Abstract
Gary B. v. Snyder, a federal class action lawsuit originally filed in September 2016, is one of the most recent and high-profile entrants into the line of cases involving large-scale education reform. In this case, seven students from traditional public schools and charter schools in Detroit sued various Michigan state officials, arguing that the U.S. Constitution includes a fundamental right of access to literacy and that the state had denied them this right. Although the federal trial court in Detroit that initially heard the case found that students were not denied their right of access to literacy by the state, the plaintiffs appealed the case, and it is now being considered in the Sixth Circuit Court of Appeals. Given the difficulties that have historically emerged with court-driven education reform, we examine the opportunities and challenges inherent in Gary B. to provide insight into the prospects of Gary B. and similar cases to effectively promote educational improvement. Grounded in this examination, we also present an argument for the utility of a new model for education litigation. We specifically argue that courts acting as agenda setters and working in concert with stakeholders to tailor reform to ground-level conditions is a model that is highly compatible with contemporary education research on effective models of systemic improvement. A court-mandated agenda for educational improvement must be structured in a way that engages stakeholder groups in implementation efforts precisely because improvement naturally involves dynamic, contextual conditions that cannot be completely accounted for in advance.
Keywords
Over the second half of the 20th century and into the 21st, litigation leading to court-ordered mandates became a major route to educational reform efforts in the United States. Notable examples include desegregation, school finance reform, testing, school choice, and teacher evaluation (Superfine, 2013). The success of court-driven reform in education is debatable. For example, several education researchers contend that decades of efforts to desegregate public schools through litigation fell far short of their goal (e.g., Clotfelter, 2004; Frankenberg, 2013; Orfield, Ee, Frankenberg, & Siegel-Hawley, 2016). As Heise (2004) argued, “the Court’s successful defeat of de jure school desegregation did not translate into a defeat of de facto segregation” (p. 2424).
Gary B. v. Snyder, a federal class action lawsuit originally filed in September 2016, is one of the most recent and high-profile entrants into the line of cases involving large-scale education reform. In this case, seven students from traditional public schools and charter schools in Detroit sued various Michigan state officials, arguing that the U.S. Constitution includes a fundamental right of access to literacy and that the state had denied them this right. In their complaint, the plaintiffs documented a range of deplorable educational conditions in the students’ schools, focusing on issues such as the lack of evidence-based literacy instruction and intervention programs, insufficient curriculum materials, unsafe physical conditions, and unqualified teaching staff. Although the federal trial court in Detroit that initially heard the case found that the state did not deny students their right of access to literacy (Gary B. v. Snyder, 2018a), the plaintiffs appealed the case, and it is now being considered in the Sixth Circuit Court of Appeals (Gary B. v. Snyder, 2018b). Underscoring the growing allure of litigation like Gary B., lawsuits that employ similar legal logic have recently been filed in the courts. Martinez v. Malloy (2016), filed in Connecticut, contends that the Constitution includes a fundamental right to education and that expanded school choice options are key to ensuring that students receive this right. Similarly, Cook v. Raimondo (2018), filed in Rhode Island, contends that the Constitution includes a fundamental right of access to literacy and that civics education and the requisite levels of literacy to engage in civic duties are part of this right.
Given the difficulties that have historically emerged with court-driven education reform, we examine the opportunities and challenges inherent in Gary B. to provide insight into the prospects of Gary B. and similar cases to effectively promote educational improvement. Grounded in this examination, we also present an argument for the utility of a new model for education litigation. As Gary B. reflects, a primary advantage of court-driven reform in education is that it provides opportunities to articulate arguments and ideas about reform that might not find purchase in the political arena. However, several challenges have weakened the courts’ effectiveness in education reform cases, including courts’ inability to deal with technical, scientific evidence. Further, courts are often presented with conflicting scientific evidence by opposing parties that can undersell the complexity of educational change. Partly as a result, courts have often not attended to the varying and dynamic contextual conditions in which their orders for change have been implemented, nor to creating a process needed to effectively address these conditions.
