Education

Scholar: Courts Ill-Equipped for School Reform

By Mark Walsh — May 25, 2011 3 min read
  • Save to favorites
  • Print

Efforts to use the courts to reform public education have largely been a failure, says a political scientist who has closely studied school litigation.

The track record of judicial intervention in school policies shows that there’s “no escaping the hard work of political mobilization, legislative action, and administrative oversight,” says Joshua M. Dunn, a political science professor at the University of Colorado-Colorado Springs.

Dunn made the observations in a draft paper and a presentation this week at a forum put on by the American Enterprise Institute for Public Policy Research, in Washington.

Dunn is generally referring to the courts’ handling of large-scale institutional reform litigation involving the schools, such as desegregation cases. Not only have judicial interventions rarely improved education, Dunn says, they often make things worse, with good intentions leading to unforeseen results.

Dunn’s draft paper is titled, “Courting Education: Mitigating the Seven Somewhat Deadly Sins of Education Litigation.” Among the sins, he says, are these:

&mbull; Courts make decisions based on unreliable information, often from expert witnesses.

&mbull;They can only proceed in piecemeal fashion, based on the cases before them.

&mbull; Courts sometimes oversimplify complex problems, resorting to “reductionist solutions” that do little to solve the larger and more complex problems.

&mbull; School reform litigation costs too much, both in time and money

Among the cases Dunn cites for committing one or more of these sins is the Missouri v. Jenkins desegregation case in Kansas City, Mo.; and the Horne v. Flores litigation in Arizona, over the education of English-language learners. (The links are to the main Supreme Court decisions that were aimed at reining in those suits, while Dunn is generally referring to lower court decisions in those cases.)

Dunn, who wrote a book on the Jenkins case and co-edited a book of essays about school litigation, cites the observation of a then-obscure Democratic state senator and part-time constitutional law professor in Illinois to support his case.

The courts had done a poor job with desegregation, Barack Obama said in 2001. “The court’s just not very good at it, and politically it’s very hard to legitimize opinions from the court in that regard,” Obama said.

Institutional reform litigation is probably not going away, and on the same day that Dunn made his presentation, the U.S. Supreme Court upheld a sweeping lower-court order requiring California to reduce its prison population because of unconstitutional conditions. The decision prompted Justice Antonin Scalia, in dissent, to make this observation about the sorts of judicial orders that emerge from institutional reform litigation.

"[S]tructural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences,” Justice Scalia said in his May 23 dissent in Brown v. Plata. “Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatseover into the management of social institutions.”

Dunn says there are a few areas involving schools in which the courts have been effective, such as special education cases and lawsuits helping to guarantee the religious-speech rights of students.

Courts, Dunn concludes, can be most effective not when micromanaging complex education problems but acting as an enforcer of clearly defined rights hashed out in the political process. “Policymakers should look to the political process to create policies for the courts to enforce,” he said.

* * * *

Dunn’s paper was delivered at an excellent AEI forum called “Carrots, Sticks, and the Bully Pulpit: Sobering Lessons from a Half Century of Federal Efforts to Improve America’s Schools.”

Many of the papers and speakers dealt with topics such as the growing federal role in K-12 education policy, the Elementary and Secondary Education Act, federal education research, and federal efforts to aid urban school systems. Most were beyond the scope of the School Law Blog, but I encourage readers to check out the draft papers and, if you have the time, the video of the daylong forum, at this link.

A version of this news article first appeared in The School Law Blog.

Events

Classroom Technology Webinar How Pandemic Tech Is (and Is Not) Transforming K-12 Schools
The COVID-19 pandemic—and the resulting rise in virtual learning and big investments in digital learning tools— helped educators propel their technology skills to the next level. Teachers have become more adept at using learning management
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Data Webinar
Using Integrated Analytics To Uncover Student Needs
Overwhelmed by data? Learn how an integrated approach to data analytics can help.

Content provided by Instructure
School & District Management Live Online Discussion Principal Overload: How to Manage Anxiety, Stress, and Tough Decisions
According to recent surveys, more than 40 percent of principals are considering leaving their jobs. With the pandemic, running a school building has become even more complicated, and principals' workloads continue to grow. f we

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Gunman in 2018 Parkland School Massacre Pleads Guilty
A jury will decide whether Nikolas Cruz will be executed for one of the nation’s deadliest school shootings.
3 min read
Annika Dworet and her husband, Mitch Dworet, wipe away tears as their son's name is read aloud during Marjory Stoneman Douglas High School shooter Nikolas Cruz's guilty plea on all 17 counts of premeditated murder and 17 counts of attempted murder in the 2018 shootings, at the Broward County Courthouse in Fort Lauderdale, Fla. on Wednesday, Oct. 20, 2021. The Dworet's son, Nicholas Dworet, 17, was killed in the massacre.
Annika Dworet and her husband, Mitch Dworet, wipe away tears as their son's name is read aloud during Marjory Stoneman Douglas High School shooter Nikolas Cruz's guilty plea on all 17 counts of premeditated murder and 17 counts of attempted murder in the 2018 shootings, at the Broward County Courthouse in Fort Lauderdale, Fla. on Wednesday, Oct. 20, 2021. The Dworet's son, Nicholas Dworet, 17, was killed in the massacre.
Amy Beth Bennett/South Florida Sun Sentinel via AP
Education Briefly Stated: October 20, 2021
Here's a look at some recent Education Week articles you may have missed.
8 min read
Education Gunman in Parkland School Massacre to Plead Guilty
The gunman who killed 14 students and three staff members at a Florida high school will plead guilty to their murders, his attorneys said.
4 min read
Parkland school shooter Nikolas Cruz is sworn in before pleading guilty, Friday, Oct. 15, 2021, at the Broward County Courthouse in Fort Lauderdale, Fla., on all four criminal counts stemming from his attack on a Broward County jail guard in November 2018, Cruz's lawyers said Friday that he plans to plead guilty to the 2018 massacre at a Parkland high school.
Parkland school shooter Nikolas Cruz is sworn in before pleading guilty, Friday, Oct. 15, 2021, at the Broward County Courthouse in Fort Lauderdale, Fla., on all four criminal counts stemming from his attack on a Broward County jail guard in November 2018, Cruz's lawyers said Friday that he plans to plead guilty to the 2018 massacre at a Parkland high school.
Amy Beth Bennett/South Florida Sun Sentinel via AP
Education California Makes Ethnic Studies a High School Requirement
California is among the first in the nation to require students to take a course in ethnic studies to get a diploma starting in 2029-30.
4 min read
FILE - In this Jan. 22, 2020, file photo, Democratic Assembly members, from left, James Ramos, Chris Holden Jose Medina, and Rudy Salas, Jr., right, huddle during an Assembly session in Sacramento, Calif. Medina's bill to make ethnic studies a high school requirement was signed into law by California Gov. Gavin Newsom on Friday, Oct. 8, 2021. (AP Photo/Rich Pedroncelli, File)