The runaway wagon: how past school discrimination, finance, and adequacy case law warrants a political question approach to education reform litigation.

• Author: Bilan, Anthony

INTRODUCTION

Courtroom battles surrounding school finance and adequacy claims are very much alive today, nearly forty years after their progenitor, Serrano v. Priest. (1) In spawning a potential new chapter in this history, a trial court in California struck down its state's battalion of teacher tenure and employment laws under a legal analysis based in the education quality that those laws provided. (2) This "landmark" case, Vergara, is generating conversation that its results could be duplicated throughout the nation. (3) In a format familiar to school finance litigation, the Vergara court found that the state's tenure statutes so detrimentally affected teaching that education quality was unconstitutionally harmed. (4) While this result may seem extreme, the history of state education litigation, with comparisons to federal segregation litigation, shows not only that these dramatic remedies are not surprising but also that an application of the political question doctrine proves effective in scaling back any policy-based court excesses. As will be argued here, then, Vergara displays the natural conclusion of courts accepting inherently political questions as admissible claims.

Part I of this Note, after a brief introduction to the political question doctrine, outlines relevant school segregation case law and follows up with a history of school finance and adequacy litigation. Part II discusses the patterns and parallels formed by these two areas of law, with particular attention focused on the choices and consequences of judicial decisions under the rubric of the political question doctrine. Part III introduces a few recent additions to the history of school finance litigation, with particular focus on Vergara. Part IV discusses these recent cases in light of the analysis in Part II. Part IV particularly considers how recent school finance litigation resembles the character of federal discrimination cases before limiting principles were installed by the U.S. Supreme Court. Furthermore, Part IV discusses how cases like Vergara are the logical conclusion of not applying political question concerns to school finance claims. Ultimately, courts ought to make a universal reference to the political question doctrine as a controlling principle for decisions in school adequacy litigation.

1. POLITICAL QUESTIONS: FROM SCHOOL DISCRIMINATION TO SCHOOL FINANCE

   The political question doctrine is a branch of nonjusticiability, which acts as a restriction on court authority to accept claims. This jurisdictional bar has developed as a response to concerns that courts were rendering judgments in the area of public policy. The federal political question doctrine seeks to remove issues from court supervision that by their nature are better left to the cognizance of another branch of government. (5) While it is true that state courts are under no obligation to accept federal instruction on justiciability, many state courts have adopted and applied the federal political question factors as enunciated in Baker v. Carr. (6) The political question doctrine prevents judges from using limited courtroom tools to fashion remedies that overturn or compel new legislation. Otherwise, judges may be utilizing testimony limited to selected experts in order to change policies originally crafted by the representative legislature. Additionally, the political question doctrine contemplates that there are certain issues where policy and law are so intermingled that the question simply becomes unfit for judicial resolution. When judges try to resolve these deep, policy-based issues in a courtroom, high emotion may generate "bad law." (7) Worse yet, as courts proceed to resolve cases that are actually policy questions, judicial power shakes off its definitive boundaries.

   By way of introduction, political question issues in education law emerged from attempts at education reform where advocates, frustrated with the legislative process, sought to use courts to enforce their policy goals. (8) Although reformers initially succeeded in the segregation context, the difficulties in controlling this policy-oriented litigation compelled the U.S. Supreme Court to limit federal authority in discrimination cases partially through use of political question principles. Similar to this, the various waves of school finance and adequacy litigation produced startlingly differing results depending on whether the political question doctrine was imposed or not. States accepting the political question doctrine resemble later, muted segregation litigation, while states admitting school finance litigation have struggled against the problems that motivated the political question shift in segregation litigation. As discussed in detail later, Vergara and other current cases reveal the very real and current continuing egregious results of courts persisting in admitting the inherently political questions of school finance litigation.

   1. The Expansion and Contraction of Discrimination Litigation in the Federal Courts

      Federal court involvement in school desegregation begins with Brown v. Board of Education, (9) This Note only considers a few narrow aspects of the celebrated Brown decision and does not quarrel with--or analyze--its central holding. Rather, the focus here is on the evidence applied to the Brown decision and the consequent legacy of broad judicial remedies and oversight that the Brown decision ultimately set into motion. To depart from the entrenched doctrine of "separate but equal" under Plessy v. Ferguson, (10) the Court utilized social science evidence, outside of traditional constitutional analysis. Specifically, the Court held that segregated or "[s]eparate educational facilities are inherently unequal" and thus violate the Equal Protection Clause of the Fourteenth Amendment, based primarily on studies suggesting segregation generates a "sense of inferiority [that] affects the motivation of a child to learn." (11) Of particular note is that the scientific validity of the most influential core evidence, the doll studies conducted by Kenneth Clark, has been criticized. (12) While the justification for the inclusion of social science is debated, (13) its decisive role in the case established that scientific expert evidence could be applied to decisions surrounding education.

      Brown set into motion the enormous remedial process of judicially desegregating schools. These remedies are listed in Brown II, which, under equity principles, empowers federal courts to inspect and alter administration, physical school condition, "the school transportation system, personnel, ... school districts and attendance areas [,] ... [and] local laws and regulations which may be necessary in solving the foregoing problems." (14) This naturally led to an immense transformation of the relations between federal courts and school districts. In pursuit of a "unitary" school system, and without clear boundaries of authority, a school in violation could find itself compelled by a federal court to adopt racial quotas, reconfigure attendance zones, and most prominently, redraw busing routes. (15) When one federal court doubted its jurisdiction to utilize its powers, since only a part of a school district was found to be segregated, the U.S. Supreme Court lowered the bar and required only that a "substantial portion" of a school district be segregated to merit the full force of federal court equity jurisdiction. (16) On the side of litigants, private plaintiffs, backed by special interests like the NAACP, pushed for expansive remedies and played strong roles in determining what the eventual court-ordered remedy would consist of, particularly with regard to consent decrees. (17) With increased federal oversight of schools via the federal courts and a growing list of possible remedies, judges found themselves increasingly in management roles over local school districts. (18)

      In 1974, the U.S. Supreme Court issued its first opinion signaling a course change from its previous track on school desegregation cases. Milliken v. Bradley trimmed federal court remedial power toward school segregation (19) and notably was the first time the Court had rejected a position of the NAACP on desegregation. (20) Specifically, the Court cautioned against district courts acting in the role of "de facto 'legislative authorities] and "school superintendent[s]" in restructuring state educational laws, viewing that as "a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives." (21) In another case, based heavily on academic expert testimony and social science, the Court permitted a district court to impose compensatory education programs, in-service training programs, and guidance counseling programs as part of a desegregation plan. (22) However, once again, the Court curtailed the new judicial reach in Missouri v. Jenkins where it reversed a district court remedy to increase faculty salaries on grounds that it went beyond the court's intradistrict remedial power. (23) The district court had grounded its authority on a "desegregative attractiveness" theory; however, according to the Court, this theory could justify any increased expenditure with no "objective limitation" and thus be a "hook on which to hang numerous policy choices about improving the quality of education in general." (24)

      Justice Thomas, concurring with the 5-4 majority, would more clearly enunciate the political question issues that Jenkins evoked. He refuted the ability of federal judges to make "fundamentally political decisions as to which priorities [were] to receive funds and staff, which educational goals are to be sought, and [what] values are to be taught" since in doing so "they detract from the independence and dignity of the federal courts and intrude into areas in which they have little expertise." (25) The limiting, political...