We accordingly argue that courts acting instead as agenda setters, working in concert with stakeholders to tailor reform to ground-level conditions, is a model that is highly compatible with contemporary education research on effective models of systemic improvement. A court-mandated agenda for educational improvement must be structured in a way that engages stakeholder groups in implementation efforts precisely because improvement naturally involves dynamic, contextual conditions that cannot be completely accounted for in advance. To be sure, court-driven reform such as this is not the only type of large-scale effort that can potentially lead to desirable change at scale, and we are not advocating that all such reform efforts move through the courts. Instead, we argue that the courts are particularly useful in specific types of cases (Komesar, 1994), for example when other processes have failed, as in Detroit, or when cases result from broader social movements (Cummings, 2017).
In the remainder of this paper, we present our argument for the utility of this type of synergistic model through close examination of Gary B. We begin with a brief discussion of what we know broadly about court-driven reform in education and then turn to Gary B. and the education research that bears upon it. We conclude our argument by presenting a new model of court-driven education reform.
Court-Driven Reform in Education
Decades of research in law, political science, and education have revealed that the courts’ record in promoting education reform is mixed at best. In a foundational work examining court-driven reform in desegregation and areas outside of education, Rosenberg (2008) argued, “U.S. courts can almost never be effective producers of significant social reform” (p. 422). If this is true, then Gary B. and cases like it are likely doomed from the start, no matter how the courts decide. However, it is likely more accurate that courts can produce effective reform only under certain conditions. As Komesar (1994) argued, courts possess particular characteristics that make them well suited for particular types of decisions and poorly suited for others. For example, because of their insulation from the political process and strict design of legal procedures, the courts are more able than other governmental institutions to legitimize and promote educational equality and help politically underrepresented groups (Komesar, 1994). To be sure, many factors outside of the law shape judicial decision-making, including judges’ political beliefs (Heise, 2004) and public opinion (Welner, 2004). However, courts are generally subject to political bias to a lesser extent than other governmental institutions (Komesar, 1994). 1
Nevertheless, several factors constrain the degree to which the courts can effectively engage with education reform. Factors like the nature of constitutional rights and enforcement powers “suggest that court decisions are neither necessary nor sufficient for producing significant social reform” in the absence of social movements and legislative reforms that can follow (Rosenberg, 2008, p. 35). In addition, the courts are generalist bodies and face particular challenges when dealing with technical, scientific evidence in education reform cases (Welner & Kupermintz, 2004). Exacerbating these challenges, the rhetoric of science communications is inherently adversarial and emphasizes sources of differences and disagreements in which opposing claims appear to be cases of “he said, she said” and thus not convincing (e.g., Edmond, 2007). Chief Justice Roberts’ recent labeling of social science evidence as “sociological gobbledygook” underscores the intensity of such problems (Ghil v Whitford, 2017). 2 The result is that courts may turn away from embracing the complexity of the educational world and education research.
The courts have been most effective in education reform efforts when, rather than eschewing the complexities of education, they have acted in coordination with other governmental branches. For example, in school finance cases, courts have been most effective when specifying concrete goals and outcomes without dictating specific means to legislatures (Reed, 2001). Similarly, successes in school finance litigation have occurred when the courts serve as agenda setters and include other nongovernmental stakeholders in specifying accountability systems and monitoring processes (Liebman & Sabel, 2003; Sabel & Simon, 2004). Under this approach, reform is changeable and continuous, as strategies developed by nongovernmental institutions can be modified given the goals and progress of reform efforts. In a review of such literature and particularly the role of “non-court-centric” reform in educational litigation, Superfine (2010) argued that the courts should serve as “facilitators” of reform efforts. Accordingly, we point to the utility of developing a litigation strategy that involves various stakeholders and does not rely on the court to be the only dominant player in education reform. Indeed, courts can be a useful place to articulate arguments and ideas about reform that might not find purchase in the political arena. However, for such efforts to prove productive, they must be structured in a way that ultimately engages other stakeholder groups precisely because effective design and implementation of educational improvement efforts naturally involves complexity that courts are poorly equipped to handle alone.
