Court-Driven Reform and Equal Educational Opportunity: Centralization,Decentralization,and the Shifting Judicial Role

The command and control of desegregation

Desegregation is perhaps the most major and well-known example of court-driven reform in education, and the literature examining desegregation showcases how courts can employ a command-and-control approach to affect educational governance in cases involving large-scale reform aimed at equal educational opportunity. Although the U.S. Supreme Court has made the most major rulings over the past 50 years in desegregation and has been the primary governmental institution responsible for enacting changes in interpretations of the Constitution to drive desegregation, federal district courts also have been charged with overseeing desegregation at local levels (Guthrie & Springer, 2004).

From a governance perspective, desegregation generally involves the centralization of authority, which is a primary element of the command-and-control role. When courts have ordered desegregation, they have generally used their power to remedy unconstitutional actions occurring at the local district and school levels and often sanctioned by law at the state level (Armor, 1995). As courts assert their legal authority in this fashion to leverage desegregation, they centralize the power to make decisions about equal educational opportunity in institutions that are sometimes both geographically and institutionally distant from local levels where this change is to occur (Crain, 1969). So early desegregation cases such as Brown represent instances in which a powerful court (the U.S. Supreme Court) asserted its authority to effect educational reform and effectively centralized a good deal of authority in itself to act as a manager or commander of reform. Where district courts issue rulings in desegregation cases, authority is not located as far away as the Supreme Court. But authority is still centralized in these cases in institutions with a broad jurisdiction that are guided by the rulings of the Supreme Court (Orfield, 1999). Indeed, as discussed below, district courts became deeply involved with the details of local desegregation efforts.

Despite the centralization of power embodied by Brown, the reallocation of decision-making authority and commands from the courts alone were not sufficient to effect significant desegregation. The decade that followed Brown was marked by the era of “massive resistance.” As southern politics moved far to the right, courts made very little progress desegregating schools (Orfield, 1969). Although local political resistance to court orders explains much of the failure to desegregate, the Supreme Court’s legal approach to wielding its power contributed to this failure as well (Chemerinsky, 2003). For example, in Brown II (1955), the Court vaguely ordered desegregation “with all deliberate speed,” which effectively placed the legal power to determine the rate of desegregation with localities (Massey & Denton, 1993).

In the years following the initial decade after Brown, however, federal governmental institutions increasingly centralized their authority over desegregation and demonstrated a markedly increased willingness to enforce their orders. During the late 1960s, the legislative and executive branches complemented judicial action by intensifying their efforts to desegregate schools—the passage of the Civil Rights Act (1964) and the Elementary and Secondary Education Act (1965), along with the willingness of the Johnson administration to enforce these laws and withhold federal funds where necessary, dramatically sped the pace of desegregation through the early 1970s (Rebell, 2007). The legal mandates emerging from the courts around the same time similarly reflected a commitment to further cementing authority at the federal level and marked the development of the courts’ command-and-control role. With its decision in Green v. County School Board (1968), the Supreme Court established specific standards or indicators for measuring a school system’s success in creating a desegregated school system—under Green, schools must be desegregated with regard to facilities, staff, faculty, extracurricular activities, and transportation to achieve unitary, or legally integrated, status. Moreover, with its decision in Swann v. Charlotte-Mecklenburg Board of Education (1971), the Supreme Court endorsed busing as an appropriate remedy for addressing racial imbalances in schools.

In light of this more precise guidance from the Supreme Court, several federal courts began to issue increasingly specific commands to local school districts. To desegregate schools, district courts crafted orders addressing a range of very specific issues, such as racial quotas, ratios of minority to nonminority students, attendance zones, student transportation, student transfers, faculty and staff desegregation, new school construction, the development of committees, and the issuance of detailed reports and timetables (McUsic, 2004). Moreover, although the courts began to withdraw from desegregation in the 1970s (as discussed below), much of their attention in this area shifted from integration to increasing academic quality—where desegregation appeared unattainable, direct educational improvement seemed like an acceptable and appropriate alternative remedy (Orfield, 1996). But once the courts viewed the improvement of educational quality as a remedial goal, almost every aspect of educational policy became relevant to remedies. As a result, consent decrees often took the form of highly detailed regulatory codes embracing vast provinces of administration (Sabel & Simon, 2004). Commenting on this trend, Moran (2004) argued that court-driven reform in desegregation degenerated into “legal formalism” as the courts managed not just the trajectory of reform but a broad range of specific details as well.

However, beginning in the 1970s, the courts’ involvement with desegregation shifted as the courts began to issue rulings that made it more difficult to desegregate schools. The courts’ approach to educational governance and its growing command-and-control role particularly reflected this change. In Milliken v. Bradley (1974), the Supreme Court ruled that remedies extending across district lines needed to be supported by evidence that both districts had intentionally engaged in segregation. Supporting its reasoning, the Court underscored the value of local control to make decisions in matters of educational policy—as the Court has repeatedly stated, educational policy has traditionally been a local concern, and localities should be afforded the leeway to devise solutions to educational problems where the best solution is far from clear (Ryan, 1999b).

