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The Politics of Judicial Decision-Making in Educational Policy Reform Litigation, 55 Hastings L.J Hastings Law Journal Volume 55 | Issue 5 Article 2 1-2004 The olitP ics of Judicial Decision-Making in Educational Policy Reform Litigation William S. Koski Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation William S. Koski, The Politics of Judicial Decision-Making in Educational Policy Reform Litigation, 55 Hastings L.J. 1077 (2004). Available at: https://repository.uchastings.edu/hastings_law_journal/vol55/iss5/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Politics of Judicial Decision-Making in Educational Policy Reform Litigation WILLIAM S. KOSKI* INTRODUCTION .............................................................................................. 1080 I. FRAMING THE INQUIRY: TOWARD A THEORY OF STATE SUPREME COURT DECISION-MAKING IN EDUCATIONAL POLICY REFORM LITIGATION .... i084 A. THE SCHOLARSHIP EXAMINING DECISION-MAKING IN SCHOOL FINANCE REFORM CASES ........................................................... i084 i. The Legal Doctrine and Strategy Explanation: The Three "Waves" of Reform .......................................................... io84 2. The School Finance Politics Explanations ......................... io88 a. Judicial A ctivism ............................................................ io88 b. Racial Politics and the Identities of the Litigants ...... io88 c. Interest G roup Politics .................................................. lO9O d. Educational Reform Movement .................................. lO91 e. Institutional Cooperation and Networks Among Policy- M aking E lites ................................................................. 1092 B. ATTITUDES AND CONSTRAINTS IN STATE SUPREME COURT DECISION- M AKIN G ......................................................................................... 1092 I. The Attitudinal Model: Judicial Role Orientation and Ideology ................................................................................. 1095 a. Judicial Role Orientation: Activism and Restraint .... 1097 b. Judicial Ideology: Conservatism and Liberalism ....... lO98 2. Institutional Constraints, Conflict, and Cooperation ....... 1O99 a. Institutional Constraints and Conflict ......................... lO99 b. Institutional Cooperation ............................................. 1103 * Associate Professor of Law, Stanford Law School; J.D., University of Michigan Law School; Ph.D., Stanford University School of Education. I would like to thank Michael Kirst, David Kirp, Susanna Loeb, and Henry Levin for their valuable advice and feedback at earlier stages of this project. Thanks also to Gladys Lim6n for her tireless research assistance and Joanne Newman for helping me pull it all together. [1077] HASTINGS LAW JOURNAL [Vol. 55:1077 II. A CONTENTIOUS CONSTITUTIONAL DIALOGUE: A CASE STUDY OF D ER OLPH V. STATE ............................................................................... 1104 A. THE LEGAL ENVIRONMENT FOR SCHOOL FINANCE REFORM LITIGATION IN O HIO ...................................................................... iio 6 i. Background and Context of the Walter Case .................... i io6 2. T he C ourts B elow ................................................................. iio8 3. The Ohio Supreme Court's Walter Decision ..................... I IO9 B. THE DEROLPHIOHIO SUPREME COURT .................................... 111I i. The Justices ..................... ........... 1113 2. The Court's Significant Decisions ....................................... iii9 3. A Systematic Analysis of the Court's Ideology and Role O rientation ............................................................................ 1126 C. AN HISTORICAL-POLITICAL ANALYSIS OF DEROLPH V. STATE ..... 1130 I. The Genesis of DeRolph v. State ........................................ 1130 a. The Coalition of Rural and Appalachian Schools ..... 1130 b. The Formation of The Coalition for Adequacy and E quity .............................................................................. 11 32 c. The Phillis Factor: Organizational Leadership and the Statewide Plaintiffs Coalition ....................................... 1137 2. The Courts B elow ................................................................. 1140 a. Ohio's Education Czar in Perry County ..................... 1140 b. The Trial Court's Decision ........................................... 1145 c. The Intermediate Court of Appeals ............................ 1147 3. The Context for the Supreme Court's Decision ................ 1148 a. Institutional Conflict: The Political Branches ............ 