¹ “Educational outcomes”, or “outputs”, usually refer to the academic achievement of students as measured by some form of standardized testing. The term may also include measures such as school drop-out rates, pupil absenteeism and truancy, and vandalism and other disciplinary problems. Some commentators, especially those with economics training, distinguish between “outputs” and “outcomes”, the former term referring to longer-range measures of life success, such as post-school income levels and job success. “Inputs”, on the other hand, refer to the resources invested in educating students. These may include the funds spent or more specific elements of the educational program, such as physical facilities; equipment and material; teaching, supervisory, administrative and support staffs; and curriculum. Still other commentators would add a “process” dimension. They use this term to refer to the dynamic of school life through which “inputs” are applied to produce “outcomes” or “outputs”. Often it relates to some variation on the PPBS (Program Planning Budgeting System) theme.

² Approximately three-fourths of the states have adopted formal minimum competency programs and most of the remainder have at least studied the matter. Some of the programs merely generate data for educational planning and programming purposes. But others require students to demonstrate a certain level of proficiency to be promoted from grade to grade or to be graduated from high school. Most of the latter programs provide for special, compensatory assistance to students who initially fail to demonstrate the requisite proficiency level. For background on minimum competency testing programs, see, e.g., Bossone, R., Minimum Com petencies: A National Survey (1978)Google Scholar; Frahm, R. and Covington, J., What's Happening in Minimum Competency Testing (1979)Google Scholar; Symposium, The Minimum Competency Testing Movement (1978) 59 Phi Delta Kappan 585–625. Still, substantial legal problems have been raised in connection with such programs. See, e.g. P. Tractenberg, “Legal Implications of Minimum Competency Testing: Debra P. and Beyond”, October 1979 (Education Commission of the States); Lewis, , “Certifying Functional Literacy: Competency Testing and Implications for Due Process and Equal Education Opportunity” (1979) 8 J. L. Educ. 145 Google Scholar; McClung, , “Competency Testing Programs: Legal and Education Issues” (1979) 47 Fordham L. R. 651.Google Scholar

³ S.Goldstein, ed., Law and Equality in Education (1980) 217.Google Scholar

⁴ Minkovich, , “An Evaluation Study of Elementary Education in Israel”, in S.Goldstein, ed. Law and Equality in Education (1980) 11 (hereinafter cited as Minkovich)Google Scholar.

⁵ For discussions of “mastery learning”, see, e.g., Block, J., Mastery Learning: Theory and Practice (1971)Google Scholar; Bloom, , “Individual Differences in School Achievement: A Vanishing Point”, in Education at Chicago (1971)Google Scholar.

⁶ See, e.g., Wise, A., Legislated Learning: The Bureaucratization of the American Classroom (1979).Google Scholar

⁷ “Educability” of students traditionally has been determined in the United States by reference to measures such as standardized “intelligence” tests. Students who score above a certain IQ level are regarded as “normal”; students in the range just below that level may be considered “educable retarded”; those still lower may fall into categories labelled “profoundly retarded”, “trainable”, or even “neither educable nor trainable”. Litigation in a number of states, however, has success fully challenged both the exclusion from education of those in the lower catego ries, e.g., Mills v. Board of Education, 348 F. Supp. 866 (D.D.C. 1972); Parc v. Commonwealth of Pennsylvania, 343 F. Supp. 279 (E.D.Pa. 1972) (consent decree), and the classification process, e.g., Larry P. v. Riles, 343 F. Supp. (N.D. Cal. 1972), aff'd, 502 F. 2d 963 (9th Cir. 1974), subseq. op. 495 F. Supp. 926 (N.D. Cal. 1979). The application of the same achievement standards to students below the “normal” intelligence range, or otherwise handicapped, or lacking proficiency in English, raises complex issues of educational policy and perhaps law. Most states with formal minimum competency programs have simply excluded such students from the programs. This, in turn, creates problems; often compen satory education opportunities are triggered by low performance on minimum competency tests. Students excluded from the tests, therefore, may have no access to such opportunities.

⁸ E.g., C.Jencks et al., Inequality: A Reassessment of the Effects of Family and Schooling in America (1972).Google Scholar

⁹ Minkovich, supra n. 4, at 27; Klein, & Eshel, , “The Nachlaot Project: An Israeli Experiment in School Integration”, in S.Goldstein, ed., Law and Equality in Education (1980) 82.Google Scholar

¹⁰ In the United States, the so-called Coleman Report, an elaborate study of equality of educational opportunity, has been subjected to a wide array of critiques, analyses, and re-analyses. See, e.g., F.Mosteller & D.Moynihan, eds., On Equality of Educational Opportunity (1972).Google Scholar

¹¹ Minkovich, supra n. 4, at 22–25.

