ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 51-54.

LEGAL RIGHTS, LOCAL WRONGS: WHEN COMMUNITY CONTROL COLLIDES WITH EDUCATIONAL EQUITY by Kevin G. Welner. Albany: State University of New York Press, 2001. 315 pp. Paper $27.95. ISBN: 0-7914-5128-3.

Reviewed by Francine Sanders Romero, Department of Public Administration, University of Texas at San Antonio.

With LEGAL RIGHTS, LOCAL WRONGS, Kevin Welner provides a case study overview of the consequences of legal challenges to the use of tracking, a
significant but under attended (outside of academic circles, at least) educational practice. Many school officials, teachers, and parents have defended tracking, in which students in the same grade are grouped and taught according to their putative intellectual abilities, as an effective instructional strategy. Reformers, on the other hand, point to the fact that, regardless of their aptitudes, white students tend to be placed in advanced track classes while minority students are assigned to lower track classes. These opponents see tracking as a form of "second-generation segregation," in which recalcitrant districts forced to desegregate schools stubbornly resist the spirit of equity by subsequently segregating classrooms.

Welner, a scholar with a background in education policy as well as a former practicing attorney, is one of the reformers who believe that tracking must be phased-out. This book then seeks to accomplish two related goals--to present evidence of the insidious effects of tracking, and to examine the factors that determine the extent to which court mandated reforms would be successful. The general premise is that there is little sound theory or data to show that tracking is a necessary or beneficial teaching tool, but a great deal of support for the argument that tracking is just the latest incarnation of educational discrimination against minorities. This very value based nature of tracking is what makes it so difficult to get rid of. The main focus of the book is to explore the factors that may lead to at least limited
reforms, as well as the impediments to change, by looking at four school districts facing contemporary tracking challenges.

Overall, Welner makes a variety of conclusions, most of them reasonable and some of them innovative. First, (and in opposition to a great deal of both educational and policy literature) he argues that top down policy mandates (in this case, court orders) are necessary, although not sufficient, precursors of successful reform. Contrary to many assumptions, he believes that courts can mandate at least some change. This is linked to his concept of a "zone of mediation," a set of parameters defined by local context, in which legitimate policy dialogue can occur. The zone is determined by the existing political culture and socioeconomic environment, but can be shifted in a pro or anti reform direction through the introduction of variables such as shifts in elite opinion, the arrival of policy entrepreneurs, and,
especially, court orders. However, a second conclusion is that, significant though they are, court orders may effect change only slowly and partially, due to the many forces fighting

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against reform. These forces tend to take the form of parents, teachers, and school administrators who resist not just because of the disruption change always brings, but largely because of their own preconceptions and expectations about minority students.

These arguments are presented through an effective, if somewhat limited, case study strategy that looks at four school districts--San Jose, California; Woodland Hills, Pennsylvania; Wilmington, Delaware; Rockford, Illinois. Welner begins with a bit of rather forced and difficult to follow statistical evidence for his assertion that tracking is driven more by race than by academic ability. Mainly, though, and more effectively, his conclusions are supported by his observational descriptions of what happened in these various school districts, and the responses of numerous administrators, teachers, parents, and students he interviewed. The promising, comparative case study approach never really materializes, as the book increasingly focuses solely on Woodland Hills. Rockford and San Jose are mentioned less and less, and Wilmington is rarely heard from again after the initial chapters. Still, it works as a case study, even if only of a single school district.

In fact, this book represents a rare and valuable breed of scholarship on two counts. First (as professors who teach policy/judicial policy-making courses can attest to), there is a paucity of solid and timely case studies available to assign for classes, let alone ones that incorporate the role of courts and that examine policy in action at the local level (where so much of it becomes relevant). Secondly, this work provides one of the most realistic looks at policy making that I have read. By this I mean that it embraces policy formation and, especially, implementation, in all its very messy detail.

So many book or chapter-length case studies of policy change try too hard to provide easy answers, often to the point of straining to attach a simple dichotomous code to all policy outcomes--0 if not successful, 1 if successful. These sorts of studies never really ring true because policy change just does not work that way. Welner addresses these complexities quite capably, and deserves credit for his capacity to clearly explain an inherently unsettled and muddled reality. For example, he ably explains how two seemingly positive signs that reform had occurred in response to judicial mandates--students given the choice to enroll in any class they wanted, and the discontinued use of track oriented class labels--really meant little. Despite these innovations, the old system, in which whites took advanced
classes and minorities did not, remained largely in place.

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