Although few state constitutions explicitly guarantee an education of some minimum quality, a number of state courts have interpreted generic language in their constitutions as providing such a right.1 What constitutes a “minimally adequate education” and what role courts should play in determining the contours of minimum adequacy continue to be matters of considerable disagreement.2 Principles of institutional competency and separation of powers counsel in favor of judicial restraint,3 especially given the politically accountable branches’ traditional stewardship of public education.4 At the same time, the judiciary’s primary function is, of course, to interpret and give meaning to the law, including constitutional provisions.5
This debate is hardly new.6 Yet it has taken on an added wrinkle in recent years, as individuals and organizations have increasingly turned to constitutional litigation to press matters of substantive education policy.7 Although the theory of a minimally adequate education initially emerged in the context of school funding,8 it has since been extended to challenge policies ranging from teacher tenure9 to restrictions on charter school expansion10 — marking, perhaps, a new “wave” of education litigation.11
Some have hailed these suits as potential “game-changer[s]” in the fight for equal educational opportunity.12 However, there is reason to think that such enthusiasm is misplaced. This Note argues that the obvious appeal of a more expansive right to a minimally adequate education is outweighed by its capacity to short-circuit a wider range of executive and legislative policy choices. And though the recognition and enforcement of such a right may clear a new pathway for systemic change in public education, it does so with too blunt of an instrument for the careful calibration that effective school reform requires.
Proceeding in five parts, this Note begins by charting the federal and state constitutional theories that have historically undergirded education-reform suits. After Part II examines recent adequacy suits in California, New York, and Connecticut, Part III revisits the considerations that have long animated concerns about judicial intervention in matters of substantive education policy, and discusses how such concerns are only more pressing in the broader contexts to which adequacy is now being applied. Part IV then explores how the California Supreme Court’s implicit refusal to recognize the right to a minimally adequate education contemplates an appropriately narrow role for courts in public education. Part V concludes by noting that aggressive judicial intervention in education may actually make schools worse.
I. Constitutional Theories in Education Litigation
Modern constitutional litigation regarding matters of education policy has tended to rely on one of three legal theories. The first theory — that federal equal protection principles require states to treat schools equally across districts13 — was largely abandoned after the Supreme Court’s decision in San Antonio Independent School District v. Rodriguez.14 There, the Court rejected an equal protection challenge to Texas’s school-finance system brought by Mexican American parents whose children attended schools in districts with relatively low property tax bases.15 This wealth gap translated into starkly disparate school funding: on one end of the spectrum, the Edgewood Indepen-dent School District (composed of 90% Mexican American and 6% black students) spent $356 per pupil, whereas the Alamo Heights Independent School District (composed of 18% Mexican American and less than 1% black students) spent $594 per pupil.16
Despite acknowledging “the grave significance of education both to the individual and to our society,”17 the Court held that education was not a fundamental right for the purposes of equal protection.18 Specifically, the Court rejected the plaintiffs’ theory that “education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote.”19 In so doing, the Court concluded that the state’s funding scheme did “not operate to the peculiar disadvantage of any suspect class,” but rather “against a large, diverse, and amorphous class,”20 and that “the individual rights to speak and to vote . . . are not values to be implemented by judicial intrusion into otherwise legitimate state activities.”21 The Court also observed, as a general matter, that it may not be appropriate for it to intervene, as the Justices “lack[ed] . . . specialized knowledge and experience” to decide “persistent and difficult questions of educational policy.”22
Around the same time, a second theory, grounded in state constitutions, began to emerge.23 Unlike the Federal Constitution,24 the constitutions of all fifty states contain some reference to the state’s obligation to provide an education to its citizens.25 Thus, rather than trying to bootstrap a constitutional right to education to, for example, the First Amendment or the fundamental right to vote, this theory draws upon explicit state constitutional language regarding education to suggest that education independently constitutes a fundamental interest subject to equal protection. Proponents of this approach secured favor-able rulings in suits challenging school-finance schemes in California, Connecticut, West Virginia, and elsewhere.26
More recently, litigants have turned to a third theory27: that state constitutional provisions establish the right not simply to an education, but rather to an education of some minimum quality.28 That is, litigants have argued that there must be some level short of declining to provide for education altogether at which a state fails to fulfill its constitutional obligation.29 Thus, this approach requires courts to “decide what level of education is required under . . . state constitutions, whether the state provides such an education, and, if not, what needs to be done to remedy the situation.”30 Suits arising under this theory have also tended to involve challenges to state systems for school funding, and nearly all of the state supreme courts that have reached the merits of such claims have determined that “the current level of resources that the states are providing has been . . . deficient.”31
