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INTERPRETING, LITIGATING AND

REALISING THE RIGHT TO EDUCATION IN

SOUTH AFRICA: LESSONS FROM AMERICA

WINNING ESSAY

SOLLY KESSLER MEMORIAL PRIZE 2007

AUTHOR: DORON ISAACS

University of Cape Town 2 I Introduction

The crisis in education is one of the greatest barriers to achieving a better life for all in South Africa. It entrenches inequality and impairs the dignity of millions who enter adult life without the tools needed to fully express themselves or contribute meaningfully to society. This paper investigates the potential for law to intervene and act as a lever for change. In the United States, since the epoch-making Brown v Brown of Education,1 in which the Supreme Court ruled that racial segregation in schools was unconstitutional, courts have been at the centre of efforts to improve education. South Africa is yet to witness a mass movement for education reform, and the Constitutional Court’s log of cases founded squarely on a violation of the right to education is blank. In anticipation of future events a comparative perspective is critical.

At its heart this paper is concerned with remedies. Workable remedies are the difference between a symbolic, aspirational constitution and one that has tangible meaning for the weakest and worst off. A court can declare the education offered in a school, province or country to fail the test of constitutionality, but in the face of a failed system, what will it order in its place? Along with the need for social mobilisation to move hand in hand with litigation, the central lesson of the United States experience is the startlingly creative search for effective remedies. The model of non-court-centric remedies, whereby courts use their power to bring disparate groups into the implementation process, is proving a resilient democratic experiment and a profound break from a time when the most sought-after remedies were ones in which judges arrogated maximum control to themselves.

To begin with, Part II considers the ability of courts to effect social change and the propriety of doing so. The remedies theme anchors itself in this discourse. Parts III and IV place this paper in its social reality. They examine the educational crisis in South Africa and the validity of the comparative perspective. The tortuous road from Brown to its gradual but ineluctable demise, and the concurrent awakening to the possibility of state-based litigation, using the education provisions in state

1 Brown v Board of Education of Topeka, 347 U.S. 483 (1954). Repeated reference is made to this case throughout this paper. It is cited as Brown, without a footnote, except where page citation is important.

3 constitutions, is the subject of Part V. The current phase of this process, during which new movements and remedies emerged, is introduced in Part VI. The harbinger of this transformation, Rose v Council for Better Education2 in the Kentucky Supreme Court, how it was fashioned, and its aftermath, is Part VII; a valuable case-study. Part VIII arrives at the nub the argument, a thorough interrogation of the process-oriented, participatory remedies that mark this litigation. In Part IX South Africa re-enters the fray for an assessment of the relevance of interpretative methods, litigation strategies and remedial efforts adopted by courts and civil society in the United States. The paper concludes by cautiously arguing that South African lawyers and activists committed to better schools can reap much from their American counterparts.

II Courts and Social Change

The use of courts to reform the American public school system is paradigmatic; in that fifty-three year history is visible all the awesome potential of litigation to affect public life, as well as its impotence to do so. It simultaneously raises two classic empirical questions: the first concerns the capacity of courts to cause social change and the second poses the constitutional difficulty about the extent to which courts ought to attempt such intervention. Most importantly for lawyers committed to pursuing a democratic politics are strategic lessons of what works and what doesn’t. ‘What works’ is both a question of real impact and of politics in the face of the traditional concern over ‘counter-majoritarianism’.

This ultimately concerns the relationship between law and politics, overlooked in positivist scholarship and unnecessarily totalised in so-called legal realism. Law and politics have a fraught relationship. Far from being agents of change, legal norms, legal actors and legal institutions can prevent progress and entrench the status quo.3 But law is said to have played a central role in the struggle against Apartheid, 4 and ‘to have been the catalyst for revolutionary change influencing every facet of American

2 Rose v Council for Better Education 790 S.W.2d 186 (Ky. 1989). 3 American jurisprudence is replete with examples. In the Civil Rights Cases of 1883, the U.S. Supreme Court held that the Civil Rights Act of 1875, which forbid racial discrimination in public accommodations and transportation, was unconstitutional because such discrimination was private, rather than public, and therefore could not be prevented by Congress. 4 See Richard L. Abel Politics by Other Means: Law in the struggle against Apartheid, 1980-1994 (New York: Routledge, Inc., 1995).

4 society’.5 Budlender has called this tendency to both entrench and limit potentially harmful power as law’s paradox of internal tension.6 This tension places limits on law, and these limits must be understood if law is to be harnessed progressively. This means understanding what constraints exist on the law in a given situation, what factors generally allow for expansive law and what strategies both inside and outside the courtroom will best navigate the complex of factors and actors.

A deeply pessimistic, even cynical view is expressed by Rosenberg in The Hollow Hope.7 The book’s argument, using Brown as a key example, is that courts have failed to effect any material improvement in American society. Indeed it concludes that ‘U.S. Courts can almost never be effective producers of significant social reform’.8 In the rare cases when it does occur, says Rosenberg, it can be explained by the existence of a number of external conditions, being: firstly, when other actors, like the legislature, executive or business offer positive incentives to induce compliance; secondly, where those same actors penalise non-compliance; thirdly, where market forces favour a progressive outcome; and lastly, when court decisions provide political cover for actors crucial to implementation who are willing to act. He notes three constraints on courts that work against these enabling conditions, being: the limited nature of rights, the lack of judicial independence and the judiciary’s lack of powers to implement. He applies the above analysis both to litigants’ ability to get a positive judgment and to get it effectively implemented. He argues ultimately that litigation is not a cost-effective strategy, that is generates more public backlash than positive mobilisation, that court victories are ‘symbolic victories mistaken for substantive ones’9, and that when courts are seen to be effecting change they are often ushering in what is palatable to the public or already agreed by the elite sources of power.

5 Charles J. Russo et al (eds) Equal Educational Opportunities: Brown v Board of Education at 50 and democratic South Africa at 10 (Pretoria: Van Schaik, 2005) at X. 6 Geoff Budlender Foreword in Abel (note 4) at X. 7 Gerald N. Rosenberg The Hollow Hope: Can courts bring about social change? (Chicago: The University of Chicago Press, 1993). 8 Ibid at 338, emphasis in original. 9 Ibid at 340.

5 Scholarship in this area has flourished in the wake of The Hollow Hope, much of it in rebuttal.10 Certain scholars suggest that change is too complex to be captured in the crude data on causality between court decisions and changing public attitudes used by Rosenberg.11 Moreover, many are at pains to situate the Supreme Court within the political landscape, calling it ‘one voice among many’12 and recognising that it, like all courts, functions easiest when conditions are favourable.

Our own legal history, both before an after 1994, has much to contribute to this discussion, and a comparative analysis, particularly with the United States, is not new. As Abel has noted:

‘ The centrality of law in the American labor, civil rights, feminist, welfare rights, consumer, environmentalist, and gay rights movements can tempt observers to parochial and ahistorical exaggerations of its capacity to effect social change. We should not overreact, however, by dismissing law entirely. Sometimes it is the only meaningful source of influence… South Africa in the 1980s was an ideal setting in which to explore how law could resist and constrain Apartheid, offering opponents a protected space for their struggle and unique forms of leverage.’13

Accepting that there is not a trite positive or negative answer to law’s ability to assist in social struggle, the real questions are returned to: when and how does litigation become a powerful tool? Two landmark socio-economics rights cases of the South African Constitutional Court are illuminating in this regard. In Grootboom14 and Treatment Action Campaign15 the legal reasoning and orders given by the Court were

10 See David A Schultz (ed) Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang Publishing Inc, 1998); Charles F Sabel & William H Simon ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2004) 117 Harv. L. Rev. 1015. 11 David A Schultz & Stephen E Gottlieb ‘Legal Functionalism and Social Change: A Reassessment of Rosenberg’s The Hollow Hope’ in Schultz supra at 181. ‘Brown need not have changed views. It only needed to change the assumption that this was an untouchable injustice and that there was no exit or option instead of loyalty to the segregationist status quo.’ 12 Roy B. Flemming, John Bohte & B. Dan Wood ‘One Voice Among Many: the Supreme Court’s Influence On Attentiveness to Issues in the United States, 1947-1992’ in Schultz (note 10) at 21. 13 Abel (note 4) at 3. 14 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC). 15 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC); 2002 10 BCLR 1033.

6 similar. In both was found a constitutional breach, on the basis of a reasonableness test, not saved by a limitations analysis, leading to a declarator or specific mandamus without supervisory jurisdiction being exercised. As Justice Kriegler has poignantly remarked: ‘Grootboom was terribly important for lawyers, but not for people. Mrs Grootboom never got a house.’16 In City of Cape Town v Rudolph,17 the Cape High Court, reflecting back on the failure to implement the Grootboom order, noted that government had failed ‘to comply with its constitutional obligations’.18

The Treatment Action Campaign case could hardly stand in starker contrast. A far more capital and labour-intensive order has largely been implemented. There are now over 1500 sites offering mother-to-child-transmission (MTCT) prevention treatment as opposed to the 18 research sites proposed by the Department of Health in its court papers.19 The MTCT roll-out was also catalytic in providing impetus for the wider roll-out of anti-retroviral treatment. This outcome has been achieved despite the complexity and scale of the task, and the recalcitrance of the government;20 all factors absent in Grootboom. Geoff Budlender, instructing attorney on the TAC case, explains the success, both at the level of the judgment and the implementation, in the following way:

16 Johann Kriegler interviewed in Zackie Achmat Law and Freedom (Cape Town: Community Health Media Trust, 2004). 17 City of Cape Town v Rudolph 2004 (5) SA 39 (C). 18 Ibid at 88. 19 In TAC (note 15) the Court held para 123: ‘Three of the nice provinces have publicly announced programmes to realise progressively the rights of pregnant women and their newborn babies to have access to Nevirapine treatment. As for the rest, no programme has been disclosed by either the Minister or any of the other six MEC’s… The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort [by] government in each of its three spheres…’ 20 In a television interview given on SABC News on 24 March 2002 the Minister of Health Dr Manto Tshabala-Msimang was asked whether she would be prepared to ‘follow what the court says’, from which flowed the following exchanged: Minister: ‘My own view is that the judiciary cannot prescribe from the bench – and that we have a regulatory authority in this country that is interacting with the regulatory authority FDA of the USA and I think we must allow them to assist us in reaching conclusions.’ Interviewer: ‘Mmm, so you think it’s inappropriate that this is in court, but nevertheless it’s there. Will you stand by whatever the Court decides?’ Minister: ‘No, I think the court and the judiciary must also listen to the regulatory authority, both of this country and the regulatory authority of the US.’ Interviewer: ‘So you’re saying no?’ Minister: ‘I say no. I am saying no.’ Source: ‘More Damage Control after Manto Says No’ The Star (25 March 2002); Two days later the Department of Health issued a media statement clarifying their position: ‘we have no intention of circumventing the courts . . . We stand ready to abide by the final decision of the courts on the execution order’. Ministry of Health ‘Media Statement’ (27 March 2002).