This emphasis on local control in judicial opinions extended through desegregation cases in the following decades, and a number of researchers have focused on the ways in which three desegregation cases in the 1990s— Board of Education v. Dowell (1991), Freeman v. Pitts (1992), and Missouri v. Jenkins (1995) —limited the remedial obligations of school districts found to have unconstitutionally segregated schools based on the logic of local control (e.g., Chemerinsky, 2003; Siegel, 2006). As at least a partial result of such cases, district courts labeled several school systems “unitary,” or legally integrated, and segregation increased dramatically in these systems (Boger, 2000). As discussed below, the Court’s decisions in Parents Involved in Community Schools v. Seattle School District No. 1 (PICS, 2007) also made it more difficult for localities to eliminate segregation in part based on similar reasoning.

The courts’ shedding of the command-and-control role in desegregation appears to be based on several complex factors that intertwined with the stated emphasis on local control. The personal political preferences of the judges appointed to the Supreme Court beginning in the 1970s likely affected the Court’s attitude toward allowing district courts to continue managing desegregation (Pullin, 2007). Because courts have relatively few resources available to them in terms of funding, personnel, and expertise, they generally lack the institutional capacity to effectively manage the local implementation of desegregation and enforce their orders beyond issuing commands from the courthouse (Heise, 2002a; Klarman, 2004). Moreover, residential housing patterns, which strongly influence school attendance patterns, generally fall outside the courts’ jurisdiction and control (Heise, 2004). Indeed, the courts appeared to grow weary of the difficulties they continually faced as they unsuccessfully attempted to desegregate local school systems with increasingly precise orders (Moran, 2000).

Perhaps just as importantly, political and social attitudes toward desegregation efforts began to dramatically shift in the 1970s. As an increasing number of communities, including those outside the South, were targeted by desegregation efforts, these communities began to pressure their congressional representatives and the Nixon administration (Johnson, 1977; Wirt & Kirst, 1989). These efforts led to more limited and sometimes conflicting policy responses from the legislative and executive branches. At the same time, the political turmoil and resistance from local districts to desegregation orders had a significant impact on judicial willingness to continue to manage the desegregation of school systems, and the discretion accorded to lower courts allowed some judges the ability to delay compliance with Supreme Court mandates (Nystrand & Staub, 1978). As a result of the doctrinal commitment to desegregation along with such political and social shifts, the principles underlying judicial decisions became difficult to reconcile—although the Supreme Court clearly began to limit the scope of student assignment remedies, it also expanded the scope of other educational reform remedies, such as those aimed generally at increasing educational quality for minority students (Vergon, 1990).

In short, once the courts became actively involved in desegregation in the decade following Brown, they largely adopted a command-and-control role based on a very centralized vision of reform and governance. In an attempt to desegregate schools in the face of local political resistance, the courts became involved in the details of reform to an extent that they were not able to manage effectively. In light of factors such as local resistance, their own managerial and technical incapacities, and the inability of the law to reach important areas requiring attention for effective desegregation, the courts withdrew from desegregation. In doing so, the courts actively claimed that they did not have the ability or authority to continue managing reform in this fashion by highlighting the importance and legitimacy of local control. And so although the courts succeeded in eliminating formal segregation by law, schools are still left highly segregated and are resegregating (Wells, Holme, Revilla, & Atanda, 2004).

The command and control of school finance reform

Appearing in the wake of desegregation litigation, school finance reform litigation emerged in the late 1960s and early 1970s and has become one of the most important and pervasive types of educational reform in the United States. Since school finance litigation began, it has proven to be a very popular strategy for educational reform—school finance lawsuits have appeared in 45 states, and plaintiffs have prevailed in 26 of the 45 cases that have resulted in a judicial decision (Koski, 2007). As local wealth or property value has traditionally been one of the primary determinants of school funding, there have often been significant per pupil spending differences across school districts and states (Enrich, 1995). Plaintiffs in school finance litigation have generally aimed at reforming this funding structure by equalizing and augmenting educational funding allocated to the education of students in less wealthy districts (Liu, 2006).

Observers have characterized school finance litigation as appearing in three different “waves” (Thro, 1989). Under the first wave, reformers litigated their cases in federal courts and primarily argued that educational funds must be provided equally to all students under the Equal Protection Clause of the U.S. Constitution. However, in San Antonio Independent School District v. Rodriguez (1973), the Supreme Court found that the Equal Protection Clause of the U.S. Constitution does not provide a valid basis for challenging educational funding disparities from district to district—the Court’s opinion generally highlighted the notion that states and local school boards are better positioned than other institutions to set educational policy and that the Supreme Court should not overturn the decisions of these institutions. In the second wave, reformers litigated their cases in state courts and primarily argued that educational funds must be provided equally to all students under the equal protection clauses of state constitutions (Williams, 1985). However, experiencing limited success (as discussed further below), reformers initiated third-wave litigation (Heise, 1995). Third-wave cases also appeared in state courts but primarily involved arguments that educational funds must be used to provide students with “adequate” educations under “education” clauses of state constitutions (which provide that states must provide for a “thorough and efficient” education system or something similar; First & Miron, 1991).

