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Copyright (c) 1985 Texas Law Review
Texas Law Review

SPECIAL ISSUE: EDUCATION: Suing to Make Schools Effective, or How to Make a Bad Situation Worse: A Response to Ratner.

February, 1985

63 Tex. L. Rev. 889


John S. Elson *


I. Introduction

Gershon Ratner's arguments for judicial remedies for ineffective education elaborate on the major legal theories that many commentators have urged upon a resistant judiciary over the last decade. 1 Ratner's distinctive contribution is his claim that new empirical evidence now justifies judicial intervention in order to improve learning on a school-wide basis. 2 Ratner builds his case on two empirical propositions: first, recent research has disclosed the essential characteristics of effective schools; and second, if ineffective schools are judicially ordered to adopt those characteristics, it is more likely than not that such schools will become effective. On the basis of these propositions Ratner concludes that ineffective schools have a legally enforceable constitutional and common law duty to adopt the characteristics of effective schools.

Part II of this Article concludes that Ratner's "new" empirical evidence is unpersuasive, probably inadmissible, and too imprecise to provide judicially manageable standards. Part III concludes that, in light of the present learning on how to bring about school reform, suits to make ineffective schools effective are not the proper subjects of judicial decision-making and enforcement procedures. Thus, even if Ratner's new empirical evidence on effective schools were admissible and persuasive, the attempt to implement those findings through litigation would present a nonjusticiable controversy. 3
II. The Empirical Research

Ratner rests his empirical case on a recent series of studies that attempt to isolate the distinctive essential characteristics of effective schools. Ratner accepts the assertion of one of the principal proponents of the research that ...
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