The Ivory Bench

It turns out that another modern-day concept bizarre to some of us old-timers—that of judges acting as de facto school boards—also, like so many other exotic trends, has its roots in academia. “Judges commissioned studies when they could not find guidance on school funding issues in their state constitutions,” Wake Forest political scientist John Dinan told an audience at the American Enterprise Institute on October 15. “Judges are looking for a rationale on school finance in academic studies.”

Dinan is the author of the book, The American State Constitutional Tradition. He noted that, “In the particular context of school finance rulings, the distance between the original intent of state education clauses and the uses to which they are now being put is so vast as to have the practical effect of making it exceedingly difficult to derive from their general language any judicially manageable standards for distinguishing in meaningful fashion between adequate and inadequate funding levels.”

Apparently, it never occurred to the state judges to “just say no” to cases that fall outside their judicial duties as defined by their state constitutions, at least until recently. “There has been an education pullback by courts in recent years since 2002,” Dinan said at AEI. One of the reasons for the judicial retrenchment is that judges are concerned about the “propriety of handling such cases.”

“Concerns about the legitimacy and capacity of judicial intervention have proved persuasive to a number of state judges who have recently terminated longstanding jurisdiction in school finance suits and to other judges who have declined invitations to embark on another round of intervention,” Dinan told the audience at AEI.

There are still a number of these suits pending despite the jurists’ restraint that Dinan and others have observed. “New Jersey is on roman numeral 17” in just one state court case, Michael Heise of Cornell noted.

Also, checks and balances within state court systems may be kicking in.
“We are preoccupied in the law schools with rights and not remedies,” Peter Schuck of Yale Law said at the AEI conference. “Rights are the realm of Don Quixote, remedies are the realm of Sancho Panza.”

“The court controls very few of the key incentives necessary to implement policies.” One beneficiary of this limitation might be the Bush Administration.

The president’s otherwise controversial education reforms have been remarkably free from litigious assaults. “No Child Left Behind has not generated a large body of litigation,” UVA professor emeritus Martha Derthick said in the AEI symposium. “I was only able to identify a dozen suits.”

Derthick, who retired from teaching government at the University of Virginia in 1999, writes a column on law and education for Education Next magazine. In the NCLB lawsuits that she has found, the plaintiffs failed to score victories.

One reason for this is that the law does not allow for “private rights of action” lawsuits. Hence, the legal challenges to NCLB have been mounted by official parties and advocacy groups.

Still, “You can’t say it has no effect on litigation,” Derthick cautions. “NCLB data is used in school finance cases.”

Still, back-to-basics education reformers may not take too much comfort in the law’s insulation from the litigation explosion. For one thing, NCLB does not require tests in English. In public schools, this requirement is more divisive and explosively controversial than many native-English speakers might ever imagine.

Among Limited English Proficiency (LEP) students in California, for example, there are 80 languages represented. Believe it or not, Virginia is not far behind with 60 mother tongues represented among its LEP students.

Malcolm A. Kline is the executive director of Accuracy in Academia.

Malcolm A. Kline
Malcolm A. Kline is the Executive Director of Accuracy in Academia. If you would like to comment on this article, e-mail contact@academia.org.