The statistics are dismal. More black males drop out of high school than actually graduate. When comparing the United States to other industrialized nations on standardized tests, the U.S. ranks mediocre at best. And, for the first time in the nation’s history, the current school-age generation is on track to be less educated as a whole than their parents.
In education, like many other social and economic issues facing the country, the path to improvement and equality may very well entail changes in the law. As more laws and regulations are passed, the field continues to grow but has yet to become an official American Bar Association section, division, or forum.
What Does the Law Guarantee?
The U.S. Constitution has 4,400 words, and not a single one of them is education.
“The role of the federal government is something that lawyers need to grapple with,” said Julie Miceli ’04, chief of staff and special counsel to the general counsel at the U.S. Department of Education. “Education is not a fundamental right, it is not guaranteed, and it is not in the Constitution. Historically, education has been provided by the states based on local control principles. The federal government has spending power to support schools and encourage reforms in education, but the vast majority of the funding and decision-making comes from state and local governments.”
The U.S. Supreme Court has decided, however, that when states and localities do provide education, the 14th Amendment prohibits states from discriminating against students. In Brown v. Board of Education, Chief Justice Earl Warren wrote “Education is perhaps the most important function of state and local governments … where the state has undertaken to provide it, it is a right which must be made available on equal terms.” The Supreme Court held separate education facilities for blacks and whites are inherently unequal, but in the long string of cases that followed the Court has still not opined on how exactly an “equal education” is defined.
“To me, an equal education would be allocating resources so that each child is able to meet his or her academic potential,” said Ruth Colker, Distinguished University Professor and Heck Faust Memorial Chair in Constitutional Law at The Ohio State University Moritz College of Law.
Many advocates and school districts have charged that relying on property taxes to fund K-12 education creates unequal revenue that disenfranchises poorer, and often minority, districts. The Supreme Court, however, in the early 1970s determined unequal spending among districts in a state is not a violation of the federal constitution. This decision left advocates looking to state constitutions for relief. As of 2010, 45 states have endured state constitutional challenges to their school funding systems. About half of these 45 states have accepted state equal protection arguments and called for more equal funding among districts while the other half have found local control over education a compelling state interest.
In the next round of litigation, rather than simply asking for fiscal equity, advocates argued spending on education must be adequate to provide all students with an education guaranteed by their state’s constitution. State courts have been fairly receptive to this argument – with plaintiff’s winning almost two-thirds of the time. In New York, a state court in 2005 found that the state must increase spending in New York City schools by more than $4 billion a year – or $5,000 per student – in addition to billions in need capital improvements to bring schools up to an “adequate” level. To date, that has yet to happen.
Recognizing disparities in education levels nationwide, as part of the war on poverty in 1965, Congress enacted the Elementary and Secondary Education Act (ESEA) in an effort to direct funds to key areas. Title I of the ESEA distributes federal funds to school districts with a high percentage of students from low-income families. The No Child Left Behind Act (NCLB) passed in 2001 is a reauthorization of Title I of ESEA.
“The federal government is an equalizing force in education,” Miceli said. “Whether it is special education, poverty, English language learners or first- generation college students, that is the federal government’s primary focus. These populations all need to be served equally and fairly so all students have an opportunity to learn.”
Are We Meeting Those Guarantees?
While few can agree on what an equal education looks like, and even less on how to achieve it, the statistics themselves do not paint a picture of equality or adequacy.
Across the country, the national average number of white male students reading at or above grade level was 33 percent and the average for black male students was 9 percent. Not a single state crossed the 50 percent threshold (with Maryland taking the top spot with 45 percent of 8th grade white males reading at or above grade level). In Columbus, the 2008 graduation rate for black males was 35 percent, compared to 44 percent for white males. The data of younger students hints at a possible reason – in the state of Ohio in 2009, 39 percent of white male students and 8 percent of black male students read at or above grade level.
“There is such uneven education across the country with such extremes and inequities that it is difficult to really give an overall grade,” Colker said.
Rundown facilities, lack of text books, untrained teachers, and overcrowding often plague inner city or poverty-stricken districts.
“At the school I taught at, just placing students in the correct classes at the beginning of the year was a challenge,” said Megan Wintermantel ’12, who taught 7th grade English to classes of 35 students in the Los Angeles Unified School District as a member of Teach For America. “Students were constantly being moved from class to class, coming in and out of my class, and missing huge parts of the curriculum.”
