The Role of the Courts: An Editorial Comment

Opponents of judicial involvement in education finance cases are again asserting that the tide has turned against plaintiffs in state court education adequacy cases, an unjustified claim that I refuted in a column last year. At a recent conference sponsored by the American Enterprise Institute and the Thomas B. Fordham Institute, John Dinan, a professor at Wake Forest University, alleged that “the school finance litigation movement may have peaked…[because] judges have increasingly made clear that they are disinclined to undertake continuing supervision of school finance policies.” After citing examples of courts that recently terminated jurisdiction in education adequacy cases to support his sweeping conclusion, Dinan acknowledged that a number of these terminations “can be attributed to legislative passage of substantial reforms that courts were prepared to deem in compliance with prior rulings.” In other words, the courts ended the cases because they had achieved successful results!

Dinan concedes that judges have prevailed “in school funding battles with legislatures,” but he says that the more pressing question is whether “judges want to continue to become enmeshed in these lengthy and heated battles, in view of the questions that recent experiences raise about judicial capacity to make effective policy regarding the complex issue of school financing, let along student performance.”Missing from Dinan’s analysis, and that of Al Lindseth, Eric Hanushek, and others who question the courts’ capacity to solve educational policy questions, is any concern for the victims of the funding inequities that continue to restrict educational opportunities for low income and minority students throughout the country. Nor do they undertake any comparative institutional analysis of the capability of the legislative and executive branches to solve these problems without principled prodding from the courts. Courts alone cannot ensure equal educational opportunities -- but neither can the legislative and executive branches. The blunt reality is that we will never close the achievement gaps or meet the ambitious mandates of the No Child Left Behind Act unless all three branches of government effectively work in concert toward these ends.

In his paper entitled, “Taking Remedies Seriously: Judicial Methods for Controlling Bureaucratic Discretion in Public Schools,” which was also presented at the AEI/Fordham conference, Shep Melnick, a professor at Boston College, provided some thoughtful responses to the important questions that Dinan avoided. Melnick discussed the difficulties that superintendents, legislatures, and courts have in effectuating meaningful reforms of public school systems because of the difficulties of regulating what actually goes on in the classroom and because it is almost impossible to obtain truly accurate assessments of outcomes. He provides an insightful account of the role the courts have undertaken in promoting educational opportunity over the past half century through structural injunctions, as well as the civil rights statute known as section 1983 and private right of action cases. He explains that the “ability of courts to forge new remedial ‘swords’ to supplement traditional legal ‘shields’ helps explain why ‘court fatalists’ have so seriously underestimated the power of judges to bring about social change.” And he calls upon “empirically minded law-and-courts scholars” to pay more attention to how various remedial schemes actually affect the behavior of government officials. Sound advice indeed.

Michael A. Rebell