7 ‘The litigation was only part of a broader mobilization campaign by the TAC … Our legal work succeeded I believe because our clients knew a lot about the use and the limits of law.’21

In civil society also the TAC’s frequent use of the law is seen as distinctive.22 As for the success of this aspect of its work, the analysis is emphatic: ‘It was hardly inevitable ... Activism made it so.’23 The study finds that litigation is regarded not merely as something to be used in tandem with activism, but sometimes as something that can drive it: ‘Winning victories in the courts is also said to ‘facilitate empowerment’ of members.’24

Strikingly similar tactics have been developed by communities and social movements in the United States in driving the recent wave of education litigation.

III The South African Educational Crisis

Nationally, the number of learners enrolled in grade 12 is half that enrolled in grade 1, meaning that nearly half the children who enrol in school do not arrive in matric. 25 This makes the 66.5% matric pass rate even more problematic. In the Eastern Cape

21 Geoff Budlender ‘Vignette’ Stones of Hope: Second Reading Packet (2006) at 7. 22 Steven Friedman and Shauna Mottiar ‘A Moral to the Tale: The Treatment Action Campaign and the Politics of HIV/AIDS’ (Centre for Policy Studies: 2004) at 24. The interviews with AIDS activist bare a strong resemblance to Abel’s analysis of litigation under Apartheid, at 12-13: ‘ The environment has changed, creating new opportunities and constraints. But there are strategic continuities: ‘Many of us with activist backgrounds are doing old things in a new environment’ (Interview, Heywood). The constitutional court is seen as a resource: the case in which it ordered the government to supply ARVs to some citizens was a ‘breakthrough’ which ‘forced the government’s hand’ (Interview, Mbali). It will be used if the roll-out does not materialise: ‘the government is afraid of the constitutional court’ (Interview, Geffen). 23 Ibid at 20. Friedman and Mottiar also explain the multi-strategy approach in the following way at 2: ‘The organisation employs a multi-strategy approach to campaigning, and its methods range from civil disobedience and street demonstrations through action in the courts (the AIDS Law project … works closely with TAC) to measured scientific arguments.’ 24 Ibid (Interview with Mvotho) at 17. 25 Department of Education ‘School Realities 2006’ EMIS available at http://www.education.gov.za/dynamic/dynamic.aspx? pageid=329&catid=10&category=Reports&legtype=null.

8 and Limpopo this figure falls to 59% and 56% respectively.26 In 2005, there were 31 schools in the country where not a single student passed matric.27

The following two Cape Town schools illustrate the inequality: Uxolo School (former DET)28 is a working-class school of almost entirely black African learners. Rhodes School (former model C) is a middle-class school with a majority white learner body.29

Staff : Annual Average Availability of No. of School Staff learner School Class specialist rooms, As learners ratio Fees Size e.g. library, labs a Uxolo 1492 46 32:1 R30 44 No Rhodes 550 55 10:1 R7040 28 Yes percentage of Grade 3 learners at Rhodes School 97,5% achieved the Western Cape Education Department Grade 3 level in standardised testing. At Uxolo School 0% of Grade 3 learners achieved this standard.

Work done by the Development Bank of South Africa shows that these shocking results are the norm. In former DET schools 0.1% of grade 6 learners performed at the appropriate standard.30

The recent protracted public-sector strike31 involving teachers and the subsequent violent protests involving over 10,000 high-school learners in Johannesburg32 speak to the urgency of the situation.

26 Naledi Pandor, MP, Minister of Education ‘Not yet where we want to be: Statement by Naledi Pandor, MP, Minister of Education, on the release of the 2006 senior certificate examination results, Parliament’ (28 Dec 2006) Department of Education available at http://www.education.gov.za/dynamic/dynamic.aspx?pageid=306&id=2469). 27 Department of Education Education Statistics in South Africa at a Glance 2005 (2006) available at http://www.education.gov.za/EMIS/emisweb/05stats/DoE%20Stat%20at%20a%20Glance %202005.pdf (accessed on 2/9/2007) at 25. 28 DET – Department of Education and Training - was the agency responsible for black African schools during Apartheid. 29 U. Hoadley Social Class, Pedagogy and the Specialisation of Voice in Four South African Primary Schools (2004) PhD Dissertation, University of Cape Town. 30 Graeme Bloch ‘Building Education Beyond Crisis: Development Today (2007) Development Bank of Southern Africa (DBSA) at 3 available at http://www.dbsa.org/Research/Documents/Building%20Education%20Beyond%20Crisis.doc. 31‘School's out as teachers strike’ 30/05/2007 News24 available at http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2121686,00.html. 32 Poloko Tau and Sheena Adams ‘Marching pupils cause chaos in Joburg’ STAR 15 August 2007 accessed at http://www.iol.co.za/index.php? set_id=1&click_id=105&art_id=nw20070814194436361C738527.

9 IV The United States as Comparator

The history of the struggle for equitable and adequate education in the United States was one of the major American dramas of the 20th century. It is also a relevant case study for South Africans concerned with equal educational opportunities. The history of de jure segregation in the South under the Jim Crow regime is strikingly similar to that under Apartheid South Africa.

A current exhibit at the Iziko Slave Lodge makes clear how as in South Africa, many U.S. cities practiced four-way segregation, with separate schools for each racial group.

‘ In some cities of the American Southwest, there was three or four-way segregation of white, black, Mexican and Indian children, similar to the segregation of white, African, coloured and Asian children in South Africa.’33

According to the exhibit, ‘Segregated education [in the U.S.] was designed to confine black children to a subservient role in society and 2nd-class citizenship’. It states that ‘the similarity between vocational training for African Americans, Asians and Mexicans and Bantu Education in South Africa is striking’.34

Therefore when U.S. courts began hearing cases on education they were faced by a legacy resembling the one we now confront in this country. The landmark judgment in Brown v Board of Education35 was not the start of education litigation but it saw educational reform develop into a national fault-line and announced more than 50 years of intense legal contestation. America, not unlike South Africa, has been described as a ‘society with a relatively high level of tolerance for social and economic inequality’.36 In more recent decades, in the post-Jim Crow era, the U.S.

33 ‘Separate is not Equal: The struggle against segregated schooling in America’ Exhibition at Iziko Slave Lodge, Cape Town, March 2007; The exhibit is part-funded by the U.S. Consulates in Johannesburg and Cape Town. 34 Ibid. 35 Brown (note 1) supra. That judgment, which became known as Brown I was followed about one year later by Brown v Board of Education, 349 U.S. 294 (1955) which became known as Brown II. Brown I was the declaration of constitutional invalidity and Brown II was the implementation order. 36 Mary F. Ehrlander Equal Educational Opportunity: Brown’s Elusive Mandate (New York: LFB Scholarly Publishing LLC, 2002) at 16.

10 case law is dominated by efforts to address de facto segregation and rank inequality in the relatively liberal North and West. Like is partly true in South Africa today ‘the cause of segregated schools in the North and West lay in ethnically separate housing patterns, rather than in statute’.37

Schools in the United States are funded through a system of local property taxes. This means that where property values are higher schools receive more funding. South African schools on the other hand are funded through the national treasury whose major revenue is income tax. The funds are allocated to provincial departments of education, which make further allocations to schools.38

In line with funding, governance of American schools is ardently local, with school districts responsible for management of staff, facilities and aspects of curriculum and having powers of taxation and expropriation. A school district will include numerous schools. School district elections are often fiercely contested. Any resident of a school district can stand or vote in elections.39 In terms of The South African Schools Act,40 school governing bodies are given powers to regulate schools, similar but less extensive than a school district in the United States.41 Only parents and the school principal are eligible for election, whilst others can be co-opted. At present a fair number of school governing bodies in poorer communities are dysfunctional sources of localized power politics and resource control.42

Whatever the differences between education systems in the two countries, the utility of a comparative study is not dependent on a close similarity. The value in the U.S. example resides not in the educational policies adopted but in the strategies developed

37 Ibid. at 20. 38 Funds are divided amongst provinces in terms of the Financial and Fiscal Commission’s formula that weighs various factors including population and poverty. Only higher education is funded directly by the national Department of Education. 39 Kramer v. Union School District 395 U.S. 621 (1969) was a U.S. Supreme Court decision in which a childless bachelor living with his parents in the Union School District challenged Section 2012 of the New York Education Law which stated that voters for school district elections must own or lease taxable realty property in the district or be parents or custodians of one or more children enrolled in a public school local to the district. The Supreme Court found these to be unreasonable restrictions on the right to vote. 40 The South African Schools Act 84 of 1996. 41 For example, section 58 of the South African Schools Act gives expropriation powers to the MEC rather than the School Governing Body. 42 Bloch (note 30) at 10.

11 at community level, and the ways these were related to by the judicial branch of government; experiences with fairly universal relevance.