Gary B v. Snyder
The Case and Its Importance
As noted above, Gary B. formally began when various Michigan officials were sued in federal court by seven students for failing to provide constitutionally required access to literacy in Detroit. While the plaintiffs focused on a range of educational problems in Detroit, their core argument was that “the State of Michigan’s systemic, persistent, and deliberate failure to deliver instruction and tools essential for access to literacy in Plaintiffs’ schools . . . deprives students of even a fighting chance” (Gary B. v. Snyder, 2016, p. 1). While Gary B. is only a single education lawsuit out of many currently being heard by the courts, the case represents a crucial opportunity for large-scale, educational improvement and is arguably one of the most important educational lawsuits filed in decades. Gary B. has the potential to focus practitioners and policymakers not simply on literacy opportunities that students directly receive but also on the educational systems that create them. Moreover, the case has the potential to cut through the political thicket to promote desperately needed educational reform in Detroit and perhaps even to revitalize the use of the federal courts as an avenue for pursuing such change more broadly. In this paper, we examine Gary B. with an eye toward identifying a synergistic model that allows education researchers and the courts to work together better to promote educational improvement.
Evidence and Legal Argument
During the trial court’s consideration of the case, the plaintiffs offered a significant amount of evidence to establish the lack of literacy opportunities that students have been receiving (Gary B. v. Snyder, 2016). This evidence focused on the dismal performance of the schools on various assessments, the lack of appropriate curricula and classroom resources, the extreme state of disrepair of the schools, and insufficient, underqualified teaching staff. The plaintiffs provided a significant amount of national and state assessment data to demonstrate students’ academic unpreparedness. For example, Detroit students ranked last in reading proficiency among all large urban school districts on the 2015 National Assessment of Educational Progress and plaintiffs’ schools rated between 1% and 6% on the Michigan statewide accountability percentile scale. Further, the plaintiffs stated that teachers at many of their schools had no training in literacy instruction and thus were unable to provide the necessary instruction to increase students’ assessment scores.
In addition to evidence related to poor academic performance and lack of teacher training, the plaintiffs argued that the problems continuing to face Detroit’s schools stem from egregious facilities deficiencies. For example, the plaintiffs’ schools were so understaffed, with extreme overcrowding of up to 60 students in a single classroom, that engaging students in one-to-one reading instruction would be nearly impossible even if teachers had the adequate training in reading interventions. Plaintiffs’ classrooms also lacked up-to-date books, books at the appropriate literacy level, or books at all. During the 2015–16 academic year, none of the plaintiffs’ school buildings were compliant with health or safety codes. Further, the plaintiffs’ schools were infested by vermin, subject to extreme temperatures to the point that students became physically sick, and were riddled with unsafe conditions such as leaks, mold, lead, broken toilets and water fountains, and inadequate fire safety equipment.
The plaintiffs’ legal argument focused on the 14th Amendment of the Constitution, which prohibits states from denying people the “equal protection of the law” and protects fundamental rights such as due process and citizenship rights. Notably, the 14th Amendment was the primary legal driver for Brown v. Board of Education (1954) and the desegregation litigation that followed in its wake for decades in the federal courts. In their complaint, the plaintiffs highlighted Plyler v. Doe (1982), a case in which the Supreme Court found that excluding a distinct group of children from the opportunity to obtain literacy in public schools is unconstitutional. The plaintiffs also focused on San Antonio Independent School District v. Rodriguez (1973), a foundational school finance case in which the Supreme Court left open the door to establishing a federal right to education if a case could be made for finding an “identifiable quantum of education” that is a prerequisite to the exercise of other rights (p. 2).
Despite a wealth of evidence about the poor educational conditions in Detroit, the trial court dismissed the case (Gary B. v. Snyder, 2018a). In short, the court found that the Constitution does not include a fundamental right of access to literacy. As the Supreme Court noted in Rodriguez, education is not mentioned explicitly in the Constitution, and the trial court found that the cases cited by the plaintiffs do not clearly establish that a right of access to literacy or education is implied. The trial court stated that federal courts have been reluctant to find that the Constitution guarantees such implicit rights to receive goods or services solely because they are “unquestionably important necessities of life,” as access to literacy might be (p. 49). Looking to legal and historical research, the court further stated that “history evinces a deep American commitment to education, but runs counter to the notion that an ordered society demands that the state provide one” (p. 49). So while admitting that the conditions and outcomes of the students’ schools “are nothing short of devastating,” the court found that the Constitution does not require a state to provide each child with the minimum level of education needed to attain literacy (p. 50). Despite this setback, the plaintiffs soon appealed, and the case is currently being considered in the Sixth Circuit Court of Appeals.
