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Abstract
Is the U.S. Supreme Court inviting litigants to take aim at unraveling injunctions in institutional reform litigation—especially consent decrees in the schools? In Horne v. Flores (2009), the court remanded a 17-year-old school reform case to a federal judge with orders to look beyond consent decrees on financing, reducing class sizes, and moving from bilingual education to structured English immersion—to look anew at whether the schools in Nogales, Arizona, provide equal opportunity. Those concerned with schools worry that the court has signaled the end of institutional reform litigation in the schools. However, we closely analyze these dense opinions and data tables to posit the court’s preference for a catalytic judicial strategy that may work best with institutional reform litigation. We place this analysis within a larger context of empirical studies of institutional reform litigation judicial strategies, including judicial roles of deferrer, director, broker, and catalyst. We also argue that these preferences demonstrate the court’s awareness of a sociolegal empirical literature on what works in institutional reform litigation—rather than the end of consent decrees in the schools.
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