The Right to Education in Courts

• In Event: Closing Educational Opportunity Gaps: Exploring a Federal Right to Education

Abstract

Objectives
Within the field of education research, “law” is customarily understood to refer to judicial decisions, while “policy” refers to legislatively-enacted statutes and executive branch rules and regulations. Further, most policy researchers either deductively develop explanations for phenomena, or inductively test prior explanations for the same. However, few policy researchers deeply engage analogical reasoning, the hallmark of academic and practicing lawyers. Understanding this is important for many reasons: generally, judicial decisions form the boundaries for policy made in the legislative and executive branches and are also a type of policy reform alongside statutory and regulatory reform. Additionally, understanding better how lawyers think and how they strategically use litigation to create social change broadens policy researchers’ understanding of litigation’s goals and the significance of various outcomes; can influence the questions policy researchers ask; and can strengthen relationships between lawyers and policy researchers working together in pursuit of reform. Thus, this paper asks how lawyers’ use of analogical reasoning is reflected in two high-profile “right to education” cases.

Perspectives/Theoretical Framework
These cases represent the two types of high-profile “impact litigation” in which lawyers pursue a judicial decision that will create new precedent and either function as a small building block in a long-term strategy (the incremental approach) or a potentially more short-term, but broader, systemic reform (the holistic approach).

Methods/Data Sources
We employ conceptual analysis to define the conditions under which a lawsuit qualifies as incremental or holistic impact litigation. To describe the two types of impact litigation, we draw on legal academic literature. We also engage a framework used to describe legislative policy reform and contend that the two types of impact litigation are parallel to the two most common legislative reform approaches (incremental and discontinuous change).

Results
To illustrate the two types of impact litigation and the role analogical reasoning plays in each, we describe the legal context for and then analyze parties’ filings and courts’ decisions in two of the most prominent recent cases which seek to create substantive educational rights for children through litigation in federal courts.

Significance
These results indicate that these education rights allow for the greatest potential gains for minoritized children, and therefore supports litigation as a useful pathway in helping to address opportunity gaps.

Author

• Kristine Bowman, Michigan State University