Education Policy Topic — Key Cards and Arguments

Education Policy Topic — Key Cards and Arguments

In preparation to write my topic essay (which I am a bit behind on), I have prepared a document that has some key evidence related to Background, Topicality, Harms/Advantages, Cases/Plans, Solvency Answers, Disadvantages, Counterplans, and Kritiks.

If you read through this evidence, I think you will have a good understanding of the basic and most common arguments on the topic as well as a some evidence to get you started writing key arguments.

If you have suggestions for additions (arguments or key cards), please email them to

*Background – History of the Federal Role in Education Policy

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

Debates over the federal government’s role in primary and secondary (PreK-12) education reflect tensions inherent in two amendments of the U.S. Constitution. The Tenth Amendment reserved to the states and their citizens all powers not mentioned in the Constitution, including the provision of public education. The Fourteenth Amendment gave citizenship to all persons born in the U.S., including former slaves, and required each state to “provide equal protection under the law to all people within its jurisdiction.” If states fail to provide equal protection, then the federal government may have to intervene, even in domains that otherwise would be left to the states.

The Fourteenth Amendment’s Equal Protection Clause laid the groundwork for the federal government’s most crucial responsibility in K-12 education: the protection of civil rights. It was this responsibility that led to the Supreme Court’s 1954 decision in Brown v. Board of Education banning legally segregated schools. Partly to help states to implement the Brown decision and pursue its implied goals, the federal government passed an assortment of laws establishing programs, funding, and requirements to educate underprivileged children. For example, it created Head Start in 1965 to focus on early education for low-income students, and President Johnson signed the Bilingual Education Act in 1968 to provide resources for immigrant education. Most prominently, the Elementary and Secondary Education Act (ESEA) of 1965 sought to enhance educational opportunity for low-achieving students in high-poverty schools— primarily by allocating resources to school districts through its Title I. These programs were central to President Johnson’s War on Poverty and built momentum for the broader civil rights movement. The federal role continued to expand in the early 1970s with legislation that broadened the scope of efforts to provide all students with equal access to education. Title IX of the Education Amendments of 1972 required gender equality in school activities. The Rehabilitation Act of 1973, together with the Education for All Handicapped Act of 1975 (now the Individuals with Disabilities Act, or IDEA), ensured free access to an appropriate public education for students with disabilities. These judicial and legislative actions created a firm foundation for the federal role in the protection of civil rights that has stood for a half-century.

The history of the federal role in education prior to ESEA is less well known. Since 1867, the federal government has assumed the responsibility of gathering and reporting data on the progress of education in the states. Later, the federal government responded to the crisis in farming after WWI and the Industrial Revolution in part by establishing grants to states to support vocational education. The Cold War, and especially the Soviet launch of Sputnik, created fear of U.S. military and technological decline. Congress quickly responded by passing legislation providing resources for improving math and science education. Provisions were included in ESEA to fund professional development for teachers, state offices of education, and a number of other state and local education activities to help improve overall quality. In 1972, the federal government established the National Institute of Education with the responsibility to carry out research on education issues. These steps were separate from the protection of civil rights and highlight a broader national interest in educational success.1

Nevertheless, there have always been implicit limits on the federal role. During much of the past 200 years, the government restrained itself from direct involvement in the basic functions of teaching and learning in the schools. The funds that went to activities such as vocational education, collecting and reporting data, and research were generally not tied to specific mandates concerning school and classroom practices. That changed somewhat with civil rights legislation and related court rulings. Judges in desegregation suits began to require schools to make specific, often controversial, changes in the design of local school systems. IDEA directly affected school-level practices by attempting to equalize student experiences for disabled and non-disabled students. Over time, the alphabet soup of federal education legislation became layered with more and more requirements. The U.S. Department of Education (USDOE) was created in 1979 partly to coordinate and administer these growing responsibilities.

By the early 1980s, some saw the federal role as too large and attempted to scale it back. The 1981 ESEA reauthorization simplified many of the requirements and regulations that had amassed over the prior 20 years. But this retreat was short-lived. A Nation at Risk, a 1983 report commissioned by the young Department of Education, argued that U.S. schools were not producing graduates that could compete with other nations (a concern that has been reiterated in every decade since then). Other reports quickly concurred, and through the 1988 ESEA amendments, many prior requirements were put back into law and others were added. Most notably, the amendments required achievement test results to be gathered and analyzed in at least three grades in schools receiving Title I funds and established accountability requirements for these schools, including specific penalties if a school was consistently low-performing. Federal involvement in teaching and learning continued to grow.

At this point there remained an implicit understanding that the federal role should be focused on specific protected classes and disadvantaged populations, especially low-achieving students in low-income communities. This understanding began to change with the 1994 reauthorization of ESEA, known as the Improving America’s Schools Act (IASA). IASA required that Title I schools adopt challenging content and performance standards, align their assessments to those standards, and establish an accountability system based on them. More importantly, the law required that the standards and accountability for Title I schools be the same as the rest of the state’s schools. This change effectively expanded the scope of law, because to receive Title I funding, states and districts needed standards, assessments, and an accountability system that applied across all schools, regardless of whether they received federal funds. As a result, the Title I requirements for standards and assessments now affected most schools throughout the country. Thus began the modern era in which the federal government has directly influenced the educational experiences of all students.

In 2001, still dissatisfied with the rate of improvement in student achievement, Congress reauthorized ESEA and relabeled it as No Child Left Behind (NCLB). Title I of the new law retained the same structure but intensified its accountability requirements. It increased the number of tested grades from three to seven, set extremely ambitious goals for the percentage of students reaching academic proficiency (while leaving definitions of proficiency to individual states), and prescribed a specific set of sanctions for schools that failed to reach those goals. Even setting aside the near-impossibility of meeting a goal of 100 percent proficiency, this top-down approach went against the long federal tradition of providing support rather than applying pressure.

President Obama’s administration took the top-down approach further with Race to the Top, paid for with $4.35 billion in Congressionally approved funds. It held competitions among states that provided resources to winners to pursue the administration’s priorities: develop state data systems, turn around the bottom five percent of schools, adopt or create high-quality college and career-ready standards, and establish and implement teacher evaluation systems linked to student outcomes. Nineteen states won these competitions and began to undertake the required changes. Further, many states that did not win still adopted one or more of the policies, thereby aligning themselves with the administration’s priorities.

Following a similar top-down approach, the U.S. Department of Education began issuing waivers to the original NCLB provisions to states that agreed to adopt many of the same policies that had been key components of Race to the Top. In exchange for loosening some of the more onerous elements of the NCLB accountability framework, such as its target of universal proficiency, the administration required states to adopt accountability and teacher evaluation policies similar to those that states could (voluntarily) adopt under Race to the Top.

The combination of NCLB, Race to the Top, and NCLB waivers was widely seen as an overreach by the federal government. In 2015, under pressure from education groups and the public, Congress passed with bipartisan support the Every Student Succeeds Act (ESSA). ESSA reduced the federal role in school accountability, eliminated the objective of 100 percent proficiency, and omitted requirements for teacher evaluation. The student testing requirements remained, as did a requirement that states intervene in some fashion in their lowest-performing five percent of schools, but states regained control over how those schools would be identified and what form these interventions would take.

That is where we stand today as the Trump administration prepares to take the reins of the federal government. We have seen ebbs and flows in federal activity, and yet many of the broader issues remain unresolved. What is the appropriate federal role in education? Is there a set of principles to guide its action that could achieve broad support? How have changes in the world around us altered or accentuated certain principles? We now endeavor to answer these questions. The historical evolution and expansion of the federal role in education were natural outgrowths of changes in society that led to new public demands and political pressures. The founders had delegated not just responsibility for education, but also responsibility for almost everything else, to the states. Over time, the federal government’s role increased in all walks of life, especially in economic affairs. Interstate commerce became much more widespread, as did the need for national transportation networks, and both required more federal involvement.


Laws are different than regulations — they are distinguished from such —  and do not include incentives

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

While, theoretically, it could be said that the president coordinates all federal policy by establishing policy priorities, budgeting funds, and directing agencies to implement such policies, a long-time federal education policy official and observer notes that we, as a nation, do not have a national education policy, though most people assume that we do. Instead we have a hodgepodge of federal laws, executive branch policy decisions, regulations, and incentives that have accumulated like so many geological layers since the passage of the National Defense Education Act in 1958. Rippner, Jennifer A.. The American Education Policy Landscape (p. 87). Taylor and Francis. Kindle Edition.

Guidance is not a regulation, it doesn’t have the force of law

Thomas Hehir is a Professor of Practice at the Harvard Graduate School of Education and a former special education teacher and administrator, December 14, 2016, Memo: Special Education, —

The Department of Education recently promulgated guidance concerning IEPs that emphasized the importance of integration. Though this is a step forward, policy guidance does not have the force of law. The new administration should move forward with rulemaking proposing the following regulations

“Guidance” counterplan?

*General Harms/Advantage Areas

US students perform poorly on many national and international tests

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Leading up to high school graduation, performance on nationally normed tests is very low. Standardized testing and sophisticated data systems now   allow us to compare student progress across districts, states, and countries. Only 34% of fourth grade public school students score “proficient” in reading and/ or math on the National Assessment of Education Performance, a test that is administered to students across the nation by the U.S. Department of Education (Education Week Research Center, 2014a). U.S. performance compared to international countries is not any better. According to the latest international tests given to students across several countries, American students are faring poorly. U.S. students place ninth of 42 countries in eighth-grade tests in math and tenth place in eighth-grade science tests. In high school, U.S. students place 17th of 34 economically developed countries in reading literacy, 27th in mathematics, and 20th in science (National Center for Education Statistics, 2015). Rippner, Jennifer A.. The American Education Policy Landscape (p. 81). Taylor and Francis. Kindle Edition.

A high percentage of individuals is lacking associates and college degrees

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Given its potential impact on the economy, these statistics have caught the interest of our national and state leaders. In 2009, President Obama set a nationwide goal for 60% of U.S. citizens to attain a college credential by 2020 so the U.S. can regain its position of leadership among developed countries (The White House, 2009). The U.S. is far from meeting that goal. Recent data show that 37.7% of persons aged 25 and older in the U.S. have at least an associate’s degree (National Center for Education Statistics, 2015). The American Education Policy Landscape (p. ii). Taylor and Francis. Kindle Edition.

Improving education key to economic competitiveness

Bart Gordon, 2007,Issues in Science and Technology, Spring, US Competitiveness: The Education Imperative

However, there is widespread agreement that one necessary condition for ensuring future economic success and a sustained high standard of living for our citizens is an education system that provides each of them with a solid grounding in math and science and prepares students to succeed in science and engineering careers. Unless the United States maintains its edge in innovation, which is founded on a well-trained creative workforce, the best jobs may soon be found overseas. If current trends continue, along with a lack of action, today’s children may grow up with a lower standard of living than their parents. Providing high-quality jobs for hard-working Americans must be our first priority. Indeed, it should be the central goal of any policy in Congress to advance U.S. competitiveness.

Improving the educational system critical to military readiness

Committee for Education Funding, April 29, 2015, Education Matters: Invest in Learning for Military Readiness,

Mission: Readiness, the nonpartisan national security organization of over 500 retired admirals, generals, and other retired senior military leaders has articulated the national security case for investments in education. Our military’s most important asset is the men and women willing to serve. A successful military needs Americans who have graduated from high school, can pass the military entrance exam, are physically prepared for military training and service, and do not have a criminal record. Military service has done a tremendous amount of good for many of our young people, helping them to master skills and gain knowledge that both serves them—and the rest of us—well. Unfortunately, according to the U.S. Department of Defense, our public education system is failing to adequately prepare youth for military service:

  • Over 70 percent of young Americans ages 17-24 are unable to qualify for the military, primarily because they are poorly educated, physically unfit, or have a criminal record.1
  • More than 1 in 5 high school graduates aspiring to join the Army could not score high enough on the military entrance exam to be able to enlist.

Investing in education is essential to building a strong and capable military.

Ø Quality early education is important for our nation’s future security. o High-quality early childhood education can prepare children to start school ready to learn, ultimately contributing to stronger graduation rates and deterring youth from high-risk activities

. o Early childhood learning helps children develop pre-literacy and pre-math skills, preparing them for a successful K-12 experience. o School-based physical education and physical activity programs help reduce obesity rates by instilling healthy habits for a lifetime of fitness. Ø

The military needs high school graduates prepared for rigorous intellectual pursuits.

O Without qualified personnel, investments made in sophisticated, 21st Century military systems will be severely compromised and U.S. national security will be put at risk.

o More than twice as many African Americans fail to quality than white candidates and when they do qualify, they score much lower on the assessment tool used by the military than their white peers.

Strong education system important to the economy

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The economic returns to education have continued to grow with the global information economy. Basic skills are no longer enough in many jobs and, for this reason, the labor market returns to bachelor’s and master’s degrees have grown ever larger. And since education is so important to individuals’ success, it is also a tool for addressing what is widely seen as one of the nation’s most pressing problems: wealth and income inequality. The flipside of the rising return to higher education is that those without such credentials increasingly struggle. It is no coincidence that the title of the 2001 federal reauthorization of ESEA highlighted the students who were “left behind.” Education is seen as one of our primary tools for fighting poverty.

Strong education important to longevity and a high quality of life

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The benefits of education go beyond the economic, however. Research strongly suggests that more educated adults live healthier, longer lives and are less likely to divorce, have children out of wedlock, and commit crimes. It is not just about economic growth but quality of life and social well-being. The divides in society increasingly fall along the lines of education. Education will continue to play a major role in promoting individual opportunity, social mobility, national prosperity, and progress in areas such as health and democratic citizenship.3 Other policies and institutions also affect these outcomes (trade, labor unions, and monetary policy, to name a few), but the national interest in having a well-educated populace is as strong as ever.

Racial inequality in education

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Pulling the U.S. even further from the goal is the disparity in educational attainment between races and   ethnicities. Minorities represent the fastest growing populations in the U.S., but proportionally, their postsecondary attainment is lower (Carnevale & Strohl, 2013; Nunez & Oliva, 2009; U.S. Census Bureau, 2013). Almost 59% of Asians, 42% of Whites, 27% of Blacks, and 20% of Hispanics aged 25 or older have at least an associate’s degree (National Center for Education Statistics, 2015). Not only are there disparities in attainment between races, but students of different races are receiving different educations. “Whites have captured most of the enrollment growth at the 468 most selective and well-funded four-year colleges, while African Americans and Hispanics have captured most of the enrollment growth at the increasingly overcrowded and under-resourced open-access two- and four-year colleges” (Carnevale & Strohl, 2013, p. 6). Rippner, Jennifer A.. The American Education Policy Landscape (p. 3). Taylor and Francis. Kindle Edition.

School to prison pipeline

Jason Nance, 2016, law professor, University of Florida, Over-disciplining students, racial bias, and the school to prison pipeline,

Over the last three decades, our nation has witnessed a dramatic change regarding how schools discipline children for disruptive behavior. Empirical evidence during this time period demonstrates that schools increasingly have relied on extreme forms of punishment such as suspensions, expulsions, referrals to law enforcement, and school-based arrests to discipline students for violations of school rules. For example, from the 1972–73 school year to the 2009–10 school year, the number of students expelled or suspended from secondary schools increased from one in thirteen to one in nine.1 Between 1974 and 2012, the number of out-of-school suspensions increased nationally from 1.7 million to 3.45 million.2 There is also substantial evidence that referrals to law enforcement and school-based arrests have significantly increased in recent years.3 The U.S. Department of Education‘s Office for Civil Rights estimates that during the 2011–12 school year alone, schools referred approximately 260,000 students to law enforcement, and there were approximately 92,000 schoolbased arrests.4 While it may be justifiable to suspend, expel, or refer a student to law enforcement under some circumstances (for example, when a student harms another student with a dangerous weapon or sexually assaults another member of the school community), schools routinely invoke such extreme disciplinary measures for much less serious offenses.5 Many have referred to this disturbing trend of schools directly referring students to law enforcement or creating conditions under which students are more likely to become involved in the justice system—such as suspending or expelling them—as the ―school-to-prison pipeline.

Suspicionless searches in schools are racially targeted

Jason Nance, 13, law professor, University of Florida, 2013, University of Colorado Law Review, Suspicionless searches of students’ belongings: A legal, empirical, and normative analysis,, p. 425-6

Other schools, however, perform random, suspicionless searches on students to prevent students from bringing drugs and weapons on campus. These searches include random drug testing, dog sniffs, metal detector checks, and searches through students’ belongings. The use of these search tactics raises important questions regarding students’ civil rights under the Fourth Amendment. While several articles discuss students’ Fourth Amendment rights in school settings, this Article provides a legal, empirical, and normative analysis of a particularly intrusive type of search practice: random, suspicionless searches of students’ belongings. This Article first argues that, consistent with Supreme Court precedent and a recent Eighth Circuit decision, random, suspicionless searches of students’ belongings are not permitted under the Fourth Amendment unless certain conditions are present. Specifically, in order to justify performing suspicionless, intrusive searches on the general student population, the Fourth Amendment requires that a school official have particularized evidence demonstrating that the school has a substance abuse or weapons problem, unless the school official reasonably believes that students are in immediate danger. Conversely, if the school official offers nothing more than “generalized concerns about the existence of weapons and drugs in [her] school[] ,” she is not entitled to conduct such searches. Second, this Article argues that the above standard is not only legally sound, but it is also more consistent with good educational policy and practice because it limits the authority of school officials to conduct random, suspicionless, intrusive searches absent extenuating circumstances. Research demonstrates that strict security measures deteriorate the learning climate by engendering alienation, mistrust, and resistance among students, instead of building a positive climate based on mutual respect, support, community, and collective responsibility. In fact, empirical studies cast doubt on whether strict security measures effectively reduce school crime, and many researchers argue that implementing such measures increases misbehavior and crime. Rather than relying on coercive measures, research demonstrates that there are alternative, more effective methods for reducing school crime that maintain students’ dignity, do not degrade the learning environment, and teach students to value their constitutional rights. Third, this Article presents an empirical analysis that seeks to identify how many schools use this intrusive search practice and the conditions under which they do so. The data for this analysis came from two restricted-use datasets from the School Survey on Crime and Safety (SSOCS), primary sources of public school data that the U.S. Department of Education made available in 2010 and 2011 to qualifying researchers. Each of the SSOCS databases is a collection of survey responses on crime and safety from over 2,500 public school principals throughout the United States. The results of this empirical analysis raise concerns that many public schools may be conducting searches that are either (1) unconstitutional under current precedent or (2) inconsistent with good educational policy. Specifically, the SSOCS data suggest that during the 2009-2010 school year, approximately seventy secondary schools in the sample and an estimated 1,932 secondary schools throughout the United States conducted suspicionless searches of students’ belongings without reporting any incidents relating to using, possessing, or distributing weapons, alcohol, or drugs. Furthermore, the estimated number of schools that conducted suspicionless searches of students’ belongings sharply climbs for schools that report only a minor problem with drugs, alcohol, or weapons. Although these preliminary findings signal that some schools may be violating students’ Fourth Amendment rights, more research is needed to draw clearer conclusions. As explained more fully below, the primary survey question on which this analysis is based–whether “it was a practice in the principal’s school to . . . [p] erform one or more random sweeps for contraband (e.g., drugs or weapons), but not including dog sniffs”–is somewhat ambiguous. That question does not allow researchers to precisely ascertain (a) the nature of the “random sweeps”; (b) the conditions under which school officials performed the searches; (c) whether the “contraband” searched for was something other than weapons or drugs, such as stolen money; or (d) whether school officials conducted the search on the general student body or on a subset of students that had a lower expectation of privacy. Nevertheless, these preliminary findings demonstrate the need to conduct more research in order to probe more deeply into the types of searches school officials perform and why they perform them. Additionally, and more disturbingly, the analysis suggests that during the 2007-2008 and 2009-2010 school years, schools with higher minority student populations were more likely than schools with lower minority populations to perform these searches without reporting any incidents relating to weapons, alcohol, or drugs. These findings hold true even when taking into account school officials’ perceptions of the levels of crime where students live and where the school is located. The fact that minority students are more often subject to intrusive searches without apparent justification raises serious concerns that schools are perpetuating racial inequalities. Such practices also incorrectly teach students that white students are privileged, leading to increased racial tensions and an undesirable society that harms people of all races.

Strict security measures undermine citizenship and democracy

Jason Nance, 2013, Random, Suspicionless searches of students’ belongings;: A legal, empirical, and normative analysis, University of Colorado Law Review, Nance — Assistant Professor of Law, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University, DOA: 6-23-16

Strict security measures also skew students’ mindets about constitutional values and the role of government in their lives, causing students to discount important constitutional rights. As Betsy Levin explains, schools play a critical role in helping students learn skills and values that enable them to exercise the responsibilities of citizenship and benefit from participation in a free economy.176 Those values include the right to privacy.177 If schools do not honor students’ constitutional rights, schools cannot effectively teach students about those rights.178 This principle has been observed by the Supreme Court as early as 1943 when it stated: “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”179 Furthermore, school officials’ treatment of students in schools socializes students to tolerate and expect similar treatment by government officials outside of schools.180 If students encounter drug sniffing dogs, metal detector checks, frisks, and authorities rummaging through their personal belongings on a regular basis, these practices will seem normal to them.181 The citizenry now may have divergent views regarding individual privacy rights and the role the government should play in our personal lives, but as the rising generation becomes more accustomed to more intrusive invasions, it is possible that those healthy debates may shift towards greater acceptance of strict security measures or disappear altogether.

Poverty and economic inequality in schools increasing

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Greater numbers of students and employees, more variety in student needs, and higher expectations for public schools create complex organizational and political issues that are not as easily solved as some leaders and pundits would have us believe. The current student population provides a good picture of the variety of student needs   facing American public schools. In 2001, 38.3% of public school students qualified for the federal free/ reduced-price meals program. This program is based on family income. So, a family of four with an annual income of $ 31,005 in 2014– 15 would qualify for free meals, and a family of four with an income of $ 44,123 would qualify for reduced-price meals. In 2013, the percentage of students qualifying for this program rose to over 50% for the first time, an increase of over 10 percentage points in just 10 years (National Center for Education Statistics, 2015). These numbers vary widely by state; New Hampshire has only 27% of students qualifying for the program, while Mississippi has almost 72% of students qualifying for free or reduced-price meals (National Center for Education Statistics, 2015). Student needs are Rippner, Jennifer A.. The American Education Policy Landscape (pp. 79-80). Taylor and Francis. Kindle Edition.

Civic engagement

Kahlenberg and Janey 16 – Kahlenberg is a senior fellow at The Century Foundation with expertise in education, civil rights, and equal opportunity and Janey is a senior research scholar at Boston University’s School of Education.

(Richard and Clifford, 11/10/16, “Putting Democracy Back into Public Education”,, MW)

Cost to Ignoring Democracy’s Role

Today, however, we are seeing the costs of an unbalanced approach to public education that focuses on markets far more than democracy: dangerously low levels of civic knowledge, and a reduced faith in democratic values among Americans. These developments are particularly troublesome because they have occurred alongside two larger societal trends that undermine our democracy: a decline in labor unions, and increased political polarization by residential areas, all of which we explore below.

Low Levels of Civics Knowledge

Americans’ knowledge of basic civics is frighteningly scant. A 2015 survey conducted by the Annenberg Public Policy Center of the University of Pennsylvania found that only 31 percent of Americans can name all three branches of government, and 32 percent cannot identify a single one. (See Figure 1.) The survey found that only 53 percent of Americans understood that a 5–4 decision by the U.S. Supreme Court constitutes law and must be followed; 15 percent believed that a 5–4 decision is sent back to Congress for reconsideration, and 13 percent thought that the decision would be returned to lower courts and decided there.40

Performance among students on the 2010 National Assessment of Educational Progress (NAEP) was also disturbingly low. Only 27 percent of fourth-graders, 22 percent of eighth-graders, and 24 percent of twelfth-graders performed at or above the proficient level in civics. Thirty-six percent of twelfth grade students failed to even reach the basic level in civics, signifying that they were unable to describe forms of political participation in a democracy, or draw simple conclusions from basic graphs, charts, maps, or cartoons.41

What is particularly disturbing is that civic literacy has not risen despite considerable gains in educational attainment. As scholar William Galston observed in 2003, “Although the level of formal schooling in the United States is much higher than it was fifty years ago, the civic knowledge of today’s students is at best no higher than that of their parents and grandparents.”42 Among college graduates, older respondents perform significantly better than younger ones according to the American Council of Trustees and Alumni. While over 98 percent of college graduates over 65, for example, knew that the president cannot establish taxes, only 74 percent of graduates aged 25–34 understood this concept.43

Adherence to Democratic Values

If schools are doing a poor job of imparting civic knowledge, they are also doing a poor job of inculcating an appreciation for the democratic values embodied in the Bill of Rights. In the 2015 Annenberg Survey, for example, over one-quarter of people (26 percent) would vote to alter or eliminate the Fifth Amendment so that courts could require a person testify against herself. Almost half (46 percent) opposed a prohibition on “double jeopardy”; the same percentage of people believe that the government should be permitted to prohibit a peaceful march down a main street if those marching expressed offensive views; and only half of respondents thought that the government should not be able to prohibit practice of a religion if a majority of voters perceived it to hold “un-American” views.44

The problem has grown over time, giving rise to some startling attitudes. Columnist Catherine Rampell points out that Americans have become, “steadily more open to anti-democratic, autocratic ideals.”45 As researchers Roberto Stefan Foa and Yascha Mounk note, trends in the World Values Survey show that Americans have shown a declining trust in institutions, including democracy.46 When asked whether democracy is a good or bad way to run a country, 17 percent said bad or very bad, up from 9 percent in the mid-1990s. Among those ages 16 to 24, about a quarter said democracy was bad or very bad, an increase of one-third from a decade and a half earlier (see Figure 2).

Some 25 percent of millennials said it is “unimportant,” that in a democracy, people should “choose their leaders in free elections.” Among U.S. citizens of all ages, the proportion who said it would be “fairly good” or “very good” for the “army to rule,” has risen from one in sixteen in 1995, to one in six today.47 Likewise, a June 2016 survey by the Public Religion Research Institute and the Brookings Institution found that a majority of Americans showed authoritarian (as opposed to autonomous) leanings. Moreover, fully 49 percent of Americans agreed that “because things have gotten so far off track in this country, we need a leader who is willing to break some rules if that’s what it takes to set things right.”48

Decline in Unions as Schools of Democracy

The decline of public schools’ emphasis on democracy has been particularly disturbing because it has been accompanied by a parallel decline of labor unions, which serve as critical civic associations in healthy democracies. From the 1950s to today, union membership fell precipitously, from one in three to one in ten. This decline is closely associated with the hollowing out of the American middle class, which thriving democracies need to survive. But the drop in labor membership also has reduced the role of unions as incubators of democratic practice. Throughout much of the twentieth century, labor unions served as what Harvard political scientist Robert Putnam calls “schools for democracy.”49 Being involved in workplace decisions and collective bargaining, and voting for union leadership are important drivers of “democratic acculturation.” Union members also staff phone banks and go door to door recruiting voters, which increases civic participation among union members and nonmembers alike.50 Relatedly, research shows that unions played an important role in countering “an authoritarian streak” among working-class voters. Seymour Martin Lipset found that organized labor made workers more inclined to embrace democratic norms by inculcating “civic virtues in its members.”51 That critical force is greatly diminished today.

Political Polarization through Residential Segregation

Finally, the crisis in civic education in our public schools comes at a time of increasing political polarization—including by residential areas—that makes it harder for democracy to operate well. Part of the democratic process is the education of citizens—by neighbors and news sources—that will help them consider a wide range of views and make up their minds about candidates and policy issues. But that continuing lifelong education through dialogue in a democracy no longer works the way it used to in the United States.

Sociologist Robert Cushing and political analyst Bill Bishop have found that Americans have become increasingly likely to live in close proximity to those who share a political ideology. In the presidential election of 1976, 27 percent of voters lived in so called “landslide counties”—counties in which the winning presidential candidate won by twenty points or more. By the 2004 election, that number had reached 48 percent.52 In 2016, a poll of Virginia voters found that more than half of Hillary Clinton supporters said they had no close friends of family voting for Donald Trump, and vice versa.53

We also are increasingly engaging with news sources and social media that confirm our preexisting hunches, creating political echo chambers that inhibit critical thinking. According to the Pew Research Center, consistently liberal voters are most likely to block, un-follow, or defriend someone on social media because they disagreed with that person’s political stance. Meanwhile, consistent conservatives do the same and tend to receive their news from one conservative source, FOX News.54 In this way, political polarization is helping compound the ineffectiveness of schools in making us good citizens.

Case Study: Donald Trump’s Presidential Candidacy—A Twenty-First-Century Sputnik Moment

These anti-democratic developments came to a head in the 2016 election and the disturbing rise of an authoritarian presidential candidate, Donald Trump, who ran on a platform that consistently rejected mainstream liberal democratic norms that historically have been embraced by Republicans and Democrats alike and nevertheless managed to win the presidency. The rise of a candidate who questioned several elements of constitutional democracy—including freedom of religion, freedom of the press, the rule of law, the independence of the judiciary, and the peaceful transition of power following elections—should serve as a Sputnik moment for civics education and the need to model democratic values in how our schools are run. Just as Soviet technological advances triggered investment in science education in the 1950s, the 2016 election should spur renewed emphasis on the need for schools to instill an appreciation for liberal democratic values.

Attack on Widely Accepted Constitutional Norms

Against a backdrop in which the American public school system has deemphasized democratic citizenship, and in which Americans have demonstrated less commitment to democratic institutions, Trump called for a series of attacks on liberal democratic values. While candidates have often been chided by the opposing party for rejecting constitutional norms, Trump’s candidacy was different in kind. Fellow Republicans repeatedly had to distance themselves from their own standard-bearer for rejecting essential democratic norms.

Michael Gerson, a former speechwriter for President George W. Bush, said that with Donald Trump, “we have reached the culmination of the founders’ fears: Democracy is producing a genuine threat to the American form of self-government.”55 Peter Wehner, another veteran Republican official, wrote of Trump’s candidacy: “The founders, knowing history and human nature, took great care to devise a system that would prevent demagogues and those with authoritarian tendencies from rising up in America. That system has been extraordinarily successful. We have never before faced the prospect of a political strongman becoming president. Until now.”56 What set Trump apart, wrote University of Texas historian Jeffrey Tulis, is that “no other previous major party presidential candidate has felt so unconstrained by . . . constitutional norms.”57 Consider:

Freedom of Religion. The First Amendment provides for the free exercise of religion, yet during the campaign, Trump proposed a religious test on immigration, calling for “a total and complete shutdown of Muslims entering the United States.”58 He called for heavily surveillance of Muslim communities and their houses of worship, which Anthony Romero of the ACLU noted “would infringe upon American Muslims’ First Amendment right to exercise their religion freely without fear or intimidation.”59 While these policies were widely rejected by mainstream Republican leaders, Trump’s announcements, disturbingly, were associated with his rise in the polls.

Freedom of the Press. The free press is essential for holding government officials accountable, which is why the U.S. Supreme Court more than a half century ago suggested special protection from libel suits brought by public figures.60 During the campaign, however, Trump promised to “open up” the nation’s libel laws. He revoked the press credentials of critical reporters from newspapers such as the Washington Post and Politico, “an almost unheard-of practice for a modern presidential candidate.”61

Rule of Law. While President George W. Bush and Vice President Dick Cheney were criticized for engaging in water-boarding of terrorism suspects, Trump suggested he would do “a hell of a lot worse than waterboarding.”62 Trump also called for murdering family members of terrorists, which is a violation of the Geneva Conventions.63 When Trump was asked by a Fox News host what would happen if the military refused to follow orders to torture, Trump responded, “They’re not going to refuse me.” Such “impatience with constraints placed on democratic governments,” Dalibor Rohac of the American Enterprise Institute notes, is the hallmark of “authoritarianism.”64

An Independent Judiciary. During the campaign, Trump famously criticized a federal judge presiding over a lawsuit against Trump University. He suggested an Indiana-born jurist of Mexican heritage, Gonzalo Curiel, was incapable of being neutral in the suit. Paul Ryan, Republican Speaker of the House, said, “Claiming a person can’t do their job because of their race is sort of like the textbook definition of a racist comment.”65 Trump was scolded by Republican judge and former Attorney General Michael Mukasey, who called Trump’s position, “baseless and squalid.”66

Scapegoating Minorities. More generally, Trump used the classic tactic of demagogues seeking to enhance their own power by whipping up animosity against society’s minorities. Trump focused mostly on Muslims and immigrants from Mexico, whom he broad brushed as “rapists.”67 The founders warned against a “tyranny of the majority” that overrode the rights of minorities. Some of the founders were particularly concerned about the rights of elites who owned property, but Trump used the classic ploy of going after elites who allegedly “coddle minorities.”68

Celebrating the Violence of the Mob. Authoritarians often rely on violence to intimidate. During the campaign, when Trump was asked what would happen if he were denied the Republican nomination, he responded, “I think you’d have riots.” When protesters interrupted his rallies, Trump mused, “In the old days, protesters would be “carried out in a stretcher.”69 Journalist Andrew Sullivan observes, “No modern politician who has come this close to the presidency has championed violence in this way.”70 For Trump, violence is linked to the promise of strength, says Brookings Institution scholar Robert Kagan. “What [Trump] offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, have produced national weakness and incompetence.”71

Imprisoning Political Opponents. The hallmark of authoritarian regimes, Dana Milbank notes, is the imprisonment of political opponents, which is what made chilling the constant refrain from the Republican National Convention’s lynch mob regarding the presumptive Democratic presidential nominee: “Lock her up!”72 Donald Trump then doubled down on this idea, telling Hillary Clinton in the second presidential debate that if he wins, he would “instruct my attorney general to get a special prosecutor to look into your situation,” and adding that “you’d be in jail,” if he ran the country. “It’s a chilling thought,” said Michael Chertoff, head of the Justice Department’s criminal justice division in the administration of George W. Bush. “It smacks of what we read about tin-pot dictators in other parts of the world, where when they win an election their first move is to imprison opponents,” he said.73

Threatening Not To Respect Election Results. Before the ultimate outcome of the election was known, during the third presidential debate with Clinton, Trump astounded observers by refusing to say he would respect the results of the election, a hallmark of American democracy for centuries. Trump would not commit to this principle despite the plea of the moderator, Chris Wallace of FOX News, who noted, “But sir, one of the prides of this country is the peaceful transition of power and that no matter how hard-fought a campaign is, that at the end of the campaign that the loser concedes to the winner.”74 John McCain, the 2008 Republican presidential nominee, noted that while he did not like losing the election, he had “a duty to concede.” He said, “A concessions isn’t just an exercise in graciousness. It is an act of respect for the will of the American people.”75

Strongman to the Rescue. Like a Central American strongman, Trump claimed in his acceptance speech at the Republican National Convention, “I am your voice.” He declared, “Nobody knows the system better than me, which is why I alone can fix it.”76 This sentiment, that Trump was the “man on the horseback to save a frightened and supine nation,” wrote Gerson, is a notion the founders would have held “in utter contempt.”77

A Preference for Authoritarians. During the campaign, Trump famously and repeatedly showered admiration on Vladimir Putin, at one point saying the Russian dictator was “a leader far more than our leader.” Russian chess champion Garry Kasparov responded, “Vladimir Putin is a strong leader in the same way that arsenic is a strong drink.” He continued: “Praising a brutal K.G.B. dictator, especially as preferable to a democratically elected U.S. president, whether you like Obama or hate him, is despicable and dangerous.”78 Trump also expressed admiration for Iraq’s dictator Saddam Hussein, Kim Jong Un of North Korea, and the Chinese leaders behind the Tiananmen Square massacre.79 “There is no precedent for what Trump is saying,” notes former Mitt Romney advisor Max Boot. “George McGovern was not running around saying ‘what a wonderful guy Ho Chi Minh is!’”80 Trump is not a totalitarian, Eric Chenoweth, an expert on democracy notes, because he does not have a fixed ideology. But he does seem to identify with authoritarians, who gain “political power with a clear aim to dominate and control the state.”81

The 2016 election stood apart from other elections, Chenoweth wrote. Historically, both parties, while differing on the size of government, regulation, taxation, and other issues “have remained within a broad democratic range and commit themselves to adhering to America’s constitutional foundations that establish and protect basic rights and a democratic system of governance.” During the midst of the 2016 campaign, however, we faced “an abnormal situation: one of America’s two major parties has nominated an explicitly authoritarian candidate for the presidency,” which posed “a present danger to American democracy.”82 Reflecting on Trump’s campaign through July, Chenoweth wrote that the candidate “adopted many parts of the authoritarian toolkit from the last century: chauvinism, preying on people’s fears of national decline, promising an idyllic vision for the future based on a unique individual’s ability to lead the people and encouraging mass adulation for a political savior of the nation.”83

Running on this platform, Trump, a newcomer to politics, stunningly defeating sixteen other candidates for the Republican presidential nomination, several of them respected governors and senators with decades of political experience between them.84 Along the way, he won more primary votes than any other Republican candidate in the party’s history.85 America has long seen demagogues who rejected civil rights and civil liberties —from Huey Long to Father Charles Coughlin, and from Joseph McCarthy to George Wallace—but never before has a major political party nominated for presidency an individual who so thoroughly questioned widely accepted democratic norms of their era. “In terms of liberal democracy and constitutional order,” Andrew Sullivan wrote, “Trump is an extinction-level event.”86 And then the unthinkable happened: Trump was elected president of the United States.

Pronounced Success with Less-Educated Voters

It has been broadly noted that Donald Trump performed particularly well with working-class white voters who lack college degrees. In a July 2016 poll, for example, this group supported Trump over Clinton 60 percent to 33 percent, compared with college-educated whites who polled 43 percent for Trump, 42 percent for Clinton.87 Working-class whites constituted Trump’s base, providing between 58 percent and 62 percent of his overall support.88At one point during the primaries, Trump himself memorably observed that he loved “the poorly educated,” who supported him so strongly.

Of course, these voters have every right to make the political choices they would like in a democracy. And they have a right to be angry about a political establishment that has ignored their economic needs and created a vacuum for right-wing populism.89 To be clear, people can legitimately agree or disagree with candidates on a variety of issues. Trump may be right or wrong on world trade, American involvement in NATO, taxes, gun control, or abortion. What sets this election apart, however, is the attack on the very principles of liberal democracy. And an authoritarian candidate’s resonance with less-educated voters in particular raises the critical role public education can play in supporting democratic values and norms. The point, then, is not that Trump supporters are all “deplorable”; rather, what is deplorable is the failure of our education system to instill an essential belief in the values of constitutional democracy.


Federal Right to education

Barry Friedman & Sara Soloow, law professors at Yale & NYU, The Federal Right to an Adequate Education,

Common wisdom has it that there is no federal constitutional right to an education; indeed, under our charter of negative liberties the common understanding is that there are no positive rights at all. This Article challenges common wisdom, arguing that there is in fact a federal constitutional right to a minimally adequate education. In doing so it calls into question the value of long-standing debates about the proper way to interpret the Constitution and suggests an alternative—not a new one, but a time-honored methodology. While theoretical battles about interpretation rage, judges (on both the right and left) continue to interpret the Constitution in much the same way: by looking at text, framing intentions, pre-ratification practice, judicial precedents, and subsequent practice by the state and federal governments. Particularly in Due Process cases, this is how judges discern the “history and traditions of the American people.” Employing this methodology, the case for a federal right to a minimally adequate education is remarkably compelling. This analysis also raises interesting questions about the possibility of finding other positive rights in the Constitution.

Support Women’s Participation in STEM

Walters, Political Science Professor at Oakland University, 10

Julie Walters is a political science professor at Oakland University, Connie L. McNeely, PhD in Sociology from Stanford, University, Professor of Public Policy at George Mason University (D7!), where she is also the Co-Director of the Center for Science and Technology Policy, Review of Policy Research, May 2010, “Recasting Title IX: Addressing Gender Equity in the Science, Technology, Engineering, and Mathematics Professoriate”, Volume 27, Issue 3, Pages 317–332, JE

In today’s ever-intensifying innovation-driven economy, science, technology, engineering, and mathematics (STEM) fields play a crucial role within any country seeking to ensure competitiveness and market viability. Developing a vibrant STEM workforce and maximizing its potential in such an environment invoke myriad related policy issues, often involving questions about the profile and nature of that workforce. In the United States and elsewhere, many of these questions are concerned with notions of gender equity and the underrepresentation of women. Academia in particular has been identified as remiss in this area, with evidence showing rampant gender disparities in the STEM professoriate despite increasing female doctorate attainment (NAS, 2007). Moreover, studies on faculty attrition suggest that while both males and females are equally committed to academic careers, women’s higher turnover has been highly correlated with dissatisfaction and lower levels of research support, fewer advancement opportunities, intellectual constraints, and heavier teaching and service workloads (August, 2006; Rosser, 2004; Xu, 2008). In fact, despite initial indications of desire and plans to pursue academic careers, STEM women are increasingly less likely to do so at all (NRC, 2009; NSF, 2004, 2009).1 Even in STEM fields where women have reached parity or near parity with men in doctorate attainment (e.g., biology and geological sciences), they are markedly absent as one progresses up the faculty tenure ladder.

This state of affairs brings us to a point where a focus on the U.S. policy environment reveals growing attention to issues of STEM women in the academic workforce. Indeed, this topic has engendered a variety of debates and holds a place of growing prominence (and controversy) on the public agenda, with leading government officials and academic and other stakeholders calling for regulatory action and programmatic responses aimed at addressing gender inequities and effecting institutional transformation (Hopewell, McNeely, Kuiler, & Hahm, 2009; Monosson, 2008; Sevo, 2008). At center stage in this situation is Title IX of the Education Amendments of 1972, the leading legislative tool for remedying gender inequity in higher education (see APA, 2009). Indeed, with the support of a wide variety of other players, the enforcement of Title IX has been called for by the current administration, and the executive budget explicitly provides for an increase in funding to improve Title IX implementation, reflecting campaign promises to remedy the negligence of the previous administration in this area (APA, 2009; Obama, 2008; Sander, 2009; White House, 2009). Accordingly, Title IX is the focus of the inquiry presented here, examining the policy movement relative to women in the STEM professoriate today.

To that end, after first providing a brief overview of Title IX and its associated regulations as background, we characterize and delineate the application of Title IX to the STEM professoriate by principal issue categories for framing policy initiatives that rest on Title IX in the academic STEM employment context. Our analysis turns on an investigation of the legislative and political history of Title IX enforcement policy and litigation, related content in the law itself, as well as larger concerns of employment discrimination. Focusing on applications to the specified issue categories, we then discuss the larger policy environment, including social and political support for Title IX enforcement relative to concerns of gender discrimination in academia in specific reference to women in the STEM academic workforce. We conclude by opening a dialogue on the implications and likelihood of success for Title IX as a policy tool for diminishing gender bias in the STEM professoriate.

Historical Background

Title IX of the Education Amendments—also known as the Patsy T. Mink Equal Opportunity in Education Act, in honor of its principal drafter and champion, the late congressional representative Patsy Takemoto Mink (D-HI)—was signed into law in 1972. In short, the Act provides that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. (34 CFR 106.51(a)(1))

That is, Title IX bans gender discrimination in educational institutions that receive federal funds, including elementary and secondary schools, laboratories, museums, and colleges and universities, which are our primary concern here. Exempted entities include, for example, religious organizations whose tenets would be violated by enforcement of the Act, public institutions of undergraduate education which from their inception have been single-sex, social fraternities, sororities, and voluntary service organizations such as Boy Scouts. In terms of the fundamental mechanics of Title IX application, the law requires that affected institutions designate a Title IX coordinator to oversee compliance efforts and investigate claims of discrimination in educational programs. In addition, it requires that as a condition for receiving federal funds, either with the application or at the award stage, an institution provide written assurance that it will comply with Title IX. Also, it must adopt and publish grievance procedures for employees and students who allege violation(s) of Title IX.

