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

By Gough, Michelle R. | Journal of Law and Education, July 2010 | Go to article overview
Save to active project

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

Gough, Michelle R., Journal of Law and Education


Beginning in the second half of the twentieth century, state and federal courts in the United States have been increasingly called upon to determine whether school policies violate laws by a variety of litigants, including state officials, school districts, students, parents, and teachers. Consequently, school law scholars have called for increasing both educators' and lawyers' knowledge in the area of law and education.1 Recognizing that secondary school policy has become more affected by the judiciary calls for an assessment of the trends in the various areas and of the types of challenges being asserted.

In From Schoolhouse to Courthouse: The Judiciary's Role in American Education, edited by Joshua M. Dunn and Martin R. West, an array of scholars illuminate developments and trends in courts' involvement in various areas of school litigation. The volume is organized into three sections: Context, Settled Issues, and Persistent Issues. Context provides an introduction to the area that can be appreciated by readers with varying levels of familiarity, and the latter two sections contain summative and predictive descriptions of each chapter's litigation area. As a whole, the volume provides balanced perspectives on the specific areas of law and unveils tensions inherent in the legal precedent.

Part I of the book, which provides context for the discussion, begins with The Supreme Court as School Board Revisited by Martin R. West and Joshua M. Dunn, who provide an introduction to the judiciary's involvement in education and the volume itself. Specifically, West and Dunn describe the increased role of judicial oversight and the impact of the increased judicial oversight on school teachers and administrators. They then provide an explanation for the increased role of the judiciary, including new doctrines and congressional actions that created private rights of action.2 The chapter also explains the different dynamics involved in constitutional versus statutory litigation, including the important distinction that in the arena of statutory interpretation, Congress can amend a law in case of disagreement with Supreme Court's interpretation.

West and Dunn briefly describe the two sides of the scholarly debate over judicial involvement in these areas, but ultimately express their agreement with those who "doubt the judiciary's claim on the title of the least-imperfect branch"3 by proposing that the judiciary's limits for policymaking mean that "deferring to representative branches would seem to be the more prudent course of action."4 At the same time, the authors are careful to point out that they are not calling for the judiciary to ignore rights violations that are clear.

The second chapter, Taking Remedies Seriously: Can Courts Control Public Schools, by R. Shep Melnick, describes the available judicial remedies. After noting the growth of judicial involvement in education midway through the twentieth century, Melnick turns his attention to the nature of school organizations, and how it contributes to challenges faced by judges in constructing remedies for violations of legally enforceable rights. Melnick first draws on James Q. Wilson's description of schools as "coping organizations" in reference to the difficulties in observing activities and measuring outcomes in schools.5 Melnick then describes the remedies themselves including: structural injunctions, § 1983 and constitutional torts, and private rights of action and federal mandates.

The final chapter in Part I, School Superintendents and the Law: Cages of Their Own Design? by Frederick M. Hess and Lance D. Fusarelli, describes how administrators' perceptions of and approaches to the law shapes outcomes. Five superintendents are profiled, including three who attained their position through "traditional" means and two "nontraditional" superintendents, both former attorneys who did not have backgrounds as educators.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

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


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?