Michigan, Ohio, Kentucky, and Tennessee—the states that
fall under the jurisdiction of the 6^th U.S. Circuit Court of
Appeals—as of April 23 effectively have their public schools overseen and regulated
by federal judges.

Two judges of a divided three-judge panel of the 6^th
Circuit have declared
that hidden between the lines of the Constitution’s guarantee
of due process lurks a right to have the state pay for
education that meets a certain minimum standard.

Who determines how much the state must pay?  And who determines what that minimum standard
of education is?

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If you answered legislators, officials at the state departments
of education, district superintendents, or school board members, you’d make a
lot of sense, but you’d be wrong.  The “correct”
answer in the 6th Circuit is federal judges. 

Judge Eric Murphy dissented from the ruling and reminded
his colleagues, Judges Eric Clay and Jane Branstetter Stranch, what it means to
be a judge.

A judge’s job, Murphy explained, is “to say what that law is.” The Constitution does not give judges “a roving power to redress every social and economic ill.”

He acknowledged that the school conditions described by
the plaintiffs would impair students’ ability to learn, adding, “If I sat in
the state legislature or on the local school board, I would work diligently to
investigate and remedy the serious problems that plaintiffs assert. But I do
not serve in those roles.”

His colleagues appear to think that, as judges, they serve in policymaking roles. They disavow it, of course, but their holding makes them a super-legislature wielding the Constitution as a tool to fix what they decide are state governments’ policy failures.

According to Clay and Stranch, the due
process clause of the 14th Amendment requires states to provide
an education that gives students “a foundational level of literacy.”  Whatever that means.

But as Murphy points out, the due process clause says no such thing.

It says: “ … nor shall any State deprive any person of life, liberty, or property, without due process of law.” 

He explained that this simple clause is “a negative limit on the states’ power to deprive a person of liberty or property.”  It is not “a positive command for states to protect liberty or provide property.”

Murphy explained how the majority’s newfound “right” will “jumble our separation of powers.” Judges will become arbiters of policy disputes about whether states are providing “minimum education.”

They might then compel states to raise taxes to generate the needed funds, order states to give parents vouchers so their children can attend better schools, or force states to revise curriculums that become “constitutionally outdated.”

Judges might also determine what minimum amount of training teachers need, or even which heating, ventilation, and air conditioning systems public schools should use. 

In short, every issue of school policy that will affect students’ learning conditions will be subject to judicial oversight and control.

Murphy would leave those policy problems “where they
have traditionally been—with the states and their people.” To give judges power
over them is to eliminate “the states’ ability to experiment with diverse
solutions to challenging policy problems.”

Murphy acknowledged that education is vital to our society and that legislators don’t always do a good job with these policy determinations. 

“But,” he added, quoting from the Supreme Court’s decision in San Antonio Independent School District v. Rodriguez (1973), “the ultimate solutions must come from lawmakers and from the democratic pressures of those who elect them.”

Ask yourself this: Would you rather that education
policy was set by democratically elected and accountable representatives whose
job it is to study policy, or by one or two federal judges with life tenure and
no policy expertise?

Murphy rightly chooses the former for two reasons. First, the Constitution gives them policymaking power and denies it to judges.

Second, if the lawmakers get the policy wrong, the people can fix it with an election. If judges get it wrong, the people are up a creek without a paddle.