Sustaining Success: The Court’s Role in Education Adequacy

Despite a number of recent publications criticizing the role of the courts in education adequacy litigations, Michael A. Rebell, Executive Director of the National ACCESS Network, assured the audience of the 2008 Quality Education Conference that the adequacy movement is alive and well. Plaintiffs have, in fact, prevailed in over 70% of the basic liability decisions, according to Rebell, and the increased critical scrutiny is an indication that the impact of these victories is of growing significance. Rebell stressed that most of the recent plaintiffs’ losses which are cited by the critics, occurred at the trial level. This is consistent with the historical pattern that major new constitutional pronouncements originate with the highest state courts.

Rebell also emphasized that out of the 28 adequacy cases identified on the Access website, plaintiffs have lost only eight, and seven of these cases were dismissed on justiciability, or separation of powers grounds. This means that in virtually every instance in which the highest state court did examine the evidence, plaintiffs have prevailed. He also noted that the vast majority of state courts have easily dismissed justificability arguments, and have emphasized the courts’ constitutional responsibility to review allegations that the state has failed to abide by the requirements in the state constitution’s education clauses.

Rebell stressed the importance of the courts retaining jurisdiction during the remedy stage. Citing the writings on comparative institutional analysis of Prof. Neil Komesar, he said that critics of “judicial activism” often fault courts for not solving overnight difficult social problems that the legislative and executive branches have failed to resolve for decades. The only way effective and sustainable educational progress will be obtained, he said, is if the three branches of government work jointly to bring about constitutional compliance. Each branch should undertake those functions for which it is best suited. According to Rebell, the courts’ comparative functional advantages lie in its principled approach to confronting basic problems and in its “staying power” to insure that promised reforms are actually implemented and maintained.

Rebell also noted that federal precedents on the remedial powers of the courts are often in apposite in the state context. Whereas federal constitutional rights are stated in negative terms that limit the extent of judicial involvement, guarantees of educational adequacy in state constitutions are generally positive rights that require more extensive judicial oversight.

Prepared by Marcela Briceno, July 14, 2008