II. Broadening the Scope of Minimum Adequacy: The “Fourth Wave” of Education Litigation?
Although theories sounding in equity and adequacy may overlap in substantial part — adequacy suits often discuss school quality in terms of equity, and vice versa32 — it is clear that litigants have increasingly argued that there is some minimum bar of educational quality that schools are not achieving.33 In recent years, this principle has been expanded beyond the context of school funding to encompass broader and more involved matters of education policy. Couched uniquely in terms of individual student rights, these suits nonetheless spin a familiar narrative34 of incompetence and intransigence on the parts of those tasked with running our nation’s public schools.35 Although the advent of this trend may strike some early proponents of the adequacy theory as “misguided,”36 it should hardly have come as a surprise: the ill-defined notion of a minimally adequate education naturally invites such far-reaching legal challenges.
In Vergara v. State,37 a group of nine plaintiffs — backed by the nonprofit organization Students Matter38 — challenged California state laws governing teacher tenure, dismissal, and layoffs.39 Though the plaintiffs’ claims sounded in equal protection, the gravamen of their complaint was that the laws “prevent[ed] California’s schools from providing an effective education to all of their students as guaranteed by the California Constitution.”40 In other words, the suit “state[d] a claim that the teacher tenure and dismissal statutes, to the extent they lead to the hiring and retention of grossly ineffective teachers, violate students’ fundamental right to education.”41
Specifically, the plaintiffs contended that the statutes caused “a certain number of grossly ineffective teachers” to “obtain permanent employment within the California public school system, and retain employment despite their grossly ineffective performance,” thereby imposing “a real and appreciably negative impact” on students’ education.42 The plaintiffs further argued that students of color and students from low-income backgrounds disproportionately bore the brunt of such “grossly ineffective” teachers.43 Accordingly, the plaintiffs urged the court to apply strict scrutiny to the challenged statutes.44 Agreeing that strict scrutiny was warranted,45 the trial court determined that the statutes could not survive such stringent review.46
A unanimous panel of the court of appeal reversed.47 Starting with plaintiffs’ contention that “an ‘unlucky subset’ of the general student population [of California] . . . is denied the fundamental right to basic educational equality” on account of being “assigned to grossly ineffective teachers,” the court determined that this argument stumbled out of the gate.48 “In equal protection analysis,” the court reasoned, “the threshold question is whether the legislation under attack somehow discriminates against an identifiable class of persons.”49 And, the court maintained, allegedly being denied the same fundamental right cannot supply the unifying characteristic by which to identify a class.50
Next, the court turned to plaintiffs’ argument that “poor and minority students . . . suffered disproportionate harm from being assigned to grossly ineffective teachers.”51 Having earlier noted that the plaintiffs challenged the statutes on their face rather than as they were applied,52 the court emphasized that the plaintiffs therefore had the burden of “demonstrat[ing] that the [statutes’] provisions inevitably pose a present total and fatal conflict with applicable constitutional provisions.”53 And the evidence presented at trial, the court concluded, failed to carry the plaintiffs’ burden: rather, the record showed that “administrative decisions (in conjunction with other factors)” — rather than the statutes themselves — ultimately “determine where teachers are assigned throughout a district.”54
Shortly after the Vergara plaintiffs prevailed in the trial court, the newly formed Partnership for Educational Justice55 announced plans to file an analogous suit in New York.56 Unlike in California, however, New York’s highest court had previously determined that the New York constitution guaranteed all students a “sound basic education.”57 Accordingly, the suit — which would later be consolidated with a similar suit under the caption Davids v. State58 — explicitly claimed that New York laws governing teacher tenure, discipline, and seniority-based layoffs violated this right.59
Professor Michael Rebell, who litigated the landmark Campaign for Fiscal Equity suits that led to the recognition of the right to a “sound basic education” in New York, objected to the “parallel” drawn between his suits and the tenure suits as “misguided.”60 He suggested that the Campaign for Fiscal Equity suits may have constituted an “exception” to the judiciary’s traditional “respect for the separation of powers and the importance of courts avoiding ‘intrusion on the primary domain of another branch of government.’”61 Rebell further argued that there was a lack of “clear evidence that eliminating tenure and seniority layoffs will result in a more effective teaching corps or more equal access to quality teaching.”62