Despite the fact that Title IX applies across a variety areas of education, such as scholarship provision, access to classrooms, and employment, many believe its purview is exclusive to gender equity in sports. Indeed, such a perception is not unreasonable, considering the extensive litigation and media coverage concerning the Act since its creation. Although the issue of discrimination in athletics was barely mentioned during debates on the act, athletics have dominated policy action and the courts since implementing regulations were put in place in 1975. While developing the draft regulations implementing the Act, the Department of Health, Education and Welfare (HEW) received such a large number of comments regarding athletics that then secretary of the department, Caspar Weinberger, mused he had no idea that the most pressing issue in education was the preservation of football (Suggs, 2006).2 Focus on sports over other areas of education continued in 1977, when Senator Jesse Helms (R-NC) introduced a bill—which failed—to remove athletics from Title IX coverage. Thus began over 30 years of public identification, policy debates, and litigation identifying the core of Title IX with gender discrimination in athletics, and the majority of guidelines issued to aid educational institutions with Title IX compliance have been in reference to its application within the context of athletics.

Amendment via the 1987 Civil Rights Restoration Act (CRRA) expanded the Title IX protection against discrimination in educational programs to include all operations by an educational institution, government entity, or private employer receiving federal funds. Since Title IX’s inception, the federal government had interpreted all operations of an educational institution receiving federal funds to be covered by Title IX. Yet in a 1984 case, prior to the CRRA’s passage, the U.S. Supreme Court contradicted this government interpretation, effectively limiting Title IX coverage to specific programs or activities receiving federal funds rather than entire institutions (Grove City College v. Bell). Creation by law, via the CRRA, of explicit terms specifying that all operations of an educational institution were subject to Title IX protection was no easy task. After passage in both the House of Representatives and the Senate, the CRRA was vetoed by the president. Only after the bill went back to both houses to be approved by two-thirds vote did it become law, overcoming the veto. With CRRA’s passage, students and employees across an institution became subject to Title IX coverage.

Among the earliest Title IX lawsuits coming before the U.S. Supreme Court involved the question of whether Congress intended a private right of action under the Law (Cannon v. University of Chicago, 1979). In ruling that a private right of action was implied in Title IX, the Court found that the remedy was necessary for protecting individual citizens from discrimination, echoing that statutory language and interpretation from another similar civil rights law, Title VI of the Civil Rights Act of 1964, and that it was the role of the federal government, not the states, to protect against discrimination.

The Court again weighed in on the legal dynamics of Title IX and private rights of action in the 1987 case, Franklin v. Gwinnet County Public Schools. In Franklin v. Gwinnet County Public Schools, a unanimous Court decision held that an educational institution receiving federal funds could be held financially liable (not just risk having federal funding pulled by the government) in an action by a wronged individual brought to enforce Title IX. This applies whether intentional discrimination is perpetrated by employee-to-student or employee-to-employee.

Overall, however, there has been little case law based on Title IX. Policy interpretations and guidelines on the law have been issued from the Department of Education’s Office of Civil Rights (OCR), again generally reflecting issues related to athletic programs and students under Title IX rather than employees.3 The other primary categories in which OCR guidance has been issued are sexual harassment of students and student pregnancy. Hence, issues related to Title IX and gender bias in employment in higher education have received little attention from the Department of Education. The current lack of case law or policy clarification from the OCR addressing the use of Title IX in education employment highlights the need for a closer, more detailed treatment of key regulatory policy and litigation components that might be faced given calls for its application in the context surrounding Title IX enforcement within the STEM professoriate (Pieronek, 2005). The following section expands upon such issues relative to Title IX development as they relate to STEM-related employment in academia and potential legal challenges.

Title IX Issue Categories

The policy and litigation history of Title IX reveals little about its application to academic employment since, as mentioned, the focus has primarily been on institutional responsibility to students in education programs, with the majority of attention on athletics. Nevertheless, additional regulatory issues can be drawn from its history, especially when combined with common litigation challenges under other civil rights legislation, such as Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, and recognized evidence of differential treatment of the sexes in STEM fields. Educational institutions receiving federal funds are legally bound by the dictates of Title IX, and it is through this relationship that it encompasses the STEM professoriate. Those obligations are outlined in regulations adopted by the Department of Education (DED). In 2000, over 20 other federal agencies that disseminate funds to education programs also adopted regulations mirroring the DED’s regulatory dictates (Pieronek, 2005). Much is at stake for institutions of higher education should the current (or future) administration direct the Department of Education to focus its time and resources on Title IX compliance. Failure to comply with Title IX can present a serious threat to the financial stability of a college or university, since the federal government has the power to withdraw public financial support from an institution entirely for noncompliance. Although no tertiary institution to date has lost its federal funds due to non-compliance in athletics, many have incurred substantial costs due to, for example, attorney’s fees, damages for back pay, lost future pay, emotional distress, and other litigation-related expenses borne not only by themselves, but also by complainants.

Policy Dynamics

Current policy initiatives calling for the dedicated use of Title IX to address inequities in the STEM academic workforce reflect a merger of policy makers, academics, and various other interest groups who have argued related issues since the late 1990s. For example, the American Association of University Women, the Society of Women Engineers, the Association for Women in Science, and the National Women’s Law Center, to name only a few, have all called for Title IX enforcement in STEM for several years. Expanded publication of data verifying gender inequity in higher education employment and associated action by advocacy organizations and policy makers reflect a 360-degree chronology of debates that started in earnest during the 1960s and early 1970s, with increased attention to civil rights, social justice, and the women’s movement in the United States. During that time, a number of advocacy organizations such as the Women’s Equity Action League instituted litigation arguing widespread discrimination against women at colleges and universities across the United States, including complaints concerning discrimination against employees at educational institutions receiving federal funds (Sandler, 1970). Their efforts harmonized with those of leading policy makers who identified discrimination in education as a nationwide pervasive problem involving not only students, but also faculty hiring and promotion, professional staffing, and pay scales.

While most Title IX policy activity in the 1990s continued to reflect the historical preoccupation with athletic programs, a few efforts by the executive branch represented some attempts to address gender discrimination in education programs not related to athletics. For example, the Office of Civil Rights of the Department of Education issued guidelines for schools in identifying, preventing, and addressing sexual harassment in conjunction with Title IX’s mandates (OCR, 1997). In addition, then President Clinton instructed all federal departments and agencies to mirror Title IX protection for educational programs and activities conducted by them (not required under the Act), and to develop new and vigorous Title IX enforcement plans to ensure entities receiving federal funds via individual agencies were Title IX compliant (Executive Order No. 13,160, 2000; Clinton, 1997). The latter initiative formed the basis for the eventual final common rule issued by the Department of Justice in 2000 covering over 20 departments and agencies.5

However, Title IX enforcement and related initiatives aimed at equity in education hit profound obstacles via Congress throughout the 1990s. Despite the Clinton administration’s efforts on behalf of Title IX beyond athletics and support from a small number of federal policy makers, congressional setbacks were the tone of the day. In 1996, Congress cut or eliminated funding for state Title IX coordinators, and in 2003, cut funding for the Women’s Educational Equity Act (1965), also introduced by Patsy Mink, which provided grants to aid in promoting gender equity in educational environments and funding to aid institutions in meeting Title IX requirements.

With the new millennium, research documenting evidence of discrimination against women in STEM fields revealed the magnitude of the problem.6 The publication of such research occurred almost in concert with mounting concerns by leading policy makers that the United States was losing its competitive edge in the global economy and associated national security issues (USCNS, 2001). Further discussing these issues, in a 2002 hearing of the Senate Commerce Committee’s Subcommittee on Science, Technology, and Space, some policy makers expressed concern that educational institutions were continuing to treat women in the sciences as second-class citizens, and that it was imperative that Title IX be fully enforced to ensure equal opportunity for women in the STEM fields (Wyden, 2002). The Subcommittee subsequently ordered a General Accountability Office (GAO) investigation into federal agency efforts to enforce Title IX requirements in federally funded programs. With billions of federal dollars spent on scientific research and development activities, the senators were interested in knowing how agencies providing such funds were monitoring grantees for Title IX compliance. The investigation revealed, among other conditions, little or no monitoring by each of the agencies; the Department of Education, charged with administering Title IX, provided sporadic monitoring, which was the best of all studied agencies (GAO, 2004). Moreover, other research documenting widespread discrimination in the STEM academic arena was increasing, indicating gender biases preventing women in science and related fields from being hired or advancing in faculty positions (NAS, 2007).

Similarly, many of the arguments used to justify discrimination against women in athletics are also seen in the STEM context—e.g., women are not as interested in science as men, or that they do not have the predisposition for sports or science—although empirical evidence flatly refutes them. For example, a common argument posits that women are not interested in careers requiring long preparation and demanding work pressures, yet women are graduating from medical school at rates approaching parity (Sevo, 2008). Undoubtedly, with such strong tendencies toward negative gender stereotyping, vigorous Title IX enforcement in STEM will require well-trained compliance coordinators at both the state level and institutional level, and the retraction of previous cuts by Congress in funding for state Title IX coordinators.

In addition, while federal grant recipients must file Title IX assurances of compliance, little data currently exists on gender-related conditions in STEM research supported by federal monies. Accordingly, an enhanced Title IX enforcement policy would include the coordinated and uniform collection of data on gender participation and conditions among STEM faculty.

Employee Costs and Litigation Choices— As might women in other fields and employment sectors, STEM women in higher education may feel silenced by hostile environments due to fear of retaliation—retaliation that can end a career (Rolison, 2000). To remedy this situation, Title IX enforcement actions need to be publicly prominent, clear, and effective. In addition, further Department of Education guidance emphasizing that Title IX not only protects those directly wronged by related violations, but also those who protest such actions and later experience employer retaliation. It has only been through court interpretation in recent years that protection from retaliation has been attached to Title IX for those voicing concerns or filing complaints.

In terms of pursuing a violation of Title IX, an employee has a number of choices, all of which may produce considerable personal or financial burdens. While filing a complaint with one’s institution or with the Equal Employment Opportunity Commission may not reflect the high financial cost of pursuing a civil lawsuit or entail the same extensive time requirements, entering into litigation can prove tremendously expensive, as well as time consuming. Also, bringing civil lawsuits involves a greater burden of proof than filing a complaint with an institution, since proof that the institution had actual knowledge of the discrimination (e.g., sexual harassment) is required if seeking financial remuneration for damages. Nevertheless, the legal environment is experiencing an increased willingness of aggrieved employees to challenge discriminatory treatment by an educational institution (Colb, 2007).

This is particularly the case since the recent U.S. Supreme Court interpretation of Title IX as also protecting those who protest discriminatory behavior—whistleblowers—though such employees did not directly experience it. In Jackson v. Birmingham Board of Education (2005), the Supreme Court ruled that individuals who protest sex discrimination even when not the direct targets of it, can seek damages if their colleges or schools retaliate against them for invoking Title IX. Damages can include recompense for past and future economic losses, as well as emotional distress. Since this case, juries have returned multi-million dollar judgments in favor of women and athletic program administrators who showed evidence of retaliation for expressing concerns about discrimination against female athletes and athletic programs. For example, a California jury awarded Lindy Vivas, a former Fresno State University women’s volleyball coach, $5.85 million dollars supporting her Title IX retaliation claim (Porto, 2008).7 The award, which included compensation for back pay, future lost wages, and emotional distress, was nearly $2 million more than she had requested of the jury. Another Fresno State coach and athletics administrator brought a similar retaliation suit and collected $3.5 million as part of a settlement with the university (Redden, 2007). Although the Fresno State cases are among a small number reflecting multi-million dollar resolutions, even smaller verdicts and settlements in totality have cost universities—and taxpayers—countless millions. The Jackson v. Birmingham Board of Education case is a powerful cousin of Franklin v. Gwinnet County Public Schools, discussed previously, in allowing both those who directly experience discrimination and those who report it and are retaliated against to seek monetary damages.

Between the time Title IX’s regulations were implemented in the late 1970s and the Supreme Court ruling in Grove City v. Bell (1984), legal challenges concerning institutional violations of Title IX, particularly in the area of athletics, were common. Until Congress passed the CRRA in 1987, such lawsuits virtually screeched to a halt due to the Court’s ruling that severely limited Title IX’s applicability to discriminatory behavior at educational institutions (Tungate & Orie, 1998). However, litigation rates are linked to changes in the policy environment, as evidenced by the history of Title IX challenges. Although the personal and financial costs may be high for those who challenge such discrimination, women are increasingly challenging Title IX violations, particularly since the Jackson v. Birmingham Board of Education case, and those who cannot afford the costs of litigation are actively seeking pro bono representation by advocacy groups such as the National Women’s Law Center (2009). Consequently, reflecting lessons learned from these cases, a conspicuous and well-articulated federal initiative on Title IX enforcement in the STEM context could produce institutional and program level changes as education employers seek to avoid litigation.

Administration and Oversight— Title IX requires that institutions receiving federal funds provide assurance of Title IX compliance in activities and programs, a Title IX coordinator (an individual with responsibility for Title IX coordination at the institution), published grievance procedures, and a published policy on nondiscrimination in conjunction with Title IX. The sheer of cost of enforcement by federal level agencies such as the Department of Education have left much of the adherence to Title IX dictates to the self-management of institutions. In other words, until a complaint draws attention to an institution, the government relies upon each institution’s own representations of compliance. We know that the previously mentioned MIT internal investigation, prompted by female faculty members, which revealed widespread discrimination problems based on sex, was initiated approximately two decades after Title IX’s implementing regulations were passed (MIT, 1999). MIT’s proactive attention at that stage was one of the first comprehensive assessments of institutional impacts on STEM women. One might consider that without the stimulus of faculty complaints with a receptive administration or the threat of litigation, the current state of Title IX enforcement might leave STEM faculty fearing retaliation in discriminatory work environments.

In an era of Title IX enforcement with resources redirected to compliance in STEM academic employment, rather than the current requirement of a simple statement and promise of compliance to the OCR or federal-grant making agency, a more comprehensive statement concerning certain “best practices” (with linked outcomes) can lead to more effective oversight and enforcement. Thus, for example, one best practice element might reference institutional practices that pair advancement criteria (e.g., nature and quantity of research and publications) with those supportive of family life demands (e.g., tenure clock extensions). Such an approach also would have to be explicitly linked with nondiscrimination policies for those who take advantage of them. Recall that, as previously discussed, a current problem often cited by female faculty is that despite availability of tenure clock modification policies at some institutions, there is a real concern that those who avail themselves of the policy do so at their own risk (August, 2006). Hence, there is a need to link institutional policies with practices that are administered consistently without negative employment ramifications for those who use them. In addition, further clarifications may be needed to address unique aspects of gender representation in individual STEM fields.


No single law and its enforcement will completely rectify deeply embedded societal discrimination. However, Title IX has been called upon as at least a step in the direction of gender equity in academia—even while fundamental ideological beliefs about sex roles and abilities remain as challenges to effective implementation. Indeed, the very academic decision makers and experts who make or break academic careers, and who lived through over 30 years of Title IX and other civil rights laws, are among the carriers of associated discrimination. The marginalization of women in STEM faculty positions, particularly in respect to disparities in salary, laboratory space, resources, responses to job offers, and awards—despite comparability with male colleagues in terms of professional qualifications and accomplishments—is a clear manifestation of just this point. Thus, it is no surprise, as referenced above, that the attrition rate for women faculty in STEM fields is significantly greater than that for men. This dynamic makes for a critical situation relative to Title IX enforcement in which institutions of higher education might ultimately find it difficult to retain qualified STEM faculty. Creating equity in the academic workforce and an institutional environment in which women faculty are valued and desire to remain is central to achieving the goals of Title IX, and, more, has implications for the broader goal of maintaining a vital STEM workforce.

However, while discussions of Title IX applications to the STEM faculty and other constituents in academia have focused on fighting discrimination against women, one also must remember that the legislative language of Title IX is not limited to protections for women; it speaks to prohibiting bias “on the basis of sex.” In other words, Title IX provisions can apply to men as well as women. This language takes on added significance in recognition that, given what has occurred in Title IX enforcement in athletics and employment discrimination, Title IX may be used to foster claims of “reverse discrimination” and to affect a male re-entrenchment in STEM higher education and subvert the basic intent and goal of gender equity in the academic workforce.

Nevertheless, Title IX has been presented and interpreted as a legislative response for combating gender bias in academia, and, accordingly, the current administration has cited enforcement of Title IX as one of several tools for addressing inequity and discrimination against girls and women in science, specifically referencing extant conditions (Obama, 2008).

Women are significantly underrepresented in the STEM workforce, and especially in the leadership positions in research and academia. We need women in leadership roles both for their contribution and for the message of encouragement and opportunity that their presence sends to our daughters.

Executive branch policy support, together with strong advocacy group action and the backing of various political leaders, academics, and other stakeholders, reflects a formidable alliance for dedicated Title IX enforcement. Along with issues of social justice and rights, with a larger policy focus on the role of the STEM workforce in an innovation-driven global economy, Title IX is being considered beyond the athletics arena; it is being recast in the role of champion of gender equity in the STEM professoriate.

Cybersecurity education

Jacobs & Grubb 3 – James Jacobs is the Director of the Center for Workforce Policy at Macomb Community College and Associate Director of the Community College Research Center. W. Norton Grubb is the David Gardner Professor in Higher Education at the University of California at Berkeley and Senior Research Associate of the Community College Research Center

(Jacobs, James, Grubb, Norton, “The Federal Role in Vocational-Technical Education,” March 2003

The federal government first began to support vocational education with the Smith-Hughes Act of 1917. Its passage was controversial since there was considerable opposition to a federal role in education, which was a state responsibility. Since that time, the federal government has had constant involvement with vocational education through Smith-Hughes and its successor acts, including the Carl D. Perkins Vocational and Technical Education Act, which is currently in effect. As recent legislation has primarily focused on supporting academic achievement, it is as yet unclear what the federal government’s approach toward vocational education will be.1 Federal legislation must be reauthorized every five years, with an associated national study, the series of National Assessments of Vocational Education (NAVE). This pattern of constant re-examination has made federal support for vocational education somewhat unstable, and has resulted in multiple redefinitions of the purpose and nature of vocational education. Such reviews can have positive effects, because they enable adjustments to keep up with changing conditions and priorities. For example, the future orientation of federal involvement in vocational education will need to take account of the emergence of what we call the “education consensus.” This consensus recognizes that there is a need for a better-prepared labor force with a large complement of competencies for a knowledge-based society; that education is a continuous, lifelong process; and that economic rewards increasingly accrue to those who earn degrees or other forms of credentials demonstrating educational achievement. The result of the consensus has been an “institutional transformation” of vocational education, with significant changes in how high schools provide it, and a new dominant role for community colleges and other postsecondary institutions. While the states will likely continue to direct the course of their vocational education policies and programs, federal resources can be used to fund what states cannot do on their own. This Brief first discusses what the current vocational education needs are, and then outlines why the states are unable to meet them completely and why assistance by the federal government is justified. It concludes with recommendations about what federal policy might do, especially given limited funding and the desire not to intrude on the prerogatives of the states. Current Vocational Education Requirements To prepare students for high-paid, challenging employment, vocational education must take account of the “knowledge revolution” (or the “information society”), which is changing the nature of work and increasing the skills required in virtually all areas of employment. Employees need to have both higher levels of education—in most cases education beyond high school—and different forms of education, with a new focus on such higher-order competencies as problem solving abilities, communication, and critical thinking skills. To keep up with technology and product changes in the business world, to be able to move among jobs as necessary, and to guard against job loss because of a skill gap or the replacement of permanent with temporary workers, individuals need to make a commitment to ongoing retraining through lifelong learning. At the high school level, vocational education must focus on teaching higher-order technical competencies. Schools must develop higher standards for academic competencies and provide remedial education, if necessary, to ensure that students meet the standards. They must teach in ways that provide a deep understanding of both academic disciplines and occupational methods and procedures. They must strongly promote high school graduation, since the economic penalty for dropping out of school has gotten larger and larger. And finally, schools must promote access to additional educational institutions throughout the lifespan, not simply at the conventional ages of 6 to 22, through assessment, counseling, remediation, and other support functions. Students should have access to postsecondary education, though not necessarily at the baccalaureate level. They should have completion, rather than merely enrollment, as a goal because attainment of a degree is usually necessary to realize economic benefits from a postsecondary education (Grubb, 1999). Indeed, vocational education programs at community colleges are now important as sources of occupational training, since high schools frequently struggle to offer relevant and sufficient training in the face of pressures to 1 1 This Brief is based on a report written in March 2002, at the request of the Office of Vocational and Adult Education (OVAE) of the U.S. Department of Education. It is a general statement on the potential federal role in vocational education and does not directly address the proposal for reauthorization of the Perkins Act made public by the Department of Education in February 2003. 2 concentrate on academics and limited vocational education budgets. Community college programs have become increasingly differentiated as the variety of occupations in the economy has expanded and as occupational preparation becomes formalized in colleges rather than developed on the job. In 1996, about one-half of sub-baccalaureate students majored in a vocational program area (Levesque et al., 2000). Benefits of Federal Support The best justification for federal support for vocational education is simply that it can facilitate program improvement and promote equity, helping to overcome the inability to realize these goals at the state level. Federal involvement also demonstrates a recognition of the fact that education is a component of national economic growth and international competitiveness. It affirms a national commitment to preparing the labor force as a whole and serves as a national response to the growing need for skilled workers in new occupations (Karp, Jacobs, & Hughes, 2002). Aspects of vocational education that can benefit from federal resources include: • The federal government, through economies of scale and breadth not available to states, can direct demonstration and pilot projects to develop and evaluate effective practices, and promulgate those practices proven effective. • The federal government can more readily distance itself from the state and local politics that prevent acknowledgement of the need for reform and dispassionate analyses of innovations. It can circumvent problems of local control and commitments to local communities that often undermine the creation of coherent and effective state policies. And, it can help prevent inequities among states in education funding, leadership, and program coherence. • Federal support can enable difficult-to-implement and expensive high-quality work-based learning (Bailey, Hughes, & Barr, 2000; Wieler & Bailey, 1997). A federal commitment to vocational education can help ensure that high school and community college programs do not succumb to pressures to adhere to academic values and norms at the expense of vocational competencies, or pressures to equip students with specific skills at the expense of providing a broader vocational education integrated with academic content. Options for Federal Policy The federal government currently spends about $1 billion on postsecondary vocational education, but its support constitutes only two percent of total spending on the programs (Grubb & Stern, 1989). It could easily spend billions more to equalize program quality across states; to provide all programs with an array of services, equipment, and materials; and to ensure college for all (particularly among low-income and minority youth). However, such substantial funding is not remotely possible. This reality suggests that the obvious way to leverage relatively small federal sums should be to use them to stimulate innovation and improvement. The goals should be to realize the education consensus and support programs that states and localities are unlikely to implement on their own. Moreover, it makes sense to create separate pieces of legislation for secondary and postsecondary vocational education (or separate titles within one act) to accommodate the different reform issues at the secondary and postsecondary levels. This separation would permit a federal division of funds between the secondary and postsecondary functions. Currently, allowing each state to determine the division of the funding creates glaring discrepancies; in some states as much as 85 percent of the funds are allocated to secondary institutions, while other states divide them equally. Secondary Vocational Education The institutional transformation of education over the twentieth century has resulted in a general consensus that specific vocational preparation should not be part of high school. The No Child Left Behind Act supports this idea in stressing the acquisition of basic academic competencies at all levels of the K-12 system, as do the many states. Nevertheless, there is a powerful role for new forms of vocational education—variously labeled “education through occupations,” “college and careers,” or simply the “new” vocational education—that integrate academic and broad occupational content. Administrators often facilitate this integration with novel structures including schools within schools (as in career academies), majors or clusters defined by broad occupations, or entire schools (including magnet schools) with a broad occupational theme. They incorporate paths to postsecondary education and forms of work-based learning as well, creating other forms of learning and bridges to employers (see Hughes, Bailey, & Mechur, 2001). The federal government can promote these new vocational education models in two important ways: Federal support of the integration of academic and vocational education through funding—as has been the case since the1990 Perkins Amendments—is a way of simultaneously reforming vocational education, creating high schools consistent with the education consensus, and serving the acquisition of basic academic and higher-order competencies. The development of assessments by the federal government that are more consistent with the education consensus and with “education through occupations.” Such alternate assessments would measure broader conceptions of competencies and a greater array of higher-order abilities. These are the learning goals of the education consensus, but assessments in many states still emphasize decontextualized facts and procedures, which can have the effect of narrowing the education of students, particularly low-income students. Postsecondary Vocational Education The institutional transformation of the twentieth century has led to the bulk of pre-professional occupational preparation taking place in community 3 colleges and a few technical institutes. The purposes of these institutions are now quite different from those of secondary schools, and the markets they serve are far more diverse and specialized. Further, the dual needs to implement the education consensus and to overcome the deficiencies of state and local policies suggest a number of specific postsecondary innovations that should be supported by federal funding: Continued integration of academic education and higher-order competencies into occupational programs. While there are many ways to achieve such integration, and a great deal of progress has been made in some colleges (particularly in incorporating so-called SCANS skills), in general, these changes require considerably greater and sustained support (both financial and moral). Development of more effective forms of remedial or developmental education. To meet student needs, postsecondary institutions have expanded remedial/developmental education, but have paid relatively less attention to their quality and effectiveness, though there are some promising innovations (such as learning communities combining developmental courses with occupational courses). Federal support for innovation in developmental education—not simply for conventional learning labs, for which many colleges use their Perkins funds—would benefit all postsecondary institutions. Support for work-based learning. Arguments for some form of work-based learning as a complement to conventional college-based instruction are plentiful, but such efforts are spotty in community colleges. The development of experiments and demonstration projects to support work-based learning, and to examine the conditions under which it prospers, could be a federal role. Encouragement of more imaginative, substantive, and productive links to employers. Collaborations may include participation in the development of skill standards or certification instruments, teacher preparation, curriculum development, and work-based learning (see Jacobs, 2000). Correction of the limitations of comprehensive and academic institutions. Federal support might continue to fund vocational education equipment and materials, as it now does; career-oriented counseling, which is insufficient at most colleges; and placement activities, which are often weak. Connection of the community colleges and other postsecondary institutions with programs at the four-year and post-graduate level. While it is entirely correct to concentrate the federal role at the sub-baccalaureate level of educational preparation, it would be shortsighted not to appreciate that almost all of the new vocations—such as information technology— are evolving into career pathways where a four-year degree is needed to move beyond the entry level. Many community colleges already have articulation agreements with four-year colleges, so federal funding should concentrate instead on more specific curricular links. The problem with this list of potential federal supports is simply that there are too many possible activities. It would be a mistake for the federal government to spread its resources too thinly. One solution would be for the Department of Education and Office of Vocational and Adult Education to concentrate on a number of demonstration or pilot projects in each area—e.g., placement services, work-based learning, and so on—rather than continuing to allow individual colleges to pick and choose among this long list, which dilutes the innovative potential of federal funds. Equity Equity is clearly an important goal, but often in community colleges, equity-oriented programs result in balkanized and uncoordinated services, where some students receive counseling or tutorial support from special sources disconnected from the other services of the college, creating inefficiencies and inconsistencies and weakening the integration of such students into the college mainstream. Far too little money is distributed to make a major difference, though there is enough to create yet another set of programs and further disperse the mission and focus of vocational education. A better approach is to emphasize overall improvements in the institutions and programs that students in need of special services are most likely to attend. Low-income, minority, and disabled students are much more likely to attend public community colleges than four-year colleges, and community colleges are committed to serving a broad diversity of students. Similarly, alternatives to the conventional college preparatory curriculum in the high school often serve (or are targeted towards) students at greater risk of dropping out. Improved remedial/developmental courses will disproportionately benefit at-risk students; improved methods of career counseling will help the large number of undecided students (“experimenters,” as they are often called) who flounder without direction; and workbased placements integrated with college (or high school) coursework will enable low-income students to stay in school. Concentrating upon skill standards and certification examinations will benefit individuals who are in need of immediate work. Potential Recipients of Federal Funds Most federal funding for education, and for vocational education in particular, supports activities at the level of schools or colleges, but states could also be the targets of some federal support. Federal funding could enable states to implement the policies and innovations that are necessary to realize the education consensus and which they have been unable to develop on their own. For example, very few states have implemented coherent policies for developmental education, although such programs are increasing and are critical to providing the basic competencies necessary for wellpaid occupations. Many states have supported customized training for specific employers, but have not used customized training as a vehicle for work-based learning complementary to college-based programs. Most states have extremely awkward provisions for funding occupational facilities and materials, and vocational education would benefit from efforts to solve. funding allocation problems. The transition from high school to community college is still uneven and plagued with inconsistencies in preparation (including deficiencies in academic competencies), so a few pilot projects to provide models of closer integration between secondary and postsecondary education might help states overcome this problem. The federal government could also promote the development of new models for vocational education administration. Currently, vocational educators are separated from the mainstream of education, and while this division has provided them with an insulated means of upward mobility out of the classroom and into administration, it has also provided few common standards or benchmarks for professional practice. Further, vocational education leaders need significant retraining to understand fully the occupational changes around them and provide programmatic leadership. The Structure of Federal Grants and the Activities of the Federal Government If federal policy is to provide broad support for a large number of educational institutions, as it does in the No Child Left Behind Act, then formula funding providing some resources to every institution is appropriate. If, however, the purpose of federal funding is to promote program improvement, then a stronger alternative is to provide project grants to specific institutions for support of specific purposes. Doing so would allow the federal government to specify more clearly which improvements it wants to support, to be sure that institutional recipients use funds for that purpose, and to evaluate the results of innovation. The specification of project grants, the procedures for allocating such grants, and the monitoring and evaluation of the results are all more costly than simply allocating funds according to a formula, however. In addition, a federal role in fostering innovation requires greater expertise and imagination on the part of federal officials, as executing innovations requires a deeper understanding of schools and colleges than does the simple distribution of money to states and localities. Therefore, knowledge of community colleges at the federal level needs to be strengthened. In the end, the challenges of improving the quality of occupational education are not especially different from those in any other area of social policy. A clear sense of purpose and a recognition of the strengths and weaknesses of different institutions, governments, and practices will go a long way toward creating coherent policy and improved programs. The education consensus, despite some limitations, provides the purpose and direction that can motivate federal policy in several areas, including vocational-technical education. The recognition of institutional changes, and knowledge of what different levels of governments do well and poorly, provide other guidelines for federal policy. And so the possibility exists for individuals, institutions, governments, and grant makers to work together, serving both their own and the national interest, to improve the quality of education for the next generation.

Environmental Education

Stek 11 (Charles A. Stek, Policy Director for the No Child Left Inside Coalition, 2011. The Case for AN executive order on Environmental Literacy,

Federal Leadership Is Needed and Crucial federal support for environmental education in both policy and funding is woefully inadequate Today some 14 Federal agencies administer a wide range of formal and informal environmental or environmentally-related (energy, conservation, natural resource, or outdoor) education programs or activities aligned to each agency’s separate missions. There is large variation in the kinds of environmental education initiatives offered and in the goals, amounts of funding assistance provided, and the audiences served by the programs. The Environmental Protection Agency (EPA) and National Oceanic and Atmospheric Administration (NOAA) manage the primary federal grant programs supporting both formal and informal environmental education. These programs, authorized under the National Environmental Education Act of 1990 and the America Competes Act, respectively, work to improve understanding and stewardship of the environment. The programs provide important assistance to a broad array of audiences, including K–12 students, teachers, post-secondary and graduate students, and the general public. Additionally, a dozen other federal agencies, including the U.S. Departments of Agriculture, Interior, and Energy, NASA, and the National Science Foundation, support research fellowships, web-based and other educational tools, curriculum development, internships, awards, studies, or other programs that are directly or indirectly related to environmental, sustainability, or energy education. Many of these programs are focused at higher education audiences. Federal support for all these programs is limited and serves only a relatively small portion of the population. In Fiscal 2010, EPA awarded $3.4 million and NOAA awarded approximately $17 million in competitive grants through each respective agency’s environmental education programs. EPA estimates that each year, the agency’s environmental education grants reach 50,000 students, 6,000 teachers, and 100,000 in the general public. NOAA estimates that grants awarded under the agency’s Fiscal 2010 Bay Watershed Education and Training Program reached 57,000 students and more than 2,400 teachers nationally. NOAA grants to aquariums awarded under the agency’s Fiscal 2009 Environmental Literacy Grants Program reach more than 11 million visitors annually. While these grants are only a snapshot and do not represent the total reach of the agencies’ environmental education programs and activities, they do provide a sense of the relative scale. With the U.S. population now exceeding 300 million, including approximately 77 million pre-K–20 students and more than 3.6 million K–12 teachers, clearly much more needs to be done to achieve environmental literacy goals. Moreover, these programs and initiatives are not well integrated into federal education or other goals nor are part of a comprehensive, coordinated education policy that supports state and local education systems. To date, the U.S. Department of Education—the agency that “establishes policy for, administers and coordinates most federal assistance to education” —has been “mostly absent” from efforts to educate students about the environment and prepare them to participate in a sustainable economy, according to U.S. Secretary of Education Arne Duncan. Indeed, the Department of Education’s policies under the No Child Left Behind Act have had the unintended consequences of actually discouraging state and local environmental education programs and valuable hands-on field experiences previously carried out in many schools and school districts throughout the nation. To his credit, the Secretary Duncan has recognized this deficiency and, as part of the Blueprint for Reform of the Elementary and Secondary Education Act, has included environmental education in a new competitive grant program to promote a “well-rounded education.” The new program proposes approximately $250 million in grants to states, high-need districts, and non-profit partners to strengthen the teaching and learning of a variety of subjects, including American history, civics, foreign languages, the arts, financial literacy, and—for the first time—environmental education. It is an important step forward in increasing the support, participation, and cooperation by the U.S. Department of Education to help enhance environmental literacy—but only a step. Leadership by the Secretary of Education, the Secretary of Interior, and other Administration cabinet and sub-cabinet agencies is also needed to ensure a cohesive, coordinated environmental literacy policy across the Federal government that supports not only stewardship goals, but national education, workforce development, outdoor education, healthy kids/healthy adults, energy, and economic sustainability goals. Strategies must be developed to leverage the unique capabilities of each Federal agency carrying out environmental education programs and activities and to encourage and support state efforts to develop and implement environmental literacy plans. Such a coordinated environmental literacy policy would: • Help ensure that federal funding is spent efficiently to support the education, environmental, economic sustainability and workforce-develop goals listed above; • Ensure that environmental education is effectively and fully integrated into the curriculum and with other efforts to improve student performance across disciplines; • Ensure that environmental education programs reach all students regardless of their income, race, ethnic or language background, or disability status; • Help to expand the academic pipeline for STEM-related subjects; • Ensure that educators have the required skills and training to teach environmental education content; and • Preserve states’ authority to determine their environmental education curriculum.

Gender violence education

Bechhofer et. al. 2011, Laurie Bechhofer, MPH is an HIV/STD Education Consultant at the Michigan Department of Education, Nora Gelperin, Med is the Director of Training, Eva Goldfarb, PhD, LHD (hon) is a Professor at Montclair State University, Mal Goldsmith, PhD, MCHES, FASHA, FAAHE is a Professor Emeritus at Southern Illinois University, Debra Hauser, MPH is the Executive Vice President for the Advocates for Youth, Nora L. Howley, MA is the Manager of Programs for the National Education Association Health Information department, Barbara Huberman, RN, BSN, Med is the Director of Education and Outreach for the Advocates for Youth, Leslie M. Kantor, MPH is the Director of National Education Initiatives for the Planned Parenthood Federation of America, Kyle Lafferty, MPH, MST, CHES is the HIV Program Director for The Society of State Leaders of Health and Physical, Robert McGarry, EdD is the Director of Training and Curriculum Development for the Gay, Lesbian and Straight Education Network (GLSEN), Linda Moore is the Acting Executive Director for the American Association for Health Education, Linda Morse, RN, NJ-CSN, MA, CHES is the President Elect for the American School Health Association, Buzz Pruitt, EdD is a Professor for Texas A&M University, Monica Rodriguez, MS is the President & CEO for Sexuality Information and Education Council of the United, Deborah Roffman, MS, CSE is the Sexuality Educator and Consultant for The Park School of Baltimore, Elizabeth Schroeder, EdD, MSW is the Executive Director, Jennifer Heitel Yakush is the Director of Public Policy for the Sexuality Information and Education Council of the United, Danene Sorace, MPP is a Consultant for the Future of Sex Education Initiative, (“National Sexuality Education Standards” Future of Sex Education 2011 NBC

There are seven topics chosen as the minimum, essential content and skills for K–12 sexuality education:

Anatomy and Physiology (AP) provides a foundation for understanding basic human functioning.

Puberty and Adolescent Development (PD) addresses a pivotal milestone for every person that has an impact on physical, social and emotional development.

Identity (ID) addresses several fundamental aspects of people’s understanding of who they are.

Pregnancy and Reproduction (PR) addresses information about how pregnancy happens and decision-making to avoid a pregnancy.

Sexually Transmitted Diseases and HIV (SH) provides both content and skills for understanding and avoiding STDs and HIV, including how they are transmitted, their signs and symptoms and testing and treatment.

Healthy Relationships (HR) offers guidance to students on how to successfully navigate changing relationships among family, peers and partners. Special emphasis is given in the National Sexuality Education Standards to the increasing use and impact of technology within relationships.

Personal Safety (PS) emphasizes the need for a growing awareness, creation and maintenance of safe school environments for all students.

Comparative studies show that AOUME increases unintended pregnancies and STI infection – the affirmative’s prioritization of complete, scientific knowledge has empirically decreased unintended pregnancy and STIs while teaching students about social inequalities

Gill 15’ July 15, 2015 (To cite this article: Puneet Singh Gill (2015) Science teachers’ decision-making in AbstinenceOnly-Until-Marriage (AOUM) classrooms: taboo subjects and discourses of sex and sexuality in classroom settings, Sex Education, 15:6, 686-696, DOI: 10.1080/14681811.2015.1050487 To link to this article:

In spite of efforts to educate students to be scientifically literate, and to ensure that science education views of science (Lee and Witz 2009). Harding has gone so far as to state that science participates in the unconscious broadcasting of antidemocratic messages that are hidden behind a ‘technical core’ of knowledge (2006, 120). There is a need therefore for a critical examination of science, one that understands its political nature and its potential for social influence. Ivinson (2007), for example, has discussed how teachers can teach controversial topics in subversive ways in science classrooms. Although science is usually positioned within objective and linear discourses that do not value subjectivity, scientific discourses can be used to challenge prevailing myths about sexuality. She states that students may associate discussion of how HIV is transmitted with their own ideas of moral purity or fears about sex. However, if HIV is discussed through scientific discourses, that is, through the mechanics of the condom as a barrier to disease, young people can begin to understand how disease occurs. Failing to teach students sexual knowledge can lead to myths about sex education topics. Stanger-Hall and Hall (2011) suggest that US states that teach abstinence-only may actually promote high-risk behaviour because they keep students uneducated about reproductive health issues. Their research found that the more strongly the states emphasise abstinence education, the higher the teenage pregnancy and birth rates. They also note that sex education is frequently taught by teachers with little training in this area, and it is recommended that science education includes specialised provision in the areas of reproductive biology, pregnancy, and STIs biology, ethics and prevention. Since 2006, AOUM funding and programmes have spread across the nation, and federal government monies are supporting their widespread use. Such an approach reduces the likelihood that students and teachers will have conversations about sex, sexuality and relationships and puts the health of young people at risk. AOUM models may also collude with homophobic harassment in schools by failing to challenge heterosexual normativity (Fine and McClelland 2006), and denying the presence of queer youth who are unable to participate fully in the ‘moral community’ of students (Fine and McClelland 2006, 310– 311). Moreover, according to Kirby (1989), a review of abstinence programmes indicates that there was little evidence that they delay the initiation of sex and, more importantly, they do not ‘eliminate risk’. In contrast, good-quality comprehensive programmes that discuss reproductive health more broadly can decrease teenage pregnancy rates. In New Zealand, Allen’s (2001, 116) work has suggested that sexuality education in schools is often not appealing to young people because a ‘discourse of erotics’ is missing. Allen explains that young people’s personal experience holds higher status than knowledge gained from secondary sources, such as sexuality education. She proposes a reframing of sexuality education to close the gap between the knowledge conveyed by school-based sexuality education and young people’s own sexual practice. In science education, this may mean that teaching has to take place in ways that respect students’ personal experiences. Brotman, Mensah, and Lesko (2010), in their research into how students learn about HIV, suggest that students not only ally themselves with the biomedical knowledge acquired in school but also raise complex questions about HIV and societal inequities. They suggest that educators can address students’ learning better through a curriculum that promotes the critical analysis of controversial topics. Teachers may face barriers when teaching about controversial issues, however, in the form of conservative school and state policies and restrictive school practices and environments. In particular, the ideological commitments promoted by AOUM approaches may run counter to a more broad-based commitment to science questioning and content. Moreover, while some science teachers may dispute the curriculum and seek to teach a broad range of topics, others may choose to focus only on AOUM content. Against this background, the focus of the present study was to analyse how policy development and the reform of sex education can be connected to a reconceptualisation of science education that addresses personal controversies. The study adopts a broadly Foucauldian (1978) framework to analyse the discursive practices of teachers because relations of power operate within the production and circulation of science education and AOUM discourses

REHYA sets the new gold standard for federally funded education. Targeted News Service 2016

[Targeted News Service, Newspaper, April 8, 2016, “Comprehensive Sex Ed Legislation Introduced”,]

The Sexuality Information & Education Council of the United States issued the following news release: Yesterday, U.S. Senator Cory Booker (D-NJ) introduced the Real Education for Healthy Youth Act, joining Congresswoman Barbara Lee (D-CA) in laying out a comprehensive and holistic vision for sex education policy in the United States. The current federal investment in adolescent sexual health promotion programs is an important step in the right direction, but much remains to be done to strengthen, enhance, and expand these efforts. The availability of sexuality education and quality of sexual health information varies drastically across the country. The Real Education for Healthy Youth Act would establish the first-ever dedicated federal funding for comprehensive sexuality education for elementary and secondary schools, institutes of higher learning, and teacher training while ensuring that federal funds are spent on science-based, age-, and developmentally-appropriate, and medically accurate instruction. “SIECUS commends Senator Booker and Congresswoman Lee for their leadership in introducing this landmark legislation and their continued commitment to providing young people with the comprehensive sexuality education they need to lead healthy lives,” said Jesseca Boyer, Vice President for Policy, Interim President & CEO, Sexuality Information and Education Council of the U.S. (SIECUS). “While critical advancements have been made in how the federal government addresses youth sexual health, we still have a long way to go before the needs of young people are fully met,” continues Boyer. Less than 50% of all high schools and only 20% of middle schools in the U.S. provide a minimum of topics critical to ensuring sexual health. This failure perpetuates disproportionate burden and health disparities among young people. Despite the need to equip and empower young people with the information and skills they need to lead sexually health lives, funds continue to be wasted on abstinence-only-until-marriage programs that inherently withhold lifesaving and affirming information from young people. “The Real Education for Healthy Youth Act sets the new gold standard for the federal government: what it should, and should not, be supporting with regards to sex education. This legislation sets the path forward to ensure that all young people finally receive the information and skills they need to make informed, responsible, and safe decisions about their sexual health,” says Boyer. The Real Education for Healthy Youth Act is cosponsored by Senators Baldwin, Blumenthal, Brown, Franken, Gillibrand, Hirono, Menendez, Murray, Sanders, Warren, and Wyden and has 55 House cosponsors. The legislation is supported by 47 national organizations.