V The Courts and Schools in America: A Brief History

During the last half century, educational reformers in the United States have used the courts and the law to pursue racial justice and better schools. In Brown the Supreme Court unanimously ruled that de jure segregation in southern schools was unconstitutional. Since then litigation has pursued the twin tracks of desegregation and equitable funding. 43

A. Desegregation

The effort to promote desegregation birthed by Brown faltered as the Supreme Court confronted the de facto segregation in the liberal North and West. Three distinct rulings were the undoing of Brown. First was the 1973 holding in the Denver case that de facto segregation was not itself unconstitutional unless proved to have been ‘invidiously’ intended.44 Then in the 1974 Detroit case the Court ruled that even if state officials had deliberately segregated schools these officials had no responsibility to desegregate because the tradition of ‘local control’ prevented their (further) interference in school districts.45 Thirdly, in a lengthy series of cases beginning in Pasadena in 1976, the Supreme Court ruled that segregation was not unconstitutional unless it was proven to have been ‘caused’ by specific state decisions. In the two decades since no court has even attempted the multivariate analysis sufficient for this demonstration.

Now finally, desgregation is truly history. In Parents Involved in Community Schools v Seattle,46 a 5-4 decision handed down in June 2007 the Supreme Court effectively

43 See Michael Heise ‘State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy’ (1995) 68 Temp. L. Rev. 1151. 44 Keyes v School District No. 1, 413 U.S. 189, 208 (1973); See also Columbus Board of Education v Penick, 443 U.S. 449, 464 (1979). 45 Milliken v Bradley, 418 U.S. 717 & n.14, 733, 741-48, 753 (1974) – This case essentially held that desegregation on an inter-district basis was unconstitutional, meaning that it could only occur intra- district, even if this meant that there would never be integration between districts. See also Missouri v Jenkins, 515 U.S. 70, 87, 91-98 (1995). 46 Parents Involved in Community Schools, Petitioner v. Seattle School District No. 1, et al.; Meredith v. Jefferson County Board of Education 551 U.S. ___; 127 S. Ct. 2738; 75 U.S.L.W. 4577; 20 Fla. L.

12 overturned Brown. Chief Justice Roberts, writing the opinion of the court, said the law prohibited using race as the selection criterion when integrating public schools and declined to recognise racial balancing as a compelling state interest.47

In his dissent Justice John Paul Stevens noted the profound shift in Supreme Court jurisprudence. In the past, he said, the Court was ‘more faithful to Brown and more respectful of our precedent than it is today’. He finished emphatically: ‘It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision’.48

Justice Stephen G. Breyer, in an emotional twenty minute speech from the bench, denounced the majority opinion. In the Justice's 77-page written opinion, the principal dissent, he called the ruling a ‘radical’ step away from established law that would take from communities a critical tool used for many years in the prevention of resegregation.49

In concurrence with the majority opinion Justice Clarence Thomas wrote, ‘[I]f our history has taught us anything, it has taught us to beware of elites bearing racial theories…’50 In the footnote to that dictum the Justice added a personal mention of his colleague: ‘Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.’51

The traditional analyses, bifurcated on partisan lines, are, from the left, that the Court lost its nerve,52 and from the right, that the Court retreated correctly behind the dignified boundary of the separation of powers.53 Both evaluations are partially correct but fundamentally flawed. The turnabout is partly attributable to a decisive reactionary shift,54 but it was also the fruit of a complex and inarticulate decision by Weekly Fed. S 490, available at http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf. 47 Ibid, pg 22 of the Court’s opinion. 48 Ibid, pg 6 of Stevens dissent. 49 Ibid, pg 30 of Breyer dissent. 50 Ibid, pg 35 of Thomas concurring opinion. 51 Ibid, pg 35, fn 30 of Thomas concurring opinion. 52 See Jennifer L Hochschild The New American Dilemma: Liberal Democracy and School Desegregation (Yale Fastback: 1984). 53 See David Kirp Just Schools: The Idea of Racial Equality in American Education (University of California Press: 1982). 54 See Ronald Dworkin ‘The Supreme Court Phalanx’ (2007) New York Review of Books V 54, Num 14.

13 the Court about its own capacity to define and solve problems.55 When, as in respect of the de jure southern segregation, judges could plausibly think that ending a wrong was itself a sufficient remedy for a grave social injustice, they were assiduous in their willingness to stop the wrong. But when it became apparent that forbidding a wrong, far from immediately correcting a harm, instead required choices among complex and competing ideas of the right, federal judges withdrew from the struggle as earnestly as they had initiated it. In short, the court has suffered as much from a want of effective remedies as from a lack of sound principles. Casting the issue as one of boldness or timidity of the courts thus misses the mark.

In analysing the Parents Involved in Community Schools decision, former Executive Director of the NAACP, Derrick Bell, argued that while the outcome is painful for many, it is time to acknowledge that racial integration as the primary vehicle for providing effective schooling for black and Latino children has run its course. He believes that where it is working, or has a real chance to work, it should continue, but for the millions of black and Latino children living in areas that are as racially isolated in fact as they once were by law, it is time to look elsewhere.56

Another weakness in the Brown system, which allowed it to be undermined, was the sociological foundation of the decision. Not prepared to declare desegregation bad and unconstitutional in principle, the Supreme Court under Chief Justice Earl Warren relied on voluminous sociological evidence which demonstrated the pernicious effects of segregation. It was partly this initial reliance on sociological evidence as the basis for the decision in Brown that lead to its subsequent retreat. Famously, in footnote 11, the Court cited various sociological studies as a form of proof that segregation did not work; that separate was inherently unequal. Thus when desegregation was shown, in some later sociological studies, to have unimpressive, or at best indeterminate, outcomes, meaning that black students weren’t faring better, it was very difficult for the court to sustain the decision.

55 James S Liebman & Charles F Sabel ‘A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform’ (2003) 28 N.Y.U. Rev. L & Soc. Change 183 at 200. 56 Derrick Bell ‘Desegregation’s Demise’ Chronicle of Higher Education (Jul 2007) vol 53 issue 45 pB11; NAACP stands for National Association for the Advancement of Coloured People, the organisation that coordinated Brown v Board of Education and much subsequent litigation.

14 The extent to which desegregation cases, even when successful in the courtroom, can claim some measure of success in the classroom, is a matter of debate. In 1955 in what was called Brown 2,57 the Supreme Court gave the order to implement desegregation ‘with all deliberate speed’. Not until the late 1960s when the Court finally became convinced that its deference to the self-reforming capacities of civil society were misplaced, did it, with the help of the Department of Health, Education and Welfare, order integration ‘forthwith’, the result being the almost instantaneous integration of schools attended by millions of children.58 As a result SAT scores rose amongst black children who entered newly desegregated schools.59 In finance equity cases too, success was noted in a reduction of per-pupil inequality across districts and an increase in total funding in some poor districts.60 However in many cases substantial court ordered redistribution of funds reduced overall state spending on schools: a case of equalising down,61 and even in poor districts where successful litigation increased per pupil spending, no or disappointingly little educational improvement occurred.62 There is as much if not more, and better, sociological evidence indicating that black students benefited significantly, and in large numbers, from integrated schooling and that white students increasingly embraced desegregation.63 The crux however, is that judges are experts in sifting good legal principle from bad, not in identifying reliable sociology.

B. Equitable Funding

As the federal courts retreated reformers turned to state courts to pursue equalisation of per-pupil funding across school districts within states. The cases are traditionally

57 Brown v Board of Education of Topeka, 349 U.S. 294 (1955). 58 Alexander v Holmes County Board of Education, 396 U.S. 19, 20 (1969). 59 James S Liebman ‘Desegregating Politics: “All-Out” School Desegregation Explained’ (1990) 90 Columbia Law Review 1463. 60 William N Evans, Sheila E Murray & Robert M Schwab ‘The Impact of Court-Mandated Finance Reform in Equity and Adequacy’ in Helen F Ladd et al (eds) Education Finance: Issues and Perspectives (1999) 72 at 74-75. 61 William H Clune ‘New Answers to Hard Questions Posed by Rodriguez: Ending the Separation of School Finance and Educational Policy by Bridging the Gap Between Wrong and Remedy’ (1992) 24 Connecticut Law Review 721 at 722-23. 62 James S Liebman ‘Implementing Brown in the Nineties: Political Reorganization, Liberal Recollections, and Litigatively Enforced Legislative Reform’ (1990) 76 Virginia Law Revue 349 at 392-93. 63 See U.S. National Center for Education Statistics The Condition of Education (Washington D.C.: GPO, 1993); Christine H. Rossell and Willis D. Hawley The Consequences of Desegregation (Philadelphia: Temple University Press, 1983).

15 analysed as falling into three ‘waves’. The effort to promote finance equity under the Equal Protection Clause of the Fourteenth Amendment, beginning in 1971 with Serrano v Priest64 and ending disastrously in the Rodriguez decision, was the first wave.65 In the view of Liebman and Sabel, developments in the state funding equity cases paralleled those in the federal desegregation cases; judges in many jurisdictions ‘advanced confidently’ as long as there appeared to be a ‘straightforward remedy’ for any offensive disparity in the deployment of public resources. They ‘broke stride’, however, once further analysis revealed ‘unexpected complexities’ in goals and remedies.66

The second wave, which concentrated on equal protection and education clauses found in state constitutions, began in 1973 with Robinson v Cahill67 and ended in 1989.68 It was characterised by a commitment to equity and focussed on reducing per pupil spending disparities. The third continued efforts in the state courts but shifted the normative focus from “equity” to “adequacy”, looking to the explicit textual language of education provisions in state constitutions.69 A concomitant evolution from top-down rule-based remedies to decentralised, standards-based intervention has been an important accompanying development.70

VI Critical Focus: The ‘Third Wave’ of School Finance Cases

Two processes of reform began to emerge from the state-based work of progressive institutional actors and the activism of communities respectively. The trends are at

64 Serrano v Priest 487 P.2d 1241 (Cal. 1971), cert denied, 432 U.S. 907 (1977). 65 In San Antonio Indep. School Dist v Rodriguez, 411 U.S. 1 (1973) the Supreme Court declined to intervene in regard to funding inequity. Demoting public education to nonfundamental status it declined to exercise ‘strict scrutiny’ on the basis that wealth discrimination, absent a fundamental interest, was not unconstitutional. Central to the Court’s explanation for doing so was its professed lack of competence in identifying the educational resources that might be deemed fundamental or the proper fiscal measures for making sure that those resources were evenly distributed. 66 Liebman & Sabel (note 55) at 202. 67 Robinson v Cahill 303 A.2d 273 (N.J.), cert denied, 414 U.S. 976 (1973). 68 William E Thro ‘Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model’ 35 B.C.L. Rev. 597 at 601. 69 The path-finding cases were Helena Elmentary School District No 1 v State 769 P.2d 684 (Mont. 1989) and Rose (Ky. 1989) (note 2). 70 Sabel & Simon (note 10) at 1022.