Nevertheless, as of the turn of the year, Davids has survived two motions to dismiss,63 and will proceed to trial pending an ongoing appeal of the trial court’s orders denying the motions.64 In its ruling on the first motion, the trial court had determined that the plaintiffs’ allegations, if true, were “sufficient to make out a prima facie case of constitutional dimension connecting the retention of ineffective teachers to the low performance levels exhibited by New York students.”65 The court had further concluded that the matter was justiciable insofar as “a declaratory judgment action is well suited to . . . interpret and safeguard constitutional rights and review the acts of the other branches of government, not for the purpose of making policy decisions, but to preserve the constitutional rights of its citizenry.”66
In late 2005, the Connecticut Coalition for Justice in Education Funding (CCJEF) filed suit against the state of Connecticut for al-legedly “failing to maintain an educational system that provides children with suitable and substantially equal educational opportunities.”67 The CCJEF — whose members include “municipalities, local boards of education, statewide professional education associations and unions, other Connecticut nonprofit pro-education advocacy organizations, parents and grandparents, public school students aged 18 or older, and other Connecticut taxpayers”68 — argued on behalf of itself and several named plaintiffs that the state was obligated to provide such opportunities pursuant to article eight, section 1 of the Connecticut constitution.69 A plurality of the Connecticut Supreme Court agreed, holding that the provision guarantees “educational standards and resources suitable to participate in democratic institutions, and to prepare them to attain productive employment and otherwise to contribute to the state’s economy, or to progress on to higher education.”70
In September 2016, pursuant to the plurality’s directive to “determine as a question of fact whether the state’s educational resources and standards have in fact provided the public school students in this case with constitutionally suitable educational opportunities,”71 a Connecticut Superior Court concluded that its task was to determine whether “the state’s educational resources or core components are . . . rationally, substantially, or verifiably connected to creating educational opportunities for children.”72 Proceeding under that stan-dard, the court held that “Connecticut is defaulting on its constitutional duty to provide adequate public school opportunities because it has no rational, substantial and verifiable plan to distribute money for education aid and school construction.”73 Notably, however, the court did not stop there: it also struck down as unconstitutional the state’s standards for high school graduation;74 elementary school promotion;75 teacher evaluation and compensation;76 and special education identification, intervention, and funding.77 The court then gave the state 180 days in which to “submit proposed reforms consistent with [its] opinion,”78 though the state has since appealed the decision.79
III. The Unique Problem of Adjudicating Adequacy
Suits such as Vergara, Davids, and CCJEF mark a growing trend of advocates pursuing education reforms in courts rather than in legislatures or administrative offices. This trend shows little sign of abating: Since filing its lawsuit in New York, the Partnership for Educational Justice has also backed legal challenges to teacher tenure in Minnesota80 and New Jersey.81 Charter school advocates in Massachusetts recently sought, albeit unsuccessfully, to strike down caps on charter school funding and the number of charter schools as violations of the state constitutional right to an adequate education.82 And Students Matter — seizing on Rodriguez’s suggestion that an “absolute denial of educational opportunities” may give rise to a federal constitutional violation,83 as well as the Supreme Court’s discussion of fundamental rights in cases such as Washington v. Glucksberg84 and Obergefell v. Hodges85 — has challenged Connecticut laws governing magnet schools, charter schools, and school choice as “knowing[] depriv[ations]” of a federal right to a minimally adequate education.86
There is an obvious appeal to the idea that a robust constitutional right to education — one that guarantees a minimally adequate education — may provide a solution to the seemingly intractable puzzle of school reform.87 Nevertheless, the rise of adequacy litigation involving more substantive matters of education policy affirms that this appeal is misguided. As courts and commentators have long observed,88 not only is the judiciary poorly prepared to assess the merits of competing education policies, but it also lacks the democratic legitimacy and structural authority to address the difficult political questions that educational-adequacy litigation tends to raise.89 While one of these concerns standing alone might not justify judicial abdication in such matters, the unique confluence of these factors as they pertain to public education — coupled with the degree to which education litigation increasingly turns on complex, nonlegal, and policy-oriented questions — counsels, perhaps now more than ever, in favor of judicial restraint.
