Schools For Misrule, pp 150-151
THE “CONTROLLING GROUP”
The standard rap against institutional reform litigation is that it gives too much power to the judge. But in their thorough and devastating book Democracy by Decree, Ross Sandler and David Schoenbrod say the larger problem is the power it gives the advocacy groups that control the suits. The public might rail at the judge who signs the decree, but in most cases it will have been private lawyers who drafted most of the decree’s language.
Settlement, of course, is the rule: most institutional reform cases are resolved by negotiated consent decrees rather than unilateral judicial decision, just as most criminal cases result in plea bargains rather than trials, and most successful damage claims in insurance settlements rather than jury awards. A distinctive feature of the injunctive device, though, is that the terms lawyers include in consent decrees are often quite different from anything the judge would or even could have ordered. Sandler and Schoenbrod: “In the horse trading that produces the plan, some rights are let slide and commitments unessential to vindicating any rights are included in the plan because they seem like good ideas to the controlling group. [… Administration of the decree] typically results in the decree broadening. One reason for this broadening is that some of the hopeful ideas in the original decree prove unworkable, so defendants must ask plaintiff’s attorneys to consent to modifications. As the price of consent, plaintiffs usually demand adding new requirements to the decree.” Thus does a decree originally fifty pages long grow to hundreds, expanding into entirely new areas of agency policy at the will of the “control group”—itself a term pregnant with meaning.
It would be hard to find a process less transparent or accountable. Sunshine, open-records, and public-meetings laws commonly require agencies to make important decisions following advance notice, with the public invited to be present, to publish a detailed record of what has been done with supporting reasons, to grant any citizen’s request later for minutes and documents, and so forth. Some agencies are even forbidden to hold informal meetings with interested groups behind closed doors, lest it appear those groups are getting special access.
These sunshine and openness rules are entirely forgotten when policy decisions are hammered out behind closed doors by litigation insiders. Both initial settlement negotiations and later rounds of decree management and renegotiation commonly take place in private sessions from which the press and curious public are excluded. Even scholarly researchers who show up asking for case documents may be sent packing as intermeddlers, although both parties in the litigation claim to be representing broad public constituencies. It is even common for the text of the decree itself to be withheld from the public: thus as one account notes, at a time when the long-running Jose P. consent decrees over the New York City special education program had grown to 515 pages in length and were directing the allocation of hundreds of millions of dollars a year, they had never been actually published anywhere for outsiders to look at, not even in periodicals devoted to special education litigation.
At the time these suits were becoming popular, a catch-phrase was popular in vaguely radical circles: the “permanent government.” The idea is that some interests in society wield such durable power that whatever illusion of choice voters may be given, whichever nominal officeholders may come and go, the real power remains in the same hands. And yet something of the sort happens every time we allow institutional litigation and consent decrees to privatize policy-making, delegating it to a control group of zealous organizations and attorneys unanswerable to the public. As Sandler and Schoenbrod note, the upshot of forty years of litigation is that private advocacy groups (and even in some cases individual private attorneys) in effect “own” entire fields of public policy “by virtue of their command of the court orders.