1 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

2 Overview  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

3 What is institutional (school) reform litigation?  Private Law Litigation vs. Public Law Litigation (a.k.a., institutional reform litigation or impact litigation)  Compensatory vs. injunctive relief  Two parties vs. multiple parties  All interests participating vs. external constituencies  Limited vs. continuing jurisdiction  Phases of the litigation  Liability  Remedy The role of the judiciary in school reform

4 Why should courts be involved in school (public policy) reform?  Political theory/normative arguments—why courts should be involved  Countermajoritarian check: protection of minority rights  Judicial review: duty to “interpret the law”  Pragmatic arguments—why they can be effective  Political, institutional, economic independence  Catalyst role  Educative role The role of the judiciary in school reform

5 Why shouldn’t courts be involved in school (public policy) reform?  Political theory/normative arguments—why courts should not be involved  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

6 Why shouldn’t courts be involved in school (public policy) reform? Pragmatic arguments—why they cannot be effective  Rights constraint  Independence constraint  Implementation constraint  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

7 A few rebuttals  Political theory/normative arguments—depends on one’s view of the division of power and interpreter of constitutional rights  Fact-finding, remedial design, implementation  Comparative institutional analysis  Methods of analysis  The judicial bureaucracy (magistrates, masters,etc.)  Consent decree bargaining The role of the judiciary in school reform

8 The context: schools as organizations  Formal school governance in the U.S.  Federal  State  Local/Districts  Schools as informal organizations and loose- coupling  The disconnect among policy, administration, and practice

9 Toward a modest and appropriate role for courts in school governance and reform...

10 Command and control  Finding of liability  Design and order remedy  Inputs-oriented

11 Experimentalist governance and reform: the experimentalist court  Experimentalist governance and reform  Outcomes-oriented  Remedy left to stakeholders: “New publics”  Transparency  Rolling rules regime  The experimentalist court  Destabilization rights  Courts as facilitators and coordinators  The judicial dialogue and judicial veto

12 Case study: Emma C. v. Eastin

13 Courts and the law as change agents (A practical approach to school reform litigation)  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

14 A note on administrative enforcement  Standards-based reform and accountability  Content standards  Assessment  Accountability  The federal No Child Left Behind Act  Teacher “value added” and administrative reform