WVU College of Law
Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a 'fourth wave" of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the incessant rut of school funding battles, advocates have, in turn, initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, advocates will encounter a beleaguered state judiciary still skeptical that court-directed remedies do not invade the provinces of the other coordinate branches. State courts are unlikely to overcome these doubts until they adopt cohesive standards aligning education rights and remedies.
This Article proposes that alignment can be achieved through reasonably congruent judicial remedies and directly proportional legislative remedies. Both standards gauge whether a remedy effectuates the right to education's function to protect children from the harms of educational deprivations and disparities. Both remedial standards are configured for that purpose to operate within the boundaries set for each branch by state separation of powers principles, conferring guided deference to legislative remedies and closer scrutiny of judicial remedies. The Article briefly previews two proposed fourth-wave, injunctive remedies-integration and choice-suggesting each must overcome evidentiary deficits to satisfy the reasonable congruence standard.
Original Publication Title
Kansas Journal of Law & Public Policy
Digital Commons Citation
Weishart, Joshua, "Aligning Education Rights and Remedies" (2018). Law Faculty Scholarship. 21.
Joshua Weishart,Aligning Education Rights and Remedies, 27 Kan. J.L. & Pub. Pol'y 346 (2018).