Should States Be Sued for Providing Low-Quality Schools?

How’s this for a summer blockbuster – the American Civil Liberties Union is suing the state of Michigan for violating the “right to learn” of its children, a right guaranteed under an obscure state law.

That assistance hasn’t happened, says Kary L. Moss, executive director of the Michigan chapter of the ACLU. “The Highland Park School District is among the lowest-performing districts in the nation, graduating class after class of children who are not literate. Our lawsuit . . . says that if education is to mean anything, it means that children have a right to learn to read.”

Although this case is the first of its kind, we’ve been having this debate for a loooong time now. For years, Congressman Jesse Jackson Jr. has tried — and failed — to introduce language for a new amendment to the U.S. Constitution “regarding the right of all citizens of the United States to a public education of equal high quality.”

Then there’s the United Nations’ Convention on the Rights of the Child, a 1989 gathering that resulted in the first legally binding international treaty and establishment of universally recognized norms and standards for the protection and promotion of children’s rights. By any account it was an overwhelming success; all but three member nations signed on.

The three holdouts? Somalia. South Sudan. And us.

And then there’s the U.S. Supreme Court’s 1973 decision in response to a group of poor Texas parents who claimed their state’s tolerance of the wide disparity in school resources violated the Equal Protection Clause of the 14th Amendment. A state court agreed, but the U.S. Supreme Court, in a narrow 5-4 decision, reversed. “Though education is one of the most important services performed by the state, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution.” If it were, the majority conceded, “virtually every State will not pass muster.”

For Justice Thurgood Marshall, writing in dissent, that was precisely the point. “The Court concludes that public education is not constitutionally guaranteed,” even though “no other state function is so uniformly recognized as an essential element of our society’s well being . . . Education prepares individuals to be self-reliant and self-sufficient participants in society. Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.”

The fact that the Court’s 1973 decision was 5-4 tells you how closely contested this issue has always been. And yet I can’t help but wonder, why is it so difficult to demand of ourselves a higher set of standards – for learning, for teaching, and for fairness? And what should we do at the federal level to ensure the right to learn of all American children?

We could start by taking the following seven policy steps, which were developed during my tenure as the National Director of the Forum for Education & Democracy:

1.    Link Federal support to progress in Opportunities to Learn.

Currently, the allocation of education spending does not reflect the urgency of repaying the educational debt. The funding allocated in current federal policy — less than 10% of most schools’ budgets — does not meet the needs of the under-resourced schools where many students currently struggle to learn. It is also allocated in ways that reinforce rather than compensate for unequal funding across states. Nor does current federal policy require that states demonstrate progress toward equitable and adequate funding or greater opportunities to learn. Federal mandates that simply require equity in such things as “highly qualified teachers,” without a national agenda to provide such resources, offer a hollow promise.

Such inequality is fundamentally incompatible with the democratic mission of our schools to create an engaged and capable citizenry. This new direction must not only offer access to basic education, but also equip all citizens with the higher-order thinking skills made necessary by new economic and social realities.

Investment in a “thinking curriculum” for all students is needed to reverse the destructive trend toward a society deeply divided between the “haves” whose education prepares them to participate in the new society and the “have nots” who can’t participate — and who are increasingly part of a growing school-to-prison pipeline. The federal role must ensure that every child has an equal opportunity to learn, which research has demonstrated includes access to high-quality teachers and school leaders, challenging curricula, and schools and classes organized so that all students are well known and well supported. Further, to ensure that all bilingual learners reach their optimal potential, they must have the opportunity to develop a deep, principled command of content so that they are subsequently fairly assessed on their knowledge and skills.  Like all other students, bilingual learners must be given adequate opportunities to experience rigorous instruction that is challenging, beneficial, and college-ready.  However, rather than viewing these students as lacking the English language, our system should acknowledge and expand their bilingual assets that will benefit them and our nation.  Federal support for these efforts should be expanded so that dual language and bilingual programs that foster biliteracy skills are made optional for bilingual learners.

One central tool for this task is linking state eligibility for federal funds to state progress toward equitable school funding. The goal is to establish reciprocal or two-way accountability where it does not currently exist. While recent approaches to accountability have emphasized holding the child and the school accountable to the state or federal government for test performance, government has not been held accountable to the child or his school for providing adequate educational resources.

A new ESEA should start by asking (and helping) states to develop systems of accountability that use multiple measures of student learning which are performance-based and pegged to world-class standards of learning, and that assess gains based on how students improve over time.  The current confusing statistical gauntlet of dozens of annual targets for making “adequate yearly progress,” some of which place NCLB at odds with other federal laws and parent and student rights, should be replaced by state plans that propose a continuous progress index of performance which evaluates how schools and individual groups of students are advancing. Such an index should include a range of important measures, including continuation and progress toward graduation, as well as measures of school learning that assess higher-order thinking and understanding, provide useful diagnostic information, and ensure appropriate assessment for special education students and English language learners, guided by professional testing standards.

In addition, as a condition of receiving federal funds, states should create an accompanying opportunity index that reflects the availability of well-qualified teachers; strong curriculum opportunities; books, materials, and equipment (including science labs and computers); and adequate facilities. A report describing the state’s demonstrated movement toward adequacy and equitable access to education resources — and a plan for further progress — should be part of each state’s application for federal funds.