As in desegregation litigation, plaintiffs’ victories in school finance litigation have generally involved the centralization of authority. In such cases, courts intervene in financing systems traditionally characterized by local control of funds. Because these cases are generally appealed to state supreme courts, the judicial institution represents authority centralized in a small body at the state level (Ryan, 1999a). Moreover, unlike desegregation litigation in federal courts, school finance reform is a legislative process as well as a court procedure—courts generally find that school funding systems are unconstitutional and order the state legislature to make changes (McUsic, 1999). When a state legislature equalizes or increases funds, it also consolidates power—it takes funding determinations away from localities and centralizes it at the state level as well. In this sense, the judicial process resulting in decisions to equalize or increase educational funding in school finance reform litigation is generally not as centralized as in desegregation litigation. Although successful school finance reform litigation often centralizes power in state courts and legislatures, the centralization is not as strong as in the case of federal courts dealing with desegregation in the late 1960s and early 1970s because state legislatures become heavily involved in the reform process. Indeed, as discussed further below, courts have largely assumed the facilitator role in the context of school finance reform litigation.

Unfortunately, legal efforts at centralizing funding authority at the state level to reform school funding structures have yielded quite mixed results. Because courts have faced much difficulty defining “equality” and expressed that making such decisions would require them to delve too deeply into the inner workings of local schools, many courts refused to equalize educational resources in second-wave lawsuits (Enrich, 1995). Even where plaintiffs prevailed in these lawsuits, courts crafted vague remedies and legislatures faced strong pressure from wealthy local districts not to interfere in the governance of schools. As a result, legislatures often failed to act even under court order, and where they did, equalization of funds sometimes resulted in low overall spending levels and rarely improved student achievement (Joondeph, 1995). Although third-wave cases have been more successful both in the judicial and legislative arenas, this centralization of funding has still engendered significant political opposition around the principle of local control, and there is still limited evidence that restructured funding has improved student learning (Greene & Trivitt, 2008).

In light of such problems, judicial analyses and orders in some states have become increasingly detailed, and the courts in this field have begun to employ more of a command-and-control role than suggested by some researchers who have written specifically about recent judicial decision-making processes in this field, such as Liebman and Sabel (2003) and Sabel and Simon (2004). As noted by Reed (2001), although courts ruling in school finance cases have traditionally issued vague orders or guidelines to state legislatures about how they should restructure their funding systems, a small handful of courts have issued sets of rather precise orders about how to restructure funding across local districts (e.g., Abbott v. Burke, 1990) and have precisely indicated the factors that courts should consider when making decisions about how to restructure educational funding systems (e.g., Lake View School District No. 25 v. Huckabee, 2001; Montoy v. State, 2005). And as discussed by Umpstead (2007), although many courts have primarily focused on funding in such cases, several courts in the 1990s and 2000s have more recently examined the precise types of resources that additional funding can buy, such as qualified teachers and staff, school supplies, facilities repairs, and lower student–teacher ratios (e.g., Campaign for Fiscal Equity v. State, 2003; Campbell County School District v. State, 1998; Columbia Falls School District No. 6 v. State, 2005 ; DeRolph v. State, 1997; Lake View School District No. 25 v. Huckabee, 2002; McDuffy v. Secretary of the Executive Office of Education, 1993).

In addition to precisely examining what money can buy in school finance litigation, courts in at least eight states have focused their attention and remedial orders not simply on funding but on the value of precise uses of funding—as Superfine and Goddard (2009) noted, these courts have specifically ordered funds to be used for the implementation of standards-based accountability systems, class size reduction programs, whole school reforms, and free preschool programs for “at-risk” students ( Abbeville County School District v. State, 2005; Abbott v. Burke, 1998; Campaign for Fiscal Equity v. State, 2003; Campbell County School District v. State of Wyoming, 1998; Claremont School District v. Governor, 2002; Hancock v. Driscoll, 2004; Hoke County Board of Education v. State, 2000; Lake View School District No. 25 v. Huckabee, 2001). To be sure, lower courts (and not state supreme courts) have made many of these orders. However, crafting precise orders to implement such programs appears to be becoming an increasing prevalent strategy for helping to alleviate judicial concerns that localities will use equalized or increased funds in ways that will fail to consistently boost learning opportunities.