1148 b. The Interest G roups ...................................................... 1154 4. DeRolph I: A Complete Systemic Overhaul of the Finance System .................................................................................... 11 57 a. The M ajority O pinion ................................................... 1157 b. The Concurrences ...................................................... i6o c. T he D issent ..................................................................... 1162 5. The Aftermath of DeRolph I .............................................. 1163 a. The Legislative and Gubernatorial Response ............ 1163 b. DeRolph II: The Working Majority Stands Firm ....... 1165 c. DeRolph III: The Judicial Compromise ...................... 1167 d. DeRolph IV: The Judicial Surrender ........................... 1169 May 20041 JUDICIAL DECISION MAKING III. A SHARED VISION OF STATE GOVERNMENT: A CASE STUDY OF VINCENT V. V OIG H T .............................................................................................. 1170 A. THE LEGAL ENVIRONMENT FOR SCHOOL FINANCE REFORM IN W ISCONSIN .............................................................. 1172 I. The Rise of the Suburbs and the Busg Case .......... 1172 a. Procedural History of the Case .................................... 1173 b. The Legal Issues ............................................................. 1174 c. The Majority Opinion .............................................. "175 2. The Fall of Milwaukee and The Kukor Case .................... 1176 a. The Trial Court's Findings and Holding ..................... 1177 b. The Wisconsin Supreme Court's Kukor Decision ..... 1178 B. THE VINCENT/WISCONSIN SUPREME COURT .............................. II8i I. T he Justices ........................................................................... 1184 2. The Court's Significant Decisions ................................... I88 3. A Systematic Analysis of the Abrahamson Court's Ideology and R ole O rientation ........................................................... 1193 C. AN HISTORICAL-POLITICAL ANALYSIS OF THE VINCENT V. VOIGHT C A SE ..............................................................................................1196 I. The Genesis of Vincent v. Voight ........................................ 1196 2. T he L aw suit ........................................................................... 1 200 3. The Courts B elow ................................................................. 1207 a. The Positions of the Parties in Summary Judgment.. i207 b. The Circuit Court Decision .......................................... 1211 c. The Court of Appeals: Just a Stop Along the Way .... 1213 4. The Context for the Supreme Court's Decision ................ 1213 a. Institutional Conflict: The Political Branches ............ 1213 b. Environmental Influences: The Interest Groups ....... 1218 5. The Vincent v. Voight Decision ........................................... 1221 a. Justice Crooks's Opinion .............................................. 1222 b. The Clarifications of Other Justices ............................ 1224 6. The Aftermath of Vincent v. Voight ................................... 1225 IV. JUDICIAL DECISION-MAKING AND THE ROLE OF STATE SUPREME COURTS IN EDUCATIONAL POLICY REFORM ....................................................... 1226 A. THE INFLUENCE OF JUDICIAL ATrITUDES ON DECISION-MAKING IN THE OHIO AND WISCONSIN EDUCATIONAL FINANCE L ITIGATION S ................................................................................... 1227 B. TOWARD A NEW JURISPRUDENCE FOR EDUCATIONAL POLICY R EFORM LITIGATION ...................................................................... 1228 C ONCLUSION ................................................................................................ 1229 APPENDIX A: A NOTE ON METHODOLOGY ................................................. 1231 HASTINGS LAW JOURNAL NVol. 55:1077 INTRODUCTION Ever since Brown v. Board of Education,' scholars, researchers, and commentators have both bemoaned and celebrated judicial intervention in educational policy-making and schooling.' Nowhere is the thumbprint of the judiciary more evident than in the arena of educational finance policy. Between 1970 and 2000, state supreme courts in some thirty-six states reviewed their states' school funding schemes pursuant to charges that state policy-makers had failed to provide an equitable or adequate distribution of educational resources to children in the state.3 In nineteen cases during that same time period, the courts struck down their states' school finance policies and ordered
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