New Article: William S. Koski, Beyond Dollars? The Promises and Pitfalls of the Next Generation of Educational Rights Litigation, 117 Columbia L. Rev. 1897 (2017). Abstract below:
With recent rejections of plaintiff challenges in Colorado, Texas,
and California, and continued battles over implementation of court
orders in Kansas and Washington, state court judges may be sounding
a cautious note on the limitations of the almost half-century-old
educational finance reform litigation movement. Undeterred, advocates
for economically disadvantaged schoolchildren have not abandoned the
judiciary as an institution for advancing educational rights and
equality of educational opportunity. Rather, they have begun to retool
their strategies to make their claims more palatable to a wary judiciary
by targeting specific educational resource deprivations and advancing
promising educational interventions on the one hand, or challenging
the regulatory and policy barriers to greater family choice and administrative
discretion on the other. This Essay examines these new litigation
strategies and explains why plaintiffs might feel that these more targeted
lawsuits will receive a better reception in the courts. But there is more
going on here than legal strategy. This “next generation” of educational
rights litigation is also a manifestation of the political and policy rift in
the education policy arena between those who blame poor student
performance on systemic failure to provide students with equitable and
adequate resources and those who emphasize the inefficiency of state,
local, and collectively bargained policies that stifle administrative
discretion and family choice. Armed with hotly contested social science
research on both sides, advocates are asking the courts to dive deep into
some of the most difficult ideological and empirical educational reform
questions of today. This Essay will highlight several of these “nextgeneration”
cases in order to demonstrate how the policy divide is spilling
into the courts and to caution advocates and courts alike on the
risks of narrow understandings of the causes of educational failure and
how to address it. This Essay also calls for pragmatic expectations for
the next generation and continued attention to educational finance
adequacy and equity.
Poverty Law 