This notion was proposed at the start of the standards movement, when the National Council on Education Standards and Testing’s Assessment Task Force suggested that student performance standards would actually result in greater inequalities if they were not accompanied by policies ensuring access to resources, including appropriate instructional materials and well-prepared teachers, for all children.

Finally, the federal government should help to distribute well-trained teachers to all students through incentives that attract and keep educators in harder-to-staff locations, just as it currently does in medicine. In these ways, our national resources would be used strategically to ensure an adequate opportunity to learn for every child.

The federal government can help ensure equity by:

  • Better equalizing its own allocation of funds to states, accounting for concentrations of need and differences in costs of living;
  • Creating benchmarks for the pursuit of equity in the form of opportunity-to-learn standards;
  • Closing the comparability loophole in Title I by requiring districts to equalize per-pupil expenditures across schools prior to awarding Title I funds; and
  • Incentivizing states to implement equitable funding models across districts and schools.

2.  Incentivize the recruitment, development, and equitable distribution of highly qualified and highly effective teachers and school leaders.

Myriad studies have clearly demonstrated that highly effective teachers are an essential element for student learning and growth. However, students in low-resource schools do not have access to these teachers at the same rate as students in high-resource schools. Studies find that the quality of the school principal — especially the extent to which he or she engages in instructional leadership practices — is the second most important determinant of a healthy learning environment, right after teacher quality.

The federal government should ensure that all students have the same opportunity to learn from a well-trained teacher and a high-quality principal by increasing the number of highly qualified and highly effective teachers and principals in the pipeline; helping to ensure high quality preparation for these teachers and principals; and creating incentives that attract and keep educators and school leaders in harder-to-staff locations, just as it currently does in medicine. In particular, teachers of bilingual learners must be well prepared in both language development and content methodologies, each of which plays an important role in students’ opportunities for learning.  Teachers should also receive ongoing professional learning opportunities in content delivery, language sheltering, and teaching of academic language, all with a focus on college readiness.

This can be achieved by:

  • Creating incentives, such as service scholarships, to recruit teachers and principals to high need areas;
  • Strengthening teacher preparation by supporting professional development programs (akin to teaching hospitals) and high quality residency programs;
  • Supporting the development of a national teacher performance assessment that can be used for licensing;
  • Implementing a minimum ratio of experienced to inexperienced teachers for all schools;
  • Supporting mentoring programs and ongoing, practice-based collaborative learning opportunities for teachers;
  • Providing opportunities to acquire certification in ESL and bilingual education through scholarships and loan forgiveness;
  • Providing expansive teacher preparation models where an ESL endorsement is part of the regular secondary certification process and that ensures that all bilingual learners are provided with teachers who are equipped to implement a rigorous curriculum that is attuned to students’ English proficiency levels in core content areas.
  • Supporting the development of differentiated career pathways that help keep promising teachers in the profession, and
  • Investing in strong school leadership recruitment and training programs.

3. Ensure equal access to high-quality early education programs.

Access to a high-quality early education experience sets the foundation for academic success. Research conducted by Nobel Laureate James Heckman affirms that early education programs have clear educational development benefits that include higher graduation rates, higher incomes, and lower levels of criminal behavior compared to children who did not participate in early education.Heckman’s findings were corroborated by the HighScope Perry Preschool Study which found that child participation in an early education program significantly reduced arrest rates, while increasing earned income, graduation rate, and IQ scores compared to those who did not participate in an early education program.

As important as early education programs are to a child’s development, access to such programs is far from equitable. A report by the National Institute for Early Childhood Research indicates that access to early education programs varies by ethnicity, income and the educational attainment level of a child’s mother. The federal government can help to close the gap in access to early education by:

  • Establishing minimum requirements for early education programs (e.g., teachers with bachelor degrees and trained in early childhood education, small class sizes, etc.);
  • Expanding current programs to include many more children from disadvantaged backgrounds, and
  • Expanding funding for early education programs.

4. Meet the Federal Obligation for Funding Programs for High-Need Students.

A complement to requiring that states move toward more equitable spending formulas is ensuring the federal funds designated for the education of high-need children are both adequate and spent strategically. When ESEA and the Education for All Handicapped Children Act were first enacted, the federal government committed to funding 40 percent of the extra costs of educating students with disabilities and those who are “educationally disadvantaged” by reason of poverty. This commitment has not been maintained.

If we are legitimately to expect all students to reach much higher standards, the federal government must meet its promises to support the investments needed to provide students the kind of intensive, high-quality teaching and support services they need. An estimated $10 billion in additional funds would move us about half the distance toward meeting this obligation. More of these funds should also be spent to improve the actual quality of services, rather than merely to meet complex regulatory requirements and manage paperwork that takes up staff time and school resources without improving the quality of education. Rather than adding ever more procedural regulations, these programs should be streamlined to focus on the quality of teaching provided to students by expert teachers and to invest in growing that expertise by investing in top-flight professional education.