16 first glance contradictory, with roots in both the Supreme Court’s stridency and its equivocation. The first was a centralising tendency to set minimum standards for school and student performance. The second came in the form of a new localism, aiming to devolve authority for classroom instruction away from state administrations and towards districts, principals and teachers. As the minimum standards regime was infused with the new localism it evolved away from evaluating schools through punitive threshold tests towards diagnostic standards aimed at orienting pedagogic attention to individual students and communities.71

As educational reformers embraced the notion of a community-oriented approach that nevertheless demanded acceptable common standards, their approach in the courts moved away from one of simple finance-equity to adequacy of educational standards and sufficiency of funds.72 Crucially, adequacy is broader than mere adequacy of funds and speaks to an adequacy based in outcomes and contemporary society. Local grassroots action groups emerged to set standards, overcome practical problems and ensure political and judicial accountability. What emerged in response to the recidivism of the Supreme Court demonstrates the ‘possibilities for innovative public action that arise when the parties exhaust familiar programmatic solutions and yet still face urgent requirements for action’.73

The state courts found it easier to rule on the basis of education clauses than the equity doctrine of equal protection clauses. Still the judicial revolution went further than a refined legal approach, finding footholds in the reality of judicial politics; as Liebman and Sabel suggest:

‘ The courts seem to have stumbled upon a way to realize their virtues as disentrenching institutions, exposing encrusted inequalities through public and constitutional scrutiny, without, however, directly administering the positive reforms that they have proved unable to command successfully. The latter developments suggest the possibility of a non-court-centric form of judicial review that preserves the capacity for constitutional deliberation as a form of

71 Liebman & Sabel (note 55) at 190 and 192 argue that the federal No Child Left Behind Act 2001 (Public Law 107-110) is a useful legislative exemplar of this model. 72 Heise (note 43) at 1162. 73 Liebman & Sabel (note 55) at 191.

17 reflection on the deepest norms of the political community, while substantially lessening the intrusiveness of the judiciary and so tempering the counter- majoritarian dilemma.’74

Naturally ‘adequacy’ belies a scientific definition. In some cases the courts extract, from expert accounts of well-functioning schools, standards specifying very general goals for the states’ schools. It may then fall to the legislature to translate these goals into a workable plan for educational reform. The 1990 Kentucky case, in which the Kentucky Supreme Court, using standards devised and campaigned for by a state- wide movement for educational reform, illustrates this.75 In a second group of cases, courts select one or more detailed models of successfully reformed schools. School districts found to be violating their constitutional obligations are then required to choose a model or an unlisted alternative that delivers superior results. New Jersey exemplifies this; in 1998 after years of failed finance-equalisation efforts, the New Jersey Supreme Court gave the state three years to implement “whole school” reform programs (or alternatives of the districts’ own choosing) based on bottom-up needs assessments.76 Part of this program involved delegating resource-allocation decisions to the school level, thereby increasing schools’ effectiveness and productivity by bringing the perspectives of parents and school personnel into the decision-making process. In a third category the court issues a sibylline rejection of solutions that do not meet its adequacy standard, while remaining silent as to the particulars of the standard or how to observe it. Texas typified this third category, its high court thrice ordering a new coordination for school funding without specifying how.77 It culminated in the revision of the entire Texas Education Code with very positive outcomes.78

A very significant new development was extra-legal participation by education rights groups and social movements. The groups were at times invited by the courts to participate in the remedial phase, both as implementers and assessors. This “dialogic”

74 Liebman & Sabel (note 55) at 192. 75 Rose (Ky, 1989) (note 2); discussed in detail below. 76 Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (1998). Ed. Law Rep. 258. 77 Edgewood Indep. Sch. Dist. v Kirby, 777 S.W.2d 391 (Tex 1989) (“Edgewood I”); Edgewood Indep. Sch. Dist. v Kirby, 804, S.W.2d 491 (“Edgewood II”); Carollton-Farmers Branch Indep. Sch. Dist v Edgewood Indep Sch. Dist., 826 S.W.2d 489 (Tex 1992) (“Edgewood III”); Edgewood Indep. Sch. Dist v Meno, 917 S.W.2d 717 (Tex 1995) (“Edgewood IV”). 78 Liebman & Sabel (note 55) at 239-250.

18 model of reform, in which the executive, the judiciary and various aspects of civil society participate, in which remedies are constantly refined through deliberation among the broadest range of stakeholders, is seen as the most positive development in U.S. education litigation in decades. The literature on this innovation in school governance calls it “The New Accountability”.79 School reform litigation has thus come to engage a much broader range of actors and to spawn an array of institutions that, until they developed, would have been impossible for the courts or the legal system to imagine, much less to embody in a court order or legal rule.

Liebman and Sabel explain it thus:

‘ The New Accountability shifts emphasis from regulatory compliance to contextualized judgments about the capacity of school systems to produce ever better educational outcomes.’80

Such qualitative, context specific assessment acknowledges the need for wide participation. The legislatures set frameworks rather than precise ends. These are transformed by school communities into particular goals. Using the local and supra- local standards generated by the process the courts’ role is to periodically determine whether particular schools, districts, government departments and legislatures are providing constitutionally adequate levels of education. Kentucky is an important example, not least because the Kentucky Supreme Court’s ruling in Rose v Council for Better Education81 was the inaugural moment for ‘third wave’ litigation across the country.

VII A Case Study: Kentucky

In 1988 Kentucky’s education system was in dire straights. The state ranked last in the country in adult literacy. For every ten children that began school in Kentucky, only five would finish high school and only one would attain a college degree. The

79 Liebman & Sabel (note 55) at 229. 80 Liebman & Sabel (note 55) at 229-230. 81 Rose (Ky. 1989) (note 2).

19 state ranked 48th in per-pupil spending, 41st in pupil-teacher ratio, and 38th in average teacher salary.82

The large reforms that have taken place in Kentucky subvert deep-seated assumptions about the difficulties in fundamental social innovation. For many, scepticism about the possibility of reform is rooted in convictions about the difficulties of collective action. For some, including reform-minded lawyers, the legal system itself might be an obstacle. Kentucky shows how, when the political context is present in legal strategy and court decision-making, the legal system can be an Archimedean point from which to usher ‘improbable, even impossible, outcomes’83 in social change.

Reform began in a ‘statewide citizens committee’,84 which initiated and supported educational activist groups in Kentucky’s cities, towns and school districts. The reform movement, known as the “Prichard Committee”, began in 1983 when a governmentally appointed committee realised that its extensive work would have no impact in the politically deadlocked state, and reconstituted itself as an organ of civil society. Its membership drawn from outside the education profession evolved to include a carefully crafted mixture of concerned citizens ranging from parents to business leaders and former governors. By 1988, educational insiders, including teachers, had rallied to the new movement. By the end of the decade the Prichard Committee and the localised “Prichard Committees” supported a legal challenge to the state’s school system.

In Rose v Council for Better Education85 the Kentucky Supreme Court declared the state’s entire school system unconstitutional. The case turned on adequacy arguments that relied on the Kentucky Constitution’s education clause which requires an ‘efficient system of common schools throughout the State’.86 The Court held that the legislature ‘shall provide funding which is sufficient to provide each child in

82 Prichard Committee for Academic Excellence Gaining Ground: Hard Work and High Expectations for Kentucky Schools (Author: Lexington, 1999); see also Blake Haselton & Michael Davis ‘Resources Do Produce Results’ (2004) Foresight, Vol. 11, No. 1 accessed at http://www.kltprc.net/foresight/Chpt_76.htm. 83 Liebman & Sabel (note 55) at 232. 84 Liebman & Sabel (note 55) at 250. 85 Rose (Ky. 1989) (note 2). 86 Ky. Const. Section 183.

20 Kentucky an adequate education’.87 According to the decision, a constitutional system of education must have as its goal to provide each child with at least the following seven capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilisation; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to understand the issues affecting his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favourably with their counterparts in surrounding states, in academics or in the job market.88

Governor Wilkinson held a press conference to pledge that he would comply with the order and within 11 months the Kentucky legislature followed the court’s lead by enacting ‘the most comprehensive reform of education in the nation’.89 It emphasised local initiative and statewide accountability.90 The Act reiterated the standards-based approach of broad educational goals adopted by the Court, vastly increased the education budget, created a system for equalising school funding among districts, and outlined local assessment and state-based accountability processes.91 By choosing a system of school-based management by which the various stakeholders could reshape schools to meet legislated goals, the Act reinforced the alliance between the business community, forward-thinking politicians and educational outsiders, and tied this alliance to parents, teachers and administrators. The state’s educational agency was redesigned into a competent service provider rather than a rule-maker.

87 Rose (Ky. 1989) (note 2) at 213. 88 Rose (Ky. 1989) (note 2) at 197, 212. 89 Liebman & Sabel (note 55) at 256. 90 Kentucky Education Reform Act, ch 476, 1990 Ky. Acts 1208 (codified as amended at Ky. Rev. Stat. Ann. Sections 156-163). 91 Other reforms included early childhood and special needs programs and a new system for credentialising teachers to certify that they meet their responsibilities.

