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 policy justifications for the courts' role in 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 Debate” and will then consider the role of the federal courts in effecting remedies in school desegregation, bilingual education and special education 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 also examine in depth 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 40 years, litigation alleging violations of these rights have been filed in over 45 states, and plaintiffs have prevailed in over 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 examine in depth Campaign for Fiscal Equity (CFE) v. State of New York, a case in which the state’s highest court held that all students in the State of New York are entitled to the opportunity for a sound basic education and issued a far-reaching remedial decree. Since the recession of 2008, however, the reforms the legislature adopted as a result of CFE have not been fully implemented. In February 2014, a new group of state-wide plaintiffs filed New Yorkers for Students Educational Rights ( NYSER) v. State of New York, a follow-up, compliance litigation that focuses on mechanisms for ensuring a sustainable, permanent remedy The course instructor was and is co-counsel for plaintiffs in both of these cases. We will also consider whether the many decisions in the educational adequacy cases provide appropriate precedents for judicial intervention in cases challenging teacher tenure and dismissal cases, such as the recent decision of the California Superior Court in Vergara v. State of California