A month into her second school year, Wintermantel herself was “displaced” as a teacher at the school when it was determined there were too many teachers. “My kids were split up among other seventh grade English classes and had to start over. It was heartbreaking. Determining which teachers are displaced from a school is just a formula based largely on seniority – it has little to do with which teachers have been effective.”
According to the Urban Institute Education Policy Center, fewer than 38 percent of students in the Cincinnati, Cleveland, Columbus, Dayton, and Toledo public school districts graduate on time. It is not just the students who are failing, but the schools themselves. In Ohio’s six largest counties, 2.2 percent of schools in non-high poverty schools (fewer than 60 percent of students eligible for free or discounted lunch) are on academic emergency, compared to 37.7 percent of high poverty schools (60-80 percent of students eligible for free or discounted lunch) and 42.7 percent of extreme high poverty (more than 80 percent of students eligible for free or discounted lunch).
Ohio ranks 45th in the nation for its graduation rate of black males, which stands at 41 percent, 37 percent lower than the graduation rate for Ohio white males.
“A child’s education should not depend on his or her zip code and that is where we are at in Ohio right now. A child’s education should not depend on their parents’ ability to seek out and put them in good schools – all schools should be good,” said Charles E. Wilson, associate professor of law and member of the Worthington City School District Board of Education.
Every three years the Program on International Student Assessment (PISA) evaluates the reading, mathematics, and scientific literacy of 15-year-old students in more than 60 countries. The only area where American students placed well was in a measurement of their self-confidence in their academic skills. The 2009 results showed the skills themselves, however, to be stagnant and average at best. In reading, American students showed no improvement since 2000 and placed 14th among nations. Math abilities measured the same as in 2003 (but up from 2006) and place America 25th overall. Science scores in 2009 improved the United States from below average to average, placing 17th overall.
One issue in determining “success” is that NCLB allowed states to set their own standards, and, therefore, proficiency in Ohio was not measured the same as proficiency in California. The Obama administration has attempted to encourage states to adopt voluntary, common standards and currently just over three-fourths of all U.S. public school students reside in states with the new higher common, college-ready standards.
“That is an absolute game-changer in a system which, until now, set 50 different goalposts for success–and actually encouraged states to dummy-down their academic standards,” Miceli said. “For the first time, children in Mississippi and children in Massachusetts will be held to the same standard. We will stop lying to children and their parents — telling them they are ready when they are not.”
Challenges in Finding Solutions
Ask any administrator or policymaker why schools are failing and they will provide a laundry list of reasons. The problems themselves are not new.
“We are providing incentives to schools for making improvements. This administration wants to be looser on the means and tighter on the goals,” Miceli said. “We are focusing on low performing schools and drop-out factories. And we are working toward the President’s 2020 Goal, which is to have a higher proportion of college graduates than anywhere else.”
While dreams of integrated schools filled the air after the Brown decision and decades of civil rights victories, the reality is still one of black and white students attending separate schools in most states. According to a 2003 study, black students were more segregated from their white peers in 2001 than in any time since the late 1960s. According to The Ohio State University Kirwan Institute for the Study of Race and Ethnicity, the number of nearly all-minority schools (defined as a school where fewer than 5 percent of students are white) doubled from 1993 to 2006.
The Supreme Court has slowly chipped away at plans of integration and busing and in 2007 determined race itself could not be the determining factor in school assignment.
Low-performing schools often have a much higher rate of high-poverty students. A study commissioned by the U.S. Department of Education analyzing the 2009 PISA results showed that socioeconomically disadvantaged American students were at much higher risk for poor academic achievement than socioeconomically disadvantaged students in other countries.
Analysis conducted by the Kirwan Institute shows that a schools’ socioeconomic makeup has an even greater impact on student performance than does the student family’s socioeconomic or racial status.
“The research does show that it is not just purely resources that improve outcomes,” Colker said. “It is also who is in the classroom as fellow students. If all the students are poor, there are lower results. If there is a mix of socioeconomic backgrounds, there is more success for everyone. In Boulder, Colo., they recently implemented a system where each school must have 20 percent of children enrolled eligible for free or reduced cost lunch, which is the district average. I think this is a great approach and would replicate it if possible.”
In response to the Supreme Court’s decision in 2007, the Kirwan Institute has also been supportive of assigning students to schools based on socioeconomic status instead of race as a method for achieving integration and improving schools as a whole.
