In the first round, the state supreme court in 2004 struck down a statewide voucher program enacted by the legislature for the benefit of students in low-performing districts. The plaintiffs alleged, and the court narrowly concurred, that the program violated a provision of the state constitution that school boards “shall have control of instruction in the public schools of their respective districts.” The court held that to require school districts to turn over some locally raised money to private schools, as the law did, offended that provision.

This seemed to suggest that a program adopted by a local school board might survive, and a test recently emerged. Suburban areas with high-performing school districts have shown little support for vouchers, so it was surprising to have the first locally enacted voucher program come from Douglas County, a Denver suburb with one of the highest median incomes in the country. School choice advocates, however, had targeted the district in school board elections. As a result, the normally nonpartisan elections turned partisan in 2009, when the Republican Party endorsed a slate of four candidates and handily defeated candidates endorsed by the teachers union.

Those efforts bore fruit in March 2011 when Douglas County’s school board unanimously approved the Pilot Choice Scholarship Program. Through this plan, any student who had been enrolled in district schools for at least one year could apply for a voucher of approximately $4,600, equal to 75 percent of state per-pupil funding, to attend a “partner” private school, with the school district keeping the other 25 percent. Religious schools would not have to waive admission requirements to participate, but would have to offer an exemption for voucher students who wished to be excused from religious services. Of the 19 initial partner schools, 14 were sectarian. The school board capped the program at 500 students but expected it to expand. As the third-largest district in the state, Douglas County serves more than 61,000 students.

The American Civil Liberties Union (ACLU), along with Americans United for Separation of Church and State, sued, citing a host of constitutional offenses, including violating the ban on support for private schools and churches (the state’s Blaine Amendment), the ban on religious tests, the guarantee of religious freedom, the uniformity requirement in the education clause, the prohibition on support for private institutions, and, for good measure, the guarantee of local control. After a three-day hearing in August, state district court judge Michael Martinez granted the ACLU’s request for a permanent injunction. Clearly alarmed by the religious instruction that would occur at religious schools—“not only is the risk of religion intruding into the secular educational function great, that risk is inevitable and unavoidable due to the very structure of the Scholarship Program”—Judge Martinez accepted nearly all of the ACLU’s claims.

Voucher supporters lined up to assist Douglas County in defending the program. The Daniels Fund, a well-regarded and influential foundation in the Rocky Mountain region, pledged $530,000 for legal expenses. In addition, the libertarian Institute for Justice filed an appeal on behalf of several families whose children were granted vouchers.

While the ACLU obviously has a grab bag of provisions at its disposal going forward, one risk is its reliance on the state Blaine Amendment. If state courts rule that the amendment requires that religious students and institutions be treated differently than secular ones, as Martinez’s ruling seems to imply, it could potentially raise a federal challenge under both the First and Fourteenth Amendments as a violation of free exercise and equal protection. The most promising outcome for Douglas County would be for Mickey Mouse to meet the U.S. Constitution.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Initially filed in 2007, the case raised the now boilerplate claims that Washington state insufficiently funds education.  The trial court judge sided with the plaintiffs and instructed the state to “proceed with real and measurable progress.” But the judge left it to the state to establish both the cost of an adequate education and how to fund it.  The state appealed directly to Washington’s Supreme Court, setting the stage for last week’s decision.

The Supreme Court agreed with the trial court that the state underfunds education, but then said the trial court went too far in trying to dictate “the precise means by which the state must discharge its duty.”  In other words, the Supreme Court was not even going to ask the state to meet the trial court’s very minimal command to do another cost study.  The Court noted that “finding the appropriate remedy” in education clause cases “has always proved elusive.”  The Court decided that, instead of ordering a specific remedy, it would just retain jurisdiction over the case to monitor the implementation of reforms that the legislature had already adopted on its own.

The takeaway is that the Court has said that it will maybe think about possibly doing something at some point in the future, but it can’t say what.  Implicitly the Court was just recognizing the reality that it lacks the capacity to determine what constitutes an appropriate system of school finance, the power to generate billions of dollars of new revenue, and the legitimacy to dictate how the legislature is to do its job.  The Court just couldn’t bring itself to explicitly say so, and seemed to desperately want to assert its institutional relevance.

The response from the state legislature only confirmed that the Court’s decision is going to be largely irrelevant.  The Seattle Times reported that, after the Court’s decision, “lawmakers on both sides of the aisle made clear that when the Legislature convenes Monday to address a $1.5 billion budget shortfall, education cuts will still be on the table,” despite the Court’s decision.  Washington, like most states, has faced declining revenues, and funding education at the level desired by the plaintiffs would require drastic cuts to other essential government services.

If McCleary counts as a victory for school finance advocates, then states facing these lawsuits should hope for similar defeats in the future.

-Joshua Dunn

New Jersey’s supreme court in May restored $500 million in added spending for the state’s poor, urban schools, known as the “Abbott districts” (31 out of 591 districts in total), which particularly benefit from nearly 40 years of its constitutional rulings. Otherwise, a divided court left intact school spending cuts in the budget of Republican governor Chris Christie, an outspoken critic of the court, who promised to abide by its decision.

In deciding how to rule, New Jersey’s court was guided by earlier decisions on behalf of the Abbott districts, stating, “Like anyone else, the State is not free to walk away from judicial orders enforcing constitutional obligations.” We are guessing that other courts that receive petitions asking for restoration of funds will attempt a similar approach and will seek to defend positions staked out on grounds of equity or adequacy, but will avoid picking fresh fights with governors and legislatures if they can.

Budget cutting has precipitated another issue: the pension rights of public employees, among whom are this country’s heavily unionized teachers.

In June, the Florida Education Association (FEA), the state’s teachers union, filed suit in a circuit court in Tallahassee against the governor and other officials on behalf of the more than 550,000 state employees, among them 140,000 FEA members, who participate in the Florida Retirement System (FRS), charging that changes in the system made by a Republican legislature violated Florida’s constitution in three ways: They impaired the employees’ contract with the state, took private property without compensation, and impaired the employees’ right to bargain collectively.

Participation in the FRS is mandatory for state employees. Underlying the union’s complaint were revisions that would take effect on July 1, 2011. Although the FRS was created in 1970 as a contributory system, it had been noncontributory since 1974. The legislature now returned to a contributory plan under which 3 percent of a member’s pay would be deducted monthly and credited to an account with the FRS. A second change addressed provisions for cost-of-living adjustments following retirement. Under the plan of 1974, retirees were to receive an annual cost-of-living increase of 3 percent without regard to the number of years of credited service or when the service had occurred. Under the revised plan, the 3 percent adjustment would be subject to a fractional reduction for years of service after July 1, 2011. The union’s petition objected that these changes had been made unilaterally rather than having been the subject of collective bargaining. It asked for temporary and permanent injunctions, and that the funds at issue be segregated and placed in an interest-bearing account until the lawsuit was settled.

“This pay cut was used by legislative leadership to make up a budget shortfall on the backs of teachers, law enforcement officers, firefighters, and other state workers,” FEA president Andy Ford said. “It is essentially an income tax levied only on workers belonging to the Florida Retirement System,” he added, apparently hoping to cast as hypocritical Republicans who are opposed to tax increases.

Florida is one of only five states with a constitutional protection for collective bargaining rights, though the language is strangely ambiguous. Without specifically granting the right, the law guarantees against its abridgement. This invites discretion from a supreme court that has a pro-union past but today is composed of a narrow majority of Republican appointees.

More or less simultaneously with the filing of Florida’s suit, state district judges in Minnesota and Colorado threw out public employees’ suits against governments that had reduced cost-of-living adjustments to their pensions, ruling that they were not contractually protected. The Florida plaintiffs, citing both statutes and the constitution, assert such protection. The state, citing past supreme court decisions in support of its position, asserts that the FRS is entirely prospective and must allow for modification of future benefits by the legislature.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Like some other states, such as Vermont and Texas, Kansas has responded to school finance litigation by limiting how much school districts can spend. Following a 1991 trial court decision in Mock v. State invalidating an existing plan, the legislature under a state judge’s supervision enacted a sweeping reform that met his standards for equity yet made a concession to wealthier districts with provision for a local-option budget. The state would provide a base level of funding per pupil but allowed districts to levy additional local taxes up to a cap of 25 percent of their base. By 2010 the cap had risen to 30 percent or, with approval of district voters, 31 percent.

In the wake of the recent economic downturn, the state reduced its base payment to all districts. Noting Shawnee Mission’s nearly $20 million in budget cuts over two years and plans for school closures, the plaintiffs asked the court to enjoin the local cap.

The plaintiffs asserted that the cap violates several constitutional guarantees. Citing Supreme Court decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which held that the liberty guaranteed in the Fourteenth Amendment’s Due Process Clause includes a right of parents to control the education of their children, the plaintiffs charged that the local cap infringes on that right. As well, by forbidding additional taxes it limits their right to use their property as they wish. Still more inventive, they invoked the First Amendment right of assembly, saying that the cap prevents voters from expressing their collective wishes at the ballot box. These violations together, they contended, constitute a denial of equal protection of the law.

In the 2008–09 school year, at $4,701, Shawnee Mission was 265th out of 296 districts in state funding, receiving $2,643 less per pupil than the average. At $12,174 per pupil, the district’s spending was almost $500 below the state average. That a rich district could perversely become poor is explained by the fact that the base amount provided by the state is subject to complicated weighted increases that favor sparsely populated western and urban eastern districts while disfavoring suburban eastern ones such as Shawnee Mission. The local cap prevents districts from closing the difference.

In making their novel legal claims, which they summarized with the phrase “collective political freedoms,” the plaintiffs were assisted by high-powered legal talent from Kansas City’s Shook, Hardy & Bacon, famous for cutting its teeth in defense of cigarette makers; Washington, D.C.’s boutique firm Massey & Gail; and Harvard Law School’s Laurence Tribe, who as special consultant to Massey & Gail signed the district’s brief. This talent, however, could not secure a favorable decision. In March 2011, U.S. District Court Judge John Lungstrum dismissed the case. The school district, as an entity of the state, he said, has no right to tax beyond what the state allows. Nor could the local cap be severed from the rest of the school funding statute. Striking it down would require striking down the entire school finance structure, an option Judge Lungstrum was unwilling to entertain.

The parents have said that they will appeal. But if the local cap cannot be severed, federal courts will likely remain reluctant to wade into the state’s school funding choices. Given the problems generated in Kansas and elsewhere by school finance litigation, federal judges might reasonably doubt whether courts are suitable venues for resolving such disputes. Late in 2010, 63 Kansas districts, including Kansas City, filed a class action against the state charging that it is violating the state constitution by failing to fund schools adequately. It remains to be seen whether the Kansas courts will embrace one more round of battle in a state with a long history of finance litigation and growing signs of legislative resistance, including a revived interest among the Republican majority in amending the state constitution to discourage future school-finance litigation.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

At a 2003 party, Swanson and other school officials took away a student’s gift bags because they contained candy cane–shaped pens with an attached card explaining the religious origins of candy canes. Swanson also forbade students from writing “Merry Christmas” on cards sent to retirement homes. At another school in 2004, the principal, Jackie Bomchill, prohibited a student from giving tickets to a Christian drama to her friends. She threatened to call the police when the same student asked to distribute pencils with “Jesus Loves Me This I Know, For the Bible Tells Me So” during her class birthday party. The principal also threatened to expel the young girl if she attempted to distribute “Jesus pencils” again. The principal did allow her to give out pencils embellished with a moon design. As a result of these incidents, parents sued, claiming that their children had been subject to unconstitutional viewpoint discrimination.

The school district responded in 2005 by defining when such materials could be distributed: 30 minutes before and after school, at three annual parties, during recess, and throughout school hours, but only passively, at designated tables. This policy, except for a prohibition on distribution during lunch periods, survived in court, but the larger issue, officials’ claim of qualified immunity, remained to be decided.

The Supreme Court’s free-speech doctrine is relatively clear. The Court has said that government must be viewpoint neutral when regulating speech, meaning that it cannot restrict speech because of the motivating ideology of the speaker. Such restrictions are almost always found unconstitutional. But the complicating question here was, what free-speech rights do elementary school students have? The officials argued that the Supreme Court has never held that the Constitution prohibits viewpoint-based discrimination in elementary schools and they were therefore entitled to qualified immunity, which would free them from personal liability. School officials under this view could engage in all the viewpoint-based discrimination they wanted. Zoroastrian speech could be allowed, while Mormon speech could be suppressed. Pencils saying “Jesus Does Not Love Me This I Know” could be distributed, while those contending that he does could be confiscated.

