Academic journal article Harvard Law Review

Education Policy Litigation as Devolution

Academic journal article Harvard Law Review

Education Policy Litigation as Devolution

Article excerpt

Every state's constitution provides some form of education guarantee, (1) and the Supreme Court has held that the federal Constitution affords protection against certain educational deprivations. (2) But advocates have struggled to vindicate these rights in the courts, which have been wary of protracted litigation against complicated bureaucracies run by democratically accountable officials. In the sixty years since Brown v. Board of Education, (3) state and federal courts have heard challenges to education systems in two primary waves of litigation: over racial segregation and school funding. Courts hearing these cases have spoken in expansive terms on the nature of educational rights, but they have been reluctant to venture into the weeds of education policy, citing concerns about the separation of powers, local control, and judicial competence.

Recently, plaintiffs in multiple states have advanced a new wave of education litigation, arguing that state laws regarding teacher tenure and dismissal should be struck down as inconsistent with state constitutional educational rights. Most prominently, in Vergara v. State, (4) a California trial court recently ruled that several California state laws regulating teacher employment violated the state constitution's equal protection clause (5) and guarantee of "a system of common schools." (6) Similar litigation has followed in New York, (7) and advocates plan suits in additional states. (8)

The remedy sought in this new wave of litigation differs from that of past waves. Unlike desegregation litigation, these cases do not seek to police education policy all the way down to the district level. And unlike state-funding litigation, these cases do not seek to control a uniquely state-level function. Instead, plaintiffs ask the courts to declare that a state cannot regulate local decisionmaking in a certain way; in effect, they seek to devolve a policy issue to the district level. In the absence of state-level statutes governing teacher tenure and dismissal, districts would have a freer hand in exercising their authority as employers; they could craft teacher workforce policies and practices tailored to the needs of their district.

This Note argues that this new wave of litigation, with its policy-devolution remedy, mitigates many of the concerns that plagued education litigation in the past. Compared to their approach to previous waves, courts should be less wary of litigation seeking to affirm state constitutional educational rights when, by intervening, they would devolve a policy question to a lower-level democratically accountable entity.

This Note does not address the merits question of what evidence courts should deem sufficient to find a state law contrary to the right to an education, or whether tenure laws meet such a bar; this Note is not about teacher tenure. It focuses instead on the question that operates separately from that substantive determination: whether prudential concerns that historically have impeded judicial vindication of educational rights counsel against reaching the merits in this new wave. In so doing, it offers both an argument to the judiciary that this wave's approach mitigates the traditional prudential concerns and a broader argument that this form of litigation is not illimitably antidemocratic.

Part I outlines the two primary waves of education litigation, finding that as each wave led courts into the details of education policy, the courts withdrew, citing concerns about the separation of powers, local control, and judicial competence. Part II examines Vergara, arguing that this new wave, by seeking to devolve policy questions from states to districts, mitigates these concerns. Part III traces state and federal court decisions regarding local control to argue that despite the common formulation that substate entities are no more than "convenient agencies" of state governments, school districts are a judicially plausible and normatively desirable locus for devolution. …

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