For several decades now, liberal public-interest litigators have argued that insufficiently generous subsidies for the education of disadvantaged children violate the education or equal protection clauses of state constitutions. Their opponents responded that the evidence that more money would substantially improve student outcomes was too speculative to warrant judicial intervention. More recently, conservative public-interest litigators have started attacking teacher tenure and seniority protections on the same constitutional grounds. In response, liberals are parroting the evidentiary and causation arguments that conservatives made in school-finance cases. Both factions in this back-and-forth have overlooked a critically important fact: The state’s own choices substantially determine whether researchers—and hence litigators—can produce credible evidence concerning the causal effect of state laws and funding arrangements on the outcomes that ground the education right. States exercise this control through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are rolled out; and through the terms on which the state provides access to administrative data.
Recognizing that the information needed to enforce the education right is endogenous to law, we make the case for a new, information-oriented, education-rights jurisprudence in which courts would intervene not simply to resolve disputes about how to organize and fund the education of disadvantaged children, but to enable more credible tests of the competing predictions of warring education reformers. Our analysis directs attention to several issues that have been overlooked since education-rights litigation got underway in the 1970s and does so at a critical moment—as educational research undergoes a “scientific revolution” bearing on the very questions that must be answered to implement the education right.
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