Kaleidoscopic Consent Decrees: School Desegregation and Prison Reform Consent Decrees After the Prison Litigation Reform Act and Freeman-Dowell

I. INTRODUCTION Since the Prison Litigation Reform Act (PLRA or "the Act") and its changes to modification and termination standards in school desegregation, kaleidoscopic changes have altered the character of an important dispute resolution tool: the consent decree. Traditionally, the consent decree has been recognized as a hybrid between a judicial order and a settlement agreement entered into by parties.1 However, the modification and termination2 standards for both prison reform consent decrees and school desegregation consent decrees have changed. Prison reform consent decrees, along with all other types of institutional reform consent decrees, formerly relied on the Rufo v. Inmates of Suffolk County Jail modification standard but now do not rely on this standard.3 In 1995, Congress set forth a more stringent statutory standard under the PLRA, making it easier to modify or terminate prison reform consent decrees regardless of the conditions set out in the consent decree. Similarly, in school desegregation consent decree cases, the Supreme Court started applying a "good faith" element in termination of school desegregation consent decrees that has allowed courts more discretion even when the goals of the decree have not been met. In each respective area, Congress and the Supreme Court changed the consent decree modification and termination standards to more efficiently return control over prisons and schools to state and local control.4 These changes in prison reform and school desegregation consent decrees have altered the character of consent decrees in these two areas to resemble judicial orders rather than hybrids between a judicial order and settlement agreement and have changed incentives for parties to enter into consent decrees in these areas. Despite the changes, some courts have concluded that prison reform and school desegregation consent decrees continue to be governed by similar modification and termination standards. Although there has been much legal commentary recently about the changes to prison reform cases brought about by the PLRA5 and about the constitutionality of the new statutory standards of the PLRA,6 there has been no discussion regarding the impact of the PLRA's statutory requirements in altering the nature of prison reform consent decrees. There has also been no discussion about the changes in school desegregation consent decree termination standards or the parallels between these changes and the changes in prison reform consent decrees. Now, eight years since the passage of the PLRA and over ten years since the establishment of new school desegregation termination standards, after kaleidoscopic application of consent decree modification standards by courts and unnoticed changes in the character of consent decrees, discussion of the broader implications of the these new standards is in order. The purpose of this Comment is to compare the traditional consent decree modification and termination standards with the new modification and termination standards for prison reform and school desegregation consent decrees to demonstrate how the new standards (1) have changed the character of consent decrees in these two areas to be more characteristic of judicial orders, (2) have altered traditional incentives to enter into consent decrees in these areas, and (3) will allow courts in the prison reform setting to achieve more success in the shared goal of more efficiently returning control over prisons to state and local control than courts will achieve in the school desegregation setting. Part II of this Comment discusses the traditional definition of a consent decree, the incentives for parties to enter into them, and a court's authority to modify and terminate consent decrees and litigated judgments. Part III introduces school desegregation decrees and addresses the termination standard for desegregation decrees and the expanded use of the good faith standard to return control over school districts to state and local governments. …