When the Supreme Court declined to recognize the right to education as one fundamental to liberty, and thus unprotected by the U.S. Constitution, state courts took on the mantle as the next best fora for those yearning for judicial review of inequities present in American public schools. The explicit inclusion of the right to education in each state’s constitution carried the torch of optimism into the late twentieth century. Despite half a century of litigation in the states, the condition of the nation’s public school system remains troubling and perhaps increasingly falls short of expectations. Less competitive on an international level, producing historic declines in knowledge, and exhibiting growing gaps between high- and low-performing students, public schools are crying out for help.
But in some states, these cries go largely ignored. Legislators overpromise and underdeliver, while some judges throw their hands up in deliberate defeat, excusing themselves of the judicial duty of interpreting their state’s constitution. Why? To state courts, the very nature of this litigation is a “political question.” This Note examines different approaches that state courts employ in education adequacy litigation, endorses the active participation model as the “best approach,” and uses the recent case William Penn School District v. Pennsylvania Department of Education as a lesson to showcase the internal absurdity underlying state judges’ use of the political question doctrine in this area. In evaluating how state courts use this device or reject it entirely, this Note argues against the propriety of the political question doctrine and points out the doubly offensive nature of its inconsistent use.