Educational Policy-Making and the Courts
EDPA 5086; L-9827
Professor Michael A. Rebell
Columbia University
Spring, 2012
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 Debate” and then
briefly consider the role of the courts in effecting remedies in school desegregation, English
language learner and special education litigations. Specific attention will be given to judicial
capacity to analyze social science evidence and to theories of social reform.
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 20 years,
litigation alleging violations of these rights have been filed in over 30 states, and plaintiffs have
prevailed in about two-thirds 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 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.
I. Introduction: Defining the Problem
Pages
Jason Felch et al., “When Lay-offs Come to L.A. Schools, Performance
Doesn’t Count.” L.A. Times (December 2010).
1-7
Sarah Almy & Christina Theokas, “Not Prepared for Class: High Poverty
Schools Continue to Have Fewer In-Field Teachers.” The Education Trust
8-13
1
1-6 (November 2010).
Reed v. State of California, Revised Findings and Order (2010).
14-24
Access Network, “L.A. Settlement Partially Sets Aside Seniority Layoff
Rules.”
25-26
Summary of L.A. Seniority Layoff Settlement.
27-29
II. The Historical Judicial Activism Debate
Michael A. Rebell & Arthur R. Block, Educational Policy Making and
the Courts: An Empirical Study of Judicial Activism, Chapter 1, 3-18
(University of Chicago, 1982).
30-55
Donald L. Horowitz, The Courts and Social Policy, Chapter 2, 22-56
(The Brookings Institute, 1977).
56-91
Abram Chayes, “The Role of the Judge in Public Law Litigation,” 89
Harvard Law Review 1281 (1976) (Excerpts).
92-113
Frank M. Johnson, Jr. “The Role of Federal Courts in Institutional
Litigation,” 32 Alabama Law Review 271 (1981).
114-120
III. School Desegregation, An Historical Overview
Brown v. Board of Education, 347 U.S. 483 (1954).
121-125
Brown v. Board of Education, 349 U.S. 294 (1955) (“Brown II”).
126-128
Swann v. Charlotte-Mecklenberg Board of Education 402 U.S. 1 (1971)
(excerpts).
129-133
Milliken v. Bradley, 418 U.S. 717 (1974) (summary).
134-137
Milliken v. Bradley, 433 U.S. 267 (1977) (excerpts).
138-149
Board of Education v. Dowell, 498 U.S. 237 (1991) (excerpts).
150-158
Missouri v. Jenkins, 515 U.S. 70 (1995) (excerpts).
159-167
IV. School Desegregation, Current Issues
Parents Involved v. Seattle School District No. 1, 551 U.S. 701 (2007)
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168-188
(Excerpts)
U.S. Department of Justice and U.S. Department of Education, “Guidance
on Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation
in Elementary and Secondary Schools” (2011).
Erica Frankenberg and Elizabeth Debray. Integrating Schools in a
Changing Society, (University of North Carolina Press 2011).
--Erica Frankenberg, “Integration after Parents Involved”
189-197
199-220
--Chinh Z. Le, “Advancing the Integration Agenda under the
Obama Administration and Beyond”
221-233
--Gary Orfield, “Returning to First Principles”
234-246
Richard Thompson Ford, Rights Gone Wrong, Ch. 3, excerpts
(2011).
247-273
V. Courts and Social Science Evidence
Paul Rosen, The Supreme Court and Social Science, Ch. 8 excerpts
(U. of Illinois Press 1972).
274-284
Levin, Henry M. “Social Science and the District Court: The
Observations of a Journeyman Trial Judge.” Law and Contemporary
Problems, 232-240 (1975).
285-300
McMillan, James B. “Social Science and the District Court: The
Role of Social Science Evidence,” Law and Contemporary Problems,
157-163 (1975).
301-304
Belfield, Clive R. & Levin, Henry M., “The Economics of Education on
Judgment Day.” 28 Journal of Education Finance, 183-206 (Fall 2002).
305-328
Superfine, Benjamin Michael, “The Evolving Role of the Courts in
Educational Policy: The Tension Between Judicial, Scientific, and
Democratic Decision Making in Kitzmiller v. Dover.” American
Educational Research Journal, 46, 898-923 (December 2009).
329-354
Rebell and Block, Educational Policy Making and the Courts, 50-56,
205-210.
355-367
VI. Special Education
Michael A. Rebell, “Jose P. v. Ambach: Special Education Reform in New
York City,” in Barbara Flicker, ed., Justice and School Systems: The Role
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368-419
Of the Courts in Education Litigation,” 25-69; 89-94 (1991).