Career and technical education

Jackson and Hasak 14 [John H. Jackson is the president and CEO of the Schott Foundation for Public Education, held leadership positions at the National Association for the Advancement of Colored People and has served as an adjunct professor of Race, Gender, and Public Policy at the Georgetown Public Policy Institute, and Jonathan Hasak is a recent graduate of the Harvard Graduate School of Education and Manager of Public Policy and Government Affairs at Year Up, “Look Beyond The Label: Reframing, Reimagining, and Reinvesting in CTE,” American Educator, Fall 2014,]

  1. Address the Student-Readiness and Teaching-Training Gaps

Despite being held accountable for student academic growth in reading and mathematics under the federal Carl D. Perkins Career and Technical Education Act, CTE teachers have limited time to work on academic concepts, since the majority of instructional time is spent delivering technical skills. To that extent, many certified teachers either have not been properly trained or are simply struggling to teach both technical expertise and academic skills.

Link High Schools to CTE Programs: Too many students attend CTE programs without basic academic content knowledge. The need for remediation for students, especially those whose skills will not qualify them for current high-quality CTE because of entrance exams, makes the job extremely difficult for teachers. To balance academic and technical experience in classrooms, one solution is to allow students to take remedial courses at nearby high schools for academic credit. With the majority of classroom time spent delivering technical skills that are relevant for specific jobs, more applied learning and time to support academic concepts such as quantitative reasoning and data collection are needed. By having one teacher who can cover technical content and another who can reteach basic academic skills, students would have a more balanced educational experience and an opportunity to become better professionals who are not dependent on one single technical skill set alone.

Attract High-Achieving Students: CTE programs must attract more than just students who prefer to circumvent four-year colleges. Framing these pathways around upward social mobility for all students would be more politically resonant than calls to rectify inequalities in CTE. By attracting high-achieving students, CTE programs would diversify the social capital of their student population and acquire more financial resources; ultimately, it would also lead to the mixed grouping of students, which has proven most effective in raising academic performance.14 By signaling its dedication to making its students attractive to prospective employers, turning them into good citizens, and providing an excellent education, these programs would offer a compelling message to any student eager for an employer-recognized credential that would lead to a meaningful job.

  1. Involve the Business Community

With some 14 million students enrolled in CTE programs in nearly 1,300 public high schools and 1,700 two-year colleges, many of these students are being shortchanged in their career and college preparation. As such, an emerging productivity and skill gap has emerged, with 45 percent of American employers blaming entry-level vacancies on a skills shortage.15 And while President Obama has asked for $1.1 billion in his proposed 2015 budget to reauthorize the Perkins Act,16 employers continue spending more than $400 billion a year in formal and informal employee training.17 Quite simply, most CTE programs have failed to translate the technical expertise of their training systems into jobs for students.

The stakeholders most integral to ensuring students’ future employment are business leaders. We must engage the business community and help it see the untapped potential of millions of young men and women. While employers across the country are already collaborating with vocational programs, there is still need for more cross-sector collaboration on a larger scale. But employers must do more than just offer half measures and identify a skills shortage as a critical problem; they should actively help resolve the nation’s skills problem through a more systemic approach.

In Michigan, for example, new legislation was recently proposed to give students and families more choice in substituting CTE courses for electives. Admirable as it is, the legislation does not attempt to build or integrate a clear route for students to pursue college or career; rather, it hopes that trading Algebra II for a CTE course will somehow improve career readiness. And even when the federal government announced in February 2014 that it would provide $148 million for a manufacturing innovation institute in Detroit, it is difficult not to see the program stuck in the past when it is technical, not manufacturing, jobs that are growing fastest in Michigan.

Help the Business Community Become Active Collaborators: Making the relationship between education and employment more transparent is indispensable in reimagining CTE; efforts to do so should integrate work and learning opportunities for students with clear occupational positions and salaries in mind. Educators can accomplish this by illuminating skills taught in classrooms as foundations for skills needed for employment, therein transcending abstract schooling experiences into something more personal—something that can ignite student curiosity, creativity, and imagination.

Convincing business leaders to see themselves not as charitable givers but as active partners in CTE requires helping them see that CTE programs could reduce their costs. As an example, the business community could lobby local and state governments to provide tax incentives for hiring CTE students. In turn, CTE programs would make hiring qualified employees easier since such programs could lead to a pipeline of talent through internships, apprenticeships, and summer jobs.

Connecting employers and career opportunities to CTE students would directly target a skills and productivity gap that, if not addressed, will continue to affect economic productivity for students and employers alike.

Use Public-Private Partnerships as Tools to Engage Businesses: To constantly update equipment and curricula, and to develop teachers who can incorporate new techniques in their training, we need more public-private partnerships (PPPs). With shrinking government budgets and limited financial resources, PPPs enable the private sector to improve learning outcomes for students by providing education services beyond public finance. Case studies conducted in Latin America have shown that some of the benefits from PPPs for schools are greater efficiency, increased student choice, and wider access to education.18

Social innovation financing reduces runaway spending and encourages competition

Costa 11 [Kristina Costa, Special Assistant at the Center for American Progress. 10-19-2011 “Financing Tools for Social Innovation,” Center for American Progress,] /adres

Last week we examined why strong leadership is essential to public-sector innovation. An agency leader who wants to develop more innovative solutions to social problems can expect resistance on many fronts, both political and logistical. But no obstacle looms larger than the problem of financing. Public-sector innovators have to convince a risk-averse—and financially constrained—political system to take a chance on new ideas. The financing hurdle can be overcome with a little creativity, however. Successful new and emerging social-innovation financing models are an encouraging sign for agency leaders, community advocates, and financiers alike. There are three key principles for successful social-innovation finance. First, innovation requires appropriate levels of financial backing at each stage of the process, with small sums available for promising ideas and larger sums for proven innovations that merit scaling up. Second, money must follow success, rewarding new ideas that work and pulling funding away from less-successful innovations. Finally, it sometimes makes sense for government funds to be supplemented by contributions from private-sector nonprofits—especially for the most experimental ideas. Let’s consider each principle in greater detail. Apply “stage-gate” funding The so-called stage-gate approach ensures the right level of financing is made available to programs at different stages of their evolution. This method was used by the Department of Education’s Investing in Innovation Fund, otherwise known as the i3 Fund. The smallest i3 grants, up to $3 million each, were made available for programs that used an innovative approach to improve education outcomes but lacked sufficient data to merit scale. The largest grants, up to $25 million each, were targeted for innovations that already had proven results and needed support to scale up their efforts and increase their reach. Social Innovation Fund grants, which have been given out by the Corporation for National Community Service since 2010, incorporate an additional innovation. CNCS grants are given to intermediaries who then sub-grant them to others. As a result, government policymakers are insulated somewhat from the political fallout associated with failed ventures. Stage-gate funding has found success in other governments as well. In the United Kingdom, the National Health Service is piloting Regional Innovation Funds. The funds have invested about a third of their total $350 million on the 250 most promising projects, initially granting $15,000-$70,000 to new ideas. The rest of the funds are focused on scaling up the best interventions that boost outcomes and also save public money. These include innovations that help move special-needs children from hospital to home five months sooner, saving the health service more than $2,000 a day. Another innovation that received funding for scaling up was inhalers that whistle when used correctly. That means that the 50 percent of Britons who incorrectly used traditional inhalers are now much less likely to have an asthma attack. Make sure money flows to success The second financing principle of targeting money to things that work needs to be anchored in a commitment to data-driven outcome measurements. If successful programs know they will attract more funding, there is a much greater incentive for innovative approaches to emerge. One example is the work of the United Kingdom’s Greater Manchester region to reduce criminal recidivism. This program brought together 10 local authorities, 10 programs targeting young offenders, two magistrate courts, and a prison to pool their funding and apply it to the approaches that were proven to work best. Instead of funding more than 200 different, small-scale efforts, funds were moved to the 10 programs most successful at reducing reoffending among youth. Think outside the traditional budget box In order to make financing innovative social programs truly effective, agencies should engage the support of other sectors. Both i3 and the Social Innovation Fund require grantees to demonstrate they can access funds from other sources, like foundations. This encourages social innovators to look beyond government for resources and allows a relatively small amount of federal money to leverage far greater amounts of private capital. For instance, $50 million in SIF funding will be complemented by at least an additional $150 million in nongovernment funds. New York City’s most untested innovations have often been backed by funding from foundations and private sources. The Fund for Public Schools, for example, has raised around $150 million over the last five years from the private and philanthropic sectors to support initiatives such as the innovation zone that allows schools to try new approaches. If some of these approaches prove unsuccessful, political leaders are insulated from the claim that public money was wasted. Arranging financing for social innovation work is but one crucial part of the puzzle. Next week we’ll consider what makes an agency’s culture most able to innovate.

Teacher Shortage Solutions

Linda Darling-Hammond 06, President of the Learning Policy Institute, is Charles E. Ducommun Professor of Education Emeritus at Stanford University where she is Faculty Director of the Stanford Center for Opportunity Policy in Education, November, 2006, “Highly Qualified Teachers for All,” Educational Leadership, 64.3,

A Call for Action Although states and school districts can do much to alleviate teacher quality and supply problems through equalization of resources and investments in teacher recruitment, preparation, and support, the ultimate solutions to these problems must involve a strong federal role. National strategies for enhancing the supply of teachers have precedents in the field of medicine. Since 1944, the federal government has subsidized medical training to meet the needs of underserved populations, fill shortages in particular fields, and increase diversity in the medical profession. The government also collects data to monitor and plan for medical manpower needs. This consistent commitment, on which we spend hundreds of millions of dollars annually, has contributed significantly to the quality of U.S. medical training and care. We offer the following recommendations (adapted from Darling-Hammond & Sykes, 2003) for a similarly aggressive national policy to improve teacher quality. Increase Quality and Supply In general, the problem is not an overall shortage of teachers but a maldistribution of talent. We need two kinds of targeted incentives to attract qualified teachers to schools and subject areas that historically have been undersupplied. First, the federal government should launch a substantial, sustained program of service scholarships and forgivable loans allocated on the basis of academic merit and personal commitment, with special incentives for those who train in high need fields like mathematics, science, and special education. Such scholarships should be awarded in exchange for a commitment to teach for 3–5 years in high-need schools. Although some federal grants are currently available, they are too few and too small to serve as effective incentives for solving the United States’ teacher-supply needs. An effort that brought in 40,000 talented recruits by offering them up to $20,000 apiece in service scholarships for undergraduate or graduate-level programs would fill nearly all of the positions currently staffed by emergency teachers. At $800 million a year, this effort would cost less than the weekly outlay for the U.S. presence in Iraq. Second, the federal government should develop “grow your own” programs in urban and rural areas because many young teachers strongly prefer to teach close to where they grew up or went to school. Teacher preparation programs in cities and isolated rural communities could use stateof-the-art preparation strategies to ensure a pipeline from preparation to hiring. For example, professional development schools, which allow teachers in training to apprentice at local schools, can support high-quality learning for both students and teachers. Operating grants that would develop such programs at teacher preparation institutions in 100 key locations, at $1 million per program for each of five years, would cost the government only $500 million. Improve Teacher Retention A great unfinished task in U.S. education is to create conditions to better support new teachers, including manageable initial assignments, mentoring, and more effective evaluation to help novices improve. About 30 percent of new teachers leave within five years, and the rates are much higher for teachers who enter with less preparation and who do not receive mentoring (Darling-Hammond & Sykes, 2003). A recent study estimated the costs of replacing new teachers who leave at between $8,000 and $48,000 each, depending on whether we consider student learning costs (Benner, 2000). Even the low-end estimate amounts to billions of dollars nationally each year. A national teacher-supply program should help ensure that teachers receive appropriate support in their early years, including access to qualified mentors who have expertise in the relevant teaching field and time to coach beginners. This could be accomplished through targeted matching grants to states and selected school districts aimed at supporting effective induction practices, including high-quality mentoring programs. Such grants should make hard-to-staff schools a priority. If the federal government issued individual state grants for $1 million annually for three years running, the cost would be another $150 million. Providing grants to 100 hard-to-staff districts (or district consortia) at an average of $500,000 a year for three years would add $150 million. If the U.S. Department of Education evaluated and disseminated knowledge from the resulting new teacher support programs, the nation would benefit considerably from new policies and practices that this knowledge would generate. Better pay and working conditions are also crucial. Difficult living and working conditions and noncompetitive salaries place many urban and rural districts at a double disadvantage in the competition for teaching talent. Some states, such as Connecticut, have successfully raised and equalized salaries and improved urban students’ access to well-qualified teachers (Wilson, Darling-Hammond, & Berry, 2000). The federal government could encourage more states to address these issues by sponsoring research within and across states on the success of various strategies in different contexts. This research might include local experiments with compensation plans like those now operating in Denver and Minneapolis, as well as statewide policies like California’s, which provides $20,000 bonuses for Board-certified teachers who work in high-need schools (Humphrey, Koppich, & Hough, 2005). It is not enough to just pay teachers more; the conditions have to be in place to give them a chance to succeed. Research shows that such factors as school leadership, time for high-quality professional development, and teacher empowerment have a powerful effect on both increasing student achievement and improving teacher retention (Center for Teaching Quality, 2006b). Equally important, we need to examine ways to eliminate the stigma of working in high-need schools—a stigma made more acute by the fact that NCLB has labeled a growing number of them as failures. Recent evidence suggests that negative school accountability labels and the accompanying pressures contribute significantly to chasing good teachers away from such schools (Clotfelter, Ladd, Vigdor, & Diaz, 2003), creating the paradox that measures intended to help students in these schools may, in fact, hurt their chances of being well-taught. Create a National Teacher Labor Market Finally, federal policy must help create a national labor market for teachers, including the removal of unnecessary interstate barriers to teacher mobility. Teacher supply and demand vary regionally, and teachers need to be able to move easily from states with surpluses to those with shortages. The federal government should work with states to reform the current medieval system of teacher testing that has resulted in 50 separate fiefdoms across the country. The Interstate New Teacher Assessment and Support Consortium (INTASC), sponsored by the Council of Chief State School Officers, has brought together more than 30 states to create common licensing standards and new assessments for beginning teachers. The consensus that INTASC has forged could become the basis for a national system that not only facilitates teacher mobility through common assessments and streamlined processes but also establishes teacher pension portability on par with what is available to most university professors. This system should include a national teacher performance assessmentmodeled after that of the National Board for Professional Teaching Standards and similar to those assessments used in Connecticut, Wisconsin, and California—to systematically evaluate whether teachers can actually teach effectively through an authentic assessment of practice. Finally, the long-standing federal role of keeping statistics and managing research is well suited to the job of creating a database and analytic agenda for monitoring teacher supply and demand. Such a system, which would inform all other policies, could document and project shortages in geographic areas and academic fields; determine priorities for federal, state, and local recruitment incentives; and support plans for institutional investments where they are needed.

NSF K-12

The NSF GK-12 program is key to supplementing primary and secondary STEM education. Expanding university grants is achieve the program’s potential.

Romar and Matthews 2015 – George Romar, MD Candidate at Harvard, is a former Research Intern at the James A. Baker III Institute for Public Policy – Rice University; Kirstin R.W. Matthews, Ph.D., is a fellow in science and technology policy at the Baker Institute. She is also a lecturer in the Wiess School of Natural Sciences, a joint faculty member in the Department of BioSciences, and an adjunct lecturer in the Department of Sociology at Rice University (“OP-ED: CONSIDERATIONS ON U.S. GOVERNMENT INVOLVEMENT IN STEM EDUCATION AND EARLY CHILDHOOD INTERVENTIONS,” The Journal of Science Policy and Governance 3:1) bhb

Congress and President Obama have attempted to address STEM education shortfalls by enacting and reauthorizing the America COMPETES Act (2010). In particular, the Act has provided targeted funding for education initiatives supported by the National Science Foundation (NSF). PCAST’s 2012 Executive Report to President Obama included a number of recommendations for NSF programs at the post-secondary education level that it believes will help produce an additional 1 million STEM graduates (Report to the President, 2012).

Although addressing the STEM shortage at the post-secondary level is important, the NSF also wisely recognizes that the strongest foundation for generating a capable STEM workforce must be laid much earlier. Hence, the NSF has sponsored a number of K-12 STEM education projects through its Discovery Research K-12 program (Discovery Research, n.d.). The foundation also has a program that sponsors STEM graduate students at universities around the country to partner with local K-12 schools with the explicit aim to “stimulate interest in science and engineering among students and teachers” (About NSF GK-12, n.d.). These initiatives are solid steps in the right direction, but the program’s relatively small scale limits their national impact. The NSF’s 179 graduate student teaching fellowships have no hope of fully serving the country’s 132,183 K-12 schools (Digest of Education, 2012). An expanded STEM partnership between the government and the nation’s 6,742 colleges and universities is needed.

Priority should be placed on early childhood education research. Given enough welltrained teachers, researchers at the National Bureau of Economic Research have found that early childhood interventions as simple as providing smaller class sizes can yield measurable benefits in adulthood (Dynarski, Hyman, & Schanzenbach, 2011). Smaller classes were shown to increase young children’s prospects of earning a college degree by 1.6 percentage points and made them more inclined to pursue STEM fields. Researchers at MIT have recommended that taxpayers provide early education for every interested family because each dollar invested returns as much as $13 in costs for public education, criminal justice, and welfare over the next few decades, plus increased tax revenue in the long term (Calman & Tarr-Whelan, 2005). These findings, among others (Reynolds et al., 2001; Heckman, 2007; Barnett, 2007), point to the notable benefits that result from early childhood interventions. This evidence is crucial for federal STEM education policy formulations aimed at sustaining the nation’s STEM activities and laying a critical foundation for STEM more broadly.

School lunches —

Uniform federal policy is key – without federal funding struggling districts can’t incorporate nutrition education. Necessary to solve obesity and health issues – uniquely hurts poor and minority students and communities.

Union of Concerned Scientists 16 [School Lunch and Beyond: Better Food Policy for Healthier Kids, October 29, 2016, Last revised date:]

Our children need—and deserve—healthy food. A diet rich in fruits, vegetables, lean proteins and whole grains, as recommended by the U.S. Department of Agriculture (USDA) and nutrition experts, can help kids grow up physically healthy, mentally alert, and capable of meeting the challenges of adulthood in the 21st century. But in a food system dominated by unhealthy, artificially cheap processed foods, access to healthy food is a serious problem for many American children. As a result, childhood obesity has grown rapidly over recent decades—especially for low-income and minority children—with long-term health consequences that will shorten lives and send health care costs soaring. In this grim food landscape, there’s one oasis for millions of kids: the school cafeteria. Why school lunch matters The National School Lunch Program (NSLP), created by Congress in 1946 and shaped by additional legislation over the following decades, provides support—mostly in the form of cash subsidies—for schools to provide meals to students. Participating schools must serve lunches that adhere to federal nutrition standards, and they must offer free or reduced price (FRP) lunches to children who qualify. For many students, NSLP meals are a crucial source of healthy foods that their families may not have the access, money, or time to provide during the rest of the day. The program also turns lunchtime into an opportunity for nutrition education: by showing students what a healthy diet looks like, the school can provide a counterpoint to the steady stream of messages promoting unhealthy, processed foods to children and their parents. In the Healthy, Hunger-Free Kids Act of 2010 (HHFKA), Congress improved the program’s nutritional standards, bringing them into better alignment with current federal dietary guidelines. Although there is considerable evidence that HHFKA is working, it has provoked a backlash from some school nutrition professionals, who claim that it has resulted in increased waste and negative attitudes toward healthy food. The data are in: school lunch works To assess how well subsidized school lunches succeed at putting healthier food in kids’ mouths, UCS analyzed data from a Department of Education study that tracked the eating behavior of a cohort of students. The study surveyed the group as fifth graders in 2004 and again as eighth graders in 2007. The resulting report, Lessons from the Lunchroom, shows that federally subsidized school lunches do make a difference: children who were FRP lunch recipients ate more fruits and vegetables than their peers who were not. However, the report also confirms the challenges that school lunch programs face in the larger food environment: FRP students consumed more fast food and sugary drinks than non-FRP students, and they were more likely to be obese, a difference that increased between fifth and eighth grade. Give healthy food a chance: what Congress needs to do In 2015, the Healthy Hunger-Free Kids Act is up for renewal. This is a crucial opportunity to strengthen what is working about current federal school lunch policy and to provide support for schools that have struggled to implement HHFKA successfully. Our policy brief, Healthy School Meals, Healthy Children, offers several specific recommendations that Congress should incorporate into a renewed HHFKA—including increased reimbursement funding, better nutrition education, investment in cafeteria equipment, and increased support for Farm to School programs. Zooming out: the need for a national food policy Ultimately, both the successes and the challenges of school lunch programs point us back to the bigger picture: the need for a comprehensive national food and well-being policy that will align food-related public policy initiatives around a consistent set of priorities, with the goal of ensuring access to healthy, sustainably grown food for every American. UCS has begun working with a broad range of allies to build a movement that will make such a national food policy a reality.

Farm to school programs help sustain small farms

Joshi, Kalb, & Beery 06 – Center for Food & Justice UEPI, Occidental College & Community Food Security Coalition [Anupama Joshi , Marion Kalb and Moira Beery, GOING LOCAL: Paths to Success For Farm to School Programs,[1].pdf]

Farm to school programs link local farmers with schools. This simple idea bears great potential as a solution to two of the major challenges facing our society: concerns about the diet and health of children, and the disappearance of small farms. By purchasing locally grown products, schools have been able to serve fresher products to the students, create new markets for local farmers, and incorporate innovative educational activities that meet state education standards. Farmers participating in farm to school gain a sense of community involvement by impacting the lives of young children, and becoming involved in providing agricultural education, while benefiting from increased sales to institutions. Farm to school programs have been operational in the United States for nearly ten years. We estimate that as of 2006, there are over 950 farm to school programs in more than 35 states, and the numbers are growing rapidly. Over the past decade, major strides have been made in the knowledge and understanding about farm to school program models, implementation methods, evaluation, and policy development. Farm to school programs have been the focus of significant media attention in this period, feeding a dynamic movement that is gaining momentum due to its benefits of improving students’ eating habits and farmers’ incomes. This report showcases innovative farm to school programs from around the country. It draws upon the existing information as well as new research to present a compilation of eight case studies of farm to school programs operating in different regions of the country. Each case study profiles a program’s operations and accomplishments as well as the barriers that have been faced and the tactics used to overcome these challenges. With case studies from California, Florida, Illinois, Massachusetts, Michigan, New Hampshire, North Carolina, and Oregon, the publication provides a snapshot of the diverse ways in which farm to school is making a difference nationwide – from a local food-based curriculum in Chicago, to a focus on transportation and distribution in Massachusetts, to utilizing the Department of Defense produce buyers in Michigan, the report highlights strategies that can help farm to school practitioners and advocates of healthy kids and farms build successful programs in their home communities.

School lunches key — nutrition requirements create markets for farmers.

Gurley 16 – JD, Harvard Law, B.S., Georgia Institute of Technology [Kristie Gurley, NOTE: FOR THE HEALTH OF IT: HOW THE QUANTIFIED HEALTH BENEFITS OF THE USDA NUTRITION STANDARDS JUSTIFY REAUTHORIZATION AND INCREASED FUNDING FOR SCHOOL MEAL REIMBURSEMENT, Harvard Journal on Legislation, Winter, 2016, 53 Harv. J. on Legis. 387]

The National School Lunch Program (“NSLP”) and School Breakfast Program (“SBP”) are important federal initiatives to help fight child hunger and improve child nutrition in the United States. n1 Through these programs, the federal government reimburses part or all of school meals provided to students, so long as the meals comply with federal standards. n2 In 2010, Congress required the U.S. Department of Agriculture (“USDA”) to issue nutrition standards for NSLP and SBP meals to improve their nutritional quality by bringing them in line with the Dietary Guidelines for Americans n3 (“Dietary Guidelines”) and recent scientific recommendations. n4 The USDA promulgated final standards in 2012 requiring numerous nutritional improvements in school meals, such as increased amounts of fresh fruits and vegetables in school lunches and afterschool snack programs. n5 The USDA claims that “the new standards align school meals with the latest nutrition science and the real world circumstances of America’s schools” and that “these responsible reforms do what’s right for children’s health in a way that’s achievable in schools across the Nation.” n6 In the context of the 2015 reauthorization of the NSLP and SBP, a key question is whether the USDA’s nutrition standards are in fact “achievable” in American schools. Critics assert that, despite the health benefits of improved school meals, the increased expense imposed on participating [*389] schools is too great. They argue that the USDA could have and should have altered its nutrition standards to accommodate increased school expenses, and that Congress should rectify the mistake by lowering the nutritional requirements of the standards. n7 Yet, as this Note demonstrates, the burden placed on schools is cost-justified. In promulgating the nutrition standards, the USDA quantified the increased costs of healthier food products served, labor for on-site preparation, and numerous administrative cost burdens that schools, localities, and states would have to bear. n8 However, the USDA’s estimates failed to adequately quantify the benefits to schoolchildren and public health more broadly. Because these benefits were never expressly accounted for, the final nutrition standards have been left open to unjustified attacks and legislative rework based on concerns for the overall cost of the improved nutritional requirements. By rectifying the lack of express benefit-analysis in the nutrition standards, this Note demonstrates that the benefits of the current nutrition standards far outweigh the costs, and that the USDA and Congress should resist efforts to roll them back. Indeed, to serve its goal of improving the health of schoolchildren–while also providing a market for American farmers–this Note argues that Congress should go further in allaying the cost of school meals by increasing federal funding.

Equal protection Aff – Overturn Rodriguez?

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Finally, a discussion of school finance must acknowledge the role of courts. Since the 1960s, 46 states have been embroiled in some type of school funding litigation (Dinan, 2009). These lawsuits center on the adequacy (not enough funding allocated by the state) and/ or equity (funding distributed inequitably across the state) of school funding and have occurred in three phases. Dinan (2009) found that until 1973, litigation generally first took the form of equity suits based in federal equal protection claims. This ended in 1973 with the Supreme Court’s rejection of a federal equal protection suit (San Antonio Independent School District v. Rodriguez). From 1973 to 1988, plaintiffs had only mixed success with equity suits based on state equal protection clauses. Recent plaintiffs have had more success with adequacy challenges based on state constitution education clauses (Dinan, 2009). Rippner, Jennifer A.. The American Education Policy Landscape (p. 95). Taylor and Francis. Kindle Edition.

Educational commons — not neoliberal aff

The United States federal government should provide an educational commons, in elementary and secondary education, that emphasizes participatory democracy, education for full development, equitably funded free public education and education as a tool for liberation.

Only the federal government can stop the onslaught of market forces on schools

Sundquist 17 – Professor of Law and Director of Faculty Research and Scholarship @ Albany Law School (Christian, “Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act”; Winter; Accessed through Hein Online)//pk


The lofty social justice goals of both Brown v. Board of Education and the ESEA became perverted in time, as the substantive values informing education federalism shifted from promoting equality through a race and class-regarding use of public funds to enhancing the private market aspects of public education in order to promote consumer choice, competition, and accountability. The changed view of the appropriate federal role in education was influenced by a reversion to poverty and discrimination “neutral” rationalizations of social inequality. Educational inequality along the lines of race and class was once again justified on the grounds of either cultural difference, market outcomes, or both.

As to the former, conservative legislators and sociologists “argued that disadvantaged students suffered from a ‘culture of poverty’ and that they could only succeed if they were taught middle-class values.” 102 New York Congressperson Daniel Patrick Moynihan, for example, published a report on “The Negro Family” the same year the ESEA was enacted which argued that the federal government should deemphasize the issue of racism and discrimination in its social policy. 103 The basis for the report’s finding was the dubious conclusion that African-American inequality was “capable of perpetuating itself without assistance from the white world” and “[a]t the heart of the deterioration of the fabric of Negro society is the deterioration of the Negro family.” 104 A few short years later, Congressperson Moynihan urged President Nixon that “the time may have come when the issue of race could benefit from a period of ‘benign neglect”‘ as the “Subject” of race “had been too much talked about.”105 “Culture of Poverty” theories soon came into sociological vogue,106 which were cited by legislators as grounds to deemphasize the federal role in eliminating social and racial inequality.1 07

  1. The Market Model of Public Education

The more significant resistance to educational equality came in the form of “freedom of choice” and “school choice” policies designed to limit desegregation via the race-neutral artifices of “individual freedom” and “consumer preference.”10 8 It should not be surprising that “‘freedom-of choice’ plans in education became a euphemism for resurgent racial segregation.”10 9 As Professor Martha Minow recounts, “school choice policies emerged shortly after the Supreme Court’s 1954 and 1955 decisions in Brown as a form of white southerners’ resistance to court-ordered desegregation.” 110 Indeed, classic-market economist Milton Friedman published his seminal report advocating school choice and “voucher” reform immediately after (and, arguably, in reaction to) the Brown decisions.1 1 In addition to promoting freedom of choice policies to prevent desegregation of public schools, many Southern states also resisted Brown by creating private schools of choice (also known as segregation academies) to facilitate white flight from desegregating public schools. 112

Educational inequality, according to choice proponents, owes its legacy not to systemic racism or poverty, but rather to distortions in the market caused by governmental intervention (such as Brown and the ESEA).113 Under this viewpoint, education policy should strive to promote competition and consumer choice in order to create an efficient marketplace of schools. 114 The school choice movement thus has long been closely associated with, and informed by, privatization reform initiatives. 115

The allure of the school choice movement lies in its simplicity. Educational inequality is reduced to a matter of distorted market functions, which can be alleviated through deregulation and the restoration of competition and choice. The fault of disparate educational outcomes lies not in complex systems of poverty and racial discrimination, under the choice viewpoint, but rather a mistaken view of the appropriate state role in establishing education policy. As former Assistant Secretary of Education Diane Ravitch explains:

There is something comforting about the belief that the invisible hand of the market, as Adam Smith called it, will bring improvements through some unknown force. In education, this .belief in market forces lets us ordinary mortals off the hook.. .One need not know anything about children or education. The lure of the market is the idea that freedom from government regulation is a solution all by itself.116

The “comfort” of the choice movement lies in the luxury of rationalizing the existence of inequality without the need to interrogate existing class and racial privilege.11 7 Acknowledging the existence of privilege leads to cognitive dissonance for the privilege-holder, and “[t]he potential psychic damage . . . forces most to ignore and suppress alternative explanations for their status that depart from the assumption of naturalness and neutrality.” 118 The evolution of “choice” and “competition” reform narratives can be traced in part to this psychological desire to normalize inequality by either ignoring or failing to fully appreciate the role that poverty and racial bias play in perpetuating educational disparities.’1 9 The use of “federalism” to mediate this classic American dilemma (between democracy and inequality) has significantly impacted modern educational policy since Brown and the original ESEA.1 20 Both the No Child Left Behind Act of 2001 (NCLB) and the Race to the Top Act of 2009 (RTT) reforms encourage inter-school competition by promoting parental choice while measuring school success through accountability standards, which are often developed by private entrepreneurs. 121 The two acts “preserved testing, accountability and choice at the center of the federal agenda” while “open[ing] the door to huge entrepreneurial opportunities” funded by federal dollars for private tutoring and testing services.


The NCLB and RTT rest upon two bedrock principles: choice and accountability. NCLB provided specifically for school choice in allowing that “[p]arents of students in Title I schools identified for school improvement, corrective action, or restructuring will have the option to transfer to another public school in the district not in school improvement.”1 23 As such, NCLB hoped to promote inter-school competition as a method to develop markets within school districts. One assumption underlying NCLB, therefore, is that parents and students would act as rational actors in exercising such choice so that schools would have a “substantial incentive... to improve.” 124 The Department of Education touted NCLB as stimulating educational innovation and progress through the promotion of: “Systems are often resistant to change no matter how good the intentions of those who lead them. Competition can be the stimulus a bureaucracy needs in order to change. For that reason, the market competition and choice administration seeks to increase parental options and influence.” 125

Accountability standards were also incorporated into NCLB, in part to support consumer choice and the conditions for market competition. Parental choice under NCLB is only triggered once a school is deemed to be “failing” under its accountability provisions. The designation of a school as failing not only allows students to enroll in a different school, but also pressures the school into converting into a privately-run charter school or ceding control to a private management company. 126 These two “principles of high-stakes accountability and school choice plans of NCLB have been at the center of the modern conservative movement’s education reform plan” to redefine the federal role in public education.

The competitive federalist nature of NCLB and RTT was left largely unchanged by the revisions made by ESSA in December 2015. ESSA continues NCLB’s focus on creating competitive education markets, implementing high-stakes testing, deregulation, and expanding consumer choice for parents. 128 The most significant changes implemented by ESSA-enhanced state and local control of accountability and testing systems,129 expanded charter school funding, 130 increased consumer choice, 131 and deregulated professional standards for teachersl 3 2 — preserve rather than transcend the neoliberal legacy of NCLB and RTT.

Liberal and conservative pundits have hailed the ESSA for “returning control to states and local districts” of the accountability methods used to evaluate school and student performance. 133 Under the ESSA, states can choose to either adopt test-based accountability plans already approved by the federal government (such as the Common Core) or develop alternative accountability standards. 134 It nonetheless remains unclear whether states will invest the significant time and money involved in developing alternative accountability standards, when such plans remain subject to approval by the federal Department of Education.135 In any event, ESSA appears to be a mere rebranding of the NCLB/RTT framework ven as it relates to the modified accountability provisions. Prior to the passage of the ESSA, an astounding forty-two states (as well as the District of Columbia) had already been granted waivers by the Department of Education from the stringent federal accountability measures “in exchange for states’ commitment to ‘setting their own higher, more honest standards for student success.”‘ 136 As such, the shift of power contemplated by the ESSA merely seems to formalize what had become standard practice under NCLB and RTT.

The ESSA also continues the focus of NCLB and RTT on deregulating public education through the expansion of both charter schools 137 and exemptions from university-based teacher preparation programs. 1 38 In particular, Title II of the ESSA allows states to authorize non-university administered teacher preparation academies to prepare teachers for high poverty schools. 139 Such schools are then exempted from the “unnecessary restrictions on the methods the academy will use to train prospective teacher[s],” such as “advanced degrees,” specific “undergraduate coursework,” “the number of course credits,” or “obtaining accreditation.” 140 The deregulated provisions of the ESSA that lessen the standards states use to authorize new teachers in high-poverty schools appear to “have been primarily written to support entrepreneurial programs like those funded by venture philanthropists.” 14 1

The ESSA thus represents a political rebranding of the old NCLB and RTT regime in that it maintains the former’s focus on promoting competition, accountability, deregulation, and standardized testing, while shifting responsibility for overseeing certain measures to the states.1 42

  1. The Failings of Choice, Competition, and Market-Based Education Reforms

In this milieu, the original purpose of the ESEA and Brown (and of the appropriate federal role in education) has become lost. Rather than utilizing federal policy and funding to combat the true roots of educational disparity-poverty and racial discrimination-the federal role has shifted under the market model to conceal these roots. The belief has become that “effective teaching” and a business-model of public education is all that is needed to overcome generational poverty and persistent racial discrimination. 14 3 Yet, it has become abundantly clear that the market strivings of federal education policy have forsaken the original promise of social equality embodied by Brown and the ESEA.

Our history demonstrates that school choice policies tend to develop as a tool to undermine Brown desegregation efforts as part of a larger effort to maintain racial inequality. While often utilizing race-neutral language such as “parental choice” and “individual freedom,” modern choice policy “ha[s] the potential to perpetuate racial hierarchies” as parents make private decisions to self-segregate their children. 144 The equity rationale of Brown and the original vision of the ESEA are simply incompatible with the market rationale of current education policy:

[It] is apparent that two distinctly different ideologies motivated the Brown decision and NCLB. For Brown a separate education could never be equal, and affirmative racial integration was necessary to provide every child with a quality education. Conversely, under NCLB the ideologies of high-stakes accountability and a market-driven approach [assume] that a separate education can be equal. 145

The modeling of education policy around principles of consumer choice, competition, and market- accountability have increased educational disparities along class and race lines. 1 4 6 Since the adoption of NCLB and RTT, our public schools have become increasingly segregated by race. 147 There is little reason to believe that rates of school segregation will decrease because of the passage of the ESSA, especially in light of its continued expansion of charter schools, deregulation, and parental choice. The choice provisions of the ESSA (and formerly of NCLB and RTT) are fueling the re-segregation of our public schools primarily because the current market-model of education policy incorrectly assumes parents (that is, namely consumers) to be rational actors. A core principle of the market-model is that choice will foster competition amongst public schools, which then will force individual schools to improve the quality of education provided to students. 148 However, it has become increasingly clear that parents tend to choose schools “with a racial profile matching their own.” 1 4 9 Indeed, there is evidence that the current school-choice provisions have so upset the racial balance of certain public schools as to run afoul of Brown Court desegregation orders. 150

Parents selecting a school for their children are also influenced by “non-racial” factors not adequately captured by the market model of competition-including geography, inadequate resources, lack of motivation, and inadequate information regarding other options. 15 1 The application of market principles to public education has failed not only due to an incorrect assumption of rational acting by consumers, but because of significant informational asymmetries between schools and parents. 152

The reality of choice is that it is a racialized system that reproduces the inequity it is supposed to address. Effective responses to persistent segregation and concentrated poverty cannot be furnished by purely individualistic solutions such as letting students choose their school one by one. The Supreme Court considered this approach after Brown and rejected it as inadequate. 155

The allure of choice as a salve for racial and social inequality in education is understandable, yet misguided. Martha Minow has written extensively on the “seductive” nature of choice, noting that choice can “imply that freedom and equality exist even when they are absent.”153 Professor Minow observes “that [b]y subordinating racial and other kinds of integration to school choice, contemporary schooling policies. . . expressly elevate private preferences” which tend to “reinforce or even worsen racial separation in American schools.” 15 4 Professor John A. Powell summarizes the failings of school choice as follows

The reality of choice is that it is a racialized system that reproduces the inequity it is supposed to address. Effective responses to persistent segregation and concentrated poverty cannot be furnished by purely individualistic solutions such as letting students choose their school one by one. The Supreme Court considered this approach after Brown and rejected it as inadequate. 155

The larger problem with the market-model of public education is that it serves to normalize continued educational inequality. The existing framework purports to provide students with an equal opportunity to pursue an education from competitive options. The occurrence of educational failures within such a “neutral” market of consumer preferences can then be interpreted as owing to poor choices or personal deficit under this perspective, thereby rationalizing the persistence of racial and social educational disparities.15 6 Diane Ravitch concluded as follows:

The testing, accountability and choice strategies offer the illusion of change while changing nothing. They mask the inequity and injustice that are now so apparent in our social order. They do nothing to alter the status quo. They preserve the status quo. They are the status quo.

15 7

School choice and accountability reforms, as noted, have had relatively little impact on student performance. 15 8 The primary determinants of student success, rather, have been racial bias, family background, and socioeconomic status. 15 9 The focus on “neoliberal solutions like NCLB, with its emphasis on efficiency and individualism, divert attention away from the social issues that need to be solved if we are to really improve education outcomes.”160 As a result, current education policy “both directly and indirectly exacerbates racial, ethnic and economic inequality in society.”161 Our current approach to public education has grossly departed from the ideals and principles of racial and class equality that shaped the federal education role during the post-Brown and ESEA era. The substantive dimension of education federalism has thus wrongly shifted from ensuring racial equality in a democratic society to ensuring consumer choice in a competitive marketplace.

The recent enactment of the ESSA creates the possibility of further exacerbating race and class-based educational inequalities. While retaining the core principles of NCLB, the ESSA diminishes federal oversight of school performance while further expanding both consumer choice and deregulated teacher preparation programs. As Marian Wright Edelman observes, such a “gutting [of] a strong federal role in [an] education policy designed to protect [African-American and Latino] children . .. jeopardiz[es] their opportunity for a fair and adequate education.”162 Civil rights groups, including the Southern Poverty Law Center and the New York chapter of the NAACP, fear that decreased “federal oversight of education will be much too weak to ensure [equal] education for Black and Latino students” in many states.163 The prominent education and urban planning researcher Gary Orfield further opines that with the ESSA “we’re going to get something that’s much worse [than NCLB]-a lot of federal money going out for almost no leverage for any national purpose.” 64 Education advocate Kalmann Hettlemann similarly views the ESSA as “a massive retreat from our national interest and commitment to equal educational opportunity, especially for poor and minority children.”165

The education federalism forged by the original ESEA and Brown envisioned federal regulation of public education to the extent necessary to promote social equality and racial integration.16 6 Such robust federal oversight was necessary in light of the historical practice of states to undermine educational opportunity for poor and minority children.16 7 The devolution of the federal role in public education following the ESSA coupled with its continued emphasis on standardized testing, choice, and market competition-threatens to increase race- and class-based disparities in education.

  1. Positive Federalism and Public Education Policy

The divining of the appropriate federal role in public education has historically been rooted in a procedural vision of the negative limits of federal action. The discussion of education federalism, therefore, has largely focused on the degree to which federal law should influence or supersede traditional state “police powers.” n168 While negative branches of federalism often purport to balance federal and state interests in an ideologically neutral fashion, it is clear that the federalism debate is also imbued with particular substantive conceptions of the content and preferred outcomes of permissible federal actions.

The original allocation of “police powers” to states – which established local responsibility for the health, education, and safety of residents – has long been derided as a constitutional compromise to allow states to preserve slavery and prevent racial progress. n169 The invocation of “states’ rights” following the Brown desegregation decree is just one example of negative federalism being utilized as a tool to resist social progress. n170 Indeed, as Professor Lisa Miller notes, “federalism in the United States was forged in part as a mechanism for accommodating slavery, and it facilitated resistance to racial progress for blacks long after the Civil [*382] War.” n171 Pre-war education federalism thus often strove to forestall federal intervention in state systems of racial control in an effort to preserve educational segregation and inequality. n172

The passage of the ESEA, in light of this history, was monumentally important in shifting the substantive dimension of education federalism. No longer was education federalism centered on preserving states’ rights to segregate disproportionately funded public schools. Rather, education federalism in the post-Brown and ESEA era sought to utilize the federal government’s block grant powers to rectify racial and class imbalances in public education. n173 The substantive dimension of post-Brown education federalism, as embodied by the original vision of the ESEA, justifies federal involvement in public education when necessary to combat both poverty and racial discrimination. n174

The substantive dimension of modern education federalism, however, has been radically transformed through the ESSA, NCLB, and RTT policies. Federal activism in public schools is no longer justified to the extent it reduces class and racial disparities in education, but rather to the extent it promotes competition, choice, and accountability. n175 The embrace of competitive federalism by modern education policy is misplaced from a historical perspective, and represents an unconstitutional abrogation of the federal government’s responsibility to eliminate class and racial disparities in education. The promise of Brown and of the original purpose of the ESEA cannot be realized without a reconceptualization of education federalism as requiring positive race-and class-regarding actions by the federal government.

  1. A Positive Conception of Education Federalism

While negative visions of federalism long have been wielded as a tool to de-legitimize federal efforts to combat racial and class inequality, n176 federalism is more appropriately understood as empowering the federal [*383] government to directly respond to social inequality. n177 Federalism should be positively conceived of as “a device for realizing the concepts of decency and fairness which are among the fundamental principles of liberty and justice lying at the base of all our civil and political institutions,” n178 rather than a negative limit on the government’s ability to advance liberty.

