A Seminar Presentation at the University of Helsinki Professor Paul Tractenberg May 8, 2014

1. Law & Litigation as a Force for Educational Reform and Social Justice: How Relevant is the U.S. Experience to Finland? A Seminar Presentation at the University of Helsinki Professor Paul Tractenberg May 8, 2014

2. The Role of Law and Litigation • Some Preliminary Definitional Thoughts • In a broad sense, “law” includes “litigation” since courts can make “law” through cases before them • In this presentation, however, I distinguish between the two and use “law” to refer to constitutions, legislation and regulations adopted by the people or their elected and appointed representatives • “Litigation” can relate to “law” in three ways: • 1) “Litigation” can instigate “law;” • 2) “Litigation” can enforce “law;” and • 3) “Litigation” can overturn some “law” on the basis of other “law.” • There is a hierarchy of constitution, statute and regulation with court interpretations through “litigation” injected into the hierarchy • Both “law” and “litigation” can operate at the national, regional and local levels and that leads to another hierarchy.

3. The Role of Law and Litigation • Extreme Views of Litigation • “I was never ruined but twice; once when I lost a lawsuit and once when I won one.” • Voltaire • We are “the designated last-resort guarantor of the Constitution’s command.” • New Jersey Supreme Court in Abbott v. Burke (1994)

4. The Role of Law and Litigation • Overview of the Seminar Presentation • Finland’s education system has the reputation, in the U.S. and in many other nations, of being an ideal to be emulated (although some say it is too small and too homogeneous, without really poor children because of its safety net, to be a relevant model) • Nonetheless, might Finland have educational problems that call for reform? • If it does, what kinds of problems? • What kind of reforms are being, or should be, considered to deal with those problems? • What is the likelihood that the chosen reforms will actually be implemented successfully (and could U.S.-style education reform litigation help)?

5. The Role of Law and Litigation • Are there problems with Finnish education that could benefit from reform? • Finland’s educational strengths seem to be related to: • The quality and status of Finnish teachers • A national commitment to education and to providing it in an equal and equitable manner • A safety net that assures everyone a reasonable level of essential services • It would be presumptuous, however, for any nation to claim that its education system is perfect and I have met no Finn who claims yours is. • Still, by comparison to the U.S., your problems seem relatively small and of relatively recent vintage, and, therefore, should be relatively manageable if dealt with now.

6. The Role of Law and Litigation • What are the main problems? • Here’s a preliminary list based on: my initial interviews in Finland during my first several weeks here at the end of my sabbatical year; my initial research into Finnish, OECD and other source material; and my own comparative experience: • Inequality of school funding and, presumably, of educational opportunity because of substantial reliance on local municipal resources • Clustering of immigrant students in particular schools and neighborhoods with some resultant “white flight” • Emerging regional disparities in educational performance (perhaps related to growing immigration and socioeconomic differences) • Gender disparities that disfavor male students along virtually every dimension • Possible tension between a national commitment to equality and equity in education and a substantially decentralized structure that provides local municipalities with substantial discretion and authority • Relatively recent interest in the “neo-liberal” education reform agenda

7. The Role of Law and Litigation • What kinds of reforms are being, or should be, considered? • As a preliminary note, let me state the obvious—whenever possible the reforms should: • Be based on evidence of success in comparable situations; • Benefit from an open, transparent process with ample opportunity for public input; • Enjoy the support and buy-in of the professionals charged with implementing them; • Be adequately funded; • Be given a meaningful opportunity to demonstrate their success (or failure); and • Be carefully evaluated to permit mid-course corrections and, ultimately, to determine whether or not they can succeed.

8. The Role of Law and Litigation • As to the reforms Finland is considering, my knowledge is especially rudimentary and drawn mainly from the Ministry of Education and Culture’s Education and Research 2011-2016: A Development Plan. • A central theme of the plan, as it is of Finnish education and the broader society, is equality and equity, and to assuring that they are provided. The plan also is premised, however, on certain respects in which the ideal is not being realized and reform is necessary. • These have to do mainly with differences related to gender, geographic region, socioeconomic background and ”inheritance of education”

9. The Role of Law and Litigation • The plan commits the Ministry of Education and Culture to prepare, and the Government to adopt by the end of 2012, an action programme to promote equal opportunity in education. • ”The aim is to lower gender differences significantly in competencies and education, to lessen the effect of the socio-economic background on participation in education, and to improve the situation of disadvantaged groups in education.” (p. 10) • The plan then describes measures to be taken at each of the five levels of Finnish education, from early childhood to adult, to reduce by 2020 the differences at each level by half. • The plan also addresses enhancing equal access to education by the implementation of the Government’s programme to reform the municipal structure throughout the country. • As far as I have been able to determine, the action programme has yet to be formally adopted.

