From Schoolhouse to Courthouse

From Schoolhouse to Courthouse: The Judiciary's Role in American Education

Joshua M. Dunn
Martin R. West
Copyright Date: 2009
Pages: 275
https://www.jstor.org/stable/10.7864/j.ctt6wpgp2
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  • Book Info
    From Schoolhouse to Courthouse
    Book Description:

    From race to speech, from religion to school funding, from discipline to special education, few aspects of education policy have escaped the courtroom over the past fifty years. Predictably, much controversy has ensued. Supporters of education litigation contend that the courts are essential to secure student (and civil) rights, while critics insist that the courts distort policy and that the mere threat of litigation undermines the authority of teachers and administrators.

    From Schoolhouse to Courthousebrings together experts on law, political science, and education policy to test these claims.Shep Melnick(Boston College) andJames Ryan(University of Virginia School of Law) draw lessons from judicial efforts to promote school desegregation and civil rights.Martha Derthick(University of Virginia),John Dinan(Wake Forest University), andMichael Heise(Cornell Law School) discuss litigation over high-stakes testing and school finance in the era of No Child Left Behind.Richard Arum(New York University),Samuel R. Bagenstos(Washington University Law School), andFrederick M. Hess(American Enterprise Institute) analyze the consequences of court rulings for school discipline, special education, and district management. Finally, editorsJoshua DunnandMartin R. Westprobe the tangled relationship between religious freedom, student speech, and school choice.

    eISBN: 978-0-8157-0383-9
    Subjects: Education

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-x)
    Chester E. Finn Jr.

    Primary-secondary education is scarcely the exclusive realm of increased litigation and court involvement in social policy, much less the only field in which the fruits of such litigation have sometimes turned out to be rotten. It is most assuredly not the only sphere where policy disputes and reform initiatives—and resistance to these—have been fought out in courtrooms as well as legislative corridors and voting booths. In the three decades since Donald Horowitz pennedThe Courts and Social Policy(Brookings, 1977), many forests have been cut down to produce the paper on which were inscribed hundreds of thousands of...

  4. Acknowledgments
    (pp. xi-xii)
  5. Part One: Context

    • 1 The Supreme Court as School Board Revisited
      (pp. 3-16)
      MARTIN R. WEST and JOSHUA M. DUNN

      In 1948 Justice Robert H. Jackson warned his colleagues on the U.S. Supreme Court against establishing themselves as a “super board of education for every school district in the nation.”¹ Clearly troubled by the Court’s invalidation of a Champaign, Illinois, program allowing students to attend religious classes in public school buildings, he worried that the decision lacked constitutional grounding and would spawn a steady stream of complaints challenging established practices nationwide. Oddly, however, Jackson could not bring himself to follow his own advice: he concurred with the Court’s judgment in the case. His evident ambivalence in doing so foreshadowed, in...

    • 2 Taking Remedies Seriously: Can Courts Control Public Schools?
      (pp. 17-48)
      R. SHEP MELNICK

      Midway through the twentieth century, federal court rulings on elementary and secondary education were rare events. Today they are commonplace. A 2004 survey of public school law devotes over 500 pages to such diverse topics as “church-state relations,” “school attendance and instruction issues,” “student classifications,” “rights of students with disabilities,” “student discipline,” “teachers’ substantive constitutional rights,” “discrimination in employment,” and “tort liability.” Of the 300 U.S. Supreme Court cases listed in its index, only a handful were issued before 1954.¹ Since the Supreme Court reviews only a tiny percentage of the state and federal court decisions handed down each year,...

    • 3 School Superintendents and the Law: Cages of Their Own Design?
      (pp. 49-70)
      FREDERICK M. HESS and LANCE D. FUSARELLI

      While the formal impact of the law on school funding, equity, and discipline is widely recognized, far less consideration has been paid to the significant impact of law on the culture and nature of district leadership.¹ In a 2003Newsweekarticle, Alan Bersin, then superintendent of San Diego City Schools, termed the threat of a lawsuit “‘the anaconda in the chandelier’—it hangs constantly overhead, threatening to strike at any time.”² In a 2003 Public Agenda survey, 47 percent of superintendents said they would operate differently if “free from the constant threat of litigation.”³ A Public Agenda study from the...

  6. Part Two: Settled Issues

    • 4 The Real Lessons of School Desegregation
      (pp. 73-95)
      JAMES E. RYAN

      In their sharp dispute over the efficacy and propriety of court involvement in education reform, courts, commentators, and politicians inevitably cite the half-century experience with school desegregation to prove their point. Some use the experience to argue that courts cannot produce lasting change in the face of public opposition, at least in the context of public education.¹ The underlying assumption is that courts, especially the U.S. Supreme Court, acted aggressively to integrate schools but largely failed in that effort.

