Supreme Court Nominees and the Constitution
by Bill Graves
Notwithstanding the Oklahoma Constitution, the Oklahoma Education Association (OEA) wants unelected judges to control Oklahoma's educational system. The OEA has filed a lawsuit asking a court to order the Legislature to provide billions of more taxpayer dollars for public schools.
OEA erroneously alleges that the Oklahoma Constitution guarantees every child "a uniform opportunity to a basic, adequate education…" OEA asserts that the Legislature is violating "this constitutional mandate" by insufficient funding for education and not providing students "an equal opportunity for a constitutional(ly) adequate education."
OEA cites no constitutional provision mandating such uniformity or defining "a constitutionally adequate education." The Constitution (Art. 1, §§1, 5) only requires the Legislature to establish and maintain a system "of free public schools…" It does.
The Legislature spends $2.5 billion annually on common education – more than any other agency receives. Nevertheless, OEA wants $1 billion more spent annually in addition to $3 billion for infrastructure. This would require a massive tax increase.
Constitutionally, the Legislature, not the Courts, is to oversee public education. Art. IV, §1 of the Constitution divides the powers of Oklahoma government into the Legislative, Executive, and Judicial departments which "shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."
The Oklahoma Supreme Court held in Ex parte Pappe (1949), that the Legislature and not the courts must determine the state's policy. In Dorsett v. State (1930), it held that it cannot deal with the wisdom and policy of any law so long as it violates no organic or constitutional principle. OEA in fact states in its petition that it is not seeking to have current funding declared unconstitutional, but that such funding is inadequate. Thus, the courts have no constitutional authority to order more legislative funding. Thus, we need judicial obedience to the Constitution – not, as some contend, an amendment prohibiting judicial intervention in school funding.
The OEA has no doubt been emboldened by the fact that five other states' courts have unconstitutionally seized control of education from their Legislatures. It is simply amazing that Legislatures, the elected representatives of the people, meekly allow courts to seize their powers – especially when there is a constitutional remedy for such tyranny.
It is expected that Oklahoma judges will obey the law. If not, Art. 8, §1 provides that Supreme Court justices (where the case will likely go) may be impeached and removed from office for "wilful neglect of duty." What greater neglect of duty could there be than for a judge to violate his oath to obey the Constitution by usurping legislative powers? Chief Justice John Marshall called such usurpation "treason to the Constitution." Justice Joseph Story said impeachment is a remedy for "political offenses…. gross neglect, or usurpation…." Alexander Hamilton and many other Founders agreed.
The OEA lawsuit is not about helping children, but about seizing control of education from the people of Oklahoma and imposing on them taxation without representation. The Legislature must, if necessary, have the courage to prevent this.
* Bill Graves is a lawyer and former State Representative.
