Justiciability and the Role of Courts in Adequacy Litigation: Preserving the Constitutional Right to Education

In the first study of opinions handed down in education adequacy litigation between January 2005 and January 2008, this Article shows a marked shift away from outcomes favorable to adequacy plaintiffs. Following two decades in which courts spurred significant reforms in our nation\u27s neediest schools by interpreting the education clauses of their state constitutions to guarantee an adequate education for all students, the years 2005 to 2008 have seen a dramatic change in the judicial response to adequacy litigation. Through an analysis of the latest body of cases, we show that separation of powers concerns have begun to drive state courts out of this important avenue of education reform. These separation of powers concerns have become more salient as litigators pressure courts to mandate concrete remedies that would trump legislative discretion. The most problematic such remedy is one that would require courts to order the legislature to make specific budgetary allocations. This negative trend for adequacy plaintiffs spans courts seeing adequacy claims for the first time and those presiding over a second round of adequacy litigation. We argue that despite this shift, recent courts have not wholly disavowed their role in substantiating the state constitutional right to education. Courts remain willing to act as a constitutional check on the legislature\u27s actions within the field of education if plaintiffs can find a way to respond to concerns over remedies. We examine the nature of and reasons for courts\u27 increasing separation of powers concerns and then briefly explore what lessons adequacy plaintiffs might take away for use in future litigation