Aligning Education Rights and Remedies

56 Pages Posted: 13 Feb 2018 Last revised: 10 Jan 2019

See all articles by Joshua E. Weishart

Joshua E. Weishart

West Virginia University - College of Law

Date Written: February 9, 2018


Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a “fourth wave” of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the rut of incessant school funding battles, advocates have in fact initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, it will encounter a beleaguered state judiciary still skeptical, lo these many years, that court-directed remedies do not invade the provinces of the other coordinate branches. State courts are unlikely to overcome these doubts until they adopt cohesive standards aligning education rights and remedies.

This Article proposes that alignment can be achieved through reasonably congruent judicial remedies and directly proportional legislative remedies. Both standards gauge whether a remedy effectuates the right to education’s function to protect children from the harms of educational deprivations and disparities. Both remedial standards are adapted for that purpose to operate within the boundaries set for each branch by state separation of powers principles, conferring guided deference to legislative remedies and closer scrutiny of judicial remedies. The Article briefly previews two proposed fourth-wave, injunctive remedies — integration and choice — suggesting each must overcome evidentiary deficits to satisfy the reasonable congruence standard.

Keywords: right to education; state constitution; school finance litigation; fourth wave; equity; adequacy; separation of powers; proportionality; remedy; integration; choice

JEL Classification: K19, K39, K49

Suggested Citation

Weishart, Joshua E., Aligning Education Rights and Remedies (February 9, 2018). Kansas Journal of Law & Pubic Policy, Vol. 27, No. 3, 2018; Invited symposium essay (Forthcoming), WVU College of Law Research Paper No. 2019-002, Available at SSRN:

Joshua E. Weishart (Contact Author)

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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