Educational Policy-Making and the Courts, Spring, 2015, 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 legal and political justifications for the courts' role in making educational policy and reforming public education institutions, as well as the courts' capacity to undertake these functions.
The course will begin with a review of the literature on the Judicial Activism DebateÂ and then briefly consider the role of the courts in effecting remedies in school desegregation, special education litigation and affirmative action litigations. Specific attention will be given to judicial capacity to analyze social science evidence and to theories of social reform.
For the spring semester, 2015, the course will focus on the role of the state courts in enforcing students' rights under education clauses in virtually all state constitutions that guarantee students an "adequate" education, a "sound basic education" or a "thorough and efficient education." Over the past 30 years, litigation alleging violations of these rights have been filed in over 30 states, and plaintiffs have prevailed in about 60% of the resulting decisions. Substantial controversy has arisen, however, regarding the propriety and the effectiveness of the remedies that the courts have ordered in these cases.
We will first consider how to define a "successful" remedy, and then analyze questions of judicial capacity and the courts' interactions with the legislative and executive branches in implementing remedies. In this regard, we will elucidate the theoretical perspectives in the literature with a detailed case study analysis of the development of remedies in Campaign for Fiscal Equity (CFE) v. State of New York, 100 N.Y. 893 (2003), the state's failure to fully comply with that ruling and a major new litigation that was initiated in 2014 to enforce on a statewide basis students' constitutional right to the opportunity for a sound basic education. The instructor was and is counsel for plaintiffs in both of these cases, and he will involve students in discussions of on-going litigation strategies and analyses of how litigation developments relate to the actual adoption and implementation of successful educational reforms.