21 The Prichard Committee’s work in policy-making and activism had set the course for the restructuring of Kentucky’s schools. By the time of the court case a statewide consensus existed on the desirability of wholesale reform.92 Moreover, ‘the fusion of equity and adequacy arguments via accountability that had … marked the work of the Prichard Committee from the beginning put a decisive stamp on the court’s decision in Rose’.93

Key to the Prichard Committee’s work was the dissemination of data that equipped ordinary people to debate in their communities and engage with school boards.94 In 1985 it published a seminal 150-page report which concluded with 82 specific recommendations that formed the basis for activist and legal work in areas including educational goals, school governance and assessment, finance and the teaching profession. It recognised and embraced the two paradoxical forces of localism and centralism, calling for the ‘active and informed engagement of local people with local schools’ because only ‘a concerned and involved community can have good schools’, but also recognised the state’s ‘clear responsibility to protect the public, to ensure quality and to initiate reforms which cannot, or will not, be completed at a local level’.95 It attempted to synthesise these forces:

‘ State policies must help local taxpayers, parents, and students make sound judgments about their schools; must encourage local interest in good schools; and must give local school leadership the flexibility to seek state-defined goals through creative and innovative means.’96

Making the new legislation real and meaningful for Kentucky schools, as envisioned in the court order and the preceding activism, has been difficult and incomplete. The breakdown appears to have occurred precisely at the point where a centralised government department must empower localised and diversified community-based

92 Jonathan Shafter & Alexander Greenawalt Education Reform in Kentucky (April 13, 2000) (unpublished manuscript, on file with the NYU Review of Law and Social Change) at 9 cited in Liebman & Sabel (note 55) at 256 fn 324. 93 Liebman & Sabel (note 55) at 256. 94 Molly A Hunter ‘All Eyes Forward: Public Engagement and Educational Reform in Kentucky’ (1999) 28 Journal of Law & Education 485 at 494. 95 Prichard Committee for Academic Excellence The Path to a Larger Life: Creating Kentucky’s Educational Future (2d ed. 1990) at 42-43. 96 Ibid.

22 implementation. The organised parts of civil society, by their very assertiveness, toughened no doubt by their lingering mistrust of public bureaucracies, retarded the transformation of existing governmental bodies. This applied particularly to the Kentucky Department of Education which needed to be remade into an effective infrastructure for local school initiatives and for periodic revision of the framework standards for the education system as a whole.97 The unorganised remainder, particularly parents who were now given voting rights for the election of management councils, were slow to participate, with voter-turnout at 4% in 1992, rising to 22% in 1993.98 The Prichard Committee was forthright in its assessment: ‘[T]oo many school councils have not recognized their independence…’99 A major study 10 years after the new legislation showed firstly that progress was made in attaining finance-equity in Kentucky school districts, but that student achievement gaps increased from 1995 to 2000 between formerly poorly-resourced and formerly well-resourced school districts.100 Its authors suggested that many districts failed to use the resources at their command equally well.101

The Kentucky Department of Education, for its part, intensified its oversight, periodically changing the framework of the state’s education system in ways that impeded mutually supporting reforms by actors outside the government. Instead of coordinating evaluations of school performances to help districts and schools improve their standing, much departmental energy has been invested in compiling manuals and flip-charts telling the various actors how to comply with their new responsibilities; a service it has carried out in a manner suggestive of a ‘reversion to older authoritarian rulemaking’.102 Another disquieting trend has been away from diagnostic standards-

97Liebman & Sabel (note 55) at 257. 98 Jane L. David ‘School-Based Decision Making: Kentucky’s Test of Decentralization’ 76 Phi Delta Kappan 706-12. 99 Prichard Committee Gaining Ground (note 82) at 9, cited in Liebman & Sabel (note 55) at 259. 100 This is on the state mandated assessment of student performance, the Commonwealth Achievement Testing System (“CATS”) which replaced the Kentucky Instructional Results Information System (“KIRIS”). CATS uses much narrower measures of student performance. 101 Blake W Haselton & John L Keedy The Kentucky Education Reform Act: A Comparison of Equity & Adequacy Outcomes in Kentucky between Plaintiff & Non-Plaintiff School Districts (2002) Paper presented at the Annual Meeting of the American Educational Research Association (New Orleans, LA, April 1-5, 2002) accessed at http://www.eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED469299 - This study compared the equity and adequacy outcomes for plaintiff and nonplaintiff school districts as they relate to the Kentucky Education Reform Act (KERA) of 1990. 102 Liebman & Sabel (note 55) at 261; See also Margaret E Goertz ‘Comprehensive School Reform and School-Based Budgeting in New Jersey’ (2001) Paper presented at the Annual Meeting of the American Education Finance Association (26th, Cincinnati, OH) available at

23 based evaluation of learner and school progress to an individualised simplistic test- score measurement with punitive rather than remedial consequences.103

Nonetheless there are encouraging signs that the Kentucky system does afford opportunities to correct existing blockages. The legislative changes disaggregated regional education budgets to the district and school level and made decision-making dramatically more transparent; this has seen some local management councils find innovative means of influence. In some districts a profusion of new community initiatives used both the new institutional structures and the information on school performance that they compiled to challenge bureaucratic decisions that would have been unimpeachable under the old regime. There have been results too. From 1992 to 2002, Kentucky’s improvement in 4th grade reading standards was the sixth best in the country.104 By 2006 Kentucky was above the national average in reading, language and mathematics.105 By 2005 the state’s national rankings for per pupil spending, pupil-teacher ratios and average teacher salary had improved to 30th, 16th and 34th respectively.106 And importantly, differentials in performance between black and white students in Kentucky is amongst the two or three lowest in the country.107 If these successes are shared and built upon it might be possible to conclude that the Rose decision, and the legislation it effectively ordered, ‘has struck the right balance between local initiative, facilitative administrative coordination and political oversight’.108

http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/19/32/00.pdf - this paper shows how ‘insufficient information and training from the state, and micromanagement by the state’ thwarted similar reform efforts in that state. 103 Diane Massel et al. ‘Persistence and Change: Standards-Based System Reform in Nine States’ (1997) Consortium for Policy Research in Education Policy Briefs RB-21 at 30-31. 104 National Assessment of Educational Progress (NAEP) State Profile of Kentucky (2005) available at http://nces.ed.gov/nationsreportcard/states/profile.asp. The NAEP testing is ‘criterion-based’, meaning it assesses children in each state against educational criteria set at a federal level. NAEP testing is done in grades 4, 8 and 12. 105 Kentucky Department of Education ‘Comprehensive Test of Basic Skills’ (2006) CTBS Survey Edition accessed at http://www.education.ky.gov/KDE/Administrative+Resources/Testing+and+Reporting+/Reports/CTB S+5+Reports/2006+CTBS5+Reports.htm; CTBS testing is ‘norms-based’ meaning it does not use criteria, but measures a state’s students against the national mean. CTBS testing is done in grades 3,6 and 9. 106 National Education Association ‘Education Statistics: Rankings & Estimates 2006’ available at http://www.nea.org/edstats/RankFull06b.htm. 107 National Assessment of Educational Progress (NAEP) State Comparisons (2005) available at http://nces.ed.gov/nationsreportcard/nde/statecomp/. 108 Liebman & Sabel (note 55) at 262.

24 Certainly though the euphoric post-Rose moment has receded. Might it be that the Kentucky reformers, lead by the highly inventive Prichard Committee, suffered the same anesthetising high that duped Thurgood Marshall and large section of the United States into believing that change would simply follow the victory in Brown? This would be an unsettling conclusion, because the remedy in Rose, being the bellwether for the third-wave process-oriented multi-party approach, was premised precisely on the learning that the law is not a cure, but a diagnosis that can set a corrective course of action. It is however clear that brave court decisions and sweeping legislative reform reconfigure the landscape in profound ways requiring a fundamental rethink, by all parties, of the roles and strategies they should adopt. In this respect it may be that both civil society and the branches of government were slow to adapt.

VIII Politics and Adjudication in the Age of Non-Court-Centric Remedies

Once a court, U.S. or South African, finds an educational inadequacy amounting to a constitutional violation, it must still fashion a remedy that will contribute to and shape actual change. Activists and lawyers crafting draft orders in heads of argument, and judicial officers handing down judgments, are confronted with a critical issue: how to recast court orders and the job of the judiciary more generally so as to capture the advantages of courts as a disentrenching institutions without enmeshing them in the day-to-day reorganisation of complex bodies that has frequently overtaxed their own capacities.

Traditionally courts face a problematic choice. They can defer to the toleration of existing inadequacies by the executive branch or they can make a declaration of constitutional invalidity and take control themselves of the troubled institution through a curative order or some form of supervisory jurisdiction. Fortunately there is a third alternative. This amounts to requiring the parties to mend the defect in accordance with constitutional principles set down by the court. Using the information that adequacy-based standards provide the courts can create sound expectations of compliance, and distinguish between good faith and bad faith efforts.

Identifying this new-accountability approach as “non-court-centric judicial review” Liebman and Sabel explain as follows:

25 ‘ [We] call this new form of judicial review “non-court-centric judicial review,” because it allows the court to participate in a process of building a constitutional order, rather than imposing one or abandoning its obligations to do so.’109

The remedy is non-court-centric because it does not require the court as the central actor in the implementation phase.

An analysis of remedies familiar in South African jurisprudence will help in fleshing out this vague-seeming notion. Section 38 of the South African Constitution which permits a court to fashion ‘appropriate relief’ and Section 172(1)(b) which allows ‘any order that is just and equitable’ are the basis for the various forms of relief seen in South Africa. When a right is infringed the most basic form of relief is a declarator whereby the court will state the breach and assume that the offending party, in most cases the government, will remedy it. An injunction or simple mandamus on the other hand is an order for specific action. The practical and legal difference between a declarator and an injunction is that an injunction affords only ‘one more chance’, as contempt proceedings can flow from a failure to comply, whereas a declarator affords ‘two more chances’, because the stage of injunction must be passed before proceeding to a contempt application.110 Supervisory jurisdiction, as it is usually understood, involves a court requiring government to report back to it in regard to remedying a constitutional breach. Such supervisory jurisdiction may in certain cases be in regard to a detailed mandatory order called a structural interdict, which, owing to their directive nature, can be followed by contempt proceedings.

Relying on the typology sketched above, Budlender and Roach have described the remedies election as between ‘declaratory or one-shot remedies’ on the one hand and ‘wide powers’ to issue ‘complex and mandatory relief and to retain supervisory jurisdiction’ on the other.111 This sees the problem of remedies as a linear choice between options of increasing severity.