The Remedies: What Is the Evidence?
If the plaintiffs win the case on appeal, what are the prospects for effectively promoting education improvement? In many respects, the plaintiffs appear to have “gotten it right” with respect to identifying potential remedies based on well-established research findings. That is, early reading achievement depends on students achieving proficiency with several components reflected in the plaintiffs’ recommended remedies. For example, as students move from learning to read to using reading to learn (Chall, 1996)—typically around Grade 3—reading comprehension becomes the focus of instruction (Goldman & Snow, 2015). As such, students need to learn a variety of strategies for making sense of what they are reading, including strategies that enable them to figure out the meaning of unfamiliar words, or connect together ideas from different sentences within a text or across different texts. In middle and high school, the challenges of reading increase as texts introduce a larger set of unfamiliar vocabulary, sentence structures that convey relationships among events, states, and objects (e.g., causal, if–then conditionals, disjunctive) (e.g., Goldman & Snow, 2015; Moje, 2015). Thus, motivation to persist in the face of challenges takes on more importance than during earlier phases (e.g., Wigfield & Guthrie, 1997). The recommended remedies reflected attention to all of these considerations (and more) that are well-reflected by the research.
That said, the remedies recommended by the plaintiffs undersold the complexity and difficulty of translating research evidence into interventions that can consistently improve literacy opportunities and outcomes at the scale of a district like Detroit. To establish that such interventions are available, the plaintiffs suggested the use of interventions approved by the What Works Clearinghouse (WWC), an initiative housed in the federal Institute of Education Sciences, which reviews educational programs, products, practices, and policies, and rates the extent to which they are evidence-based and effective (WWC, 2015). Typically, the intervention research available in the WWC demonstrates effectiveness under the specific conditions of the study but not necessarily in conditions across contexts. Even if it were possible to implement cookie-cutter interventions, it is likely that such efforts would not be effective in contexts other than the original implementation sites. WWC interventions are a starting point for reform, but they must undergo adaptations that are faithful to their underlying principles as they move to different contexts (e.g., Brown & Campione, 1994; Bryk, Gomez, Grunow, & LeMahieu, 2016; Penuel, Fishman, Cheng, & Sabelli, 2011).
If the Gary B. appeals court does order the implementation of specific interventions, the potential for meaningful change at the scale of district like Detroit is small. What will be needed is not a particular remedy from what seems to be the plaintiffs’ piecemeal strategy of a collection of interventions. Rather, what is needed is a systemic, ongoing, iterative model of change that can enable the school system to “learn fast to implement well” (Bryk et al., 2016). Iterative models reflect the underlying assumption that there are many issues that will arise as efforts are made to implement some new policy, procedure, instructional strategy, or system to a particular context. These issues come to light during implementation, and implementers must address these issues through adaptation of the implementation approach. Through this iterative process, implementation of a new system benefits from rapid cycles of doing and revising. In short, the plaintiffs looked to well-established education research about the substance of interventions that could be implemented under judicial order. However, without more attention to what it might take for such interventions to actually be effective in the Detroit context, specific mandated interventions are likely to be ineffective at best.
Toward a Synergistic Model of Court-Driven Education Reform
No matter how or where it occurs, effective educational improvement at scale involves a difficult and complex process. In the case of Gary B., undertaking this process would first be dependent on overcoming the legal barriers by courts finding that there is a fundamental right of access to literacy. If the appeals court does find that this right exists, certain improvements could be more easily completed than others. In the case of Detroit schools, the courts could, to the benefit of students, immediately require that facilities be improved and modern textbooks be bought by simply allocating funds. Yet in and of itself, such a ruling only opens the door to change efforts and the challenges they raise. Here, we suggest three principles for a synergistic model of court-driven education reform that is attuned to both the institutional characteristics of the courts and research findings on long-term educational improvement.
