AMENDMENT MISSES FUNDAMENTAL PROBLEM WITH SCHOOL-FUNDING
 

In Ohio's latest round of "I love children more than you" policy-making, school boards and teachers' unions that have always faced the choice of doing their jobs or asking you for more money have decided to ask you for more money.

They are doing it in the form of a proposed constitutional amendment that says, among many other things, that education is a "fundamental right."

Ask most Ohioans whether education is a fundamental right and chances are you'll be met with a stare that can only mean the listener thinks you are a moron for asking the question. It's probably an instantaneous thought, "'Fundamental' means ... really important," followed by an exclamation, "Heck, yeah, it's fundamental. You mean those idiots in Columbus don't already know that?"

A few more-cautious types might ask, "What do you mean by 'fundamental right?'" and those folks will be given some lawyer's jargon that translates loosely as "'Really important.' Please remit $5,062.49 to Bricker & Eckler."

Of course, "fundamental right" does not mean "really important" at all. What it does mean is equally simple, but much less interesting to ordinary, healthy people. Put it this way:

If education is not a fundamental right, education policy will be decided by Robert Cupp. In contrast, if education is a fundamental right, education policy will be decided by Robert Cupp.

Perhaps I should explain.

Most people do not understand law -- thank goodness. If they spent 10 minutes in a courtroom, they would understand it -- and the fact that they don't means they haven't been exposed to its time-wasting, money-burning, soul-deadening nonsense. Don't misunderstand: Law is mankind's greatest achievement, excepting possibly physics and faith in God. But it is nonetheless true that if you have the choice of being in a courtroom or not being in a courtroom, you should choose the latter.

However, an unfortunate consequence of this general lack of understanding is that most people think law gives not merely answers but right answers. People behave as if there is a book somewhere that can be opened up, an answer found, and everyone will smack their foreheads and say, "Of course." In the common understanding, (and sadly, that of more than a few judges and lawyers, too) law is a substitute for God.

Sorry, folks. Not on this earth.

A better way to understand law is through an old joke: A mentor shows the new guy around work and says, "If you ever have a problem you can't solve, then on any day but Tuesday you can come to the Well of Knowledge and it will give you the answer. Go ahead; try it."

The new guy looks, and sure enough, there's a well, and no sooner does he speak a problem into it than a voice comes back with the solution.

"That's fantastic!" the new guy says. "I'm going to bring all my problems to the Well of Knowledge! But why can't I use it on Tuesdays?"

"Because," the mentor says, "Tuesday is your day in the well."

Calling something a "fundamental right" in the constitution does not somehow give you a better answer to the problem at hand; it means only that a judge decides what to do instead of a legislator. The mistake made by far too many people is to take for granted that this is an improvement.

The truth is nearly always the opposite. It isn't that legislators are any good, but judges are worse, and more expensive and less dignified.

The truth about education is simple, which is not to say it's easy. In fact, it's more than difficult. It's impossible, and at best can only be struggled with.

Education happens with one child, at one desk, with a book, paper and pencil, in one room. If you are not in the room, there isn't one blessed thing you can do about it, not for all the headlines in the world. A thousand years in a thousand courts with a million lawyers and a billion dollars won't change that ineluctable truth.

If you can't accept that, ask Robert Cupp. In 1998, in the throes of the DeRolph school funding litigation, still cited by the credulous as proof that Ohio's system is "unconstitutional," the state was required to list its witnesses who would testify at trial why the system was, indeed, within the constitution. There were only four of them: Jo Ann Davidson, then-Speaker of the House; Dr. John Goff, then-Superintendent of Public Instruction of the Ohio Department of Education; Dr. John Augenblick, author of the ill-fated "Augenblick Report"; and Robert Cupp, then-President Pro Tempore of the Ohio Senate.

What these people argued was that the courts couldn't address ongoing, society-wide, ever-changing educational policy. It was the legislature's problem to handle, for good and bad, and for the bad, Ohioans simply had to go back to their legislature.

Robert Cupp was right: The institution cannot be sacrificed to the outcome. Five DeRolph decisions by the Ohio Supreme Court (some say four, but they are mistaken) and a "Son of DeRolph" case or two couldn't change Cupp's being right, nor could a dozen years of reporting errors by Ohio's newspapers and the combined, self-interested ignorance of hundreds of school district superintendents, treasurers and board members -- did I mention teachers' unions? -- who will demand more money by any means necessary.

But if the proposed constitutional amendment passes, it will change the relationship between the legislature and the courts. It won't change a thing about that one child, at one desk, in that one room, but the courts will have the final say over Ohio's educational system. What will the courts do then?

That's simple, too. They won't do anything differently than the legislature would or could have done; they'll just do a poorer job of it, as hard as that is to believe, and have less time for the other things which they are suited to decide. Just ask former legislator Robert Cupp, if you see him.