Despite the potential of adequacy litigation to at least augment the funding available to poor schools (and the effectiveness of funding) through the centralization of governance authority, several strong critiques of courts’ role in school finance reform remain. When the courts craft precise orders about funding instead of “blueprints” that establish broader funding principles, courts have faced limited success in reforming states’ funding systems and enhancing students’ learning opportunities (Reed, 2001). As similarly reflected in desegregation litigation, courts lack strong managerial capacities to ensure that their orders are faithfully implemented, and courts accordingly have overseen some school finance cases for decades that have not yielded fruitful results (Heise, 2004). Courts similarly lack scientific competence, which has prevented them from accurately construing the state of scientific evidence about the relationship between funding and student learning and the empirical underpinnings of particular reform strategies, such as preschool (Superfine, 2009). And although the state of scientific evidence about how to use funding effectively is growing (Pullin, 2007), there remains limited knowledge about how to craft effective policies that apply across a range of contexts from a centralized location (Raudenbush, 2005).

So although state courts have long leaned on state legislatures to facilitate school finance reform, this type of reform generally involves significant centralization of authority at the state level. Moreover, unlike federal courts involved in desegregation litigation, a growing handful of state courts involved in school finance litigation have acted to intensify their command-and-control role—although concerns about local control have consistently surfaced in school finance litigation and have influenced some courts to withdraw, some courts have responded to historical problems of failure to translate judicial orders in school finance cases into better educational opportunities by becoming increasingly involved in the details of school funding and the uses of schools funds. At the same time, school finance litigation has historically yielded mixed results at best. And although increasingly centralized reform certainly responds to some concerns that have plagued this reform effort, several concerns remain that significantly blunt the promise of the courts to act effectively when assuming a command-and-control role in this field.

Facilitating desegregation

As discussed above, the courts have primarily acted as managers when actively attempting to desegregate schools, and the courts withdrew from this role under the logic of the local control. Although the courts have faced many difficulties effectively desegregating schools, there have also been isolated cases of success. When the legislative and executive branches became actively involved in desegregation in the 1960s, and the courts were not the only governmental branch pushing for educational reform, desegregation proceeded rapidly (Rebell, 2007; Rosenberg, 1991). Moreover, the courts have more recently experienced success when they have opened up the judicial process to input by stakeholders affected by the litigation. As Dyson (2000) noted, some courts have extensively employed local citizen committees to help develop school desegregation remedies, monitor implementation, improve community relations, advise the judge, and serve as mediators in resolving disputes (e.g., Little Rock School District v. Pulaski Country Special School District No. 1, 1988; Morgan v. Nucci, 1985; Smiley v. Vollert, 1978; United States v. Mississippi, 1985). In the initial stages of crafting desegregation decrees, such committees particularly served as channels for the representation of African American citizens in a policy process that directly affected them.

Based on such cases, there appears to be a much greater potential for reform in desegregation litigation where courts broadly set important principles and community members undertake a significant amount of leadership (Rebell & Hughes, 1996). Desegregation specifically appears to have proceeded more effectively when courts have pushed members of the legal community to work with members of the local educational community to develop and implement decrees and to garner the support of political leaders. The history of desegregation in San Francisco in the wake of San Francisco NAACP v. San Francisco Unified School District (1983), a case setting forth a consent decree, particularly reflects the importance of involvement of stakeholder groups. Although the implementation of the consent decree was far from uniform, desegregation under it appears to have proceeded smoothly when the court facilitated reform by pushing stakeholders to hold meetings to address the salient issues and calling stakeholders into court on a regular basis to report on their progress (Bieler, 2008).

Still, it is worth noting that it may be difficult to implement this process effectively over an extended period of time. A court needs to ensure that the subtle range of opinion that exists within a community is appropriately represented and the capacities of citizen groups to develop and implement reform are not taxed as well (Huston, 1998). Moreover, courts need to remain deeply enmeshed with reform over the course of years, even though there may be judicial turnover (Bieler, 2008). And despite inevitable turnover of political and educational leadership, both of these communities need to stay involved and supportive of reform for extended periods of time as well. Given the difficulties of such involvement, Rebell and Hughes (1997) argued that courts have generally dissolved citizen committees once the implementation process was well underway, and it has proven extremely difficult to sustain involvement from all the different stakeholders through the years (e.g., Tasby v. Estes, 1982). As a result, effective efforts to desegregate schools without significant pressure from multiple branches of the federal government have largely been limited to the rare instances in which such involvement could be sustained.

Facilitating school finance reform

Although the courts have long relied on state legislatures to help reform state school financing systems and have sometimes tended toward a command-and-control approach, a handful of school finance cases reflect the judicial adoption of a facilitator role. Courts have primarily adopted this role in third-wave cases involving educational adequacy. In such cases, courts generally look to education clauses in state constitutions and find a broad legal right, which courts treat as a delegation of authority to the courts to act (Feeley & Rubin, 1998). Then, using “fuzzy standards,” derived from sources such as the language of the education clause, the history of the education clause, and the evidence from education experts introduced at trial, the courts spur other entities to address the problems (Koski, 2003).

