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42 Ind. L. Rev. 327 (2009)
Courting Trouble: Litigation, High-Stakes Testing, and Education Policy

handle is hein.journals/indilr42 and id is 332 raw text is: COURTING TROUBLE: LITIGATION, HIGH-STAKES TESTING, AND EDUCATION POLICY MICHAEL HEISE* INTRODUCTION Unanticipated consequences invariably flow from court decisions that venture too deeply into legislative and executive policy terrain. Many public policies embody a careful and somewhat delicate calibration of various political interests and compromises. Litigation, by contrast, is adversarial by design and, in general, is limited in scope and reach to the litigating parties' interests. Litigation-and sometimes the mere threat of litigation-frequently influences public policies. The blunt force trauma often inflicted by litigation onto public policies is rarely pretty and often discourages many, especially those impacted by the affected public policies. Untidy fallout from the interaction between litigation and public policy is common in many policy sectors, especially education. With education policy in particular, this untidiness results partly from the inherent complexity of numerous education policies as well as from the importance of the stakes involved. Some examples of unanticipated consequences incident to legal decisions involving education polices are obvious and easily identified;' others are more subtle and nuanced.2 Although recent scholarship expresses confidence in the courts' ability to drive education policy and reform,3 such confidence rests uneasily on optimistic * Professor, Cornell Law School. I am grateful to Dawn M. Chutkow, Matthew Heise, and Michelle Yetter for their input on earlier versions of this Article as well as participants in Indiana University School of Law-Indianapolis Program on Law and State Government Symposium: Education Reform and State Government, The Role of Tests, Expectations, Funding and Failure. The reference librarians at Cornell Law School also provided excellent research assistance. 1. For example, California's experience in the school finance context is particularly notable. Ironically, successful and path-breaking school finance litigation in California contributed to policies that resulted in a decrease in California's national ranking for per-pupil spending. The precise causal relation between the Serrano v. Priest, 487 P.2d 1241 (Cal. 1971), decision and California's Proposition 13, CAL. CONST. of 1879 art. XIIIA, §§ 1-6, remains in dispute. For a discussion, see, for example, William A. Fischel, Did John Serrano Vote for Proposition 13? A Reply to Stark andZasloffs Tiebout and Tax Revolts: Did Serrano Really Cause Proposition 13, 51 UCLA L. REv. 887, 890 (2004); Issac Martin, Does School Finance Litigation Cause Taxpayer Revolt? Serrano and Proposition 13, 40 LAw & SoC'Y REv. 525, 526-28 (2006); Kirk Stark & Jonathan Zasloff, Tiebout and Tax Revolts: Did Serrano Really Cause Proposition 13?, 50 UCLA L. REV. 801, 807 (2003). 2. The empiricization of the equal educational opportunity doctrine is an often-overlooked consequence of the Brown v. Board of Education opinion. See, e.g., Michael Heise, Equal Educational Opportunity by the Numbers: The Warren Court's Empirical Legacy, 59 WASH. & LEE L. REv. 1309, 1310-11 (2002). 3. See, e.g., BENJAMIN MICHAEL SUPERFINE, THE COURTS AND STANDARDs-BAsED

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