10. The Role of Law and Litigation • Where to look for reform models • Finland should look to countries whose reforms have succeeded and should make measured judgments about the applicability of those reform agendas here • As a high achieving nation on PISA, Finland is certainly aware of other high-achieving nations and regions, such as Singapore, Shanghai and Korea, and should assess the relevance of their reforms to Finland. • Additionally, there are other high-achieving or rapidly rising nations and regions that have received less public attention but bear consideration. These include Ontario, Poland and Estonia.

11. The Role of Law and Litigation • Relevance of the current U.S. reform experience • At the risk of sounding un-American, the main current thrust of American reform seems to me unlikely to achieve the desired improvements and may indeed significantly undermine public education. In particular, the following are problematic: • Emphasizing privatization in the form of vouchers for students to attend private schools, including religious schools, charter school management networks and contracting out core educational functions; • Reducing the professionalization and unionization of teachers and administrators and relying instead on Teach for America and the Broad Academy; • Relying increasingly on high-stakes standardized testing; and • Reducing public funding of education

12. The Role of Law and Litigation • Commonalities among successful nations and regions • Still, there are important similarities among educationally successful nations and regions (some of which are already in place in Finland): • Funding systems not dependent upon local wealth and that provide more resources to educationally disadvantaged students; • Focus on closing achievement gaps as well as increasing overall student achievement levels; • National or regional educational standards or curriculum, but significant local discretion; • Increased professionalization of teachers and administrators; • Limited use of standardized testing, especially for high-stakes as opposed to diagnostic purposes; • Increased attention to student well-being; • Emphasis on producing and using the best data and research; • Avoiding educational fads and giving reforms adequate time to work; • Giving attention to efficient education structures and systems; and • Increasing public confidence in education.

13. The Role of Law and Litigation • What is the likelihood that the chosen reforms will actually be implemented successfully (and could U.S.-style education reform litigation help)? • As difficult as it is to identify and adopt reforms that seem likely to improve education, being able to implement them successfully is often harder still. Among the major difficulties are: • Getting the necessary political consensus and will: • Funding them adequately; • Getting the necessary professional, parental and public buy-in; and • Having the patience to give them the necessary time to work (or not) • Sometimes U.S. courts have gone to enormous lengths, over decades, to try to guarantee that the reform is implemented and remains in place even over opposition from the other branches of government—and perhaps the disapproval of a majority of the public. • The rest of my presentation will look relatively quickly at two such efforts in the U.S.—Brown v. Board of Education nationally and Abbott v. Burke in New Jersey

14. The Role of Law and Litigation • Where law and litigation can fit • Of course, in an “ideal world,” reforms may be embodied in a legislative enactment or an administrative regulation, and those provisions are carried out as intended. However, in the U.S., and I suspect other nations, from time to time that does not happen for fiscal or other reasons. Then, the question is what to do. • A strategy that has worked better than most in the U.S. uses litigation in an administrative forum or in the courts, or the threat of such litigation, to: • Require that the executive branch or local governmental units implement existing statutes or regulations [ENFORCE]; • Change the policy discourse and precipitate legislative and executive action that might otherwise not have occurred [INSTIGATE]; • Establish a violation of student rights in the court, typically pursuant to a constitutional or other higher order provision, and obtain a meaningful remedy (perhaps exactly the reform that the other branches should have voluntarily implemented) [OVERTURN].

15. The Role of Law and Litigation • Using Brown v. Board of Education and Abbott v. Burke (NJ) as case studies • Why these two cases? • Both involved fundamental issues of education policy: • Brown, what schools students attend • Abbott, how schools are funded • The common underlying issue of both was equality of educational opportunity • Brown was the earliest major education reform case and Abbott the longest-running and still ongoing; they cover the period from 1954 to the present • Brown involved the U.S. Constitution’s Equal Protection Clause as construed by the U.S. Supreme Court; Abbott involves a state constitutional education clause construed by the New Jersey Supreme Court (in 27 separate opinions between 1973 and 2011)

16. The Role of Law and Litigation • Links between the cases • Brown and Abbott have been linked together in prominent ways • In 2002, the New York Times referred to Abbott as the most important education case since Brown • Two years earlier, New Jersey judges and lawyers overwhelmingly selected Brown as the most important federal court decision of the 20th century and Abbott as the most important state court decision

17. The Role of Law and Litigation • The Central Legal Principles • Brown: the federal Equal Protection Clause was construed to bar de jure racial segregation of the schools and the doctrine of “separate but equal” was ruled inapplicable to education • 14th Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

18. The Role of Law and Litigation • Abbott: the education clause of the New Jersey constitution was construed to guarantee all students a “thorough and efficient” education, requiring funding and educational facilities and programs sufficient to meet the needs of 300,000 disadvantaged or “at-risk” students residing in the state’s 31 poor urban school districts • Art. VIII, Sec. 4, Par. 1: The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen.

