From Schoolhouse to Courthouse: The Judiciary's Role in American Education
Gough, Michelle R., Journal of Law and Education
DUNN, J. M. AND WEST, M. R. (EDS.) (2009). FROM SCHOOLHOUSE TO COURTHOUSE: THE JUDICIARY'S ROLE IN AMERICAN EDUCATION. WASHINGTON D.C.: THE BROOKINGS INSTITUTION.
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. …