Disestablishing Local School Districts as a Remedy for Educational Inadequacy Note

Most state constitutions recognize a right to education, but courts have been hard pressed to respond to violations of that right. Some state courts have imposed financial and substantive reforms, only to see their implementation miscarry as educational deficiencies stubbornly persist. Other state courts, fearing such outcomes, instead treat education claims as nonjusticiable political questions; in these states, public education is a right with no remedy. This Note argues that courts should instead base remedies on state statutes that permit states to disestablish-i.e., to withdraw authority from-deficient school districts. Disestablishment, like other structural remedies, is largely self-implementing and avoids judicial entanglement in day-to-day administration. It is firmly rooted in statutory authority and legislativel)-defined standards. Most important, disestablishment creates incentives salutary to educational improvement. Intergovernmental, rather than market, competition over control of schools offers accountability while preserving a thoroughly public approach to educational governance

Disestablishing Local School Districts as a Remedy for Educational Inadequacy Note

Most state constitutions recognize a right to education, but courts have been hard pressed to respond to violations of that right. Some state courts have imposed financial and substantive reforms, only to see their implementation miscarry as educational deficiencies stubbornly persist. Other state courts, fearing such outcomes, instead treat education claims as nonjusticiable political questions; in these states, public education is a right with no remedy. This Note argues that courts should instead base remedies on state statutes that permit states to disestablish-i.e., to withdraw authority from-deficient school districts. Disestablishment, like other structural remedies, is largely self-implementing and avoids judicial entanglement in day-to-day administration. It is firmly rooted in statutory authority and legislativel)-defined standards. Most important, disestablishment creates incentives salutary to educational improvement. Intergovernmental, rather than market, competition over control of schools offers accountability while preserving a thoroughly public approach to educational governance

Agencies Obligation to Interpret the Statute

Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpretation. That is wrong, jurisprudentially and ethically. An agency that commands deference bears a duty to adopt what it believes to be the best interpretation of the relevant statute. Deference assigns to the agency, rather than to a court, power authoritatively to declare what the law is. That power carries with it a duty to give the statute the best reading the agency can. Notwithstanding substantial jurisprudential disagreement about what it means to give a statute its best interpretation, an agency does not abide its role when it seems to achieve anything less. An agency is legally and ethically obligated to privilege what it views as optimal statutory interpretation over what it considers to be optimal policy. If the two conflict, as they sometimes will, the agency must act consistently with the former to the detriment of the latter. To behave otherwise is to fail to adhere to principles of legislative supremacy and fidelity to law

Drug Legalization: The Importance of Asking the Right Question Symposium on Drug Decriminalization

As a policy analysis, this article\u27s central argument is that that the costs imposed by markets in licit psychoactives are significantly greater than those imposed by drug prohibition

Derailing the Deference Lockstep

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is. This Article urges states to resist the uncritical importation into state law of antideference arguments based on the nature of judicial power in the federal context—that is, to resist the temptation to move deference rules in “lockstep” with federal doctrine. In state court, “saying what the law is” is essentially different than doing so in federal court. State courts are common-law courts whose judges not only interpret the law but declare it, often based on policy concerns—just as agencies do. And the law that state courts find is subject to federal supremacy, which makes courts’ law-declaration function contingent rather than final. This contingency requires them, even as they say what the law is, to cooperate with agencies in achieving state goals in the face of federal regulatory power. These differences drain the applicability to state constitutional law of most of the arguments now centered in the federal deference debate, both for and against. State courts do not need to decide between Chevron deference and de novo review. Instead, they should seek to build a judicial relationship to agency statutory interpretation consistent with their own particular role as common-law courts, as creators of common-law precedent, and as joint participants with both state and federal agencies in federal regulatory systems

Charter Schools, The Establishment Clause, and the Neoliberal Turn in Public Education

Regardless whether the American charter school can improve academic performance and provide effective alternatives to traditional public schools, its steady entrenchment as an institution portends significant, destabilizing changes across education law. In no area will its impact be more profound than the law of religion and schooling. Despite the general view that charter schools are public schools, charters’ neoliberal character — they are privately created and managed, and chosen by consumers in a marketplace — makes them private schools for Establishment Clause purposes, notwithstanding their public subsidy. This conclusion, which rests in substantial part on the Zelman v. Simmons-Harris vouchers case, implies that very substantial amounts of government money could be directed towards religious institutions as the charter sector expands. State decisions to permit or forbid religious chartering will determine the magnitude of this shift. But even states seeking to forbid religious chartering will find that the bottom-up, market-oriented structure of chartering invites religiously oriented educational entrepreneurs and parents to exploit the fuzziness of the categories “religion” and “school” in order to undermine such a ban. Practical and constitutional constraints upon the regulatory tools that the neoliberal paradigm makes available to states — rulemaking and exercising bureaucratic discretion when approving and renewing charters — ensure that efforts to abolish religion in charters will enjoy only partial success

What We Disagree About When We Disagree About School Choice

The debate over school vouchers, charter schools, and other varieties of school choice has become a bit stale. It would improve were advocates on all sides to acknowledge several crucial realities that they too often obfuscate. First, the debate is fundamentally normative, not empirical. The desirability of choice depends primarily upon how we weigh competing claims of equality and liberty in education. Second, all participants in the debate should acknowledge both that constrained choice is still genuine choice, and that how and to what extent parental decisions are constrained are fundamental issues in choice policy. Finally, with respect to the politics of choice, advocates and opponents should clearly distinguish arguments that choice is a first-best alternative from claims that it represents real and feasible improvement over the educational status quo