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Scholar: Courts Ill-Equipped for School Reform

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.

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