As an initial matter, adequacy suits inevitably require courts to define “adequacy.”90 This is no easy task for policymakers and academic experts, much less for judges.91 Nevertheless, a number of courts throughout the country have sought to give content to the term. For example, the New York Court of Appeals has defined “sound basic education” as “consist[ing] of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury,”92 and as providing “the opportunity for a meaningful high school education, one which prepares them to function productively as civic participants.”93 The Supreme Court of Kentucky has defined “adequate education” in even more specific and yet still ambiguous terms:
[A]n efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect 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 training or 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 favorably with their counterparts in surrounding states, in academics or in the job market.94
These vague standards — which do not explain what it means “to function in a complex and rapidly changing civilization” or “to appreciate [one’s] cultural and historical heritage” — reflect the judicial branch’s inherent limitations in defining and enforcing a particular quality of education. At best, all that courts have been able to articulate is “a standard that is general and requires intensive factual analysis to apply.”95
Yet civil trial courts are generally not equipped to engage in such searching analysis of education policies and practices.96 Unlike, for example, administrative agencies, courts do not possess inherent advantages that would allow them to be more skillful arbiters of education policy than other government actors.97 This lack of expertise helps to explain in part why statutes such as the Individuals with Disabilities Education Act contain an administrative exhaustion requirement.98 And while some courts have suggested that their decisions in such cases can be fairly and sufficiently guided by their “conscience,”99 or simply by what is “rationally, substantially, or verifiably connected to creating educational opportunities for children,”100 the reality is that the nuts and bolts of teaching and learning do not easily lend themselves to obvious right answers. Even if we agree, let’s say, “that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience,”101 decades of research and centuries of experience have yet to produce a consensus on how to measure competency.102 Thus, “any single measure of ‘teacher quality’ may not capture the specific characteristics of teachers that produce student achievement gains.”103 It also matters, of course, how we define “achievement” and which “outcomes” we value — additional questions open to considerable debate.104
Yet, adequacy-based challenges necessarily require courts to choose certain measures and metrics over others. This reality was borne out by the trial court’s decision in Vergara.105 There, in a threadbare, sixteen-page opinion,106 the court relied in significant part on a “massive study” showing that “a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.”107 The findings of that study, however, are far from conclusive, and in fact have been squarely disputed.108 The court next cited testimony indicating that “students in [Los Angeles Unified School District] who are taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.”109 Yet this testimony similarly relied on research that scholars have called into question.110 Finally, the court found that “there are a significant number of grossly ineffective teachers currently active in California classrooms.”111 Here, the court, relying on the state’s expert who testified that “1–3% of teachers in California are grossly ineffective,” extrapolated to California’s 275,000 teachers to find that the “number of grossly ineffective teachers ranges from 2,750 to 8,250.”112 However, that same expert later explained in a post-trial interview that his figure was just a “guesstimate” and that he had “never used the words ‘grossly ineffective.’”113 Even so, despite the sharply contested nature of the evidence presented at trial, the court determined that the evidence was so “compelling” that it warranted application of strict scrutiny to the challenged statutes.114
To be sure, factfinders routinely weigh witness credibility, parse through conflicting pieces of evidence, and ultimately decide matters touching upon unfamiliar and complicated topics. Yet courts have also long recognized the unique character of disputes involving public education: “the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion,”115 and not heavy-handed judicial intervention. Nevertheless, the increasingly aggressive approach to vindicating state constitutional rights to education has led more and more to courts weighing in conclusively on matters with no easy conclusions.116
The inherent difficulty of defining what precisely constitutes a minimally adequate education suggests that this task should be left to democratically elected officials and their appointed policymakers. This is not a novel proposition: courts routinely defer to the politically accountable branches when faced with difficult policy questions, not only because the judiciary is ill-suited to answer such questions, but also because the selection of one policy preference over another tends to demand the voice of the electorate.117 Though courts should not, of course, shirk their duty to uphold constitutional rights — especially when the rights of minority groups are at stake118 — it is well settled that courts should tread lightly when asked to exercise “nonjudicial discretion” or otherwise “express[] lack of the respect due coordinate branches of government.”119
Yet the judicial recognition of the right to a minimally adequate education facilitates, if not expressly contemplates, an impermissibly expansive role for courts in substantive policymaking.120 Although courts have rightly waded into legislative waters to invalidate overtly invidious state action,121 the burst of Vergara copycat suits122 suggests that minimal educational adequacy is a principle of inherently unlimited scope and dimension. Rather than providing a pathway for traditionally marginalized students to rectify deficiencies in their education, the right to a minimally adequate education is more likely to provide a legislative shortcut for those who have the means to bring such complex litigation. It thereby risks advancing the political agenda of a few rather than fostering a democratic consensus derived, at least in theory, from the policy preferences of many citizens.
