Educational Policy Making and the Courts

In the United States, the early days of judicial enforcement of school desegregation decrees occasioned a wide-ranging academic debate on judicial activism. The courts' forays into policy making in areas that traditionally had been considered to be in the legislative or executive domain were repeatedly attacked as violating traditional separation of powers precepts. Defenders of the courts' new role argued that the judges were merely adapting traditional concepts of judicial review and their obligation to enforce constitutional rights to the needs of a complex administrative state. This chapter reviews the history of the judicial activism debate and shows that, despite continuing critical commentary in the popular press and partisan political rhetoric, the legitimacy of the courts' new role and their capacity to effectuate it has, in fact, become an integral aspect of the functioning of modern government that has been widely accepted by courts, Congress, state legislatures, and the public at large.