Litigated Learning and the Limits of the Law

Michael Heise

Cornell Law School

March 2004

Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Although popular mythology emphasizes Brown's critical role in securing equal educational opportunity, careful reflection reveals that the decision's legacy is anything but clear. A narrow focus on school desegregation suggests Brown's legacy is aptly characterized as one of unfulfilled promise. A broader focus that extends to include subsequent equal educational opportunity activity such as the school finance litigation movement, however, casts positive light on Brown's legacy. More important than completing interpretations of Brown's legacy is what the decision implies for current and future efforts to secure greater educational equity through litigation. In this Article I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, principally due to how the doctrine has evolved during the past fifty years. Even if one concludes that Brown succeeded in the school desegregation context, the equal educational opportunity doctrine has changed during the past fifty years in ways that make it less amenable to litigation. Unlike past efforts, emerging reform efforts focus more directly on student academic achievement rather than race or school funding. Academic achievement implicates teaching and learning activities - activities located deeper inside schools and classrooms and further from litigation's reach. If past education reformers and litigants found it difficult to penetrate factors located outside schools (school demographic profiles and funding levels), litigation efforts seeking to influence student achievement will encounter even greater difficulty. Student academic achievement's insulation from even successful litigation underscores its inherent complexity, the salience of non-legal components and, more generally, structural limitations of law and litigation as tools to achieve desired social change. If my central claims are correct, the more complicated litigation efforts of the future will require manifestly greater effort. And greater effort alone will not insure success.

Keywords: constitution, education, law and policy, litigation, empirical

Not Available For Download

Date posted: March 30, 2004  

Suggested Citation

Heise, Michael, Litigated Learning and the Limits of the Law (March 2004). Available at SSRN: http://ssrn.com/abstract=521802

Contact Information

Michael Heise (Contact Author)
Cornell Law School ( email )
310 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)
Feedback to SSRN

Paper statistics
Abstract Views: 562

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.328 seconds