Federal courts, so far, have not been sympathetic to this broad claim of arbitrary authority. Over the past two years, the Plano officials have lost their request for qualified immunity at trial and on appeal. A Fifth Circuit panel ruled that they should have known that under Tinker v. Des Moines (1969) and other cases like Good News Club v. Milford (2001), elementary school students have speech rights. Plano’s counsel apparently detected more ambiguity in these precedents than did the Fifth Circuit. Tinker, the court explained, allows for nondisruptive student speech, while Good News Club applied the free-speech clause to elementary-school-age students and prohibited viewpoint discrimination in the use of school facilities. Summing up, the court said that the officials had consistently argued “that qualified immunity should be granted because elementary school students do not have any First Amendment rights. No law supports Appellants’ novel proposition.” The Fifth Circuit has agreed to hear an en banc appeal of the officials’ claims, but we suspect they will not fare any better. Even if the school officials do manage to win qualified immunity and escape personal liability, courts will almost certainly never sanction the kind of discrimination alleged in Plano, leaving school districts solely liable for the conduct of their employees.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

As standards of qualification, the law names possession of a bachelor of arts, subject-matter competence, and certification or licensure by the state. Importantly, it leaves standards of certification to the states.

California, like many states, has relied heavily on interns, such as members of Teach For America (TFA), to staff schools in poor areas. Public Advocates claims that it has been able to do this because a Department of Education (DOE) regulation fails to implement the law faithfully. The offending regulation provides that teachers enrolled in “alternative routes” to certification—which is government-speak for Teach For America and similar programs—may be found qualified if they are making satisfactory progress. Public Advocates, on behalf of Californians for Justice, the California chapter of ACORN, and individual parents of children in Title I schools, says that this creates an impermissible loophole in the law: that to be certifiable, enrollees must have completed their alternative route. About 10,000 teachers in California fall short of the standard that the lawsuit seeks to enforce.

The suit has followed a quixotic path. Initially, in 2008, a district judge held for the U.S. secretary of education, ruling that the department’s regulation did not violate the discernible intent of Congress. The plaintiffs appealed. On appeal, the federal government introduced the argument that they lacked standing because their case failed a test of “redressability.” Even if the court ruled in their favor, the secretary could not tell California how to define certification.

At first, the appellate court embraced the government’s claim, and remanded the case with instructions to dismiss for lack of standing. But one of the judges evidently had second thoughts, because the court granted the plaintiffs’ petition for a rehearing, and in September 2010 reversed both its own decision about standing and the district judge’s ruling about the validity of the department’s regulation. It found that the regulation does violate the intent of Congress.

Much of the discussion within the court centered on how California would respond to a decision for the plaintiffs, and how the  federal government might induce a response that would redress the alleged injury.

The court majority did not dispute that NCLB leaves certification to the states, but said that even if the secretary could not dictate California’s standards, he could threaten to withhold grants-in-aid from a state that is not in compliance with the law. The court seemed to think that this would be a viable course of action.

Beyond the federalism question lies the deeper issue, seemingly of less concern to the court majority, of where to find highly qualified teachers to staff classrooms in poor and minority areas. Even when reinforced by a court, Congress cannot solve this problem by decree. As Judge Richard Tallman said in dissent, California cannot order highly qualified but unwilling teachers into schools where they don’t want to teach. Teachers, he averred, “are human beings…not pawns on a chessboard that can be distributed at will.”

We very much doubted that the secretary of education would threaten the country’s most populous state, which teeters on the brink of bankruptcy, by holding back funds. Congress, under pressure from TFA and perhaps taking account of the severe disruption of schools that could result from the 9th Circuit’s decision, resolved this judicially created imbroglio by writing the DOE’s regulation into law. In typical congressional fashion, it added language to December’s continuing resolution to fund the government until March. The 9th Circuit, which is routinely overturned by the Supreme Court, can add Congress to the list of institutions dissatisfied with its legal judgment.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Unfortunately we did not have space in our article to address how the case exposes one of the glaring pathologies of judicial policymaking.  The lawsuit was brought by Public Advocates, which claimed that students were being harmed “nationwide” by the Department of Education’s policy of allowing teachers seeking alternative certification to count as highly qualified.  If Public Advocates and its attorneys had their way, they would have imposed their own preferred policy on the state of California through the courts.  But one has to ask, how would Public Advocates and its motley assortment fellow litigants ever have the capacity to really know the interests of those who would be affected by their lawsuit?  The obvious answer is that they could not.

The adversarial legal system, combined with peculiar features of American law like class actions, allows a single group or individual to claim to speak on behalf of millions of people that they do not, and never will, know.  Elected institutions, however imperfect, do a far better job of sorting the various interests and needs of the public.  What, after all, would parents of children in schools with large numbers of TFA teachers think about Public Advocates’ claim to be helping their kids? When informed of the massive loss of teachers in their schools, I suspect that they would tell Public Advocates to put their allegedly good intentions back where they belong.  After all, the interests of these parents are already represented on school boards, in state legislatures, and in Congress.

Hence, the other lesson of Renee v. Duncan is that just because a special interest group grandiosely styles itself a “Public Advocate” hardly means that it is one.

-Joshua Dunn

Somewhat surprisingly, then, South Carolina is on the cusp of leapfrogging most of the competition by passing one of the most ambitious pieces of school choice legislation in the country.  Called the South Carolina Education Opportunity Act (SCEOA), the legislation would provide tax credits to parents choosing to send their children to private school, extend smaller tax credits to homeschooling families, and provide scholarships for low-income students to attend private schools.  The scholarships would be dispensed by Student Scholarship Organizations.

Pointing to the success of Florida’s Tax Credit Scholarship Program (see “Does Competition Improve Schools?”), the bill’s supporters contend that it would improve student achievement and save money.   The CATO Institute has already weighed in, saying that the bill would “do a better job” than similar school choice programs in other states.

While one would hope that the legislature would be most interested in the academic gains generated by the bill, its budgetary effects might be what gets it through the legislature.  The state has been hit particularly hard by the recession, and over the past few years has had to rely on furloughs, reductions in local aid, and various cuts to balance the budget. The scholarships and tax credits could not exceed half of the state’s spending per student, which averages around $5,000.  (The remainder comes from the federal government and would be unaffected by the program.) Thus, for every student taking advantage of a scholarship and tax credit, the state would save $2,500.  Regardless of the legislators’ motivations, the bill’s passage would undoubtedly be welcome news to parents who simply want a better education for their kids.

Should the bill pass, opponents of school choice will no doubt be waiting with knives sharpened and a battalion of attorneys. That makes the U.S. Supreme Court’s pending decision in Arizona Christian School Tuition Organization v. Winn even more important.  Arizona passed a scholarship program funded by tax credits and subsequently found itself sued by the ACLU (and nominal plaintiffs that it rounded up) because many of the scholarship organizations were religious and sent recipients to religious schools.  If the Court sides with Arizona and the Obama Administration, which to its credit defended Arizona’s program and said that the ACLU and its plaintiffs shouldn’t even have standing to sue, it would go a long way toward insulating the SCOA from a legal challenge.

-Joshua Dunn

In March 2010, to Mayor Michael Bloomberg’s and Chancellor Joel Klein’s chagrin, a New York State trial judge stopped the planned closure of 19 chronically failing schools in New York City. As a result, 19 demonstrably dreadful schools will remain open for at least another school year.  Yet the case and its aftermath show that school districts can, with sufficient effort and creativity, partially maneuver around such judicially imposed obstacles.

Klein, who has sought to close underperforming schools as part of his effort to improve the lagging district, had announced that he would seek to both close the schools in December of 2009 and to recycle some of the facilities as charter schools. The United Federation of Teachers (UFT) attempted to manufacture a political controversy over the closures by renting 50 buses to transport protestors to hearings before the city’s Panel for Educational Policy. In the final hearing, which lasted nine hours, the panel approved Klein’s recommendations. The UFT promptly sued and was joined by the local branch of the NAACP, which claimed, despite the dreadful education that the schools inflicted on pupils, that children’s rights had not been considered.

The lawsuit centered on the state legislature’s 2009 revision and reauthorization of mayoral control of the school district. The revised law set out the conditions that the city must follow when closing or significantly changing the use of a school. The requirement under dispute is that the city must provide an “educational impact statement” (EIS) for each school slated for closure. The UFT claimed that the city’s impact statements were insufficient. Naturally, the city thought that it had provided the requisite information, including the budgetary implications, effects on administrators and teachers, and the schools’ progress reports and graduation rates.

Judge Joan Lobis sided with the union. While admitting that “the statute does not specify the information that an EIS should include,” she nevertheless ruled that the city’s impact statements contained “boilerplate” and insufficient details. Significantly, Lobis’s ruling failed to explain what information the city would need to provide to satisfy the law. The city appealed but fared no better. In July, an appellate court, echoing Judge Lobis, ruled that the city had failed to meet its obligations by providing only “obvious” information.

While the city vowed to eventually close all 19 schools, Klein appears to have found a less controversial, if still partial and delayed, route around this judicial roadblock. The city announced in June, prior to the appellate ruling, that it was going to “transform” 11 of the district’s schools and dramatically overhaul or close 23 others under a $300 million federal School Improvement Grant (SIG) program. Eight of those 23 were on the original list of schools the district wanted to shutter. Under the grant program, the options for the 23 schools are established by the federal Department of Education. The district can impose one of three plans: turnaround, restart, or closure. The turnaround plan requires firing the principal and at least 50 percent of the teachers. The restart plan replaces the district school with a charter school. The closure plan’s consequences are self-evident. These reforms, though, will not be implemented until the 2011–12 school year. The transformation model, reserved for the 11 “least-worst” schools, involves replacing the principal, bringing in more support services, and making curricular changes. Opposing these measures would put the teachers union in an uncomfortable position since it would mean rejecting the federal money. So far the UFT has not announced plans to sue in the event that the district chooses to close or restart any schools, the two most likely options for the schools previously slated for closure.

In addition to sidestepping litigation, this grant program has helped the city convince the teachers union to accept a limited form of performance pay for teachers. Schools scheduled for transformation will be able to hire teachers with two new designations, master teacher and turnaround teacher. Teachers at both levels will receive 30 percent more in their base salary. To receive this designation a teacher must have demonstrated the ability to raise student test scores.

Since students in 19 schools will be subjected to at least one more year of educational mediocrity, this outcome is hardly optimal. But the city’s response shows that school districts and their long-suffering students do not have to be completely victimized by litigation.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.

In February 2010, for the first time, a state judge overturned a school district’s choice of a high-school math curriculum. In May 2009, the Seattle school board in a 4–3 vote adopted the “Discovering” math curriculum. The Discovering series, which the Seattle district already used in elementary and middle schools, allegedly allows students to learn math principles on their own through “inquiry-based learning.” The texts and methods discourage “direct” instruction in which teachers teach students the best method for solving problems. Instead, students “discover” mathematical principles on their own through “cooperative learning groups” and by playing with objects. Students, no doubt to their delight, also begin using calculators early in elementary school as part of the series’ emphasis on using “technology to build conceptual mastery.”

When considering the curriculum, the board received conflicting evidence about the effectiveness of the Discovering series. The Washington State Office of Public Instruction ranked the series second out of four competing curricula, while a report from the Washington State Board of Education called the series “mathematically unsound.” The board also heard criticism from parents and expert reports about the series.

In response to the board’s decision, three plaintiffs—a retired high-school math teacher, a professor of atmospheric science at the University of Washington, and a mother of a high-school student—filed suit, calling the Discovering series deficient and dumbed down. The plaintiffs argued that the curriculum would widen rather than narrow Seattle’s achievement gap between minority and white children. One of the plaintiffs, Professor Cliff Mass, wrote in his blog, “Seattle Public Schools picked high school math books that are not only bad for everyone, but they are PARTICULARLY bad for the disadvantaged who don’t have extra cash for tutoring or whose parents don’t have the time or backgrounds to help their kids.”