109 Liebman & Sabel (note 55) at 281. 110 Owen Fiss ‘Dombroski’ (1977) 86 Yale LJ 1103 at 1122-24. 111 Geoff Budlender & Kent Roach ‘Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?’ (2005) 122 2 SALJ 325 at 325.

26 They separate out three bases of rights violations originating in different species of governmental failure: inattentiveness, incompetence and intransigence. In their view ‘when one is thinking about what remedy is appropriate, it may be helpful to explore the underlying reasons why governments have failed to respect constitutional rights’.112

Their argument boils down to the proposition that the less forgivable the breach is the more ones moves along the inattentiveness-incompetence-intransigence axis, thereby justifying a more stringent remedy:

‘ We suggest that, while declarations and requirements that governments report to the public will often be sufficient in those cases in which governments are merely inattentive to rights, stronger remedies involving mandatory relief and requirement of governmental reporting to the courts may be necessary … particularly where governments are incompetent or intransigent with respect to fundamental rights....

Directing governments to report to the public is a softer remedy than court orders requiring that government report back to the court and that the court approve the government’s plan.’113

The reason for violation is relevant, however the weakness in this analysis is that it ignores complexities of political power, particularly the fact that it often exists outside of the three branches of government. The public, or a public, may develop political power through a civil-society campaign; in such a case compelling government to account meaningfully to that sector and the public at large could be a powerfully coercive remedy.

It is true that ‘those who are most in need often do not have ‘powerful political constituencies’’,114 however sometimes they do. In South Africa newly-born babies

112 Ibid at 351, emphasis added. 113 Ibid at 327 and 348, emphasis added. 114 Chris Hansen ‘Inattentive, intransigent and incompetent’ in S R Humm (ed) Child, Parent and State (1994) at 232 cited in Budlender & Roach (note 111) at 346.

27 with poor HIV-positive mothers had the Treatment Action Campaign. Thus Budlender and Roach cannot avoid contradiction, suggesting firstly that the lack of a structural interdict in TAC had ‘fatal consequences’ for ‘a significant number of babies’,115 but later arguing that ‘the result of an order for public reporting would have been earlier and more effective monitoring, which in turn would have enabled much earlier steps to ensure compliance in Mpumalanga, with a likely saving of lives’.116

It is interesting to note that Liebman and Sabel describe the swift translation of the Rose decision into comprehensive legislation as a ‘foregone conclusion’, even ‘anti- climactic’. They say this because ‘public opinion was broadly sympathetic’ and the Prichard Committee had lobbied the legislature for years.117

A true non-court-centric remedy in the spirit of dialogic process and the “new accountability” would go further than to require mere public reporting. Rather the court, having outlined the breach and described the elements of a constitutionally acceptable standard, would order a participatory process, whereby civil society and those for whom the order is actually made are empowered to engage in the remedial process. This not only creates the possibility for close scrutiny and heightened accountability, but also, potentially, for greater energy and capacity to be directed towards the problem.

The Kentucky case study is an example of how such remedies work, and from it generalised possibilities emerge. Rather than decreeing that schools should have two laboratories and three tennis courts each, a court can order the creation of a local council, to be participated in by all stakeholders, the mandate of which will include the effective utilisation of a facilities budget according to constitutionally determined standards. Instead of trying to redesign a teacher-training school, the court can declare certain standards unconstitutional and create a mechanism within which the teaching 115 Budlender & Roach (note 111) at 334. 116 Budlender & Roach (note 111) at 347, emphasis added. The meaning of ‘structural interdict’ could be broadened to include regular reporting to the public, however as it is traditionally understood, and as I take the authors to have used it, the phrase implies reporting to a court rather than the public. In TAC (note 15) at para 129 the Constitutional Court issued an injuction, refusing to follow the structural interdict of the High Court on the basis that ‘the government has always respected and executed orders of this Court. There is no reason to believe that it will not do so in this case’. However the Court did say that ‘a mandamus or supervisory jurisduction’ may be necessary to ensure an effective remedy for a breach of any constitutional right, including a socio-economic right. 117 Liebman & Sabel (note 55) at 256-257.

28 profession, its unions, government, civil society and schools can devise and choose from various options for professional development.

It is of course common that, despite a constitutional failure, an issue may not garner significant public support, in which case a non-court-centric remedy is less attractive. There are at least two reasons why this could arise. It may be that the issue itself lacks public traction, or that despite an issue being of wide general interest civil society has not coalesced to bring political organisation to public sentiment. These are not mutually exclusive; indeed the nature of the issue may contribute to its lack of political bite. In a case where the issue does not lend itself to public interest a court would justifiably be more inclined to exercise its own authority in a structured supervisory manner. However in a case of wide-spread engaged citizenship where activism may even be responsible for bringing the case, a non-court-centric remedy would harness the court’s authority to formalise the reasonable goals that civil society may already have set and the participatory role it may be attempting to play, making the democratic polity, rather than the court, the first-line enforcer of the judgment.

The fact that civil society may be weak or disparate is not in itself reason for the court to abandon this approach. The adjudication should consider the issue itself and ask to what extent the issue has the potential to mobilise activism. In a field like education, an area of huge public expenditure, involving millions of people, a court could use its order to create a platform on which civil society can stand and begin to act. In Texas a series of well-crafted court orders preceded, presaged and propelled a massive public groundswell, in contradistinction to the series of events in Kentucky.118 It is therefore not only the political actors and their strengths that the court should consider, but also the issue itself.

Michelman has raised the concern that indeterminacy will doom an adequacy jurisprudence because no minimum standard is articulated and thus none enforceable.119 However, standards, whether legislated or created by the public and

118 Edgewood I – IV (note 77); See also Liebman & Sabel (note 55) 232 – 250. 119 Frank I Michelman ‘Foreword: On Protecting the Poor Through the Fourteenth Amendment’ (1969) 83 Harvard Law Review 7; See also David Bilchitz Poverty and Fundamental Rights (Oxford University Press, 2007).

29 recognised by the judiciary as in Kentucky, can be seen to provide a judicially enforceable minimum.120

In framing its remedy the court does not make a simple binary choice between a court-centric or non-court-centric approach. In a case relating to education for example, the level of specificity in the order, the extent to which the court or civil- society formation predominate in participating in the implementation phase, and the stringency with which the judgment is given are all a matter of degree. ‘If the framework is too intrusive, it suffocates local innovation. If it is merely indicative, local action is uncoordinated, and parents, teachers and students are left guessing about what they need to do to please the authorities.’121

It is essential that non-court-centric remedies are communicated effectively to the public. The Indian Supreme Court has included such provisions in its judgments, ordering summaries of its orders to be broadcast on TV, in newspapers and through public notices.122 In TAC the Constitutional Court stated as a principle that effective communication is essential, but ultimately relied on the media and governmental goodwill. The Court held as follows:

‘This can be achieved only if there is proper communication, especially by government. In order for it to be implemented optimally, a public health programme must be made known effectively to all concerned, down to the district nurse and patients. Indeed, for a public health programme to meet the constitutional requirement of reasonableness, its contents must be made known appropriately…’123

A source of scepticism about the robustness of the new American remedial jurisprudence can be traced to concerns about the transgression of boundaries that frame the basic units of American democracy. In the Madisonian tradition the

120 See pg 21 supra; see fn 136 infra. 121 Liebman & Sabel (note 55) 231 fn 214. 122 See People’s Union for Civil Liberties vs. Union of India & Ors. (2004; 12 SCC 108),Writ Petition (Civil) No. 196 of 2001; Kapila Hingorani vs. State of Bihar (2003; 6 SCC 1). 123 TAC (note 15) at 123; See also para 133: ‘It is necessary that the government programme, as supplemented to comply with the requirements of the judgment, be communicated to health caregivers in all public facilities and to the beneficiaries of the programme.’

30 separation of powers protects the people from the government and the government from the demos. However, judicial review, not part of this original conception, has come to be regarded as essential to a democratic system. Still though, in the jurisprudential orthodoxy administrative experts are called on to settle ambiguities in the regulation of private dealings, legislators are required to reconcile political disputes and judges are asked to decide which disagreements are technical, which are political, and which they themselves can determine by adjudicating on the contractual or property entitlements of individuals.

Where possible though courts can use non-court-centric remedies to encourage democratic participation. Ordering participatory processes stimulates grass-roots democracy and the possibility of local tailoring of constitutional standards to community-specific conditions and needs. They may also discourage, in a healthy way, the use of courts as a first-instance site of struggle, sending a signal to reformers that they may be rewarded with a greater remedial role if they build their knowledge, capacity and political strength first. Typical concerns about courts acting in an anti- democratic counter-majoritarian fashion might also be assuaged by the use of non- court-centric remedies.

As Budlender and Roach convincly argue:

‘A court that requires an elected government to communicate with its citizens about important matters of governance and steps taken to comply with constitutional rights cannot reasonably be criticized for being undemocratic or infringing the separation of powers.’124

This is not to suggest that conventional structural interdicts and supervisory jurisdiction are anti-democratic or in breach of the separation of powers; these are justified when they are the only means of remedying a constitutional wrong. Clearly there remain instances where courts will need to intervene in a strict, heavy-handed, directive manner. At any rate the primary basis for a non-court-centric approach is a realist reckoning about institutional capacity and what works. The realpolitik conclusion of Budlender and Roach is unarguable: ‘In the final analysis, the test is

124 Budlender & Roach (note 111) at 348.

31 one of effectiveness. Court orders that are not effective undermine respect for the courts, for the rule of law, and for the constitution itself.’125

What the recent decades in the American education reform movement show is that when policies patently fail the public, the consequent crisis opens the way to a new logic of cooperative action, through which diffuse coalitions can demand significant resources for reform projects in the name of the public good. Such coalitions partner disaffected insiders from the old system whose professionalism is deeply affronted by the deterioration, with political campaigners whose larger agendas are validated by the collapse of the old system and the prospect of renewing it. Once this coalition acquires an identity, however fragile, its very existence becomes a lightning rod for latent discontent. What the Kentucky case study shows is that courts often play a crucial role in the channelling of these new forms of collective action. Importantly, social reform plaintiffs have prevailed in eighteen of twenty-eight of the relevant decisions in the highest state courts since 1989.126

No assessment is attempted of the long-term sustainability or success of the new reform movement in American education, and its creative use of the courts, nor whether it amounts presently to a transformative democratic gain. But as a form of democratic experimentalism where activism is based on principle but responds energetically to changing economic, social and political conditions, it is an exciting and relevant story. South African society has already shown itself to be receptive to issue-based participatory activism, and coupled with a receptive constitutional system, there is a promising possibility that profitable lessons can be drawn from the U.S. experience.