The school finance litigation and resulting reform in Kentucky strongly reflect this type of action. In Rose v. Council for Better Education (1989), one of the first third-wave cases, the litigation was part of a strong political push from both grassroots and business organizations to reform the state’s education system. In its opinion, the Kentucky Supreme Court broadly defined an “adequate education” with reference to seven general capacities that students should attain, such as knowledge of economic, social, and political systems to enable informed choices, and ruled that the state legislature needed to develop and implement a remedy that would provide students with such an education. In response, the state legislature responded less than a year later by enacting the Kentucky Education Reform Act (1990), a law that restructured the state’s school finance system and created one of the first standards-based reform and accountability policies. Observers have specifically construed the court as a necessary component of reform as the institution that set the broad parameters of policy reform, provided political cover for the legislature to enact sweeping reform, and provided a focus for the political mobilization of grassroots and business organizations (Hunter, 1999).

Since the school finance litigation in Kentucky, courts hearing school finance cases have employed this approach to varying extents. As noted by researchers such as Heise (2002a), legislatively mandated state standards have played large roles in school finance litigation, often to help the courts define an “adequate” education (e.g., Campaign for Fiscal Equity v. State, 2003; DeRolph v. State, 2000; Hancock v. Driscoll, 2004; Leandro v. State, 1997). Drawing on these standards, courts have particularly focused on data from tests aligned to standards to find that states are not providing students with adequate education and requiring states to live up to expectations that they themselves have set, through financial means or through other educational policy reforms (Bieler, 2009). Moreover, as Superfine (2008) found, some courts have highlighted the role that accountability systems similarly created by states and linked to standards can play in helping students receive an adequate education—as these courts have indicated, accountability systems can continuously provide information about the extent to which a state is meeting this legal duty (e.g., Campaign for Fiscal Equity v. State, 2003; Claremont School District v. Governor, 2002; Lake View School District No. 25 v. Huckabee, 2002; Neeley v. West Orange Cove Consolidated Independent School District, 2005). In this way, modern school finance litigation arguably overcomes at least some historical problems that it has faced—by drawing on standards created elsewhere, the courts avoid taxing their managerial and scientific capacities to craft and implement educational decisions largely alone (Koski, 2001). But at the same time, the courts capitalize on their strength to direct reform toward enhancing educational opportunities in a way that would not otherwise be politically possible (Hunter, 1999). So school finance litigation has involved not only judicial orders to legislatures but also governmental action that involves blends of institutions and nongovernmental entities working together. Indeed, this form of litigation constitutes a break not just from traditional types of litigation but also from public law litigation that reflects a command-and-control approach; this newer approach situates courts as facilitators of reform that set broad goals and supervise the reform process without directing specifics to other governmental branches and local stakeholders.

Despite such strengths of the facilitator role, potential problems remain that have not been deeply considered by the major proponents of the facilitator role in school finance litigation, such as Liebman and Sabel (2003), Sabel and Simon (2004), and Rebell (2007). Saiger (2005) has criticized judicial use of standards in school finance litigation because courts arguably lack the competency to use standards effectively in this fashion and because precise judicial specification of adequacy robs local districts of the ability to experiment with new educational strategies. Ryan (2008) argued that such extensive use of standards may focus educational reform efforts too narrowly on test scores and create incentives for legislatures to weaken the rigor of standards. In a recent book exclusively focusing on the courts’ involvement with standards-based reform and accountability policies, Superfine (2008) found several problems with the courts’ treatment of standards-based reform in the context of school finance litigation. Superfine particularly noted that given the limited capacities of courts to understand complex educational information, vague legal requirements, and the often stormy political contexts in which judicial decisions were crafted, judicial treatment of standards-based reform and accountability systems in school finance litigation was extremely inconsistent. In addition, Superfine argued that the use of accountability systems to broadly boost institutional performance without concerted attention to students’ learning opportunities (ranging from sources such as financial resources to organizational capacities) may exacerbate existing educational inequalities. Similarly, highlighting a range of problems that have plagued the development and implementation of standards-based accountability systems (e.g., problems regarding the validity of testing practices and the impact of strong accountability sanctions on struggling schools with limited capacities to improve), Superfine argued that school finance litigation relying heavily on extant accountability systems for reform could also exacerbate existing educational inequalities.

Still, highlighting the potential for such litigation to draw on the strengths of the courts to overcome lack of political will and to spur other governmental institutions and entities to action, Superfine (2008) ultimately concluded that this type of judicial approach was very promising and accordingly recommended that courts not only continue to employ a facilitator role in school finance litigation but do so with a stronger and more directive hand than suggested by researchers who have focused on this type of judicial action—in addition to acting as a destabilizing force, using standards to define adequacy, and involving different stakeholders in the decision-making process, courts should also focus litigation on students’ actual learning opportunities much more strongly by directing stakeholders to consider “opportunity to learn” standards and the problems in accountability systems that can be fruitfully addressed at the state (as opposed to federal) level. Accordingly, the facilitator role, as construed by researchers in this field, reflects a fundamental evolution of the judicial process because it combines strengths of decentralized and centralized reform while minimizing some of the significant weaknesses. But because this research does not adequately account for the particular problems of standards-based reform and accountability systems, some evaluations of courts that have recently employed this role have been too positive. For courts to maximize the effectiveness of the facilitator role, a significant modification of it to include more judicial emphasis on the problems of standards-based reforms and accountability systems themselves should be undertaken.

