This policy brief examines a critical aspect of quality education litigation: the tools available to courts to fashion and ensure implementation of a constitutional method of funding public education to improve schools. 

The 11 September 2001 al-Qaeda terrorist attack on the United States produced not only human and material loss; it also resulted in an apparent loss of the nation's traditional adherence to the rule of law. Sensing the physical and emotional fear of the American public, as well as the political timidity of Congress, the Administration seized upon the aftermath of 9/11 to foster its concept of the ‘Unitary Executive’: a sweeping expansion of presidential authority.

Situations of emergency and crisis pose significant challenges to all branches of government, none more so than the courts. Courts in democratic states face unique tribulations, though there is increasing recognition that even in authoritarian contexts courts can continue to play an important part in challenging and channelling a state’s recourse to crisis powers.

The principle of independence of the judiciary, while fundamental to a society based on the rule of law, is sometimes used to preclude the evaluation of courts. Such an approach is mistaken: judges and courts should be both independent and subject to evaluation.