by Joshua M. Dunn and Martin R. West (eds). Washington: Brookings Institution Press, 2009. 280pp. Paper. $28.95 ISBN: 9780815703075.

Reviewed by Lewis M. Wasserman, Department of Educational Leadership and Policy Studies, University of Texas at Arlington.


Editors Joshua M. Dunn, Associate Professor of Political Science at the University of Colorado at Colorado Springs and Martin R. West, Assistant Professor of Education at the Harvard Graduate School of Education and executive editor of EDUCATION NEXT. . . have done an excellent job in putting together this volume and in selecting its chapter authors. It brings together the thinking of some of our nation’s most thoughtful commentators on education law and policy from the legal and education communities. They examine the impact of judicial decrees and litigation on public school operations and educational reform, and ask tough questions about the nature of the contribution courts make to such efforts.

In his forward, Chester E. Finn, Jr., President of the Thomas B. Fordham Institute, foreshadows the book’s contents. Finn provided the impetus, and perhaps the muscle, to obtain financial support to get this project off the ground. From the outset he advises us that we should question the assumption [for those of us naïve enough to have made it] that court involvement, especially involving civil liberties, will lead to educational improvement, particularly in such bedrock matters as student achievement. Indeed, he raises the question as to whether court reform may be an obstacle to school improvement. No doubt such statements are provocative in some quarters, but are important and should be raised. Moreover, Finn asks whether reform efforts favoring choice [perhaps in the libertarian sense] rather than uniformity, might not be more effective in bringing about improvement. I take him to prefer legislative and executive activism over judicial interventions. He presages the book contents by observing that the reader may be surprised to learn that in some areas where one might expect to find enormous amounts of litigation, such as over No Child Left Behind (“NCLB”), the Individuals with Disabilities Education Act (“IDEA”), and desegregation, there is surprisingly little. Contrariwise, school choice and free speech conflicts appear to be on the rise. Mr. Finn reminds us that there has been a profound shift to state forums in school finance litigation since federal constitutional arguments in this area became essentially a non-starter following the seminal case of SAN ANTONIO v. RODRIGUEZ.

Although Finn points to the significance of the famous ZELMAN case, [involving the availability of school vouchers to students in the substandard Cleveland public schools], in finding no federal Establishment Clause violations in that case, he reminds us that such [*243] statutes may run afoul of State Constitutional anti-Establishment provisions such as those the United States Supreme Court recognized in the WITTERS case and the State of Washington Supreme Court bears out. In WITTERS, the United States Supreme Court held that a general program of tuition assistance to college students which permitted students to apply the grant to a bible college to study the ministry did not violate Establishment Clause mandates. This short-lived victory was tripped-up by the Washington Supreme Court which found such assistance ran afoul of the State Constitution.

Finn further observes that judges do follow election returns and adjust their decisions to popular sentiments as well as the outcome of cases to their philosophical or political beliefs. Barry Friedman’s 2010 stellar effort, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION, certainly bears this out.

Finn’s fourth major point, perhaps his most definitive, is that judges extend themselves materially beyond their competencies by micromanaging policies and programs, instead of leaving that job to elected or other agency officials. Although this is undoubtedly true, it is also true that states and localities have often failed miserably in performing their mandated functions. What role then should courts play in assisting the public in attaining effective schools, and perhaps more fundamentally, how should they exercise their powers? At bottom, that is what this volume is about.

This book is well organized. Part One is called Context. It contains three chapters. Its first is “The Supreme Court as School Board Revisited,” by Martin R. West and Joshua M. Dunn. This introductory material will be most helpful to readers who are new to the field and those who need a refresher. It recounts the volume of school litigation over the years, states the kinds of cases which are litigated and which forums entertain what types of cases most frequently. Moreover, it distinguishes between constitutional and statutory disputes. Perhaps most importantly the authors raise the question, fleshed out in each of the subsequent chapters as to the competencies of the different branches of government to assist in meaningful school reform and how this will play out in our scheme of separation of powers at the federal and state levels. Like Finn in the forward, this chapter prepares the reader for what he will encounter later. I for one believe it would help my students see the forest amidst the trees before jumping in and tackling the policy concerns discussed in each chapter.