Federal funds should be targeted for purposes that can make a real difference in educational opportunity — recruiting, preparing, and retaining high-quality teachers with the skills needed to help students who experience challenges in learning; improving professional learning opportunities; supporting the development of strong curriculum and assessment strategies; and providing additional learning time for low-income students through enrichment opportunities after school and during the summer.

5. Strengthen supports for English Language Learner and Limited English Proficiency students.

English Language Learners (ELL) represent the fastest increasing segment of the public school population. Under Title III of ESEA, schools and districts are accountable for the academic achievement of ELL students and for enabling these students to reach English-language proficiency. However, ELL students face a unique set of challenges compared to other students. For example, it is difficult to generate advanced conceptual understanding from English language learners (ELLs) and students with limited English-language proficiency (LEP) when they are being tested or taught in a language in which they are not proficient. The federal government can encourage teachers, schools, and districts to provide equal education opportunities for these students by:

  • Investing in the development of fully-qualified bilingual teachers who are sensitive to language barriers and cultural differences among students and able to effectively teach ELL and LEP students;
  • Aligning Title II and III by requiring that state local education agencies (LEA’s) demonstrate how their second language acquisition programs meet the academic and linguistic needs of bilingual learners;
  • Lifting the cap on the amount of money appropriated for pre-service preparation of bilingual and English-as-a-second-language teacher candidates, combined with restoring fellowship opportunities (Title VII) for graduate study in those same areas provided in earlier versions of ESEA;
  • Encouraging states and localities to increase the pool of highly qualified bilingual teachers and personnel with expertise in working with ELLs;
  • Supporting high-quality, research-based professional development opportunities for ELL/LEP teachers;
  • Providing all staff with continuous professional development in effective practices, particularly as they apply to bilingual learners.  Teacher candidates, and those already in the profession, should be provided financial support to complete higher education coursework in ESL methodology, or equivalent professional development in sheltered instruction in the subject areas.  For those teachers already in the profession, meeting this goal should be fulfilled by the end of their second year in the classroom.
  • Supporting early school intervention programs that help prevent ELL students from falling behind academically, and
  • Prohibiting districts and schools from testing ELL student exclusively in English until they have become proficient in the English language.

6. Invest in out-of-school learning supports.

The federal government also has a role to play in offering auxiliary supports that prepare students to learn, keep them engaged in school, and make their environment beyond school conducive to high levels of skill development. The obvious truth — that schools alone are not responsible for student learning and growth — should propel attention to programs that will provide adequate health care and nutrition, safe and secure housing, and healthy communities for children.

As New York University professor Pedro Noguera has noted: “If we want to ensure that all students have the opportunity to learn, we must ensure that their basic needs are met. This means that students who are hungry should be fed, that children who need coats in the winter should receive them, and that those who have been abused or neglected receive the counseling and care they deserve. If the commitment to raise achievement is genuine, there are a variety of measures that can be taken outside of school that will produce this result. For example, removing lead paint from old apartments and homes and providing students in need with eye exams and dental care are just some of the steps that could be taken.”

The learning effects of providing safe housing, non-toxic environments, and necessary health care are substantial — by some estimates as great as improving instruction. One key to the success of other high-performing nations has been the provision of out-of-school learning supports. Nations that provide all children with health care, ensure that when students come to school toothaches, vision problems, untreated asthma, and a range of illnesses do not distract them.

The availability of high-quality preschool is also a national priority in high-performing nations. When nations view learning as a priority for all children, they ensure that students come to school ready to learn. For every dollar invested in high-quality family support and early learning programs for young children, there is a $7 to $10 return to society in higher graduation rates and employment leading to higher wages and greater tax payments, decreased need for costly special  education services, lower rates of crime and incarceration, and better health. An additional $10 billion investment annually would enable all low-income children to experience high-quality preschools and affordable day care, with additional supports to enable their parents to meet their children’s educational and health needs as well.

7.  Enforce civil rights laws that are essential for educational equity.

The Department of Education’s Office for Civil Rights (OCR) should evaluate and enforce state compliance with the federal mandate (as stated under the Civil Rights Act, Elementary and Secondary Education Act, and NCLB) to provide an equal education opportunity for all students. Adherence to this goal would involve compliance with equitable access to equitable funding resources, early childhood education, quality teachers, and challenging curricula, along with equitable education opportunities for ELLs.

Fifty-eight years ago, the United States Supreme Court’s unanimous ruling in Brown v. Board of Education captured the most hopeful strains of the American narrative: working within a system of laws to extend the promise of freedom, more fairly and fully, to each succeeding generation. In practice, however, integrated schools today remain as much of a dream now as they were fifty years ago, and the subject of segregation has all but disappeared from the national conversation about education reform. Worse still, many of the newest and most promising schools in our nation’s cities are actually increasing the racial stratification of young people and communities – not lessening it.

Investments must be made to ensure the fair and equitable distribution of resources for education in all communities. Doing so will afford our children the opportunities to learn they deserve. While the federal government cannot eliminate the long-standing educational debt overnight, it can enact policies that encourage states to equalize resources.

I’d call that a good start.

(This article also appeared in the Huffington Post.)

Categories: Equity

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