Derek W. Black


Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused almost exclusively on funding. Though that litigation has narrowed gross fundinggaps between schools in many states, it has not changed what matters most: access to quality teachers.

This Article proposes a break from the traditional approach to litigating the constitutional right to education. Rather than constitutionalizing adequate or equal funding, courts should constitutionalize quality teaching. The recent success of the constitutional challenge to tenure offers the first step in this direction. But the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy. When evaluating claims that students have been deprived of their constitutional right to education, courts should first ensure that states equally distribute existing quality teachers, regardless of the supply. Courts should then address state policies that affect the supply of teachers,which include far more than just salaries. When those remedies still prove insufficient to ensure access to quality teachers, courts must ensure that the removal of ineffective teachers is possible.

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