Document Type

Article

Publication Title

Columbia Law Review

Publication Date

1999

Abstract

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

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