The Second Chapter, “Taking Remedies Seriously: Can Courts Control Public Schools?” by Shep Melnick, asserts “two themes.” The first is that judicial interventions, once made, are not fixed, but rather evolve constantly, based on what courts learn from their prior mistakes and successes. This learning, we are informed, occurs not only within the litigation itself, but from the effects of litigation on the political branches, including executive education agencies. The second theme is that in order for [*244] judicial remedies to work well, remedial orders must be adapted to the particular features of the target organization. Melnick is particularly skeptical of broad-based command and control approaches and asserts that in most cases particularized remedies which are more narrowly focused will be more successful. Having litigated special education class actions as a plaintiffs’ lawyer, I concur in that viewpoint. My strategy has been to focus on aspects of systemic failures which are both fixable and measureable – for instance, requiring the agency to make timely decisions and compelling retention of sufficient agency staff to allow for that outcome. Melnick is cognizant of the effects of remedial orders on people in the trenches, the ones he calls the street-level bureaucrats. I know from personal experience this is no mean task. Judges, without being mindful of the motivational, ability and social factors which affect organizational success, may skate on thin ice in assuming that winning a case means altering human behavior in ways which matter to children. As Melnick states: “Coping organizations are particularly hard nuts to crack.” His message, I think, is that in formulating remedial orders, interest groups such as teachers, parents and experts, should be involved early on, because it may be the only effective way to ensure the outcome sought.

Chapter 3, “School Superintendents and the Law: Cages of their Own Design?,” is different from the other chapters. It surveys a small group of school superintendents about their approaches to law as a tool for educational reform, when serving as school district chief executive officers. Frederick M. Hess and Lance D. Fusarelli authored this chapter. Given the small sample of interviewees, the approach is necessarily tentative. Nevertheless, some observations may be gleaned from their study. The authors report that careerist superintendents “appeared more passive, more likely to avoid legal conflict, less likely to push legal boundaries [toward meaningful reform] and tended to think their lawyers were there to keep them out of trouble.” More reform minded superintendents perceive their lawyers as partners in reform. In this regard the lawyer is asked how can we do this within permissible legal boundaries, rather than if I do this will I get into trouble? The careerists seem to lack an aggressive legal strategy and are more concerned about consensus building than change. For such persons, caution rather than change seems to be what is valued. Still another force is context. This is more difficult to describe, but such factors as support from important political constituencies, the reach of unions and even such factors as inertia, will influence how law as a tool for change may operate.