School choice and desegregation litigation

Desegregation litigation and school choice have long been tied together. After the Supreme Court decided Brown, southern states and school districts employed school choice as one part of their strategy of massive resistance—under “freedom-of-choice” plans, students were offered a choice among public schools that was free in theory but not in practice (Ryan, 2004). Indeed, in Green, the Supreme Court examined the legality of freedom-of-choice plans as a response to Brown and held that these plans could not be used unless they were demonstrated to be effective in achieving desegregation. However, reformers have more recently employed school choice in what appear to be earnest efforts to effect desegregation. These efforts have generally emerged in bodies other than the courts; beginning in the 1970s, reformers in local areas crafted voluntary or “controlled choice” plans, which eliminates neighborhood attendance districts, creates school attendance zones, and allows families to choose schools in their zones, provided that admitting does not upset the racial balance at that school (Alves & Willie, 1990). Many urban districts have also established magnet schools offering a range of well-resourced educational programs to attract White students to high-minority areas (West, 1994). Unfortunately, such choice plans appear to have done little to directly advance desegregation (Welner, 2006).

The Supreme Court has directly considered the constitutionality of such plans in a couple recent high-profile cases. In Missouri v. Jenkins (1995), the Court examined a desegregation plan that aimed at desegregating a school district through a range of strategies, including the creation of highly resourced magnet schools. Highlighting the logic of local control, the Court ruled that this plan was unconstitutional because the district court overseeing the case had exceeded its authority approving the plan, specifically with regard to the part of the plan aimed at attracting students from outside the district. In PICS (2007), the Court found that racial balancing does not constitute a “compelling state interest” and accordingly invalidated two voluntary integration plans employing school choice and using race as factor in admissions to the schools.

Unlike most other recent policy efforts aimed at effecting equal educational opportunity through decentralizing policies (as discussed below), these efforts notably failed to be endorsed by the courts. Indeed, as Holley-Walker (2008) noted, PICS “represents a marked detour from local control of schools as an important theme championed by the Supreme Court in previous K–12 desegregation cases” (p. 924). Although it is difficult to pinpoint the precise reason for this apparent conflict, a few possible explanations stand out. First, the Court may have simply decided that existing legal doctrine did not support the use of school choice plans using race as a factor to effect desegregation. Second, although the Court effectively turned its back on the notion of local control in PICS, the Court clearly continued moving away from endorsing efforts to desegregate schools—given factors such as judicial wariness of desegregation efforts and broader social and political shifts, the Court had been increasingly less supportive of desegregation efforts since Milliken. Third, personal political preferences of the judges on the Court may have played a significant role in this decision as well. Regardless of the exact reason or combination of factors resulting in the Court’s decision in PICS, the Courts’ decision here stands in marked contrast to many other recent judicial considerations of decentralizing policies aimed at effecting equal educational opportunity.

Charter school litigation

In addition to addressing policies that decentralize governance authority in desegregation litigation, courts have increasingly become involved in such policies in litigation addressing the legality of charter schools. However, unlike desegregation and school finance litigation that can often be characterized as “public law litigation,” judicial considerations of the legality of charter schools follow a much more traditional model of the judicial process—in such litigation, courts generally determine whether certain aspects of charter schools are legal or not, and requested remedies are not aimed at restructuring school systems with continuing judicial involvement. In this respect, courts addressing the legality of charter schools have not adopted a command-and-control or facilitator role in the decision-making process and have acted more as gatekeepers that simply make one-time decisions about whether charter schools can continue operating in a specific manner.

On a very general level, charter schools are created when a government contracts with (or grants a charter to) an independent school operator (Wall, 1998). Charter operators receive a specified sum of money for each student who attends the school and, in exchange for meeting goals specified in their charter, have significant control over key issues such as personnel, budget, and curriculum. State laws generally authorize the creation of charter schools, and, as a result, charter school laws in several states arguably blur the traditional distinctions between public and private schools (Mead, 2003). Charter school proponents have made several different arguments for the value of charter schools, including the need to decentralize authority away from unwieldy and overly centralized bureaucracies to schools and neighborhoods to increase efficiency and/or teacher autonomy. Many advocacy organizations have specifically supported charter schools because of their potential for minority empowerment because of such decentralization of power (Henig, 2008). Charter schools have accordingly become a very popular educational reform strategy as an option on which many differently oriented interest groups can agree and are authorized by law in 41 states (Center for Education Reform, 2009).

