Additionally, the final chapter provides an innovative--albeit underdeveloped--method of determining the success
of policies. This framework rejects the traditional view, one that estimates success by comparing the change that
did occur with what was expected to occur, in favor of a broader focus that measures policy success in terms of
the extent of change in a potentially hostile context. That is, sometimes the fact that even minimal policy change
was triggered is significant in and of itself. Of course, it could be argued that this method is chosen simply
because it favors the top-down, judicial mandates that Welner supports over more localized, bottom-up strategies.
Still, it represents a novel and creative approach to the sometimes frustratingly moribund field of policy implementation,
in which new
and improved frameworks for assessing policy success are often promised but seldom delivered.
LEGAL RIGHTS, LOCAL WRONGS has the potential, because of its subject matter,
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to be ignored by political scientists (because it is too education oriented) and vice versa. This would be a mistake.
Welner has provided an important bridge between the fields of policy studies and education, an important contribution
at a time when educational practices have become high-profile topics in the public dialogue. Although legal scholars
may have preferred more of a spotlight on the courtroom maneuvers, this book moves the focus along to the significant
question of how much impact judicial mandates for educational reform actually exert.
All of this is not to say that this work has no weaknesses. It does, and these keep the book from fully emerging
as a strong piece of scholarship. A fairly minor complaint is the lack of judicious editing. Although the writing
in general is solid and engaging, there is just too much repetition of similar points (and virtually identical
sentences) throughout the book that may strain the patience of the reader (particularly students). The final product
should have been sharper, shorter, and more tightly organized.
Two more significant concerns involve the cited literature (or lack thereof) and the sometimes overly polemical
tone. First, scholars from the policy studies and judicial decision making traditions may be surprised by the
omission of not just a number of key cites, but entire bodies of literature. Welner is a professor of education,
not political science, and I hesitate to fault him for not being familiar with work outside of his own discipline.
Still, by voluntarily delving into policy and judicial issues, he has a responsibility to fully present the relevant
debates and research. In several instances he fails to do this. The most jarring of these to readers
interested in judicial policy making is the seeming naivet‚ (and inconsistencies) in regard to the vast literature
on how judges make decisions.
For example, the chapter titled "The Importance of Judicial Values" is almost amateurish. It reads more
like an essay written by an undergraduate who has just discovered (and is shocked, shocked) that liberal judges
tend to make liberal decisions and conservatives tend to make conservative decisions. (The major target of Welner's
ire here is Judge Richard Posner.) There is virtually no discussion of the vast reservoir of research that addresses
the documented effect (and limitations) of this variable on decisions. A similarly unsophisticated (but contradictory)
argument is made in the final chapter, which justifies the propriety of judicial mandates as the key agent of tracking
reform through a reliance on the anti-majoritarian nature of courts. In addition to failing to make clear why
this tendency to protect
minority plaintiffs did not take hold of Judge Posner, the voluminous debate over this proposed bulwark function
is not even superficially addressed.
My second concern involves Welner's occasional inability or disinclination to shake off his personal convictions.
This is not so endemic that it fatally harms his findings, but it happens often enough to be disturbing, and detracts
from the scholarly tone. Overall, this tendency centers on Welner's assertion that because tracking serves no
educational purpose, and leads to segregated classrooms, then its existence must be driven by racism. The book
never presents any counter-evidence that tracking might have a beneficial effect, but I am willing to accept that
such evidence simply does not exist. The more troubling tendency, however, is Welner's sometimes ham-handed approach
to exploring the motivations and values of parents, teachers, and judges. For example, a section discussing parent
and teacher assertions that their
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opposition to detracking is not in fact motivated by racism is subjectively titled "Denial" (p. 178).
And, despite briefly acknowledging that judicial resistance to issue reform mandates could simply be driven by
a disinclination to micro-manage local school matters, Welner presumptively proclaims that, "while we can
assume that most judges believe in a just society, if a judge's belief is not solidly grounded in the protection
of human equality, then bringing desegregation or detracking litigation in front of him or her is likely to be
a futile task" (p. 81).
In my own mind, I too suspect that conscious or unconscious racist motives are at the core of much of this resistance
to truly integrated classrooms. However, there is an uncomfortably elitist tone to Welner's insistence (without
any hard evidence to back it up) on this being the case--in some passages it devolves into unsubstantiated parent
and teacher bashing. This could be offensive to some readers. On the other hand, it could result in some lively
classroom discussions, particularly in graduate-level classes where students themselves may be parents of school
age children and hold strong opinions of their own on this topic.
This brings me to my final point on the book, which is its suitability for the classroom. As mentioned, it does
represent that most elusive of classroom readings--a generally interesting and insightful case study. However,
the book may be a bit difficult for some undergraduates to get through. At the risk of perpetuating a higher education
version of tracking, I would advise professors that at the undergraduate level this book would work quite well
in honors level classes. It could also be relevant and worthwhile to motivated students in specialized courses
covering policy implementation, civil rights policy, or law and society. The most useful forum would probably
be graduate level policy, judicial process, or institutions courses, and I plan to use it myself in this capacity.
In conclusion, whether for classroom
adoption or for general scholarly interest, this book (warts and all) deserves serious attention from the general
and judicial policy studies disciplines.
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Copyright 2002 by the author, Francine Sanders Romero