Part II is comprised of four chapters: “The Real Lessons of School Desegregation,” by James E. Ryan; “School Finance Litigation: The Third Wave Recedes,” by John Dinan; “The Judiciary’s Now-Limited Role in Special Education,” by Samuel R. Bagentos; “Pass or Fail? Litigating High Stakes Testing” by Michael Heise. The common theme among these chapters is that, after decades of contentious litigation in desegregation, financial equity and adequacy, special education and high-stakes testing, the wave of litigation has subsided. The message, perhaps common to all, is that there are limits to what litigation can achieve in [*245] these areas as courts and some litigators have come to recognize. Ryan observes, for example, that the Supreme Court has failed to integrate the public schools, notwithstanding its dismantling laws that intentionally and explicitly segregated students by race. “Schools today are as segregated as they were in the late 1960s.” This is unquestionably true. Among his theses is that characterization of judicial decisions as activist or restrained depends on “whose ox is being gored” [my words, not his]. He refers the reader to the recent important case of PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1 to support his assertion that how activism is valued, and indeed the court’s legitimacy, may depend more on what the court is trying to achieve and the outcome, than the court’s methodology. PARENTS INVOLVED placed significant restrictions on voluntary efforts to integrate schools, notwithstanding substantial local support for the effort. As Ryan points out, the decision is “decidedly conservative,” but hardly restrained in its viewpoint or its deference to local initiatives. Moreover, Ryan correctly observes that time may heal some wounds [created by judicial decrees]. BROWN v. BOARD OF EDUCATION’s legitimacy was certainly challenged in 1954, but it has become largely accepted by people who reside at all points along the political spectrum. But what does that acceptance really mean? Ryan cogently observes that it may be facile to draw quick conclusions about BROWN in light of the substantial failure of schools to integrate 60 plus years later. If the truth were told, Ryan asserts, it cannot be said that BROWN could not have produced lasting changes in integration. Rather, the Supreme Court was unwilling to press hard for more consistent and lasting integration. This reluctance may merely reflect changes in court personnel. As Ryan states, “the importance of court personnel cannot be overstated.” This accounts for the withdrawal from the integration game, occurring in the early 1990s in the MILLIKEN II context. Ryan, moreover, raises a bigger question: if courts were willing to become more active in promoting integration, should they do so, or leave such matters to the legislature and executive branch control? Although he does not answer the question, he reminds us that in light of PARENTS INVOLVED, the Supreme Court may intervene, even when the political branches take steps toward a more inclusive school system. This seems to reinforce Ryan’s point: depending on when the Supreme Court faces facts like those in PARENTS INVOLVED, the outcome would turn out differently [just imagine bringing with you PARENTS INVOLVED in a time machine back to the Warren era and its aftermath, for example]. There is not much doubt about this assertion.

The Chapter on School Finance Litigation takes the reader through what John Dinan calls “waives” of litigation. He reminds us of the profound effects of SAN ANTONIO v. RODRIGUEZ, the 1973 United States Supreme Court case which overturned a three-judge federal district court panel that had ruled in favor of plaintiffs challenging the Texas school finance system, based principally on disparities of wealth among districts, resulting in markedly unequal spending among districts. RODRIQUEZ stated definitively that wealth was not a suspect classification under the Fourteenth [*246] Amendment’s Equal Protection Clause and education was not, in constitutional terms, a fundamental right subject to heightened scrutiny. This case effectively doomed federal challenges to state school finance schemes. This required plaintiffs to shift forums to state courts. Dinan guides us through the principal state court decisions ruling on equity challenges and brings us forward to the wave of adequacy cases, those which look to overall spending and ask whether it is sufficient to furnish the minimum education mandated by the applicable state constitutions. Dinan advises us that the high water mark for the adequacy cases may have passed, and current trends suggest that judicial intervention is unlikely to displace the political process as the main forum for school finance policy making. He bases this conclusion mainly on the many state courts which have terminated jurisdiction over long-standing school finance litigation in Alabama, Ohio, West Virginia, Massachusetts, New York, Kansas, Tennessee, Arkansas, Wyoming, New Hampshire and New Jersey. Dinan foresees a continued disinclination by state courts to embark on new school finance interventions. This reluctance appears to be based on the absence of manageable judicial standards in light of rather vague constitutional yardsticks. This is apparent in the fact that very similar language contained in state constitutions may result in different results, whether based on equity or adequacy. Nevertheless ambiguities may not prevent concerned plaintiffs from continuing efforts to obtain more adequate education to children attending substandard schools. Where state legislators refuse or are unable to address these issues, it would be unrealistic to expect educational constituents not to ask courts to perform functions which are better performed [or should be better performed] by the political branches. This portends, as Dinan recognizes, the continued reliance on local property taxes and sustained efforts by localities to get as large a share of the state bounty as they can achieve.

