Monday, September 14, 2015

In Initiative 42 debate, acknowledgement of risk isn't a lie and hopes of supporters are not the truth

    Supporters of Mississippi’s Initiative 42 have been flooding Facebook and other social media with messages that people shouldn’t believe the “lies” that are being told about the proposed constitutional amendment that give the judiciary the duty to ensure adequate school funding.
    I’m opposed to Initiative 42, so I suppose that makes me one of the “liars.” But the truth is that no one can say for certain what this sloppily worded amendment might do. Only if it passes will we know whether or not our fears were justified.
    As a matter of principle, I oppose involving the judiciary in the allocation and appropriation of state funds, period. So even if Initiative 42 were well written, I would still oppose it.
    With that said, nobody needs to tell any “lies” about Initiative 42; the language of the proposed amendment is scary enough. Let’s look at the language, which would amend Section 201 of the state constitution to read as follows (new language is underlined, old language has a strike-through):
Educational opportunity for public school children: To protect each child's fundamental right to educational opportunity
The Legislaturethe State shall
, by general law,provide for the establishment, maintenance and support of an adequate and efficient system of free public schools
upon such conditions and limitations as the Legislature may prescribe.The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.
So leaving aside the scratch-outs, if passed Section 201 would read as follows:
To protect each child's fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.
    Submitted with this amendment was a statement proposing that the changes could be phased in over several years, and further asserting that "For purposes of the initiative, a minimum standard of contemporary adequate education is described by the funding formula of the current version of the Mississippi Adequate Education Program and an efficient education is one that will, among other things, enable Mississippi's public school graduates to compete favorably with their counterparts in surrounding states."
    This verbage would support to some extent the claims of Initiative 42 supporters. But none of it is going to be part of the amended Constitution, and what ultimately governs is the wording of the amendment, not the statement of the intentions of the petition signers.
    What is important is not what the proposed amendment says, but what it does not say. The proposed amendment does not recognize the right of the legislature to define "adequate." The courts might recognize the right of the legislature to continue to define what is "adequate," and then again, they might not. The new amendment has no limitation on the right of the judiciary to reallocate funds, so that the Hinds County chancery court, where any funding dispute will be heard, will be perfectly free to simply drain funding from high-performing districts while funneling tax revenue into Jackson's low-performing slums as part of some pie-in-the-sky scheme to improve test scores.
    This is exactly what happened in Kansas City, in what the Cato Institute calls "America's Most Costly Educational Failure." In Kansas City, a federal judge decided that enough spending would solve that city's educational woes. After pissing away $2 billion and draining the rest of Missouri's schools dry this grand experiment resulted in lower test scores and higher drop-out rates for the most lavishly funded school district in the nation. The lesson to be learned is that judges and school funding do not mix well, and judicial interference with the educational funding process is to be avoided like the plague.
    If we are going to continue this game of "Liar, Liar, pants on fire," let's look at the assertions of each side. Those of us who oppose Initiative 42 insist that you can't simply increase funding for one part of state government without either raising taxes or cutting spending elsewhere. This is just common sense. Perhaps we should reallocate our spending, but let's not pretend that such decisions are completely painless or cost free. In addition, we feel that the language of the proposed amendment carries with it a real risk of judicial overreach and of unintended consequences. Note the word "risk." We do not claim to know for certain that bad things will happen; we just think the risk is there, both from what the proposed amendment says and from what it doesn't say.
    Initiative 42 proponents steadfastly insist that there is no risk whatsoever, even though the language of the proposed amendment is scary as hell. They insist there is no chance of judicial overreach, and no chance of higher taxes or cutbacks in other state agencies. And they may be right! But I just don't understand why the amendment wasn't worded in such a way that it stated some of the limitations that its supporters insist it carries with it.
    To determine who is telling the truth on Initiative 42, I suggest simply reading the plain English of the amendment and consider the claims of each side. I believe the amendment carries with it great risk, but risk is by no means a certainty that things will go wrong. It's supporters insist there is no risk whatsoever. But in insisting that there is no risk, these well-intentioned souls confuse truth with hope.
    Acknowledgement of the risks that Initiative 42 poses is not a lie, and hopes by its supporters that everything will work exactly as they say is not truth. Those of us who are opposed to Initiative 42 are not lying, and those who support it aren't the ultimate arbiters of truth. We're all sharing honest opinions about what might or might not happen should this amendment be adopted.
    The fact is, though, that when transferring power to the judiciary, none of us can be certain of the outcome. The legislature can and should heed the call of state voters to increase educational funding, but we shouldn't do it by putting the courts in charge.
    That's only my opinion, but it's an honest opinion and not a "lie." I'm going to vote "NO" on Initiative 42 and would urge those who agree with me to do likewise. Others may have a differing opinion and are welcome to vote accordingly.
    And should Initiative 42 supporters prevail, I will certainly join them in hoping that their hopes turn out to be true.