Traditional theories of negative federalism are roundly criticized as being incoherent, indeterminate, and rights regressive. n179 The failings of negative conceptions of federalism can be traced in part to unstable assumptions about the policy values that should inform federalism theory. Traditional theories of federalism recite a number of values that are purportedly advanced by restricting federal action: the reduction of “federal tyranny,” enhancing state experimentation, improving the democratic process, advancing “liberty,” and restoring the “original meaning” of the Constitution. n180 And yet, scholars have demonstrated that limiting federal action does little to advance such policy values, n181 and instead exacerbates social inequality. n182 The question then becomes – what constitutional values should inform education federalism policy?

I posit, perhaps unremarkably, that the first principles of our Constitution are social equality and democratic representation. n183 A theory of federalism should respect these overarching aspirations of our Constitution, while recognizing that positive federal action has historically been necessary to both reduce inequality and enhance the democratic process. n184 Federalism exists for this normative purpose: to ensure equality of the people, which at times requires positive intervention from the federal government. A positive conception of federalism, then, acknowledges [*384] the constitutional obligation of the federal government to promote social justice and democratic fairness. n185

  1. A Positively Federalist View for Future Reauthorizations of the ESEA

A positive conception of federalism is particularly justified when attempting to divine the appropriate federal role in public education. As discussed previously, the primary constitutional basis for federal involvement in public education is premised on the government’s responsibility to take positive action to remedy racial and class inequalities. n186 The Brown constitutional doctrine and the “War on Poverty” driven by the ESEA forged an understanding of education federalism rooted in positive social justice. It is particularly appropriate today that we restore this fundamental understanding of education federalism, given evidence of increasing racial disparities in public education and the noted failures of modern education federalism policy.

The federal guarantee of equal public education is critically important to the functioning of our democracy. As a public good, education helps our society develop those “fundamental values necessary to the transmission of our democratic society.” n187 The provision of an equitable public education, devoid of identity-based disparities, is critical to provide children with “the knowledge needed to understand and participate effectively in the democratic process and to cultivate among children respect for and the ability to interact with others as beings of inherently equal moral worth.” n188 Indeed, both classic and contemporary constitutional scholars argue that equal public education should be regarded as “a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights.” n189 The need, then, for a robust application of positive education federalism principles in this context cannot be stronger.

[*385] The purpose of this Article is not to provide specific curricular recommendations to guide the future of public education. n190 Rather, this Article has attempted to define a new vision of positive education federalism – one that is rooted in a historical understanding of the constitutional obligation of the federal government to shape education policy goals in a manner that responds to unrelenting racial and class disparities. A few core principles regarding the substantive dimension of positive education federalism can be gleaned from this discussion:

  1. First Principle: Providing an equal public education is a federal responsibility that cannot be transferred to or assumed by private market forces.

The overarching conclusion of this Article is that ESSA, NCLB, and RTT unconstitutionally transfer federal responsibility for positively eliminating racial and class inequality in public education to private market forces under the auspices of competitive federalism. n191 This reading of the federal role in public education is ahistorical and undermines the core principles of equality informing Brown-era education federalism. n192

  1. Second Principle: Positive federal action is justifiable in public education when necessary to rectify historical patterns of racial and class oppression.

It follows from the first principle that positive federal intervention in public education is justified when employed to directly respond to our unbroken history of racial and class disparities in educational outcomes. The original vision of the ESEA and Brown anticipated future positive efforts by the federal government to wield its block grant powers to actively dismantle old systems of oppression. n193 The current statutory framework has abandoned this vision of equality in its misguided pursuit to harness the market forces of consumer choice, accountability, and competition to limit the federal role in education. n194

  1. Third Principle: Our education federalism must acknowledge that racial discrimination and class oppression are the true roots of current educational disparities.

Third, it is of the utmost importance that our education federalism fully acknowledge the historical and continuing causes of education disparities: racial discrimination and poverty. n195 The race and class-based roots of educational inequality are well-known and well-documented, and our education federalism can no longer hide behind the veil of ignorance provided by ESSA, NCLB, and RTT. n196 Far from acknowledging the reality of educational disparities, our current competitive federalist framework for education actively attempts to conceal these roots, with the specious promise that the free market principles of choice, accountability, and competition will eventually equalize education. n197 Modeling our education federalism around such race and class “neutral” market principles have led to a deepening of the crisis while allowing society to ignore the ways in which privilege shapes outcomes. n198

  1. Fourth Principle: Our education federalism must strive to promote racial and class integration.

Finally, any equality-based vision of education federalism must promote the social integration of our public schools. The current competitive conception of education policy has failed those “faces at the bottom of [the] well” n199 and led to a rampant racial re-segregation of our schools. n200 This failure evinces a lack of faith and duty in fulfilling the original integrationist goals of Brown and the ESEA. Therefore, a positive theory of education federalism must promote federal efforts to integrate our public schools.

These core principles, on a theory of positive education federalism, can be used to inform future reauthorizations of the ESEA. While this Article does not attempt to advance specific changes in statutory law, it has attempted to redefine the substantive dimension of our education federalism in a manner that restores our faith in Brown, the ESEA, and the promise of racial and class equality.


The neoliberal vision of education federalism embodied by ESSA, NCLB, and RTT has improperly shifted the federal government’s role in public education from one of promoting desegregation and social equality to one of promoting market efficiency through the artifices of competition, choice, and accountability. This deflection of moral responsibility for class and racial inequality is tied to a larger process of post-racialism and “post-oppression,” whereby seemingly “neutral” market solutions are seen as sufficient to promote equality in a liberal democracy. There is, after all, a comforting allure to believing that social inequality is non-systemic, and thus avoiding the cognitive dissonance (and structural upheaval) that comes from confronting our continuing legacy of racial and class privilege.

Allowing the “invisible hand” of the market to sort educational outcomes under the guise of “competition,” “choice,” and “accountability,” however, has led to a deepening of the crisis confronting our public schools. The federal role in public education has been reduced to incentivizing reform centered around market principles, rather than promoting desegregation and the equality envisioned by Brown and the original ESEA. “Our federalism” demands more than this. The substantive dimension of education federalism, as constitutionalized by Brown and framed by the original ESEA, must be restored in our public education policy. The adoption of a positive conception of the federal role in public education to frame future policy discussions can put us once again on the path towards achieving equality of educational outcome for all students.

Civil Rights Aff?

Mark Walsh, November 23, 2016, Education Week, Civil Rights Groups Wary on Federal Enforcement Stance Under Trump,

The prospect that the incoming Trump administration could scale back the federal role in civil rights enforcement in education has many rights advocates deeply worried after nearly eight years of high-profile attention to such issues under President Barack Obama. The Obama administration has emphasized such concerns as addressing racial disparities in school discipline and special education; ensuring that transgender students may use the restrooms and locker rooms corresponding to their gender identity; and combating sexual violence in higher education. Those have been among the top priorities of the U.S. Department of Education’s office for civil rights. Meanwhile, in the U.S. Department of Justice, the educational opportunities section of the civil rights division has reinvigorated desegregation enforcement at a time when many schools have become more racially isolated, and it has pressed cases on alleged religious discrimination, sex bias, and discrimination against English-language learners. Shortly after President-elect Donald Trump’s victory, however, Gerard Robinson, a member of the Trump presidential-transition team responsible for K-12 education—speaking for himself and not on behalf of any organization—suggested to Education Week that the new administration could shift the Education Department’s office for civil rights back to its less activist stance under Presidents George W. Bush and George H.W. Bush. He did not give details. But Robinson also stressed that he expects the OCR to ensure that students’ rights are not “trampled on.” So far, some leading civil rights organizations are not optimistic.

The federal government should protect civil rights in education

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The federal government should ensure that no student is denied the right to equal educational opportunity based solely on race, ethnicity, gender, disability, or other protected status. This role is rooted in the Equal Protection Clause, as interpreted by the Supreme Court in Brown v. Board. Although the Court has continued to stop short of calling education a right under the federal Constitution, it argued in Brown that education is so important to functioning in a democracy that “where the state has undertaken to provide it, [education] is a right which must be made available to all on equal terms.” The Office of Civil Rights (OCR) within the USDOE plays an important role in this effort to ensure that students’ civil rights are protected in the provision of education.

Enforced desegregation through disproportionate impact

Federally enforced regulations are key to desegregation — government agencies have superior expertise, information gathering, compliance monitoring, and planning

Landsberg, 16 — Professor Emeritus, Pacific McGeorge School of Law (Brian K., Fall 2016, Duke Journal of Constitutional Law & Public Policy, “LEE V. MACON COUNTY BOARD OF EDUCATION: THE POSSIBILITIES OF FEDERAL ENFORCEMENT OF EQUAL EDUCATIONAL OPPORTUNITY,” 12 Duke J. Const. Law & Pub. Pol’y 1, Lexis-Nexis Academic, JMP) ***Note – HEW = United States Department of Health, Education and Welfare


  1. The Significance of Lee v. Macon County Board of Education
  2. Stretching Boundaries of Enforcement

The story of the statewide expansion of Lee v. Macon County Board of Education took place in a much different era than today’s. The Warren Court was a far cry from the Roberts Court, and back then the nation thought of school segregation as a regional problem that needed a federal solution. The segregation in Alabama had been required by law, and Brown v. Board of Education required that it end. George Wallace and Austin Meadows engaged in flagrant interference with desegregation. Lee nonetheless instructs us about the potential for federal enforcement of the right to equal educational opportunity today. Although Lee was a private suit, the government played several important roles that the NAACP Legal Defense Fund lawyers (LDF), acting alone, would have had difficulty performing. In the early stages of the case the government stood as an enforcer, ready to deploy whatever law enforcement assets might be required. In the statewide phase, the government put together a large trial team to discover evidence and used HEW experts to show how state surveys could be used to integrate rather than perpetuate segregation. DOJ monitored compliance and participated in countless hearings regarding individual school systems, and HEW, now DOE, developed desegregation plans where local school systems failed to produce acceptable plans. Although the government and the civil rights groups did not always agree on the remedy, overall the groups were glad to have the government on their side.

[*37] The United States’ participation in the case preceded the Civil Rights Act of 1964. The district court and DOJ found a non-statutory basis for this, enlarging the scope of the well accepted custom of government acting as amicus curiae. The Civil Rights Act for the first time gave statutory authority to the Attorney General to bring school desegregation suits, but only upon receiving a complaint from a parent that his or her child was denied equal protection of the laws by a school board. n205 Lee enabled DOJ to expand the scope of its work to avoid the necessity of bringing suits school district by school district. n206 The presence of the United States defeated any possibility that Anthony Lee’s graduation from high school in 1964 might call into question the continued justiciability of the case. n207 Lee became the precedent for later DOJ statewide school desegregation cases. n208

Lee also demonstrates how HEW/DOE can provide the courts with expertise needed to resolve public education issues. Not only did the initial decree draw heavily on the guidelines, but the court also relied on HEW. HEW monitored compliance and provided alternative plans for school systems where freedom of choice did not bring about the required level of desegregation. DOJ and HEW were able to work together, despite some differences of opinion. n209 The DOJ lawyers became lawyers not only on behalf of the government as Plaintiff but also on behalf of HEW when its officials were joined as Defendants.

In short, Lee stretched the boundaries of the possible. The flexibility of equity allowed the court to do many things: join the United States as an amicus with the rights of a party, join state Defendants who interfered with desegregation, shape a remedy that initially required the State Superintendent of Education to act as an agent of the court, bring in additional parties as needed, ship the cases of individual school systems to other judicial districts, and to retain jurisdiction until the dual school system had been eradicated. In essence, the court’s [*38] enlistment of the Department of Justice enabled it to expand the case from one involving one small rural school system, to all school systems in Alabama, not already under court order.

  1. Development of Systemic Relief

Lee is notable for the expansiveness of the relief. In Title IV of the Civil Rights Act of 1964, Congress for the first time recognized the need for federal enforcement of Brown. George Wallace’s predecessor as Governor, John Patterson, had followed a strategy of emphasizing local rather than state responsibility for schools, as a delaying tactic requiring plaintiffs to sue one school district at a time, n210 -and Title IV seemed to envision a similar approach for DOJ suits. Lee opened the possibility of suing one state at a time instead of one school district. Though brought as a private suit, Lee likely would not have grown into a statewide suit without the Department of Justice. The private Plaintiffs’ attorney, Fred Gray, twice sought statewide relief. In 1964, the Department of Justice did not support that part of Gray’s prayer for relief, and it was not granted. In 1966, the court sought the view of the United States. The government poured significant resources into the case, resources that the private Plaintiffs lacked, and it filed a brief strongly supporting statewide relief. The court could rest assured that if it granted the statewide relief, the government would enforce the order. n211 It is also true that Title VI meant that the resources and fund-cutoff powers of HEW could be deployed.

Historically, support for racial equality has waxed and waned in each branch. Congress forced Reconstruction on a reluctant President. n212 After the Hayes-Tilden Compromise, the three branches all supported racial segregation, with occasional departures by the courts and the executive. n213 This lasted until the late 1940’s, when the [*39] Court and the President began to chip away at segregation in housing, n214 the armed forces, n215 railroads, n216 and higher education. n217 Congress refused to confront the issue until 1964, when it came into accord with the other two branches. Presidential support for school desegregation fluctuated from the 1970s, depending on which party held the presidency. n218 The court’s support for desegregation gradually eroded; today, even voluntary measures to ameliorate racial separation are subject to strict judicial scrutiny. n219 When all three branches agreed on the validity of segregation, practices in the Southern states effectively separated the races. When all three branches supported desegregation, public schools in the South became the least segregated in the country. Today, the Court opposes race conscious efforts to minimize racial isolation; the executive branch mildly supports those efforts; Congress is silent on the subject; no one is vigorously pushing it.

In Lee v. Macon County Board of Education, we may trace the gradual growth of understanding of how to desegregate a school system. n220 When the case was first decided in 1963, the Alabama Pupil Placement Law essentially placed on black students the burden of seeking to transfer to a white school. n221 This was replaced by freedom of choice, and finally by the Green v. County School Board requirement that the desegregation plan result in no black schools or white schools, but just schools. n222 In addition to these student assignment developments, came growing recognition of the importance of desegregated faculty, classrooms, transportation, athletic programs, and other extracurricular activities. n223 Then came recognition that [*40] curriculum should be multicultural, n224 and that student discipline must be fairly applied. n225 These lessons emerged over decades of fleshing out the meaning of Brown v. Board of Education. Brown II had emphasized the need to “desegregate” and to “admit to public schools on a racially non-discriminatory basis,” n226 but only gradually did the systemic nature of school segregation become apparent. Indeed, not until 1968 would the Supreme Court refer to disestablishment of the racially “dual school system.” n227 Perhaps the most dramatic example of the dual school system was the evidence regarding the state school surveys, which clearly established that every school district in Alabama was operating two school systems, one for each race. The school surveys showed that it was not enough to order admission to schools on a non-racial basis. Because the racial segregation was systemic, the violation could be cured only by systemic relief.

  1. Desegregation and the Future of Equal Educational Opportunity

What does this mean for the future of equal educational opportunity? The state of federal constitutional law seems stuck in an unhelpful place. As a matter of policy, desegregation remains as a key to finally eradicating the effects of the past racial caste system. Equal opportunity, regardless of race, requires equal education. Where racial isolation persists, unequal education usually results. The most reliable path to equal education is desegregation. Although research suggests that desegregation improves the education of African-Americans without degrading the education of other students, n228 the Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1, has placed significant barriers to elimination of racial [*41] isolation n229 The executive branch has pushed back, providing a road map for school districts to navigate through the difficult course set by that case, which disapproved most race-based programs for combatting racial isolation in the schools. n230 Civil rights advocates need to develop a multi-pronged strategy.

Strategy should be tied to the objective, which is minimizing racial isolation. While the Supreme Court has narrowed the paths to equal educational opportunity, certain paths remain. One path is enforcement of the Fourteenth Amendment. However, the Court has also interpreted the equal protection clause as restricting race-based student assignments in unitary school system. It has carried that notion so far in the Louisville case, that the school system was required to dismantle the system that had been put in place as a remedy for the dual school system. At the statutory level, the Court has construed Title VI as forbidding only deliberate race-based discrimination and not practices that have an adverse racially disparate impact. n231 However, that limitation does not extend to the regulatory level. As in Lee, achieving the objective may require going beyond existing precedent.

There are several possible approaches to achieving equal educational opportunity. The most promising approach combines public and private advocacy.

  1. Racially neutral approaches

While the federal government could provide funding, accompanied by performance standards, to improve schools, that effort thus far has failed to erase racial disparities. n232 School systems could take steps on their own to end isolation of students in poor socio-economic status. Congress could use its spending power to encourage school systems to minimize isolation of students from lower economic strata, but will most likely continue to defer to the other branches. Advocates of eliminating racial isolation could wait for changing housing patterns to bring about desegregation. This could sentence children to racial [*42] isolation for years to come, because “even if school segregation declines at the same rate as residential segregation from this point forward (by no means a certainty), the resulting progress will be frustratingly slow.” n233

  1. Race-based approaches; attacks on racial discrimination

As Justice Blackmun pointed out in his separate opinion in Regents of the University of California v. Bakke, “In order to get beyond racism, we must first take account of race. There is no other way.” n234 School systems could make limited use of race, as outlined by Justice Kennedy’s concurrence in Seattle. Whether such efforts would be upheld will depend on a closely divided Supreme Court taking an expansive view of permissible measures. As discussed below, a more promising approach would be for the federal government to apply disparate impact regulations of DOE to student assignment. n235 Just as the Supreme Court in Brown liberated courts from Plessy, the executive branch could liberate the courts to confront school board practices that result in racial isolation.

Going a step further, the federal government could apply the disparate impact regulations to challenge a state’s maintenance of virtually one-race school districts. n236 It may be possible in some instances to desegregate schools by bringing housing discrimination cases. In the Carter Administration the DOJ Civil Rights Division merged the section responsible for enforcing the fair housing act with the section responsible for school desegregation enforcement, because of the inter-relationship of housing and schools. The merged section brought one case that joined housing and education. n237 It may sometimes be possible for plaintiffs to rely on state rather than federal law. The Lawyers Committee for Civil Rights Under Law has recently [*43] filed a case in North Carolina state court “to challenge the maintenance of three racially identifiable and inequitably resourced school districts in Halifax County, North Carolina,” based on the right to education under the state constitution. n238 An adverse decision is on appeal. n239

It is also still possible to litigate under the Fourteenth Amendment where it is possible to prove that racial isolation results from deliberate race-based government decisions. Such showings were made in the past, and it seems likely that deliberate discrimination still explains some racial isolation. These cases require considerable resources to develop the facts, resources that DOJ could deploy again as it did in the past, in Yonkers, Pasadena, South Holland, Illinois, and Indianapolis. n240

Finally, litigants could seek to overturn some or all of the Supreme Court cases that stopped desegregation dead in its tracks. This last option probably depends upon a track record of failure of the other options. Just as Plessy’s overthrow depended upon the accretion of case law and the development of facts, so also the holdings in cases like Seattle and Dowell could be eroded over time, concurrent with change in the composition of the Supreme Court. n241

Private litigation in federal court to promote racial desegregation would most likely have to be based on constitutional violations, n242 a resource-intensive strategy that deserves more attention. n243 This paper addresses the role of the federal government, which may rely on federal regulations in addition to enforcing constitutional and statutory bans on race discrimination in public education.


  1. Role of the federal government

In the 1950s and early 1960s, school desegregation confronted hostile state governments and an indifferent Congress. n244 The Department of Justice sued hundreds of racially segregated school districts in the 1960s and 1970s. n245 Since the 1980s DOJ has changed its focus; most, if not all, of its activity regarding racial segregation in public education takes place in pending cases, including Lee v. Macon Cty. Bd. of Educ., rather than in new cases. n246 New desegregation cases ended when President Carter left office over thirty years ago; from President Reagan to President Obama, the work of the Civil Rights Division’s Educational Opportunities Section has focused on disability and sex discrimination, race discrimination in student discipline, and occasional segregation issues in pending cases. n247 A speech drafted for the first Associate Attorney General in the Clinton Administration to give to a branch of the NAACP LDF paints the picture:

The Administration will continue to revive the Educational Opportunities Section, allowing it to monitor more closely the progress of school desegregation. The Department will pay closer attention to determinations that a school district has achieved unitary status, and in increased coordination with the Office of Civil Rights at the Department of Education, we will aggressively challenge those determinations with which we disagree. School districts will only be able to escape court supervision when they have demonstrated that vestiges of prior discrimination have been eliminated in all critical areas of their schools’ operation. n248

Conspicuously absent is any mention of bringing new school desegregation cases. DOJ filed briefs in Seattle and Louisville arguing that the desegregation plans in those cases were unconstitutional quota [*45] plans, while seeming to anticipate Justice Kennedy’s concurring thoughts that strict scrutiny need not be fatal in fact. n249

Today, the challenge may seem greater than it was in the 1960s and 70s: a Supreme Court hostile to race-based remedies, an indifferent Congress, and passive executive. The executive branch under the Obama administration sympathizes with the need for educational equality, including the need to minimize racial isolation. It continues to litigate a few ancient desegregation cases, and it has released guidelines for voluntary desegregation of public schools within the narrow framework of the Seattle and Louisville cases. n250 The NAACP LDF, which created the road to Brown and was at the forefront of implementation of Brown, now lists its educational priorities as: “increase equity in education by increasing graduation rates (K-12 and college) among African-Americans, foster adoption of racially equitable and research-based approaches to school discipline.” n251 LDF did release a manual in 2008 explaining how school districts could voluntarily integrate despite the Seattle and Louisville cases. n252

School boards are unlikely to pursue voluntary race-based steps in today’s climate; their lawyers will point to the Supreme Court cases and advise that race-based steps are risky. Moreover, history has shown that entrenched privilege finds it difficult to take voluntary steps to widen opportunity. Future steps, whether in litigation or voluntary, must be grounded on facts and legal theory showing government complicity in racial separation in public schools, just as the attack on Plessy was based on facts and legal theory showing the impossibility of running schools that were both separate and equal. These are arguments that civil rights groups could be addressing to all three branches of the federal government. They could push school boards to test the limits of the Seattle decision, looking to Justice Kennedy’s concurrence for [*46] guidance. n253 However, if they want to pursue desegregation, they will need to consider the litigation and fund cut-off options, if all else fails. n254

The DOJ and DOE in the 1960s and 1970s followed a proactive approach, without waiting for parents to complain that their children’s school system was unlawfully segregated. After Congress rejected Attorney General authority to bring equal protection cases in 1957 and 1960, DOJ sued segregated school districts receiving federal impact aid based on the number of children who were dependents of federal employees. n255 Although Title IV of the Civil Rights Act of 1964 imposed a complaint prerequisite to DOJ suits, the DOJ of the 1970s relied on state-wide litigation to finesse the need to proceed school district by school district. Similarly, HEW’s enforcement of Title VI did not rely on complaints from parents. Moreover, DOJ and HEW collaborated on a joint strategy. Undoubtedly, the priority that these agencies gave to school desegregation came in part from pressure from civil rights organizations. While the politics of race are beyond the scope of this article, it is worth noting that at a recent conference at Duke Law School the former director of the NAACP Legal Defense Fund expressed the opinion that it would be futile to ask DOJ and HEW to pursue a disparate impact test in school desegregation suits, as suggested below. n256

Lee can be looked to as an example of a productive relationship between the private civil rights bar and the federal government, which found avenues of federal action to end segregation statewide, even when there was no precedent for this. This shows that each branch of government can play a role in eliminating the racial caste system and its effects, sometimes acting independently and sometimes in concert with other branches. It also shows how digging deep into the facts to prove what may seem obvious can concretize a violation in a way that generalities, even if they are obvious, cannot. If racial discrimination explains the persistence of racial isolation it should be possible, though undoubtedly difficult, to prove. n257

[*47] In the innovative spirit of Lee, the U.S. should consider the suggestion of Kimberly Jenkins Robinson that DOE apply its disparate impact regulations to practices that result in racial isolation in schools. n258 Her suggestion finds support in the opinion of Justice Powell, concurring in part in Keyes v. School District No. 1, Denver, Colorado: n259

I concur in the Court’s position that the public school authorities are the responsible agency of the State, and that, if the affirmative duty doctrine is sound constitutional law for Charlotte, it is equally so for Denver. I would not, however, perpetuate the de jure/de facto distinction, nor would I leave to petitioners the initial tortuous effort of identifying “segregative acts” and deducing “segregative intent.” I would hold, quite simply, that, where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities … are sufficiently responsible to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a genuinely integrated school system.

While the Court rejected Powell’s formulation of school district obligations under the equal protection clause, DOE has room to adopt Powell’s formulation under Title VI. The Court has assumed that DOE may impose disparate impact regulations on recipients of federal financial assistance. n260 Where schools are racially isolated, it is always possible to point to school board policies that cause the racial isolation: policies relating to school construction, grade structure, and student assignment. While the Seattle and Louisville cases, fairly read, would prevent DOE from requiring racial balance, they do not prevent DOE from adopting an approach like Justice Powell’s: imposing an affirmative obligation on school systems to take steps to avoid racial isolation.

Applying disparate impact analysis in light of Justice Powell’s suggestion above, DOE could create a presumption against a school system’s choice to assign students in a way that would lead to racial [*48] isolation, where non-isolating steps are available. This choice should be allowed only if the school system can show the educational need for it. Justice Kennedy’s concurring opinion in the Seattle and Louisville cases can be read to allow school systems (and, by extension, DOE) to ensure “all people have equal opportunity regardless of their race.” n261 The Court endorsed that Kennedy concurring opinion in a fair housing case this past term. n262 Justice Kennedy’s majority opinion in that case graphically portrays the stakes: “The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that “our Nation is moving toward two societies, one black, one white – separate and un-equal.'”

The Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974 (EEOA) support the power of DOE to require more than the Constitution requires. Although Title IV restricts the Attorney General’s power to require “assignment of students to public schools in order to overcome racial imbalance” in suits to enforce the Fourteenth Amendment, Title VI only requires that there be one uniform policy for de jure segregation throughout the United States and one uniform policy for de facto segregation. n263 In any event, the effects test would not require assignment of students to overcome racial imbalance, but would simply require the school district to explain why it adopted policies that led to the imbalance.

The 1974 statute was an anti-busing law. It constitutes Congress’s first and only effort to define equal educational opportunity without regard to race, color, sex, or national origin. While the EEOA forbids race-based assignment of students to schools that result in increased segregation, it does not forbid consideration of race to reduce racial isolation. n264 Arguably the EEOA may apply to DOE action under Title VI, though that is not completely clear. The EEOA defines both equal educational opportunity and denial of equal protection, and it provides that in devising a remedy for either, “a court, department, or agency of the United States shall seek or impose only such remedies as are essential to correct particular denials of equal educational opportunity [*49] or equal protection of the laws.” n265 DOE is a department of the United States, but other language in the EEOA suggests that it is a self-contained law, with little overlap with Title VI. The law declares the neighborhood is the appropriate basis for determining school assignment, and says that the purpose of the EEOA is “to specify appropriate remedies for the orderly removal of the vestiges of the dual school system.” n266 The findings and remedial sections stress the harm of excessive busing and limit the amount of busing that can be required. n267

The DOE regulation provides that a recipient of federal financial assistance may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.” The regulation includes as an example the determination of where to build a school: the recipient “may not make selections with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.” n268 In addition, “even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served.” n269 However, it is not clear that DOE still pursues cases of racial isolation in assignment to school. The DOE website on its race discrimination policies includes this Q and A:

  1. What types of cases does OCR handle?


  1. OCR handles cases of discrimination in issues such as discipline, racial harassment, and denial of language services to national origin minority students who are English language learners. n270

A Clinton Administration statement on Title VI mainly discusses in-school discrimination issues. Its treatment of student assignment is limited to this:

“School districts may not segregate students on the basis of race, color, or national origin in assigning students to schools. In some areas, the population distribution of a school district enrolling large numbers of minority and nonminority students may result in schools with substantially disproportionate enrollments of students of one race. Although school districts must ensure that students are not assigned on the basis of race, color, or national origin, the law does not require that each school within a district have a racially balanced student population.” n271

An OCR report issued in May 2016 reflects that race discrimination accounts for only 21% of the complaints received. n272 The section of the Report that addresses compliance with Title VI does not list a single desegregation investigation. Instead the Report discusses actions OCR has taken respecting racial harassment, access to courses, discriminatory discipline, retaliation, and the education of English learners. n273 These are the topics that yielded the most complaints received. OCR’s staff has been cut in half since 1980, while the number of complaints has increased twenty-fold, so that it may now be impractical for OCR to investigate racial segregation even though it has the statistical evidence that segregation persists. n274

The working assumption of this paper is that the social science is correct in finding that education is better where schools are racially integrated. If so, the current passive and reactive stance of civil rights organizations and the federal executive will not bring about equal educational opportunity. Still, a mixture of private and public advocacy could lead to change. First, the creation of voluntary guidelines by the [*51] government and the LDF will have little if any effect unless it is accompanied by grass roots pressure on local school boards. Civil rights organizations will need to choose strategically which school boards are most likely to respond to citizen pressure to do more. Second, civil rights organizations will need to pressure DOE and DOJ to enforce the disparate impact standard where school board policies lead to racial isolation. They cannot realistically expect the federal government to make school desegregation a priority if the civil rights community is viewed as placing little importance on desegregation. Third, DOE could issue guidance explaining that the disparate impact regulation incorporates Justice Powell’s approach in Keyes.

One obvious flaw with reliance on the executive branch is that its position depends on a mixture of law and policy. Starting with President Reagan and continuing under Presidents Bush, the executive branch has rigidly opposed race based measures to combat racial isolation. For example, the Solicitor General’s brief in the Seattle case, while seeming to acknowledge the desirability of lessening isolation of minority students, argued that the Seattle plan failed to satisfy the strict scrutiny standard that applies to governmental decisions based on race. n275 However, under President Obama the executive once again supports race based measures to combat racial isolation in public schools. The joint DOJ-DOE statement, reads the Seattle decision as still allowing some room for race-based decisions. n276

Some of the most extreme racial isolation occurs in large urban school districts. For example, in San Antonio Independent School District less than 2% of the students are white. n277 The existence of large school districts with miniscule white enrollments will not initially be cured by this approach, given the Supreme Court’s resistance to requiring suburban districts to participate in city desegregation plans n278 The logic of Lee v. Macon County Board of Education, though, could in time lead to extension of the disparate impact test across school district lines, because it is state law that establishes school district lines.



DOE’s focus these days has been on improving the No Child Left Behind Law, successor to the 1965 Elementary and Secondary Education Act. n279 The Secretary of Education, while noting progress in equal opportunity under NCLB, also has pointed out remaining problems in the education of black and Hispanic students, such as drop-out rates and discipline rates. His speech does not mention segregation, but presents this startling fact: “a third of black students attend high schools that don’t even offer calculus.” n280 As the LDF’s attack on segregation in Brown showed, separate schools are not equal schools; to deny black students the right to take calculus is to deny them an equal education. In January 1951, an African American mother asked the Macon County School Superintendent to either provide her son at the black high school in Tuskegee a geometry course or allow him to take that one course at the nearby all-white Tuskegee High School. n281 That request was an early salvo in the effort of Macon County African-Americans to get an equal education. It seems apparent that there is unlikely to be equal educational opportunity so long as there are racially isolated schools in multi-racial areas.

Owen Fiss saw in Lee v. Macon County Board of Education “something as ingenious, as path-breaking, as innovative as something like Marbury v. Madison.” n282 Supporters of equal educational opportunity need to find an equally innovative path forward today. The carrot of federal funding has failed to bring equality. It is time for civil rights organizations and DOJ and DOE to renew legal efforts to overcome racial isolation in the schools.

Transgendered Students protections Aff?

Logan Casey, Brookings, March 1, 2017, After Trump Rescinds Title IX Guidance, What’s Next for Transgender Students’ Rights?

Last week, the Trump administration’s departments of Justice and Education formally rescinded guidance issued by the Obama administration on the treatment of transgender students and their rights to access sex-segregated spaces, including bathrooms and locker rooms, in public schools. The previous guidance stated plainly that Title IX, the 1972 law that prohibits sex discrimination in federally funded education, also protects transgender students. The guidance also directed school districts to, among other protections, allow transgender students to use school facilities in accordance with their gender identity. By withdrawing this guidance, the Trump administration has declared its belief that this question–how school districts should treat transgender students, and what spaces they should be allowed to access–be addressed at the state or school district level.Trump’s rescission of the earlier guidance creates confusion rather than clarity about the enforcement of transgender students’ rights under Title IX. The potential implications of this decision include a shifting patchwork of protections for transgender students in some school districts or states but not in others, and an increasingly critical Supreme Court case (Gloucester County School Board v. G.G.) over the meaning of sex discrimination in modern America.

[Note: Useful opportunity to discuss “guidance” v. “regulation.” Is there a difference? Are they the same? If they are different, where does the Guidance Counterplan work?

Thomas Hehir is a Professor of Practice at the Harvard Graduate School of Education and a former special education teacher and administrator, December 14, 2016, Memo: Special Education, —

The Department of Education recently promulgated guidance concerning IEPs that emphasized the importance of integration. Though this is a step forward, policy guidance does not have the force of law. The new administration should move forward with rulemaking proposing the following regulations]

Race K Aff?

Christopher Emdin, education professor, Columbia Teacher’s College, 2016, For White Folks Who Teach in the Hood… and the Rest of Y’all Too: Reality Pedagogy and Urban Education

Indigenous and diasporic scholars have consistently argued that the ways we view those we consider “indigenous” must move beyond prescribed definitions issuing from colonial and imperial constructs and toward a more inclusive definition that considers how people categorize themselves based on their shared experiences with imperialism and colonialism in their varied forms. 11 This definition allows us to see how the indigenous exist across diverse places yet remain connected. For example, the Aboriginal, the Maori, and the Indigenous American experience colonization and/ or imperialism in different ways across different contexts but each group underperforms when compared to their white counterparts. 12 These same achievement gaps exist between neoindigenous urban youth of color and their counterparts from majority-white schools with students of middle to high socioeconomic status. Given the extended analogies between the indigenous and neoindigenous described above, and the ways that I have both experientially and theoretically showcased the connections between the two, it is clear that many teachers in urban schools today share the misguided, though caring, impulse that maintained poor schooling at the Carlisle School. The work for white folks who teach in urban schools, then, is to unpack their privileges and excavate the institutional, societal, and personal histories they bring with them when they come to the hood. In this work, the term white folks is an obvious racial classification, but it also identifies a group that is associated with power and the use of power to disempower others. My use of the term white folks draws from the short story collection The Ways of White Folks, by Langston Hughes. 13 These stories revolve around interactions between white and black people that can only be described as unfortunate cultural clashes. These clashes occur when the world of one group does not seamlessly merge with that of another group because of a fundamental difference in the ways they are positioned in the world. In each story, the black characters interact with white characters, ranging from the innocuous to the outrightly racist, with negative outcomes for the black characters. Hughes was deliberate in not painting all white people with a broad brush. He even has one of his characters mention “the ways of white folks, I mean some white folks.” Despite this effort, Hughes constructs a context where the societally sanctioned power that white people have over black people results in drama, and some humor, but overall outcomes that are largely unfavorable for the black characters. Drawing from Hughes’s framing, I am not painting all white teachers as being the same. In fact, there are some people of color who engage in what Hughes would call “the ways of white folks.” However, there are power dynamics, personal histories, and cultural clashes stemming from whiteness and all it encompasses that work against young people of color in traditional urban classrooms. This book highlights them, provides a framework for looking at them, and offers ways to address them in the course of improving the education of urban youth of color.


The work to become truly effective educators in urban schools requires a new approach to teaching that embraces the complexity of place, space, and their collective impact on the psyche of urban youth. This approach is necessary whether we are talking about preservice educators about to embark on their first year of teaching, those who have been in the field for a while, or the millions of people who have been drawn into the dysfunctional web of urban education as a parent, policymaker, or concerned citizen. Addressing the issues that plague urban education requires a true vision that begins with seeing students in the same way they see themselves. Urban youth are typically well aware of the loss, pain, and injustice they experience, but are ill equipped for helping each other through the work of navigating who they truly are and who they are expected to be in a particular place. At seventeen years old, Youth Poet Laureate of the City of Oakland, California, Obasi Davis wrote the poem “Bored in 1st Period.” Obasi, who is now a college student in a predominantly white institution of higher education, wrote this piece as a high school student seeing peers who are rendered invisible by their school and teachers even as he could see their true selves in plain view. In the excerpts of the poem reprinted below, the reader can see his deep analysis of his peers and the difference between who they are in the classroom (place) and who they truly are within a shared emotional space. BORED IN 1ST PERIOD Asia comes from repossessed dreams and nightmares that last as long as the absence of her father I think that’s the reason her clothes are always so Boa Constricting any amount of longing she might have felt for him to me Daniel spent his childhood running from Richmond bullets and the ghost of his dad Daniel is a thug He brags about seeing grown men ground to dust under heavy boots for their iPhones and their wallets He rocks a long gold chain, a grill, and two diamond earrings with every outfit Daniel only cares about money but I can see genius bursting from his pained skin It is the deepest black, pure like Earth’s blood but for some reason, most seem to see it as an impurity. He paints himself a gangster to cover what they call ugly Jonathan chooses to come to class once a month or whenever we have a sub he shoots dice in the back corner of the classroom with Duma and Daniel When I ask them why, they tell me money is everything. It seems they are the products of a broken society and a torn home My home is not broken My parents are divorced but they get along I haven’t known death to come close, and violence hasn’t found me vulnerable And then, while sitting in 1st period pretending to read Macbeth, it clicked for me My classmates and I are different In the words of Dr. King our elbows are together yet our hearts are apart.

I’m not asking for some all holy savior to come and coddle us into equality I’m asking for you to understand our struggles and our hardships To understand that if we have to learn with each other we should also learn about each other so we can bring each other up What Obasi describes in this poem is a reality that many who interact with students on a daily basis will never see. He describes students in a classroom (place) who exist in worlds/ spaces wholly distinct from the classroom. He shows us that what educators and the world at large see when looking at students is often a distortion of their authentic selves. Furthermore, he alludes to the major premise of this work— that what lies beyond what we see are deep stories, complex connections, and realities that factors like race, class, power, and the beliefs/ presuppositions educators hold inhibit them from seeing. Teaching to who students are requires a recognition of their realities. John Searle defines reality as an agreed-upon outlook on or about social life based on how it is perceived or created by a group of people. He also sees reality as “facts relative to a system of values that we hold.” 4 This definition provides a simple yet necessary framework for understanding youth realities— because it moves educators to focus on the ways that youth see the world and their position in it based on the facts, laws, rules, and principles that govern the places they are from and the consequent spaces they inhabit. This provides the educator with a very different vantage point for seeing them and gives information about place while providing insight into emotional spaceIn order to fully understand youth realities, and make some sense of the powerful connection between youth realities, place, and space, I argue that educators need a new lens and vocabulary. This is why I argue for making connections between urban youth, or the neoindigenous, and the indigenous. While the word neoindigeneity may appear to the reader as yet another loaded academic term that has no significance in real urban classrooms, it is far from that. I use this term throughout this work as a way to make sense of the realities of the urban youth experience. Framing urban youth as neoindigenous, and understanding that the urban youth experience is deeply connected to the indigenous experience, provides teachers with a very different worldview when working with youth. From this new vantage point, teachers can see, access, and utilize tools for teaching urban youth. An understanding of neoindigineity allows educators to go beyond what they physically see when working with urban youth, and attend to the relationship between place and space. For the indigenous, the relationship to emotional space is a constitutive part of their existence. For these populations, when one is hurt, healing requires addressing both physical wounds and the “soul wounds.” Healing the physical wound occurs in a certain place, but healing the soul wound requires being in a space. The psychologist Eduardo Duran states that counseling Native Americans and other indigenous people requires entering into the spaces in which they reside, because as Mark Findlay identifies, there are understandings that cannot be visible within the institutions (places) of the power wielder. 5 This type of healing work is necessary for the neoindigenous as well. Situations such as the suspension of the student who believed she was prepared for class and always on time result in soul wounds that are bigger than the disciplinary issue itself and could be avoided if the teacher validated the student’s emotion by allowing her to articulate her feelings. Recognizing the neoindigeneity of youth requires acknowledgement of the soul wounds that teaching practices inflict upon them. If we are truly interested in transforming schools and meeting the needs of urban youth of color who are the most disenfranchised within them, educators must create safe and trusting environments that are respectful of students’ culture. Teaching the neoindigenous requires recognition of the spaces in which they reside, and an understanding of how to see, enter into, and draw from these spaces. In the chapters that follow, I describe how educators may engage in this healing process through an approach to teaching I call reality pedagogy.

Reality pedagogy is an approach to teaching and learning that has a primary goal of meeting each student on his or her own cultural and emotional turf. It focuses on making the local experiences of the student visible and creating contexts where there is a role reversal of sorts that positions the student as the expert in his or her own teaching and learning, and the teacher as the learner. It posits that while the teacher is the person charged with delivering the content, the student is the person who shapes how best to teach that content. Together, the teacher and students co-construct the classroom space. Reality pedagogy allows for youth to reveal how and where teaching and learning practices have wounded them. The approach works toward making students wholly visible to each other and to the teacher and focuses on open discourse about where students are academically, psychologically, and emotionally. In a reality-pedagogy-based classroom, every individual is perceived as having a distinct perspective and is given the opportunity to express that in the classroom. There is no grand narrative. Instead of seeing the students as equal to their cultural identity, a reality pedagogue sees students as individuals who are influenced by their cultural identity. This means that the teacher does not see his or her classroom as a group of African American, Latino, or poor students and therefore does not make assumptions about their interests based on those preconceptions. Instead, the teacher begins from an understanding of the students as unique individuals and then develops approaches to teaching and learning that work for those individuals. This approach acknowledges the preconceptions, guilt, and biases a white teacher in a predominantly African American or Latino urban school may bring to the classroom because it considers the history of teaching and learning in contexts like the Carlisle School and consciously avoids replicating them. Emdin, Christopher. For White Folks Who Teach in the Hood… and the Rest of Y’all Too: Reality Pedagogy and Urban Education (p. 28). Beacon Press. Kindle Edition.

Vouchers – Choice/Charters Aff

The 74 Million, March 16, 2017, Trump Calls for New School Choice Initiatives, Big Cuts to K-12 Budget,

President Donald Trump’s first budget proposal includes a huge increase for school choice while making big cuts to the Education Department’s overall budget. The budget includes increases for the charter school fund, a new program for private school choice, and incentives for states to make sure some Title I dollars for low-income students follow them as they move among schools. The $1.4 billion in new dollars for school choice eventually will ramp up to $20 billion, the budget says, matching the amount Trump pledged to spend on school choice during his campaign. “We will give our children the right to attend the school of their choice, one where they will be taught to love our country and its values,” Trump pledged at a rally in Nashville Wednesday evening. The department overall would see cuts of $9 billion, which amounts to 13 percent of its “discretionary” budget (the part not including mandatory higher-education spending)…. The budget proposal, for fiscal year 2018, is an opening salvo in what will be a protracted negotiation with Congress. There has long been bipartisan support on the Hill for the charter school program, but many legislators will be deeply skeptical of the private school choice and Title I initiatives, and history shows proposals to make deep cuts to the Education Department haven’t gone over well in the House or Senate.