Concerns for democratic decisionmaking may be particularly pronounced in the context of public education, where various nongovernmental actors wield sizable influence. Indeed, Professor Megan Tompkins-Stange notes that “[d]uring the past ten years, foundation involvement in policy has become highly visible, . . . to a degree not seen since the 1960s.”123 This uptick in private-sector involvement in public education has been characterized not only by the seductive notion that there is a plainly right way to educate, but also by a concerted effort “to avoid the often dysfunctional political dynamics of government bureaucracies to advance desired policy targets more quickly and efficiently”124 — thus “elevating the preferences of private interests with few structured accountability mechanisms.”125
The teacher tenure lawsuits aptly illustrate this concern. Although the complaint in Vergara was ostensibly filed by its nine named plaintiffs, the suit was initiated “[w]ith the help of Students Matter,”126 a nonprofit organization that seeks to “promote[] access to quality public education through impact litigation, communications and advocacy.”127 Notably, however, Students Matter neither was founded nor is led by community leaders, education experts, or even the parents of public school students. Rather, the organization is helmed by a technology executive with limited experience — much less expertise — in public education.128 Similarly, the Davids lawsuit was backed by the Partnership for Educational Justice, which, like Students Matter, appears to have been formed for the sole purpose of launching such suits.129
Of course, foundations, nonprofit organizations, and other nongovernmental actors have meaningful roles to play in education reform.130 However, these roles should be checked, rather than amplified, by the judicial process, so that private actors do not supplant democratically elected legislators.
IV. A Return to Equity?
That the new “wave” of educational adequacy litigation has renewed concerns about judicial intervention in public education is not to say that state constitutional rights to education should be rendered meaningless, or that state courts should abandon their responsibility to enforce such rights. Though it grew to be disfavored by both litigants and courts, the principle of equity — rather than adequacy — may provide a more prudent, yet still viable means of vindicating education rights in the courts.
The California Supreme Court appears to have endorsed such an equity-based approach. Notably, on the same day that it denied review of the court of appeal’s decision in Vergara,131 the court also declined to review the dismissal of two separate actions challenging the state’s system of school funding as a violation of sections 1 and 5 of article IX of the California constitution.132 The plaintiffs in those actions —consolidated as Campaign for Quality Education v. State — had alleged that the provisions “provide for a judicially-enforceable right to an education of ‘some quality’ for all public school children, and, alternatively, that the Legislature is currently violating its constitutional obligations to ‘provide for’ and ‘keep up and support’ the ‘system of common schools’ by its current educational financing system.”133
However, the court of appeal “f[ound] no support for finding implied constitutional rights to an education of ‘some quality’ for public school children or a minimum level of expenditures for education.”134 Citing settled principles of constitutional interpretation,135 the court argued that while “there can be no doubt that the fundamental right to a public school education is firmly rooted in California law,”136 there was no “textual support for the inchoate right to a quality education.”137 The court also declined “to infer the existence of a constitutional right,”138 finding that California’s constitutional education provisions “declare ‘great principles and fundamental truths’ but do not mandate the Legislature to act in a particular manner regarding what precise laws shall be made to implement these principles and truths.”139 And, as to the plaintiffs’ alternative argument that the California legislature’s allocation of funds for K-12 public education does not comply with article IX, the court concluded that the plaintiffs had failed to show that sections 1 and 5 “restrict legislative discretion in allocating funds for the education of public school children.”140
In declining to review the lower courts’ decisions in Campaign for Quality Education and Vergara, the California Supreme Court signaled its unwillingness to read an implicit right to a minimally adequate education into its state constitution. The court thereby avoided the problem of recognizing a substantive right and yet refusing or being unable to enforce it. Though the court’s approach marks a departure from the decisions of other state supreme courts finding such a right,141 it reflects an appropriately narrow view of the judiciary’s capacity and legitimacy to decide the sorts of questions raised in those cases.
