Perspectives: Question for court: What's a political question'?
Ignorance never settles a question. British Prime Minister Benjamin Disraeli (1866) Two of the most significant cases before the Minnesota Supreme Court this year consist of two landmark education lawsuits with several similarities. They both challenge certain practices and procedures that are alleged to disadvantage minority and economically deprived students, especially in the inner cities. Each raises claims of violation of the right to an adequate education under the state Constitution. Both were dismissed by the Court of Appeals on grounds that they are non-justiciable. The Supreme Court accepted review of both cases last year, heard one of them earlier in the year and has the other pending. But it is not clear if the justices in St. Paul will actually decide them. The question that transcends these similarities lies at the crux of both cases: what constitutes a political question that is off-limits to judicial adjudication? Generally, there are two branches of this doctrine. One reflects the inadequacy of courts to make the kinds of policy judgments and other decisions necessary to decide a case. The other militates against adjudication in order to avoid interfering with the activities and operations of other governmental units. Both prongs have been reflected in recent Minnesota court rulings. Their application by the Supreme Court in the pair of education cases will determine whether the justices decide them on the merits or decline to do so. School suits The two school-related suits are brought by parents of public school students, primarily in the inner cities. In Cruz-Guzman v. State, 892 N.W.2d 533 (Minn. Ct. App. 2017), rev. granted (Minn. April 26, 2017), parents of students enrolled in Minneapolis and St. Paul public schools, and a supportive organization, claim that because the schools in those districts are largely segregated by race and socioeconomic status, minorityrace andeconomically poor students suffer an achievement gap comparedto students in more affluent, majority-Caucasian schools. Thisdichotomy,they assert, results in inferior education for theirchildren, a violation of the guarantee ofArticle XIII, section 1 of the state constitution of a general and uniform system of publicschoolsand thorough and efficient system of public schools throughout the state, commonly referredto as the adequate education clause. To remedy thedisparity, the claimants seek unspecified injunctive reliefto provide an adequate and desegregated education, which maynecessitate combining those districtswith more affluent suburban schools districts. Discarding some of the defendants and one of the claims of discrimination under the state Human Rights Act,the Hennepin County District Court refusedtodismiss the lawsuit, prompting an interlocutory appeal to the Minnesota Court of Appeals, which reversed and dismissed the entire lawsuit. It reasoned that the case was not subjecttoresolution through the courts because itraises a political question. While notpolitical in a partisan sense, it deemed the issuesamenable to resolutioninother forums, namely the legislative and executive branches, rather than the judiciary. It drew its essence from the ruling of the U.S. Supreme Court in the seminal reapportionmentcase, Baker v. Carr, 369 U.S. 186 (1962), in which the high courtcharacterizedthe non-justiciability of a political question (as) primarily a function of the separation of powers. It laid out a six-partpendulum to determine if a case falls within the non-justiciable pit. The factors include textual features, existence of standards, required policy determinations, respect for other branches of government, existing political decisions already made, and potential for confusion dueto multiple decisions by various units of government. Although notdissecting the half-dozen elements, the court concluded that the pendulum shifted against adjudicating the disputebecause resolution requires establishment of qualitative educational standards, ...(a) task for the legislature and not the judiciary. This ledtoaffirmance of the dismissal ruling on grounds thatthe case represents a non-justiciable political question. Rather than judicial determination of the case, the dispute is entrusted to theelected representatives in our legislature and local branches of government. The Minnesota Supreme Court heard the case early last month and pounced on the issue of what constitutes an adequate education. Led by Justice David Lillehaug, the jurists focused much of their attention on how to measure that term in order to determine if the case is justiciable. The same reasoning permeates the dismissal of a challenge to job security provisions of the state teacher tenure law, Minn. Stat. 122A.40,.41,restricting dismissal of tenured public school teachers in Forslund v. State, 2017 WL 3864082 (Minn. App. 2017), rev. granted (Minn. Nov 15, 2017). The case was brought by four other parents of public school pupils, in four Minnesota cities,claiming that the statutory rigors for discharging tenured teachers makes it virtually impossible to get rid of bad teachers, whichperpetuates inferior educators for their children, infringing the adequate education clause. The case was thrown out by the Ramsey County District Court, and adifferent panel ofthe appellate court affirmed,joining courts inat least two other jurisdictions.Relying on Cruz-Guzman,the panel upheld dismissal of the caseon grounds of non-justiciability as a political question. Reiterating the six-prong standard, it concluded, as in Cruz-Guzman, that it could not adjudicate the dispute because it would need to decide whether the qualitative standard required by the Constitution includes effective teaching and what effective teaching means. Because there were no identifiable constitutional standard that answers this question, the case presents a non-justiciable political question. Another claim in the lawsuit, equal protection, fell prey to the sameanalysis. The issuealso necessitates determining the constitutionally required quality of teaching, without any defined standards of constitutionally required effectiveness in teaching. But after accepting review late last year, the Supreme Court has placed it in abeyance, awaiting the outcome of the Cruz-Guzman racial segregation matter before tackling the Forslund tenure issue. The ruling in the former is likely to have a disruptive effect on the latter. Supreme solutions Despite the appellate court dismissal, the doors remain ajar in both cases for possible solutions by the Supreme Court. The cases give the justices another occasion to address the political question issue following its invocation of that tenet last year in refusing to resolve the dispute between Gov. Mark Dayton and the Republican-dominated legislature overthe governor's line-item veto last year of funding for the legislative bodies in Ninetieth Minnesota State Senate v. Dayton, 901 N.W.2d 415 (2017). While holding that the governor has the constitutional authority to veto funding for the Legislature in response to his objectionto Republican-passed tax measures, it declined late last year toprovide a solution to the impasse. Noting that the Legislature had sufficient funding available until thecurrent 2018session and perhaps beyond, theruling authored by Chief Justice Lorie Gildea refused to order funding for the Legislature on the basis of a slightly different version of the political question doctrine without invoking the full-scale six-part formula ofBaker v. Carr. The court deemed the lawsuit ill-suitedfor judicial resolution because it would require it toassess, weigh, and judge the motives of co-equal branchesof government engaged in a quintessentially political process. The court's wariness of unnecessary judicial interference in the political processrepresented a homage to the refusal expressed by U.S. Supreme Court 19 years before in Baker when it narrowly decided by one vote not to adjudicate an appointment challenge in Colegrove v. Green, 328 U.S. 459 (1946), because it would place the court in an undesirable political thicket. This concern, reiterated by the dissenters in the Baker case, led the chief justice todecline to referee political disputes between co-equal branches ofgovernment, which the governor and Legislature should resolve between themselves throughtheusualprocessof appropriations. Havinginvoked the infrequently used mantra of genuflecting to the political process, in the Legislature-gubernatorial dispute, the court will now have an opportunity in the two school cases todetermine whether todecide themor deferto the other branches of government. It raises a question worthy of Hamlet: whetherto be or not to be the authority that decides these cases. Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.[divider] PERSPECTIVE POINTERS Requirements to discharge tenured teacher ? Notice of grounds. ? Right to a hearing before school board or arbitrator. ? Written decision with basis described. ? Appeal through judicial system.
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