School Litigation: On the Decline, But Embedded in School Culture

WASHINGTON, NOVEMBER 18, 2008--Fifty years ago, the Supreme Court changed the course of American schooling with its ruling in Brown v. Board of Education. In the decades since, the courts have continued to intervene in schoolhouse affairs--but to what effect? The American Enterprise Institute and the Thomas B. Fordham Institute gathered twenty scholars, policy analysts, and practitioners from the legal and education fields to discuss this question on October 15. The day's conversations--and corresponding conference papers--delved into a wide range of topics, from desegregation to freedom of speech and from school finance to school choice.

Overall, the years since Brown have been marked by a substantial increase in school litigation. Some lawsuits have spanned more than a decade. John Dinan of Wake Forest University commented, "there have been some bitter and protracted battles, as indicated by the string of Roman numerals affixed to a number of these decisions." But conference discussants generally agreed that the apex of judicial involvement has passed. The number of lawsuits regarding a variety of schooling issues--desegregation, school finance, high-stakes testing, students with disabilities, and No Child Left Behind--has flat-lined or declined. Perhaps the notable exception is in cases relating to separation of church and state. Martin West of Brown University noted that school voucher and scholarship tax credit programs nationwide "continue to face a bewildering array of legal challenges." Joshua Dunn of the University of Colorado at Colorado Springs similarly commented that the role of religion in schools was far from settled: "Everyone pretty much agrees that the Court has made a giant mess of things with the establishment clause, and no one really knows what's required under the Establishment Clause."

Regarding the power of the judiciary in education, Boston College's Shep Melnick quipped: "when Alexander Hamilton wrote that the federal judiciary is the least dangerous branch because it has no influence over either the sword or the purse, he was either mistaken, or, I think more likely, being disingenuous." But, as James Ryan of the University of Virginia School of Law cautioned the audience, it is important not to conflate the court's "ability to produce change with willingness to produce change." People may point to desegregation cases as "proof that courts are unable to promote lasting reform or more generally to achieve social change," but in fact, at several junctures, the Court explicitly refrained from becoming more actively involved. It is also not clear whether court-driven reforms, however influential, have been effective. Peter Schuck of Yale Law School expressed much skepticism on this count. There are countless "factors that courts cannot control or even acknowledge," he said, from family environments to teachers unions to residential choices, and the "limited control that the court possesses is highly attenuated." Melnick similarly admitted that "if administrators have a hard time controlling what goes on at the bottom of these organizations we call schools, what hope do judges have?"

The post-Brown prevalence of school litigation has fundamentally changed school culture and the way schools operate. Richard Arum of New York University shared a sobering data point: 73 percent of school administrators with fifteen years of experience report that they have experienced the threat of a lawsuit. In the case of school disciplinary policy, Arum explained, "the basic authority relationships in schools have been changed by the role of law in education." Ironically, because we have bureaucratized school disciplinary policy instead of relying on professional discretion, we have seen a corresponding "declining moral authority of educators" and, in turn, less acceptance of discipline policies by students. This increasingly litigious environment has created a "culture of people thinking that they're constrained by law," said Samuel Bagenstos of Washington University School of Law. Frederick M. Hess of AEI noted that this culture can be self-fulfilling. Because superintendents are "primarily focused on risk aversion," they fail to use the full range of tools at their disposal, viewing their legal team as "a mechanism for staying out of trouble" instead of as a potential vehicle for reform and change. University of Washington professor Paul Hill commented that this tendency toward risk aversion reflects how we have structured schools and teachers' jobs. It is not surprising that "in a vacuum . . . constraint-seeking organizations will find a constraint."

Of course, courts operate in a larger landscape alongside executive and legislative powers. The "anatomy of the power relationships that surround the implementation of law," as Schuck put it, often determines the potential for judicial involvement and the effectiveness of judicially-driven reform. The Bush administration's trademark education law, No Child Left Behind, has resulted in surprisingly little litigation, according to Martha Derthick of the University of Virginia, because "most of the battles over No Child Left Behind have been fought in legislative, executive, and even electoral venues." Looking forward, Clint Bolick of the Goldwater Institute remarked that the school choice movement should align its "litigation strategy with its legislative strategy" in order to be effective. According to Ross Weiner of Education Trust, the court intervenes in the absence of congressional action, helping to delineate public priorities. Perhaps the best way to think about it, he concluded, is that "courts play a necessary but insufficient role."

--ROSEMARY KENDRICK

For video, audio, and event presentations, visit www.aei.org/event1746/.

AEI's Education Policy Studies program, led by Frederick M. Hess, sponsors research into K-12 and higher education, For more, visit www.aei.org/education/.

For media inquiries, contact Veronique Rodman at vrodman@aei.org or 202.862.4870.

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