Sarah Blaine, a lawyer who wrote the earlier post explaining the absurdity of Arne Duncan’s plan to grade colleges of education in relation to the test scores of the students taught by their graduates, here responds to a question about the possibility of litigation. By the way, if you want to comment on Arne’s plan, here is where you write: https://www.federalregister.gov/articles/2014/12/03/2014-28218/teacher-preparation-issues

 

 

Sarah Blaine writes:

 

There’s a lot to be said for impact litigation, and if someone offered me the opportunity for employment working on meaningful anti-reform education-related impact litigation, I’d be the first to say yes. Education Law Center in NJ, for instance, has done great work over the years, but they’re one tiny organization (and they haven’t offered me a job). And funding is a huge issue here — impact litigation isn’t cheap, and while I do my blogging for free, I do need to earn a living from my day job.

 

The reality is that there are doctrines — for a reason — that prevent the judiciary from overstepping its role in our balance of powers system. Lawsuits are typically blunt instruments, and they can certainly have unintended consequences. It’s a lot easier (and less costly) to stop a specific proposed regulation or law, such as this one, from becoming the law of the land than it is to challenge that regulation or law once it’s been passed. If you don’t like the proposed regulation, take action to stop it now by calling public attention to it and filing a comment opposed to it. You’ve got 56 days for public comment (although there is a petition going around, for whatever it’s worth, seeking to extend that time).

 

I don’t think the sort of “umbrella” lawsuit you envision is viable or practical. Rather, lawsuits need to be brought by particular plaintiffs who have standing to sue, against particular defendants who have caused particularized and specifically stated harm. If plaintiffs don’t have standing, the suit will be thrown out on a motion to dismiss, and perhaps some problematic caselaw will be made as a result. So impact litigation needs to be carefully planned and targeted at where it will do the most good. An umbrella lawsuit that takes on standardized testing, charter schools, funding injustice, value-added measurement, and whatever else we’re so frustrated by is not something that’s realistic, regardless of whatever a lawyer-show on TV might have implied.

 

The proper venue for taking on the “big picture” of corporate reform is not a courthouse (although courthouses are powerful possibilities for dealing with concrete and targeted issues); rather, it’s a grassroots movement, covered by the media, that seeks to influence legislators and executive branch members to roll back the tide of their harmful policies. It’s not easy, and it doesn’t come with the possibility of a judge’s stamp of approval saying that we’re right, but it’s how we get things done in a democracy that hopefully will refuse, despite the odds allied against it, to be beholden to big money, big business, and big philanthropy.