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Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic fairness by using the accountability handholds the NCLB provides as tools for a new civil rights strategy. By officially documenting racially disparate impacts, and by distinguishing similarly situated schools and districts that reduce these disparities from those that do not, the Act authoritatively defines many of the worst existing disparities as avoidable and, therefore, invidious. The Act thus can trigger just the kind of locally, experientially, and consensually generated standards whose absence in the past has kept courts from carrying through with their initial commitments to desegregated, educationally effective schools.

We argue that these emergent standards open new possibilities to courts adjudicating the constitutional acceptability of public schools in the light of the NCLB. Rather than following Brown v. Board of Education in attempting by themselves to set the rules for constitutionally sufficient behavior, courts can follow the innovative decisions of, for example, the Texas Supreme Court in developing a form of judicial review through which judges superintend articulation of justiciable standards by those most directly concerned with the reconstruction of classrooms, schools, and school districts. This new form of judicial review could supplant Brown as a new pattern for judicial protection of positive, social rights and for the judicial supervision of complex institutional reform that due respect for such rights may require.


Civil Rights and Discrimination | Constitutional Law | Education Law | Law