SLIDING TOWARDS EDUCATIONAL OUTCOMES: A NEW REMEDY FOR HIGH-STAKES EDUCATION LAWSUITS IN A POST-NCLB WORLD
Sheff v. O’Neill ushered in a new wave of education reform litigation that will challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Article proposes a new desegregation remedy—the sliding scale remedy—to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students’ academic outcomes. It balances concerns over local control and separation of powers with the court’s need to effectuate rights, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.