Legal commentators often evaluate constitutional adjudication based on its internal structure: its logic, rules, and judgments. Others critique judicial action for falsely raising expectations, becoming a “hollow hope” for social reform by proposing remedies which cannot be successfully implemented. Employing both a constitutional theory and a positive political theory perspective, this Article compares the recent education reform litigation in Kentucky and New Jersey. This comparison highlights the way in which different approaches to adjudication help to define the political dynamics of the reform debate and contribute—or fail to contribute—to remedying the alleged constitutional violation.

The education reform litigation debate often centers around two related issues: (1) the substantive interpretation of relevant state constitutional provisions and (2) the less frequently considered issue of why a remedy ordered by a state court succeeds or fails. Commentators tend to conclude either that courts will almost always fail to drive meaningful reform or that courts just need to push harder to remedy a constitutional violation. In contrast, this Article suggests that courts can make a difference —not by mandating specific remedies, but by effectively framing the issues, by using their powers of persuasion to articulate a constitutional vision of education, and by defining the roles of other political actors in the effort to reform a state’s educational system.

Optimism about courts’ abilities to drive reform has been tempered by the difficult history of implementing the school desegregation remedies that stemmed from the U.S. Supreme Court’s decision in Brown v. Board of Education I.  The Court’s call to desegregate with “all deliberate speed”‘ failed to overcome effectively the southern resistance to integration. Efforts to force desegregation by withholding federal funding for segregated schools met with further resistance, and specific, judicially-mandated actions such as busing also faltered. Based on this experience, some commentators conclude that we cannot (and should not) expect courts successfully to change society. Others warn that while courts are potentially effective vehicles for social change, they should guard against overreaching their institutional authority.

In the midst of its struggle with the desegregation issue, the U.S.Supreme Court declared in San Antonio Indep. Sch. Dist. v. Rodriguez that it would not enter the “thicket” of overseeing school financing to ensure equal funding among districts. The Rodriguez Court’s awareness of its own institutional limitations suggests that its decision did not necessarily mean that the Constitution is neutral on issues of educational quality or equal funding, but simply that the Supreme Court would not attempt to enforce any such requirement. Nevertheless, at least twenty-nine state courts, including those in Kentucky and New Jersey, have entered into this “thicket,” scrutinizing school financing schemes despite basic prudential concerns about how to manage and enforce education reform decisions.

The Kentucky Supreme Court first dealt with the issue of school financing in 1989, when it decided Rose v. Council for Better Educ., Inc. The Kentucky court rejected the lower court’s holding that the disparities among school districts created by the state’s education system violated theKentucky Constitution’s equality guarantees.21 Focusing instead on the state constitution’s education clause, which mandates that the “General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state,” the court stressed the constitution’s commitment to the overall quality of the school system. Its opinions parked public support for reshaping Kentucky’s educational system to accommodate both a desire to improve overall quality and a concern for distributional equity.

The New Jersey Supreme Court visited the issue of education reform sixteen years earlier than Kentucky, when Robinson v. Cahill I held that New Jersey’s schools failed to satisfy the state constitution’s education clause. That clause requires that the “[l]egislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the state between the ages of five and eighteen years.” The New Jersey Supreme Court interpreted the state constitution’s guarantee of a “thorough and efficient” education as requiring the state to give each child an equal “educational opportunity… to equip [him] for his role as a citizen and as a competitor in the labor market.” The decision initially outlined an open-ended remedy, giving the legislature fifteen months to resolve the matter. Despite the legislature’s failure to act in a timely manner, the court decided not to disturb the current scheme during the 1975-76 school year. When the legislature again failed to act, the court considered shutting down the school system by enjoining its financing. Finally, the legislature reformed the state’s school financing system so as to reduce the funding differences between rich and poor districts while leaving the overall system intact. Although the New Jersey Supreme Court validated the new arrangement, the legislature failed to fund the new system. The court then carried out its earlier threat and closed the system by enjoining its funding. In response, the legislature enacted a controversial state income tax to fund the schools. This solution finally resolved the Robinson litigation-after seven trips to the state’s highest court.

More recently, in 1990, the New Jersey Supreme Court interpreted its education clause in Abbott v. Burke II, the subject of the second case study in this Article. The court declared that the state failed to provide adequately for twenty-eight “special needs” districts. The legislature responded promptly, but ultimately diluted the reform legislation in the face of intense public pressure. Thus, the court intervened again in Abbott v. Burke III, ordering additional funding for these districts by the 1997-98 school year.

This Article draws on the experience of education reform ushered by the recent court-ordered remedies in Kentucky and New Jersey. It argues that to alter the political status quo and effectuate meaningful education reform, courts must (1) force a new consideration of the state’s educational problems, (2) create a sense of urgency and crisis, and (3) provide legislators with political protection, or “cover,” for enacting comprehensive re-form. To create these conditions, courts need to connect the constitutional violation and its remedy to the intuitively appealing goal of overall educational quality. The alternative approach, which focuses solely on distributional equity, fails to reflect the constitutional mandate and invites significantly greater political resistance.

The Kentucky Supreme Court’s decision to emphasize the overall quality of the educational system may explain its comparative success in motivating education reform. However, certain conditions in New Jersey might have frustrated any judicially instigated reform efforts in New Jersey-even those along the lines of the Kentucky example. The key differences between the states include the overall quality of the state’s educational system at the outset of the litigation, the extent to which school districts across the state vary in their wealth and racial composition, and the extent to which citizens identify with the state. Undoubtedly, these environmental factors constitute formidable constraints to education re-form and certainly help to account for the different results of the education reform efforts in the two states.

Part I of this Article outlines various theories of constitutional interpretation and applies them to the adjudication of state constitutional clauses governing education in order to develop the ideal interpretative strategy for implementing education reform. Part I then discusses how the successfully implemented decision in Kentucky effectively followed this ideal interpretive strategy, while the New Jersey court pursued an alternative strategy. Part II, which outlines the education reform efforts in New Jersey and Kentucky, considers whether the most successful political strategy for education reform is to follow the best interpretation of the education clauses. Specifically, Part II models the struggle for education reform through the use of positive political theory (conceiving of policymaking asa political game) to analyze whether the political dynamics of education reform militate in favor of the ideal interpretative strategy. Part III then draws on the lessons of Part I’s constitutional theory and Part II’s positive political theory analyses to suggest that courts, litigators, and political actors should seek to meet the three conditions outlined above to successfully effectuate meaningful education reform. Finally, Part III contrasts the demographic profiles of the two states and considers to what extent they explain their different experiences with education reform.