Updating Courts and Kids, his 2009 book that provides an overview of education adequacy litigations throughout the country, Michael A. Rebell, the executive director of the Campaign for Educational Equity and the National Access Network at Teachers College, Columbia University, has issued a supplement that reviewed the 27 decisions issued by state courts since the 2008 recession and has found a marked shift in defendants’ favor in the outcome of new cases, but a strong judicial tendency to enforce compliance with constitutional requirements that were established in previous cases.
Rebell determined that there was a dramatic pendulum swing from more than two-thirds of the final adequacy decisions favoring plaintiffs in the period from 1989 through mid-2009 to a pattern in which 55% of the final decisions favored defendants in the last six years. ( There were 11 major final decisions decided during this period) Post-recession compliance cases, however, had strikingly different results. Since 2009, there have been 13 cases that have challenged post-recession reductions in state funding that were alleged to have violated the right to an adequate education established in previous court rulings, and plaintiffs have won every one of these decisions.
The remarkable difference between plaintiffs’ 100% success rate in cases alleging noncompliance with past rulings and their 45% win rate in new constitutional cases indicates that, in times of fiscal constraint, courts adhere to the well-established doctrine that cost considerations cannot affect the enforcement of established constitutional rights, but, at the same time, they exercise substantial “institutional caution” about creating new rights that will likely have a substantial impact on the state’s budget.
Reflecting on these trends, Rebell concludes that although courts must take economic and political realities into account, this reconsideration should not, and need not, be done by neglecting or limiting the constitutional rights of millions of school children. Particularly, during difficult economic times, a firm judicial stance rather than “institutional caution” is needed to protect these rights. The supplement expands on the “comparative institutional approach” to judicial review proposed in Courts and Kids by setting forth a framework that will allow courts to uphold students’ sound basic rights while, at the same time, permitting the political branches to respond to increased fiscal constraints in difficult economic times.