It’s Not the Courts, Stupid–or not the courts alone or primarily

Yesterday, the California Supreme Court declined to hear appeals-court decisions that ruled against plaintiffs in two cases: the Vergara case that tried to argue that state law and common practice that protected teachers in various ways violated the state’s constitutional promises to children, and the Campaign for Quality Education case that was the latest round in court battles over school funding. In each case, the lower appeals-court decision had in essence set fairly high bars for those wishing to sue the state of California to change broad swaths of education policy and practice. In essence, the collection of rulings says, it is not enough for education to be worse than what you think; before the courts will act, there needs to be much more solid evidence chaining together decisions of the legislature and violations of children’s rights under the California state constitution.

It turns out that this is only the latest set of decisions in a banner year for It’s Not the Courts, Stupid. Or that is the message I hear when a Florida district-court judge ruled in March against plaintiffs in a very broad lawsuit against the state’s education practices. It is the message I hear when the Washington state legislature continues to ignore a 2012 state Supreme Court order to increase school funding, despite being fined $100,000 daily since August 2015. (The next hearing in the larger case is September 7.)1 It is what I hear in the Florida appeals-court decision last week dismissing a suit against a tax-credit voucher program because the plaintiffs had no standing to sue the state.2 It is the message I hear when the Kansas legislature barely passed a law in late June that avoided a shutdown of the state’s entire public school system after the state could not meet state court requirements for adequate education funding; and that stopgap measure only addresses part of the remaining issues in the long court case. Even when the Kansas legislature backed down, it was in the tiniest, most incremental piece that would avoid a school-system shutdown, after years of intransigence by the legislature and Governor Sam Brownback; so I would not call that a huge victory for children. Meaningful, but very late, partial, and the battle to get even that much does not bode well for the rule of law in Kansas.

This pattern stretches across states that are controlled by different parties, with states in different financial conditions, and in cases with different topics and very different approaches. To take two examples, the Kansas and Florida lawsuits were both about funding but with very different ideas on how they should use lawsuits. While I am not a lawyer, my impression is that the Kansas case was a relatively narrow attack on inadequate and inequitable school funding exacerbated by tax cuts after the Great Recession. Or at least it was narrow in contrast with the Florida case, a case that was essentially an attack on the entire education policy framework for the state from funding to vouchers to the structure of the state’s pre-kindergarten program.3 I think the only modern precedent for such a broad attack on the entire school system was the successful lawsuit against Kentucky’s education system in the 1989 Rose v. Council for Better Education case.

This may be a coincidence–state courts are independent of each other, after all–but I think there is a general lesson, that it is insufficient to depend primarily on state court systems to address complex educational issues. Apart from the merits of each case, state courts currently have an incentive to resist calls for court orders to reform education. It is easy for a court to tell a school or school district to stop a practice. It is very different for courts to construct remedies to address complicated issues. For any state court looking at the recent history in Washington and Kansas, the judges would likely have second thoughts about their ability to intimidate a state legislature.

In other cases, the merits of messy challenges are hard to parse in a legal context. Vergara‘s lawyers should now be cursing the district-court judge for having issued a 16-page trial opinion; when trial judges have an incentive to detail all the support for their findings of fact, the trial opinion is essentially a set of factual findings on a postcard. It was almost inevitable that the appeals court would look at it critically and give much more weight to the state’s arguments.

Part of that skepticism of plaintiff claims comes from the activism of states in education policy since the 1980s. Courts facing constitutional challenges have to distinguish bad policy and practice from unconstitutional systems. For courts looking at broad challenges to school practices, it is hard to avoid contrasting the activism of a state like Florida with the pre-1989 lassitude in Kentucky. Whether or not you agree with the direction of Florida education policy — and I have disagreed with much of that policy — it is hard to say that the legislature has avoided defining what it considers a high-quality education or trying to provide guidance to school districts.

None of this is predestination: of course courts will rule in the future against state education policies on issues that I refuse to predict today. At some point there may be another era of court activism in education. But today the bar looks fairly high, and advocates of education reform of various stripes need to understand that lawsuits alone are not likely to be successful in the long-lasting change that their advocates often desire.4


  1. State Superintendent Randy Dorn filed a lawsuit this summer to increase the leverage of the original plaintiffs to move the legislature to action. Dorn is not a relative. []
  2. As a result of that dismissal, the merits of the case will not be heard. []
  3. Disclosure: in two of the three potential adequacy lawsuits floating around the state in the last decade, I was approached by lawyers in two of them as a potential expert witness. For a variety of reasons, that never came to pass. []
  4. Yes, of course the desegregation cases relied significantly on courts for dramatic change in schools. Apart from debates over how successful that fight was, the court battles were accompanied by this small thing called the Civil Rights Movement, by broader political battles over equal educational opportunity in education, and even then some of the early fighters for desegregation had after-the-fact qualms over what they later saw as an overreliance on courts. []