Educational Policy-Making and the Courts, Spring, 2014, L. 9827
Beginning with the school desegregation decrees issued by the federal courts in the wake of Brown v. Board of Education, the federal and state courts have been called upon to consider a range of asserted educational rights and to oversee far-reaching institutional reforms that bear little relationship to traditional judicial remedies. This course examines the courts' role in influencing educational policy and reforming public education institutions, as well as the courts' capacity to undertake these functions.
In the spring semester, 2014, the course will emphasize the courts' use of social science evidence in dealing with educational policy issues. We will begin with a close analysis of footnote 11 in Brown v. Board of Education, and the post-Brown critical commentary on the use of social science in constitutional decision-making. We will then trace the evolution of the use of social science by both trial and appellate courts over the past 60 years through a review of the crafting of decisions impacting educational policy in regard to school desegregation, special education, student testing, language services for English language learners, education finance and affirmative action in higher education admissions. Consideration will be given to such issues as how social-science evidence has influenced judicial decision making, comparative analyses of social science fact finding by courts, legislatures and administrative agencies, the courts' influence on the development of educational policy in statutes and regulations, and the courts' use of presumptions and other legal mechanisms at times to avoid consideration of social science issues.
We will also examine the crafting and implementation of remedies in fiscal equity cases in the state courts. In that regard, we will consider in depth the remedy issued by the New York Court of Appeals in Campaign for Fiscal Equity (CFE) v. State of New York, 100 N.Y. 2d 1893 (2003). Among other things, we will analyze the legal and policy implications of the fact that the CFE remedy now been "put on hold" because of the state's economic constraints, and current legal and political options for dealing with the state's non-compliance with the Court's decision.