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In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form of governance of the day: bureaucracy. Today, however, bureaucracy’s penchant for uniformity disqualifies it as a model judges can use to engineer the change needed by millions of children of color and in poverty trapped in failing schools. Today’s advocates can best honor Motley, therefore, by identifying the most generative form of governance of our own day and developing a model of public law litigation in its image. In that vein, this Essay advocates a duty of “responsible administration” of the public schools designed in the image of a more modern and effective form of governance: evolutionary learning. Drawing upon multiple analogies in modern legal practice, this duty requires officials responsible for students’ egregiously deficient and suspiciously disparate levels of educational attainment to track results, develop and test solutions, and use successes to set a progressively rising constitutional minimum for similarly situated students.


Education Law | Law | Litigation