IX Analysis: Back to South Africa

The United States Constitution is, despite the 13th, 14th and 15th amendments, thoroughly vertical, imposes no affirmative obligations on the federal government and says nothing about education. The decision in Brown therefore famously relied on the

125 Budlender & Roach (note 111) at 351. 126 See Michael A Rebell ‘Education Adequacy Litigation and the Quest for Equal Educational Opportunity’ in Timothy Ready et al (eds) Achieving High Educational Standards for All: Conference Summary (2002) at 228 n54.

32 equal protection clause in the Fourteenth Amendment. The South African Constitution on the other hand is a fully horizontal instrument, which imposes affirmative obligations, including in regard to socio-economic rights.127 However, most state constitutions in the United States have education provisions comparable to our own Section 29.128 For example the State of Georgia’s Constitution requires ‘an adequate public education’,129 Maryland’s provides for ‘a thorough and efficient system of Free Public Schools’ and ‘the extension of a judicious system of general education’.130 All state constitutions require the establishment and maintenance of public schools. Seventeen states have constitutional language explicitly requiring public schools be “free”. Twenty state constitutions express the value of public education by recognising the importance of a “general diffusion of knowledge” or calling education a “fundamental goal”. Twelve states have constitutional provisions requiring an “efficient” educational system and sixteen states require a “thorough” or “uniform” educational system.131

The right to education in the South African Bill of Rights speaks only of a ‘basic education’ and to ‘further education, which the state, through reasonable measures, must make progressively available and accessible’. There is none of the more exacting or demanding language found in state constitutions across the Atlantic, although the preamble to the Schools Act speaks of school system that will ‘provide an education of progressively high quality’.132 Nevertheless, it is possible that ‘basic education’ could be used effectively, because a basic education must, at minimum, be to a standard that children will learn to read, write and count. The 0,1% Western Cape compliance at a grade 3 level cannot amount to ‘basic education’.133 Furthermore, what ‘reasonable measures’ means for the purposes of interpreting section 29(1)(b) must be interpreted in light of the Constitution’s overall transformative agenda as

127 The Constitutional Court has to this point adopted a reasonableness standard that has been criticized for undermining the rights created by the Constitution; see for example Bilchitz (note 83). 128 Section 29(1) Everyone has the right- (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. … 129 Ga. Const. Article XIII Section I. 130 Md. Const. Article XIII Section I. 131 U.S. State Constitutions and Web Sites available at http://www.constitution.org/cons/usstcons.htm. 132 Schools Act (note 40) Preamble. 133 See Part III supra.

33 exemplified in the Preamble, the values enshrined in section 1 and the rights to equality and human dignity.

The demise of desegregation and first and second-wave finance-equity litigation in the United States, because of a reliance on the Equal Protection clauses at the federal and state levels, suggests that education rather than equality should be the founding right for bringing cases in South Africa. But this misses the distinction between the U.S. and South African constitutional structures, the latter with horizontal application, affirmative obligations and with equality enjoying pride of place as the first right in the Bill of Rights.

As Kriegler J expressed it in a dictum in Hugo:

The South African Constitution is primarily and emphatically an egalitarian constitution… in the light of our particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and its organising principle.134

Furthermore in terms of Section 34(1) of the South African Schools Act, ‘the State must fund public schools from public revenue on an equitable basis in order to ensure the proper exercise of the rights of learners to education and the redress of past inequalities in education provision’. This suggest that what is required is not equal funding by the state to all schools, but substantively equal funding of schools, meaning that the government should consider existing levels of funding to schools when making its allocations.

Nevertheless, the real lesson from the American experience is that adequacy is sometimes easier to monitor and implement than equity, and in certain circumstances is easier to sell politically. Equality should thus play a strong secondary and supporting role to a standards-based approach pursued through the right to education in section 29.

134 The Republic of South Africa v Hugo 1997 (4) SA 1 (CC); (6) BCLR 708 (CC) at para 74.

34 Section 35 of the Schools Act requires the Minister ‘subject to the Constitution’ to determine ‘norms and minimum standards for the funding of public schools’.135 In addition a proposed amendment to the Schools Act will provide for the Minister to create regulations laying out standards for school facilities.136 Lacking in these regulations are standards in regard to the quality of education and educational outcomes of the sort identify by the Kentucky Supreme Court in Rose. Nevertheless this amendment would be a positive development and to some extent reflects the standards regime in the No Child Left Behind Act.137 These and other standards could provide a cogent rallying point around with community-based movements can coalesce, and upon which they can mount formidable legal challenges.

The South African constitutional system is less constrained by notions of each sphere of government resolutely defending its neighbourhood. Cooperative governance eschews this. Moreover, as important as the separation of powers, are democratic accountability and constitutionalism, broadly conceived. Thus arguments against courts infringing on an executive or legislative responsibility will have less traction.

135 In terms of the section this must be done after consultation with the Council of Education Ministers, the Financial and Fiscal Commission and the Minister of Finance. 136 See the Education Laws Amendment Bill 2007, published in Government Gazette Number 29868, Notice Number 553, point 4, which proposes adding section 5A to the Act, entitled ‘Norms and Standards for basic infrastructure and capacity in public schools’: ‘ (1) The Minister must prescribe by regulation determine minimum national norms and standards for – (a) school infrastructure; (b) capacity regarding the number of learners a school can admit; and (c) provision of learning a teacher support material. (2) The norms and standards contemplated in subsection (1) must provide for, but not be limited to, the following: (a) (i) the availability of classrooms; (ii) sanitation (iii) electricity (iv) water (v) library and laboratory; and (vi) electronic connectivity at a school; and (b) (i) stationery and supplies (ii) learning support material, school furniture and equipment; (iii) teaching support material and equipment; and (iv) digital support to a school. (3) The minimum and maximum capacity of a school must relate to – (a) teacher provisioning and class size; (b) quality of performance at school; and (c) curriculum and extracurricular choices. (4) A governing body must comply with the norms and standards contemplated is subsection (1) when it declares policy in terms of subsections 5(5) and 6(2).’ 137 Supra (note 71).

35 Beginning with the defence of the justiciability of socio-economic rights in the Certification Judgment,138 the Constitutional Court has been careful to ensure its legitimacy in that area. Moreover, the ideals of public participation as articulated in the Doctors for Life case,139 are the basis upon which a jurisprudence of non-court- centric remedies, in which constitutional standards are set and all actors are called upon to realise them, can take root.

South African courts and civil society have not yet fully attempted the new non-court- centric approach to remedies. However there have been hints in that direction and quite explicit interest shown by the Constitutional Court. In Fose v Minister of Safety and Security the Court held as follows:

‘ Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights….

The courts … are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal’140

In August v Electoral Commission141, a case that saw prisoners accorded voting rights in national elections, the Court recognised a constitutional violation, declined to give ‘specific direction’ and called on the Electoral Commission ‘to indicate how it will comply with the order’.142 The Commission had to produce an affidavit, to be lodged with the court, which would be open to the public. This outcome positioned the court

138 In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC); 1996 BCLR 10 (CC). 139 Doctors for Life International v Speaker of the National Assembly & Others 2006 (6) SA 416 (CC); 2006(12) BCLR 1399 (CC). 140 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) paras 19 and 69. As explained in Budlender & Roach (note 111) fn 14 the reference to the obligation to ‘forge new tools’ is derived from the judgment of the Supreme Court of India in Nilabato Behera v State of Orissa [1993] AIR 1960 (SC) para 19 at 1969. 141 August v Electoral Commission 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC). 142 Ibid at para 39.

36 as overseer-in-chief. It also did not quite meet the communications standards contemplated in TAC.143 It might be called ironic that in a judgment asserting the democratic rights of prisoners the court did not consider their participation in the remedial phase, but the reality is that this case had a clear and singular solution that needed to be implemented in a top-down manner.

In the High Court judgment in the Grootboom case, the court made an order declaring the government’s obligation, ordering it to report to court within three months, but giving no directive instructions.144 Such a judgment resembles the new accountability approach in its open-ended nature but lacks the dialogic approach of involving other parties, and places the court in the position of being the first-line evaluator of compliance.

These judgments tilt in the direction of a more creative remedial toolkit, but stop short, pinned down by a judicial self-conception that sees its work as finding a solution, through a process of legal reasoning, to a defect occurring at a specific point in time. The judgments of the third-wave of education litigation, and the non-court- centric, new-accountability ethic, are about courts firstly reconceiving themselves as participants in a dynamic, ongoing, dialogic process, and secondly fashioning their orders to facilitate the most effective, appropriate and democratic contribution from each of the participants in this process, whether executive, legislative, judicial, civil society, or broader public. What is equally essential is that civil society heeds the TAC’s example and undertakes a thorough reckoning with the Constitution and its potential as a catalyst in their struggles when used strategically in the courts.145

X Conclusion

The work of communities, activists and lawyers in the United States is instructive in a number of ways. Firstly it reveals the potential for broad public unity across class and ideological lines for better schools. In that society this has been particularly durable

143 TAC (note 15); see pg 30 supra. 144 Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C). 145 See Mark Heywood ‘Current Developments: Preventing Mother-to-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 SAJHR 278.

37 when racial integration, a moral imperative, but sometimes a poisoned tactical chalice, has been a by-product of change. Secondly it demonstrates that public mobilisation is not an alternative to legal action but essential to framing the legal issues, winning an effective remedy and implementing it over a sustained period. Finally it reveals that an educational structure, a profoundly polycentric system, is difficult for a judge to redesign, both practically and politically. When a social movement exists that is committed to fundamental reform, a court can use their experience in framing a constitutionally sound set of standards and a multi-party process in which each of the court, government and civil society makes the most productive use of its skills.

