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"Courts flunk the civics test"

Ross Sandler and David Schoenbrod in the sub-only WSJ, discussing a New York appellate court's order, in the Campaign for Fiscal Equity suit, that Albany legislators appropriate "an additional $4.7 billion for operating the New York City schools, plus another $9.2 billion for construction":

Most people assume that the legislature must cough up the cash because courts have the power of contempt, which allows them to punish those who disobey their orders. In the school case, however, the courts can't punish anyone. State legislators are not defendants in this case, and even if they were, they can't be punished because they are immune from suit. The state's treasury is immune because the court lacks authority to appropriate more funds and can't fine the state for the legislature's unwillingness to do so. The remaining defendants are officials, including Gov. George Pataki. They can't be held in contempt for failing to produce the money because they are powerless under the state constitution to spend money the legislature has not appropriated.

The New Jersey high court, in 1976, tried a different tack: it "ordered state officials to close all the schools until the legislature equalized spending", and the legislature capitulated by instituting an income tax in the state. The problem here is that the New York courts have used the state constitution's mandate of an operative public school system as the whole basis of their decision.

If a New York court closed the schools, it would be the judges who violated the state constitutional right, by denying any education to all students. That would undercut the only leg the court has to stand on, the rule of law.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.