The federal government can support a meaningful expansion of school choice through funding formulas and competitive grant programs that make it possible for states to expand school choice options

Blagg & Chingos, 2017, March 30, Kristin & Matthew, Brookings Economics, Who could benefit from choice? Mapping access to public and private schools

School choice is at the center of the Trump administration’s education policy efforts, with initial proposals calling for additional funding for charters and other forms of public school choice, as well as the creation of a new federal private school choice program. Some advocates have raised concerns about whether expanding school choice will help disadvantaged families, especially in rural areas and other places where there may not be many schools from which to choose. Concerns about potential inequities in the availability of different schools to different families, based in large part on geography, are plausible but have not been subject to systematic empirical analysis. In this report, we begin to fill this gap by using nationwide data on the locations of public and private elementary schools to calculate the percent of American families that could potentially gain access to new school options under different national school choice policies. This baseline analysis of school locations does not consider important issues such as school capacity, existing choice programs, or possible changes in the supply of different kinds of schools that might result from choice policies. We estimate that private school choice and intradistrict choice (allowing families to choose any traditional public school in their district) have the largest potential to expand the sets of schools to which families have access, with more than 80 percent of families having at least one of these “choice” schools within five miles of home. Charters and interdistrict choice (allowing families to choose a traditional public school outside their district) still would provide potential new options within five miles for roughly half of families. Families with household incomes below the poverty line are more likely to have an intradistrict choice school or charter school nearby than families above the poverty line. We find few differences in proximity to private schools based on poverty. However, interdistrict choice appears likely to provide more new choices to families not in poverty. We find the largest differences in proximity to schools of choice between families in rural and urban areas. At least 60 percent of rural families are within ten miles of intradistrict choice, interdistrict choice, and private schools, but urban families are more likely to have these choices close by. The distance families are able and willing to travel may be more important for expanding school choice than the type of school the policy provides access to. For example, by increasing “as the crow flies” travel distance from one mile to five miles, we more than double the number of families who could potentially take advantage of a private school or an intradistrict choice policy. We also find that the potential availability of choice varies widely across states. For example, 95 percent of California and Massachusetts families live within five miles of a private school, compared to less than 60 percent of Montana and West Virginia families. We conclude that federal policymakers seeking to expand school choice should focus on policies that can function well in different contexts across the U.S.. For example, some states may want to focus on securing additional funding to improve equity of access to high-quality schools by providing better transportation options. Others may want to focus on expanding their charter or private school sectors, or on fostering more choice within the traditional public sector. A natural federal role is to provide resources to support such varied efforts through formula funding or competitive grant programs.

Title I portability for school choice

Koteskey 15 (Tyler, B.A. from the University of California, Los Angeles in Political Science and History, Education Policy Analyst at the Reason Foundation, 7/09/15 accessed 6/26/17, “Title I funding portability is key to ESEA reform”,

This Tuesday, the Senate began floor debate on reauthorizing the Elementary and Secondary Education Act (ESEA)—a centerpiece of federal education policy dating back to Lyndon Johnson’s “war on poverty.” The ESEA has not been renewed since its expiration in 2007, so the upcoming debate holds key opportunities to improve our federal education appropriation system and ensure that it does the most to help vulnerable students. One of the best ways to improve the ESEA this week is through Title I reform. Title I of the ESEA (the Act’s largest funding program) gives out grants for low-income students, and is designed to close achievement gaps between them and their wealthier peers. Sen. Tim Scott (R-S.C.) is expected to reintroduce an amendment to allow Title I dollars to follow individual students to the private or public school of their choice. Given the counterproductive funding requirements currently tied to Title I grants, Scott’s amendment holds promise. It would reduce state and district-level administrative burdens, fix school-funding inequities caused by Title I regulations, and create competitive incentives for schools to better serve their kids. The current Title I program is broken. A meta-analysis of 17 federal studies on its effectiveness indicated only a modest overall impact, while another by Harvard University concluded the program had failed in its original mission of closing achievements gaps between disadvantaged and wealthy students. Examining what schools have to go through to get Title I funding, it is easy to see why. The program’s litany of regulations forces the administrative staff of states and districts to spend resources proving compliance with requirements on how they spend their grants to avoid losing eligibility. This wastes time and money that could be used to allocate the funding in ways that best serves their schools’ individual needs. The “supplement not supplant” and “comparability” provisions, discussed at length in the Reason Foundation’s Title I reform analysis, restricts states’ abilities to combine these dollars with pre-existing state funding for low-income students to create comprehensive programs. And because Title I allocates grants to schools rather than individual students, it actually promotes per-student funding inequalities between schools, especially at larger schools with high numbers but low-percentages of low-income kids. Scott’s Title I portability amendment has the potential to change all of this. Tying Title I funds to eligible students relieves administrative burdens by removing the need to justify expenditures. It also ensures that every school gets the same amount of per-student grants for every low-income child they educate. By making these funds portable, wherever these students enroll, low-income pupils will be able to expand their educational options. They will benefit from administrators with new incentives to attract and retain them to get access to the dollars they bring. Portable Title I funding could even be combined with expanding state voucher, tax-credit scholarship programs, and education savings accounts, with proven positive effects on achievement for disadvantaged students to give even more families access to better options. Scott’s Title I amendment should be a key piece of the ESEA reauthorization. It reduces administrative costs, increases funding equality, gives parents more power, and gives administrators an incentive to provide the best education possible to underserved kids. If we really care about giving our most disadvantaged the best shot in life, this is a big part of how to do it.

Military school choice

Cowen and Lingenfelter, 17 A former U.S. Navy officer, Cowen is executive director of the Collaborative for Student Success. Lingenfelter, who served in the U.S. Marine Corps, is senior vice president of state and federal programs at the National Math + Science Initiative. (JIM COWEN AND MARCUS S. LINGENFELTER “The stealth factor in military readiness” accessed online 6/26/17

The backbone of the armed forces, the men and women who wear the uniform, are at risk of voting with their feet if the education of their children suffers because of their choice to serve the nation. Military readiness, a measure of the ability of a military unit to accomplish its mission, is closely watched by leaders. Readiness typically is a function of length of deployments and the frequency of successive deployments, and it can be exacerbated by equipment problems or lack of training. But it is also impacted by issues on the home front, such as the quality of education for military-connected children. At the root is something all American parents contend with: education standards that are inconsistent from school district to school district or state to state and that don’t properly prepare a child for career or college. What sets military families apart is that they are highly nomadic – Department of Defense dependents attend as many as nine schools during their K-12 years. What that means is more than one million military-connected children, most of whom attend public schools, are exposed to the vagaries of U.S. education at a rate far exceeding that of their civilian counterparts. The education of military children can suffer as students are regularly put at a disadvantage of being either ahead of or behind their peers. That academic disadvantage is having an impact on military readiness. Military families now make choices about whether to accept a particular duty station or, worse, even depart the armed forces based in part on the quality of the surrounding schools. A recent survey by the Military Times, a leading publication widely read by active duty and former U.S. personnel, puts a finer point on the connection between the K-12 education of military-connected children and readiness. Over one-third of respondents, 35 percent, said that dissatisfaction with a child’s education was or is “a significant factor” in deciding whether to continue military service. At the same time, 40 percent of respondents said that they have either declined or would decline a career-advancing job at a different installation to remain at their current military facility because of high performing schools. While making regular moves around the country is a staple of military life, the findings suggest that neither the armed forces nor local communities have cracked the code on ensuring smooth transitions for the military-connected kids. A whopping 70 percent of respondents said that regularly moving between states added challenges to their children’s education. The online survey of Military Times readers polled over 200 respondents, with representation from all U.S. military services; 78 percent of respondents have served 11 or more years in the armed forces, and nearly half – 48 percent—current serve on active duty. The survey took place from Jan. 12 – 24. U.S. military leaders recognize the readiness connection. Pentagon leaders last year unveiled a policy allowing personnel to remain longer at a particular duty station in exchange for extended service. The action was in response to complaints by military parents who are loathe to move if the next duty station has poorly performing schools. Similarly, the federal government recognizes that being in a mobile military family has the potential to pose significant threats to student achievement. The new K-12 federal education law, the Every Student Succeeds Act, created a newly-referenced demographic category — military-student identifier. For the first time, federal law requires states to identify military connected students and track their test scores, attendance and graduation rates. For Melissa Helmick, an Army spouse, the mobility of military life added a major stress unfamiliar to most Americans. “We moved every two to three years to a different part of the country or another continent,” said Helmick, a member of the education group Military Families for High Standards. “The pace presented challenges as my children navigated new school systems while, we hoped, gathering sufficient knowledge and ability to succeed in college.” Hope has its place, but it is an insufficient plan for the thousands of military families with children in the K-12 years. That’s the reason why school districts near military installations are teaming up with non-profits to give military-connected children a better chance at a quality public school education. One of our organizations, the National Math and Science Initiative, recently provided a $400,000 DoD-sponsored grant to the Knob Noster School District in central Missouri to dramatically expand Advanced Placement (AP) math, science and English course offerings and provide the necessary supports to ensure student and teacher success. The school district serves 1,600 students, two-thirds of whom have parents assigned to nearby Whiteman Air Force Base. What precipitated the grant was a push by military personnel with children. “We heard an outcry from military families,” said Superintendent Jerrod Wheeler. “They wanted more academic rigor and challenges for their children. So the grant will allow us to establish seven new AP courses that will benefit military-connected students, as well as the entire student body.” This type of grant-making for districts that serve military children is essential. It highlights that simply setting high standards is not enough. Districts, especially those with large numbers of military-connected students, must redouble efforts to provide teacher training and evidence-based student supports – ensuring that students are able to meet and even exceed those standards. The goal is two-fold: to fully prepare students for life after high school and demonstrate to military parents that their children are not being shortchanged academically by their continued service. Military readiness is a multi-faceted challenge. And the education of military-connected children plays a vital role. A former U.S. Navy officer, Cowen is executive director of the Collaborative for Student Success. Lingenfelter, who served in the U.S. Marine Corps, is senior vice president of state and federal programs at the National Math + Science Initiative.

Transparent charter school funding

Dynarksi 2010 -professor of public policy, education and economics at the University of Michigan, and co-director of the University’s Education Policy Initiative
Susan, Caroline Hoxby, Tom Loveless, Mark Schneider, Grover J. “Russ” Whitehurst, John Witte, and Michelle Croft, “Charter Schools: A report on Rethinking the Federal Role in Education,” Dec 16,

Recommendations for Federal Action

In order to inform future actions on charter schools by Congress and the administration, the Brown Center on Education Policy, operating with the advice of its Charter School Task Force, convened a day long advisory meeting of leading charter school researchers, practitioners, and policymakers to address the question of what the federal government should do or refrain from doing to support the growth of effective charter schools.

The purpose of the meeting was to develop and harvest a list of ideas and recommendations that might be useful for federal action. There was no effort or intent to develop consensus recommendations. Rather, each participant was asked to put forward one or more recommendations for comment and discussion by all the participants. The following is a categorized and annotated list of the recommendations that generated interest among the participants and appeared to be actionable at the federal level.

Data Collection and Use

One of the main themes of the advisory meeting was the challenge of obtaining and using charter school data to inform research, policy, practice, and parental choice. One of the forms of data that is difficult to obtain but would be particularly important for research, policy, and practice is lottery results at the level of individual students. To the extent that charters are oversubscribed and have to use lotteries to determine who is admitted, having those lottery results recorded in a state’s longitudinal education data system would allow many important questions to be addressed that are currently challenging. For example, with lottery results and records of student achievement in hand, charter school authorizers could avail themselves of a valid estimate of the impact of a charter school when carrying out their oversight and renewal obligations. Currently authorizers rarely have any data available on student achievement other than the average performance of students in a charter school on end-of-the-year state achievement tests. But as we described previously, charter schools differ among themselves and from traditional public schools in the population of students they serve. A charter school serving a suburban middle-class population very likely looks much better on end-of-the-year state assessments than a charter school serving a population of urban poor and minority families. But what appears to be better performance may reflect little more than the advantaged background of the students being served. The availability of lottery data would allow the effectiveness of each school to be evaluated relative to the other schools serving the same student population.

The availability and accessibility of lottery data in state longitudinal databases would also be a boon to research. Consider, for example, the questions about the effects of authorizers that we raised previously. Examining lottery-based student achievement outcomes by type of authorizer or type of authorizer practice could shed considerable light on which forms of authorizing have impacts on student achievement. Lottery data can also be useful for studying other differences in educational experience for the students selected for the charter schools compared to students not admitted.

Connected with the availability and accessibility of lottery data is the quality of the lottery itself. Allowing charter schools to design and carry out their own admission lotteries is a recipe for undermining random assignment, both through naïveté and self-interest. For example, researchers who have sought lottery data from charter schools have encountered schools that claimed they held a lottery but did not. Further, hidden within what seems to be a fair lottery can be a variety of special admissions decisions, for example the admission of children of staff, or children who for whatever reason were treated as exceptions by school officials.

Even in the case of fair lotteries, it may have been advantageous for a school to conduct a more sophisticated lottery than simply drawing names out of a hat. For example, a lottery might be stratified to assure geographic or demographic balance when the size of the overall pool of applicants and admissions slots is too small for the law of averages to create a high likelihood of such balance.

Flowing from these observations are the following recommendations for the federal government:

Fair and independent lotteries. Receipt of federal funds to support charter schools at the state and local level should be contingent upon charter schools being subject to lottery rules that require the design and implementation of lotteries by entities that are qualified to carry out the task, operate with clearly documented procedures, and are independent of the charter schools in which the lotteries are being conducted. One way to achieve this goal would be to require states seeking funding for charter schools to have established such rules as a precondition for application for funding.

Availability of lottery data. Student participation in lotteries for admissions to any public school and the results of such lotteries should be a required student data element in state or district longitudinal data systems supported with federal funds. Competition for future federal statewide longitudinal data system grants or use of Title I funding to support state administrative data systems could be contingent on this condition.

Use of lottery data for oversight. The use of lottery data by authorizers to carry out their oversight and renewal roles pertaining to the effectiveness of charter schools in raising student achievement should be encouraged. This goal could be achieved using the same contingent-funding mechanism described above, or could be pursued through guidelines and technical assistance in partnership with non-governmental organizations.

Use of lottery data for research. Since 2005, nearly every state in the nation and the District of Columbia has received a substantial federal grant through the Institute of Education Sciences within the U.S. Department of Education to develop a statewide longitudinal data system. A statutory requirement of these awards is that the resulting data systems be used to facilitate research to increase student achievement and close achievement gaps. Yet many states have made no provision for researcher access to their longitudinal data systems or have allowed access only to those with the persistence and skill to strike a deal with a responsible state official. One of the principal rationales for charter schools is for them to serve as engines of education innovation. It is difficult to identify and reap the rewards of innovation without a serious and sustained research presence. It is time for the federal government to insist that recipients of statewide longitudinal data system grants demonstrate that they have met their obligations to facilitate research.

Increasing data detail. All parties interested in identifying and scaling-up successful charter school practices would benefit from better information. Currently, most data elements that find their way into statewide longitudinal data systems are driven by federal reporting requirements under the Elementary and Secondary Education Act. Thus these data systems contain information on student test scores, student race, language, and disability status, student eligibility for free- and reduced-price lunch, and school and district identifiers. Important information is missing, including such things as curriculum in use, teacher characteristics, and as we have previously noted, lottery results. The federal government, working in collaboration with interested states and national charter school organizations, might generate a template for additional data elements that states or charter school authorizers could include in their routine data collections for their statewide longitudinal databases.

Information to Support Choice

Charter schools are by definition schools of choice. The promise of education choice includes improving quality and efficiency through competition among schools, enhancing opportunity for students of low-income families who may otherwise be trapped in ineffective schools, and spurring innovation. But the promise of choice in public education is constrained by the quality and timeliness of information on school performance that is available to parents.

Under current federal law, school districts are required to produce school report cards, but the information they include is incomplete and sometimes misleading. For example, the report cards include the percentage of students in a school who score proficient on state tests, which is strongly correlated with students’ family background, rather than student gains over the course of the year, which better reflect the performance of the school itself. Information about teacher turnover, parental satisfaction, and other important measures of school performance is not included.

In addition, school districts have demonstrated that they cannot be trusted to help parents choose schools based on school performance. As evidence, a federal study found that half of all districts required to offer school choice due to low performance did not notify parents of their right to choose a new school until after the school year had already started, and many used language that was too complicated for parents to understand. Choice cannot work if parents are blindfolded.[xvi]

The federal government has a role to play in providing parents with timely, transparent school data to support choice. This is particularly important for charter schools, which always require parental choice. Specific recommendations for federal action include:

Report measures of school popularity. Federal requirements for school report cards under the Elementary and Secondary Education Act should be revised to include information on popularity of schools as revealed through the number of applications for admission received by charter schools and other schools of choice.

We recognize that measures of school popularity derived from records of parental preferences expressed through applications for admission may sometimes distort the actual popularity of schools. Distortions arise through choice systems that encourage parents to game the system, for example by ranking their 3rd choice 1st because it has fewer applicants and thus offers a greater chance of admission through a lottery. Further, charter schools that cater to a community of interest that is sufficient to fill their slots may not want to engage in outreach or advertising because it would generate demand that they are not able to meet or interested in meeting. One reflection of this is the increasing prevalence of seats in all grades at popular charter elementary schools “selling out” through the lottery for admission to kindergarten. In other words, there is very low attrition in later grades of children admitted to kindergarten in these popular charter schools, meaning there is only a small chance of parents being able to laterally transfer their child into such schools from lower performing regular public schools.

The first of these distortions can be eliminated by designing choice systems such as those in New York City and Boston that are difficult to game. The second distortion can be addressed in two ways: Providing information on the number of applications and probability of admission by grade rather than simply in aggregate would reveal differences among schools that are most evident at the first point of entry. Finally, we believe that making information on popularity available to the public and thus part of an implicit accountability system would create incentives for schools that are secret jewels to engage in more outreach to a wider community, which would enhance functional choice for parents.

Report additional school performance data. School districts should be encouraged to report more data on school performance to parents than required under law (or the law should be broadened), with the new data elements being those that are empirically linked to improved student outcomes or valued by parents. Such data might include percentage of inexperienced teachers; truancy rates; availability of extracurricular activities, enrichment programs, and programs for children with special needs; and success of students at the next level of education, such as college enrollment rates for high schools. Encouragement to collect additional data could come in the form of developing and disseminating model reporting templates, recognizing exemplary information systems to support parental choice of schools, and providing support for research and development on the design of school choice information systems.


One barrier to charter expansion is the availability of physical space. As one advisory meeting participant highlighted, an enthusiastic educator eager to start a charter school may not have the funding or the expertise in construction to identify, rehabilitate, or build new facilities. Recommendations for federal involvement in facilities include:

Incentives for facilities access. Provide incentives to districts to allow charters to take advantage of surplus district facilities, for example by giving districts that do so priority preference points in federal discretionary grant competitions around school improvement and reform.

Federal loans. Provide federal loan guarantees for facilities or providing direct loans for facilities that take advantage of the low Treasury rates.

Single federal facilities program. Combine the existing federal facilities funding programs into a single coherent and efficient program.


Charter schools are often provided less funding per pupil for operating expenses than traditional public schools. Further, charter schools are frequently on different schedules for receiving funding compared to traditional public schools. For example, while the principal of a traditional public school typically knows well in advance of a school year what his or her budget will be, the leader of a charter school may not have a clarity on budget until after final enrollment figures are obtained, and may need to spend money on supplies, materials, and personnel before a state allocation of funds is in hand.

Current federal definitions of charter schools and educational programs also adversely affect charter school funding. For example, the longer school days adopted by many charter schools preclude these charters from qualifying for grants for after school programs under the 21st Century Community Learning Centers program because the definition of “after school” excludes a regular school day that lasts until late afternoon.

Another financial hurdle preventing the growth of highly effective charter schools is the financing of charter school authorization. Authorization is important as the authorizers determine which schools can open and provide oversight and accountability to ensure that poor performing charter schools are closed. The authorization process is a complex and expensive process and routinely underfunded.

Recommendations for federal action to create equitable public funding for charter schools financial inequities include:

Equivalent per pupil expenditures. Make Title I funding contingent on per pupil expenditures that are equivalent across all schools that are eligible for Title I funding, including charter schools.

Equivalent distribution timetable. Require that Title I funds be available for use by charter schools on the same timetable and with the same predictability as they are available for use by regular district schools.


Urban districts siphon Title I funding away from rural districts – reformulating Title I funding is key to closing the achievement gap

Lauren Camera and Lindsey Cook, 6/1/2016, US News and World Report, “Title I: Rich School Districts Get Millions Meant for Poor Kids,”, mm

The federal government operates a $14.5 billion program aimed at addressing this exact type of education funding inequity. It’s called Title I and it’s the pillar of the federal K-12 law known as the Elementary and Secondary Education Act.¶ Its purpose is to financially bolster school districts with large proportions of poor children, like Nottoway, so they have access to the same types of learning opportunities as wealthier children – children who often reside in more affluent districts and whose schools benefit from higher property taxes, among many other supports.¶ Nottoway receives about $775,000 annually from the federal program. And while it’s a welcome financial boost, every cent of it goes toward teacher salaries. There is nothing left over for professional development, curriculum support, or reading and math enrichment programs.¶ Meanwhile, Fairfax County, a leafy green suburb outside the nation’s capital that’s home to well-heeled government workers who helped it become the first county in the U.S. to reach a median household income of six figures, rakes in a whopping $20 million in Title I funding.¶ Fairfax is home to six of the top 10 high schools in Virginia, according to the U.S. News & World Report Best High Schools rankings and has a childhood poverty rate of just 8 percent.¶ “What bothers me about this is the rich get richer and the poor get poorer,” Grounard says. “It’s not the way it should be.”¶ This disparity is no fluke. Montgomery County Schools in Maryland, another elite suburb outside Washington, get nearly $26 million, despite a child poverty rate of 8.4 percent.¶ In fact, 20 percent of all Title I money for poor students – $2.6 billion – ends up in school districts with a higher proportion of wealthy families.¶ “It’s not fair,” Grounard says. “It’s appalling.”¶ Education has historically been a state and local district responsibility, and that goes for education funding as well.¶ While it varies from state to state, the lion’s share of support for schools – about 90 percent or $540 billion – is split between state and local governments. The federal government covers the rest, around 10 percent or $61 billion.¶ Like many of the laws passed during the height of the civil rights movement, the Elementary and Secondary Education Act sought to right decades of injustices largely rooted in unequal access to resources.¶ “As a son of a tenant farmer, I know that education is the only valid passport from poverty,” said President Lyndon B. Johnson in 1965, when he signed the law on the lawn in front of the one-room schoolhouse where he grew up in rural Texas.¶ “By passing this bill,” he continued, “we bridge the gap between helplessness and hope for more than 5 million educationally deprived children.”¶ Title I, the largest federal K-12 program, was how Johnson planned to do that. And since children from poor families often enter schools with a host of more-costly educational needs – from less exposure to reading and math to social, emotional and nutritional problems – it’s important the limited federal dollars are funneled to those who need them most, he reasoned.¶ How is it then that a school district like Nottoway, with a child poverty rate of 30 percent, receives so much less in federal support than Fairfax, one of the wealthiest districts in the country?¶ The answer lies in a complicated and outdated formula that’s used to distribute the Title I money – a formula that’s resulted in a series of significant funding discrepancies that can shortchange school districts with high concentrations of poverty, and benefit larger districts and big urban areas instead of poorer, rural districts and small cities.¶ “The places that are less poor are getting more money per poor kid,” says Nora Gordon, an associate professor at the McCourt School of Public Policy at Georgetown University who recently conducted an analysis of the Title I program for The Hamilton Project. “This is what happens when you have four different formulas that are very opaque and interact in different ways. You can have a lot of things in the law that seem like a good idea, but the net result is not a progressive one.”¶ In fact, the net result often means that in addition to the formula overlooking poor rural school districts, like Nottoway, it also shortchanges smaller high-poverty urban districts, like Flint, Michigan, which similarly faces challenges that affluent districts often don’t, such as dated facilities and teacher shortages.¶ Discrepancies are also visible in the amount of Title I money districts receive per poor child.¶ Virginia’s Mecklenburg County, for example, with a child poverty rate of 30 percent, receives $1,000 per poor student through Title I – the same amount as poor students in York County, where the child poverty rate is less than 6 percent.¶ To be sure, when policymakers crafted the current formula in 2001 as part of the No Child Left Behind Act, they did so intending to correct a formula that was directing even fewer dollars to concentrations of poor students than it does today – one that allowed Claiborne Parish in Louisiana, with a child poverty rate of 36 percent, to infamously use its Title I funds to build not one, but two Olympic-sized swimming pools for students.¶ But the formula has proven a sort of intractable beast – one that politicians and policymakers have had little success altering, despite its glaring shortcomings.¶ “In the context of deeply inadequate funding overall, formula changes are always seen as a zero sum game,” says Michael Dannenberg, director of strategic initiatives for policy at Education Reform Now. “More money for one district or state is coming at the expense of needy children in someone else’s district or state.”¶ “Politically it’s very hard,” he says. “It’s not impossible, but it’s very hard.”¶ Dannenberg would know. He first tried – and failed – to change the formula while working for former Sen. Clairborne Pell of Rhode Island. Years later, as a senior policy adviser for Sen. Edward Kennedy of Massachusetts, Dannenberg was part of the push to update the formula as part of No Child Left Behind. That version is still used today.¶ “To be clear, the wealthiest school districts are getting more per Title I child than high poverty school districts,” he says. “But the effort to improve targeting of Title I funding [to concentrations of poor students] was realized in part as a result of the No Child Left Behind Act. We had a degree of success, but not nearly as much as one would hope.”¶ Still, the changes weren’t insignificant.¶ For example, from 2002, when the law went into effect, through 2010, data show that roughly $6 billion in Title I funding was directed to high-poverty school districts that otherwise wouldn’t have been under the old formula, according to data from the Education Department.¶ “That’s a lot of bake sales,” says Dannenberg.¶ The formula, which is really four separate formulas rolled into one, is intended to send more money to poor districts. But it leaves much to be desired, many education policy experts say, and one of its biggest criticisms is that it spreads dollars too thin.¶ According to the Center for American Progress, a left-leaning think-tank based in Washington, 67 percent of schools get Title I funding despite the fact that only half have relatively high concentrations of poverty.¶ In Virginia alone, 134 districts get a slice of the Title I pie despite only 79 having higher than average levels of concentrated poverty. That’s because districts can tap the federal purse even if they serve only a handful of low-income students.¶ Falls Church City Public Schools, for example, another manicured Virginia district just outside of Washington, receives money for its 76 poor children even though the child-poverty rate there is less than 3 percent.¶ “Title I was never meant to be general education aid,” says Liz King, senior policy analyst and director of education policy at The Conference on Civil and Human Rights. “It was meant to be targeted to serve students in concentrations of poverty.”¶ The formula, however, places more weight on the number of poor students in a district than on the concentration of poor children in a district – one of the biggest reasons places like Fairfax, at 195,000 students big, gets as much money as it does.¶ In addition, the formula directs extra funding to states with small populations – an attempt to channel more money to rural states, like New Mexico, that often depend on federal support for things like attracting and retaining teachers to remote schools. But wealthy states like Delaware and Connecticut have small populations because they are geographically small, and therefore qualify for the additional funds despite not needing them.¶ Because of this fluke of the law, these small states with lower child poverty rates receive more Title I funds per poor child than poor states. Find them in the top left quadrant of the scatterplot. Meanwhile, many high poverty, rural states that don’t benefit from this rule or the prioritization of large districts. They appear in the bottom right quadrant of the scatterplot because they have a high child poverty rate, but receive less money per poor child.¶ Another oft-cited critique of the formula is that it rewards states and districts for investing more of their own dollars in education. While the goal is to incentivize states to spend more themselves, it tends to compound existing inequalities since wealthier states and districts tend to invest more heavily in education anyway.¶ Mississippi best illustrates this dilemma.¶ Especially in the state’s Delta region, where poverty rates soar up to 60 percent, local revenue rarely breaks $1 million, and in some cases schools use their Title I money for bare necessities, like paying the electric and water bills.¶ “We don’t want to allow states to roll back their spending,” says Gordon. “But the reason why Mississippi is getting so little money per poor pupil is because they are spending very little money.”¶ To be sure, poor students can be found in nearly every school.¶ According to Fairfax school records, the $20 million in Title I funding it receives in fiscal 2016 is being used for approximately 30,000 students –16,000 of whom are poor and attend 44 of the district’s elementary schools.¶ Notably, not all Title I money goes to poor kids. If more than 40 percent of students at a school are poor, the money can be used for the entire school, meaning it also benefits students who aren’t poor.¶ One of those schools is Glen Forest Elementary, where more than 70 percent of students enrolled at the elementary school qualify for free or reduced-price lunch – the metric for how schools measure their poorest students – and more than 60 percent are in the process of learning English.¶ Collectively, the school’s 1,000 students hail from 47 countries and speak 39 different languages, primarily Spanish and Arabic.¶ “We also have one of the highest mobility rates,” says principal Cynthia Choate, who has headed the school for six years. “I have kids that come and go. We just registered children this week, so we’re constantly having to help teachers with how to get a child caught up, assess that child, and we’re constantly having to look at their specific needs.”¶ Such challenging circumstances often cripple schools, but Choate has the advantage of significant financial support from local revenue that allows her to hire enough teachers so that every two classrooms has a co-teacher. And students benefit from reading and math coaches, a unique curriculum that includes a STEM lab, and a litany of extra supports, such as food banks, garment drives and reading comprehension and acclimation services for parents.¶ The school itself is awarded about $400,000 in Title I money, which is used in part to employ four literacy coaches, thee math coaches, one instructional coach and two teachers who specialize in advanced academic curriculum. As a comparison, Nottoway employs one math and one reading coach that floats among all the schools in the district.¶ “My money goes to hiring of people,” says Choate. “The power in helping children is not through a program, but through excellent teachers and interaction with teachers. “So having that extra staffing helps me provide more assistance kids.”¶ Indeed, schools in wealthier communities have larger budgets and are better positioned to provide wraparound services and other important programs for low-income students without siphoning money from the limited Title I pot.¶ Fairfax, for example, receives nearly $1.9 billion annually from local taxes and can afford to spend $14,000 on every student from its local and state revenue. Nottoway, meanwhile, gets just $5.6 million from local revenue and is able to spend about $10,000 per child.¶ “When we’re talking about opportunities in schools and getting the best education, you’re better off as the only poor kid in a school where no one else is poor than you are as the only non-poor kid in a school with concentrated poverty,” says King. “It’s the concentrating of poverty that really gets in the way of kids having what they need.”¶ There are no backroom deals or lobbying friends in high places that leads to Fairfax getting a bigger slice of the pie than any other district. It simply comes down to the formula itself.¶ The funding discrepancy is not a new revelation.¶ In more recent years, especially in the wake of the Great Recession, education policy experts concerned with equal distribution of resources, along with a handful of members of Congress from both sides of the aisle, have been trying to shine a light on the issue in hopes of altering it.¶ But legislative fixes, including the two proposed during the most recent overhaul of No Child Left Behind that the president signed into law in December, have proved an impossible task – largely because any change to the formula would have significant ramifications for big city school districts, which represent some of the most impoverished communities in the entire country.¶ “What their response would be is, ‘Oh what I see you’re after here is to take money away from our most intractable concentrations of poverty,'” says Marguerite Roza, research professor at Georgetown University and director of its Edunomics Lab. “And in some cases that is exactly what it would mean.”¶ Still, big-city schools may have resources that rural communities do not.¶ “If you’re in a small, more rural division and your poverty level is high, you don’t have a lot of means to address student need except through the Title I funding,” says Roland Coleman, the Title I coordinator for Nottoway schools. Like in many cash-strapped districts, he also wears the hats of federal programs administrator and school instruction manager.¶ “If you’re in a larger division with access to more local and state funds, there are other means to be able to supplement and offer some assistance,” he says. “With us, there aren’t any.”¶ Secretary of Education John King told U.S. News in April that ensuring equal access to education has been an ongoing challenge for the country, and that when it comes to issues of equity, the U.S. has a complicated history.¶ “We have a set of principles on which the country was founded around equality of opportunity, and yet from the very moment of the founding there has been a tension between that aspiration and the reality of American life,” he said.¶ While many groups agree that Title I should be more in line with its original purpose, few agree on how to achieve it.¶ Researchers at the Center for American Progress recommend trying to find the trade-off point where the greatest number of students receive the “maximum boost to their life prospects.”¶ For them, that means eliminating the complicated formula and replacing it with one disbursement plan that, among other things, takes into account cost of living, ensures money goes to concentrations of poverty by excluding affluent districts from being able to tap Title I funds, and rewards states for spending more of its own money on poor students.

General Federal role ideas — Aff areas

Douglas Harres et al, Brookings, A principled federal role in education, December 7, 2016,

In this confluence of circumstances, co-authors Douglas N. Harris, Helen F. Ladd, Marshall S. Smith, and Martin R. West offer a set of principles to guide the federal role in education policy. These principles are rooted in the history of American education and consistent with broader principles concerning the role of government in society. According to this bipartisan group of scholars and policy experts, the following principles define the appropriate role for the federal government in PreK-12 education, and should be carefully considered by President-elect Trump, his secretary of education, and Congress: The federal government should ensure that no student is denied the right to equal educational opportunity based solely on race, ethnicity, gender, disability, or other protected status. The federal government should provide compensatory funding to facilitate access to educational opportunity for high-need students, including, but not limited to, students living in poverty and students with disabilities. The federal government should support education research and development, and the gathering and dissemination of information about the scope and quality of the nation’s education system, to inform policy and practice at the state and local levels. The federal government should, in a manner consistent with both its unique advantages and limited capacity, support the development of conditions to promote continuous improvement of state and local education systems.

[Note: Does providing “compensatory funding” render the states counterplan non-competitive?]

Federal government should provide funding for schools in need

Douglas N. Harris, et al 2016 is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The federal government should provide compensatory funding to facilitate access to educational opportunity for high-need students, including, but not limited to, students living in poverty and students with disabilities. In addition to the national interest in protecting civil rights, the existence of a national interest in providing educational opportunity to children who would otherwise be underserved is now generally accepted. The government’s primary tool for promoting this principle is to distribute funds to students who would otherwise have more limited educational opportunities than others. Title I of ESEA and IDEA are primary examples.

Nora Gordon & Martin West, December 8, 2016, Brown Center for Education Policy, Brookings, Memo: Federal School Finance Policy,

You will be sworn in as president to a federal education policy landscape requiring immediate attention to the following items.

  1. Exercise leadership in making the federal government excel at what only it can do: redistributing education funding across the states.

Title I has been the cornerstone of the Elementary and Secondary Education Act since its 1965 enactment, sending federal funds to nearly every district in the country. Throughout the program’s history, changes to the formula used to determine state and district allocations have been incremental, with new formulas layered on top of old ones. This has led to a mess of calculations nearly impossible for even highly informed policymakers to understand. The end results of these calculations, however, are allocations that are poorly aligned with the program’s stated intent of addressing “the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs.” The amount of Title I funding per eligible child varies widely across states with similar child poverty rates and, on average, is higher in states with low concentrations of poor children. The latest ESEA reauthorization process, which concluded in 2015 with the enactment of ESSA, was eight years overdue and rightly centered on addressing problems stemming from No Child Left Behind’s unrealistically ambitious benchmarks for improving student achievement and its highly prescriptive mandates for intervention in schools found to be falling short. The bipartisan hashing out of the law’s accountability provisions was a meaningful accomplishment, and Congress understandably lacked the appetite to take up politically-charged formula discussions.

  1. Design a sensible and legal strategy to improve equity within school districts.

While states and school districts can influence the allocation of funds across schools within the same district, so can the federal government. As school-level finance data become more readily available, they reveal major inequities in per-pupil spending across schools within many districts. At the same time, public demand for within-district equity—and a federal role in achieving it—has grown. While ESSA takes several steps in this direction, immediate executive action is needed as districts begin the work of implementing the law.

  1. Limit the use of conditions on formula funds as a means to influence state and local policy to situations in which the policy goals are attainable.

The example of the weighted student funding pilot illustrates a broader point: federal policy can choose to promote policies by adding conditions to formula funds (like ESSA’s annual testing and school-level revenue reporting requirements) or by using them as criteria to award competitive resources, whether they be funds (as in Race to the Top) or flexibility (as in the weighted student funding pilot). The primary purpose of formula funding programs such as Title I is to redistribute resources according to the formula, making the decision to withhold such funds undesirable from a policy perspective and politically fraught. Conditions attached to the receipt of such funds should therefore be ones that districts and states can readily meet, even if they may not want to do so. More challenging goals without proven solutions are better left to competitive grants programs structured to fund innovative solutions devised by state and local educators and accompanied by evaluation requirements designed to allow the nation to learn from their experience. As you consider the full range of your education policy priorities, keep in mind the potential for well-structured competitive funding programs to advance the evidence base and the ability of individual states and districts to make progress even absent federal formula funds.

R & D Aff

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The federal government should support education research and development, and the gathering and dissemination of information about the scope and quality of the nation’s education system, to inform policy and practice at the state and local levels. This principle is rooted directly, though only partly, in the importance of measuring the effectiveness of the federal government’s own programs in providing educational opportunity to high-need children and protecting civil rights. Research also plays a broader role by providing new knowledge about all aspects of education. This knowledge is what economists call a national public good, in the sense that research in any state can inform and benefit other states. In such situations, a higher level of government—the federal government—should step in to subsidize research and avoid under-investment by individual states. The same justification applies to the gathering and dissemination of national information about the country’s education system.5

Supporting state and local education programs – quality and validity

Anthony Bryk is President of the Carnegie Foundation for the Advancement of Teaching, Helen Ladd Nonresident Senior Fellow – Governance StudiesBrown Center on Education Policy, Jennifer O’Day is an Institute Fellow at the American Institutes for Research, Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching and previously served as the Under Secretary of the U.S. Department of Education. December 21, 2016, A shift in the federal role is needed to promote school improvement,

The goal of new federal policies should be to nudge and support state and local systems in the direction of continuous improvement and expand the infrastructure of research-practice improvement networks. This goal leads to two major recommendations.

  1. Create an improvement infrastructure that supports schools, districts, and states.

A compliance orientation around implementing programs and policies pushed down from above has become normal in schools. A major change is needed. To solve the problems ahead, local educators must become active agents in improving their own work. The federal government needs to enable and support them to make their schools work better.

ESSA resources can be used to develop more effective and improvement-oriented state agencies along with their regional and county offices. Likewise, these resources can be used to deepen the improvement capabilities of current school district staff. The U.S. Department of Education should make clear in guidance to states and districts that in almost all instances it is appropriate to use ESSA funds for these purposes.

The new administration might also consider small incentive grants to colleges and universities to include specific preparation in improvement research in all teacher, principal, and superintendent training programs. This proposal could be accomplished in the Higher Education Act, which is due for reauthorization. It fits with the capacity-building function of the federal government and with other recommendations from the project (see this Friday’s memo from Doug Harris about the federal role in research).

Complementing a direct focus on strengthening state and local capacity, the federal government needs to catalyze stronger engagement of educational researchers in practical problem-solving. Federal efforts for more than a decade, principally through the Institute of Education Sciences (IES), have created incentives for researchers to undertake rigorous studies of programs and policy impact. A similar initiative should now be undertaken to bring relevant academic expertise into more active engagement with school improvement. This can take many different forms, including: a) expanding the scope of the Regional Labs; b) increasing the funding for IES and other agencies, such as the National Science Foundation, to support research-practice partnerships; and c) providing direct support for Networked Improvement Communities focused on solving high-leverage problems as illustrated above. There are a variety of other sources for funds that support a better understanding of how to implement improvement efforts including, for example, the evaluation provision of ESSA, Section 8042.

  1. Creating cultures of improvement and new forms of accountability at state and district levels.

For 22 years we have lived with an accountability system that relies primarily on one source of data—student test scores—collected once per year. Schools and districts were held accountable for substantially improving these outcomes, often without the necessary support and capabilities to have a realistic chance of actually achieving these goals.

In a culture of improvement, everyone is expected to continually audit themselves to ensure that their work and their organization is as effective and efficient as possible. Everyone has a stake in the quality of the organization and, therefore, everyone is obligated to participate in continuous improvement. With the end of NCLB, the states and districts are in a position to develop new forms of accountability specifically designed to promote school improvement.

Such accountabilities require broader and more diverse types of data to determine the quality and effectiveness of internal policies and practices of schools and districts, in addition to student achievement and attainment. Many states, such as California and New Hampshire, are already exploring new accountability systems that make their environments friendlier to a culture of improvement. The Department of Education should encourage such innovation.

Information produced by inspection systems could be a significant contributor in this regard. Other countries and some states use an inspection system to review the quality and effectiveness of schools and districts. The systems use formal rubrics or protocols to produce consistent measures of quality, which inspire improvement at the local site. In New Zealand and the Netherlands, teams of reviewers make periodic visits to each school and write public reports highlighting strengths and weaknesses. When they find evidence of shortcomings, they require the school to develop and initiate a plan to address the problems. The school is then reviewed again after some time to assess the progress toward improvement. Although some inspection systems have been clearly summative and judgmental, others are continually evolving. New Zealand’s system, for example, is specifically intended to be more formative, with the inspection process itself driving and supporting school improvement. New York state is currently carrying out a trial inspectorate system in a variety of districts.

Federal financial support to states and districts for efforts such as these is important because these improvement activities will require additional resources to get off the ground and may entail ongoing expenses beyond traditional test-based accountability reports.


We live in an era in which schools are under extraordinary pressure. The idea that each school or district is left to its own devices to improve yields a weak mechanism, one that guarantees continued great variability in performance. Such variability typically shortchanges those who are already most disadvantaged. The federal government can help overcome this disparity by supporting policies that build new infrastructures for improvement.

Title I funding and conditions


Federal funding through ESEA could help states address a substantial component of state funding shortfalls identified by expert analysis of state funding systems. As Part I explained, two of the primary shortfalls of state funding for education are providing less or equal funding to low-income students with greater needs and low funding levels.171 Federal aid could help to close these funding gaps when combined with additional state investments in education. In addition, federal conditions on funding could insist that states assess and explain how their funding systems are closely linked to the state’s desired education outcomes. One advantage of employing ESEA conditions to encourage states to adopt funding systems that promote equity and excellence is that the need to reauthorize ESEA can encourage compromise on these conditions. However, it also is possible that such conditions could stall future ESEA reauthorizations given the recent eight-year delay in reauthorizing the statute. 172

To be clear, my proposal does not envision the federal government defining all goals of state education systems or the standards or curriculum for any state. Given the substantial evidence in Part I.B. that many state funding systems are not linked to their purported goals, each state would define its goals and would explain how the funding system is closely linked to those goals before it qualified for federal funding. However, I am proposing that to receive federal aid, states should be required to embrace a goal of providing equal access to an excellent education. Prior federal legislation has embraced this goal and it is undoubtedly the goal of lawmakers when they reauthorize the ESEA. 173

Congress could add conditions to the ESEA by including a new program focused on supporting state development and implementation of funding systems that advance equity and excellence. Although this would be a part of ESEA, it would operate as one of the many separate programs within the law. 174 States would have the option to reject such funding and the conditions attached to it even while continuing to accept other programs within the ESEA, consistent with past education spending programs and NFIB.175 Given the incentives that will exist for states to reject such funding, the funding should be sufficiently substantial to encourage meaningful participation by the states. It is impossible to estimate the dollar amount of such funding, but for impactful reforms of state funding systems to occur the amount would likely need to rival, or even exceed, the funding within Title I, which in fiscal year 2015 was: $14.4 billion. 176

Alternatively, in a future reauthorization of Title I, Congress could include within Title I conditions that require states to adopt funding systems that promote equal access to an excellent education. Past ESEA reauthorizations and other education laws either ended prior programs and began new ones under new conditions or modified an existing program. 177 Given this trend and the warning NFIB sends about conditioning new funds on old money, 178 any new conditions should be attached to a new Title I program rather than funding that states have already accepted.