In “The Judiciary’s Now-Limited Role in Special Education,” Samuel R. Bagenstos observes that the volume of special education litigation is far less than is commonly believed. Moreover, even with respect to the existing level, its direct effects are less than one would expect. If the truth be known, school districts rarely find themselves defending their compliance with IDEA in judicial proceedings. Notwithstanding this fact, Bagenstos tells us courts’ role is not insignificant. His case in point is the class action procedure. Consent decrees, for example, can have a major impact on the way school districts operate, including the money they spend on children with special needs. However, the breadth of class action impact depends on the remedies granted by the courts, including whether decrees are broad ranging and process oriented, or narrowly focused and outcome oriented. Bagenstos concludes that it is the adoption of programmatic rules and not the adjudication of particular IDEA disputes that likely accounts for the courts’ greatest effect on schooling under the IDEA. The author also observes that, while the opportunity to obtain reimbursement for private placements and other alternatives are available to parents when districts have failed to provide a Free Appropriate Public Education to disabled children, [*247] this benefit seems to have redounded to the benefit of wealthier families. Those less fortunate simply do not have the money to pay competent attorneys to represent them in obtaining relief under the Act. Finally, Bagenstos observes that the commonly held belief that federal court litigation under IDEA imposes substantial transaction costs that divert time from general education programs is simply not justified by the data. Except for a few instances, Washington, D.C. being the primary example, such occurrences do not seem to have materialized. This chapter is useful in that it gives perspective on this important issue. Since IDEA’s focus is on dispute resolution in administrative proceedings, that is where, for the most part, the real action occurs. Greater emphasis could have been placed on this point. School administrators perceive the due process mechanism which usually must be exhausted before judicial proceeding may commence, as litigation [by another name]. My personal experience is that IEP team meetings and due process do take enormous amount of administrative time and do divert school officials from other duties. However, that is what Congress directed should occur in order to vindicate private rights. Perhaps such activities are worth it? They educate parents and more importantly school administrators.

Chapter 7, “Pass or Fail? Litigation High-Stakes Testing,” written by Michael Hess, takes us through a whirlwind tour of the high-stakes testing movement from high school exit exams through current controversies involving No Child Left Behind Act and the more controversial subject of how to test teachers, or more precisely, criteria for teacher outcomes. Should it be assessed by teacher skill levels or by student achievement tests? He poses the questions, but offers no answers. Hess teaches us that after decades of litigation the dust has cleared and the sufficiency of the means employed to measure student progress are unlikely to be challenged legally, in the foreseeable future. This will result in conflicts moving from the courts to legislative and executive arenas. The problem, of course, is one of accountability for students, teachers and administrators and school boards. Hess points out that assessment has a value independent of its implications for such things as graduation standards, promotion and teacher adequacy. It furnishes information about our pedagogical successes and failures. Hopefully, if the tests are adequately designed, they may tell us something about these things. Hess does not tell us too much about these things since his assignment was to tell us about the intersection of the courts on high stakes litigation. He does this job admirably and concisely.

Part III, “Persistent Conflicts,” examines some of the most contentious disputes affecting the schools manifested in judicial proceedings. In Chapter 8, Martin R. West looks at the problems associated with school choice in “School Choice Litigation after Zelman.” ZELMAN, referred to earlier, was a United States Supreme Court case that challenged an Ohio statute which permitted low income students in Cleveland’s abysmally failing schools, to select among a menu of educational alternatives, including using publically funded tuition vouchers to enroll their children in secular and non-secular private schools. The Supreme Court held in 2002 that this program did not violate [*248] the First Amendment’s Establishment Clause. West explains that this important issue cannot be finally resolved by the Supreme Court since such activities implicate state constitutional interests. In other words, although a program such as Ohio’s may not violate the federal Establishment Clause , it may run afoul of state constitutions and may never be implemented due to declarations and injunctions issued by state courts. West amply explains the tension between apparently well meaning state legislatures and judicial construction of state constitutions and thus gives us the big picture of what is happening today. He explains why this issue remains a persistent one, not easily resolved. To his credit West takes a stand. I read him to admonish plaintiffs for asking courts to revisit policy decisions made by the political branches, particularly when lawsuits are based on settled constitutional ground. I tend to agree with him. However, I am skeptical of the assumption often made by private choice advocates that private choices will bring about better measureable outcomes. Wouldn’t it make sense to provide outcome-based incentives to be applied to private initiatives? School choice advocates have much to contribute to the discussion. However, it is a rare case indeed where programs which shift students to private alternatives are coupled with free market incentives advocated for by school choice proponents. Recently, such national figures such as Dianne Ravich of the NYU School of Education have begun to sing a different tune which focuses on rebuilding failing public schools, rather than building private ones. I question her assumptions mainly on the ground that insufficient metrics in defined curricula have been applied to school choice initiatives, particularly in applying apples to apples comparisons with public school students of comparable backgrounds. Jumping the gun [even after 20 or more years] is not a sound basis of forming educational policy. Certainly substantial blame must be placed on the private schools which have failed to perform. However public investment in private education with meaningful accountability, including meaningful metrics tied to defined curriculum may be worth trying for real. Indeed, there is a case to be made that some of the political resistance which occurs in public sector education might be diminished in private–public sector initiatives.