      That assumption is at least half right: the Court failed to integrate public schools. To be sure, the Court succeeded in...

    • 5 School Finance Litigation: The Third Wave Recedes
      (pp. 96-120)
      John Dinan

      The legal challenges brought against school finance systems in forty-six states since the 1960s have by several measures been quite successful.¹ State courts have frequently sided with plaintiffs, both the initial challengers of interdistrict spending disparities and the more recent litigants contending that overall spending levels are inadequate. Moreover, the legislative reforms passed in response to these court rulings have generally reduced spending disparities and boosted the state share of school spending.

      Numerous state court rulings of the past several years indicate, however, that the school finance litigation movement may have peaked, in that many judges are now disinclined to...

    • 6 The Judiciary’s Now-Limited Role in Special Education
      (pp. 121-141)
      SAMUEL R. BAGENSTOS

      The Individuals with Disabilities Education Act (IDEA)—and its predecessor, the Education for All Handicapped Children Act (EAHCA) of 1975—ought to be an ideal context in which to study the courts’ role in American education. When Congress enacted the EAHCA, it did so in response to constitutional litigation in twenty-eight states that challenged the exclusion of children with disabilities from public education.¹ The statute incorporated into federal law significant provisions of consent decrees that resolved key cases in Pennsylvania and the District of Columbia: the “zero-reject” principle, under which public schools may not turn away students with disabilities as...

    • 7 Pass or Fail? Litigating High-Stakes Testing
      (pp. 142-164)
      Michael Heise

      The nation’s sustained appetite for education reform includes a taste for test-based accountability.¹ Through standardized tests tied to various rewards and sanctions, policymakers seek to increase student achievement and enhance student, teacher, and school accountability for academic progress. In some cases, the consequences of poor test performance can be quite severe. For students, results from such “ high-stakes” tests frequently determine their eligibility to graduate, advance from one grade to the next, or enter a particular curricular track.² Grade promotion decisions are particularly important as research consistently illustrates that involuntary grade retention correlates with a student’s likelihood of dropping out.³...

  7. Part Three: Persistent Conflicts

    • 8 School Choice Litigation after Zelman
      (pp. 167-188)
      MARTIN R. WEST

      In the highest profile decision of its 2002 term, the Supreme Court ruled inZelmanv.Simmons-Harristhat Cleveland’s fledgling school voucher program did not, in permitting low-income parents to use government funds to send their children to parochial schools, violate the First Amendment’s ban on the establishment of religion.¹ Proponents of private school choice, led by President George W. Bush, hailed the ruling as the Court’s most important education decision sinceBrownv.Board of Education.² Indeed, the president saw a direct connection between the two decisions. InBrown,the Court had ordered that the nation no longer operate...

    • 9 Talking about Religion: Separation, Freedom of Speech, and Student Rights
      (pp. 189-212)
      JOSHUA M. DUNN

      Education and religion have repeatedly collided in court. Most of these collisions have occurred under the First Amendment’s establishment clause, which forbids laws “respecting an establishment of religion.” Moreover, most of the Supreme Court’s decisions defining the meaning of the establishment clause have been driven by conflicts over education policy. The results have not been encouraging, with the Court inflicting on school officials a doctrinal farrago that seems designed not to clarify but to generate legal uncertainty and litigation. Because of this confusion, few areas of constitutional law receive the derision heaped on the Court’s establishment clause jurisprudence, which a...

    • 10 Litigation under No Child Left Behind
      (pp. 213-237)
      MARTHA DERTHICK

      The No Child Left Behind Act (NCLB) has not—as of the spring of 2009—generated a large volume of litigation. This may seem puzzling in view of the widespread litigiousness of U.S. society in regard to schools and the length, complexity, and extreme controversy surrounding the law itself. Surely, one supposes, there must be language in the legislation on which to hang lawsuits. Early in 2004, when the two-year-old law began to bite in local districts, widespread opposition developed, and news stories, citing school administrators and officials of teachers unions, predicted a flood of lawsuits.¹ There has been no...

    • 11 Still Judging School Discipline
      (pp. 238-260)
      RICHARD ARUM and DOREET PREISS

      Justice Clarence Thomas, in his concurring opinion inMorse v. Frederick(2007), relied heavily on scholarship from progressive historians to argue that public education in this country was originally established with the intention of socializing youth as law-abiding citizens.¹ Other Supreme Court justices have spoken out in a similar fashion. Antonin Scalia, for example, noted in a 2006 speech at the Georgetown Law School that “the founders considered discipline to be a necessary part of education . . . because it taught respect for the rule of law.” Following “the court’s application of due process to school affairs and the...

  8. Contributors
    (pp. 261-262)
  9. Index
    (pp. 263-276)
  10. Back Matter
    (pp. 277-277)