Scholars and researchers have proposed reforms of Title I that would allow it to serve as a vehicle for leading states to reform their funding systems.179 Derek Black identified some of the ways that Title I exacerbates funding inequities. He proposed revising Title I to ensure greater funding for students with greater needs and students living in concentrations of poverty as well as to encourage integration of schools. 180 Scholar and now California Supreme Court Justice Goodwin Liu recommended a variety of reforms for Title I to address its shortcomings, including the ways in which it favors high spending, low-poverty states over low spending, high poverty states.181 Among other reforms, he contended that Congress should remove the state expenditure factor from Title I to provide high poverty states more funding per child, rather than less; incorporate cost factors that are determined by research and updated regularly; and, provide additional funding for poverty concentration grants. 182

Several ideas for reforming the comparability requirement in Title I, which does not effectively ensure that Title I schools are funded at comparable levels to non-Title I schools, also have been suggested.183 Cassandra Jones Havard has recommended greater agency oversight for Title I because the Title I comparability requirement has been ineffective due to poor enforcement.184 Congress could address this concern by providing funding for the Department of Education to enforce the comparability requirements. Congress should build upon these promising recommendations if it chooses to leverage Title I as a vehicle for influencing state funding of schools.

If conditions encouraging states to adopt funding systems that promote equal access to an excellent education were included as a new program within the ESEA or Title I, the critical question that remains is the nature and scope of the conditions. Vague conditions that merely require advancing equity and excellence in funding are unlikely to result in meaningful reforms, just as the current watered-down comparability requirements are doing little to require equitable funding.185 Instead, conditions within ESEA should require states to address the primary shortcomings of funding systems that I have outlined in Part I. Substantial scholarly consensus exists on the need for progressive funding systems to target additional funding to students with greater needs. 186 Therefore, adopting and maintaining a progressive funding system should be an essential condition for any new ESEA program or for a modification to Title I.

Before turning to considering conditions on funding outside of the ESEA, it is worth noting that ESSA’s provisions that directly seek to influence school funding are unlikely to have a substantial impact on persistent funding disparities. ESSA continues the maintenance of effort requirements that were included in NCLB and prior ESEA reauthorizations .187 This requirement seeks to prevent states and districts from reducing education funding. However, the federal regulations governing this standard only mandate that a district keep its funding at ninety percent of spending for the prior year. 88 Not only are districts unlikely to experience such a dramatic decrease within one year, but also a district could reduce their funds over several years and replace them with federal funds without violating this standard. 189

ESSA also retains a “supplement-not-supplant” provision that aims to prevent states and districts from reducing their education budgets and replacing the cuts with federal money. 90 However, the Department of Education has not enforced this requirement in some time.191 The Department in 2016 is undertaking negotiated rulemaking to adopt new regulations governing supplement-not-supplant. 92 This will provide the Department an opportunity to strengthen the requirements for proving comparable funding between Title I and non-Title I schools within a district. ESSA specifically disavows that anything within Title I requires or prohibits “equalized spending per pupil” by a state, district or school.193 Unless the Department’s negotiated rulemaking process leads it to adopt requirements for substantially equal funding between districts within a state, the supplement-not-supplant requirement will not address the persistent interdistrict disparities that direct less funding to low-income districts. 194

ESSA also requires States to publish in an annual state report card the per-pupil expenditures for federal, state and local funds, including actual personnel and non-personnel expenditures, for every district and school in the state. 195 This provision aims to provide the public with greater transparency on how education funds are spent. However, ESSA does not actually require that states take action to reduce any disparities. Therefore, this provision leaves to state legislatures, policymakers and ultimately the public to decide what action to take, if any, in light of the spending disparities. Given the historic tolerance for funding disparities for generations of students, it seems unlikely that merely publishing information on funding differences will be sufficient to spark lasting reforms.

Finally, the most ambitious way to include federal conditions on state funding systems would be to pass a separate statute that conditions all federal education funding on states adopting and implementing a funding system that promotes equal access to an excellent education. Such a requirement would be analogous to the requirement that recipients of federal funds must not discriminate on the basis of race, color or national origin in Title VI of the Civil Rights Act. 196 Similar requirements prohibit federal fund recipients from discriminating on the basis of sex in education programs and activities in Title IX of the Education Amendments of 1972197 or disability in Section 504 of the Rehabilitation Act of 1973.198

New stand-alone conditions would enjoy a distinct advantage over conditions in the ESEA because they would only need to be enacted once. This would enable the conditions to become an embedded and accepted part of the political, legal and policy landscape. Although executive officials would have the authority to vary their interpretation of the conditions, the central importance of having a funding system that promotes equity and excellence. would endure. The longevity of enforcement also would provide the executive branch ample time to understand how it can most effectively enforce the statute, just as it has learned these lessons under Titles VI and IX and Section 504. Administrative agencies, rather than Congress, would be best equipped to use their expertise to clarify the requirements of conditions.

A stand-alone statute would require even greater political support than conditions within the ESEA. A stand-alone bill also could be easily defeated. In contrast, the ESEA reauthorization will periodically continue to resurface.

Most importantly, the most effective testing ground for the terms of a stand-alone requirement that encompasses federal influence over school funding would be to include conditions within the ESEA. This would allow Congress and the federal Department of Education to test the appropriate scope and nature of federal involvement in school funding without making a multigenerational commitment to the initial approach. It would enable Congress, the Department of Education and the states to learn from initial efforts and modify subsequent reforms in light of those lessons. Only after Congress, the Department of Education, and the states have determined the most effective approaches for federal involvement that encourages states to adopt equitable funding approaches should this federal role be enacted as standalone conditions for receipt of any federal education funds.

Poverty reduction/support aff

Joanne Wasser Gish & Mary Walsh, Brown Education Center, Brookings, Improving student achievement by meeting students’ comprehensive needs, December 12, 2016,

Select federal policies have long reflected an assumption that systemic, comprehensive approaches could drive student achievement. Programs like Promise Neighborhoods, Full-Service Community Schools Grants, and wraparound components included in 21st Century Community Learning Centers are guided by an understanding that interconnected challenges require interconnected solutions. The National Research Council has found that the availability of academic, social-emotional, health, and mental health supports is predictive of students’ success as adults, and since 1998 the Centers for Disease Control has recommended that schools foster healthy child development by implementing a comprehensive, coordinated approach to the needs of students. Building on these insights, ESSA appropriately takes a broad view of the learning supports, resources, and strategies that may be needed to help disadvantaged students surmount barriers to achievement. Among these strategies is an emphasis on comprehensive integrated student support throughout Titles I and IV. Federal policy can incentivize and improve the efficacy of investments designed to meet the comprehensive needs of students and their families. Under ESSA, your administration can leverage research on effective practices and support technology and related infrastructure building, thereby setting the stage for states, schools, and communities to use existing resources more efficiently, close achievement gaps, reduce dropout rates, and enhance educational opportunity for all students.

[Note: It is important to discuss whether or not this case is topical, as the funding increase would arguably be for programs outside of schools (??)]

Privacy laws for student data aff

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

Cross-cutting many of the recommendations is the issue of data privacy (Goldhaber and Guidera). We concur with the memo authors that protection of student data privacy is of paramount importance and that there are many ways to strengthen privacy while also making data available in ways that research suggests are in the best interests of students and continuous school improvement. Current laws create significant impediments even though research and development generally involves data that are completely anonymous. As almost all the memos emphasize, data are also necessary for protection of civil rights, for targeting effective programs to disadvantaged students, and for building on data systems to improve high school and college graduation rates and human resources. Educators cannot help their students if they lack the data that help describe their needs.

Dan Goldhaber, Director – Center for Education Data & Research, Aimee Rogstad Guidera is the Founder, President, and CEO of the Data Quality Campaign, a national non-profit advocacy organization working to change the role of information in education, Memo: Powering Education Improvement and innovation While Protecting Student Privacy, December 12, 2016,

The passage of the No Child Left Behind (NCLB) Act in 2001 ushered in a new era of accountability and transparency by requiring that every state report students’ academic proficiency, disaggregated by specific populations. This new reporting requirement, the significant development of longitudinal data systems, and the increase in the use of new technologies in classrooms has led to richer, more robust data on student and school performance. The recently passed Every Student Succeeds Act (ESSA) returns a good deal of accountability authority to the states, but it maintains NCLB’s legacy of using data to illuminate and improve our schools…. But the increased collection, use, and visibility of data about students have raised concerns about how and why they are used, who has access to them, and how student privacy is protected. For many parents and educators, the use of data in education is unfamiliar and its value is unclear leading to the question of “what’s in it for me?” In addition, legitimate privacy concerns in almost every area of public life—from the National Security Agency to Amazon’s purchase recommendations—have spurred new and proposed data privacy laws (discussed below). Many of these laws run the risk of significantly devaluing foundational education data investments, limiting our abilities to conduct research on the policies and practices that impact student learning, and, in some cases, operate schools in productive ways… A third option, the one we favor, is for the federal government to combine capacity building with a structured process that leads to revisions to FERPA. A deliberative and thoughtful federal role in encouraging and supporting education data use and research, and creating a floor of consistent data protections, is critical to building transparency and trust about how data are collected, shared, and protected across the country. Despite the risks associated with opening the Pandora’s box of revising FERPA, we believe the next administration should take this important step. In the section that follows, we propose specific recommendations for this strategic federal role.

Tribal Education

It’s sufficient to solve – federal funding is essential for sweeping improvements in tribal schooling – uniquely fulfills the trust obligation and overcomes local barriers.

NIEA ’17 (National Indian Education Association; 2/21/17; National non-profit dedicated to Native American education, citing the Government Accountability Office and multiple internal studies on the Department of Interior; NIEA, “THE FEDERAL TRUST RESPONSIBILITY TO NATIVE EDUCATION,”

The Federal Responsibility – Invest in School Construction: Due to deteriorating infrastructure in schools with Native students, investment in school facilities that serve Native communities is critical to ensure a safe environment for Native students to learn. According to the Department of the Interior’s Office of Inspector General, Native students within BIE schools attend class in crumbling facilities with significant infrastructure and health hazards. Additionally, 93% of Native students in public schools and more than 40% of Native students in rural communities that rely more heavily on grants and federal funds due to limited capacity for bonding. Investment in Indian Country via schools will help prepare Native students for the 21st century economy. – Fiscal Year 2018 Funding: Congress should utilize this budget document and work with the Administration to execute the requested funding increases to Native education programs which where disproportionately affected by sequestration. Congress must uphold the federal trust responsibility and fully fund Native education programs as well as take into account annual inflation costs, decreasing appropriations levels, and increasing expenses for serving larger Native populations, which are currently growing more than three times faster than the overall U.S. population. – Effective and Efficient Funding: Congress must appropriate the necessary funding to support Native education. Public and BIE schools on reservations rely on grant and federal funding to deliver critical educational services due to lack of tax collection on reservation land. As America’s most vulnerable population, Native students should have equal access to resources and opportunities as the federal government acts to pass annual appropriations, reauthorize programs, and enact legislation. Fiscal Year 2018 Budget NIEA looks forward to working collaboratively with the Trump Administration and Congress to ensure Native students are served effectively. As NIEA and Native education stakeholders have advocated for decades, the federal trust responsibility should ensure the following requests are not viewed as programs that must be funded to ensure Native students – the only population for which there is an explicit obligation to educate – are provided comprehensive and equitable resources to become prepared for college and careers. Many Native communities have faced limited resources for decades or longer. Since Native serving schools cannot collect taxes due to their location and are therefore reliant on federal programs, such as Impact Aid. And Native communities are often located in rural regions where economic growth is difficult unless federal, constitutionally based funding obligations are honored.

Teacher Workforce aff

Pam Grossman, Dean and George and Diane Weiss Professor of Education at the University of Pennsylvania’s Graduate School of Education, Susanna Leob, Nonresident Senior Fellow – Economic StudiesCenter on Children and Families, Memo: Improving the Teacher Workforce,

Teachers are the most important school resource for improving educational opportunities for students. We recommend six steps for the federal government to improve the teacher workforce, particularly in the most difficult-to-staff schools:

  • Use a competitive funding program to incentivize effective talent management systems that use well-validated measures of educator effectiveness.
  • Create and sustain financial incentives for entering teaching in high-need subjects and schools.
  • Support retention bonuses or salary increases for highly effective teachers in high-needs schools by allowing the use of Title I dollars for salaries and by prioritizing the inclusion of retention bonuses in talent management systems incentivized by federal dollars.
  • Invest in the development of new measures of talent and in new knowledge about their effective use in talent management systems.
  • Invest in research that provides new evidence on excellent preparation for teaching.
  • Use the presidential platform to directly promote teaching careers.

Taking these steps would substantially improve the teacher workforce by addressing teacher recruitment, preparation, development, and retention, particularly in the schools that would benefit the most from these improvements.

Career/technical education aff

Robert Schwartz, Brookings, ecember 13, 2016, Memo: Career and Technical Education,

The focus of the federal dollars would be to help high schools address this newly defined mission of helping all students acquire sufficient exposure to the world of work and careers to make an informed choice among the career education and training pathways open to them beyond high school.  The idea would be to look across Title I and the other provisions of ESSA and other categorical programs for funds currently reaching high schools, package them together with Perkins funds, and create a new, much more flexible $3-4 billion pot of money to help states and districts support this new “college and career readiness” mission. A significant proportion of the funds would need to be targeted on high schools serving high concentrations of low-income students in order to keep faith with the intent of the Title I program

English Language Learners support aff

Kenji Hakuta, Lee L. Jacks Professor of Education, emeritus, at Stanford University, Ray Pecheone, Professor of Practice and Executive Director of Understanding Language/Stanford Center for Assessment, Learning, and Equity at Stanford University. December 20, 2016, Supporting English Learners and Treating Bilingualism as an asset,

To provide context for the recommendations that follow, we suggest two principles to guide policy, each of which would promote high-quality education for ELs:

First, we should support holistic learning of academic content along with English language, as opposed to a targeted focus on English language development to the exclusion or reduction of other subjects. Students are deprived of a richness of learning by keeping content separated from language. Consistent with learning theory, policy should integrate “academic content” and “English language” in the classroom. This will require policies that build systemic supports that include standards, assessment tasks/tools, accountability systems, curriculum/materials, professional development, leadership capacity, and research. Second, we should move from a deficit to an asset model of bilingualism and help ELs to remain bilingual. This would recognize that bilingualism is a cultural, community, economic, and national security resource, with well-documented advantages both for the individual and society. The U.S. language policy has been a default model of immigrants rapidly shifting into monolingual English. The policy problem is that both the OCR/DOJ approach and ESEA/ESSA are oriented toward remedying deficits in English, not toward building on student cultural heritage and assets leading to more powerful learning, engaged citizenship, and national enrichment….. While federal law states that ELs must be provided full access to content, little has been done to uphold this right and considerable research shows that ELs are denied full access to both core academic content and elective content. Indeed, federal law has inadvertently created loopholes in this educational right by allowing for sequential provision of content (i.e., providing language instruction before content instruction) without delineating when, for whom, and for how long sequential provision of content is appropriate or acceptable. Law and regulation can require the monitoring of ELs’ access to content (something that is rarely done now) by, for example, requiring that EL participation in academic courses be included in Civil Rights data collection.

Special education aff

Thomas Hehir is a Professor of Practice at the Harvard Graduate School of Education and a former special education teacher and administrator, December 14, 2016, Memo: Special Education,

After forty years of strong federal laws and substantial support at the state, local, and federal levels, educational attainment levels for students with disabilities have improved considerably. Consider the following: the practice of institutionalizing students with mental retardation and severe physical disabilities has been largely eliminated, record numbers of students with disabilities are enrolling in postsecondary institutions, employment rates of people with disabilities leaving high school approach those of their non-disabled peers, and more students with significant disabilities are being educated in increasingly inclusive settings. However, while progress has been made over time, most of the progress has been experienced by students from more affluent homes. Students from low-income backgrounds, and particularly students from racial minority groups, continue to experience markedly poorer and more stagnant outcomes.…

The Department of Education recently promulgated guidance concerning IEPs that emphasized the importance of integration. Though this is a step forward, policy guidance does not have the force of law. The new administration should move forward with rulemaking proposing the following regulations:

  • Require that IEPs address specialized interventions to maximize opportunities to be successful in school.
  • Specify the accommodations and supports children will need to be successful in mainstream classes.
  • Require goals for specialized interventions with the assumption that goals need not be written for areas covered by the general curriculum unless the curriculum is significantly modified.
  • Require that IEPs assume students are, by default, assigned to general education classes and this default assignment should be overturned only when compelling arguments exist against integration in mainstream classes, and schools or districts should not be able to overturn the default for many students without getting flagged.
  • Require that IEPs be unambiguously focused on the interventions and accommodations students need to be successful.
  • Emphasize that for some children whose interventions have been proven successful, transition out of IDEA eligibility should be considered with many of these students receiving accommodations under Section 504 as opposed to having IEPs.

There is evidence that changing the requirements in IEPs can have significant impact on practice. For instance, the 97 Amendments to IDEA required that teams address how a child will access the curriculum. Major changes in course-taking patterns occurred for high school students, with many more students taking foreign languages and advanced science and math. Though the IEP can be a powerful mechanism for change, current IEP requirements are dated and do not sufficiently promote best practices.

Given the longstanding success, bipartisan support, and declining real funding, a doubling of appropriation for Part D of IDEA is overdue and would only cost $250 million. Special education is a huge component of the American education system and deserves a far more robust R&D effort that only the federal government will provide. Among the activities that could be funded out of this would be:

  • Evaluation studies using quasi-experimental methods to identify effective practices through the use of state-level data
  • Technical assistance centers to assist school districts in training teachers on methods, such as UDL, that enable students with disabilities to be successful in the mainstream
  • Research efforts to identify the most efficacious interventions that minimize the negative impact of disabilities
  • A robust research program to identify effective practices for educating the growing numbers of students on the autism spectrum

School to prison pipeline solvency

Jim Nance, law professor, 2016, University of Richmond Law Review, Over-disciplining students, racial bias, and the school to prison pipeline,

Yet, while all of these measures will significantly reduce the overall number of students who drop out or are suspended, expelled, or referred to law enforcement, and may even help narrow the racial disparities relating to discipline to some degree,41 much more must be done to further narrow or eliminate these disparities. For example, school administrators, teachers, parents, students, and other stakeholders should reduce ambiguities in their school codes, which often lead to racial disparities.42 Further, schools should be required to report disciplinary data disaggregated by race.43 In addition, as part of a national strategy to reduce disparities in discipline, it is critical that national and state lawmakers, the DOE, and state departments of education implement the following three recommendations. First, school officials and teachers must receive training to understand the concept of implicit bias and learn neutralizing techniques.44 Empirical research demonstrates that such training helps ameliorate the negative effects of implicit bias.45 As a condition for receiving federal funds under the Elementary and Secondary Education Act, the U.S. Congress should require states to develop programs to provide implicit bias training to teachers and school administrators on an annual basis. Alternatively, state legislatures should pass legislation requiring such annual training. Second, although the concept of implicit bias is reasonably understood, less understood are its causes and effects and ways to neutralize its negative effects.46 Our national and state governments must invest more money to fund more research to better understand how to address the implicit biases of school officials and teachers.47 Notably, such investment not only will address implicit biases relating to discipline, but also will address biases that affect disparities relating to a multitude of other areas of education, including academic achievement and placement in gifted and special education programs.4Third, the DOE and state departments of education should play more assertive and active roles in reducing implicit bias.49 For example, the DOE and state departments of education can analyze, support, and disseminate research to school districts about effective programs to reduce implicit bias. Because implicit bias imbues so many daily (even hourly) decisions that hundreds of thousands of school officials and teachers make, it is imperative that the DOE and state departments of education harness their influence, resources, and skills to address this problem that negatively affects millions of students of color everywhere.50 The racial disparities we observe in the disciplinary data (and in other areas of public education) are appalling and cannot be tolerated. Because most teachers and school administrators seem to be acting in good faith and there is substantial evidence that minority students are not misbehaving at higher rates than similarly situated white students,51 logically we can attribute at least some of these disparities to the unconscious biases of educators.52 As part of a comprehensive national strategy to reduce racial disparities relating to discipline,53 government entities overseeing public education should require annual implicit bias training for all school administrators and teachers. In addition, these entities should support further research to better understand how to counteract implicit biases and regularly disseminate information to schools on effective strategies to do so. Following these recommendations will create more just, equitable, and inclusive schools for students of all races and will prevent more students of color from becoming involved in the juvenile justice system.

Advisory Committees to the US Commission on Civil Rights, December 2016.

“Civil Rights and the School-to-Prison Pipeline in Indiana.”

. B. Recommendations In response to these concerns, the Committee offers the following recommendations to the Commission: 1) The Commission should issues the following formal recommendations to the U.S. Department of Education: a) The Department’s Office of Civil Rights should establish a Review Committee to study the impact of school discipline policies on disparities in educational outcomes on the basis of race, color, sex, national origin, and disability. b) The Department should require that states impose mandatory reforms to disciplinary policies for schools that demonstrate significant disparities in disciplinary actions on the basis of race, color, sex, disability, or national origin according to the Office of Civil Rights, Civil Rights Data Collection. Such reforms may be based on the Department’s 2014 Guiding Principles Resource Guide for Improving School Climate and Discipline. c) The Department should study the possibility of requiring ongoing anti-bias, cultural competency, and trauma-informed training as a condition of receiving federal funding. School discipline interventions should not be neutral in nature, but should take into consideration approaches that address race, color, sex, national origin, and disability disparities. d) The Department should require that states utilize best practices to include root cause analysis of disciplinary problems and employ the assistance of psychologists, social workers, and community organizations as opposed to law enforcement. e) The Department should examine and recommend an expansion of evidence-based restorative justice and other alternative disciplinary models to reduce exclusionary discipline. f) If law enforcement officers, or School Resource Officers (SROs) are to be working in schools, the Department should establish uniform licensing requirements to ensure that such officers are properly trained and equipped to respond in an age appropriate manner with children. Applicable training should include strategies for recognizing and mitigating implicit bias. Civil Rights and the School to Prison Pipeline in Indiana 49 g) The Department should require that school districts engage in continuous, shared educational planning between alternative schools or juvenile detention facilities and a child’s home school, to ensure that students receive an education of similar quality and duration even if sent to an alternative school. h) The Department should act to enforce Title VI of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 with regards to institutions with policies and practices that demonstrate a disparate impact on the basis of race, color, sex national origin or disability. i) The Department should establish a joint task force in collaboration with the U.S. Department of Justice to study disparities in educational outcomes and juvenile justice involvement on the basis of race, color, disability status, and other federally protected categories. This task force should be charged with recommending and implementing appropriate policies, practices, and training to reduce such disparities. ​

The United States federal government, including the Department of Education, should create and enforce a regulation on federally funded primary and secondary school entities that prohibits disciplinary policies which have a disparate impact on racial minorities.

Executive regulations effectively guide judicial application and ensure implementation and enforcement

Pernell 15 – J.D., 2015, New York University School of Law, M.Ed., 2009, Harvard University Graduate School of Education (Brence D., “Aligning “Educational Necessity” With Title Vi: An Enhanced Regulatory Role For Executive Agencies In Title VI Disparate Impact Enforcement,” New York University Law Review, October, 2015, 90 N.Y.U.L. Rev. 1369)

Title VI, Executive Agencies, and Disparate Impact in Public Education

Title VI of the 1964 Civil Rights Act prohibits racial discrimination in public schools n28 and other federally funded education programs and activities. n29 The statute specifically authorizes the DOE to enforce the statute’s antidiscriminatory standards. n30 Under this authority, and in line with the original aim of Title VI, DOE regulations prohibit the use of practices and policies that have “the effect of subjecting individuals to discrimination because of their race” in federally funded schools and educational programs. n31 In other words, the regulations prohibit those practices and policies that have what has come to be termed a “disparate impact” n32 on minorities. Discriminatory practices can stand, however, if they are determined to be educationally [*1376] necessary. n33 To aid this determination, a defendant bears the burden of demonstrating that their challenged practice is supported by a “substantial legitimate justification” n34 and furthermore “bears a manifest demonstrable relationship to classroom education.” n35

Unlike “disparate treatment,” n36 which implies discriminatory intent, a practice or policy that has a disparate impact suggests unintentional or indirect discrimination. n37 Generally, a prohibition on disparate impact presumptively invalidates a policy that has a discriminatory effect on a protected racial group, regardless of the policy’s intent. n38 The disparate impact framework n39 is therefore a useful tool for plaintiff minority groups to address harms suffered from less direct, but nonetheless insidious, forms of discrimination that can be more difficult to prove. n40

[*1377] This Part discusses the legal mandate of disparate impact, as borne from Title VI. n41 While the statute clearly prohibits federal fund grantees like public schools n42 from discriminating on the basis of race, color, or nationality, it conspicuously does not define discrimination. Therefore, Congress has to some extent charged courts and federal agencies like the DOE with demarcating the scope of Title VI’s application to discriminatory practices. n43

  1. The Special Role of Agency Enforcement of Disparate Impact

Title VI grants federal agencies implicit statutory authority to determine what qualifies as discrimination. n44 Despite agencies’ “joint march with the federal courts to end a century of mistreatment of [*1378] black Americans,” n45 judges and scholars alike have noted that particular authority was reserved for agencies. n46 Title VI’s legislative history suggests that disparate impact, specifically, would be embraced as a form of discrimination to be addressed. n47

The development of the discrimination standards under Title VII informed how courts and agencies capitalized on their authority to develop discrimination standards under Title VI. n48 Litigants and courts vigorously employed the disparate impact theory to address a range of discriminatory employment practices in Title VII n49 and ultimately adopted it in the Title VI context. n50 Advocates have since encouraged the theory as a useful legal tool for achieving equality in a wide range of other social arenas. n51

[*1379] Unlike in the Title VII context, where courts invented disparate impact standards, agencies were the “first movers” in the development of disparate impact under Title VI. n52 Professor Olatunde Johnson maintains that this difference in large part reflects agencies’ “specific competence” with regard to the forms of discrimination Title VI was meant to address. n53 Johnson further explains that the relevance of Congress’s grant of power to agencies in this way underscores that “Title VI created an explicit regime that allowed the agency authority in shaping disparate impact – a regime in which Title VI ‘itself’ and its regulations are intimately connected.” n54 At least one federal agency confirmed this explanation in regulations promulgated soon after Title VI’s enactment by Congress. n55 The regulations prohibited not only intentional discrimination, but also practices with “the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.” n56

The next Subpart describes how federal agencies currently enforce disparate impact for civil rights claimants as well as recent efforts to strengthen this enforcement.


  1. Federal Standards for Title VI Disparate Impact

In keeping with their unique position as agencies in developing Title VI disparate impact standards, the DOE’s Office for Civil Rights (OCR) and the DOJ have a legal obligation to enforce Title VI n57 and its implementing regulations. n58 The DOJ enforces Title VI with respect to all recipients of federal financial assistance, including schools. n59 The DOJ also enforces Title VI upon referral from another federal funding agency or through intervention in an existing lawsuit, and it coordinates the enforcement of Title VI government-wide. n60

There is a straightforward regulatory enforcement scheme for pursuing disparate impact claims in the public education context. If a recipient of federal assistance is found to have discriminated and does not voluntarily comply with DOE standards for addressing the policy’s discriminatory impact, the DOE can either initiate fund termination proceedings or refer the matter to the DOJ for appropriate legal action. n61 In the context of education, private parties may file disparate impact complaints with the DOE, which has the power to investigate, review, and revoke federal funds pursuant to Title VI. n62

The DOE has recently made efforts to ramp up civil rights law enforcement in public schools, including a series of guidance letters addressing “issues of fairness and equity.” n63 These letters specifically sought to examine cases in public schools for “evidence of discrimination through ‘disparate impact.'” n64 Several civil rights organizations [*1381] are actively filing complaints in response to the agency’s commitment to enforcing disparate impact claims. n65

Importantly, DOJ and DOE enforcement of disparate impact claims could still conceivably end up in federal court, as federal judges ultimately have review power over agency actions. n66 However, when courts have adjudicated these claims they have done so in confusing and inconsistent ways. n67 These inconsistencies risk negative consequences for litigants seeking to vindicate claims of discrimination under an incoherent disparate impact framework. Furthermore, if federal courts’ treatment of disparate impact claims in other sectors is any indication, n68 then such claims are that much more likely to fail without clearer authorized guidelines appropriately considering equal education opportunities. n69

[*1382] Yet, none of the DOE’s or DOJ’s efforts have included plans to use their authority to more robustly clarify what the standard is for proving disparate impact under Title VI in the context of public education. n70 This lack of clarity persists despite the efforts of civil rights groups across the nation to invoke the disparate impact standard as a legitimate tool for vindicating important Title VI civil rights claims stemming from a range of public school practices and policies. n71

When these practices harm minorities, even if unintentionally, they ultimately must confront the educational necessity question under Title VI. This Note focuses on this crucial question: What should sufficiently qualify as an “educationally necessary” practice to withstand a disparate impact discrimination claim? The next Part considers how federal courts have grappled with this question.


Judicial Formulations of Disparate Impact and the Educational Necessity Standard in Public Education

The Supreme Court first endorsed the availability of a Title VI disparate impact theory of discrimination in the context of public schools in Lau v. Nichols. n72 The decision relied on guidance issued by what was then the Department of Health, Education, and Welfare (HEW). n73 The Court concluded on the basis of the HEW guidelines that “discrimination is barred which has that effect [of discriminating [*1383] in the availability of academic facilities] even though no purposeful design is present.” n74 Though the Court first recognized a disparate impact claim under Title VI on the basis of the HEW guidelines, it did not address the issue of an educational necessity defense.

Currently, a prima facie claim of disparate impact under Title VI requires a showing that a “facially neutral” policy has resulted in a racial disparity. n75 While there is “no rigid mathematical threshold” for demonstrating a prima facie case of disparate impact for affected minorities, n76 federal courts use some form of statistical analysis to make “reliable inferences about racial disparities in a population based on the performance of a particular sample.” n77 After a prima facie case of disparate impact is made, the burden of proof shifts to the defendant to justify the disparate impact as the result of a practice that is educationally necessary. n78 The next Subpart explains how early courts further developed this educational necessity standard.

  1. Early Judicial Formulations of the Educational Necessity Standard

Justice Thurgood Marshall first embraced the concept of an educational necessity defense in a footnote appearing in his dissent in Guardians Association v. Civil Service Commission of New York. n79 In his opinion, Justice Marshall stated that “a prima facie showing of discriminatory impact shifts the burden to the recipient of federal funds to demonstrate a sufficient nondiscriminatory justification for the program or activity.” n80 In Board of Education of City School District of New York v. Harris, the Supreme Court first explicitly declared that this “burden” could be fulfilled by “proof of ‘educational necessity,’ analogous to the ‘business necessity’ justification applied under Title VII of the Civil Rights Act of 1964.” n81

[*1384] Even if the practice or policy in question was not intentional discrimination, a policy qualifies as having an unlawful “disparate [*1385] impact” if it has adverse consequences for a particular minority group and is not justified by an educational necessity. n82 Lower courts took up this educational necessity standard to develop a framework for adjudicating Title VI disparate impact claims – one that would include a consideration of the defense’s ambiguous contours. n83

In Georgia State Conference of Branches of NAACP v. Georgia, n84 the Eleventh Circuit articulated what would come to be the foundational interpretation of the educational necessity standard. Relying on Title VII precedent developing the business necessity standard, the court explained that under the Title VI disparate impact scheme, once plaintiffs have demonstrated a disparate impact, defendants bear the burden of demonstrating that their challenged practice is supported by a “substantial legitimate justification.” n85 The court in Georgia State Conference of Branches of NAACP was the first to equate educational necessity with the production of a “substantial legitimate justification” for a particular practice. n86 In cases since Georgia State Conference of Branches of NAACP, defendants attempting to meet the “substantial legitimate justification” burden consistently have been required to show that their challenged practices “bear a manifest demonstrable relationship to classroom education.” n87

But judges are not education policy experts. Without sufficiently specific regulatory guidelines to evaluate an educational necessity once disparate impact is shown, a court is essentially left to its own devices to balance the competing interests of the disparate impact [*1386] claimants against the educational institutions’ interests. n88 Problems arise for Title VI plaintiffs in this regulatory void because educational institutions can proffer a range of reasonably valid explanations or educational goals to justify particular school policies.

One of the earliest cases of disparate impact in the public education context demonstrates the effect this phenomenon can have on a court. Georgia State Conference of Branches of NAACP, for example, involved a civil rights class action to challenge an achievement grouping practice because it resulted in a disproportionate number of black children being assigned to special education programs. n89 Whether the plaintiffs had made a prima facie case of disparate impact was not in dispute on appeal. n90 The appellate court, however, assigned more weight to the school’s claim that, in line with its educational goals, grouping allowed for more resources to be devoted to “lower achieving students,” and that grouping “improved class manageability, student and teacher comfort, and student motivation.” n91 The court therefore concluded that the school had proven the educational necessity of its practices. n92

In effect, the court in Georgia State Conference of Branches of NAACP, with no serious DOE guidance, evaluated the school’s goals and justification for its practices against contrary evidence provided by the plaintiffs. n93 And that court ultimately decided against the black student plaintiffs. n94 Civil rights plaintiffs – often minority students seeking to vindicate rights granted by Title VI – risk continuing to suffer from what are likely to be courts’ inconsistent application of the [*1387] educational necessity standard. Indeed, Professor Charles Abernathy has suggested that in addition to challenging causation, challenging the educational necessity proffered by a defendant is the most significant hurdle faced by a claimant when asserting racially disparate impact of school practices. n95 The relatively small body of case law interpreting the Title VI disparate impact regulations leaves courts with almost no guidance on how to evaluate a claim that a policy with a negative disparate impact on racial minorities is educationally necessary. n96

Remedying the lack of clarity as to what constitutes an educational necessity is especially important because plaintiffs still rely on Title VI public education disparate impact claims to eradicate continuing discriminatory school policies. n97 In February 2013, for example, civil rights organizations filed a complaint with the OCR claiming that a Texas school district’s practice of issuing criminal tickets as a disciplinary tool in its schools violates Title VI. n98 The [*1388] plaintiffs pointed to the fact that School Resource Officers were four times more likely to issue tickets to black students for criminal offenses of “Disruption of Class” and “Disorderly Conduct – Language” occurring within schools. n99 The plaintiffs’ argument was based on their contention that the ticketing practice was not educationally necessary. n100

In 2014, other civil rights organizations filed Title VI disparate impact violation complaints with the OCR in Newark, n101 New Orleans, n102 and Chicago n103 alleging that black students were subjected to school closures at disproportionately higher rates than white students. In each of these cases, the plaintiffs argued that school closings are not necessary to meet an important educational goal. n104 In Chicago, the plaintiffs further argued that the school closings were both unnecessary and that students rarely end up in schools that provide better school environments or that facilitate improved academic performance. n105 In New Orleans, too, the plaintiffs showed that most of the minority students displaced by closed schools were at schools that were showing improvements, but ultimately were underperforming and failing. n106 The risk of unsuccessful challenges in federal courts to persisting discriminatory policies is disconcerting.

[*1389] Identifying the specific ways courts have inconsistently treated the disparate impact standard is important for determining how they can more effectively enforce it. For one, judicial confusion often arises when deciding whether a policy or practice is properly tailored to meet the educational objectives of a particular educational policy. n107 [*1390] Secondly, courts have not evaluated what an “important goal” n108 of a school is in consistent ways when considering what qualifies as an educational necessity. The looser the definition of “important goal,” the likelier a judge would be to allow a discriminatory, albeit well-intentioned, school policy to stand. This Note encourages strengthened enforcement of Title VI disparate impact for civil rights plaintiffs by proposing a regulation that specifically addresses the latter issue.

Scholars have posited similar reasons for courts’ varying determinations as to what counts as an “important goal” sufficient to constitute an educational necessity. Jennifer Braceras, the former Commissioner of the United States Commission on Civil Rights, concludes that the different approaches to evaluating an educational goal arise because of the “absence of clear and objective criteria by which to judge the ‘necessity’ of a particular educational policy … .” n109 Professor Charles Abernathy cites a number of potential reasons judges’ approaches to Title VI claims have historically resulted in difficulties when determining educational necessity. n110 One of Abernathy’s conclusions is that a judge could easily find that a public educational institution’s interest in an underlying goal was important. n111 Because of [*1391] these traditionally proffered neutral educational goals and the subjectivity of determining importance, judges have a difficult time consistently determining when disparate impact outweighs them. n112 In short, judges simply have not had the capacity or sufficient guidance under regulations or statutes to compare “apples (the plaintiff’s interests in being free of disparate impact) with oranges (the grantee’s interests in pursuing the challenged course of action).” n113

Professor Abernathy also has suggested that different courts’ varying conceptions of the educational necessity standard do not amount to much in terms of case outcomes. n114 But such a suggestion conflicts with the reality that courts’ inconsistent jurisprudence on the educational necessity standard has already had a negative impact on Title VI claimants. n115 This suggestion also conflicts with other scholars’ conclusions of inconsistent judicial considerations of discrimination claims. n116 And as complaints are steadily filed with the DOE, [*1392] there is an increased likelihood that a claim will arise before a federal court; n117 judicial discrepancies with such important implications for civil rights plaintiffs therefore should be resolved. n118

A more forceful regulation, with sufficient authority from the DOE, that clearly sets forth the criterion courts should consider in determining which practices qualify as educational necessities could mitigate this problem. Because courts traditionally have relied on Title VII – and the business necessity standard specifically – for the Title VI judicial standards they have developed for disparate impact claims, n119 it is useful to analyze the evolution of the business necessity standard and the positive impact that its ultimate codification has had on courts’ employment discrimination jurisprudence. The next Subpart takes up this discussion and suggests implications for a similar development of the educational necessity standard. [*1393]


Strike down teacher tenure guidelines

Boutrous, Theodore J, Jr; and Lipshutz, Joshua S. Wall Street Journal, Eastern edition; New York, N.Y. [New York, N.Y]29 Aug 2016: A.11.

The California Supreme Court announced Aug. 22 that it would not hear Vergara v. California, a landmark case fighting for the educational rights of public-school students. The court’s unwillingness even to consider an issue that Justice Goodwin Liu called “one of the most consequential to the future of California” demonstrates why the federal courts must intervene and recognize that the U.S. Constitution guarantees a fundamental right to education. In Vergara, nine students challenged teacher-tenure and dismissal laws that make it nearly impossible for school districts to remove grossly ineffective teachers from the classroom. We were part of the team, along with our partner former U.S. Solicitor General Theodore Olson, who represented the student plaintiffs. After an eight-week bench trial in 2014, Los Angeles County Superior Court Judge Rolf Treu struck down the statutes under the state constitution because their twisted logic is “unfathomable” and they inflict harm so severe that it “shocks the conscience.” Judge Treu’s decision attracted national attention. Then-Education Secretary Arne Duncan declared that the decision “presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students’ rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve.” The state of California and California’s two largest teachers unions appealed. In its decision, the California Court of Appeal acknowledged that the laws are a “problem,” agreed that they likely lead to “grossly ineffective teachers being in the educational system,” and described the situation as “deplorable.” The court sided with the unions anyway. The case seemed destined for the California Supreme Court, but on Aug. 22 the court declined to hear the case by a vote of 4-3. Pursuant to its ordinary procedures, the court did not explain why. Yet two justices took the extraordinary step of issuing dissenting opinions decrying the majority’s failure to act. Justice Liu wrote that “[t]he nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state’s highest court.” Justice Mariano-Florentino Cuellar described the laws as “staggering failures that threaten to turn the right to education for California schoolchildren into an empty promise.” California’s refusal to protect its young citizens has made federal protection essential. Public education meets the U.S. Supreme Court’s fundamental-right test, as articulated in Washington v. Glucksberg (1997), because it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Laws that impair that right should be subject to strict scrutiny under the Constitution’s due-process and equal-protection clauses. Public education has been a fundamental pillar of U.S. society since the nation’s founding, when the Continental Congress set aside public lands “to support a system of schools in a state.” As the Supreme Court put it in 1954’s historic Brown v. Board of Education ruling: “it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.” Two decades after Brown, the Supreme Court in San Antonio Independent School District v. Rodriguez (1973) held that education is not a fundamental right in the context of school funding. But it expressly left open the possibility that a right to education might be recognized in another situation. In Papasan v. Allain (1986), the court made clear that whether education is a fundamental right is “not yet definitively settled.” Such a right would not be an open invitation for federal courts to manage schools or for litigants to bring every education policy question to federal court. Rather, it would protect children across the country against state laws and policies that actively and knowingly deprive them of essential educational opportunities and create egregious inequality, like the California statutes in Vergara. The day after the denial of review in Vergara, we filed a case in Connecticut federal court, Martinez v. Malloy. We argue for a federal constitutional right to challenge laws that force inner-city children to attend schools that the state knows are failing to provide a minimally acceptable education. These laws are especially cruel because Connecticut has some terrific public schools, including in urban centers. Magnet schools and public charter schools achieve outstanding results for students. Yet Connecticut has defied reason and imposed a moratorium on magnet schools and an effective cap on charter schools. The state also punishes high-quality public schools that accept transfer students from failing schools. Inner-city kids have to win a lottery to gain access to decent schools. In Brown, the Supreme Court described education as the “very foundation of good citizenship,” and proclaimed that the “opportunity of an education . . . is a right which must be made available to all on equal terms.” The federal courts should transform these powerful words into a reality and enforce the fundamental right of children to education in this country.

