School funding ruling points to difference between rights and benefits

Rights and benefits often get confused in political discourse. We think of both as things people should have, but there is a difference between the government protecting your rights and providing you with benefits. How to protect a right is a fairly simple question compared with the choice of how to provide — and pay for — a state benefit.

The recent Commonwealth Court ruling on school funding provides the latest example of the distinction. The state constitution protects some rights and requires some benefits, but the question of what courts can do when the government falls short is not the same in one as in the other.

Consider Pennsylvania’s Declaration of Rights, found in Article I of the state constitution. It contains many of the same things that the federal Bill of Rights does, though sometimes with different wording. There is protection for freedom of religion, freedom of speech and of the press, and the right to bear arms. Cruel punishments are banned, as is double jeopardy.

These all require some judgment calls at the margin, and courts have spent centuries sorting out exactly what each of these rights means. But no matter the issue, once something is found to be a protected right, the remedy is simple: The court will tell the government to stop infringing upon that right. If the government is suppressing speech or publication, the court will require that it stop. If it is confiscating law-abiding citizens’ guns or torturing people, it will order it to stop that, too.

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These remedies are the result of our Enlightenment understanding of rights as things we already possess. Some would say they come from God, others might find their source in nature or in humanity’s inherent dignity. Whatever their source, our understanding of rights is that they do not come from the government. Instead, our Declaration of Rights, like the federal version, presumes we already have these rights and simply bans the government from taking them away.

We often call these traditional freedoms “negative rights.” Free press doesn’t mean the government has to buy you a newspaper. The right to bear arms certainly doesn’t mean the state must give you a pistol. These rights impose no burdens on your neighbors to pay for you to exercise them, they just mean the state can’t stop you.

Recent constitutional history has begun to blur the line. The right against self-incrimination has been determined to mean that the police have a duty to remind you of that right. The right to counsel has, in some cases, come to mean that the state must pay for you to have an attorney. Rights begin to bleed over into benefits, or “positive rights.”

When that happens, it means that courts are now not only in the position of telling the government what it can’t do but also what it must do. Figuring out what government does is traditionally a job for the legislature because any government action imposes a burden on the community.

Sometimes the burden is minor: It doesn’t cost the taxpayer anything to have police tell people they arrest that they “have the right to remain silent.” Public defenders cost a bit more, though it is a cost that almost everyone is willing to bear to ensure fair trials. Still, exactly how much a government must spend — and how to pay for that spending — begins to look a lot more like legislating than adjudicating.

Consider the guarantee found in Article III of the state constitution that the “General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.” This is what the plaintiffs in the recent school funding case claimed was being done in a fashion so unequal as to violate a separate section of the constitution — the state’s equal protection clause.

This right to education takes a different form than most of the rights in Article I, and for good reason. A negative right would be something like, “The state may not prevent any child from being educated.” The positive right contained here is that the state shall provide that education and that it shall be “thorough” and “efficient” while serving the needs of the state.

What does that mean? And more importantly, what can a court do when it judges that the state is violating this right?

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Judge Renée Cohn Jubelirer and the state court system took 786 pages and eight years to answer these questions. Long story short: She found that the plaintiffs’ rights were “violated because of a failure to provide all students with access to a comprehensive, effective, and contemporary system of public education that will give them a meaningful opportunity to succeed academically, socially, and civically.”

What will the court do about it? Basically nothing.

“It is now the obligation of the Legislature, Executive Branch, and educators, to make the constitutional promise a reality in this Commonwealth,” Judge Jubelirer writes at the close of her opinion. If that is the case, why are courts involved at all?

The question is, what is needed? Is it more funding for public schools? For charter schools? More opportunities for school vouchers? Higher standards? The court doesn’t say because the court really can’t say. These are all judgment calls that require investigation, deliberation, and compromise — the sort of task we entrust to a legislature.

This case shows the limits of trying to bypass politics by going to court. Even when the court agrees that the benefit you seek is not what it should be, it is ultimately the role of the legislature to right that wrong. Politics, here, is not a dirty word; it’s how a free people governs itself. And it’s the only way to find the hard answers and make the difficult choices that a complex problem like this one requires.