Given the perceived threat to traditional public schooling presented by charter schools, interested parties have challenged the legality of charter schools through litigation. Courts in states such as California, Michigan, and New Jersey have particularly considered whether charter schools are actually “public” schools under state constitutions and accordingly whether charter schools laws unconstitutionally authorize the allocation of public funds for private purposes ( Council of Organizations and Others v. Michigan, 1997; In re Grant of the Charter School Application of Englewood on the Palisades Charter School, 1999; Robinson, 2002; Wilson v. State Board of Education, 1999). When considering plaintiffs’ claims in such cases, state supreme courts have universally found that charter schools are indeed public and that funding laws are constitutional (Saiger, 2007). Moreover, plaintiffs in a case in Ohio recently argued that the state’s charter school legislation violates the education clause of the state constitution, which requires a “thorough and efficient” system of common schools throughout the state ( Ohio ex rel Ohio Congress of Parents & Teachers v. State Board of Education, 2006). However, emphasizing the benefits of local control of schools, the Ohio Supreme Court found that the state’s charter schools incorporate flexibility, choice, customization, and experimentation to help ensure that children receive an adequate education. In addition, at least one federal court upheld the constitutionality of charter school legislation resulting in the closure of a noncharter public school with a large Hispanic population because it could not find any discriminatory intent ( Villaneuva v. Carere, 1996). Based on such decisions, it appears unlikely that courts will invalidate charter school legislation (Huffman, 1998).

In addition to ruling on the fundamental legality of charter schools, some courts have addressed the power of authorizing bodies to govern charter schools. In particular, courts have held that fiscal mismanagement, inadequate instructional materials, unsafe conditions, and an inability to deliver an adequate educational program are issues that should be overseen and rectified by authorizers (Callahan, Krebs, & Bondurant, 2008). Moreover, courts have upheld the rights of authorizing bodies to refuse charters, revoke charters, or refuse to reauthorize charter schools for similar reasons (Mead & Green, 2001). In this respect, judicial decisions emphasize that although charter schools laws primarily decentralize authority to schools and parents, these laws also centralize governance in some respects by situating ultimate control in authorizing bodies.

Although it is not the place here to conduct a full review of the effectiveness of charter schools, it is worth noting the major research on them. In contrast to some claims to the contrary, charter schools generally do not screen out racial and ethnic minorities and poor students, and they do not significantly contribute to increasing segregation in schools (Henig, 2008). Moreover, although some charter schools have very high test scores and some have very low test scores, student achievement in charter schools is comparable to or slightly lower than that of traditional public schools (though, this achievement difference may be because of selection bias; Braun, Jenkings, & Grigg, 2006). Still, parents who send their children to charter schools are generally happier with their schools than parents who send their children to traditional public schools (Finn, Vanourek, & Manno, 2000).

In short, when addressing school choice in the context of the constitutionality of charter school legislation, courts have consistently upheld the legality of and have effectively endorsed charter school policies—following traditional modes of judicial decision making, courts have simply found that this type of policy, which decentralizes authority in part to effect equal educational opportunity, is permissible. Nevertheless, there is little indication that charter school litigation or policies, as currently built, have the potential to consistently effect equal educational opportunities.

Voucher litigation

Although significantly less pervasive than policies authorizing charter schools, policies authorizing voucher schemes have proven more politically explosive and have triggered high-profile litigation. Voucher schemes generally provide students with publicly funded tuition certificates that may be redeemed at participating public and private schools, including both sectarian and nonsectarian private schools (Forman, 2007b). During the beginning of the 20th century, Catholic parents primarily advocated voucher schemes in response to battles with Protestants over whose religion and values would be taught in public schools (Carper, 1983). However, proponents of voucher schemes have more recently argued that increased competition for students would incentivize public and private schools to employ resources more efficiently, improve student achievement, and reduce conflicts by allowing parents to choose schools that best match their preferences (Chubb & Moe, 1990; Hoxby, 2000). Based on such reasoning, groups of both conservatives and progressives have come to see voucher schemes as a means of empowerment for politically disadvantaged communities (DeBray-Pelot, Lubienski, & Scott, 2007). Despite such support among traditionally opposed interest groups, voucher schemes have faced significant political opposition from groups such as parents opposed to the use of public funds for religious purposes and legal barriers from provisions such as “Blaine Amendments” in state constitutions that prohibit such uses of public funds (d’Entremont & Huerta, 2007). As a result, voucher schemes are only employed in five states and Washington, D.C.