The plan only works under the federal government, solving herd immunity is an imminent problem, exemptions are useless, and there’s no tradeoff to buying massive amounts of vaccines — this card will blow your mind

PAUL OFFIT 6/30/17 — Pediatrician specializing in infectious diseases and an expert on vaccines, immunology, and virology. Co-inventor of a rotavirus vaccine. Offit is the Maurice R. Hilleman Professor of Vaccinology, professor of Pediatrics at the Perelman School of Medicine at the University of Pennsylvania, chief of the Division of Infectious Diseases, and the director of the Vaccine Education Center at The Children’s Hospital of Philadelphia. Former member of the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices. Offit is a board member of Every Child by Two and a founding board member of the Autism Science Foundation (ASF). Pandora’s Lab is his ninth book. (“Interview of Paul Offit!”, Paul Offit, June 30, 2017, Interview with Chirag Jain, Transcribed by Chirag Jain –, )//chiragjain

Chirag: Do you think that state governments have the potential of getting mandatory vaccines and how do you think state budgets could maintain the reimbursement of vaccines that are required by the ACA in the status quo? Paul: States some states mandate various vaccines other states less. There are only three states that have only medical exemptions, in other words only three states don’t have non- medical exemptions, so which is a religious or philosophical exemptions. 47 states have religious and philosophical exemptions, or at least one or the other or both. Whereas 3 states only have medical exemptions. So in the sense so states should mandate vaccines, do I think states should mandate vaccines? Is that the question? Yes, I do. Because otherwise, I think if you ask other anti-vaccine groups, what they want, I think they say fake vaccines are an option. And I think when that happens, you will begin to see outbreaks. Chirag: So right now there was an article two days ago from Illinois that was talking about how state budgets can’t maintain the reimbursements for the vaccines for doctors, because it’s required by the ACA, so how do you think states could like maintain that I guess? Paul: I don’t think they can. Chirag: So you think the federal government should then? Paul: Yes, I think the federal government has to help, it’s — different states have different abilities to afford vaccines because bacteria and viruses don’t recognize state lines, I think it’s a federal issue. Chirag: What kind of vaccine education do you think would be good, so like parents or students, what do you think would be good? Paul: I think vaccine education should start in elementary school, and that be continued in junior high and high school. I don’t think children really learn much about vaccines other than that they hurt, and so I think it would be valuable that education start from the beginning. Chirag: So in your article “What Makes Trumpcare so Dangerous for Kids” you say that vaccines save 1..65 trillion in societal costs, so do you think that with the current rate in increases in parent refusal, there would be some sort of impact on the economy in things like healthcare costs? Paul: Sure I mean if, if Trumpcare comes through, even right now, as it stands, they’re going to eliminate the prevention public health fund, but that’s a big hit to the CDC. The CDC will also get a hit from the president’s budget, so I think although the Vaccines For Children program that buys 55% of all vaccines in this country will survive, it appears to be able to survive, administering a program will be much harder because there will be much less money to do it, do I think that that could result in an erosion of vaccine rates, I DO! Do I think that that could result in outbreaks, I do, and do I think those outbreaks would be incredibly costly, they always are. So yeah i think it’s pay me now or pay me later I think the administration they really need to follow through on this or they will end up paying later . Chirag: If anti vaccination activists continue to deter people from getting vaccinations, do you think that there is a chance of a major epidemic? Paul: Yes, I think it already happened, if you look at 2014, an outbreak among an Amish community in Ohio involved 680 people again measles in 2015 there was an outbreak that started in Southern California with measles again in undervaccinated population spread to 25 states killed 190 people spread to 2 Canadian provinces, and now we have this currently there’s an outbreak in a Somali population in Minnesota again because people are choosing not to vaccinate so I don’t think we have to keep learning the same lesson. Chirag: Ok that makes sense. Now as you said you would suggest that the federal government require vaccinations, now that there’s things like backlash from people, or also the budget question as to how much it would cost to produce that many vaccines, do you think that there would be a better way of going about that? Like making exemptions really hard and getting rid of the philosophical exemption? Paul Offit: I think first of all this makes no sense — so like philosophy, really? Really? So like someone just says it’s better not to get a vaccine than to get one, i mean some people call them personal belief exemptions? Vaccines aren’t a belief system, they’re an evidence-based system. Religion is a belief system, which brings us to religious exemptions. I think that a choice to put your child in unnecessary risk is a profoundly unreligious thing to do, I think that to put children who your children come in contact with at an unnecessary risk is an unreligious thing to do. Religion teaches us to care about families, to care about our neighbors, so I don’t see this as a religious thing. So call it what it is. Which is that I’m scared of vaccines I read a lot of scary stuff on the internet, I think that Jenny McCarthy knows what she’s talking about, so I’m not gonna get vaccines. That’s really what it is. I think we just window-dress it with words like philosophy and religion. Chirag: So I read an article from 2016 that proposes a policy about how airlines could require passengers to get vaccinated, and that would allow most of the rich white upper class that get’s exemptions to get vaccinated for purposes of family travel or business travel. Do you think that would be a viable idea so it avoids backlash and Congress and stuff like that? Paul Offit: The point being that most people that choose to exempt are people that fly? Chirag: Yes Paul Offit: I think that it’s interesting, I think it would be very hard to workout in real life. How are you documenting whether people have vaccines, I’m sure people would find doctors that would probably be willing to say, that they got vaccines. That’s already happening in California, where you can buy medical exemptions. You just have to go to the right doctor and for a certain amount of money they’ll write you an exemption. So it kind of creates a black market for those exemptions, but yeah, I think it would be an interesting idea. Chirag: So on that note, I read articles about “fringe doctors” that you can buy medical exemptions from. Is there anyway to prevent the black market exemptions? Paul: yes I think that the state people probably know which doctors they are, In a better world professional societies like the American Academy of Pediatrics should step forward and make it clear that they shouldn’t do that, and if they do do that, then they should take away their medical license, its fraud. They’re misrepresenting information, that’s fraud, and that puts other people at risk. Chirag: Right, so I guess that if the federal government said that vaccinations are mandatory, would that result in a lot of people going to these doctors for buying medical exemptions? Paul: Right, I think it would. Chirag: More relating to the Trump administration and our Secretary of Health and Human Services is Tom price, do you think that a mandatory vaccine policy, in the world that it was implemented, would get rolled back or face major problems because of the administration? Paul: It is a Republican administration, it’s a general they don’t like having the government involved in this, these are the last people interested in mandates, I don’t think it can ever happen. I’m just hoping the current vaccine policy survives in this administration. Chirag: If it did get passed, do you think there would be problems related to the Trump administration? Paul: I don’t think that it wouldn’t get passed. The House of Representatives is Republican, the Senate is republican, and the President is republican, it would never happen. It’s like imagining a president that wasn’t a misogynistic pig. Chirag: I was also looking at things about herd immunity, do you think that a the difference in 90% and 95% is an exponential difference even though it’s just 5%? Paul: So it always depends on the pathogen or the germ, so for highly contagious diseases like measles it would be a fairly high percentage of people that need to be vaccinated in order to prevent spread. So measles is in this 92-95% range, for polio it’s much less because they aren’t as contagious. We dramatically decreased the amount of people with polio when we got to 40-50%. It also depends on the efficacy of the vaccine, it depends on the virus, like if you took the 5% of people that choose not to get vaccines or didn’t get vaccinated because they can’t get vaccinated, and you equally spread that out over most of the country, I don’t think it would have that bad of an effect. But i think it’s the concentration thats the problem, so like the Amish community, the California community, the Somali community, there you have a significant percent of people that aren’t vaccinated, like probably even more than 20%. Chirag: That makes sense, so it’s like the concentrated hot spots that would be the problem? Paul: That’s correct. Chirag: If the federal government does mandatory vaccinations, it would be globally modeled? Paul: I mean other countries have mandatory vaccinations, like in Saudi Arabia if you don’t get vaccinated in the first year of life, you don’t get a birth certificate. Some countries are much better at it, like in Scandinavia almost everyone gets vaccinated because they trust their government, they trust their scientists , they think that those people are working on their behalf. Germany doesn’t, France doesn’t, England doesn’t, so they don’t mandate vaccines. You have countries that don’t mandate that have high vaccination rates like Scandinavia, you have countries that have low vaccination rates and you have countries that basically have compulsory vaccinations. So how does it work in this country, I mean it’s a country that has been found on individual freedoms, we don’t like to be told what to do, and that’s what’s caused us problems. I mean we could be where France is, where we are routinely facing epidemics. Chirag: That makes sense, I was wondering about the legality about state based vaccinations relating to the Commerce Clause and how states can’t set prices to buy vaccinations from other states, would there be a way for states to buy mandatory vaccinations? Paul: I don’t know, you should ask a lawyer that question. Chirag: So do you think that vaccinations considering that they are a new field in the pharmaceutical industry, would be a big boost to the pharmaceutical industry if they were made mandatory? Paul: No. Because vaccines are something you give once or a couple times in a lifetime, and that doesn’t compete with diabetes drugs or psychiatric drugs that are given everyday, I think vaccinations are never gonna be there, that’s why so few companies make vaccines, only four companies make vaccines for people in the United States, because there’s so few people. Chirag: So we were looking at proposals for something that would have vaccinations bought by the federal government and be provided to schools so that people that don’t get vaccinations right now can get vaccinations for free of cost. Do you think that would be economically sustainable? Paul: It’s already happening, that’s what the Vaccines for Children program does, it was launched in the early 1990s under the Clinton Administration, to buy vaccines for all children that are either uninsured or underinsured to make sure that everyone in this country can get a vaccine even if they can’t afford, that’s an entitlement program and its been in place since the 1990s, I don’t even think the current administration would threaten that program, but if it did that would be a big problem because currently it provides for 55% of vaccinations for children. Chirag: Thank you, you’re okay with this being published for evidence in debate, right? Paul: Of course, yes. Chirag: Thank you! Paul: Of course, no problem.

Overturn Hazlewood — free speech

Hazelwood must be overturned, minor modifications to the doctrine won’t prevent censorship

Journal of Law & Education 2000

(Scott Andrew Felder, JD Candidate, Copyright (c) 2000 Jefferson Law Book Company, Division of Anderson Publishing Co. Journal of Law & Education October, 2000 29 J.L. & Educ. 433 Stop the Presses: Censorship and the High School Journalist)

One judicial solution, narrow interpretation of Hazelwood, has already been briefly noted. As mentioned above, most courts that end up striking down censorship do so by narrowly defining “school-sponsored” so as to exclude the particular student speech at issue. One such court discussed at length the undesirability of restrictions on free speech, even in the admittedly different environment of a public high school, and refused to apply Hazelwood to different facts. In the judge’s opinion, the Supreme Court’s decision in Board of Education v. Pico, n189 which distinguished between books removed from a school library (books the student could voluntarily choose to read) and those not selected as part of the school’s curriculum (books the student would otherwise be compelled to read), provided adequate support for the decision to differentiate between curricular (containing mandatory statements) and extracurricular (containing voluntary statements) student publications. n190 Similar logic was used to conclude that school funding is not dispositive to the school-sponsored analysis. n191 While this sort of approach may work, the mine run of cases applying Hazelwood read it as broadly as possible in deference to local school officials. n192 A more novel approach is the content-specific analysis proposed by Wilborn that, like Hazelwood, divides student speech into three categories. n193 The first category, political speech, would be governed by Tinker. n194 Scholastic speech would be analyzed under the Central Hudson Gas & Electric Corp. v. Public Services Commission n195 commercial speech test. n196 The final category of speech, obscene and indecent speech, would be judged under Fraser and Hazelwood. n197 This approach, unique though it may be, is not entirely content-based and presents a set of problems all its own. Scholastic speech, defined by Wilborn as “speech that is school-sponsored or that occurs during a school program that a reasonable student or member of the community might reasonably attribute (at least in part) to the school[,]” n198 is a context-based category. This reopens the door for school officials to censor more types of student speech simply by classifying it as scholastic, obscene, or indecent. Though the Central Hudson test would be more protective of the students than the Hazelwood test, as the interest must be substantial rather than just legitimate, the relationship between means and ends must be direct rather than reasonable, and the regulation must be no more extensive than necessary. n199 Moreover, nothing suggests that courts would be any less deferential to these categorizations than they are to school officials’ decisions under Hazelwood. Wilborn maintains that this possibility of characterization and increased censorship in individual cases is more than offset by the increased protection afforded student speech by applying the Central Hudson and Tinker tests to all but obscene and indecent speech. n200 Helping Yourself All is not lost in states where a broad interpretation of Hazelwood survives. Some state departments of education have promulgated regulations that protect student expression more broadly than Hazelwood. n201 In addition, self-help is always an option. Students can go to the mainstream press, as the Parkway West students did, or to the Bolt Reporter, n202 an online forum for students to publish censored works and discuss school censorship. Finally, students can also engage in Tinker speech to the same effect of the speech that was censored under Hazelwood. Hazelwood provides school officials with virtually plenary authority to censor student speech. Since courts will be very deferential in reviewing the asserted legitimate pedagogical concern implicated by a particular restriction, it is unlikely that censorship will be overturned under the Hazelwood standard. This ultimately boils down to giving school officials the right to act as thought police, prohibiting that speech they do not agree with because they do not agree with it. If the purpose of high school is to prepare students for college and the world beyond, the schools could better serve their mission by allowing students to exercise their First Amendment freedoms; censorship teaches students only that their constitutional protections of free speech are different from everyone else’s. Justice Brennan said it best: “The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.” n203 The Court used to agree with him, n204 and it is unfortunate for the students that it does not do so any longer.

Affirming Plyler with a 13th amendment justification is necessary to preempt any future justification for denying education to undocumented students

Ontiveros 07 (Maria L. Ontiveros, Professor and Dean’s Circle Scholar at the University of San Francisco School of Law. “The Thirteenth Amendment and the Rights of Children of Undocumented Workers: A New Look at Plyler v. Doe.” Working Paper for the Warren Institute Roundtable “Educating Undocumented Students – Plyler v. Doe.” Spring, 2007., vm)

  1. Theoretical Frameworks for Analyzing the Denial of Education under the Thirteenth Amendment 1. The Conservative Approach: “Badges and Incidents of Slavery” Two authors have put forward frameworks for evaluating whether certain deprivations run afoul of the Thirteenth Amendment prohibition on “badges and incidents of slavery.” Carter looks at: (1) the connection between the class to which the plaintiff belongs and the institution of chattel slavery and (2) the connection between the complained-of injury to the institution of slavery.20 He argues that if the plaintiff is not African American or some other historical victim of class-based discrimination, it is more difficult (but not impossible) to establish a Thirteenth Amendment claim. Other groups can establish claims when the types of injuries or forms of discrimination practiced are closely tied to the structures supporting or created by the system of slavery. Tsesis, on the other hand, focuses on the freedom and liberty guaranteed by the Amendment’s prohibition on “slavery.” He argues that the Amendment contains a negative prohibition against social and economic injustices that abridge fundamental liberties,21 including but not limited to he right to make parental decisions, to travel, and to enter into employment and real estate contracts, as well as a positive grant of freedom.22 He emphasizes that the Amendment’s protection should not “stop at the disabilities existing contemporaneously with the passage of the amendment and the federal laws that followed on its bootstraps. The broader question is whether there continue to be indicia of servitude that interfere with the lives, liberties, and well-being of persons within the United States.”23 Under the Tsesis approach, the Thirteenth Amendment prohibits such interferences. a. Thirteenth Amendment Implications Carter and Tsesis provide conservative approaches to defining conduct prohibited under the Thirteenth Amendment because their analysis accepts the Court’s two-pronged approach to Thirteenth Amendment analysis and focus squarely on the “slavery” prong. In addition, their analyses track to some extent Fourteenth Amendment analysis by looking at something akin to protected classes and fundamental rights (Carter) or a constitutional guarantee of liberty (Tsesis). Since they track existing doctrine and may be most acceptable to the Judiciary, their approaches may be the best starting point in any litigation. The denial of education to children of undocumented workers fits within either of these frameworks. Under the Carter approach, undocumented workers and their children are very much like the class of people harmed by chattel slavery. They are non-citizen workers of color, laboring beneath the floor for free labor and subjected to violations of human, civil and workplace rights.24 As the lower federal court noted in the Plyler opinion, “the confluence of Government policies has resulted in ‘the existence of a large number of employed illegal aliens, such as the parents of plaintiffs in this case, whose presence is tolerated, whose employment is perhaps even welcomed, but who are virtually defenseless against any abuse, exploitation, or callous neglect to which the state or the state’s natural citizens and business organizations may wish to subject them.’”25 All the Plyler opinions note the life-long nature of the caste to which uneducated undocumented children would be confined. Both the Carter and Tsesis approaches would look to the role denial of education played in the institution of chattel slavery, the perpetuation of racial subordination, and its impact on the freedom/liberty of individuals. Denial of education was key to the institution of slavery, and many states prohibited slaves from receiving any form of education.26 The systematic exclusion of blacks from education following the Civil War perpetuated racial subordination. Bullock27 shows how, following the Civil War, “the South, in keeping with its traditional prejudices, hurriedly erected barriers against the realization of two of the Negro’s most pressing aspirations: the aim to become a full-fledged citizen and the desire to educate his children.”28 Some states, such as North Carolina, closed black schools and made it a crime to teach Blacks how to read. Other states, such as Florida, imposed special taxes on Blacks to maintain Black schools. Most Blacks could not afford the taxes, and the inadequate funding led to inadequate schools. Social pressures also impeded Black children from receiving education.29 Anderson30 describes the dominant type of education offered to Blacks as a “unique form of second-class education to reinforce the social oppression of black southerners.”31 The Hampton Normal and Agricultural Institute, for example, was founded “to socialize blacks to understand and accept their disenfranchisement and to make them more productive laborers.”32 Slaves and ex-slaves, on the other hand, possessed a fundamental belief in the value and power of education and literacy as a method to attain true freedom, enfranchisement and equality. Walters33 charts the mechanisms used by whites to frustrate the desires of the freed slaves and their descendents. By first disenfranchising Blacks and then setting up a system of school resource allocation controlled by local officials, Black children were excluded decent education. Thus, the denial of education to Blacks and their children was part of the method for perpetuating inequality and subordination. If States seek to overrule Plyler and deny public education to the children of undocumented workers, the denial would fit within the definition of “badges and incidents” of slavery.” Such denial would prevent the workers and their children from becoming full members of society. It reinforces their status as castemembers of workers without human or workplace rights. It prevents them from attaining the skills they need to advocate for better work conditions or enfranchisement. It has the same effect (and may serve the same purpose) at the denial of education to slaves and freed blacks. One advantage to using a Thirteenth Amendment argument is that the state may not attempt to justify the prohibition. The Amendment simply states that slavery shall not exist in the United States.34


*Solvency Answers

Federal funds have not improved educational outcomes

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Recently released research found that the vast amount of federal funds sent to states and local school districts to improve the lowest-performing schools are not very effective, as only one-third of schools receiving federal School Improvement Grants improved over time (Layton, 2015). Rippner, Jennifer A.. The American Education Policy Landscape (p. 108). Taylor and Francis. Kindle Edition.

National standardization undermines teacher quality

Carol Mullen, 2016, professor of Education Leadership, Virginia Tech, 2016, page number and source at end of card

Money-Making Markets These growing education markets make money hand-over-fist. The incomes of Achieve’s executives are but one toxin in this polluted ocean. The resulting education crisis has enabled “state-led” intervention through “the provision of CCSS-based tests (PARCC and Smarter Balanced), prepackaged materials developed by educational publishers, and educational technologies and games” (Brass, 2014, p. 24). In this product-packaged school life, the teacher is being “manufactured” as a consumer of new technologies and is being remodeled to   accommodate the tests and services. In a world of market domination, the teacher who has been classically prepared for the educative role of curriculum maker, or who stays in education because of the independent thinking and professionalism it affords, has been robbed of it.

Federal accountability efforts have failed

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The above principles provide an affirmative case for action by the federal government. It is equally important to consider the limits these principles entail, as actions that are otherwise consistent with our affirmative case can inadvertently undermine local goals and have unintended consequences.6 Even if individual regulations are well intentioned, their cumulative and unintended effects can be difficult to predict and may induce educators to focus on compliance over student success. Federal policymakers should bear this in mind when applying the principles to specific issues, exercising caution even when undertaking actions that the principles would otherwise seem to justify. To illustrate these limits more concretely, we consider some of the most controversial policy issues of the past quarter-century: test-based accountability and school choice. It might seem self-evident that the federal government should require that states hold their schools accountable, especially for ensuring that all students obtain basic skills. Our own stated principles emphasize the importance of equal opportunity and that the federal government has fiduciary responsibility to ensure that public resources are used effectively. Moreover, accountability supporters argue that capacity and pressure are complementary—that neither works without the other. Even if we accept these arguments, differences in the needs and goals across communities are likely to undermine the success of any standardized federal accountability system. The track record of recent federal accountability efforts bears this out, as research indicates that their effects on student achievement outcomes have been limited.

New programs fail

Anthony Bryk is President of the Carnegie Foundation for the Advancement of Teaching, Helen Ladd Nonresident Senior Fellow – Governance StudiesBrown Center on Education Policy, Jennifer O’Day is an Institute Fellow at the American Institutes for Research, Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching and previously served as the Under Secretary of the U.S. Department of Education. December 21, 2016, A shift in the federal role is needed to promote school improvement,

The variability among states, districts, and schools poses another daunting national problem: how to assure reliable, quality educational outcomes, day in and day out, for different subgroups of students across the diverse backdrops of schooling in America? Additional resources may be necessary, but we also know from past experiences that simply adding more money, more materials, more technology, or even more people doesn’t guarantee improvement. Neither does adding new interventions that may have been shown to work in one situation but haven’t been tested to determine if they’re likely to succeed or be adaptable in other contexts. Put simply, what works in some places often doesn’t work in many others.

*Disadvantage Links

Spending Link — Education spending trades-off with military spending

Carol Mullen, 2016, professor of Education Leadership, Virginia Tech, 2016, page number and source at end of card

As public school activists believe, corporations invade schools, destroying their integrity and the capacity of school people to do their jobs. The military take on this equation is very real, although from another perspective. As James Heintz (2011) of the Political Economy Research Institute explained, heavy investment from the federal government in the military has deprived the nation’s schools, robbing them of much-needed improvements in poor infrastructure (e.g., English, 2014; Ravitch, 2013), including horrendous sanitary problems in Michigan schools. Christopher H. Tienken and Carol A. Mullen. Education Policy Perils: Tackling Tough Issues (p. 30). Taylor and Francis. Kindle Edition.

Spending link –Trump’s budget SIGNALS our commitment to fiscal health – cuts to education are key

Boccia et al 5/23/17 (Romina, Thomas Spoehr, Michael Sargent, Robert Moffitt, Lindsey Burke, Policy Analysts @ Heritage Foundation, “Heritage Experts Analyze Trump’s Budget,”

Balancing the Budget “The president’s budget seeks to balance in no more than 10 years. This is a laudable and important goal that fiscal conservatives should keep their eye on. The budget does this in part with sensible mandatory spending reforms to Medicaid, welfare and disability programs. This budget proposal also follows the right approach on discretionary spending, by prioritizing national defense in a fiscally responsible way, with offsetting cuts to domestic programs that are redundant, improper, or otherwise wasteful. As is so often the case, however, the devil is in the details. Long-term budget solvency must include reforms to the largest entitlement programs: Medicare and Social Security. These programs alone consume 4 of every 10 federal dollars, and they are expanding. Moreover, this budget would rely on $2 trillion in economic feedback effects for deficit reduction, a figure that is highly uncertain. Greater spending cuts would have lent more fiscal credibility. Overall, this budget takes important strides toward cutting the federal government down to size.” —Romina Boccia, Deputy Director of the Thomas A. Roe Institute for Economic Policy Studies and the Grover M. Hermann fellow in federal budgetary affairs Defense “Though the White House is right to call for more, much-needed defense funding, $603 billion represents only a $16.8-billion increase from the Obama administration’s meager planned defense spending for 2018. A $603 billion budget for 2018 might be enough to stop the immediate deterioration and cuts in forces, but it will certainly not be enough to reverse the ravages already experienced. Perhaps the most heartening thing about this request is the administration’s follow-through on its expressed intent to repeal the defense budget caps set by the Budget Control Act of 2011, which have been both disruptive and destructive to military readiness. The U.S. military—in both size and readiness—has shrunk to historically low levels, all while its budget has been held hostage to domestic policy whims. Naysayers downplay the poor state of the military. But those who deny the existence of readiness problems are contradicted by the repeated testimony of dozens of senior uniformed and civilian military leaders. Those leaders uniformly agree that today’s military is desperately overtaxed and under-resourced. As the Heritage Foundation’s Index of U.S. Military Strength reports, today our armed forces would be severely challenged to execute our defense strategy with the current force. The Heritage Foundation has proposed a 2018 funding level of $632 billion. It includes proposals for defense reform and savings to help restore our military’s strength and punch. Lawmakers finally need to demonstrate that they take the duty to provide for the common defense quite seriously. Lip service is not enough. We must begin to provide our men and women in uniform the equipment and resources they need to defend our country. Congress must hear and heed the Pentagon’s candid voice in the upcoming budget debates. And lawmakers must then act to begin rebuilding our depleted military now.” —Thomas Spoehr, Director of Heritage’s Center for National Defense Transportation and Infrastructure “The administration’s budget contains a number of laudable transportation and infrastructure proposals that reform wasteful or improper programs while empowering states and the private sector to meet the nation’s burgeoning transportation needs. Many of the reforms were recommended by the Heritage Foundation in its roadmap for $1.1 trillion in infrastructure investment and Blueprint for Balance, including: structural reform of our outdated Air Traffic Control system; reforming the wasteful Essential Air Service program; and auctioning off valuable spectrum for private use. Also encouraging is the proposal to reform the financing of the nation’s inland waterways infrastructure, which has long required modernization. “However, many questions about the Administration’s signature infrastructure proposal remain. Worrisomely, the budget includes an additional $200 billion in spending as a placeholder for ‘private/public infrastructure investment’ with few details as to how the funds will be allocated. Details regarding the plan and whether they will be offset with meaningful cuts elsewhere will be crucial in evaluating the plan and ensuring a repeat of the 2009 stimulus boondoggle is avoided. In addition, the Budget includes a proposal to assume Highway Trust Fund spending levels fall to revenue levels—a savings of $15 billion to $20 billion per year. While limiting trust fund spending to revenues would be excellent policy, it is highly unlikely Congress will decide to rein in its overspending out of the Highway Trust Fund, which it has carried on for nearly 10 years. Simply assuming these savings will accrue without putting forward a substantive proposal to ensure that Congress stops its mismanagement of the trust fund would represent a nearly $100 billion budget gimmick and cannot be considered to have a real budgetary impact. “While the Budget contains many worthwhile reforms, more details regarding the administration’s infrastructure proposal are required in order to form a comprehensive evaluation of the administration’s infrastructure agenda.” —Michael Sargent, Policy Analyst in Heritage’s Institute for Economic Freedom and Opportunity Education “The Trump administration’s full budget for education for FY 2018 would make some long-overdue cuts at the Department of Education, eyeing reductions in spending totaling $9.2 billion – a 13.6 percent cut in the agency’s current $68 billion annual budget. That type of reduction signals a serious commitment to reducing federal intervention in education – a necessary condition to make space for a restoration of state and local control.” —Lindsey Burke, Director of Heritage’s Center for Education Policy


Federalism Link — Education is the province of the states

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

As noted previously, the U.S. Constitution does not contain provisions for any level of education. Therefore, it remains the province of states. Rippner, Jennifer A.. The American Education Policy Landscape (p. 20). Taylor and Francis. Kindle Edition.


Hollow Hope Link —  Court decisions produce a political backlash, undermining social change

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.

Before I sum up the findings of this chapter, 1 think it is important to note that while there is little evidence that Brown helped produce positive change, there is some evidence that it hardened resistance to civil rights among both elites and the white public. I have documented how, throughout the South, white groups intent on using coercion and violence to prevent change grew. Resistance to change increased in all areas, not merely in education but also in voting, transportation, public places, and so on. Brown “unleashed a wave of racism that reached hysterical proportions” (Fairclough 1987, 21). On the elite level, Brown was used as a club by Southerners to fight any civil rights legislation as a ploy to force school desegregation on the South. Just a few days before Brown was decided, for example, a U.S. House committee opened hearings on a bill introduced by Massachusetts Republican John W. Heselton to ban segregation in interstate travel. The bill died and Brown, Barnes concludes, “probably contributed to the demise” (Barnes 1983, 94). In hearings and floor debates on the 1957 Civil Rights Act, Southerners repeatedly peatedly charged that the bill, aimed at voting rights, was a subterfuge to force school desegregation on the South (U.S. Cong., House 1957, 806, 1187; Cong. Rec. 1957, 9627, 10771). When Attorney General Brownell testified before a Senate committee on the 1957 bill, he was queried repeatedly and to his astonishment on whether the bill gave the president the power to use the armed forces to enforce desegregation (U.S. Cong., Senate, Hearings ings 1957, 214-16). By stiffening resistance and raising fears before the activist tivist phase of the civil rights movement was in place, Brown may actually have delayed the achievement of civil rights. Relying on the Dynamic Court view of change, and litigating to produce significant social reform, may have surprising and unfortunate costs. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 2233-2239). Kindle Edition.

Politics Links  — School choice example

Stephen Gregory, February 16, 2017, Epoch Times, Education Secretary Devoss Faces Uphill Battle go Give Parents More Choice,

In the course of debating ESSA, issues regarding charter schools and vouchers were discussed, and there is probably little appetite among senators to take up this debate again so soon after passing this law, says Whitehurst. Moreover, he does not believe the politics of the Senate have changed substantially since 2015 (only seven new Senators were elected: five Democrats and two Republicans), which makes achieving a different outcome unlikely. In particular, ESSA makes no provision for school vouchers. If Trump has sufficient political capital and pushes for vouchers, Whitehurst believes amending the law might be possible. But passing a national voucher program would be difficult, in part because of strong opposition from teachers unions. Whitehurst suggests that giving states the alternative of using their federal funds for vouchers might overcome resistance from states not interested in offering vouchers.

Politics — Midterms

Trump’s low approval ratings lead to Democratic House Majority in 2018—it’s the key leading indicator

Lambrecht 6-25 [Bill Lambrecht, Washington Bureau, “Despite Georgia loss, Texas Democrats confident about next year”, San Antonio Express-News, 6-25-2017,] /AB

“There is no doubt that the House is in play,” Rep. Ben Ray Lujan of New Mexico, chairman of the Democratic Congressional Campaign Committee, told reporters Thursday while trying to buck up demoralized Democrats. Lujan supplemented his words with polls showing support eroding for Republicans in more than two dozen House districts, presumably because of Trump. Analysts note that a president’s popularity often is a key factor in congressional contests. “The most important leading indicator for 2018 is not the special elections but President Trump’s approval rating, which is 40 percent or lower,” said Alan Abramowitz of Emory University. “That’s a big, bright red warning sign that is flashing.” Abramowitz, author of several books on elections, recalled that George W. Bush’s positive rating hovered at about 40 percent in 2006, when Democrats gained 31 seats, twice what they needed to regain control of the chamber. “If Trump’s approval ratings remain that low or go even lower, I think Democrats are going to have a pretty good year in terms of recruitment and have a shot at picking up the House and several governorships,” he said. The view of Trump could well improve if the president enables Republicans to succeed in the goals of repealing the Affordable Care Act and revising the income tax code in ways that lower rates and simplify filing. Yet Democrats thus far haven’t settled on a strategy, as the congressional race in Georgia suggested. The loss fueled an internal debate over what message Democrats ought to present to voters. “There isn’t a message right now, but so what?” said Simon Rosenberg, president and founder of NDN, a Democratic-aligned think tank in Washington “Democrats don’t need to have a message at this point other than they’re fighting to stop the worst excesses of the Trump agenda. That’s all they can do. There’s time to develop a message,” he said.

Successful education policy is key to the election – incumbent party will get the credit – boosts Trump

Hansen 2016 – Michael Hansen, The Herman and George R. Brown Chair and Director – Brown Center on Education PolicySenior Fellow – Governance Studies (“2016: The education election nobody saw coming,” bhb

A related point to the educational divide is whether different education policy during Obama’s administration may have produced a better outcome for the Democratic party in this election. Trump enjoyed the greatest level of support in locales that are estimated to have the lowest levels of economic mobility; in other words, where the transmission of poverty status from one generation to the next is most likely. Education at all levels – pre-K, K-12 and higher education – are all integral parts of promoting greater social mobility; yet, maybe all of the education reforms under Obama failed to move the needle among some of these high-need populations that may reside outside major cities.


Cap K — National standards/regulations support the nation-wide marketization of education

Carol Mullen, 2016, professor of Education Leadership, Virginia Tech, 2016, page number and source at end of card

Yet Jones and King (2012) insisted that the CCSS is not a “national curriculum” that violates state and local control of education or places constitutional limits on the federal government’s influence over curriculum and pedagogy. Their logic is misleading and dangerous, and so is this demarcation. Those who make this argument invoking constitutional limitations are obscuring how the CCSS works to discipline classroom practice and, moreover, to force radical shifts in the governance of public education in the United States (English, 2014; Papa et al., 2012). The CCSS did not pop up out of nowhere as a heavily financed   policy initiative. The underlying ideologies and practices of corporate accountability and standardization have been inextricably meshed with federal legislation in education that has existed for more than 20 years (Bracken, 2013). As Wexler (2014) explained, policy reform has led to the involvement of the Gates and Broad Foundations, which set in motion the corporate reforms of the CCSS— reforms such as standardized testing; adequate yearly progress (AYP); and CCSS predecessors such as the Elementary and Secondary School Act of 1965 (ESEA, 2003), the No Child Left Behind Act of 2001 (NCLB, 2003), and the Race to the Top (RTTT) Fund. Ravitch (2013) further documented that “national standards and national assessments created a national   marketplace for products” (p. 181). “Equity investors” acted on ideas to make “resources, hardware, and online curricula for the new national [CCSS]. National standards and national assessments created a national marketplace for products” (Ravitch, 2013, p. 181). One consultant (not identified, Ravitch, 2013) predicted that public school officials would be put in the position of wanting to receive assistance from businesses, worrying that if the CCSS tests turned out to be as rigorous as promoted, the students and schools would look bad (Ravitch, 2013). Was this school dynamic an example of backdoor policy manipulation by shadow governments? Christopher H. Tienken and Carol A. Mullen. Education Policy Perils: Tackling Tough Issues (p. 37). Taylor and Francis. Kindle Edition.

Cap K — Public funding ends up benefitting market solutions

Carol Mullen, 2016, professor of Education Leadership, Virginia Tech, 2016, page number and source at end of card

Brass’s (2014) fiscal breakdown of profitable wins for the private sector animates an undeniable picture of greed: The $ 350 million of federal funding for CCSS-aligned tests represent a small portion of the $ 4.35 billion in economic stimulus money that the federal department of education has distributed to states, professional organizations, and private businesses to develop and promote the standards and CCSS-aligned tests, services, and products. (p. 24) Just think about how the federal dollars have been used. Brass (2014) explained that most of it has gone “to subsidize entrepreneurs, testing companies, and the educational technology sector to displace the curricular   and pedagogical leadership of elected public representatives— for example, state legislatures, state regents, and local school boards— at the public’s expense” (p. 24). However, even while such corporate identifications can be made in addition to establishing interconnections among the market forces, the market conversion of education is neither a smooth nor a transparent operation. Rather, to use a previous metaphor (Mullen, 2013), this mechanistic force consists of many moving parts across corporate structures and within educational systems; it works in and against schools and citizens. As a single market that is also a reform movement of catalytic proportions, the CCSS has made it possible for for-profit and not-for-profit contractors to make more money doing business with public   schools; contractors also benefit from related political opportunities (Brass, 2014; Tienken & Orlich, 2013). Savage, O’Connor, and Brass (2014) have opined that the CCSS movement raises questions about the extent to which today’s reforms can be considered public or democratic. The binary between Democratic and Republican ideologies disappears in the neoliberal deconstruction of ideological bleeding brought on by the thirst for money and power (English, 2014; Tienken & Orlich, 2013). Christopher H. Tienken and Carol A. Mullen. Education Policy Perils: Tackling Tough Issues (p. 43). Taylor and Francis. Kindle Edition.

Deschooling K –

Ivan Illach, 1970, Deschooling Society, Ivan Illich (/ɪˈvɑːn ˈɪlɪtʃ/; 4 September 1926 – 2 December 2002) was an Croatian-Austrian philosopherRoman Catholic priest, and polemical critic[1] of the institutions of Western culture, who addressed contemporary practices in education, medicine, work, energy use, transportation, and economic development.

Universal education through schooling is not feasible. It would be no more feasible if it were attempted by means of alternative institutions built on the style of present schools. Neither new attitudes of teachers toward their pupils nor the proliferation of educational hardware or software (in classroom or bedroom), nor finally the attempt to expand the pedagogue’s responsibility until it engulfs his pupils’ lifetimes will deliver universal education. The current search for new educational funnels must be reversed into the search for their institutional inverse: educational webs which heighten the opportunity for each one to transform each moment of his living into one of learning, sharing, and caring. We hope to contribute concepts needed by those who conduct such counterfoil research on education–and also to those who seek alternatives to other established service industries…


Many students, especially those who are poor, intuitively know what the schools do for them. They school them to confuse process and substance. Once these become blurred, a new logic is assumed: the more treatment there is, the better are the results; or, escalation leads to success. The pupil is thereby “schooled” to confuse teaching with learning, grade advancement with education, a diploma with competence, and fluency with the ability to say something new. His imagination is “schooled” to accept service in place of value. Medical treatment is mistaken for health care, social work for the improvement of community life, police protection for safety, military poise for national security, the rat race for productive work. Health, learning, dignity, independence, and creative endeavor are defined as little more than the performance of the institutions which claim to serve these ends, and their improvement is made to depend on allocating more resources to the management of hospitals, schools, and other agencies in question.

In these essays, I will show that the institutionalization of values leads inevitably to physical pollution, social polarization, and psychological impotence: three dimensions in a process of global degradation and modernized misery. I will explain how this process of degradation is accelerated when nonmaterial needs are transformed into demands for commodities; when health, education, personal mobility, welfare, or psychological healing are defined as the result of services or “treatments.” I do this because I believe that most of the research now going on about the future tends to advocate further increases in the institutionalization of values and that we must define conditions which would permit precisely the contrary to happen. We need research on the possible use of technology to create institutions which serve personal, creative, and autonomous interaction and the emergence of values which cannot be substantially controlled by technocrats. We need counterfoil research to current futurology.

Race K — Improving the teaching of white, Eurocentric curriculum with white, Eurocentric pedagogies doesn’t solve racial inequality and reinforces dominant patterns of inequality

Christopher Emdin, education professor, Columbia Teacher’s College, 2016, For White Folks Who Teach in the Hood… and the Rest of Y’all Too: Reality Pedagogy and Urban Education

In many ways, this book draws from the traditions set forth by Shange. While it is neither a collection of poems and stories nor a theater piece, its intentions are similar. The title works toward invoking necessary truths and offering new ways forward. It is clearly intended for “white folks who teach in the hood.” But it is also for those who work with them, hire them, whose family members are taught by them, and who themselves are being, or have been, taught by them. In short, this book is for people of all colors who take a particular approach to education. They may be white. They may be black. In all cases, they are so deeply committed to an approach to pedagogy that is Eurocentric in its form and function that the color of their skin doesn’t matter. When I say that their skin color doesn’t matter, I am not dismissing the particular responsibilities of privileged groups in societies that disadvantage marginalized groups. I am also not discounting the need to discuss race and injustice under the fallacy of equity. What I am suggesting is that it is possible for people of all racial and ethnic backgrounds to take on approaches to teaching that hurt youth of color. Malcolm X described this phenomenon in a powerful speech about the house Negro and the field Negro in the slave South. He described the black slave who toiled in the fields and the house Negro who worked in the white master’s house. He noted that at some point, the house Negro became so invested in the well-being of the master that the master’s needs and concerns took preeminence over his own needs and that of the field Negro. This is the equivalent of the black educator so invested in the structure and pedagogies of the traditional school system that the needs of black and brown students become secondary to maintaining the status quo. For the “white” educator, this investment in traditional schooling is often generational, following the beliefs of parents and grandparents with college degrees and ideas about what school should look like. The point here is that there are both black and white people who can be classified as “white folks”— in that they maintain a system that doesn’t serve the needs of youth in the hood.

The “hood” is often identifies as a place where dysfunction ins prevalent and people need to be saved from themselves and their circumstances. The hood may be urban, rural, densely or sparsely populated, but it has a number of shared characteristics that make it easy to recognize. The community is often socioeconomically disadvantaged, achievement gaps are prevalent, and a very particular brand of pedagogy is normalized. In these communities, and particularly in urban schools, African American and Latino youth are most hard hit by poverty and its aftereffects. For example, in Atlanta, 80 percent of African American children have been reported to live in conditions of high poverty, compared with 29 percent of their Asian peers and 6 percent of their white peers. In fact, the largest twenty school districts in the nation enroll 80 percent minority students, compared with 42 percent in all school districts. In cities like Los Angeles, Chicago, and Miami, urban schools enroll less than 10 percent Anglo students, even though the teachers are overwhelmingly white. In New York public schools, over 70 percent of high school youth are students of color, while over 80 percent of public high school teachers in the state are white. While some may use these statistics to push for more minority teachers, I argue that there must also be a concerted effort to improve the teaching of white teachers who are already teaching in these schools, as well as those who aspire to teach there, to challenge the “white folks’ pedagogy” that is being practiced by teachers of all ethnic and racial backgrounds.

Emdin, Christopher. For White Folks Who Teach in the Hood… and the Rest of Y’all Too: Reality Pedagogy and Urban Education . Beacon Press. Kindle Edition.

Race K — No matter the plan, discipline ends up being imposed on black students

Christopher Emdin, education professor, Columbia Teacher’s College, 2016, For White Folks Who Teach in the Hood… and the Rest of Y’all Too: Reality Pedagogy and Urban Education

In my role as a teacher-educator, I often give an assignment to aspiring teachers that includes writing an autobiography and teaching statement to explore what brought them to the field of education. For those who go on to work in urban schools, I am always fascinated by the ways that these teachers’ descriptions of themselves and their craft highlight their concern for urban youth, empathy for their living conditions, and a desire to help them have more opportunities. As I watch them transition from aspiring teachers to practitioners, I see how this “care for the other” couples with expectations of managing and disciplining students, and the ways that they unintentionally become modern incarnations of the instructors at the Carlisle School through a tough-love approach to pedagogy. As I follow these teachers into classrooms and study the ways they interact with their students, I find that the students’ descriptions of their schools and teachers are similar to the ways that Indigenous Americans at Carlisle described their schooling experiences. Many urban youth of color describe oppressive places that have a primary goal of imposing rules and maintaining control. Urban youth in contemporary America use language similar to Carlisle students like Standing Bear and student turned teacher Zitkala-Sa, who highlighted the ways that the school disrespected the students and their home cultures. These students’ words stand in sharp contrast to those of their teachers as expressed in autobiographies and teaching philosophies. The ideology of the Carlisle School is alive and well in contemporary urban school policies. These include zero tolerance and lockdown procedures. A student in a school I recently visited described the innocuous term school safety as a “nice-sounding code word for treating you like you’re in jail or something.” In urban school districts across the country, school safety personnel are uniformed officers who are part of the police force and often engage in discriminatory practices that reflect those in the larger community. Like teachers who were drawn to the Carlisle School, white teachers are recruited to work in poor communities of color through programs like Teach for America, which tout their exclusivity and draw teachers from privileged cultural and educational backgrounds to teach in the hood. These programs attract teachers to urban and rural schools by emphasizing the poor resources and low socioeconomic status of these schools rather than the assets of the community. Adages like “No child should be left back from a quality education” and “Be something bigger than yourself” draw well-intentioned teachers desiring to save poor kids from their despairing circumstances.

This is not a critique of Teach for America per se— as it serves a need in urban and rural communities. However, it and programs like it tend to exoticize the schools they serve and downplay the assets and strengths of the communities they are seeking to improve. I argue that if aspiring teachers from these programs were challenged to teach with an acknowledgment of, and respect for, the local knowledge of urban communities, and were made aware of how the models for teaching and recruitment they are a part of reinforce a tradition that does not do right by students, they could be strong assets for urban communities. However, because of their unwillingness to challenge the traditions and structures from which they were borne, efforts that recruit teachers for urban schools ensure that Carlisle-type practices continue to exist.

Emdin, Christopher. For White Folks Who Teach in the Hood… and the Rest of Y’all Too: Reality Pedagogy and Urban Education (p. 7). Beacon Press. Kindle Edition.


Anti-Discrimination Laws are worse than nothing. They boost oppression by obscuring structural factors that create ongoing disparate outcomes. Holding onto the Law only hampers actualization of the Negative’s Alternative.

Spade ‘12

Dean Spade is a lawyer, writer, and Associate Professor of Law at Seattle University School of Law – This article is originally from a book chapter of the same title called :”What’s Wrong with Trans Rights?” – It originally appeared in the book: Transfeminist Perspectives: In and Beyond Transgender and Gender Studies (Philadelphia: Temple University Press, 2012) – edited by Anne Enke – Modified for language that may offend -– #CutWithKirby – The chapter was made available at:

Critical race theorists have developed analyses about the limitations of antidiscrimination law that are useful in understanding the ways these law reforms have and will continue to fail to deliver meaningful change to trans people. Alan Freeman’s critique of what he terms the “perpetrator perspective” in discrimination law is particularly helpful in conceptualizing the limits of the common trans rights strategies.xi Freeman’s work looks at laws that prohibit discrimination based on race. He exposes how and why antidiscrimination and hate crime statutes do not achieve their promises of equality and freedom for people targeted by discrimination and violence. Freeman argues that discrimination law misunderstands how racism works, which makes it fail to effectively address it.

