The Role of the Judiciary in School
Reform in the United States
William S. Koski
Professor of Law and Professor of Education
Stanford University, California, U.S.A.
Legal Norms: Ensuring the Right to an Education
Oslo, Norway
April 26 & 27, 2012
1
Overview
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Public law litigation in the U.S. Courts
The dynamic vs. the constrained court
Schools as organizations
The experimentalist court
A case study: Emma C. v. Eastin
A note on administrative enforcement mechanisms
2
What is institutional (school) reform
litigation?
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Private Law Litigation vs. Public Law Litigation
(a.k.a., institutional reform litigation or impact
litigation)
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Compensatory vs. injunctive relief
Two parties vs. multiple parties
All interests participating vs. external constituencies
Limited vs. continuing jurisdiction
Phases of the litigation
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Liability
Remedy
The role of the judiciary in school reform
3
Why should courts be involved in school
(public policy) reform?
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Political theory/normative arguments—why
courts should be involved
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Countermajoritarian check: protection of minority
rights
Judicial review: duty to “interpret the law”
Pragmatic arguments—why they can be
effective
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Political, institutional, economic independence
Catalyst role
Educative role
The role of the judiciary in school reform
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Why shouldn’t courts be involved in school (public
policy) reform?
 Political theory/normative arguments—why
courts should not be involved
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Separation of powers
Federalism/local control
Compromise legitimacy?
Conceptual indeterminacy and the standard
for intervention—why courts should not be
involved
The role of the judiciary in school reform
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Why shouldn’t courts be involved in school (public
policy) reform?
Pragmatic arguments—why they cannot be
effective
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Rights constraint
Independence constraint
Implementation constraint
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Don’t account for political/policy tradeoffs
Don’t understand complex social policy question
Can’t do remedial design
Can’t effectively implement, monitor, enforce
Compromise legitimacy?
The role of the judiciary in school reform
6
A few rebuttals
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Political theory/normative arguments—depends on
one’s view of the division of power and interpreter of
constitutional rights
 Fact-finding, remedial design, implementation
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Comparative institutional analysis
Methods of analysis
The judicial bureaucracy (magistrates, masters,etc.)
Consent decree bargaining
The role of the judiciary in school reform
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The context: schools as organizations
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Formal school governance in the U.S.
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Federal
State
Local/Districts
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Schools as informal organizations and loosecoupling
 The disconnect among policy, administration,
and practice
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Toward a modest and appropriate role
for courts in school governance and
reform . . .
9
Command and control
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Finding of liability
 Design and order remedy
 Inputs-oriented
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Experimentalist governance and
reform: the experimentalist court
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Experimentalist governance and reform
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Outcomes-oriented
 Remedy left to stakeholders: “New publics”
 Transparency
 Rolling rules regime
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The experimentalist court
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Destabilization rights
Courts as facilitators and coordinators
The judicial dialogue and judicial veto
11
Case study: Emma C. v. Eastin
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Courts and the law as change agents (A practical
approach to school reform litigation)
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What’s the problem?
What constraints (and opportunities)?
 Legal?
 Is a rights-based approach possible?
 Can we win on liability?
 Can we force a settlement dialogue?
 Political? Can we win the case? Can we win the remedy?
 Who are your constituents and potential allies?
 Who are your adversaries?
 Technical?
 Are there policies, programs, interventions that work?
 Informational?
 Do we need more research?
What remedial policy? Know your policy tools.
The role of the judiciary in school reform
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A note on administrative enforcement
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Standards-based reform and accountability
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Content standards
Assessment
Accountability
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The federal No Child Left Behind Act
 Teacher “value added” and administrative
reform
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