“The statistics show that socioeconomic status has a huge impact on academic success and that children from poor backgrounds do better when placed with middle-class children,” Colker said. “It doesn’t mean that classes of poor children cannot be successful, it means it just is not as likely. In some of the cases of success, the resources being used are extraordinary and cannot be replicated on a large scale. It seems like it would be less costly to integrate schools than to start spending $20,000 per pupil each year.”
Others, however, are less enthusiastic about complex student assignment plans.
“Poverty is not a reason for low achieving results,” Miceli said. “A lot of factors go into making high performing students: engaged parents, quality teachers and leaders, putting kids’ needs first. The biggest challenge is often getting the adults – teachers, leaders, and parents – working together.”
Moritz TFA alumni echoed the same sentiment.
“What TFA really instills in its teachers is a mindset that we will not make excuses as to why these children are not learning, regardless of what they are facing in their lives,” Wintermantel said. “All children should have the opportunity to receive an excellent education no matter what. The education community is limited in how it can influence a child’s environment outside of school, but we cannot use poverty as an excuse. We need to do whatever it takes to educate all children, whether it’s extending the school day, staying after school and providing one-on-one tutoring, or overhauling the system. The mindset is simple, but many people do not have it. Kids can succeed no matter where they come from; education is the great equalizer.”
There is often a dramatic difference in qualifications between teachers in successful schools and teachers in low performing schools. Strict union contracts often dictate terms for hiring and firing of teachers, and teacher pay and benefits. According to the Education Trust, in high minority schools, almost one in three classes is taught by a teacher trained in a different subject area, compared to one in five classes in low-minority schools.
“The lack of great teachers in low-income schools is a big part of the problem. In order to change that, we need to increase teacher salaries, elevate the prestige of the profession, and revolutionize teacher training. A great teacher will drive academic achievement while developing a culture of excellence, determination, and teamwork,” said Nikki Baszynski ’13, who taught in New York City for Teach For America and in a Columbus charter school prior to attending Moritz.
According to the federal government, by 2015 50 percent of current teachers will retire and need to be replaced. However, almost 50 percent of new teachers leave the profession within the first five years. In 1964, 50 percent of college-educated women became teachers. Today that number is less than 15 percent.
“Teachers in Finland almost all come from the top 10 percent of their graduating class,” Wilson said. “In America, it is often the bottom third. Being a K-12 teacher is low status in America and we need to change this to attract more qualified teachers. It may sound odd, but Title VII has really had a huge impact on the quality of teachers. Before, many of the best and brightest women became K-12 teachers. Now these women go on to other opportunities. We need to be attracting the best and brightest, emotionally intelligent, and empathetic to teach and administer our children.”
The silver bullet on top of many lists for fixing problems in education is, of course, more money.
“The biggest challenge is that all of our challenges – the variance in student preparation, hiring, and retaining teachers – require additional resources, and in today’s economy that is a big hurdle,” Wilson said.
In 2004-05, taxpayers spent $536 billion on K-12 education and another $373 billion on higher education. According to the U.S. Department of Education, 83 cents of every dollar spent on K-12 education comes from the state or local level (45.6 percent from state funds, 37.1 percent from local funds). The federal government’s share is approximately 8.3 percent, up from 5.7 percent in 1990-91.
“Resources are important for every organization,” Miceli said. “But we have to work to improve efficiency. There is not a blank check at the federal, state, or local level. High performing schools are often the most efficient and cost-effective, and we are trying to study the methods that are most effective.”
While districts in the United States often appeal for more resources when troubling results are released, according to PISA, the United States currently spends more money per student than any other country except Luxembourg. As many states, including Ohio, struggle with tight budgets over the next several years, education is likely to see more cuts than increases.
“The funding is not as big of a problem as the management of the funding,” Baszynski said. “We need administrators with strong management skills who understand how to allocate resources effectively to maximize student achievement.”
Is Success Possible?
The vast array of challenges and the longevity of many of these problems leave many wondering if nationwide high-performing schools is an obtainable goal. Across the nation, only 47 percent of black males graduate from high school. However, there are multiple districts that have recently demonstrated success in teaching high-poverty, often minority students including: Newark Public Schools, New Jersey; New York City’s Harlem Children’s Zone; Montgomery County Maryland Public Schools; Baltimore County Public Schools; and Fort Bend, Texas schools.