Chapter 9, “Talking about Religion: Separation, Freedom of Speech, and Student Rights” by Joshua M. Dunn, takes us on an evolutionary tour of the slow merger of Establishment Clause and Free Speech jurisprudence. We get a short-course on the tactical approach taken in this regard by the religionists, and learn why they were so successful: characterizing religious expression as a species of speech placed it in a more secure doctrinal box, protected, so-to-speak, by such pillars of Free Speech as “matters of public concern.” Dunn illustrates how another merger occurred, that between the New Christian Right and ACLU. These seemingly unlikely bedmates formed a near perfect marriage in their shared value of viewpoint neutrality. After all, virtually every public issue may be framed from a religious perspective. And in the market place of ideas, speech addressing these concerns is entitled to be heard. This marriage however may not last forever, This is because once the New Christian [*249] right takes off its Free Speech hat and replaces it with one containing threads of Free Exercise and Parental Choice, they will be headed for divorce court. Dunn wisely notes the real issue in school settings [notwithstanding the speech and religion merger] is one of institutional control. For more than fifty years, TINKER v. DES MOINES has told us public school students do not lose their constitutional rights at the school house door and that Free Speech should not be expunged, absent its interference with the basic educational mission. He reminds us this invitation by the TINKER court has been jumped on in later Supreme Court cases as a way of curtailing student expressive rights. Cases such as BETHEL and HAZELWOOD, trimming student expression based on decency and civility in a speech given during an election for school offices, in the first case and newspaper content [effects on divorce on students and abortion] in the second case, illustrate this point. More recently MORSE v. FREDERICK, the famous “bong hits for Jesus” case represents what Dunn refers to as a limitless basis for curtailing student speech. I share Dunn’s view and that of Douglass Laycock that the school’s basic educational mission should not be inconsistent with, and cannot be defined to be inconsistent with, the First Amendment freedom of political and religious speech. Although Dunn is too polite to say it in this chapter, I suspect he holds the view that the Supreme Court has gone too far in protecting local prerogatives in defining the school’s educational mission. Such amorphous standards are indeed not standards at all. Students, as do we all, have the right to say stupid things. That is how we provoke a response which places us in Holmes’ market place of ideas. That is how we learn. And of all places, a school should not be the place to suppress learning.

Martha Derthick in “Litigation under NCLB,” housed in the section of the book dealing with Part III’s “Present Conflict” is rightfully critical of NCLB. She observes that the Act reflected a Congressional frustration with the poor national results, given the amount of federal investment in education. I read her as viewing NCLB as a punitive statute in the sense that it may withhold financial support and does not provide direct rewards for success. She is critical about how the law was created. . . it was fashioned in think tanks, rather than by people in the trenches who live daily with the difficulties in educating students who fail to progress. Derthick refers to individual incentives for improved student performance as one alternative to success. She recognizes that teacher unions will resist such accountability which may mean those proposals will die on the vine. Although what she describes is undoubtedly true, my view about NCLB is that Congress blinked at the last minute and in subsequent opportunities to fix the Act’s blemishes. Under NCLR, criteria for progress are substantially delegated to the states [ableit with a NCLR cover] thereby leaving the 50 jurisdictions with latitude to determine the fate of their own children. Although this approach reveals deference to the traditional role of the states in educational matters, it shows a shocking disregard for real results and meaningful accountability. So long as uniform defined criteria are lacking, constituency politics will take the place of real accountability for helping children learn. Regrettably, this [*250] may require a national response, at least in core subjects. I say regrettably because many states have abdicated their duties in this regard. Although it is largely contrary to the majority of the authors in this book, I contend that National standards would allow for a more meaningful comparison among states, their school districts and individual students. This may prove embarrassing to many local constituencies, but is a price which will have to be paid to know whether the progress we sometimes claim to make means anything. Finally, Derthick recognizes the Congressional resistance, even among Democrats, to create a private right of action to enforce NCLB. Although she does not take a stand on whether a private right of action should obtain, she does raise the issue and it is a very important issue to bring to readers’ attention. It raises the question of where a private right of action does exist, how do courts measure statutory compliance?