Like charter school policies, vouchers policies have generally been initiated and shaped by state level policymakers and have come before the courts when plaintiffs have argued that such policies are unconstitutional. Plaintiffs have specifically argued that voucher policies violate the Establishment Clause of the First Amendment of the U.S. Constitution. Although the Supreme Court’s interpretation of the Establishment Clause has changed significantly over the 20th century, the Court’s analysis has employed the “Lemon test” for the past few decades, which requires governmental action to (a) have a legitimate secular purpose, (b) not have the primary effect of either advancing or inhibiting religion, and (c) not result in an excessive entanglement of government and religion ( Lemon v. Kurtzman, 1971). When analyzing cases of public aid toward religious schools, the Court has particularly focused on whether a program is one of “true private choice,” under which aid flows to a religious school not because of any programmatic favoritism for religion but because the individual beneficiaries choose to use the aid at the religious school (Berg, 2003).

In Zelman v. Simmons-Harris (2002), the Supreme Court specifically addressed the constitutionality of a voucher program implemented by the Ohio legislature in response to the low performance of Cleveland’s public schools. The voucher program was authorized by a state law that provided vouchers preferentially to poor families. The Court found that the program was constitutional because it was one of true public choice—according to the Court, the program’s terms were neutral toward religion because aid could be given to programs without reference to whether the programs were religious, the program directed aid to parents and families who directed aid to religious schools of their own choosing, and the program offered genuine opportunities to parents to select secular programs. In this way, the reasoning employed by the Supreme Court particularly emphasized the value of decentralized decision making—although the Court did not directly state that parental choice would increase the effectiveness of educational policy, the court highlighted the importance of such decision making to pass constitutional muster (Saiger, 2007). As a result, the Supreme Court found that such voucher policies, although not required, were permissible governance reforms for improving the performance of school systems for poor students. Still, as noted above, only a very small proportion of students have taken advantage of voucher programs because of other legal and political barriers that remain around the United States.

Opponents of voucher programs have also challenged these policies in court under state constitutional provisions. In Bush v. Holmes (2006), the Florida Supreme Court considered the legality of the state’s Opportunity Scholarship Program (OSP), which provided vouchers to students enrolled in public schools that the state had labeled as failing. The court found that under the state constitution’s education clause, which provides that Florida maintains a “uniform” school system, the OSP was unconstitutional—the majority indicated that because the OSP funds schools subject to less regulation than public schools, the OSP would prevent the school system from being uniform. In particular, the court focused on the fact that the OSP would permit public funds to be allocated to private schools that are not required to implement standardized state curricula and teacher certification requirements and that do not receive direct oversight from the state.

Although the Wisconsin Supreme Court reviewed a similar argument and found that the Milwaukee voucher program was permissible in Davis v. Grover (1992), commentators have argued that the reasoning of Bush v. Holmes could be replicated by other courts in the 14 other states that have such uniformity requirements (Dycus, 2006; Neily, 2006). The Colorado Supreme Court also found that a voucher policy was an unconstitutional state mandate under a state constitutional provision providing districts with the power to exercise “local control” over instruction ( Owens v. Colorado Congress of Parents, 2004). In at least a partial response to such legal and political barriers facing vouchers, a handful of states have also begun to use tuition tax credits for private schooling as a tool to achieve a similar effect as vouchers (Welner, 2008). So although the Supreme Court has effectively endorsed vouchers as a permissible policy, there still remains the potential for state courts to invalidate voucher schemes in the small handful of states in which these schemes have actually been enacted.

Again, although it is not the place here to conduct a full review of the effectiveness of voucher programs, it is worth noting the major research on them. Much of this research has generally found that voucher programs have had a very small and isolated benefit at most on student achievement (General Accounting Office, 2001; Howell, Peterson, Wolf, & Campbell, 2002; Wolf et al., 2008). Although vouchers may increase competition and facilitate greater parental engagement in response to incentives, these incentives often focus on school features other than academic quality (Henig, 1999; Welner, 2008). Vouchers also do not appear to significantly segregate students or “skim the cream” of the top students from low-performing schools (McEwan, 2004; Welner, 2008). So although voucher programs do not appear to harm students and schools, these programs also do not appear to be effective at leveraging equal educational opportunity.

In short, when addressing school choice in the context of the constitutionality of voucher programs, courts have also acted in a fairly traditional manner—they have focused on the constitutionality of voucher programs enacted by state policymakers and have simply addressed whether this type of policy is permissible instead of actively shaping this reform. Still, the overarching jurisprudence in this area focuses on the value of decentralized decision making for the purpose of determining legal permissibility. But at the same time, political opposition and legal barriers at the state level have prevented the spread of voucher programs on a large scale. Moreover, as with charter school policies, there is little indication that voucher programs have the potential to significantly effect equal educational opportunities, as they are in part aimed at doing through decentralized decision making. So although courts generally have left much authority in the hands of localities to implement decentralized school choice policies, the judicial process in this area generally has been much more traditional than in the context of desegregation or school finance litigation. The courts have accordingly done little to shape the substantive content of these decentralization efforts for better or worse, and although the courts have not acted as a significant gate for school choice policies, judicial involvement in this field has proven insufficient to facilitate the equalization of educational opportunities.