In February 2010, Judge Julie Spector agreed with the plaintiffs in a terse three-page opinion devoid of any analysis. She simply asserted that the district behaved arbitrarily and capriciously and that there was “insufficient evidence for any reasonable member of the board to approve the selection of the Discovering Series.” The decision surprised both plaintiffs and the Washington education community. During the litigation, the plaintiffs’ attorney, Keith Scully, said winning seemed unlikely since “no judge wants to second guess the school board.” After the decision, the executive director of the state board of education, Edie Harding, said the decision was a “surprise” and that in Washington “the local board is always the prime decision-maker on curriculum.” Likewise, David Stolier, an assistant state attorney general, said that “the courts ought not to be making decisions about curriculum,” noting the state supreme court had ruled “it’s not the role of courts to be micromanaging education.”

There might be very good reasons to reject the curriculum. One can easily understand why parents wouldn’t want to expose their children to the faddish ideas afflicting the Discovering series. But there should be no mistaking what happened. The judge substituted her educational judgment for that of the school board, and didn’t bother to give an explanation. Her ruling then was far more arbitrary and capricious than the school board’s decision, even if it might have salutary effects.

The dispute in Seattle is a small, but significant, skirmish, in a growing debate over the lucrative and controversial textbook market. The Seattle school district is appealing Judge Spector’s decision. Parents have filed a lawsuit against the wealthy Issaquah school district since its adoption of the Discovering series; the similarly wealthy Bellevue school district is also facing a possible lawsuit. No doubt other concerned parents around the country will be following Washington’s lead. Prior to the Seattle case there appears to have been only one unsuccessful Plano, Texas, lawsuit over a math curriculum.

Supporters of the Discovering series, including its publisher, are not immune to the temptations of litigation. When the Washington State superintendent of public instruction, Randy Dorn, dropped the Discovering series from the recommended list of textbooks, Key Curriculum Press, the publisher of the Discovering series, unsuccessfully sued the state claiming, naturally, that his decision was arbitrary and capricious.

Regardless of the efficacy of “direct instruction” or “inquiry-based learning,” such pedagogical disputes are beyond the courts’ proper constitutional role and institutional capacity.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.

Charter schools are created under state statutes, but they often retain a private character. Can they qualify as “state actors” for a plaintiff’s purpose of using Section 1983 of Title 42 of the U. S. Code, which is the main gateway for achieving relief? In the case from Arizona that the Ninth Circuit decided, the answer was no, and the claims of the plaintiff were dismissed.

The plaintiff, Michael Caviness, had been employed for six years as a teacher of health and physical education and a track coach at Horizon Community Learning Center, a nonprofit corporation that operated a charter school in Phoenix. A female student filed a grievance charging that he had crossed “the student-teacher boundary.” At a hearing, Horizon’s governing board learned that the student had a “crush” on Caviness and that the two had been communicating by telephone. The board concluded that he had exercised questionable judgment and kept him on paid administrative leave until his contract expired. When he applied for a job in the Mesa Public Schools, Horizon’s executive director declined to evaluate him, and Caviness claimed that what the director said to Mesa was “purposely false and incomplete” and intended to harm him. He further claimed that some Horizon employees had defamed him by falsely calling him a pedophile.

Caviness filed a complaint under Section 1983 alleging that Horizon had, without due process, deprived him of his liberty interest in finding work, in that it had not granted him a hearing to clear his name. To establish that the school was a “state actor,” he made five arguments: that Arizona law defines a charter school as a public school; that a charter school is a state actor for all purposes, including employment; that a charter school provides a public education, a function that is traditionally and exclusively the prerogative of the state; that a charter school is a state actor in Arizona because the state regulates the personnel matters of such schools; and that it is a state actor because charter schools, unlike traditional private schools, are permitted to participate in the state’s retirement system.

The district court granted Horizon’s petition for dismissal for lack of federal jurisdiction. It found no evidence “with respect to [Caviness’s] specific employment claims, that Horizon acted in concert or conspired with state actors, was subject to government coercion or encouragement, or was otherwise entwined or controlled by an agency of the State.”

Three circuit judges concurred that the actions that Horizon took or failed to take were all connected with its role as Caviness’s employer, and that what it did as such did not constitute “state action.” State action, it said, “may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.”

Caviness failed because he did not establish the close nexus. It was not enough to argue that under Arizona law all charter schools are state actors. Without facts to show that Horizon was acting as “the government,” Caviness had no federal case.

While the Caviness case could be a harbinger of more cases to come, we would be surprised to see federal litigation lead to a broad characterization of charters as private actors. Charters will likely increase in both number and federal financial support under President Obama, and with federal aid comes the force of laws emphasizing charter schools’ public character. Charters are explicitly obliged to abide by federal statutes prohibiting discrimination, for example. And while no federal law applies, the Department of Education’s guidance has made clear that charter schools must be nonreligious as well. Balking at either constraint would put charters at risk of losing not only federal aid but also their status as public schools, which has been critical to the charter movement’s success.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

In the mid 1980s, federal district court judge Russell Clark ordered a complete overhaul of the school district.   No expense was spared.  All told the court spent more than $2 billion in its quest to improve the KCMSD.  Every high school and middle school and half the districts elementary schools became magnet schools with special themes such as classical Greek, Slavic studies, and agribusiness.  Special themes required special facilities such as a model United Nations facility with simultaneous translation capability, petting zoos, and robotics labs.  One high school was so extravagant it was dubbed the “Taj Mahal.”

When Judge Clark’s remedial program began in the mid 1980s the school district enrolled 35,000 students compared to more than 70,000 in the late 1960s. (Today it enrolls just over 17,000).  During the 1970s the school district had experienced a massive exodus of middle-class white and black students. A series of destructive and divisive teacher strikes had undermined parental confidence in the school system. Everyone who could afford to escape fled to the suburbs. However, because of ineffectual leadership, the district maintained a large stable of partially filled buildings.  No one was willing to make the politically unpopular but necessary decisions to close underused schools.  The plaintiff’s attorney, Arthur Benson, and his expert witnesses assured Judge Clark that if he ordered the requested improvements the school district would draw tens of thousands of white students from the suburbs back into the district. Much like The Field of Dreams, the premise was “If you build it they will come.”

But the students never came.  Sadly at the same time Judge Clark was pouring money into the district, the quality of education declined for Kansas City’s minority students. Test scores fell and levels of racial isolation increased.  African-American parents grew so disillusioned that many formed an organization devoted to taking over the school district and ending the case.  Despite the academic failure of students in the system the school district was kept afloat, by judicially mandated largesse allowing it to avoid the difficult decision to close largely empty schools.  In fact, the schools closed last week received tens of millions of dollars under the desegregation plan.  Absent Missouri v. Jenkins the school district would have been forced to gradually close schools and would have avoided a wrenching and traumatic mass closing.  The central lesson of the case is that courts are a poor venue for making educational policy.  But it also testifies to the folly of trying to spend our way to educational utopia.

Ironically, the board member casting the decisive vote to close the 26 schools was Arthur Benson, the same attorney who led the lawsuit from 1977 to its conclusion in 2003. While many, including myself, have criticized his misguided educational proposals, he has tried to put his hard won knowledge to good use by joining the school board two years ago.  Instead of focusing on exotic but educationally distracting programs, he has spent his tenure on the board trying to focus on providing a good and fiscally sustainable education for the district’s students. One wishes Benson well in his effort to help the children of Kansas City in the twilight of his career. But it’s difficult not to think of what could have been had he used his formidable gifts and intellect to help the school district in more productive ways than litigation over the past three decades.  In the many years I studied the case, I never found a single person, even among his most ardent opponents, who questioned Benson’s integrity or sincerity.  He always had the best of intentions.  But good intentions do not guarantee good public policy. Certain roads, as Missouri v. Jenkins reminds us, are paved with them.

The details, though, paint a more troublesome picture.  First, the shamelessness of it is astonishing.  This is the same Department of Education that can’t support a voucher program in Washington DC to help minority children escape the grinding incompetence of the DC school system.  Now it wants to spend its resources determining whether schools in Fairfax County or Westchester have a disproportionate number of white kids in college prep classes.  Someone’s priorities seem misplaced.  Even Nixon would blush.

Second, it’s hard to see how Duncan can do this without running headlong into the Supreme Court’s 2007 decision in Parents Involved v. Seattle School District No. 1.  Duncan plans on relying on “disparate impact” analysis to show for instance that school districts with a disproportionate number of white students in advanced placement classes are guilty of discrimination.  The cure for that disparate impact will be “robust remedies” like early  intervention programs.  But if (white) parents discover that their children have been denied access to an AP class to ensure racial balancing, they will likely bring suit just like the parents from Seattle in Parents Involved. And chances are, they will win. After all, Justice Kennedy, in his controlling opinion, singled out identifying students based solely on race as unconstitutional.

Third, anyone familiar with the Department of Health, Education, and Welfare’s (HEW) enforcement of the Title VI of the Civil Rights Act in the 1970s knows that we’ve been down this road before and it’s not a smooth ride.  In the notorious Adams v. Richardson litigation HEW became compelled to pursue in the same fashion Duncan has outlined to take on enrollment disparities in school districts across the country.  Political scientist Stephen Halpern in On the Limits of the Law documents the “perverse and insidiously negative” consequences of pursuing these goals through the courts.  As another scholar Jeremy Rabkin noted in Judicial Compulsions, the interests of the students quickly got lost in a “fog of legalisms” to be replaced by the interests of advocacy groups allegedly acting on their behalf.  Both authors emphasized the unintended consequences caused by judicial enforcement.  In the case of Duncan’s announcement, the goal displacement rituals are practically limitless.  At the very least, one can easily envision school districts putting unprepared students in AP classes simply to satisfy the Department of Education.

Fourth, as I show in Complex Justice, when experts and elites from afar try to determine what minority parents and children want and need they often have no idea what they are talking about.  In Missouri v. Jenkins, when the court and its self-appointed experts tried to improve the quality of education for African American children in Kansas City they structured their reforms around what they thought middle-class white children would want.  As a result, after spending more than $2 billion, educational outcomes declined and African American parents became outraged and actually led the effort to end the court’s attempt to help them.  Focusing on college prep classes when many minority children are trapped in dysfunctional and failing urban school system will likely be met with a giant “huh?” from many parents.

Mr. Palmer lost in federal district court and before the 5^th Circuit Court of Appeals, and then appealed to the U.S. Supreme Court.  His petition argued that the 5^th Circuit’s decision “threatens to vest government-run schools with virtually unfettered authority to censor student speech.”  Supporting Mr. Palmer’s petition were a veritable who’s who of public interest law firms devoted to defending religious liberties, including the American Center for Law and Justice, the Becket Fund for Religious Liberty, and the Christian Legal Society.  On January 11^th, after our Ed Next article was completed, the Supreme Court denied Mr. Palmer’s petition for certiorari.

The case, we think, has two important implications.  The first, as we say in our article, is that it “provides additional evidence that federal courts have grown leery of second-guessing the choices of school districts and administrators.”  The second is that we are likely to see more and more unusual coalitions like this one in school speech and discipline cases.  Christian public interest firms like the Liberty Legal Institute have become some of the staunchest defenders of student speech rights and, therefore, defenders of Tinker v. Des Moines (1969).  Their fear, we point out, is “that if schools can suppress John Edwards T-shirts . . . then they can just as easily suppress John 3:16.”

Palmer v. Waxahachie started innocently but quickly escalated into a full-blown First Amendment storm. In September 2007, Paul Palmer, a 10th-grade student, wore a T-shirt to school that said simply “San Diego.” The district’s dress code prohibited T-shirts with printed messages. After school officials informed Palmer of his offense, his parents gave him the John Edwards shirt to substitute for “San Diego.” This too fell afoul of district policy.

In response, Palmer sued in federal court, asking for preliminary and permanent injunctions along with damages and attorney fees. He claimed that Supreme Court doctrine allowed student speech to be restricted only if it would cause a substantial disruption, was indecent, was school-sponsored (in a school newspaper, for example), or promoted illegal drug use.

At an initial hearing, the district informed the judge that it had changed its dress code, which prompted the court to dismiss Palmer’s claim without prejudice. The new code was more comprehensive in its restrictions, forbidding polo shirts with messages, shirts with logos of professional sports teams, and clothing with university logos and messages. The revised code did allow shirts with logos smaller than two inches by two inches. Students could also wear clothing promoting school spirit or school-sanctioned clubs and teams. Also permitted were bumper stickers (even attached to clothing), political pins and buttons, and wristbands.

