REVIEWS & COMMENTARY

Legal Times

The Corrosive Consent Decrees
May 5, 2003
By Ross Weiner

Democracy by Decree: What Happens When Courts Run Government is a thought-provoking book about the fundamental issues of democracy, federalism, and separation of powers. Authors Ross Sandler and David Schoenbrod put forward a forceful critique of the consent decrees that often result from institutional reform litigation and have, over time, reduced the power of democratically elected state and local institutions to make public policy choices.

Yet Democracy by Decree is not a wholesale attack on class actions or the consent decrees that often settle these cases. The authors, who both teach at New York Law School, are content to offer reform proposals, but do not advocate removing the judiciary from its important place in protecting the rights of aggrieved plaintiffs. But they do forcefully attack the habit of using courts, and class actions in particular, to make public policy decisions that are better left to the democratically elected.

The authors argue that the courts are the proper forum for remedial action or for limited prospective action to ensure that constitutional rights are not violated, but that institutional reform litigation creates many negative unforeseen consequences when it encroaches upon the elected branches of government by instituting widespread oversight of public institutions.

Sandler and Schoenbrod trace the historical development of institutional reform litigation to the civil rights movement. They argue that the heroic achievements of civil rights era attorneys in dismantling segregation inspired a generation of attorneys to become "public interest" lawyers to fight for social change. Many elected Southern officeholders at the time actively worked to subvert the constitutional rights of their African-American constituents, and this massive resistance forced the judiciary to take over the management of several public institutions to ensure that African-Americans could freely exercise their constitutional rights. They note that the difference between the attitudes of local and state officeholders during the civil rights era and the attitudes of later elected officials is often lost on these public interest attorneys.

The authors argue that, in much of the recent institutional reform litigation, the rights at issue and the behavior of elected officials is less stark than that during the civil rights era. While their policies may in fact violate statutory rights, their intentions are far less nefarious. Rather, this litigation often concerns statutory rights or federal aspirations, while local elected officials attempt to balance public policy choices with their constituencies' own limited financial wherewithal. These officeholders often support the underlying rights being enforced, but are simply unable to muster the public resources to attain those unfunded federal mandates. Such new rights often call for government to provide something to its citizens, unlike a more traditional right, which called for government to refrain from taking something away from the citizenry.

The authors postulate that most of these officeholders are a far cry from the Southern segregationists, but that the public interest lawyers and the judiciary have devised standard remedial actions that do not differentiate between the attitudes of officeholders and the rights being enforced.

Democracy by Decree provides many examples of cases that illustrate the perils and unforeseen consequences of institutional reform litigation. Jose P. v. Ambach, which began in 1979, shows how the judicial process usurped special education policy in New York City.

This case has its roots in the congressional passage of the Education for All Handicapped Children Act. The legislation contained vague goals, but with no clear mechanism outlining for states and localities the means to achieve the nebulous ends outlined in the statute. The federal right to special education created by this statute begat class action litigation to enforce such a right when New York City could not comply with all the goals outlined in the statute.
The litigation ultimately resulted in a court finding New York City in violation of the statute, and affirming a very broad consent decree among plaintiffs and city officials, which mandated many changes to special education policy in New York City. Over the decades in which this decree has been in place, the court and the plaintiffs' attorneys have had the authority to reject or approve all changes to the city's special education program. This has shifted policy-making power from open forums among the elected City Council and city agencies to closed-door negotiations between attorneys.

The authors show how this has led to many unintended consequences, including the locking into place of special education policy designed more than two decades ago, which now may be outdated; the reduction of money available for students in nonspecial education classes; and the awarding to plaintiffs' attorneys of a significant degree of control over a large portion of the city's budget.

An intended consequence of these types of consent decrees is to limit the variety of policy choices available to elected officials. The authors contend that when public interest attorneys were confronting massive resistance, this was the correct choice for the judiciary. But when confronting public officials who attempt to deal with such issues by balancing the proper amount of funding for special and nonspecial education programs, more flexibility is required.

The authors argue that it is sometimes appropriate to restrain the future actions of private citizens indefinitely in private litigation, but in institutional reform litigation -- in the absence of an intent to impede the constitutional rights of individuals -- present day officeholders should not be allowed to sign away the rights of the people and their future representatives to make public policy choices.

Sandler and Schoenbrod emphasize sympathetically that they, too, were once public interest attorneys. And they avow their admiration for the efforts of civil-rights lawyers to fight segregation. Thus, the tone of the book feels similar to that of a journalist paying homage to Bob Woodward and Carl Bernstein, while attacking the type of journalism that may have developed in the wake of Watergate. Such rhetorical shields appear to be attempts to protect their work from political criticism by public interest attorneys and the lobbying groups they populate. Their homage to the roots of public interest litigation does bolster the credibility of Democracy by Decree, and it is to their merit that they do not resort to the tired clichs often heard in the political arena about judicial activism.

At its heart, Democracy by Decree is an ode to representative government. The authors demonstrate that the judiciary has an important role in protecting the rights of citizens, but argue convincingly that when it comes to making basic public policy choices, representative democracy may not be perfect, but it is often better than any viable alternative.

Ross Weiner is an in-house attorney in the San Francisco Bay Area.

©2003 Legal Times