Judges and schools
September 15, 2009
Primary-secondary education is obviously not the only realm of increased litigation in American life and intense court involvement in social policy. It's most definitely not the only field in which the fruits of such litigation have sometimes turned out to be mushy if not rotten. Nor is it the only sphere where policy disputes and reform initiatives--and resistance to these--have been fought out in courtrooms as well as in legislative corridors and voting booths. In the three decades since Donald Horowitz penned The Courts and Social Policy, many forests have fallen to produce the paper on which were inscribed hundreds of thousands of court decisions in countless areas of domestic affairs. (Consider, just as a beginning, disability law, family law, welfare, health, immigration, housing and, of course, law enforcement.)
Yet the impact of all this has been sorely neglected, particularly in K-12 education. Scads of people have scrutinized the executive and legislative branches of government, both state and federal, in relation to schools and education policy. Yet few analysts have tackled the judicial branch. As a result, not a lot is known about its role in and effects on our schools, our teachers, and our children.
One can easily recount several famous decisions, particularly by the U.S. Supreme Court, that seemed to advance important education reforms (such as Brown and Zelman) and can point to others (especially state court rulings on school finance) that tended to push in the opposite direction, particularly by emphasizing resources over results and uniformity over diversity and choice. A valuable 2003 book by Richard Arum highlighted the courts' tendency to exacerbate the challenges of school discipline, and a 1997 book by Mark Kelman introduced us to the gnarly complexities of special education law.
But all of this was piecemeal, addressing specific facets of K-12 schooling and their intersection with the judiciary rather than mapping the entire landscape. To find a reasonably comprehensive treatment of the whole topic, one had to look back to 1978, long before many key developments in education policy. Over the past thirty years, as best we could tell, nobody had surveyed these questions from 30,000 feet. Yet there was much that seemed important to find out. Is education litigation still on the rise? In which policy spheres? Federal or state courts? Constitutional, statutory, or regulatory? In what domains might judicial activity be fostering needed reforms and in which is it retarding them--or consuming so much attention and resources as indirectly to have that effect? What about the hot-button issues of segregation, special education, school discipline, and No Child Left Behind?
To what extent, we wondered, is court involvement an obstacle to desired reforms in primary-secondary education in twenty-first century America? To what extent is it a distraction? Might it possibly turn out to be an asset?
This was important territory for Fordham to explore, but we needed our own Lewis and Clark to lead the expedition. So we turned to two of the ablest young education-policy scholars in the land, Harvard's Martin West and Joshua Dunn of the University of Colorado at Colorado Springs. They then recruited a stellar cast of traveling companions. (And the Achelis Foundation and Searle Freedom Trust stepped up to offer some much-needed assistance in outfitting and provisioning their canoes.) The result is Fordham's (and Brookings's) hot-off-the-presses tome, From Schoolhouse to Courthouse: The Judiciary's Role in American Education.
What, exactly, did these intrepid explorers discover? Four points strike me as particularly noteworthy.
First, some policy domains where we expected to find enormous amounts of litigation (notably special education and NCLB) reveal far less than anticipated, even as others (such as school choice and free speech) display more than we imagined--and as a few areas that once dominated the field (desegregation, school finance) appear to be approaching something like a steady state if not dormancy.
Second, several realms where it briefly seemed that a climactic Supreme Court decision might clear the air and settle the matter (for example, the Zelman holding that properly-structured voucher programs do not violate the establishment clause) have instead remained fraught with lawsuits, showing how a controversial resolution under the federal Constitution does not quash the ability of agitated interest groups to continue litigating in state courts.
Third, as Mr. Dooley noted of the Supreme Court in Finley Peter Dunne's classic fin de siècle works, judges do follow the election returns--and they also possess policy minds of their own, including ideological predilections and sometimes a sense of superior wisdom. Litigation in education, as in other domains, is not something that arises in outside-the-courtroom disputes between rival interests and views and then enters the courtroom for objective resolution by disinterested and Olympian jurists. Too often, alas, it is the work of judges seeking particular policy (or political) outcomes and finding (or crafting) legal pathways to their desired destinations.
Fourth and finally, while judges are surely adept at finding and pursuing such pathways, the consequences for education are frequently mischievous if not downright damaging. The multiple roles assumed, and decisions issued, by state and federal courts in this domain in recent years add up to a large, mixed bag of influences, many of them malign, on the education enterprise and earnest efforts to reform and renew it. Most jurists know plenty about the law but little about schools and the conditions in which those responsible for teaching in and leading them are most apt to succeed. As a result, the outcome of education litigation often works better in the courtroom than in the classroom or principal's office.
A few judges seem to have figured this out and to be stepping back from efforts to micromanage schools and state or local education systems from the bench. But they are still outnumbered by jurists willing to conspire with litigants and their attorneys--there is no dearth of either--to enact (or block) policies and programs via the courtroom when they cannot prevail in the legislative or executive branches of government. We ought not be so dazzled by some of the great, transformative court rulings of yesteryear--Brown above all--as to suppose that any large fraction of the 7,000 or so education-related decisions now being rendered annually by federal and state judges are having a salutary effect on American schools or children's learning.
This piece is adapted from the foreword to From Schoolhouse to Courthouse.