Upon receiving the new code, Palmer submitted three shirts to school officials for approval: the original John Edwards T-shirt, a John Edwards polo shirt, and a T-shirt with “Freedom of Speech” on the front and the text of the First Amendment on the back. The school replied that the Edwards paraphernalia were forbidden and so was the First Amendment representation.

Palmer sued again, but the district court denied his request for an injunction. On appeal, the school district contended, and a Fifth Circuit panel agreed, that its policy was fully compliant with settled doctrine on student speech. Even though Palmer’s sartorial choices were not disruptive, lewd, school-sponsored, or drug-related, the district’s policies were content-neutral and thus permissible. According to the court, the school district’s policy exhibited no hostility to the message conveyed by Palmer, but instead simply regulated his manner of expressing it. The court appeared particularly concerned that siding with Palmer “would spawn endless line-drawing litigation.”

But why did LLI find the travails of the cantankerous Mr. Palmer so compelling? The answer is that Christian public-interest firms like LLI now see the Supreme Court’s 1969 decision in Tinker v. Des Moines as the last bulwark protecting student religious speech.

Tinker had established that students “do not shed their constitutional rights at the schoolhouse door.” At the time, it was criticized by conservatives as one of the Warren Court’s intemperate assaults on America’s constitutional and moral fabric. Jay Sekulow, who championed the Christian Right’s free-speech legal strategy at the American Center for Law & Justice (ACLJ), now argues that Tinker is the decision “you have to hope to hold onto.” Hence, religious conservatives are now some of its most adamant defenders. For groups like LLI and ACLJ, the fear is that if schools can suppress John Edwards T-shirts and Bong Hits banners, then they can just as easily suppress John 3:16.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.
Martha Derthick is professor emerita of government at the University of Virginia.

“Receiving almost no attention but potentially of utmost significance,” we wrote, “was Horne v. Flores, a case about English-language learning in which the court divided narrowly along ideological lines, with Kennedy joining the five-member majority.”

Anyone doubting the potential significance of the Supreme Court’s decision in Horne v. Flores should consider two recent developments in Florida and Colorado.

In Flores the Court ruled that funding should not be the only consideration in determining whether a state is meeting its requirements under federal law to provide an adequate education for English Language Learners (ELL).   As we explained in our article,

Justice Alito’s majority opinion faulted the district court and the Ninth Circuit for focusing on the ‘narrow question’ of funding, and ignoring whether managerial and instructional reforms had brought the state into compliance. The plaintiffs and lower courts had consistently used funding as the barometer of quality. Alito jumped headlong into the funding debate by citing ‘a growing consensus in education research that funding alone does not improve student achievement.’

Justice Alito’s majority opinion also noted that these types of cases are quite commonly collusive, where state officials want to lose so that courts can force them to impose what they could not win through ordinary political means.  The end result was a “severe spanking” for the 9^th Circuit, which had focused solely on spending.

Even though Flores is a federal case, its biggest impact might come in state courts where there have been decades-long battles over school funding.  State courts are not bound by Flores for litigation arising under their own constitutions.  However, state judges have a history of paying attention to what the Supreme Court says on such contentious issues and state attorneys general will certainly remind them of Flores.

While state courts have indicated increasing skepticism toward adequacy suits, there seem to be few signs that lawyers have tired of bringing them.  Two suits have recently developed in Florida.  The most perplexing was filed by the ACLU claiming that the Palm Beach County School district spends too little on education, even though it spends nearly $4,000 more per-pupil than the state average and ranks 11^th out of 67 districts in per-pupil funding.  And as I noted in a blog entry earlier this year, the Colorado state supreme court ruled in October that plaintiffs should be able to bring an adequacy case before a trial court.  Lower courts had dismissed the case saying that school funding disputes were not appropriate for judicial resolution.

Next in order of publicity was Forest Grove School District v. T. A., a case from Oregon in which the Court held 6 to 3 that parents could receive reimbursement for private school tuition even when their disabled child had never enrolled in a public school special education program. A brief filed by urban school districts raised the specter of wealthy parents gaming the system and driving up costs, but the effect of this decision will also likely be limited. Certainly, some parents will try to use the decision to fund private school, but significant requirements under the Individuals with Disabilities Education Act (IDEA) remain in effect. For families to be eligible for reimbursement, an administrative board or court will still have to find that a public program could not meet the child’s needs. In general, the cost and incidence of private placements appear to have been exaggerated in the media (see “The Case for Special Education Vouchers,” features, and “Debunking a Special Education Myth,” check the facts, Spring 2007).

Receiving almost no attention but potentially of utmost significance was Horne v. Flores, a case about English-language learning in which the Court divided narrowly along ideological lines, with Kennedy joining the five-member majority. The central issue is whether Arizona has satisfied the Equal Educational Opportunity Act (EEOA) of 1974, which provides that no state shall fail “to take appropriate action to overcome language barriers that impede equal participation…in its instructional programs” (see “Language Barriers,” legal beat, Winter 2009).

The case called for the Court to weigh in on several controversial issues, the most important of which is the extent to which the judiciary should be able to dictate education spending by state and local governments. In considering whether Arizona was meeting the requirements of the EEOA, Justice Samuel Alito’s majority opinion faulted the district court and the Ninth Circuit for focusing on the “narrow question” of funding, and ignoring whether managerial and instructional reforms had brought the state into compliance. The plaintiffs and lower courts had consistently used funding as the barometer of quality. Alito jumped headlong into the funding debate by citing “a growing consensus in education research that funding alone does not improve student achievement.” While the case does not bind state courts, it provides an important source of support for those opposing state school-funding lawsuits.

The Court also emphasized that cases such as Flores risk making the courts a manipulated contestant in disputes where one side uses litigation to insulate its policy and spending preferences from political debate. The majority was clearly distressed at the often collusive nature of institutional reform cases, as illustrated by Flores, in which then Governor Janet Napolitano, a Democrat, supported the lawsuit against the state as a way to leverage more school spending out of the Republican legislature.

Flores, then, sent perhaps the strongest signal of any of the cases that the Roberts Court was seeking to define a path of judicial modesty. Indeed, Roberts himself seemed to say as much at a judicial conference soon after the strip-search decision. Asked about it, he replied, “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad. We wouldn’t do a good job at it.”

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

In a 4-3 decision, the state Supreme Court swept aside those concerns, arguing that they should not preclude the plaintiffs from being able to make their case.  The decision, however, did not address the merits of the plaintiffs’ case, which will return to the trial court.   According to the majority, the state only has to show that its funding scheme is rationally related to its constitutional mandate.  One would normally expect this to be an easy hurdle for the state to clear, but the Colorado Supreme Court has a history of unpredictable behavior, as this case itself indicates, so there is certainly no guarantee that the state will win when it’s all over.  As well, in 2004 the Court showed its solicitude for the interests of the educational establishment when it struck down Colorado’s voucher program.

Looking forward, any judicial demands on the state legislature would likely meet with resistance.  The state is already facing severe fiscal constraints, in part because of Amendment 23 of the state constitution, which mandates yearly increases in K-12 spending.  Assuming the state’s budget woes continue, the idea that K-12 isn’t getting an adequate share of state revenues will likely be met with some consternation.

A mother in Albuquerque, New Mexico, Jennifer Couture, sued school officials, claiming that their use of a timeout room for her son (“M.C.”) violated his Fourth Amendment right against unreasonable seizures and Fourteenth Amendment right to due process. The defendants claimed qualified immunity, which requires courts to rule in favor of a government employee unless the conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” A district court found for the plaintiff but was reversed by the Tenth Circuit Court of Appeals in August 2008.

M.C. in 2002 was six years old, profane, and violent. He hit furniture and threatened to kill students and teachers with hot oil. Having judged him “emotionally disturbed,” school officials had placed him in a special education program and prepared an Individualized Education Plan in consultation with his mother, who signed it. Teachers were obliged to follow the plan and report to his mother daily. Among the techniques of “behavioral intervention” prescribed were supervised timeouts in a timeout room.

After a visit, Ms. Couture objected to the characteristics of the room: “very small” with “carpeting, but no padding on the walls. Nothing in it…. It had a very dim light.” In an administrative appeal to a hearing officer, she also complained of “inappropriate reliance upon timeouts and physical restraints.” Defeated there, she complained to the district court under section 1983 of the U.S. Code, which individual litigants often use in an effort to show that state or local officials have deprived them of constitutional or federal statutory rights. The district court was troubled by the length of some of the timeouts and what seemed on occasion to be insufficient provocation on M.C.’s part, such as refusing to take his spelling test.

The circuit court, questioning the district court’s mode of analysis, found that the defendants were entitled to qualified immunity. Even if putting M.C. in the timeout room were considered a seizure—a question that the court declined to decide—it was not unreasonable. The court expressed sympathy both for Ms. Couture and the teachers, but ruled that “The Fourth Amendment…does not empower federal courts to displace educational authorities regarding the formulation and enforcement of pedagogical norms…. If we do not allow teachers to rely on a plan specifically approved by the student’s parents and which they are statutorily required to follow, we will put teachers in an impossible position—exposed to litigation no matter what they do.”

The court acknowledged that M.C.’s behavior did not improve with the timeouts. “But whether the timeouts were a good or effective teaching method is not the relevant question…. This was primarily a pedagogical judgment for the educators on the spot to make.”

In response to the Fourteenth Amendment claim, the court said that at some point, removing M.C. from the classroom and putting him in timeout might have gone so far as to deprive him of a protected interest in a public education, but the circuit judges, unlike the district court, concluded that 21 timeouts totaling approximately 12 hours over two and a half months did not go that far. Besides, they said, timeouts were not an interruption of his education, they were part of it.

For schools, the decision signaled that courts would prefer leaving management of troubled students to educational professionals as long as they abide by the law. For state governments wishing to avoid lawsuits, the lesson may be that laws should be crafted to give parents ample choice. For example, Florida law gives all parents with a child in special education the option of finding a private school with support to the same level as the average spent statewide on students with that disability.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Flores v. Arizona was filed in 1992, a class action brought by an advocacy law firm on behalf of parents in the town of Nogales. The suit rested on the Equal Educational Opportunities Act of 1974, which provides that no state shall fail “to take appropriate action to overcome language barriers that impede equal participation…in its instructional programs.” In 2000, a federal district judge ruled that Arizona was violating this relatively obscure law, both by not spending enough on its Lau programs—a reference to a Supreme Court decision of 1974 and regulations of the federal Office for Civil Rights—and by failing to provide enough teachers, aides, classrooms, materials, and tutoring. Eight years later, Arizona is spending $430 extra per ELL student per year, but has not satisfied the court. Rather, the legislature challenged the court with a law that would have put a two-year cap on extra spending for any individual ELL student and use federal funds in place of some state funds.

Arizona did not appeal the judgment and signed a consent decree that addressed matters other than spending. The spending issue festered as the politics grew more problematic. In 2000 the electorate approved a ballot initiative that abolished bilingual education and replaced it with English immersion. Janet Napolitano, a Democrat who was elected governor in 2002 and reelected in 2006, has battled with Republican state legislators over what to do.

Judge Raner Collins has twice found the state to be in civil contempt. Early in 2006, he imposed a fine of $500,000 per day, to be held in a fund dedicated to ELL instruction. A total of $21 million was collected from the state, but the Ninth Circuit appeals court ruled that Collins had exceeded his authority and canceled the fines. He has also hinted at jail sentences, which presumably would fall on the Speaker of the Arizona House and the president of the Senate, who are intervenors in the suit, and the superintendent, who is a named defendant.

Judge Collins found an ELL law enacted by the legislature in 2006 without the governor’s signature to be inadequate, but the Ninth Circuit instructed him to hold an evidentiary hearing to determine whether the original court order was still valid. The intervenors argued that changes of fact (increases in general education spending) and in law (enactment of No Child Left Behind) made the original order obsolete and asked to be relieved from judgment. Collins ruled against them and was upheld in 2008 by the Ninth Circuit.

Under threat again of fines, the legislature approved an additional $40.6 million for ELL in April 2008, and again the governor let the bill become law without her signature. Districts were instructed to use model plans developed by the state department of education, which called for four hours a day of intensive English instruction. This directive caused trouble on the local front, in districts that resisted the four hours of immersion or were disappointed with the allocation formula. A Tucson-area district, Sahuarita, announced that it would defy the state law, stating that federal civil rights laws are trump.

