Rethinking Constitutionality in Education Rights Cases

Education rights cases often devolve into a farce of constitutional brinkmanship played by a miserable cast of reluctant courts and recalcitrant legislatures. Between successive rounds of litigation and tepid legislative fixes, come threats of impeaching judges, closing schools, stripping courts of jurisdiction, and holding legislators in contempt. Despite all the bluster, judges and legislators both anxiously await the curtain call, when they can bow out and terminate the matter. In the end, what passes for constitutionality in the successful cases is a school funding scheme judged “reasonably likely” or “reasonably calculated” to achieve an adequate or equitable education—as opposed to a public education system that is adequate and equitable. But rather than reflect the reality that adequacy and equity are interminable demands, these cases reflect a failure to confront and blunt that reality for disadvantaged children. The trouble lies in a judicial exit strategy focused on a fixed point of compliance—a state of being constitutional—that is altogether misplaced and counterproductive when the object is educational adequacy and equity. This Article proposes that the focus instead should be on whether the state maintains fidelity with those guarantees. That reconception counsels courts to entertain periodic exercises of jurisdiction. Between these periodic exercises of jurisdiction, interim remedies—data collection and public engagement projects—should gauge and sustain the state’s fidelity with the constitutional guarantees. More fundamentally, this reconception requires transformative thinking, beginning with an acknowledgment that the end goal in these cases should be progress towards a goal without end