19. The Role of Law and Litigation • The Remedies Ordered • Brown: desegregation of racially separate schools “with all deliberate speed” and the establishment of unitary school districts • “Deliberate speed” proved to be frustratingly slow and several later federal court decisions largely limited the desegregation to the southern states • Refusal to apply Brown to de facto segregation • Refusal to impose metropolitan remedies

20. The Role of Law and Litigation • Abbott: a comprehensive and coordinated set of funding and educational facilities and programmatic remedies—all at state expense • Dramatically increased state funding of poor urban districts ($52.5 billion over 15 years; $11,667 per year per student) • Extensive facilities program • Full-day, high-quality pre-school for all 3 and 4 year olds (60,000 children) • Supplemental education programs to meet special educational needs • Wrap-around services (e.g., extended schooling, counseling, nutritional, dental and medical services) • Whole school or other school-wide reform • Meaningful accountability system

21. The Role of Law and Litigation • Effect of the Remedies on Education • Brown: • Ended de jure segregated schools; • Achieved substantial desegregation of southern schools during the 1970s and 1980s, but there has been significant re-segregation since then; • Northern schools were largely unaffected and there are major problems with de facto segregation, especially in cities and between cities and surrounding suburbs

22. The Role of Law and Litigation • Abbott: • Improved student achievement and reduced achievement gaps, but uneven and incomplete; state has consistently refused full implementation requiring lawyers for poor urban students to regularly return to court • Most recent example was on March 26, 2014, when the plaintiffs’ lawyer, the Education Law Center, filed a motion in aid of litigants’ rights because the governor and commissioner of education have entirely ignored the 2008 School Funding Reform Act in connection with the governor’s proposed budget for the upcoming school year—2014-15

23. The Role of Law and Litigation • Some outstanding success stories about individual poor urban districts, however (see Kirp, Improbable Scholars: The Rebirth of a Great American School System and a Strategy for America’s Schools (2013) (Union City, NJ district)) • See also Tractenberg (ed.), Courting Justice: 10 New Jersey Cases that Shook the Nation (2013) • A long chapter deals with Abbott; other chapters deal with important New Jersey Supreme Court decisions over the past 50+ years that have had a national or international impact (e.g., Mount Laurel, Baby M, Karen Ann Quinlan, Megan’s Law)

24. The Role of Law and Litigation • Policy Impact • Both Brown and Abbott: • Changed nature of public discourse and the policy agenda in far-reaching ways • Focused more attention on evidence than on rhetoric • Raised issues about separation of powers and role of courts • Brown: • Changed nature of public discourse about race beyond education • Ended de jure segregation • Perhaps created the possibility of a black president • Abbott: • Changed attitude in NJ and elsewhere about gross inequality of education funding and programs • Focused on centrality of real remedies

25. The Role of Law and Litigation • Relevance of the U.S. Experience to Finland • As indicated earlier, Finland is beginning to experience some of the same educational problems as the U.S., including unequal funding possibly leading to unequal educational opportunities and outcomes, clustering of immigrant students in some neighborhoods and schools and consequent “white flight,” and achievement gaps (mainly based on gender, socioeconomic status and region). • Perhaps these will be effectively dealt with through legislative, regulatory or other means, but, if not, should something more be done? • Finland, of course, has a different legal structure and tradition, which may work against direct application of U.S. legal precedents, such as Abbott • Still, Finland has a constitution that guarantees educational rights and Finnish courts have sometimes intervened in contentious educational issues. • Might they be persuaded, by effective and persistent advocacy, to play a role like some U.S. courts, including New Jersey’s, have played?

26. The Role of Law and Litigation • What would Finland need to do to adopt and adapt a U.S.-style law and litigation education reform approach? • Identify and further develop legal advocacy capacity • Identify and further develop expert witness capacity • Develop a long-term reform strategy that might be incremental like Brown v. Board of Education or that might “go for the whole enchilada” like Abbott • The strategy also should treat law and litigation as just one component of a more comprehensive reform effort, including research and policy analysis independent of litigation, grass roots organizing, political lobbying, a media campaign and other efforts to engage and win over the public and its opinion

27. The Role of Law and Litigation • Conclusion • I know that I risk being labelled a trouble-maker when I travel to other countries, take advantage of their hospitality, and then propose to involve them in Voltaire’s nightmare—a world of litigation and courts. • Still, I see it as a matter of establishing priorities. If there are educational problems that you believe need to be corrected and other means don’t seem sufficient, then is litigation worth considering? • Is it possible that education reform precipitated by U.S.-style litigation might be worth the effort and pain? • Could/should Finnish courts be persuaded to consider themselves as “last resort guarantors of the [law’s] commands” if all else has failed? • THANK YOU