Principle One: Present Courts With a More Complex and Realistic View of Educational Interventions and Research
Because litigation is inherently an adversarial process, parties have an understandable inclination and incentive to present evidence in a light most favorable to their side. Indeed, education researchers sometimes have a tendency to undersell the complexity and difficulty of educational reform when engaging with the media and governmental institutions like the courts. However, we believe that such a response is short-sighted and will ultimately undermine educational improvement efforts like Gary B. that require complex, sustained change. What we know works should be clearly presented to courts by plaintiffs and education researchers working with them, but the complexities of implementation in varied, real-world contexts, along with the need to adapt interventions and craft a long-term process for implementing and modifying them, should be presented as well. Without this kind of presentation, well-intended education reform efforts that succeed in court are likely to fall far short of their goals.
Principle Two: Develop Courts’ Capacities and Dispositions to Engage With Education Research
Because “it depends” is likely not what courts hearing major educational reform cases want to hear, courts’ capacities to effectively engage with a more complex presentation of educational interventions and research underlying them must be developed. Courts specifically need to become more comfortable with the notion that education research can often only direct institutions to the starting point of a solution and that effective reforms often need to be adapted to their setting through an ongoing implementation process. Certain tools are already available to courts that they could more readily employ in education reform cases. For example, courts have sometimes appointed expert panels, ordered additional fact finding or negotiations among parties, or appointed “special masters” to provide them with additional knowledge relevant to complex cases (Rebell & Hughes, 1997). Independent research institutions could also be created to help courts better understand and rule on legal issues related to science and technology, as some commenters have suggested (e.g. Tashea, 2017). At the very least, courts’ difficulties dealing with the complexity of scientific evidence is well documented, and a broad-based response that extends past education cases is likely warranted. That said, there is no guarantee that such efforts would improve courts’ dispositions or capacities to effectively engage with education research. Empirical research on such efforts would be needed. However, such efforts would at least directly address one of the courts’ major weaknesses in large-scale education reform cases.
Principle Three: Position Courts as Agenda-Setters and Managers of Reform
While courts acting as agenda-setters and managers of reform is far from the norm in education reform cases, it appears critical for promoting effective and sustainable reform. Courts hearing Gary B. and similar cases that rule in favor of reform should require the implementation of processes for developing promising intervention models that include mechanisms for both shorter and longer term monitoring of the impact of efforts undertaken as well as ongoing communication with stakeholders (such as parents, teachers, and administrators). These provisions would help ensure that the system is working toward adaptive integration, revising goals, instrumental strategies, and outcome metrics as needed. Similarly, courts could oversee the development and implementation of Research-Practice Partnerships or Networked Improvement Communities in which research-based evidence and evidence-based practice inform and improve each other through collaborative engagement in finding solutions to mutually agreed upon problems of practice (Bryk et al., 2016; Coburn & Penuel, 2016). Such solutions might be particularly useful if courts across the United States similarly find that fundamental rights to an education exist under legal arguments like those employed in Gary B. Again, judicial willingness to oversee such a process would be critical, and given the novelty of this approach, empirical research on the effectiveness of such efforts would be essential.
Conclusion
Gary B. and cases like it hold much promise to spur educational reform in places where it has been needed for far too long. However, even if courts ultimately find the plaintiffs’ legal arguments persuasive in these cases, the battle is far from won. We propose a synergistic model of educational reform that aligns a judicial process for considering evidence and crafting remedies to contemporary education research on effective models of systemic improvement. Instituting such a model would not be easy. The courts have sometimes been loath to engage in such reform processes, arguing that such types of decisions are more appropriate for the “political” branches such as legislatures (Enrich, 1995). Moreover, the courts would likely face criticism for being “activist” by extending their authority past legal and appropriate boundaries. It would take commitment not only from courts and litigants but also education researchers and various stakeholders in the education system that would implement reforms. It would possibly include the creation of a new support structure for courts to effectively engage with education research and manage reform processes. Despite these potential drawbacks, large-scale reform efforts have repeatedly emerged in the courts over the past several decades, and it is imperative to ensure that such efforts are as productive as possible. Moreover, as Gary B. highlights, the continuing failure of legislative and executive branches in Michigan is precisely what spurred this litigation in the first place. Indeed, drawing on research on judicial agenda-setting, our model positions the courts as institutions that can promote reform specifically when the political process fails. We contend that this reconstitution of educational governance is critical for courts to promote education reform where the political process has dictated otherwise for too long.