Moreover, the fact that the right to education in California is circumscribed does not mean that it is devoid of content. Having long ago recognized that education is a fundamental right under the California constitution,142 the California Supreme Court’s recent decisions have not foreclosed challenges to egregious violations of this right. Under established principles of equal protection law, it may still be argued that state action causes a suspect class to “suffer[] disproportionate harm”143 or “denie[s] the fundamental right to basic educational equality” to “a sufficiently identifiable group.”144 Accordingly, despite suggestions to the contrary,145 the court’s equal protection jurisprudence still allows for successful challenges where some state action necessarily provides a starkly different educational experience to, for example, a particular suspect class,146 or to students in a particular school district,147 than it does to others.148 Notably, these sorts of equity-based challenges do not require courts to create their own standards of educational adequacy, insofar as courts need consider only the alleged disparities between the proffered comparators.
To be sure, California’s equal protection jurisprudence lends itself more readily to as-applied challenges to local decisions, as opposed to facial challenges to legislative decisions such as the claims advanced in Vergara. This, it seems, is by design: the California constitution, like the constitutions of many other states, “leave[s] the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch.”149 Allowing for frequent wholesale challenges to the legislature’s determinations regarding these questions would seem to fly in the face of such plainly afforded legislative deference. Hence, the California Supreme Court’s narrower approach contemplates litigation as a last resort, rather than the default.
V. Conclusion
It is as doubtful today as it was in 1954 that children “may reasonably be expected to succeed in life if [they are] denied the opportunity of an education.”150 So long as “[a] good education . . . remains out of reach for many who need it the most,”151 advocates will continue to seek new ways of improving our public schools. And rightfully so. The problem, however, lies in the prevailing ethos of the present era of “education reform,” which suggests that the problems that have persistently plagued public education lend themselves to obvious solutions that, apparently, have yet to be implemented for a perceived unwillingness to depart from the status quo.152 Often molded on the most famous example of judicial intervention in public education,153 adequacy suits presume that judicial enforcement of a robust constitutional right to education will flip the proverbial switch.
The far less romantic and yet more accurate reality is that improving schools is not merely a proposition of political will. After all, courts may be able to make it easier to fire teachers, but they cannot do anything to ensure that there is a cadre of “effective” teachers waiting to take their places.154 Schools face complex and comprehensive problems — many of which are not of their own making — that require similarly complex and comprehensive solutions.155 That these solutions may not yet exist does not mean that they are for judges to discover, much less to promulgate.
And, unlike in the limited context of school funding — where success in the courts means, at worst, a continuance of the status quo — there is the potential that excessive and more expansive constitutional litigation may actually make schools worse. As discussed throughout this Note, recent education suits have tended to focus on the role that teachers play in ensuring students’ academic success. The significance of this role is not in dispute. However, to the extent that such suits have sought to place blame for the perceived failures of our public education system solely upon teachers, there is reason to think that such an approach might be more harmful than helpful. U.S. teachers already report levels of daily stress that rank teaching among the most stressful professions,156 and recent reports suggest that this stress is being further aggravated by the “[i]ncreased use of high-stakes testing,”157 “[f]ear of job loss,” “[l]ack of participation in decision-making,” “[n]egative portrayal of teachers and school employees in the media,” and “[a]doption of new initiatives without proper training or professional development.”158 Not only may increased teacher stress raise the stress levels of students,159 but it may also lead to increased rates of teacher turnover160 and otherwise discourage others from joining the profession — thereby exacerbating the country’s worsening teacher-shortage problem.161
Of course, this is not to say that schools cannot do better, or that litigation has no place in the larger project of school reform. The California Supreme Court’s narrow conception of the constitutional right to education appropriately balances concerns about institutional competency and separation of powers against concerns about addressing potential constitutional violations. To be sure, a narrow constitutional right to education contemplates a correspondingly limited role for courts in adjudicating such a right. Though this approach may be discomfiting to some,162 it is guided by a deep respect for both the tremendous challenges facing public schools, and the sustained, democratic work that facing those challenges requires.163