The issue headed, once again, to Collins’s court, with a renewed demand from the Flores plaintiffs for more money. Tom Horne, the outspoken state superintendent, protested that “we don’t need an aristocracy of federal judges ruling over us.” Horne and the legislative leaders have demonstrated, if nothing else, that determined opponents of the “judicial aristocracy” can buy a lot of time, and probably avoid going to jail.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Few were aware that the legality of home schooling was even under judicial consideration. Home schooling was initially an ancillary consideration in a child welfare case involving Phillip and Mary Long, parents of eight home-schooled children. An investigation into claims of mistreatment by one of their daughters revealed that they were providing at best a poor education. A juvenile court judge ruled nonetheless that the Longs had a constitutional right to home school. At the request of a court-appointed attorney for two of the children, the appellate court both overturned the juvenile court and took the broader step of ruling that home-schooling parents must have state teaching certification, leaving the vast majority in violation of the law. To no one’s surprise, the state’s teachers unions praised the decision.

Prior to the ruling, the California Department of Education had interpreted the state’s education code to allow four ways for children to be taught at home: 1) qualify as a private school, 2) use a certified tutor, 3) officially enroll in a private school satellite program, or 4) enroll in a public school’s independent study program. The Longs had been home schooling under option 3, having enrolled their children in the Sunland Christian School’s satellite program.

The appellate court ruled that there were only two permissible exceptions to the state’s compulsory public education laws: enrollment in a private school or private tutoring by a certified teacher. A strict reading of the state’s education code and judicial precedents on home schooling from the 1950s and ’60s clearly supported the ruling. But the code and the precedents originated long before the rise of today’s large home-schooling movement, with more than 1 million students nationwide as of 2003, according to the National Center for Education Statistics. This made the political circumstances surrounding the case far different from those of past judicial decisions.

If the court was unaware of the size and zeal of the home-school movement, that ignorance was short-lived. Within days the Home School Legal Defense Association (HSLDA), a national organization with more than 14,000 member families in California, had collected over 250,000 signatures calling on the California Supreme Court to “depublish” the appellate court’s ruling, which would strip it of precedential value. As well, a resolution supporting home schooling was quickly introduced in the state legislature. Sensing the groundswell of opposition, the state superintendent of public instruction, Jack O’Connell, announced his disagreement with the decision and promised that the state’s policies would not change. Most strikingly, Governor Arnold Schwarzenegger called the ruling “outrageous” and declared that it “must be overturned by the courts and if the courts don’t protect parents’ rights then, as elected officials, we will.”

Less than a month after the initial ruling the appellate court appeared to back down. The Longs, with the support of California’s four home-schooling associations and the HSLDA, petitioned it to rehear the case. The court agreed, vacated the decision, and scheduled a rehearing for June. At the rehearing, the main defender of the court’s previous ruling was the California Teachers Association. But dozens of attorneys for the governor, attorney general, state superintendent of schools, home-school associations, and religious liberty organizations urged the court to protect home schooling. Attorney General Jerry Brown explicitly called for the judges to rule that state law already authorizes home schooling, a position that would avoid legislative intervention.

Given the support offered by the political establishment, it seems likely that home schooling will continue in California regardless of what the court decides in its reconsidered opinion. Much like banks that become “too big to fail,” home schooling appears to have become too widespread and embedded in educational practice, as well as too well organized and politically effective, to be undone by a judicial opinion.

-Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Last August a public-interest law firm in California, Public Advocates, thought it had found a chink in the Department of Education’s interpretation of the “highly qualified” teacher provision of NCLB. In Renee v. Spellings, filed in a federal district court in San Francisco, Public Advocates argued that the department had flouted the law by permitting employment of teachers still in training.

NCLB required that all of the nation’s public school teachers be “highly qualified” by the end of 2005–06 and set as a standard that they have a bachelor’s degree, meet state licensure requirements, and demonstrate competence in a core subject. Many of the nation’s teachers, especially in the poorest urban districts and in the 5,000 school districts classified as rural, had fallen short of that standard. Congress’s approach to this shortage of formally trained teachers was to decree that it was unlawful.

When a law and social realities are seriously at odds, as in this case, administrators must employ flexibility and ingenuity to make the law “work,” or appear to. One of several approaches devised by the department was to allow so-called alternative-route teachers to teach for up to three years while seeking certification. (An “alternative route” is meant to facilitate entry of teachers who have not followed a standard teacher-training curriculum.) Attacking the three years of grace as a “major loophole,” Public Advocates asked the court to strike it down, asserting that 100,000 teachers nationwide had slipped through the loophole, 10,000 in California alone, which it took to be a measure of injustice but might be thought from a different political perspective to be an indicator of districts’ needs. The will of Congress is deeply ambiguous, because the law says both that alternative-route teachers satisfy the mandate and that full licensure cannot be waived provisionally.

A more tantalizing target of NCLB litigation has been a provision, dating from the mid-1990s and authored by Republicans who were trying to protect state governments from unfunded mandates, that says, “Nothing in this act shall be construed to…mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.”

In 2005 two sets of litigants mounted suits with this language in an effort to secure more federal funding or relief from federal requirements, but were not expected by legal analysts to get far (see “NEA Sues over NCLB,” legal beat, Fall 2005). The state of Connecticut, most of whose claims have been dismissed by a federal judge in New Haven, in fact has not gone far. And the other case, which was brought by the National Education Association in collaboration with several school districts in Michigan, Texas, and Vermont, appeared headed for oblivion when the trial judge dismissed it. But the plaintiffs appealed, and in January of this year a three-judge panel of the Sixth Circuit ruled 2 to 1 in their favor (see “Accountability Left Behind,” features).

Rather than oblivion, Pontiac v. Spellings, as this case is known, could be heading eventually for the Supreme Court, which has the last word on states’ obligations under grant-in-aid statutes. The case has been remanded to the district court with an admonition that statutes enacted under the spending clause of the Constitution must provide “clear notice” of their liabilities should states accept the federal funding, along with the majority’s judgment that in NCLB, Congress failed to do that.

In the meantime, Congress continues to struggle with reauthorizing NCLB, and if some of the law’s critics have their way (see “The Enforcers,” legal beat, Fall 2007), the revised version will expand the opportunities to sue.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Under the Individuals with Disabilities Education Act (IDEA), originally passed in 1975 as Education for All Handicapped Children, children with disabilities are entitled to a free appropriate public education based on an individualized education program (IEP). If the public school says it cannot provide an appropriate education or if an appeals board after a hearing determines that the public program is inadequate, parents are entitled to reimbursement for a suitable private program.

Just nine days after hearing oral arguments, the Court produced a two-sentence per curiam decision based on a 4–4, but unidentified, split. The decision upheld the Second Circuit, but lacks precedential value. The tie occurred because Justice Anthony Kennedy had recused himself. While the even split might point to a typical liberal/conservative divide in need of brokering by the unpredictable Kennedy, the facts of the case suggest that the split may not be ideological.

In particular, the parent behind the case muddied it. Tom Freston, the Tom F. of the title, seemed an unlikely person to be leading a challenge against the school board. As a co-founder of MTV (Music Television Network), former Viacom executive, and recipient of an $85 million golden parachute, Freston could afford to pay for the best education for his son, Gilbert, who was diagnosed in the mid-1990s with attention deficit hyperactivity disorder. However, in both 1997 and 1998 Freston sought a special education evaluation from the district.

The district created an IEP that called for placing Gilbert in a public school. Freston objected, enrolled his son in Manhattan’s exclusive Stephen Gaynor School, with tuition of more than $20,000 per year, and threatened to sue. The district agreed to pay tuition for those two years, but created a new plan for Gilbert in 1999 that would have placed him in a public school. Freston sued. An appeals board sided with him, only to be overturned by a federal district court, but the Second Circuit ruled in Freston’s favor. While the school district contended that the language of IDEA demanded attendance at a public school first, the Second Circuit had already ruled in a prior case that this was an incorrect reading of the law, and could unreasonably require parents either to place children in an inadequate program or shoulder the financial burden of a private education, a result it called “absurd.”

Freston says that he pursued the case out of principle and has promised to give any reimbursement he receives to charity. However, his wealth seemed to trouble the Court at oral argument. Justice Antonin Scalia was particularly vexed by the idea that well-heeled families might game the system to get reimbursed for private school tuition when they never had any intention of using a public school regardless of the quality of the program.

Both the Right and the Left may have difficulty reaching a position on this issue. Conservatives could see a victory for Freston as highlighting the failures of public education and providing a back door to school choice. Or they could view it as one more entitlement that unjustifiably burdens local school systems. Liberals could be torn between their support for public education and that for disabled students and expansive entitlements. The specter of well-to-do parents working the system would give them pause as well, but to impose means testing would undermine popular support for IDEA.

Soon after the Court failed to resolve the case of Tom F., it denied certiorari in the earlier case from the Second Circuit, with Kennedy again recusing himself without explanation. This could mean that the Court as presently composed will never decide the issue, even though a conflicting decision exists in the First Circuit, which read the law differently.

-Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

This was the legend on a 14-foot banner that Joseph Frederick, a high school student in Juneau, Alaska, unfurled in 2002 at a school-sponsored parade. Detecting a celebration of drug use—a bong is a marijuana water pipe—the school principal, Deborah Morse, ordered Mr. Frederick to lower the banner and suspended him for 10 days. He sued, claiming a violation of his First Amendment rights to free speech. A three-judge panel of the Ninth Circuit not only ruled for him, but also concluded that Ms. Morse was personally liable.

Robert’s opinion for the court, in which four other joined, did not go so far as to say that students have no First Amendment free-speech rights, as Justice Clarence Thomas wished. Thomas would have overruled Tinker v. Des Moines Independent Community School District, a Vietnam-era (1969) case involving students who wore black armbands in protest of the war. In Tinker the Court ruled for the students and famously said that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Nor did the Court duck the constitutional question altogether, as Justice Stephen Breyer wished. Breyer said that the Court need not decide the First Amendment issue on the merits, but should merely hold that Ms. Morse was immune to Frederick’s claim for monetary damages.

The majority ruled that students at school or a school function do not have a First Amendment right to promote illegal drugs. Breyer worried that, rather than being a help to teachers, this seeming victory would merely incite the nation’s adolescents to mount new challenges. What if a student flew a “Wine Sips 4 Jesus” banner, Justice John Paul Stevens mischievously asked. The good news for school administrators was that neither he nor any other member of the Court believed that Ms. Morse should be liable for damages.

The case that went against school administrators—really two cases, one from Seattle and a companion from Jefferson County, Kentucky—involved school districts’ classifying and assigning students by race in order to achieve racial balance. A majority opinion written by Chief Justice Roberts argued that the Constitution is colorblind and struck the plans down. But though Justice Anthony Kennedy found defects in the two plans and therefore joined in the result, making a 5–4 majority possible, he did not embrace Roberts’s enunciation of the constitutional principle. The Constitution cannot be colorblind in the real world, he said, and school districts can adopt race-conscious measures as long as they don’t treat “each student in a different fashion solely on the basis of a systematic, individual typing by race.”

Justice Kennedy offered what he regarded as acceptable methods of considering race such as “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” But knowing the general demographics of neighborhoods or recruiting students and faculty in a targeted fashion would seem to require some systematic, individual typing by race. Such confusions led commentators on the Kennedy opinion to despair and will likely have the same effect on school administrators. Local districts are obliquely invited to construct affirmative action plans, with the knowledge that they may in time be scrutinized by a divided and inscrutable Court.

“Liberty finds no refuge in a jurisprudence of doubt,” the Court said in Planned Parenthood v. Casey (1992), in a rhetorical phrase commonly attributed to Kennedy. But the jurisprudence produced by the early Roberts Court on schools is steeped in doubt. The Court has taken a fresh plunge into the constitutional thicket, wherein it is the prerogative of judges to write and rewrite the maps.

Joshua Dunn is assistant professor of polical science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

We surmise that the different outcomes turned less on differences in constitutional language than on political differences between the courts. Florida’s court has a Democratic majority, whereas Ohio’s contained only one Democrat—a lame duck who protested that the charter law produces “a hodgepodge of uncommon schools financed by the state.” One Ohio Republican wrote separately in dissent, and another dissented on procedural grounds, objecting that the trial judge had erred in bifurcating the suit into constitutional issues and others that alleged statutory violations in particular schools. The court decided only the constitutional questions.

