Usable Knowledge The Judicialization of American Education A look at how court decisions across the United States are impacting education policy Posted March 17, 2010 By Jill Anderson Associate Professor Martin West's current book, From Schoolhouse to Courthouse: The Judiciary's Role in American Education, coedited with Joshua Dunn, associate professor at the University of Colorado at Colorado Springs, explores the trend of increased judicial involvement in America's schools. Presenting essays written by authorities in the fields of education, political science, and law, West and Dunn highlight the many areas of education policy that have made their way into U.S. courts to be debated and decided, and consider the implications of heightened judicial involvement for schools. "Those directly responsible for managing public education, such as principals, school board members and superintendents, struggle to know how well teachers are doing their jobs," West explains. "The courts, which only engage educational institutions intermittently, have even more difficulty in determining whether their remedies have been successful — or even if they have been implemented at all."Judicial involvement in American education has grown in the past 50 years. Why?Well, the first thing to note is that education was not alone in experiencing more court oversight during this period. The judiciary's role in social policymaking expanded broadly with the rights revolution of the 1960s, as the public's thirst for "total justice" combined with the courts' willingness to embrace new legal doctrines, increasingly long and complicated federal statutes, and the emergence of well-funded advocacy organizations to generate a surge of litigation across policy areas. Federal courts came to supervise many core functions of state and local government: police, prisons, and mental hospitals, for example, in addition to schools.In the case of education, these factors coincided with a growing ferment over the performance of the nation's schools and an urgent, at times seemingly frenetic, search for solutions. Competing reform movements based in universities, foundations, and civil rights organizations advanced proposals for more spending, greater accountability, and expanded parental choice, to mention only the most prominent. These efforts invariably provided occasion for litigation and sometimes, as in the case of school finance reform, worked primarily through it.The increased federal role in education also played a big role. As Congress imposed new obligations on states and school districts, conflict arose over their performance of those duties. In fact, Congress often invited litigation by creating "private rights of action" that empower individuals to file suit if they dislike how a statute is being enforced. And in areas in which the federal government lacked either the license or capacity to shape local policy directly, executive branch officials used federally sponsored litigation as a tool to advance reform.What are some of the consequences of education litigation?That's a hard question to answer in general terms. The courts have obviously articulated important principles — most notably in Brown v. Board of Education — that have played a constructive role not only in American education but in American society writ large. Yet it is equally clear that education litigation has often failed to achieve its goals. Indeed, the judiciary's attempt to desegregate public education has become perhaps the leading example for scholars asserting the limits of court-led reform. And all too often judicial interventions in education policymaking seem to have produced unintended consequences.The issue of school discipline, which [New York University Professor] Richard Arum and [doctoral student] Doreet Preiss examine in our book [in the chapter, "Still Judging School Discipline"], is a good example. The Supreme Court, between 1969 and 1975, issued a series of decisions expanding students' rights to free expression and due process in discipline cases. These decisions undoubtedly increased opportunities for student dissent and provided protections against unfair punishment. Yet they also led school districts to abandon disciplinary practices that relied on educator judgment and to adopt heavily bureaucratic procedures and zero-tolerance policies that arguably undermine the authority of school officials and make it more difficult for them to maintain order.In recent years courts have grown much more likely to defer to the decisions of school officials in cases involving school discipline, but the volume of such cases has continued to increase. And Arum and Preiss show that both teachers and students believe that students have much more expansive legal rights than is actually the case. It is no surprise, then, that a national survey conducted in 2004 by Public Agenda found that 82 percent of public school teachers and 77 percent of principals practiced "defensive teaching" in order "to avoid legal challenges."Is education litigation still on the rise?The average number of education cases decided each year in state and federal courts has remained fairly stable at almost 7,000 since the 1970s - up from around 1,500 per year in the 1940s. But the overall volume of litigation or the volume in a particular policy area can be a misleading indicator of judicial influence. Where the courts establish clear and enforceable standards, the number of cases filed will fall as compliance increases. And if legislatures or agencies incorporate judicial standards into laws and regulations, the role of the courts will be camouflaged.That said, our research did identify several policy areas where courts seem to be taking a more hands-off approach. It is well known that federal courts since the 1990s have been withdrawing from active involvement in school desegregation. While the judiciary helped to shape federal special education laws, it now plays a surprisingly limited role in their implementation - in part because of the development of quasi-judicial administrative procedures to channel disputes. In the past few years, state courts have also become much less willing to enter into ongoing supervision of school finance systems.But this does not mean that the volume or importance of education litigation will decline. In areas such as school choice, student speech, and school discipline, courts are being called upon to resolve controversies at an increasing rate. These areas are distinguished by the combination of ambiguous legal doctrine and constituencies eager to exploit that ambiguity to pursue policy objectives. For example, despite the Supreme Court's 2002 Zelman decision upholding school voucher programs involving religious schools, my own chapter in the book ["School Choice Litigation after Zelman"] shows how ongoing litigation in state courts continues to shape the development of programs providing school choice in both the private and public sectors.What advice does the book offer for policymakers working within the current legal environment?Perhaps the most concrete advice comes from [American Enterprise Institute's Rick Hess, Ed.M.'90] and [North Carolina State University's] Lance Fusarelli, who studied how (often exaggerated) legal concerns affect the behavior of district superintendents. They argue that most superintendents by training and socialization seek to avoid conflict and that they have few professional incentives to defend school districts vigorously in court even when they are likely to succeed. They operate in "cages of their own design." Superintendents from nontraditional backgrounds, however, appear more inclined to push legal boundaries to advance an agenda of reform. Rather than ask their legal teams whether a policy option is permitted, they incorporate lawyers into their planning process and ask them: How can we use the law to achieve our goals?And while I'm reluctant to offer advice to judges, we do urge them to be cautious when wading into educational disputes. For example, they should consider whether implementable and effective remedies exist for alleged violations before launching far-reaching reforms. And when they do engage in education policymaking, they should articulate clear standards that minimize legal uncertainty and the need for additional litigation. Usable Knowledge Connecting education research to practice — with timely insights for educators, families, and communities Explore All Articles Related Articles EdCast Equality or Equity? 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