Ross Sandler and David Schoenbrod, Democracy by Decree, Ch. 3, (Yale
University Press 2003)
420-476
Michael A. Rebell, “Origin of the IDEA.”
477-478
Richard Thompson Ford, Rights Gone Wrong, Ch. 1 excerpts (2011).
479-493
VII. Institutional Reform Litigation: Current U.S. Supreme Court Holdings
A. Prison Reform
Rhodes v. Chapman, 452 U.S. 337 (1981) (excerpts).
494-501
Prison Litigation Reform Act, 18 U.S.C.A 3626 (1996).
502-506
Brown v. Plata 131 S. Ct. 1910 (2011) (excerpts).
507-523
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)
(excerpts).
524-529
B. English Language Learners
Horne v. Flores 129 S. Ct. 2579 (2009) (excerpts).
530-547
VIII. Theories of Social Reform
Stuart A. Scheingold, The Politics of Rights, Prologue, Ch. 8,9, Yale
University Press (1974).
548-586
Gerald N. Rosenberg. Hollow Hope: Can Courts Bring about Social
Change? 1-54 (University of Chicago Press, 1993).
587-638
Michael Paris. Framing Equal Opportunity: Law and the Politics of School
Finance Reform. 13-33 (Stanford Law Books, 2010).
639-659
Richard Thompson Ford, Rights Gone Wrong, Ch. 2 excerpts (2011)
660-666
IX. Education Finance and Sound Basic Education (SBE): An Overview
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Rebell, Michael A. Courts & Kids: Pursuing Educational Equity through
the State Courts, 1-29 (University of Chicago Press, 2009).
Required Text
Hanushek, Eric A. and Alfred A. Lindseth Schoolhouses, Courthouses and
Statehouses: Solving the Funding-Achievement Puzzle in America’s Public
Schools, 44-144 (Princeton University Press, 2009).
Required Text
X. SBE in the State of New York: The CFE Decisions
CFE v. State of New York, 86 N.Y. 2d 307 (1995) (“CFE I”) (excerpts).
667-672
CFE v. State of New York, 87 Misc. 2d 1 (S. Ct. N.Y. Co, 2001)
(excerpts).
673-679
CFE v. State of New York, 100 N.Y. 2d (2003) (“CFE II”) (Majority
Opinion).
680-686
Michael A. Rebell, “Adequacy Litigations: A New Path to Equity?” in
Amy Stuart Wells and Janice Petrovich, Bringing Equity Back (Teachers
College Press, 2004) (excerpts).
687-696
XI. The SBE Decisions: What Have They Accomplished?
Susan Perkins Weston & Robert F. Sexton, “Substantial and Yet Not
Sufficient: Kentucky’s Effort to Build Proficiency for Each and Every
Child,” (The Campaign for Educational Equity, 2009).
697-740
Margaret E. Goetz & Michael Weiss, “Accessing Success in School
Finance Litigation: The Case of New Jersey,” 4-7 (The Campaign for
Educational Equity, 2009).
741-744
Gordon MacInnes, In Plain Sight: Simple, Difficult Lessons From New
Jersey’s Expensive Effort to Close the Achievement Gap, Chapters 4, 5,
and 10 (The Century Foundation Press, 2009).
745-770
Peter Schrag, Final Test: The Battle for Adequacy in America’s Schools,
Ch. 3, excerpts, Ch. 5 (The New Press, 2003)
771-791
Schoolhouses, Courthouses and Statehouses, Ch. 6.
Required Text
Access Network, “Studies Show Positive Impact of CFE Funding.”
792-794
Marguerite Roza and Paul T. Hill, “How Can Anyone Say What’s Adequate
If Nobody Knows How Money Is Spent Now?” in Courting Failure, Ch. 6
(Eric A. Hanushek, ed.) (Education Next Books, 2006).
795-816
5
Herbert J. Walberg, “High-Poverty, High Performance Schools, Districts,
and States,” Courting Failure, Ch. 3.
817-839
Baker, Bruce D. & Welner, Kevin G., “School Finance and Courts: Does
Reform Matter, and How Can We Tell?” Teachers College Record, 2011.
840-860
XII. Proposals for Improved Outcomes
Courts & Kids, 30-105.
Required Text
Schoolhouses, Courthouses, and Statehouses, 217-262; 281-287.
Required Text
XIII. Judicial Enforcement of the Right to a Sound Basic Education in Difficult
Educational Times
Michael A. Rebell, “Judicial Enforcement of the Right to a Sound Basic
Education in Times of Fiscal Constraint,” (75 Alb. L. Rev. 1855 ( 2012)
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