Crafting Effective Remedies: Comparative Institutional Perspectives

in Courts and Kids

Published by University of Chicago Press

Published in print November 2009 | ISBN: 9780226706191
Published online March 2013 | e-ISBN: 9780226706184 | DOI:
Crafting Effective Remedies: Comparative Institutional Perspectives

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Ensuring a sound basic education for all children is an affirmative mandate of most state constitutions, and this egalitarian imperative has also been adopted as the United States' paramount educational policy through the No Child Left Behind Act (NCLB) and as the explicit educational policy of virtually all of the states in the form of a major commitment to standards-based reform. A major reason some of the state courts have not consistently been able to effectuate fully successful remedies in the sound basic education cases is that they have been hamstrung by anachronistic concepts of separation of powers. A significant distinction between federal courts and state courts is that, in key areas of state responsibility like education and welfare, state constitutions incorporate “positive rights” that call for affirmative governmental action in contrast to the “negative restraints” of the federal constitution. This chapter argues that educational equity can only be realized through an effective ongoing dialogue among the three branches of government: executive branch, judicial branch, and legislative branch.

Keywords: sound basic education; state courts; separation of powers; educational policy; educational equity; United States; positive rights; negative restraints; standards-based reform

Chapter.  5315 words. 

Subjects: Family Law

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