The final chapter, “Still Judging School Discipline,” by Richard Arum and Doreet Preiss considers the interaction among students’ rights, particularly those related to the exercise of due process in the dispensing of discipline. It suggests that by over legalizing this process something is lost in the traditional relationship between educators and their students, especially in the case-by-case considerations that teachers apply to the individual characteristics of their charges. The data to which they refer manifests an acute consciousness by educators of the legal environment in which they operate, as well as a justifiable concern that the well-to-do suburban parents and children are significantly more aware of their “rights” than family members residing in less affluent areas. These data, in the authors’ view, result in a loss of flexibility due to a highly regulated disciplinary environment on the one hand and an imbalance in the distribution of justice on the other hand. Although the latter is undoubtedly true, this imbalance occurs at all levels of society, whether in banking, real estate transactions and virtually any other aspect of society. As to the former, I am not sure that awareness of legal consequences [in the general sense] necessarily implies inaction or serious loss of discretion. Perhaps it speaks more to academia’s failure to adequately educate educators, particularly teachers, about core issues in school law so that they understand the environment in which they work. Moreover, after more than 35 years of working in or about schools, I can virtually guarantee that teachers and administrators exercise enormous amounts of discretion whatever they feel about the constraints placed upon them. Moreover, the case law suggests that courts tend to be deferential to school decision making in regard to the disciplinary penalties they impose on students, and somewhat forgiving for procedural due process violations, at least in finding federal constitutional violations. Although Justice Thomas’ concerns and even those of Justice Breyer about turning a courtroom into the principal’s office are understandable, the death of administrator and teacher discretion I think is far too exaggerated.

Each of the book’s chapters provides ample references for the researcher to pursue more detailed study of its subject matter. Each chapter raises provocative questions and adheres closely to the facts, as well as they may be ascertained. [*251] The book fulfills its broad mission in giving the reader an accurate overview of school litigation over the last half century or so in the most important litigation areas and considering the impact of that litigation on the operation of public schools.

In the broad picture this work makes the reader aware of the limits of litigation as a panacea for educational policy failures, but conscious as well of the stimulus effect of keeping educators on their toes through litigation. Perhaps that is the bigger message from the editors and the chapter authors – that is, that courts should not be in the business of making educational policy, but have a legitimate role in stimulating legislative and local action?

There are far too many political obstacles to achieving educational accountability. The value of the courts may be not to define new policies but to say that what schools are doing does not work in the way that state and federal statutes and constitutions require. Perhaps over time judicial interventions will trigger outcome-determinative legislative and executive responses in ways in which society can be proud. To date that has not occurred. But that is not the fault of the courts, but ourselves as citizens and educators.


BETHEL SCHOOL DISTRICT No. 403 v. FRASER, 478 U.S. 675 (1986).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
MILLIKEN v. BRADLEY (“MILLIKEN II”), 433 U.S. 267 (1977).
MORSE v. FREDERICK, 551 U.S. 393 (2007).
ZELMAN v. SIMMONS-HARRIS, 536 U.S. 639 (2002).

© Copyright 2010 by the author, Lewis M. Wasserman.