Popularity may also have buttressed Ohio’s charter program. Ohio has more than 300 charter schools, with 72,000 students. Five of the biggest cities—Cleveland, Cincinnati, Dayton, Toledo, and Youngstown—have charter enrollments of 16 to 28 percent of the student population, putting them among the top ranks of the country’s charter-school cities. The voucher program that was invalidated in Florida enrolled barely 700 students. A second voucher program—Florida’s McKay program for disabled students—is less vulnerable to attack because it is much bigger (17,000 students).

Rather than proceed with the second half of the suit, which rested on claims that charter schools had failed to comply with statutes and sponsorship contracts, their opponents withdrew it in December and instead appealed for regulatory help from a newly-elected Democratic governor and a legislature whose Republican majority had been reduced.

Litigation will continue nonetheless, because Ohio’ the charter school law increases local districts’ reliance on the local property tax, which increases inequalities in school funding, which leads to violation of the equal protection clause of the Fourteenth Amendment. This argument is a modified reprise of the argument in the state.

State aid in Ohio depends on enrollments. Any student who is schooled elsewhere—at home, in a private school, in a charter school—“deprives” the local district of aid, but with charter enrollment the aid follows the student to the charter school. Plaintiffs claimed that this particular diversion of funds deprives school districts, poor urban ones especially, of the ability to provide a “thorough and efficient educational system.” Though rejected by the majority, this argument resonated with a liberal Republican on the court, Paul Pfeifer. While conceding that the Ohio constitution does not prohibit charter schools, he cited the court’s previous rulings in DeRolph v. State, Ohio’s adequacy lawsuit, holding that the constitution does prohibit “excessive reliance on locally raised funds to finance public schools.”

In Ohio, the long-running DeRolph suit is closed to further litigation, and in their federal suit, the unions will be going headlong against San Antonio School District v. Rodriguez (1973), in which the Supreme Court declined to invalidate educational inequalities resulting from reliance on the local property tax. Thus, the unions face the challenge of overturning more than 30 years of settled precedent before courts that are increasingly hesitant to tackle large-scale institutional reform.

Nonetheless, finding some way to overturn Rodriguez is a gleam in the collective eye of all those litigants who want to use courts both to increase school spending and to equalize it within states and even nationally. This is a liberal project for the long run, nurtured in state-level adequacy lawsuits and law school seminars. Project proponents can take comfort in the way Judge Pfeifer cast his dissent.

Josh Dunn is professor at the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus at the University of Virginia.

One proposal comes from the Education Trust, which has a 17-year track record of commitment to school reform.The Ed Trust proposes that parents of children in Title I schools, those that have a disadvantaged population and are the main recipients of federal funds, be vested with a private right of action “to enforce their rights under the law.” The rights that the Trust names are of two kinds. One is for access to data on funding patterns, teacher distributions, and high school graduation rates. The other is for participation in school-level decisions about allocation of supplemental educational services funds, for example, whether to use them for tutoring or expanded in-school instruction.

If the Ed Trust proposal imprudently invites lawsuits from aggrieved parents on a few specific topics, it appears quite restrained when compared to the superhighway to the courtroom concocted by the No Child Left Behind Commission, which offers an unlimited array of statutory language to an unlimited universe of potential litigants. Sponsored by the Aspen Institute, a think tank with global aspirations, the 15-member commission was co-chaired by two former governors, Tommy G. Thompson of Wisconsin and Roy E. Barnes of Georgia, and included the law dean at the University of California at Berkeley, Christopher Edley, who is a leading advocate of private rights of action in education.

In contrast to the Education Trust’s willingness to call a spade a spade and specify its use, the commission proposal is a Pandora’s box wrapped in a euphemism and tied with red tape. Rather than a private right of action, it speaks of “enhanced enforcement options” for parents and “other concerned parties.” Plaintiffs could sue “to enforce the law,” namely NCLB, which is a statute of immense scope and complexity, laden with problematic and sharply contested features, not likely to become simpler in revision.

However, the aggrieved parties would not get to court immediately. There are a lot of bureaucratic stops on the Aspen superhighway. The commission proposal would require states to define procedures by which complainants would bring grievances against local districts or the state itself to a state agency. If the state rejected a complaint, the complaining party could appeal to the U.S. Department of Education (ED), which would be empowered to select the “complaints worthy of response or needing clarifying rulings.” The ED could order a state to respond, but if the department elected not to hear an appeal, the complainant could file suit in state court, an odd approach for a federal law to take, given that in our federal system the United States does not define the jurisdiction of state courts.

Edley has complained, according to the San Francisco Chronicle (February 14, 2007), that parents and the public cannot get in the courthouse door to argue that officials are failing to live up to the obligations of education statutes: “If the state fails to enforce environmental regulations against a polluter, members of the public can not only go to the ballot box, they can also go to court. That’s true in countless areas, and it ought to be true in education.”

But the fact is that for decades litigants have been marching through the courthouse door to influence what happens in schools. They did so to achieve racial desegregation. They do so today for countless purposes, typically to claim a right to free and edgy speech on T-shirts or banners under the First Amendment, to assert rights to education of the handicapped under the federal Individuals with Disabilities Education Act, and to ask for more school spending under state constitutional provisions that are said to guarantee an equitable or an adequate education.

Attaching private rights of action to NCLB would not open the courthouse door for the first time, but would open it much wider.

The most significant ruling, noticed nationwide, came in November, 2006, in CFE v. State of New York (III), a lawsuit of 13 years’ duration. New York’s court of appeals, the state’s highest court, decided 4 to 2 that $1.93 billion in additional annual spending was sufficient to provide an adequate education for New York City public school students.

Only in the world of adequacy litigation could this be a disappointment to the plaintiffs, but the Campaign for Fiscal Equity (CFE) was hoping for much more. Even though New York’s constitution says nothing about adequacy, in 2003 the appeals court had accepted CFE’s claim that the state was not providing an adequate education for New York City students and ordered it to rectify this manufactured constitutional wrong.

That ruling set off a series of rival “costing out” studies, which purported to determine how much money it takes to educate a child adequately. Relying on figures from consultants hired by the plaintiffs, lower courts endorsed a range of $4.7 to $5.63 billion in additional funds. New York’s then attorney general, Eliot Spitzer, asserted in his brief for the defendant that $1.93 billion was sufficient, a figure derived from a consultant’s study done for the state government. A Democrat, Spitzer promised in his 2006 campaign for governor to spend more on schools than he endorsed in the brief, but the four-person Republican majority of the court, all of whom were appointed by outgoing governor George Pataki, a persistent opponent of the CFE, was under no obligation to take notice of what Spitzer said as a candidate.

The high court agreed with Spitzer in his role as the state’s chief attorney. Approving a number in a legal brief allowed retreat from the political thicket and mathematical quagmire created by CFE v.New York.“Deference to the legislature,” the court stated, “is especially necessary where it is the State’s budget plan that is being questioned…. The Legislative and Executive branches of government are in a far better position than the Judiciary to determine funding needs throughout the state and priorities for the allocation of resources.”

Similarly, in November, 2005, the Texas Supreme Court beat a retreat in Neeley v.West Orange-Cove.Texas had been plagued with decades of legal and political battles over school funding. The legislature and governor repeatedly failed to satisfy judicial commands. In 2005, hundreds of school districts asked the court to rule that both the system of funding education and the amount were unconstitutional. The court determined that the funding system rested on an unconstitutional state property tax. However, it refused to find that the level of spending, a statewide average of $10,000 per pupil, was inadequate.

The court said that it could ensure that “constitutional standards are met,” but not prescribe “how the standards should be met,” adding, “more money does not guarantee better schools or more educated students.”

What appears to be a trend began with the Massachusetts Supreme Judicial Court’s decision in Hancock v.Driscoll in February, 2005. In 1993, the court had ruled that the state system of education was unconstitutionally inadequate. The legislature passed a reform package that increased spending and strengthened testing and accountability measures. Nineteen low wealth, poorly performing districts returned to the court in 1999 with a claim that the education system was still inadequate. The court, which has earned a reputation for policy boldness, nonetheless ruled that a finding of inadequacy would require “policy choices that are properly the Legislature’s domain.”

While these decisions do not spell the end of adequacy lawsuits, they suggest that judges may be growing weary of being asked to resolve the intractable problems afflicting the states’ poorest-performing school districts.

Josh Dunn is professor at the University of Colorado–Colorado Springs.

Martha Derthick is professor emeritus at the University of Virginia.

Often the victories for adequacy are only the beginning of prolonged and inconclusive struggles within the ruling courts and between the courts and legislatures or governors. But sometimes the outcomes are radical. In a path-breaking suit in Kentucky, the state supreme court in 1989 found virtually everything about that state’s schools to be unconstitutional, and the legislature responded with major reforms. More recently, in March 2006, an appellate court in New York State ordered its elected officials to increase operating aid for New York City schools by between $4.7 and $5.63 billion a year and by $9.2 billion over five years for capital improvements. Adequacy lawsuits have proved a serious threat to the right of citizens to have their taxes determined by elected officials who are in a position to weigh competing claims for public support and to judge the relative efficacy of spending for particular purposes.

Adequacy as a Political Campaign

At first glance it appears ironic that plaintiffs have enjoyed a higher rate of success in adequacy cases than in those grounded in equity. Courts would seem to have greater legitimacy and competence in adjudicating the latter. The irony disappears, however, if school finance lawsuits are viewed as political rather than legal events. As political events, equity cases compelled the redistribution of spending for education, inciting a strong reaction from those property-rich school districts with the most to lose. Adequacy cases have the clear political advantage: they aim to enlarge the educational pie. Districts rich or poor and urban or rural, teachers and administrators, equipment suppliers, consultants, building contractors, pension funds—along with the advocacy organizations that everywhere push for more school spending—can detect such opportunities for gain and join forces, at least up to the point at which remedies are specified and the bigger pie begins to be sliced.

Adequacy lawsuits are political events: they allocate things of value, and they propel the courts into an institutional sphere normally reserved for the legislature and the governor. Head litigators in adequacy lawsuits know that judicial decisions depend on implementation by the political branches and are alert to ways in which this might be achieved. At a 2005 conference of the adequacy movement, winning lawyers from North Carolina, Montana, and Kansas constituted a panel devoted to the subject of converting court victories into solid remedies. Beyond speaking of standard litigating tactics, such as picking plaintiffs, witnesses, and exhibits, they spoke of success at spinning the media, hiring public relations firms, and engaging a lobbying firm to work with the legislature (in Kansas), all standard political tactics. One lawyer hinted at success in having a school board attorney “from one of our [plaintiff] districts” appointed to the state supreme court (again, Kansas). They spoke of the utility of lawsuits for agenda setting—of keeping school spending inescapably before the legislature.

Implementation of national statutes is always problematic in a federal system and with a national legislature that habitually underfunds its promises. The adequacy campaign, a national movement committed to litigating in state courts, conceives of itself as stepping into this breach. The standards-and-accountability movement—which spread nationwide through the 1990s and reached a climax with passage of the No Child Left Behind Act (NCLB) in 2002—has provided a political stepstool to adequacy suits. The keynote speaker at the adequacy movement conference was Representative George Miller, a California Democrat and one of the principal authors of NCLB. He told the conference, “You have to continue to litigate. Only through litigation will we capture attention.… You can help us realize the goals and live up to the promise of No Child Left Behind.” Michael Rebell, leader of the adequacy movement in New York City and more broadly, has chastised critics for failing “to grasp that the education adequacy lawsuits have become the driving force for achieving the aims of the standards-based-reform movement.”

The Expanding Reach of the Courts

Because the challenge to separation of powers from adequacy lawsuits is so plain, one might expect them to have given rise to constitutional debates within the states. Angered legislators have sometimes proposed constitutional amendments in defense of their prerogatives. Conservative Republican members of the Kansas legislature in 2005 tried to couple school spending that had been compelled by courts with a proposed amendment that would have prohibited courts from ordering the legislature to make appropriations. The proposal failed to get the two-thirds majority in the Kansas house that was needed for submission to the electorate. More school spending had support from Democrats and a few Republicans in the legislature despite the challenge to the institution.

Legislatures per se are not normally defendants in the lawsuits, and so cannot mount their own defense in court. State officials who are in charge of the defense do not necessarily have strong incentives to conduct it vigorously. No attorney general has yet won a large following by opposing more spending on schools or supporting the constitutional principle of separation of powers. State superintendents of instruction, who often have a great deal of influence in shaping the defense, have even less incentive to oppose increased spending on schools.

