Last October, I reported on a conference at the Thomas B. Fordham Institute about the role of the judiciary in the American education system, which conference organizers correctly labeled an understudied topic.
The conference included draft papers under the theme of "From Brown to 'Bong Hits': Assessing a Half-Century of Judicial Involvement in Education."
Now, Fordham and Brookings Institution Press have published a book of essays stemming from that conference: From Schoolhouse to Courthouse: The Judiciary's Role in American Education.
"The multiple roles assumed, and decisions issued, by state and federal courts in this domain in recent years add up to a large, mixed bag of influences, many of them malign, on the K-12 education enterprise and earnest efforts to reform and renew it," Fordham President Chester E. Finn Jr. writes in the book's foreword. "Most jurists know plenty about the law, but few know much about schools and the conditions in which those responsible for teaching in and leading them are most apt to succeed."
In an overview essay, Joshua M. Dunn, an associate professor of political science at the University of Colorado-Colorado Springs, and Martin R. West, an assistant professor at the Harvard Graduate School of Education, note that in 1948 Justice Robert H. Jackson, in a concurrence in McCollum v. Board of Education, warned his Supreme Court colleagues against establishing themselves as "a super board of education for every school district in the nation."
But court involvement has, "by any measure, grown exponentially over the past 60 years," Dunn and West write. "Seemingly no aspect of education policy has been too insignificant to escape judicial oversight."
The duo, who served as editors of the collection, recruited talented academics for 11 chapter-length essays on such topics as school desegregation, education finance, high-stakes testing, special education, school choice, religion in public education, school discipline, and court cases under the federal No Child Left Behind Act.
These papers hit all the hot-button issues in education law (as well as some of the duller ones), and are generally on target in their emphases and analyses, in my opinion.
My chief criticism of the collection, which I also touched on when reporting on the draft papers and confence last October, is that it accepts without much challenge the view that litigation and judicial intervention have often been barriers to real school improvement. This is undoubtedly true in some respects, but the collection lacks perspectives from civil rights practitioners or other advocates for students or school employees.
Having said that, though, I would still heartily recommend the book for anyone with an interest in school law: professors, practicing attorneys, education students, administrators, policymakers, and the most interested teachers and parents (as well as students). It might be nice if a few federal judges or Supreme Court justices, or at least their law clerks, got their hands on the volume, too.
Since Fordham held its conference last year, the Supreme Court issued four new decisions on school law issues, in the areas of student searches, sexual harassment of students, special education, and services to English-language learners.The impact of the courts on our schools does not appear to be lessening anytime soon.