Monday, March 14, 2016
Blog co-editor Derek Black (South Carolina) has posted an article on ssrn, Averting Educational Crisis (Washington Law Review, forthcoming). In the article, Prof. Black argues that judges' reluctance to intervene in education disputes, during and after the recession, has devalued the constitutional right to education around the country. From the abstract:
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.