Commentary

The Role of the Courts in Education: Just Arbiters and Unwarranted Intruders?

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Courts have played a major role in social-policy issues in the past generation: in civil rights, prison reform, reform of mental institutions, increased access to the political process, and, importantly, education.

In California, for example, one-fourth of all appellate education cases heard since 1858 were decided between 1969 and 1979. And largely through the efforts of organizational plaintiffs such as the American Civil Liberties Union, there has been a tremendous growth in the number of suits concerning desegregation, school finance, and other rights issues in education.

This legal activity has had a significant effect on the politics of education. It has centralized education policymaking at the state level, as individuals and groups look there with greater frequency for the redress of injustices in local school districts. And the courts have upheld as constitutional the educational preferences of many groups--the handicapped and certain racial and ethnic minorities, for example--whose interests traditionally have been ignored by policymakers in education.

Court activity also has influenced the process of policymaking in education. Hearings, compliance reports, and other legal devices have been mandated by courts to circumscribe the discretion historically possessed by educators. Organizational plaintiffs have bargained with defendant state agencies and judges over the content of remedial plans, sometimes aiding the court in their implementation.

The courts have also helped minority groups and others seeking change in the schools to gain direct access to the policymaking process by mandating community involvement through such vehicles as parent-advisory councils.

Yet some educators claim, despite the justice of many of these legal demands and some notable salutary outcomes, that the involvement by the courts is an unwarranted intrusion on their legitimate professional authority. They contend that lawsuits in education are increasingly an outgrowth of the dissatisfaction voiced by those who lose at the polls. In fact, there are problems associated with court participation in education, problems that make the job of state educators much more difficult.

Courts are inclined to ignore costs and practicality, and often do not weigh competing public values. In an era of diminishing fiscal revenues for all levels of government, court decisions require legislators, who must make difficult choices from among competing claims on the same public purse, to give preference to court-ordered priorities.

Court participation in education policymaking has caused bureaucratic chaos. The court becomes one more center of decision making in a system already subject to overlapping sources of authority and rules. Moreover, court orders take much time, expense, and labor to implement. It is one thing for courts to mandate how things ought to be; it is quite another for education officials to achieve them in actual practice.

In too many cases, lawyers with little or no grounding in education issues, and not professional educators or even elected school leaders, end up making education policy when the courts get involved. This is the reason. The education decision-making body in school-related lawsuits is usually a state board of education, whose public stances are determined by a majority vote. Too often, the members of these boards, who usually have other full-time jobs, lack the time to involve themselves in the details of education lawsuits--leaving state lawyers to decide legal positions on their own. The problem is compounded by the need for the state to coordinate its position with that of local school boards, who also must reconcile competing fiscal, political, and educational concerns.

Although attorneys for the state board of education formulate positions on legal disputes after a lawsuit is filed, the state board of education is represented in court by a deputy attorney general who has not participated in formulating the policy under legal challenge, and who sometimes is inexperienced in education litigation.

More important, the state attorney general is a constitutional officer independent of the state board of education. In California, for example, the attorney general has taken the position that his responsibilty to the people of the state transcends his allegiance to a particular client--even if that client is an important state agency, such as the department of education.

State-level court action is often resolved through consent decrees--settlements that are the result of negotiation. These decrees, though useful for plaintiffs, often place a heavy burden on the states being sued because they too often disregard the feasibility of putting a settlement into effect. In addition, because settlement negotiations are conducted in private, the public discussion and testimony that accompany the formulation of education policy by the state legislature or by the state board of education is often absent. The state board does not even participate in negotiations on the terms of the consent decree. Those are conducted by lawyers who are rarely well versed in education policy.

Use of consent decrees also prevents an assessment by public officials of the political and social costs of proposed courses of action. This balancing can be accomplished only when negotiations are carried out in public, when competing political constituencies are alerted to the details of proposed settlements, and when the attorneys working on behalf of the state are made aware of all relevant policy implications of a proposed course of action.

The complaints of many school administrators around the country about the growing importance of the courts in education are correct, but the role of the courts in education policy soon may expand. The Reagan Administration's New Federalism upsets many of the old patterns of state involvement in education. It reverses the trend toward more detailed federal regulatory rules and close federal scrutiny of program administration. Consequently, there will be more room for discretion at the state and local levels, as federal programs become fewer in number and less rigid in their requirements.

The New Federalism will likely encourage even more court activity in education. Groups that had their demands for equitable treatment recognized by the federal courts even before Congress acted to secure them may once again return to the judiciary. The state courts may play a more prominent role as more responsibility for school programs devolves upon the states. And the courts--both state and federal--may act to shape state regulatory activity as the states move to pick up the regulatory "slack" left by the withdrawal of the federal government.

Vol. 02, Issue 16, Page 24

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