New Jersey is the only state to graduate more than 65 percent of black males - a feat many credit to extensive litigation in the state. The Supreme Court of New Jersey has issued more than 20 opinions since 1973 focused on school funding. After the case Abbott v. Burke redistributed resources in New Jersey, the notoriously poor-performing Newark School District has shown vast improvements. In 2002, the average graduation rate for white males in the United States was 70 percent, while the rate for Newark black males stood at 47 percent. After several years of substantial increases, by 2008, the graduation rate for Newark black males climbed to 75 percent, just three percentile points lower than the then-average for white males across the country.
“My kids were absolutely fantastic and had so much academic potential, despite the huge challenges they faced in life,” Wintermantel said. “I had a little girl get beaten up by a gang, and she came to class ready to learn. If kids have the opportunity to get a good education, they will take that opportunity. All kids have goals and dreams and they want to reach them. Teachers need to show them the way and put them in the right setting.”
The Obama administration has taken a focused approach to infusing more money and reforms into the education system with programs like Race to the Top, School Improvement Grants, Investing in Innovation, and the Teacher Incentive Fund.
In isolated pockets in many districts, charter schools have sprung up in an effort to improve academic success for some students. But, that leaves many wondering about the students left behind in traditional schools.
“The administration supports high quality schools, and that includes high quality charters – but they are not a silver bullet for reform. High quality charters can help support a complete system, but low performing charters need to turnaround or close,” Miceli said. “There are three keys to a great charter school: strong accountability, strong leadership, and strong teachers. We know the complaints around charters – that they don’t serve diverse populations, English learners, students with disabilities, and kids with discipline issues. And we’ve heard that some charters try to skim the best students. But we have seen remarkable results with charters that do take on the most challenging populations and the toughest problems. Some charters across the country are setting the bar in these areas, making more progress than traditional public schools. Other charters are missing the mark. The secretary (of education) is continually challenging the charter school community to get better, to take on the tough issues, and be a part of the solution.”
Currently 41 states allow charter schools and there are more than 5,000 charter schools nationwide.
“The difference between the traditional school and charter school was night and day,” said Wintermantel, who spent one year teaching in both types of schools. “In the charter school, the principal knew each child and had a huge presence in the school. The principal support, and the school’s emphasis on preparing every student for college, made a huge difference. The culture of the school, the smaller class sizes, and even just having students placed in the right classes allowed for students to achieve. I would advocate for charter schools because they have more freedom to use innovative strategies that put students’ needs first. Highly successful charter school systems such as KIPP Schools have developed strategies that allow low-income students to achieve at high levels.”
There are more than 1 million students attending charter schools nationwide and more than 350,000 more students are on waiting lists. Charter schools are often funded by transferring money from the school’s home district to the charter school. On average, charter schools spend less money per pupil, but also offer fewer services in the areas of disability learning, English language learning, and social services.
“Charter schools draw resources away from public schools,” Colker said. “They do not necessarily have to take everyone who applies and can therefore have a somewhat less challenging student population to educate. That then makes the task of the regular public schools even harder because they have fewer resources to educate the most challenging students.”
In 2005, the law firm Sonnenschein Nath & Rosenthal LLP celebrated its 100th anniversary by donating $1 million to start the Legacy Charter School in Chicago.
“I view charter schools the same way I view public schools. If they have good teachers and a good administration, they are often good schools,” Baszynski said. “I do not think you can dismiss a school simply because of a label. You have to look at the school and see if it is successfully educating children. Charter schools are public schools; they are just operating with fewer restraints and often with more accountability.”
According to a 2009 report by Center for Research on Education Outcomes (CREDO) at Stanford University, 17 percent of charter schools reported academic gains that were significantly better than traditional public schools; 46 percent showed no difference from public schools; and 37 percent were significantly worse than their traditional public school counterparts.
As new laws, regulations, and programs are developed, the promise of more litigation seems inevitable. The president’s 2012 federal budget called for the expansion of education spending through key administrative programs like Race to the Top, but changes the way other programs, including Teach For America, an independent nonprofit organization, receive government funding.
“Educational inequity is our generation’s civil rights issue,” Baszynski said. “We work within a system that allows disparities in education based on wealth and race. We have known for a long time it isn’t fair, but we have yet to see large-scale substantive change.”
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