Standing Up to Legislative Bullies: Separation of Powers, State Courts and Educational Rights
The separation of powers doctrine creates a strong presumption in favor of judicial deference to legislative policy determinations. This doctrine was developed for federal courts, however, and does not apply with identical force to state courts enforcing state constitutional rights. This Note examines rationales for the separation of powers doctrine and their potential application to state courts. After concluding that deference should be more limited in state courts, it then applies this conclusion to educational rights, which are frequently at risk due to political market failures. By examining case studies of constitutionally based education litigation in seven states, this Note concludes with recommendations to state courts facing the challenge of managing such cases: issue a strong first opinion, maintain jurisdiction by remanding the case rather than finalizing it, and demonstrate an upfront commitment to enforcing educational rights.
Sonja Ralston Elder,
Standing Up to Legislative Bullies: Separation of Powers, State Courts and Educational Rights,
57 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol57/iss3/5