¹² Coons, , “The Role of the Family in Educational Decision Making”, in S.Goldstein, ed., Law and Equality in Education (1980) 157.Google Scholar

¹³ The references to the Israeli legal system are based primarily on descriptions in Goldstein, “Judicial Intervention in Educational Decision Making: An Israeli-American Comparison”, and Shapira, , “Educational Liberty and Equality: Some Israeli Constitutional Law Perspectives”, both in S.Goldstein, ed., Law and Equality in Education (1980) 95 Google Scholar, 149. See also Zemach, Y., Political Questions in the Courts (1976) 19.Google Scholar

¹⁴ See, e.g., Berger, R., Government by Judiciary (1977)Google Scholar; Kurland, P., The Constitution and the Warren Court (1970)Google Scholar; Glazer, , “Towards An Imperial Judiciary?”, (1975) 41 Google Scholar Pub. Interest 104.

¹⁵ 62 N.J. 473, 303 A.2d 273 (1973). As one of the lead counsel in the case, I cannot claim to be objective about it. I can claim in-depth knowledge, however. Professor Kirp's criticism of the decision was harsh: “If Robinson offers any lesson, it is that broad questions of distributional equity cannot be resolved by judicial exegesis of such ambiguous phrases as ‘thorough and efficient’” [New Jersey's State constitutional education guarantee on which the Supreme Court based its decision]. Kirp, , “Law, Politics, and Equal Educational Opportunity”, in S.Goldstein, ed., Law and Equality in Education (1980) 119 Google Scholar, 129. Professor Kirp's criticism of the decision was based on: (i) the illusiveness of the meaning of that state constitutional guarantee—the obligation of the state to provide all students with a “thorough and efficient system” of free public schools, and the court's failure to provide a sufficiently “coherent” definition; and (ii) the failure of the legislature's response to effectively reduce wealth-based disparities in educational expenditures. Other serious scholars have reached quite different conclusions about the decision and the court's role in enforcing it. See, e.g., Serrano, Clune and Robinson, , “Studies in the Implementation of Fiscal Equity and Effective in State Public Law Litigation”, in Schools and the Courts (ERIC Clearinghouse on Educational Management, 1979) vol. 2, pp. 67 Google Scholar, 106 (“…if basic skills levels improve even somewhat, who will say that the lawsuit was wasted?”); Fiss, , “The Supreme Court 1978 Term—Foreword: The Forms of Justice” (1979) 93 Harv. L. R. 1 CrossRefGoogle Scholar, 54, n. 107 (“The two most spectacular instances [of judicial shrewdness in inducing structural reform] that come to my mind are: the New Jersey school finance case, Robinson v. Cahill…”); Levin, , “Commentary—Education as a Constitutional Entitlement: A Proposed Judicial Standard for Determining How Much Is Enough” (1979) Wash. U.L.Q. 703 Google Scholar, 709 (“The leading case [among state court decisions focusing on assuring an adequate education to all children] is Robinson v. Cahill…”).

¹⁶ See text accompanying nn. 47–59 infra.

¹⁷ Among the many expressions of that point of view are: Chayes, , “The Role of the Judge in Public Law Litigation” (1976) 89 Harv. L.R. 1281 CrossRefGoogle Scholar; Fiss, , “The Supreme Court 1978 Term—Foreword: The Forms of Justice” (1979) 93 Harv. L.R. 1 CrossRefGoogle Scholar; Michelman, , “The Supreme Court 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment” (1969) 83 Harv. L.R. 7 CrossRefGoogle Scholar; Tribe, , “Seven Pluralist Fallacies: In Defense of the Adversary Process—A Reply to Justice Rehnquist” (1978) 33 U. Miami L.R. 43.Google Scholar

¹⁸ 347 U.S. 483 (1954).

¹⁹ Glazer, , “Towards an Imperial Judiciary?” (1975) 41 Pub. Interest 104.Google Scholar

²⁰ 5 U.S. (1 Cranch) 137 (1803).

²¹ Horowitz, D., The Courts and Social Policy (1977).Google Scholar

²² Id. at 298.

²³ Id.

²⁴ See id. at 62–68.

²⁵ See, e.g., Rebell, M. & Block, A., “Educational Policy Making and the Courts”, (unpublished report prepared for the National Institute of Education, Nov. 1979, revised version forthcoming from Univ. of Chicago Press) 34.Google Scholar

²⁶ Horowitz, supra n. 21, at 62.

²⁷ Id. at 23.

²⁸ Rebell & Block, supra n. 25.

²⁹ See id. at 67.

³⁰ Rebell and Block defined a “principle” as “a statement intending to establish a right (of an individual against the state or against another individual, or less frequently, the right of an institution to maintain the integrity of its legally defined prerogatives)”. Id. at 69. A “policy”, on the other hand, is “a statement concerning collective goals” in which “the relative importance or desirability of particular social goals” is considered. Id. at 70. In analyzing their caselets, Rebell and Block found that many of the cases were “hybrid”; a statement of principle was at their core, but the principle could not be applied without considering certain limited policy claims. This category was labelled “principle/policy balancing”. Id. at 71.

