (in contrast with no specification or substancebased specification) enables the judiciary to be a legitimate check on the legislature's policy choices without making the judiciary into the oftmaligned "super-legislature" of judicial activism lore.10 In Part II, I examine the role of state constitutional design in shaping the challenges of educational reform. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation- the principal vehicle for enforcing education rights in the states- and how they have been modified in response to such litigation. From this review, I conclude that this litigation has caused at least some state reformers to secure changes to the constitutional text, but that these reforms have secured few of the results intended by reformers. In Part III, I outline the education provisions in Louisiana's current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude from this Part that Louisiana's reformers have chosen a decidedly unique, processoriented path in amending Louisiana's education article, as compared with reformers in other states. In Part IV, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles. …