Essentially, Kelley faced two tasks, a procedural and a constitutional ruling. The procedural concerns were about whether everything was followed correctly according to the Constitution, statute, and chambers’ rules when the Legislature passed the law that created this program to allow students at lower-achieving schools to use state money through the Minimum Foundation Program potentially to attend private schools. The constitutional concern was about whether the funding could come from the MFP.
While the Constitution, statute, and rules in question were not crystal clear in application, more connecting of the dots had to occur on the procedural end of things, with more inferring necessary to sort out those questions, meaning the greater ambiguity increased the chances of an judge choosing to find violation. The constitutional question of the use of MFP money seemed much simpler, given the wording of the Constitution that indicated it was permissible, hence more creative judicial reasoning would have to be employed to counter that.
With the procedural questions more amenable to judicial overreach, they also posed a bigger threat to the law itself. By finding fault here, such a ruling effectively would say the law didn’t exist, meaning in practical terms that the law might last only for this school year and to extend it further would require a whole new legislative effort, with a whole new opportunity for defenders of traditional education special interests to defeat it. In contrast, reversal of using the MFP as the funding mechanism simply choked off one source of funding to make a constitutional law work; others could be found.
So, interestingly, Kelley, whose wife once was Jindal’s top lieutenant, affirmed in his ruling that the state was all right on the procedural question, but not on the constitutionality of the funding mechanism. Given the contortions necessary to conclude with the latter, whether this had to do with an attempt at wise jurisprudence or other extraneous factors, it has produced a situation (courtesy of the law's severability clause) just short of an entire win for reformers.
All supporters must do now is appeal about the MFP part of the ruling and get a stay on halting funding. And then there’s always the Supreme Court if the First Circuit goes along with Kelley. This makes it highly unlikely that already the next school year would not have started before a final ruling came out. And even if that presumed final decision surprisingly went against reformers, what then would be the remedy, have the state pay back to the MFP? You can’t take back the year of education. The fact is, the program with this ruling gets ratified and now it’s all just a matter of finding the money.
And no doubt if everything went against the state, it could find the $25 million or so to fund it. In fact, the traditional 2.75 percent inflation factor for the MFP that has been suspended for the past few years would have produced an increase almost three times what the state paid this year for the program. Reformers, who include Jindal and who control both the Board of Elementary and Secondary Education and the Legislature that determines the MFP and the amounts it will pay, could adjust this factor to increase the money going to the MFP by the factor minus the estimated costs to pay for the program, and in a relative sense still be ahead for many years to come.
Meanwhile, opponents are left with a quandary. They would have to appeal as well to try to undo the other part but this allows at least several more months of life to the program, presenting an opportunity to cement itself more thoroughly into the public consciousness, continuing to build a constituency, and affording a continuous barrage of bad publicity for the opponents, who can be painted convincingly as grinches trying to trap children in bad schools just to satisfy their ideological leanings and worship of big government. In turn, this may reduce their leverage against the program, which is that it passed in a flawed way and thereby gets negated, because the longer their obstinate behavior goes on, the more it will shore up support if it has to be redone again.
Their best hope was to cut the law off at the pass, through invalidating it, as soon as possible. That didn’t happen, and time is against them. By contrast, time is on the side of reformers, as the longer the program operates the greater the chances become of identifying alternative funding mechanisms and allowing for their manifestation, and of encouraging larger majorities to support it.
So, the political impact of the entire ruling favors reformers. We’ll see where the inevitable appeal takes us.
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