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The Role of the Judiciary in School Reform in the United States

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. Overview.

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The Role of the Judiciary in School Reform in the United States

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  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. The role of the judiciary in school reform 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

  4. The role of the judiciary in school reform 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

  5. The role of the judiciary in school reform 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

  6. The role of the judiciary in school reform 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?

  7. The role of the judiciary in school reform 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

  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. The role of the judiciary in school reform 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.

  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

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