Courts and Public Schools: Educational Litigation in Historical Perspective

This study is an exploratory social history of litigation about public education. Using West digests as an index of appellate cases, it first examines the changing volume and character of litigation from the earliest recorded cases until 1981. It then relates trends in litigation to two broad phases of educational history: the system-building era, when courts helped to clarify the lines of authority in an ambiguously decentralized system; and the new functions of litigation in the twentieth century, when administrative progressives sought to use legislation to reshape schooling. It turns then to the relation between school law and social conflict over basic dividing lines of religion, race, and ethnicity and suggests that courts played a relatively small role in adjudicating such issues until recent times. Finally, it contrasts the recent history of litigation—by some called a “legal revolution”—when excluded groups sought to reshape schooling.