In April 2007 Deputy Chief Justice Moseneke gave a wide-ranging interview, in which he made the following candid remarks:

I’m surprised that we haven’t had one case on right of access to education in this court in 13 years. If one were to come before this court I am sure the court would apply its mind and come up with a judgment that is consistent with the Constitution…

[N]obody has come to me and said, ‘My son is studying under a tree, there’s no chalk, there’s no blackboard, the teachers don’t come to school every day.’ Nobody’s come here to say that.146

The profundity of these words lies in their bewilderment and their banality. They state the obvious and yet they speak presciently to an urgent issue. What this paper has tried to show however is that coming before the court and presenting the problem is not good enough. Unless a court sees its way to a remedy, the declaratory relief it offers will be cold comfort to South Africa’s learners. And unless a court is willing and able to itself manage an educational overhaul, a remedy without organised citizens to champion it will founder as soon as the ink is dry.

146 Chris Barron ‘From courtroom to campus, this is a man in his element’ (1 April 2007) Sunday Times accessed at http://www.thetimes.co.za/article.aspx?id=426611.

38 Bibliography

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United States Cases Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (1998). Ed. Law Rep. 258 Alexander v Holmes County Board of Education, 396 U.S. 19, 20 (1969) Brown v Board of Education of Topeka, 347 U.S. 483 (1954) Brown v Board of Education, 349 U.S. 294 (1955) Carollton-Farmers Branch Indep. Sch. Dist v Edgewood Indep Sch. Dist., 826 S.W.2d 489 (Tex 1992) (“Edgewood III”) Columbus Board of Education v Penick, 443 U.S. 449, 464 (1979) Edgewood Indep. Sch. Dist. v Kirby, 777 S.W.2d 391 (Tex 1989) (“Edgewood I”) Edgewood Indep. Sch. Dist. v Kirby, 804, S.W.2d 491 (“Edgewood II”) Edgewood Indep. Sch. Dist v Meno, 917 S.W.2d 717 (Tex 1995) (“Edgewood IV”) Helena Elmentary School District No 1 v State 769 P.2d 684 (Mont. 1989) Kramer v. Union School District 395 U.S. 621 (1969) Keyes v School District No. 1, 413 U.S. 189, 208 (1973) Milliken v Bradley, 418 U.S. 717 & n.14, 733, 741-48, 753 (1974) Missouri v Jenkins, 515 U.S. 70, 87, 91-98 (1995)

39 Parents Involved in Community Schools, Petitioner v. Seattle School District No. 1, et al.; Meredith v. Jefferson County Board of Education 551 U.S. ___; 127 S. Ct. 2738; 75 U.S.L.W. 4577; 20 Fla. L. Weekly Fed. S 490, available at http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf. Robinson v Cahill 303 A.2d 273 (N.J.), cert denied, 414 U.S. 976 (1973) Rose v Council for Better Education 790 S.W.2d 186 (Ky. 1989) Serrano v Priest 487 P.2d 1241 (Cal. 1971), cert denied, 432 U.S. 907 (1977) San Antonio Indep. School Dist v Rodriguez, 411 U.S. 1 (1973)

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40 Derrick Bell ‘Desegregation’s Demise’ Chronicle of Higher Education (Jul 2007) vol 53 issue 45 pB11 Ehrlander, Mary F. Equal Educational Opportunity: Brown’s elusive mandate (New York: LFB Scholarly Publishing LLC, 2002) Fiss, O ‘Dombroski’ (1977) 86 Yale LJ 1103 Friedman, Steven & Mottiar, Shauna ‘A Moral to the Tale: The Treatment Action Campaign and the Politics of HIV/AIDS’ (Centre for Policy Studies: 2004) Goertz, Margaret E ‘Comprehensive School Reform and School-Based Budgeting in New Jersey’ (2001) Paper presented at the Annual Meeting of the American Education Finance Association (26th, Cincinnati, OH) available at http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_01/0000019b/8 0/19/32/00.pdf Hardaway, Robert M America Goes to School: Law, Reform, and Crisis in Public Education (Westport, Connecticut: Praeger, 1995) Haselton, Blake W & Davis, Michael ‘Resources Do Produce Results’ (2004) Foresight, Vol. 11, No. 1 accessed at http://www.kltprc.net/foresight/Chpt_76.htm Haselton, Blake W & Keedy, John L The Kentucky Education Reform Act: A Comparison of Equity & Adequacy Outcomes in Kentucky between Plaintiff & Non- Plaintiff School Districts (2002) Paper presented at the Annual Meeting of the American Educational Research Association (New Orleans, LA, April 1-5, 2002) accessed at http://www.eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet? accno=ED469299 Heise, Michael ‘State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy’ (1995) 68 Temp. L. Rev. 1151 Heywood, M ‘Current Developments: Preventing Mother-to-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 SAJHR 278 Hochschild, Jennifer L The New American Dilemma: Liberal Democracy and School Desegregation (Yale Fastback: 1984) Hoadley, U Social Class, Pedagogy and the Specialisation of Voice in Four South African Primary Schools (2004) PhD Dissertation, University of Cape Town) Hodgson, Douglas The Human Right to Education (Burlington: Ashgate Publishing Company, 1998) Hooker Clifford P. (ed) Courts and Education (Chicago: National Society for the Study of Education, 1978) Hunter, Molly A ‘All Eyes Forward: Public Engagement and Educational Reform in Kentucky’ (1999) 28 Journal of Law & Education 485 Irons, Peter A People’s History of the Supreme Court (New York: Penguin Putnam Inc., 1999)

41 Kaufman, Michael J. Education Law, Policy and Practice: Cases and Materials (New York: Aspen Publishers, 2005) Kirp, David Just Schools: The Idea of Racial Equality in American Education (University of California Press: 1982) Liebman, James S ‘Implementing Brown in the Nineties: Political Reorganization, Liberal Recollections, and Litigatively Enforced Legislative Reform’ (1990) 76 Virginia Law Revue 349 Liebman, James S & Sabel, Charles F ‘A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform’ (2003) 28 N.Y.U. Rev. L & Soc. Change 183 Lucas, Samuel R & Paret, Marcel ‘Law, Race and Education in the United States’ (2005) 1 Annu. Rev. Law. Soc. Sci. 203 Massel, Diane et al. ‘Persistence and Change: Standards-Based System Reform in Nine States’ (1997) Consortium for Policy Research in Education Policy Briefs RB- 21 Orfield, Gary & Eaton Susan E. Dismantling Desegregation: The quiet reversal of Brown v Board of Education (New York: The New Press, 1996) Patterson, James Brown v Board of Education: A civil rights milestone and its troubled legacy (New York: Oxford University Press, 2001) Patterson, Orlando The Ordeal of Integration (Washington: Civitas/Counterpoint, 1997) Peltason, J W 58 Lonely Men (Champaign IL: University of Illinois Press, 1971) Powe, Lucas A. Jr The Warren Court and American Politics (Cambridge MA: Belknap Press, 2002) Prichard Committee for Academic Excellence Gaining Ground: Hard Work and High Expectations for Kentucky Schools (Author: Lexington, 1999) Prichard Committee for Academic Excellence The Path to a Larger Life: Creating Kentucky’s Educational Future (2d ed. 1990) Rosenberg, Gerald N The Hollow Hope: Can courts bring about social change? (Chicago: The University of Chicago Press, 1993) Rossell, Christine H and Hawley, Willis D The Consequences of Desegregation (Philadelphia: Temple University Press, 1983) Russo, Charles J. et al (eds) Equal Educational Opportunities: Brown v Board of Education at 50 and democratic South Africa at 10 (Pretoria: Van Schaik, 2005) Sabel, Charles F & Simon, William H ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2004) 117 Harv. L. Rev. 1015 Schultz, David A (ed) Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang Publishing Inc, 1998) Thro, William E ‘Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model’ 35 B.C.L. Rev. 597

42 Wilhoit, Francis The Politics of Massive Resistance (New York: George Braziller, 1973)

Educational Statistics Department of Education ‘School Realities 2006’ EMIS available at http://www.education.gov.za/dynamic/dynamic.aspx? pageid=329&catid=10&category=Reports&legtype=null) Department of Education Education Statistics in South Africa at a Glance 2005 (2006) available at http://www.education.gov.za/EMIS/emisweb/05stats/DoE%20Stat %20at%20a%20Glance%202005.pdf (accessed on 2/9/2007) Kentucky Department of Education ‘Comprehensive Test of Basic Skills’ (2006) CTBS Survey Edition accessed at http://www.education.ky.gov/KDE/Administrative+Resources/Testing+and+Reportin g+/Reports/CTBS+5+Reports/2006+CTBS5+Reports.htm Naledi Pandor, MP, Minister of Education ‘Not yet where we want to be: Statement by Naledi Pandor, MP, Minister of Education, on the release of the 2006 senior certificate examination results, Parliament’ (28 Dec 2006) Department of Education available at http://www.education.gov.za/dynamic/dynamic.aspx? pageid=306&id=2469) National Assessment of Educational Progress (NAEP) State Profile of Kentucky (2005) available at http://nces.ed.gov/nationsreportcard/states/profile.asp National Education Association ‘Education Statistics: Rankings & Estimates 2006’ available at http://www.nea.org/edstats/RankFull06b.htm National Assessment of Educational Progress (NAEP) State Comparisons (2005) available at http://nces.ed.gov/nationsreportcard/nde/statecomp/ U.S. National Center for Education Statistics The Condition of Education (Washington D.C.: GPO, 1993)

Newspaper Articles ‘More Damage Control after Manto Says No’ The Star (25 March 2002) ‘School's out as teachers strike’ 30/05/2007 News24 http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2121686,00.html Tau, Poloko and Adams, Sheena ‘Marching pupils cause chaos in Joburg’ STAR 15 August 2007 accessed at http://www.iol.co.za/index.php? set_id=1&click_id=105&art_id=nw20070814194436361C738527

Miscellaneous Ministry of Health ‘Media Statement’ (27 March 2002)

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