Given the absence of widespread constraints on the courts from legislators pushing back, it has been up to the courts to work their way through the issue of whether or not these cases are appropriate for court determination (“justiciability”). Most courts have elected to advance into the legislative terrain, all the while denying that they are doing any such thing.

Justiciability has forced adequacy advocates to overcome two arguments. One is that judicial action violates the principle of separation of powers because school spending is a political question. The other is that the language of state constitutions is unclear and, therefore, provides no justification for regulating the elected branches’ policies. For political reasons rather than constitutional ones, the political question doctrine is likely to remain a troubling issue while constitutional language will not.

The Political Question Doctrine

Based on evidence from state courts, where its application is wildly uneven in remarkably similar cases, the political question doctrine does not have much force of its own. Courts deploy it or ignore it as they wish and use it only if they are predisposed not to enter into a controversy.

Justice William F. Brennan gave the standard formulation of the political question doctrine in Baker v. Carr, describing it as “a function of separation of powers.” His detailed definition could justify dismissing education reform litigation for many reasons, among them “a lack of judicially discoverable and manageable standards for resolving it … or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” For advocates of judicially imposed reform, “judicially manageable standards” has been a long-standing obstacle, as it requires that there actually be a solution. If courts do not think that they have a manageable solution, institutional self-interest can restrain them. In San Antonio Independent School District v. Rodriguez, a Supreme Court case on equity of school finance, Justice Lewis F. Powell in 1973 cited the lack of judicially manageable standards as a reason for leaving the issue to elected bodies.

The lack of manageable standards has been a continuing source of frustration for education reform litigants. The standard of equal spending ultimately proved unattractive to plaintiffs since it provided powerful incentives to simply reduce spending for everyone. Justiciability here faced both legal and political obstacles: equal spending failed to promise more money for the poverty populations of central cities, where per-pupil expenditures were often relatively high (see “Educational Jujitsu,” features, Fall 2002). Arguments for anything more than equal spending seemed devoid of precise content or guidance. The solution to the dilemma came courtesy of the standards movement. According to Rebell, the standards movement “provided the courts with practical tools for developing judicially manageable approaches for implementing effective remedies.” All that remained was marrying standards to the idea of adequacy. Adequacy tied to standards solves the legal and political problems of justiciability.

Defining Adequacy

In Rose v. Council for Better Education the Kentucky Supreme Court established an “operative definition of adequacy,” which other state courts have since “adopted,” according to Rebell. The court concluded that an adequate education requires among other things “sufficient oral and written communication skills” for functioning “in a complex and rapidly changing civilization,” “sufficient knowledge of economic, social and political systems to enable the student to make informed choices,” and a “sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage.” Since the Kentucky court did not mandate a specific set of reforms, this broad definition is more political rhetoric than a reasonable judicially manageable standard. Leaving aside the inherent ambiguity of terms such as “sufficient,” “informed,” and “grounding,” the court’s definition in fact assumes that in a complex and rapidly changing society the skills needed, and therefore constitutionally required, will change as well.

On close inspection it becomes clear that there is no evidence of inadequacy without evidence of inequity. Two prominent and recent adequacy cases—from New York (Campaign for Fiscal Equity v. New York) and Kansas (Montoy v. State)—show that when courts attempt to overcome the problem of justiciability either they will founder trying to establish what an adequate education actually is or they will retreat to the legally safe but politically dangerous standard of equity.

In CFE v. New York, Judge Leland DeGrasse ruled that an adequate education included the “foundational skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment,” the “intellectual tools to evaluate complex issues, such as campaign finance reform, tax policy, and global warming,” the ability to “determine questions of fact concerning DNA evidence, statistical analyses, and convoluted financial fraud.” These requirements are frustratingly vague, a fact DeGrasse inadvertently demonstrated when arguing that New York City’s public schools were inadequate.

When marshaling evidence for inadequacy, DeGrasse looked at what he called the “inputs” and “outputs” of the system. The inputs were “the resources available in public schools” and the outputs were the “measure of student achievement.” Evidence for the inadequacy of the inputs was based solely on equity. For example, New York City teachers were found on a variety of levels to be inferior to their statewide counterparts. DeGrasse was also unable to present any independent standards of inadequacy when discussing outputs. New York City public schools have lower graduation rates and test scores than other New York schools. This is at best a demonstration of inequity.

Socioeconomic factors initially seem to offer a way out of this dilemma. DeGrasse offers a very grim picture of the socioeconomic condition of New York City public school students. They suffer from poverty, homelessness, poor health, teen pregnancy, and frequent change of residence. Such obstacles raise the question of whether the lower “outputs” of the school system are the result of inadequate “inputs.” DeGrasse seems to make the case that the quality of the New York City schools is not to blame. The state’s highest court, the Court of Appeals, apparently recognized this even as it approved DeGrasse’s ruling, stating, “Decisions about spending priorities are indeed the Legislature’s province, but we have a duty to determine whether the State is providing students with the opportunity for a sound basic education. While it may be that a dollar spent on improving ‘dysfunctional homes’ would go further than one spent on a decent education, we have no constitutional mandate to weigh these alternatives.”

In Montoy v. State, the Kansas Supreme Court blurred the line between equity and adequacy even more. The Kansas legislature allowed a variety of different taxes based on local circumstances such as high cost of living, low enrollment, and extraordinarily declining enrollment. But the state supreme court struck all of these down because of their “disequalizing effects.” Normally such accommodations would be allowed under rational basis scrutiny, but the court objected because they could possibly lead to unequal amounts of spending. The supreme court did state that “once the legislature has provided suitable funding for the state school system, there may be nothing in the constitution that prevents the legislature from allowing school districts to raise additional funds for enhancements to the constitutionally adequate education already provided.” However, the court gave no indication at what point “suitable funding” would be reached such that some school districts could spend more than others. For the time being, the court is demanding more spending alone to equalize expenditures across school districts.

The adequacy advocates driving the litigation have searched along with the courts for conceptual foundations. Rebell says that a “core constitutional concept” has emerged from recent adequacy lawsuits. This concept, he says, “emphasizes that an adequate education must (1) prepare students to be citizens and economic participants in a democratic society; (2) relate to contemporary, not archaic educational needs; (3) be pegged to a ‘more than minimal’ level; and (4) focus on opportunity rather than outcome.”

These components are hopelessly unclear. For instance, to explain the meaning of “to be citizens and economic participants in a democratic society” he says that “there is widespread agreement that an adequate system of education is one that ‘ensures that a child is equipped to participate in political affairs and compete with his or her peers in the labor market.’” As evidence of this agreement, he quotes the Vermont Supreme Court’s opinion in its largely equity-,  rather than adequacy-based decision, which held that the state constitution guarantees “preparation ‘to live in today’s global marketplace.’” The idea that education should “relate to contemporary, not archaic educational needs” means that as “the level of skills necessary to participate as a citizen and as a wage-earner in society rise, expectations for an adequate education will also necessarily rise.” Defining a generality with more generalities does not make a generality more precise. Thus, adequacy advocates turn to money. The courts ensure “the availability of essential resources.” As CFE v. New York shows, the easiest way to gauge “essential resources” is by comparison with other school districts.

Constitutional Language

The state constitutions’ education clauses also raise questions about the appropriateness of judicial intervention based on separation of powers. However, the language is unlikely to undermine the movement as the political question doctrine potentially could. The notion that the constitution requires an “adequate” education is politically popular. But that does not mean that the interpretation is proper.

State education clauses are characterized by generality and often by their delegation of authority to the legislature. Some clauses simply require free public schools. Others imply a standard of quality such as “thorough and efficient” or of “high quality.” The strongest give education a special status, calling it “fundamental” or “primary.” While scholars and activists have made much of these differences, constitutional language has had little apparent influence on state courts. Adequacy suits have failed in states with stronger language such as Maine and Illinois, but won in states with weaker language such as North Carolina and New York. The reason is the distinctions between weak and strong education clauses have been too finely drawn. It is not unfair to call all of them, as Clayton Gillette has, “inherently nebulous.” What for instance does it mean to say that education is a “primary” obligation of a state? How does one know when the state has not made it a “primary” obligation?

The obvious question is whether it is appropriate for the judiciary to find the standards that it imposes on legislatures in these generalities. In states that have rejected adequacy suits, the courts’ analyses have hinged on the inherent arbitrariness of finding a specific standard and the unconstitutionality of applying a static interpretation on clauses whose meaning must evolve. The Illinois Constitution, with one of the most demanding education clauses, says that the state must “provide for an efficient system of high quality public educational institutions and services.” But twice the court held that “[i]t would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense.”

Since education clauses provide little textual substance, it is unsurprising that their analysis by courts is occasionally nothing more than a bald assertion obscured by fallacious reasoning. In Abbeville v. State from South Carolina, the state supreme court simply asserted that the education clause, in spite of its lack of qualitative language, must have a qualitative component. In CFE v. New York, another state with a spare education clause, Judge De Grasse without apology explained that in education litigation courts “are called on to give content to Education Clauses that are composed of terse generalities,” which in New York’s case is “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” From that clause, De Grasse determined that the New York City schools were unconstitutional in everything from library expenditures to arts courses. The judge had become completely unmoored from the text and was sailing in purely policy waters.

Policymaking in the Courts

Despite the assurances of adequacy advocates that courts now have the tools necessary for implementing effective reforms, there are reasons for skepticism. For one, there is a well-developed body of literature documenting the institutional difficulties that courts have in creating social change, beginning with Donald Horowitz’s pioneering book of 1977, The Courts and Social Policy. This literature grew up around the study of federal courts, and to the extent that state courts are beginning to behave like federal courts, much of it applies. Horowitz said that litigation is a poor vehicle for making policy because among other things the adversarial format produces unreliable information and artificially isolates issues that are connected in the real world. Examples of these problems can be found in adequacy litigation.

An example of judicial action with inadequate information is to be found in Kansas, where a willfully blinkered court chose to rely on one consultant’s study, by the firm of Augenblick & Myers (A&M), in ordering how much the legislature should appropriate. In Montoy v. State, the Kansas Supreme Court said it would be guided by the A&M study because 1) it was “competent evidence presented at trial”; 2) the legislature “maintained the overall authority to shape the contours of the study”; 3) it was “the only analysis resembling a cost study” before the court; and 4) the state board of education and department of education had concurred with the results. The implication of this reasoning—other than that legislatures must follow the recommendations of studies that they commission—is that the court was unwilling to seek as much information as possible. The court assumed the reliability of the study and impugned the motives of members of the legislature who disputed its findings. It repeatedly said that it must make its decision “based solely on the record before us,” an artificial but convenient standard peculiar to litigation.

A second institutional defect is that courts must isolate problems that are connected and need a comprehensive approach if they are to have any chance of being solved. Education is a broad and complicated area of public policy, which is intertwined with other broad and complicated areas of social policy. As courts look at the problems of education through the narrow lens of the legal process, their approach is inherently piecemeal.

A Radical Transformation Is Underway

If active and continuing judicial supervision of school spending were to be institutionalized, the result would be a radical—and unnecessary—revision of the American system for appropriating public funds. Judgments of courts in combination with a new industry of costing-out consultants would be substituted for the bargaining and mutual adjustment—that is, the politics—of state legislatures. Indeed, this new day has already dawned, according to a presentation that the financial consultant John Myers made to the National Association of State Budget Officers in the summer of 2005. “Historically, adequacy was determined politically using input measures and available resources,” he said. “Now adequacy is technically determined and output orientated.”

If money—and money alone—were all that is required to educate the nation’s children, and if courts alone could provide the money, then perhaps one would be willing to entertain, if only for a fleeting moment, this constitutional departure. But then one would recall that other public functions exist, such as health, transportation, and higher education, that make large and urgent claims on the budgets of state governments; that problems other than a lack of money afflict the schools, such as students who arrive unprepared for learning or life in a classroom; and that evidence for the efficacy of money per se is at best mixed. One might then be less willing to have the core institutions of democratic government cast aside.

The adequacy movement would like to secure a foundation in federal law for its claims. This might be done by importing, via amendments to the No Child Left Behind Act, some of the rights language produced by state courts. “We want to see the issue of equity on the national agenda,” Arthur E. Levine, then president of Teachers College of Columbia University, told an interviewer in 2005. Rebell has moved to Teachers College to direct its equity campaign. A West Coast branch of the movement has set up operations as the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the school of law at the University of California, Berkeley. One of its initial projects in 2004–05 was to convene an interdisciplinary working group called “Rethinking Rodriguez: Education as a Fundamental Right.” The aim was to inquire into what would be required to make education a fundamental right—“that is, a right belonging to all children, protected by an enforceable guarantee of ‘adequacy’ or ‘equality’ or both.”

