E-Mail This Article to a Friend School choice On education funding, the Supreme Judicial Court takes the politically expedient way out

MORAL COURAGE gave way to political expediency last week within the chambers of the state’s Supreme Judicial Court. In a five-to-two decision, the SJC rejected a lawsuit brought on behalf of four poor communities — Brockton, Lowell, Springfield, and Winchendon — to equalize public-education funding by ending the reliance on the local property tax, which favors wealthy cities and towns. The decision may have led most of the state’s political class to breathe a sigh of relief. But it was a blatant violation of the state’s constitutional guarantee of a public education — a guarantee that is meaningless unless the same opportunities are provided to everyone.

Perhaps the political heat was getting to be too much for Chief Justice Margaret Marshall, who wrote the majority decision in the school-funding case, known as Julie Hancock v. Commissioner of Education. After all, in 2002 the SJC enraged the legislative leadership, and especially then–House Speaker Tom Finneran, by ordering that the voter-approved Clean Elections Law be either fully funded or repealed. After a state hospital was auctioned off to raise money for Warren Tolman’s futile gubernatorial campaign, the law was repealed — thus making it clear to everyone that the legislature was flouting the will of the voters and thumbing its nose at the court.

Then, in 2003, the SJC demonstrated what appeared to gay-equality advocates as even greater courage by ruling, in the Goodridge decision, that same-sex couples have a right to marry under the Massachusetts constitution. But appearances were deceiving. Marshall’s blatantly raw political motive was to look like she was a person of courage while winning universal acclaim. That’s not what happened. Instead, the Goodridge case not only resulted in her having more problems with the state legislature, but it also became a cornerstone of George W. Bush’s campaign against so-called activist judges. It may have even been a key to Bush’s national victory over the home-state favorite, Senator John Kerry. A year ago the legislature gave preliminary approval to a constitutional amendment that would ban gay marriage but provide for Vermont-style civil unions. Fortunately, comfort with the notion of gay marriage seems only to have grown since then, and it appears likely that the amendment will go nowhere. Unfortunately, Marshall and her judicial lackeys learned a lesson in political pragmatism from the fallout over Goodridge — and they gutlessly applied that lesson in the unconscionable decision they reached last week in the Hancock case.

Marshall’s decision is noteworthy for its hypocrisy: she pays unctuous tribute to the work of Superior Court judge Margot Botsford, who had recommended comprehensive reform in how public schools in Massachusetts are funded, as well as new efforts in early-childhood education. However, Marshall came not just to praise Botsford’s report but to bury it, writing that the state’s efforts at trying to improve the public schools under the Education Reform Act of 1993, though far from perfect, were good enough for her.

Marshall reached her conclusion despite acknowledging that the state’s fiscal crisis of recent years had damaged those reform efforts, and even though both student achievement and necessary classroom materials were lacking in the four plaintiff communities. Referring to Botsford’s report, Marshall wrote, "She amply documented schools in the focus districts that struggle with overcrowded classrooms, outmoded textbooks and libraries, inadequate technology, unsatisfactory services and educational access for special needs students, and decrepit or overcrowded school facilities. The judge found other problems as well, including antiquated curricula, teachers lacking proper teaching certification, and poor leadership and administration ..." Yet rather than heeding Botsford’s findings, and invoking the state constitution’s mandate, Marshall chose to place her trust in the same elected officials she’d found little reason to trust on Clean Elections and gay marriage.

Now, it’s true that the 1993 education-reform law has been largely positive. Passed while the SJC was considering an earlier school-funding lawsuit, McDuffy v. Secretary of the Executive Office of Education, the law mandated that state money be used to supplement school budgets in cities and towns where property-tax revenues were inadequate. Some $30 billion in state funds have been spent on local school systems in the year since the law was passed. And though poorer cities and towns still spend less money per student than wealthier communities, the gap is narrower than it used to be.

But by itself, the education-reform law isn’t enough — and, as Marshall herself noted, its funding guarantees fell by the wayside at the first sign of budget-tightening. Worse, with the SJC rejecting the Hancock case, Governor Mitt Romney and the legislature no longer have a legal cudgel hanging over their heads. Just the prospect that the SJC would use the McDuffy or the Hancock case to reform education funding has been responsible for much good over the years. Now that’s gone. And Marshall is content to put her trust in elected officials — trust that she hopes will be rewarded by the legislature with greater independence for the judiciary, a bigger budget, and more compensation. The judiciary deserves all these things on their merits, but Marshall should not be buying them with politically motivated decisions.

In a toughly worded dissenting opinion, Justice John Greaney, joined by Justice Roderick Ireland, compared the Hancock case to the landmark 1954 US Supreme Court decision that outlawed racial segregation in public schools. "If the same kind of thinking that naysayers now espouse occurred in Brown v. Board of Educ. of Topeka, ... then those decisions would have gone the other way, with the United States Supreme Court refraining from becoming involved in serious matters of educational policy in the States," Greaney wrote.

The Hancock case represented an opportunity for the Supreme Judicial Court to lend a hand to the poorest children in our state, and to put them on the same footing as children in affluent communities such as Wellesley and Weston. Marshall and her fellow justices blew it, and they did so for what appear to be craven political purposes. Rather than complaining about activist judges, Governor Romney and legislative leaders are praising them. The SJC’s home, the historic Adams Courthouse, is being meticulously restored at a cost of nearly $150 million. No one is calling up the talk shows demanding that the justices be impeached.

If you’re Margaret Marshall, life is good. If you’re Julie Hancock, the Brockton High School student in whose name the lawsuit was filed, you’re on the outside looking in. Still.

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