³¹ Id. at 568.

³² Id.

³³ Id. at 548.

³⁴ Id.

³⁵ Id. at 551–52.

³⁶ Id. at 553–59. Public interest lawyers are employed typically by advocacy centers, founded by private foundations or by government, to represent relatively under-represented interests, often in important public policy cases. See generally Rabin, , “Lawyers for Social Change: Perspectives on Public Interest Law” (1976) 28 Stan. L.R. 207.CrossRefGoogle Scholar

³⁷ Rebell & Block, supra n. 25, at 560.

³⁸ Id. at 561.

³⁹ Id. at 565.

⁴⁰ Id..

⁴¹ Id..

⁴² Id. at 567.

⁴³ Id. at 568.

⁴⁴ Id. at 568–69.

⁴⁵ See id. at 569.

⁴⁶ See id. at 569–71.

⁴⁷ Kirp, supra n. 15, at 121–22.

⁴⁸ Id. at 144. Even one of Professor Kirp's fellow participants in the Van Leer Jerusalem Foundation workshop, which gave rise to this book, expressed skepticism about this statement. Shapira, supra n. 13, at 151, n. 4.

⁴⁹ Kirp, supra n. 15, at 145.

⁵⁰ Id. at 123.

⁵¹ Id.

⁵² Id. at 133. Professor Kirp did not define what he meant by “distributive justice”; Horowitz described the concept as involving government policies that “allocate benefits among competing claimants”. Horowitz, supra n. 21, at 59.

⁵³ Kirp, supra n. 15, at 138.

⁵⁴ Id.

⁵⁵ Id. at 144.

⁵⁶ Id. at 125.

⁵⁷ Id.

⁵⁸ Id. at 126.

⁵⁹ Id.

⁶⁰ See, e.g., Ingraham v. Wright, 430 U.S. 651 (1977) (even assuming a federal liberty interest affected by corporal punishment in the schools, students are entitled only to state tort remedies). But see Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979) (systemwide bussing remedy upheld); Milliken v. Bradley, 433 U.S. 267 (1977) (comprehensive intradistrict education plan to remedy effects of segregation upheld). Ironically, although there has been more federal court restraint in many areas of public policy litigation, education policy cases may be an exception.

⁶¹ Information about the nature and status of school finance cases is available from the School Finance Project, Lawyers' Committee for Civil Rights Under Law, Washington, D.C. The Project has been publishing a periodic Update on State-Wide School Finance Cases (latest issue April 1980). The Introduction to the latest issue characterizes recent developments in a way strikingly different than Professor Kirp's prediction: “The pace of school finance reform [through state court litigation] has accelerated rapidly in recent years” (at i).

⁶² See, e.g. Seattle School District No. 1 v. State of Washington, 90 Wash. 2d 476, 585 P. 2d 71 (1978) (court ruled state had not defined adequately “basic education program” required to be provided); Pauley v. Kelly 255 S.E. 2d 859 (W. Va. 1979) (court preliminarily defined elements, outcomes and kinds of services included in concept of “thorough and efficient” education system); Board of Education, Levittown v. Nyquist, 94 Misc. 2d 466, 408, N.Y.S. 2d 606 (Nassau Co. Sup. Ct. 1978) (court ruled, inter alia, that state's failure to compensate for municipal and educational overburden of urban school districts was a constitutional violation).

⁶³ The American and Israeli situations must be carefully distinguished in this regard. Blacks and Hispanics in the United States are relatively small minorities of both the general and pupil populations in every state (although they represent majorities of both populations in many large American cities). In Israel, the “dis-advantaged” group—Oriental or Sephardic Jews—constitutes at least half of the general population and a clear majority of pupils in the elementary and secondary school population. Within the near future, they will be a clear and increasing majority in the general population, too. Thus, in Israel it may be more realistic to expect a majoritarian political process to respond adequately to the needs of those disadvantaged students. Active judicial intervention may be correspondingly less essential. Nonetheless, at least in the short run, numerical equality or even superiority does not necessarily translate into effective political power. Until that translation actually occurs, judicial involvement could be significant. Ironically, perhaps, when Oriental Jews exercise effective political power, judicial intervention and protection may be increasingly sought by a true Israeli minority—Western or Ashkenazic Jews who have been regarded as generally more advantaged. The Kramer case, discussed by Professors Goldstein and Shapira in their papers, reflects judicial unwillingness to protect the liberty interest of representatives of that group against the requirement of participation in a municipal integration program. Kramer v. City of Jerusalem (1971) 25 P.D. 767