The successes of the adequacy movement in state courts thus are to be seen as stepping stones to the broader arena of national legislation and litigation. If the adequacy-cum-equity advocates succeed—wedding centralization and judicialization in a regime of a federally guaranteed right to education and federally prescribed school spending—transformation of the traditionally local and democratic governance of schools in the United States, already far advanced, will be complete.

Josh Dunn is assistant professor, the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus, the University of Virginia. The unabridged version of this essay is available in Martin R. West and Paul E. Peterson, eds., School Money Trials: The Legal Pursuit of Educational Adequacy, forthcoming from the Brookings Institution Press.

One case before the Court is from Seattle, which has a policy of open choice for high-school attendance and uses race, along with other factors, as a tiebreaker when demand exceeds the number of spaces available. The goal of the policy is to assure that no school deviates by more than 15 percent from the district’s overall racial composition, which is 60 percent minority (African American, Asian, and Hispanic).

The other case is from Jefferson County, Kentucky, which includes Louisville. There the school board tries to keep black enrollment in most schools in the range of 15 to 50 percent by encouraging or compelling white students to attend schools in black neighborhoods and vice versa. The district, which has a black enrollment of approximately 36 percent, is unusual in that it includes suburbs as well as the central city. Its ambitious policy was framed, unlike Seattle’s, against a background of judicially mandated integration. Both suits were brought by white parents whose children failed to get into the school they sought.

To survive, racial preference policies must pass “strict scrutiny,” the Court’s most exacting level of analysis. Racial classifications are “inherently suspect” and thus must be narrowly tailored, serve a legitimate governmental interest, and use the least restrictive means possible. Federal circuit courts upheld both of the challenged plans.

Liberals fear and conservatives hope that the reconstituted court of Chief Justice John G. Roberts will rule against racial preferences. In a different context, Roberts has already shown an aversion to racial classification. In a voting rights case from Texas, he wrote, “It is a sordid business, this divvying us up by race.” Samuel Alito is widely expected to be more skeptical of racial classification than the justice whom he replaced, Sandra Day O’Connor. She was the swing vote and wrote the opinion in Grutter v. Bollinger (2003), in which the Court upheld narrowly tailored affirmative action in higher education. Even if the Court should reject affirmative action, that would not invalidate existing lawsuits that are based on claims of unconstitutional racial segregation. Federal judicial decrees that mandate integration remain in effect in approximately 300 districts, enforced by the Justice Department’s Civil Rights Division and the issuing courts. These are only the desegregation cases to which the United States is a party. When we queried the Department of Justice, we were told that it would be hard to determine the total number of active desegregation cases.

American parents like to choose where their children go to school. Those who are able have ordinarily done this by selecting their residence, given the long tradition of geographically defined districts and limited opportunity to cross district boundaries. But choices are multiplying. All states but Alabama, Maryland, North Carolina, and Virginia have open enrollment laws that offer varying degrees of intra- and interdistrict choice. The No Child Left Behind Act requires districts to offer choice to children in schools found to be failing. Magnet schools, charter schools, and vouchers have proliferated. Underlying the affirmative action cases is the question: to what extent should the widening scope for choice be regulated on racial grounds?

If the Court rules against affirmative action, the local districts that practice it will be compelled to search for race-neutral methods of pupil assignment. This may mean a return to geographic districts, with results that will depend on residential patterns and the politics of line drawing in particular cities. Insofar as school boards offer choice, which we would expect to be a popular position for them to take, a race-blind lottery could be a fair, practical, and constitutionally acceptable way to allocate spaces in oversubscribed schools.

Josh Dunn is assistant professor, the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus, the University of Virginia

Not surprisingly, this new form of school is leading to new legal questions. Lawsuits brought against virtual schools have ended with victories for the defendants in Pennsylvania in 2003 and in Minnesota in 2005. Two recent cases in Wisconsin have had the same result.

Wisconsin has been hospitable to educational choice. State law authorizes charter schools as well as enrollment outside of a student’s district of residence, provisions that together have made virtual schools possible. First to open was the Wisconsin Connections Academy (WCA), established in 2002 under a partnership between the Appleton Area School District and Sylvan Learning Systems. Two years later, the Northern Ozaukee School District started the Wisconsin Virtual Academy (WIVA), which adopted a package developed by K12 Inc., a company founded by former U.S. education secretary William J. Bennett to provide products for virtual schools. Students can come from anywhere in the state, and the sending district reimburses the receiving district.

The state’s largest teachers union brought suit against both schools. In both cases the union claimed that the sponsoring districts had violated charter law by enrolling students who were not physically attending their schools. The union also claimed violations of open-enrollment law. In the first case, filed in Dane County circuit court, the complaint was that the more than $5,000 per pupil reimbursement to the Appleton district was excessive because it was based on the cost of a traditional rather than a virtual school. In the second case, filed in Ozaukee County’s circuit court, the union complained that the open-enrollment law, like the charter law, permitted only actual attendance in the physical facilities of the receiving district. Both judges dismissed these claims. In the Dane case, an appeal failed.

In the Ozaukee case, which was decided in March of 2006, the union also advanced a wholly new claim: that parents, who play a large part in supervising instruction in virtual schools, are not licensed teachers, as required by Wisconsin law. On this issue as well, the judge ruled against the union. Although the state department of education was a defendant in the case, it sided with the union on this issue.

Union concerns presumably go beyond the legal arguments. The student-teacher ratio for virtual schools is much higher than the ratio for “brick and mortar” schools, so virtual schools threaten to reduce employment. Also, teachers, like the students, can work from their own homes instead of school buildings, which might tend to weaken the solidarity of the unionized work force.

In addition to teachers unions, the Home School Legal Defense Association (HSLDA) has opposed virtual schools. The HSLDA calls virtual schools a “Trojan horse” and an “attempt by the government to create small public schools in our homes.” Many home-schooling parents apparently do not agree. They like the idea that they can get a return on their tax dollars while still shaping their own child’s education. For the HSLDA, however, this can mean that parents no longer have an incentive to join their organization. In 2006, approximately 50 percent of WIVA students came from home-schooling backgrounds.

Enrollment in virtual schools remains small—in Wisconsin, a mere 1,460 students in 2004–05. But the numbers are increasing, and we know of no state in which a court decision has gone against virtual schools. As traditional schools increasingly allow students to supplement coursework with online classes, they erode the basis for opposition to virtual schools. If a virtual class works, why not a virtual school? If a student can learn Latin “virtually,” why not English, science, and history?

Josh Dunn is a professor at the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus at the University of Virginia.

The court had no choice but to enter Florida’s school voucher wars. In 1999 the legislature had created the Opportunity Scholarship Program (OSP), which allowed students in failing K–12 schools to transfer to better public schools or to private schools with the aid of state funds. Organized teachers, school boards, and other voucher opponents brought suit. Several years of wrangling in the state’s lower courts culminated in an appellate decision that the OSP was unconstitutional. The state supreme court was obliged to hear an appeal.

To strike the program down, as happened in January in Bush v. Holmes, the court had to do two things. It had to find that the state’s constitution prohibits the use of public funds in private schools. That was the key issue. And, to avoid a bruising political battle, it had to distinguish the OSP from other, quite similar but very popular state programs that seemed to be indistinguishable in principle. With tortured logic, the court went to work.

The court focused on an article in the Florida constitution stating: “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools.” It interpreted this to mean that “free public schools” shall be the sole way in which the state provides for children’s education, although that is not what the constitution says. Seizing also on the requirement of uniformity, the court asserted that private schools are not uniform when compared with each other or with the public system. But the uniformity clause, whatever it may mean, clearly applies only to public schools.

In a brief section near the end of its opinion, the majority conceded that sometimes public spending in private schools is permissible. The court claimed that other Florida programs that permit such spending “are structurally different from the OSP, which provides a systematic private school alternative to the public school system.…”

But we detect no “structural” difference between the operation of the OSP and—as a leading example—the state’s McKay program for disabled students, which began on a pilot basis in 1999 and as of the fall of 2005 was enrolling more than 16,000 students in private schools. In the case of the OSP, parents of children in schools that received failing grades in two out of four years were entitled to receive public funds to pay tuition at a private school. In the McKay program, parents dissatisfied with the offerings of particular public schools are entitled to move their children to other public schools or to receive public funds for use in private schools.

Of the two programs, the OSP could be thought the more threatening in the long run to the public monopoly of K–12 education. Though small, with a mere 763 students, and used almost entirely by African American and Hispanic students—in contrast to McKay’s 50 percent enrollment of whites—the OSP was growing, and the court alluded to its “unlimited” potential for future growth. Also, it began with identification of failing schools rather than handicapped students, and that too, made it more threatening. Programs for a defined population can be confined—and perhaps also can more readily be grounded in a claim of rights or of equal protection. Programs that arise from failing schools are of unpredictable dimensions and are more tied to the values of “choice” and “privatization.” To plaintiffs, certainly, and apparently also to the court, the OSP had the look of a “systematic” threat to public schools that needed nipping in the bud.

-Josh Dunn is an assistant professor of political science at the University of Colorado–Colorado Springs.

-Martha Derthick is professor emeritus of American government at the University of Virginia.

Kitzmiller was launched after the school board in Dover, a town outside Harrisburg with just 3,600 students, voted to require the district’s 9th-grade biology teachers to read to their students a four-paragraph statement advising them that evolution is a theory, “not a fact.” The board told teachers to refer students to Of Pandas and People, a text favored by many creationists that defines ID as the belief “that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact—fish with fins and scales, birds with feathers, beaks, and wings, etc.” A more usual definition holds merely that ID finds some organic matter to be of “irreducible complexity” and thus not explicable as a product of evolution.

Eleven local parents (one named Kitzmiller) sued, with help from the American Civil Liberties Union, Americans United for Separation of Church and State, and an elite Philadelphia law firm, Pepper Hamilton. The suit claimed that the board’s action violated the First Amendment ban on establishment of religion.

The defendants were badly beaten on every front. In November, soon after the six-week, non-jury trial ended, the Dover electorate voted eight of the school board’s nine members out of office. The following month they were beaten again by Judge Jones, whose 139-page opinion called the board’s ID decision religiously motivated and accused it of “breathtaking inanity.” Jones said that ID was not science. He also ordered that the school district pay the plaintiffs’ legal costs. Pepper Hamilton hinted that it might send bills to individual board members who voted for the ID statement.

The defeats, along with the turmoil caused by hordes of reporters from far-flung places, are likely to make other local boards hesitate before raising even timid questions about evolution. At the least, a prudent board might want to have the backing of the Discovery Institute, a Seattle-based nonprofit and a principal proponent of ID, which had distanced itself from the Dover  defense, perhaps anticipating the loss. The defendants were instead represented by Richard Thompson of the Thomas More Law Center of Ann Arbor, Michigan, which is dedicated to protecting the religious freedoms of Christians.

Earlier in the year a Cobb County, Georgia, school board was similarly rebuffed by a federal district judge. The Georgia board had ordered that a sticker be attached to biology textbooks stating, “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.” The judge in that case ruled that the statement was an unconstitutional endorsement of religion because it was supported by religious opponents of evolution. Unlike Dover, however, the Cobb County board survived to file an appeal, which was being heard by the 11th Circuit as Jones handed down his opinion.

Will there be fresh lawsuits in the wake of Kitzmiller? The victors appear ready to turn to state school boards, where proponents of ID have made the most headway. State boards in Kansas and Ohio, among others, have adopted science standards that call for critical analysis of evolution. The day after Jones ruled, the Cleveland Plain Dealer reported that Americans United had obtained boxes of records from the Ohio Department of Education and was threatening a lawsuit. “We hope Ohio takes notice and cleans house,” said an official of Americans United.

There remains the question of what the litigation, no matter the outcome or opinions, means for science education, and beyond that whether science education has much effect on what Americans believe. Polls show that an overwhelming majority of Americans believe in a providential being and are skeptical about evolution. Critics of evolution seem to be fighting a battle that they have already won.

-Josh Dunn is assistant professor of political science, the University of Colorado–Colorado Springs.

-Martha Derthick is professor emeritus of American government, the University of Virginia.