The Siren Song of Judicial Activism
Wednesday, December 29, 2004
By Nancy Salvato

Just as the Sirens' song was supposed to lure sailors to their death, thus is the effect Judicial Activism will have on our Constitution. No matter what form it takes, legislating from the bench violates the intentional separation of the three branches of government and threatens the integrity of the rule of law. 

That being said, school districts have discovered that the judiciary leans sympathetic toward their cries of unfunded mandates. Many have sought court rulings to require acting legislative bodies to dispense with what has been determined by "educrats" as a sufficient dispensation of money to produce a quality education, with varying degrees of success or failure. 

That the judiciary branch of government has found a means to disregard their clearly defined role is something that should be addressed by those in power. One only needs to contemplate the damage that can be done by egotistic judges who purport to know the best use of taxpayer dollars to understand the urgency; case in point, Kentucky. 

A massive infusion of funds does not necessarily solve underlying causes of a poor education. The Kentucky Education Reform Act, in response to the Supreme Court's mandate in the (1989) Rose v. Council of Better Education decision, increased per pupil revenue from $3,360 to $7,533 per student over a ten year period. However, ACT scores remain flat and student enrollment decreased. Ironically, enrollment in independent schools has increased faster there, than anywhere else in the country. 

Because the glass ceiling has been broken, more and more judges act in what they feel are in the best interests of their constituents and aren't bound by their office -with very few exceptions; State District Judge Duke Welch of Baton Rouge, La., for example, ruled on the basis of precedents that judges don't have a right to decide how the legislature allots funds.

Earlier this year (2004), in Massachusetts, the court decided in Hancock v. Driscoll, what must be included in an adequate education. Those familiar with educational theories and practices, who actually research solutions to public education, would find plenty to disagree with its finding. 

Even though in Kentucky, increased funding didn't correct poor performance, the New York school system, looks to that state as its model. 

In Texas, it's been decided by the courts that the Texas school system isn't provided with adequate funding to meet the educational requirements of that system. Astoundingly, four court cases there resulted in Robin Hood financing of the poorer school districts by redistributing the property tax revenue of wealthier districts. Not only that, the judiciary gave itself the power to review whether the legislature has made proper policy choices as denoted in the Texas Constitution. 

I advocate that parents be put in charge of where and how their children are educated and that they be given financial incentives to pursue the most appropriate education for their child. The cost of choosing alternative education should be refunded through tuition tax credits. Under no circumstances should judicial activists funnel more tax dollars into the current monopoly of public education, especially money that has to be embezzled by strip mining the Constitution of it's mandate to protect life, liberty, and property; and leaving it open for a socialist interpretation.

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