The Courts, Educational Policy, and Unintended Consequences

Abstract:     
Recent school finance litigation illustrates yet again how law can generate unintended policy consequences. Seeking to improve student achievement and school accountability, more states now turn to educational standards and assessments. At the same time, a multi-decade school finance litigation effort develops and changes its theoretical base. Recently, educational standards and school finance litigation converged in a way that enables school districts to gain financially from their inability to meet desired achievement levels. Specifically, courts increasingly allow litigants and lawsuits to transform standards and assessments into constitutional entitlements to additional resources. As a consequence, increased legal and financial exposure for school districts follows from the implementation of what many consider a plausible educational policy. The judiciary's participation in this transformation uncovers old and new problems that arise when courts are asked to set educational policy.

Accepted Paper Series