Manhattan Institute for Policy Research. 03/2005.

An injudicious intrusion into the political realm
March 31, 2005

by Ross Sandler and David Schoenbrod

In a wave of judicial decisions, state court judges in the US have decided that they have the power to tell legislatures to spend more on education. That is the result in 20 of the 29 cases decided so far and similar litigation is pending in almost every state. In the latest decision, Judge Leland DeGrasse signed an order on March 15 requiring New York State to increase massively its spending on New York City schools - by Dollars 5.6bn for operating expenses plus Dollars 9.2bn for improving facilities, to be phased in over the next five years. The order gives the state until June 13 to find the money.

New York State's high court ruled in 2003 that the city's schools, with their high drop-out rates and poor test scores, had failed the children. That is undeniable. The court gave the state legislature until June 30 last year to define what it would take to give children a sound basic education, price it and fund it. When that deadline came and went, Judge DeGrasse imposed his order.

The advocates, editorialists and others debate how such a bonanza would be used. Yet, the court order may well be the high point in the court's participation in school reform in New York City. What happens next in the litigation will probably do little to help the children in whose name it has been fought.

No one believes that money alone is the answer. The city school system already spends more than Dollars 12,000 per pupil. As with any non-performing institution there is plenty of blame to go around and money may be of least concern. One need only look at the rules and culture of the public schools to see challenges of staggering proportions. Yet the court focused only on money since that can be quantified and the rest of the reform agenda lies beyond its control. If the court succeeds in forcing larger appropriations without other reforms, there is little hope for improvement.

Culture change in large institutions can take decades and requires innovative and consistent management, along with workers learning to conform to the expressed norms of the institution. In these matters, the courts can only press from the outside for those in charge to make the right choices.

Judges are great at finding fault with how government has worked in the past and poor at dictating how to improve it. Yet, when their plans go awry - as they certainly will in New York - the judges' usual response is to try still harder to shape the future by issuing excruciatingly detailed plans in the form of court orders. The big winners when this happens will be the plaintiffs' attorneys who would emerge as, in effect, unelected school board chairmen. The big losers will be the city school chancellor and the mayor who appointed him; they find themselves with yet another rigid and powerful bureaucracy to answer to.

What is needed to improve the schools is political will energised by public demands. In this sort of political battle the judiciary's greatest strength is its ability to point out that what occurred in the past was not good enough. The New York high court has already done that. But the moment the courts start declaring that this educational reform is the road to success or that management procedure is the answer, they will have cut off innovation and undermined the leadership necessary for change.

The inability of the courts to deliver on their remedy is one of the arguments for staying out of the political thicket in the first place. But the New York courts, like those in a large and growing number of states, have crossed that threshold.

New York State's response, it is true, has fallen short of the judiciary's demands. But the state legislature has passed into law big changes in the management of New York City's public schools intended to increase political accountability and available funding. The state gets little credit for these efforts when measured against the judicial goal but the reforms are hardly inconsequential and they have not fully played out. Other reforms will follow.

That there are inevitable shortfalls and compromises in the political world does not elevate judges into wiser educators or better education managers. As the New York case demonstrates, the judiciary's strength lies elsewhere; in its capacity to adjudge the state's efforts wanting, if in fact they are. But the remedy remains in the political realm.

The writers are professors at New York Law School and authors of Democracy by Decree: What Happens When Courts Run Government (Yale)

Financial Times March 31, 2005