Discrimination law primarily conceptualizes the harm of racism through the perpetrator/victim dyad, imagining that the fundamental scene is that of a perpetrator who irrationally hates people on the basis of their race and fires or denies service to or beats or kills the victim based on that hatred. The law’s adoption of this conception of racism does several things that make it ineffective at eradicating racism and help it contribute to obscuring the actual operations of racism. First, it individualizes racism. It says that racism is about bad individuals who intentionally make discriminatory choices and must be punished. In this (mis)understanding, structural or systemic racism is rendered invisible (less apparent). Through this function, the law can only attend to disparities that come from the behavior of a perpetrator who intentionally considered the category that must not be considered (e.g., race, gender, disability) in the decision she was making (e.g., hiring, firing, admission, expulsion). Conditions like living in a district with underfunded schools that “happens to be” 96 percent students of color,xii or having to take an admissions test that has been proven to predict race better than academic success*11′ or any of a number of disparities in life conditions (access to adequate food, healthcare, employment, housing, clean air and water) that we know stem from and reflect long-term patterns of exclusion and exploitation cannot be understood as “violations” under the discrimination principle, and thus remedies cannot be won. This narrow reading of what constitutes a violation and can be recognized as discrimination serves to naturalize and affirm the status quo of maldistribution. Anti-discrimination law seeks out aberrant individuals with overtly biased intentions.xlv Meanwhile, all the daily disparities in life chances that shape our world along lines of race, class, indigeneity, disability, national origin, sex, and gender remain untouchable and affirmed as non-discriminatory or even as fair.

The perpetrator perspective also obscures the historical context of racism. Discrimination is understood as the act of taking into account the identity that discrimination law forbids us to take into account (e.g., race, sex, disability) when making a decision, and it does not regard whether the decision-maker is favoring or harming a traditionally excluded group. In this way, the discrimination principle has been used to eviscerate affirmative action and desegregation programs.^’ This erroneously conceptualized “colorblindness” undermines the possibility of remedying the severe racial disparities in the United States that are rooted in slavery, genocide, land theft, internment, and immigration exclusion, as well as racially explicit policies that historically and presently exclude people of color from the benefits of wealth-building programs for US citizens like Social Security, land grants, and credit and other homeownership support.’™ The conditions that created and continue to reproduce such immense disparities are made invisible by the perpetrator perspective’s insistence that any consideration of the prohibited category is equally damaging. This model pretends the playing field is equal, and thus any loss or gain in opportunity based on the category is harmful and creates inequality, again serving to declare the racial status quo neutral. This justification for systemic racism masquerading as a logic of equal opportunity gives rise to the myth of “reverse racism,” a concept that misunderstands racism to suggest parallel meanings when white people lose opportunities or access through programs aiming to ameliorate impacts of racism and when people of color lose opportunities due to racism.

Discrimination law’s reliance on the perpetrator perspective also creates the false impression that the previously excluded or marginalized group is now equal, that fairness has been imposed, and the legitimacy of the distribution of life chances restored. This declaration of equality and fairness papers over the inequalities and disparities that constitute business as usual and allows them to continue. Narrowing political resistance strategies to seeking inclusion in anti-discrimination law makes the mistaken assumption that gaining recognition and inclusion in this way will equalize our life chances and allow us to compete in the (assumed fair) system. This often constitutes a forfeiture of other critiques, as if the economic system is fair but for the fact that bad discriminators are sometimes allowed to fire trans people for being trans.3″™ Constituting the problem of oppression so narrowly that an anti-discrimination law could solve it erases the complexity and breadth of the systemic, life-threatening harm that trans resistance seeks to end. Not surprisingly, the rhetoric accompanying these quests for inclusion often casts “deserving workers” —people whose other characteristics (race, ability, education, class) would have entitled them to a good chance in the workforce were it not for the illegitimate exclusion that happened.xviii Using as examples the least marginalized of the marginalized, so to speak, becomes necessary when issues are framed so narrowly that a person who faces intersecting vectors of harm would be unlikely to benefit from anti-discrimination law. This framing permits—and even necessitates—that efforts for inclusion in the discrimination regime rely on rhetoric that affirms the legitimacy and fairness of the status quo. The inclusion-focus of anti-discrimination law and hate crime law campaigns relies on a strategy of simile, essentially arguing “we are just like you; we do not deserve this different treatment because of this one characteristic.” To make that argument, advocates cling to the imagined norms of the US social body and choose poster people who are symbolic of US standards of normalcy, whose lives are easily framed by sound bites that resound in shared notions of injustice. “Perfect plaintiffs” for these cases are white people with high-level jobs and lawful immigration status. The thorny issues facing undocumented immigrants, people experiencing simultaneous discrimination through, for example, race, disability and gender identity, or people in low-wage jobs where it is particularly hard to prove discrimination, are not addressed by anti-discrimination law. Laws created from such strategies, not surprisingly, routinely fail to protect people with more complicated relationships to marginality. These people, who face the worst economic vulnerability, are not lifted up as the “deserving workers” that anti-discrimination law advocates rally to protect.


States CP — Most school funding comes from the state level. It’s more “normal means” and likely than federal action

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Although there are debates about what constitutes the “right” amount of funding, there is a good amount of data to shed light on current levels of funding. The most recent information available from the National Center for Education Statistics shows that the total amount of revenue for public K– 12 schools was $ 600 billion for school year 2011– 12. The majority of funding came from state sources (45.2%), while local sources were a close second (44.6%) followed by federal sources (10.2%) Center for Education Statistics, 2015). This is drastically different from almost 100 years ago, when the federal government provided less than 1% of K– 12 funding, the state provided 16% and local governments provided over 83% (Cross, 2014). Increases in state and federal funding over the years seem to track these entities’ increased roles in education governance. Rippner, Jennifer A.. The American Education Policy Landscape (p. 92). Taylor and Francis. Kindle Edition.

States can adopt education regulations

Rippner, 2016, Jennifer A. Rippner, Ph.D., J.D., is Executive Director for Policy and Partnerships for the University System of Georgia and the Coordinator for the state of Georgia’s P– 20 Council, the Alliance of Education Agency Heads (AEAH), Kindle edition, page number at end of card

Beyond the elected officials described above, there are several appointed bodies that affect education policy. At the state level, boards of education, regents, and commissions adopt regulations to implement legislation and other programs. Rippner, Jennifer A.. The American Education Policy Landscape (p. 26). Taylor and Francis. Kindle Edition.

Education a key state policy area

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

The full wording of the Court’s decision is worth considering: “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

School choice decisions should be made at the state level

Douglas N. Harris is a professor of economics and the Schleider Foundation Chair in Public Education at Tulane University; Helen F. Ladd is the Susan B. King Professor of Public Policy in the Sanford School of Public Policy, Duke University; Marshall (Mike) S. Smith is a senior fellow at the Carnegie Foundation for the Advancement of Teaching; Martin R. West is an associate professor of education at the Harvard Graduate School of Education, A Principled Federal Role in Pre-K-12 Education Policy, 2016,

School choice has been an equally contentious topic. Choice has gradually expanded across the country through growth in the number of charter schools, magnet schools, policies offering choice among traditional public schools, and various programs that provide funding for students to attend private schools.7 Almost all of these efforts have taken place at the state and local level, which, as with accountability, we believe is the right place for these decisions. The results have differed widely across states and districts because of variation in goals, other related policies, and context, including the types of students they are designed to serve. In some states, choice is intended to attract middle class families in large cities while in others it is intended to create opportunity for under-served populations and competition among schools. Moreover, the effects of choice policies depend on decisions about other policies (e.g., transportation, and school finance) that are clearly within the domain of states. This variation in goals and circumstances reinforces the need to take into account local circumstances and avoid a nationally standardized approach. School choice is also an area of policy where it is especially important to make sure that well-intentioned federal regulations do not unintentionally interfere with local decisions. Given that choice policies often go hand–in-hand with efforts to expand the autonomy of schools, policymakers should ensure that federal laws and regulations that historically have applied to school districts do not interfere with state and local efforts to implement alternative school assignment or governance arrangements. At the same time, the federal government should continue to ensure that those arrangements do not compromise students’ civil rights or create entanglement with religion. 

Ban private schools counterplan

Chemerinsky 15 — Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (“Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 249-250)

On May 17, 2014, the nation celebrated the sixtieth anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education.1 The simple and tragic reality is that American public education is separate and unequal.2 Schools today are more segregated than they have been for decades, and segregation is rapidly increasing. Wide disparities exist in funding for schools. In Brown, Chief Justice Earl Warren spoke eloquently of the importance of education and how separate can never be equal.3 More than a half century later, in an even more technologically complex society, education is even more essential.

The causes for this tragedy are easy to recite. There never has been the political will to pursue equal educational opportunity. No president since the 1960s has devoted any attention to decreasing segregation or to equalizing school funding. The Supreme Court refused to allow the needed steps to deal with the problem in its holding that metropolitan school districts can be created as a remedy only in very limited circumstances and that disparities in school funding do not violate the Constitution.4 Moreover, Supreme Court [end page 249] decisions in the 1990s have required the lifting of even successful desegregation orders, causing the resegregation of schools.5 The Court’s most recent decision about school desegregation, Parents Involved in Community Schools v. Seattle School District No. 1, greatly limited the ability of school boards to pursue voluntary desegregation plans, such as by considering race as one factor in assigning students so as to enhance diversity.6

In this essay, I look behind these explanations and argue that the central problem in achieving equal educational opportunity has been the lack of a unitary system of education. Desegregation will not occur in most cities so long as parents can move their children to suburban or private schools. Adequate, let alone equal, funding for schools will not occur so long as wealthy parents can send their children to private or suburban schools, where far more is spent on education than in inner cities. A crucial aspect of Brown’s wisdom was the importance of a unitary system of education. Minority children are far more likely to receive quality education when their schooling is tied to that of wealthy white children. The failure to create truly unitary systems is the core explanation for the inequalities in American schools today. Consider a simple analogy: the dual system of medical care. If wealthy people had to receive their medical treatment in public hospitals, is there any doubt that the quality of those hospitals would be dramatically different? But so long as the public hospital system is just for poor people, and often predominately racial minorities at that, they never will be of the same quality as top private hospitals. The same is true of schoolsTherefore, I propose a radical solution: the abolition of private and parochial schools in the United States and the creation of large metropolitan school districts. Under this proposal, every child will be required to attend these public schools. In this way, there truly would be a unitary system of education and, as a result, equality of school funding and meaningful desegregation. Desegregation and equalization of funding can be achieved through this approach, but probably not otherwise.

Courts CP —

Courts key to improved education-

Darden, 2006 Edwin C. Darden writes for the Center for Public Education. Darden is an attorney, writer, and consultant specializing in school law and public policy.

Cost-free schools in the U.S. open their doors to all children, providing a learning and social environment guided by, on one hand, community consensus locally and, on the other, nationally shared values of how our children should be taught and raised as Americans. With the public watching and participating, each child has an opportunity for success no matter the circumstances of her or his family or the special needs. To ensure that America’s public schools operate in this manner, students have legal rights based on constitutional principles and carefully balanced interests that are protected by our legal system. For public school districts, the law is a constant companion. In this series, The Center for Public Education takes a look at how the law works to serve its students and ensure that public education as whole continues to meet the unique and necessary role it plays in developing an educated citizenry. These briefs will guide readers through the thicket of laws weighing on our public schools. Each brief uses clear, simple language to provide information and perspective to the lay person about the relationship between the law and public education and how this system works together to reinforce the guarantees provided by the U.S. Constitution. Key questions addressed in this series While talk of accountability, testing, standards, and student achievement rightfully dominate the conversation about quality schooling, behind the scenes an invisible elephant weighs in: What will the law allow? In truth, public school officials must be ever mindful of legal considerations. From school funding to treatment of religion, from equity concerns to discipline, from curriculum possibilities to actions that might be prohibited, the law has a say—and a sway—over how school board members and educators approach their jobs. Consider the law’s reach and influence: Can a school district say “no” to a student who wants to pray during class time or to start a religious club? Can students and educators bring to school and voice personal views on war, justice, or other hot-button issues? Does the law grant unlimited discretion for school officials to perform locker searches or drug testing? How far does zero tolerance go? Are race, gender, or disability the “X-factors” in education? What must schools do to make sure everyone is treated equally? School systems receive operating money by laws passed in state legislatures and Congress. What happens when funding is inadequate to get the job done? What are the obligations of schools to equalize educational offerings and resources? For example, what does the law say about how Advanced Placement courses are distributed, talented teachers deployed, buildings repaired, and new construction scheduled? The stakes are huge. More than 48 million students, a whopping 90 percent of all school-aged children, learn in public school buildings. Public education: The bedrock of American success The clear mission of public schools is to provide an excellent education to every child enrolled—rich or poor, English speaking or not, of every race and ethnic background. Couple that with a duty to create schools that abide by the Constitution and that is what makes education one of the defining promises of American democracy. What is dazzling about public education, then, is that it can be successful in an environment where laws buffet it with long lists of dos and don’ts, politicians make demands and sometimes lodge unfair characterizations, business leaders cast doubt on credibility and competency, and nervous parents worry that a kindergartener’s shapes on a page translate into whether their son or daughter will get into Harvard 12 years hence. Each day, districts are beholden to a staggering list of laws, regulations, rules, and policies that motivate and control behavior. Federal, state, and local governments generate reams of expectations. Court decisions are unending. Requirements are highly complicated and ultimately determine what board members, employees, and students must do or are forbidden to do. The cost of operating in such a restricted and continuously changing environment can be measured in time, money, and lost creativity. Indeed, educators often joke in private about the need to have an attorney on speed dial. But while the rule of law can be a burden, it is also a unique gift. Public schools are taxpayer supported and government-run. They are therefore duty bound to uphold the U.S. Constitution and to comply with the dizzying array of laws and rules that come with that status. Private and religious schools have far fewer legal obligations because they do not belong to the nation’s people. The public-private distinction is frequently overlooked but is a potent and defining legal difference worth pausing to examine. In some ways, the climate and character of public schools is defined by the legal footprint. Public schools Must be fair to religion while avoiding devotion. Must treat all children equally. Must depend annually on state and federal laws to finance ambitious programs. Must respect the freedoms that students and staff hold as American citizens. By contrast, religious and private schools are not legally bound to be equal in admitting or educating students. Nor are there legal remedies for the wide financial disparity that separates high-spending and low-spending private schools. Private schools can sort applicants until they get the desired student body and they can write rules and policies that would be blatant violations of individual rights if done in tax-supported K-12 institutions. Michael Resnick, associate executive director of the National School Boards Association’s advocacy effort, spoke on this topic in a 2004 Policy Research Brief. He said, “There are no other schools where the public interest in education is as deliberately and proactively represented, or as open to public scrutiny, as the public schools.” Reflecting societies hopes, dreams, and fears The idea of proactive representation and public scrutiny are reinforced when studying the rights, privileges, and protections endowed by the U.S. Constitution. In the last 30 years, schools have evolved into a battleground for legal and policy skirmishes on the most contentious moral and cultural issues in American life. School districts serve as a kind of mirror, reflecting society’s hopes, dreams, and fears. Why? The reason is obvious: Inside, impressionable youngsters are developing their values and moral compasses for the future. In a typical school district, the Constitution presents a variety of challenges. Among the requirements: The First Amendment: This amendment addresses the right of individuals to act on and express their religious belief and prohibits government from favoring religion. It also guarantees free speech, meaning clothing, jewelry, peaceful protest at appropriate times, and political expression are acceptable within schools and within limits. The Fourth Amendment: This amendment addresses the right of individuals to be free from unreasonable searches and seizures by the government. Therefore, locker searches, drug testing, strip searches, drug-sniffing dog searches, and other investigatory measures could fall under its authority. The Fifth Amendment: This amendment addresses “due process” and outlines the obligation of school districts to tell students and staff facing discipline two things: (1) what they are accused of and (2) that they have an opportunity to respond. The Fourteenth Amendment: The “Equal Protection Clause” in this Amendment forbids school districts from treating people differently. In essence, this is a fairness compact that says schools must provide equal opportunities and equal treatment. Schools are not only wholesome places in which children achieve academically and blossom into pre-teens, adolescents, and young adults. As government entities, school districts can sue others when they have been wronged, and can be sued as well. Experts agree that lawsuits against school districts have increased in the last three decades. Among the reasons: A more litigious society in which the law is seen as a first-resort means to get satisfaction. A rise in organized special interest groups that seek to expand their agenda by notching wins in court. A proliferation of laws and regulatory guidelines with unclear meanings that require court interpretation. There are basically two sides of the legal equation when it comes to public school districts: compliance and prevention. Compliance On the compliance side is the solemn duty to obey the law. In fact, most school board members take an oath in which they swear—as public officials—to uphold state and federal laws. Boards of Education and administrators both are expected to stay aware and informed of what the law provides and then take steps to comply. This frequently involves a battery of attorneys with different areas of expertise and can include in-house counsel on the payroll, an outside law firm only, or a combination of the two. Compliance is a fertile source of litigation. For example, if someone believes that a school district is violating a student’s right to free expression by requiring school uniforms, one way of challenging that is to file a lawsuit in federal court. Plaintiffs with a compliance lawsuit are generally claiming that the district has failed to meet its legal obligations in some way. The district, for its part, has to prove that the actions taken are justified and meet either the precise letter of the law or the intent. Besides worrying about the Constitution, school districts also must fret about federal statutes, local initiatives, and statewide legislation. Compliance is a never-ending and meticulous task. Prevention Prevention is the proactive steps school districts take to avoid a lawsuit. For example, when schools oust dodge ball from physical education classes or require parents to sign in triplicate, potential litigation could be the impetus behind such precautions. By following a regimen of good policies and practices, attorneys say, a school district can reduce—but probably never eliminate—the number of lawsuits filed against it. And, being prepared with a strong answer can get the case dismissed at an early stage. Education’s future Of course, the one law that has had the greatest impact on public education since the turn of the century is the No Child Left Behind Act (NCLB). Passed in 2002, it is controversial because it: Demands universal high achievement with few exceptions. Measures accomplishment via standardized tests. Represents the greatest federal involvement in local decision making in history. The structure and operation of public schools are such that education has historically been a state function. In other words, the federal government has supported education through dollars, research, and encouraging words (known as the bully pulpit). NCLB went further, requiring tests at multiple grade levels, mandating parent involvement, addressing military access to school campuses, and imposing consequences (like allowing students to transfer out of schools labeled “in need of improvement”) for schools that fail to make Adequate Yearly Progress (AYP). Each year, the United States grows more diverse religiously, ethnically, racially, socially, and culturally. In 1787 the Constitution’s framers could not have anticipated that such a conglomeration would occur in the 21st century. Still, its provisions laid the groundwork for problems and issues to be worked out peacefully under the rule of law and the benevolent hand of the courts. Challenges to school policy and practice are sure to continue. As changes happen in the makeup of Supreme Court justices and as changes in society occur, schools and legal practice will change with it. Inevitably, it will be a learning process. Through this series of background briefs, we seek to shed light on things that are certain and to illuminate the uncertainties where they exist

Kritik Affs

AND Black life seldom lacks trauma and that trauma is not contingent upon the particular formations of educational spaces but rather the repetition of passage through the bloodstained gate. Black child trauma is treated with retraumatization, a curriculum that structures consciousness, behavior, and attitudes. The classroom is a site of retraumatization where discipline exacerbates trauma

Sharpe 16 [Christina, “In the Wake: On Blackness and Being”, pp. 87-93]

Within academic spaces, the 1ac refocuses pedagogy away from imperial deployments of cybernetics. This is crucial to redeploy the hegemony of technological forms in the classroom and open the academy to its own unrealized potential

Hall 16, |Richard, “Technology-enhanced learning and co-operative practice against the neoliberal university|

However, revealing the forms of cybernetic control can enable alternatives rooted in self-organis- ation and a societal complexity based on variety, improbability, and adaptability to emerge. For Tiqqun (2001), this demands a return to what it means to be human. A critical role for educationalists using technology inside-and-against the Cybernetic Hypothesis has been to develop educational opportunities that highlight the development of counter-narratives of Commons, co-operation, sharing, and openness, and against the separation and alienation of money, price, quality, and com- petition (Dyer-Witheford, 2010; Neary & Winn, 2012). As Tronti (1973, p. 105) argued, at issue is the extent to which the forms of control that pervade all of human existence can be revealed and alterna- tives critiqued so that “capital itself [] becomes uncovered, at a certain level of its development, as a social power.” For Cleaver (1993), the possibility for alternatives amplifies the reality of a secular crisis of capital- ism, in which it is increasingly difficult for stable forms of accumulation to be reasserted, and through which class struggle is intensified. [T]he problem that capital faces in managing the antagonism of the working class is that of managing not only a shared (though not necessarily allied or even complementary) resistance but also diverse processes of self-con- stitution repeatedly escaping its rules and precipitating crisis. Capital accumulation requires that capitalist command (thesis) internalize the hostile self-activities of the working class (antithesis) and convert them into con- tradictions (synthesis) capable of providing dynamism to what is basically a lifeless set of rules/constraints. At issue for educators is defining a purpose for pedagogies that are increasingly framed inside cyber- netics. Is it possible to define the implementation of TEL that is against-and-beyond neoliberal forms of control? Asking this question refocuses pedagogy on the tensions between the academic and the student as abstracted, entrepreneurial individuals who are only capable of self-regulation inside a market. This market demands the production of commodities, for instance: data or learning analytics about performance; knowledge transfer or patents; and peer-reviewed outputs and forms of intellec- tual capital. A question is then, is it possible to use pedagogic innovation to liberate time and socia- bility from Capital? If so, can this be enacted co-operatively? Moreover, what is the role of techniques and technologies in rehabilitating academic labour’s collective, social power? For a co-operative pedagogy of struggle The process of liberation demands really existing autonomy and struggle (Thorburn, 2012). “Autonomy” means that we make the worlds that we are grow. The Empire, armed with cybernetics, insists on autonomy for it alone, as the unitary system of the totality: it is thus forced to annihilate all autonomy whenever it is heterogeneous. We say that autonomy is for everyone and that the fight for autonomy has to be amplified. (Tiqqun, 2001, p. 51) Critical in this fight for autonomy is uncovering the way in which technologies are used to reinforce power, and revealing how those same technologies might be used for alternative purposes. At issue are the organising principles through which technologies are deployed. Thus, Miller Medina (2005, p. 22), attempting to recover the governing principles in President Allende’s Chile from 1964 to 1973, argued that “This history, therefore, is not just a technological history but a history of the chan- ging social networks that connected these technologies to the function of the state and its manage- ment.” Moreover, the deployment of technologies throughout Chilean institutions “helped solidify a particular articulation of the state that was supported by new claims to legitimate power” (Miller Medina, 2005, p. 96). These new claims were not the co-option of institutions, technologies, and tech- niques for Capital, but were “revolutionary because we are making a deliberate effort to hand to the people the power that science commands, in a form in which the people can themselves use it” (Allende, quoted in Miller Medina, 2005, p. 252). The possibility of using technology through a co-operative, pedagogic project is also central to The Republic of Ecuador’s (2009) National plan for good living 2009–2013: Building a plurinational and intercultural state. The Ecuadorian Government argues for five interconnected revolutions: democratic; ethical; economic; social; and Latin American dignity; in order to build a fraternal and co-operative coexistence. In part, this is based on “The transformation of higher education and the transfer of knowledge in science, technology and innovation,” because The combination of ancestral forms of knowledge with state-of-the-art technology can reverse the current devel- opment model and contribute to the transition towards a model of accumulation based on bio-knowledge. This aim of linking environmental to historical and cultural knowledge through a democratic agenda based on equality, is further realised in Ecuador’s announcement that Michael Bauwens of the Peer- to-Peer Foundation will join a major strategic research project to “fundamentally re-imagine Ecuador” based on the principles of open net- works, peer production and commoning … The project seeks to “remake the roots of Ecuador’s economy, setting off a transition into a society of free and open knowledge” (Bollier, 2013). These re-imaginings, based on principles of association and mutualism, and connecting technol- ogies and techniques to ethical and ancestral knowledge production, provide a rich-vein of alterna- tive stories. As Lebowitz (2005) notes, for Venezuela there are new possibilities where such stories are predicated upon the interests of a whole society and not those in power. In creating these narratives, educators might find pedagogies that enable critiques of private property, the exploitation of labour, and of production solely for profit. Part of this pedagogic renewal demands a focus on social prop- erty, on forms of social production organised by workers, and of production for the needs of commu- nities. This might usefully be transferred into institutional pedagogic practices and innovations related to TEL, in terms of co-management of both the University itself and the curriculum. Pace Lebowitz (2005), one might argue Co-management implies a particular kind of partnership – a partnership between the workers of an enterprise [University] and society. Thus, it stresses that enterprises [universities] do not belong to the workers alone – they are meant to be operated in the interest of the whole society. In other words, co-management is not intended only to remove the self-interested capitalist [administrator], leaving in place self-interested workers [aca- demics]; rather, it is also meant to change the purpose of productive activity. It means the effort to find ways both to allow for the development of the full potential of workers [academics and students] and also for every member of society, all working people, to be the beneficiaries of co-management. Thus, in the face of the neoliberal refrain of markets, enterprise, and mobility, communities need new ways to exit the drive to compete with transnationally mobile capital, and instead to define new methods of academic work and life. This includes critiques of the role of the University in supporting those communities and societies that wish to widen their own field of opportunity and inscribe sustainable alternatives. Moreover it also includes the deployment of TEL for social and co-operative ends. For de Peuter and Dyer Witheford (2010) this means that we might refocus the core institutions of everyday life around “an organizational commons, [where] the labour performed is a commoning prac- tice, and the surplus generated, a commonwealth.” They argue for “an acknowledgement of the con- tribution to collective productivity of every life” and forms of “self-organised associated labour” that can enable a circulation of the commons and the value of commoning. Outing the dynamics of indi- viduated competition and restating the possibilities of association, solidarity and alliance are key to the definition of a co-operative, technology-rich University that is inside-against-and-beyond the competitive ethos that drives the neoliberal, entrepreneurial University. As Cleaver (1993) notes: “Competition” has become a prominent slogan of domination in this period of international capitalist restructur- ing — one used to pit workers against workers. We need to defetishize its meaning by showing how it is merely a particular way of organizing the class struggle. Within the context of Marxist crisis theory we need to do the same and relocate competition within the class struggle rather than outside it … we should substitute the politics of alliance for the replacement of capitalism by a diversity of social projects. A politics of alliance against capital to be conducted not only to accelerate the circulation of struggle from sector to sector of the class, but to do so in such a manner as to build a post-capitalist politics of difference without antagonism. The purpose of the co-operative University, structured around associational democracy, is to create and liberate forms of space-time (commons, co-operatives, clubs, social centres, communes) that enable human beings to distinguish between the techniques employed by Capital for valorisa- tion, and to direct their attacks, not against these material instruments of production, but against the mode in which they are used (cf. Marx, 2004, p. 554). Moreover, the associational and democratic organising principles of such a co-operative University need to be predicated on alliance and solidar- ity with other educational and non-educational forms of resistance. Thus, technology and TEL is central to this pedagogic project, by enabling the social and technological forces of academic pro- duction to be reconstituted co-operatively. As Clarke (1994) argues, revolutionary change is predi- cated on the self-organisation of the direct producers and their ability to abolish the production of commodities based on capitalist social relationships. Defining the associational and democratic organising principles of such a co-operative University forms the task of refusing and pushing-back against neoliberal enclosure of the realities of University life. This is not to recuperate an ideal of the University against the historical realities of capitalism. It is to recuperate the ideas of association, solidarity, and alliance, in order to liberate spaces and times for social co-operation and co-operating. One of the questions for radical academics is how to utilise technologies, in order to bring alive the co-operative, participatory histories, and traditions that have existed, and to define possible alternatives. These examples might include critiques of the following. The governance principles that underpin the responses of the Co-operative movement to the crisis, not in order to re-establish business-as-usual, but to demonstrate actually existing co-oper- ative, social production. This production is technologically mediated and rooted in education at the level of society (European Parliament, 2013). The transnational nature of the co-operatives movement, and the importance of associational democracy in educational production and consumption. How might these associational networks enable organic intellectuals to emerge from groups of educators and students, and new ideas to take root against hegemony? (La Fédération Nationale, 2013). The situated, local importance of community co-operative learning trusts as networks of mutual support, like The Burton Co-operative Learning Trust (2013) or the Cornwall schools co-operative (The Schools Co-operative Society, 2013). Is it possible to use such co-operatives to challenge, occupy, and reinvent ideas of impact, observation, performance management, gifted-and- talented, school improvement etc.? How might extended partnerships of young people, providers, educators, academics, businesses, parents, work in peer-support groups and wider networks to refuse to be subject to competition? Developing such critical positions enables a reflection on the key arguments outlined above about the interrelationships between technology and academic practices inside the University. These relationships can usefully be analysed with reference to critical political economy, and especially the use of technology for valorisation, including: . innovation and organisational development as a function of competitive advantage; . the disciplining of academic labour through techniques for productivity and efficiency; . the transnational demand to open-up higher education through financialisation and marketisa- tion; and . the data-driven privatisation of components of the curriculum and the student experience. The enclosure of the University under neoliberalism by transnational activist networks is one criti- cal form of dispossession. This has tended to overwhelm academic autonomy, in order to facilitate the accumulation of value. The argument herewith has been that such forms of dispossession might be analysed historically and materially through critical theory, and that such an analysis enables technological innovations to be situated politically against class struggles for autonomy. This is important in the current phase of neoliberal roll-out, precisely because the co-option of the labour of academics and students is increasingly visible. It is important to note that at the same time, the ruptures caused by academic struggle inside and outside formal higher education have also become visible. As has been argued above, central to this process of struggle is the recognition that co-operative organising principles, both for the University and for the curriculum, might offer a set of alternatives to the prevailing political economy of higher education. In particular co-operative re-imaginings connect to the idea of social relationships that are forged across a global commons. This idea pushes back against artificially imposed, immaterial scarcity, and instead offers a space to reconsider social relationships that are rooted in an abundance of humane values. At issue in developing these co-operative spaces and their narratives is whether interconnected actions, which demonstrate the solidarity of liberation, can form a meaningful pedagogic project. In turn, can such a project form a lived social critique of capitalism that offers an alternative vision for society? In educational terms this then questions whether there are other co-operative governing principles for universities or for higher education at the level of society. A secondary question is how TEL is used to reinforce or push-back against alienating social norms. This demands that we ask what education is, before we ask what it is for, and that TEL forms a process of becoming that refuses mar- ketisation, abstraction, and control. Conclusion One part of this approach to liberation is to think about mechanisms that disrupt the circuits and pro- duction of Capital as a social system. These may include renewing Ball’s (2012) neoliberal factors co- operatively, and in relation to TEL. . How can educational technologies be used to reinforce the sociability of everyday life, in order to realise new opportunities for pedagogic co-operation and against value? . Can technologies and TEL be used to reconfigure educational and curriculum governance through an appeal to the co-operating Self, with the public and the mutual at its heart? . Can educational co-operatives use technologies and techniques like cybernetics to act transna- tionally in association and mutuality, and to define alternative value-forms that are against the logic of the market? . Can educators activate waves of co-operation that are: proto (revealing the intellectual project of the socio-cultural histories of co-operatives); roll-back (of neoliberalism); and roll-out (of new co- operative forms, modes of governance and regulation)? . Can educators and students create mutual and associational structures that are polymorphic and isomorphic? In this process educators might reduce their abstraction through TEL, and witness new forms of technologically mediated sociability based upon co-operating, rather than co-option. A different way of connecting TEL beyond the market may enable a refusal of the neoliberal pedagogic project of abstraction and individuation. In critiquing the relationships between the individual and the State-market duality, Foucault argued that, [social] relationships take the form of a multiplicity of often minor processes, of different origin and scattered location across and beyond the state. These overlap, repeat, or imitate one another according to their domain of application, they converge and gradually produce the blueprint of a general method. The question is whether co-operatively defined TEL might enable spaces and times (or space-times) for life to be lived as an associational, mutual, transitional process, rather than as an outcomes-based blueprint (Foucault, 1975, p. 138). Here the governance of the University as a form of self-organising associated labour is critical. Aca- demic labour needs to create sustainable forms of opposition and alternatives, both in the face of the politics of austerity and dispossession, and more long term, in the face of the crisis of accumulation. Alternative possibilities exist that are framed historically and culturally, for the description of both the University and TEL as a public good that helps to legitimise and reterritorialise communal forms of social production. The question for educators and students is on what basis might the University utilise TEL as co-operative endeavour help to liberate those communities from the corporate power-over them?

Dwell in education/debate/policy bad

We seek to dwell as poets within debates, cosmic artisans inhabiting policy debate’s forms in order to generate the possibility of an entirely new people yet to come.

—La Borde as model – destratify, but don’t destratify too wildly

—The mini or micro revolution that occurred at La Borde forms the basis for new universes of reference and new conductors for the creation – this can produce an effervescent and radical flow of life that breaks with contemporary regimes of signification

—Yet the threat of fascism taking over these deterritorializing lines within institutions persists – the topical version is like the competitive medical staff at La Borde

—La Borde consists of a radical line of escape against all transcendent ideals – the 1AC is a research praxis of plotting out new lines, trying out new configurations of group identity and desire in an active creation of value

—If education is to dilate its potentials for political action, or, rather, to produce conditions capable of palpating a people, it must become able to produce an image of thought through which new forms of material organization might be actualized

—The figure of the drop out constitutes a potential line of escape, a para-academic and nomadic figure that exists as an outsider to standard educational systems – 2012 Quebec Protests and CLASSE examples – can influence politics by eschewing traditional modes of advocacy towards the state – society itself must be revolutionized, not merely the education system

—Attempts to improve schooling without first confronting an alternative mode of subjectification merely produces new apparatuses of capture

Wallin 14. Jason Wallin, Professor of Media and Youth Culture in Curriculum in the Faculty of Education at the University of Alberta, “Education Needs to Get a Grip on Life” in Deleuze and Guattari, Politics and Education: For a People-Yet-to-Come, Bloomsbury Academic, 2014, via epub


It is crucial to rejoin that the supple line is ambivalent (Deleuze and Guattari, 1987). It strays from the orthodox rigidity of its territory, but, of course, we do not yet know how it will reterritorialize. As a case study, we might point to Guattari and Oury’s experimentation with the material organization of the clinic at La Borde and its singular intervention with the hierarchical and sedimented roles inherent to its pedagogy. In a manner not dissimilar to problems facing contemporary education, Guattari and Oury’s analysis of the La Borde clinic detected the worsening of patients’ psychological health and in certain instances the emergence of new neurosis and symptoms. What Guattari’s work within the psychiatric institution would reveal is that such emerging illnesses were an effect of the institution itself. Within the traditional psychiatric setting, Guattari observed, patients ‘[lost] their characteristics, becoming deaf and blind to all social communication’ (Guattari, 2009, p. 177). In response, Guattari would begin to articulate the ways in which the institution had failed to treat the patients and further, the ways in which it had effected the production and acceleration of patient neuroses. Guattari would point to several contributing factors for this failure, including the reification of vertical power relations (arboreal hierarchies), the bureaucratic segmentation of institutional life into ‘specialist’ roles, and the alienation of patients from institutional processes. Via the ‘segregation of inmates … locked rooms, severely limited freedoms, [and] intense surveillance’, the institution would become less oriented to treatment than its absolute obstruction (Genosko, 2002, p. 68). Guattari and Oury’s material experimentation at La Borde would commence a supple line by straying from the rigid model of the clinic “without courting its complete disintegration or its reterritorialization upon some new fascism or rigid segmentarity. Against either annihilation or re-Oedipalization, Guattari and Oury’s experiment would be commenced along a line of cautious destratification. In this mode, La Borde’s reconfiguration would occur through such institutional strategies as the introduction of a rolling work rotation schedule in which clinical personnel (medical and non-medical) and patients would comprise heterogeneous groups to perform clinical duties. Dubbed la grille (the grid), this work rotation schedule would produce non-representational group-subject cartographies counterposed to both the hierarchical stratification of ‘specialist functions’ and presupposed institutional identities. A group tasked with the facilitation of clinical workshops might later function to organize art and theatrical activities (Dosse, 2011). Some patients assisted in dispensing medications, while hitherto ‘untouchable’ medical staff performed custodial duties. Other modulations in the clinical setting saw the establishment of a patient’s club where non-medical personnel, clinical staff and patients could mix (Dosse, 2011). In turn, new potentials for group-desiring-production and enunciation were created by linking the mixed space of the patient’s club to the clinic’s newspaper, La Borde Éclair. Through the tactical mixing of segmented and supple lines, La Borde fulminated an experiment in assessing the permeability of space through which patients, doctors “and other clinical staff became productively delinked from their bureaucratic ensconcement within the “clinic’s organization. The ‘mini-revolution’ at La Borde would inhere broader stakes for education. ‘One can only dream of what life could become in … schools … if instead of conceiving them in a mode of empty repetition, one tried to redirect their purpose in the sense of permanent, internal re-creation’ (Guattari, 2009, p. 182). Here, Guattari advocates an image of schooling composed via the mixing of molar and supple segments, or, rather, the continual modulation of institutional life in support of its ‘permanent reinvention’ (p. 182). Such reinvention is intimately concerned with a people, or, rather, the ways in which the molecular revolution of institutional space and pedagogy might fulminate new processes for producing subjectivities. This is not simply a magical idea. At La Borde, the modulation of institutional space, labour and desiring-production aimed to desidiment ‘practico-inert’ forms of group relations co-extensive of institutional seriality, or, rather, the overdetermination of both subjective and collective life-forms (p. 180). What form of anterior activism would be required to ward off the ‘serialization’ of life, Guattari insisted, but the resingularization of the institution, its modes of labour, and desiring-machines? Through the mixing of supple (molecular) and molar lines, La Borde became an experiment in producing new universes of reference, or, rather, new conductors for the creation of subjectivities not given in advance. In this vein, the desedimentation of organizational hierarchy, ‘expert’ roles and clinical space would palpate a becoming necessary to recommence institutional analysis from within. Nomads in the institution Guattari and Oury’s experiments at La Borde might be thought of as a material practice in the creation of smooth space and, concomitantly, the production of new processes for the creation of a people out-of-step with an abstract image of the people in general. Herein, La Borde’s internal revolution detects two trajectories unthought by standardized education. First, La Borde’s internal revolution is not solely material. Rather, as ‘the grid’ demonstrates, La Borde’s experiment is concomitantly one that pertains to the modulation of the abstract-machine immanent to the social field of the institution itself. More specifically, the mini-revolution at La Borde is first an intervention with the abstract-machine of institutional relations and their affects upon material life therein. Where the abstract-machine functions as ‘the cause of the concrete assemblages that execute its relations’, the creation of a new image of thought informs upon the very tissue of the assemblages produced (Deleuze, 1999, p. 37). In this vein, the material reconfiguration of La Borde’s social organization and its creation of new potentials for group-subject formation is productively linked to the work rotation schedule (la grille) as a horizontal or minimally rhizomatic image of thought. This trajectory of intervention suggests that political action, or, rather, the potential to palpate forms of life and styles of living not accounted for within dominant regimes of signification, necessitates the tactical counter-actualization of abstract institutional diagrammatics. Crucially, what the case of La Borde demonstrates is not only that the material organization of the institution is immanently suffused by the image of thought contracted with it, but, further, that modulations of this institutional image are capable of dilating how material life might organize within institutional spaces. Such interventions, by Guattari’s own admission, are immensely difficult, and the threat of reterritorializing the institution’s abstract-machines within fascist formations remains a problem for which one must always be on the lookout. As Guattari articulated, La Borde would continually face the challenge of overly territorial staff, the over-identification of doctors with the medical hierarchy, and the continual threat that original group-subject formations would become subjected under external metrics of organization (Guattari, 2009). This leads to a second trajectory implicate to La Borde’s revolutionary micropolitics. While the Labordian revolution intervenes “with an image of thought that suffuses the material relations and subjectifying processes of institutional life, the radicality of La Borde’s experimentation emerges by dint of its connection to the virtual. This is simply to say that the revolutionary impulse of the Labordian experiment is commenced on a line of escape from the abstract as a transcendent ideal. Herein, La Borde’s mini-revolution owes more to the detection of the actual-virtual quality of life, and further, a speculative relaunch of ‘as if’ or, rather, incompossible worlds out-of-synch with the transcendent idealization of the world as given (Deleuze, 2003). The problem of standardization, Guattari and Rolnik (2008) implies, is its covering-over of such incompossible or ‘as if’ worlds as to suggest only one way for the organization of life to be thought. Counter-actualizing the illusion of the universal, La Borde’s experiment rethinks the abstract-machine or institutional image of thought alongside a virtual or ‘as if’ world concerned with the resingularization of the institution in a manner no longer linked to vertical striation, subjective alienation, or the overdetermination of patient enunciation by the psychiatrist as the subject-supposed-to-know. In the exceptional Teachers in Nomadic Spaces (2003), Roy argues on the necessity of thinking the school as a qualitative multiplicity or mixed composition in which supple lines of deviation are continually active as ‘potential’ conductors for institutional “reinvention. Where this virtual ecology is severed, Roy articulates, teachers and students encounter a kind of institutional ‘insanity’ marked by a symptomatic adherence to fixed positions and the presumption of personal ownership over scholastic knowledge, skills and attitudes (p. 110). Against such institutional sedimentation, Roy’s practical Deleuzism articulates the case of a high school where students design and offer semester-long courses in areas of collective interest and, further, where collective approaches to decision-making take seriously the productive link between student enunciation and the organizational fabric of the institution. Herein, there is resonance between Roy’s institutional nomadism and Fernand Oury’s ‘institutional pedagogy’ in so far as each aims to rehabilitate the severed relationship of students from the fabric of the institution by tethering the enunciation of group-subjects to material transformations of institutional life (Guattari, 2000). Through the mixed composition of both molar (territorial) and supple (deterritorializing/reterritorializing) lines, both Roy and Oury would relink institutional pedagogy to its experimental potential to modulate the organization from within, or rather, to detect the always-already ‘trembling organization’ of the institution (Thanem and Linstead, 2006). Further to this, Roy and Oury would each detect the crucial Deleuzeguattarian (1987) insight that “practice does not come after the emplacement of the terms and their relations, but actively participates in the drawing of the lines’ (p. 203). This insight might in turn be extended to the pedagogical work of Guattari, (Jean) Oury, Freinet and Neill, who each in their singular ways demonstrate that the differentiation of pedagogical thought-practice can palpate new forms of social organization and less harmful processes of subject creation. The point I would like to make at this juncture is quite straightforward: If education is to dilate its potentials for political action, or, rather, to produce conditions capable of palpating a people, it must become able to produce an image of thought through which new forms of material organization might be actualized. To think of the institution as a mixed space composed of both molar and supple lines, where the latter pose opportunities to break pedagogical routines, forms of mimesis and the habitual striation of institutional space, constitutes one such image. In Aoki’s (2005) terms, we might otherwise dub this image the lived curriculum, where the striated line of the curriculum-as-plan is crosscut by the heterogeneous desiring-production of the teachers, students and others who encounter it. The challenge of pedagogy, Aoki intimates, pertains to the affirmation of the supple line that crosscuts the molar curriculum’s presumption of how a life ought to go. To rejoin Deleuze and Guattari (1987), where pedagogy falls short of being able to affirm a people through the commencement of a supple line of necessary deterritorialization and reterritorialization, a singular people remain missing. This necessitates rethinking the school from under standardization in such a way as to recommence its ‘baroque’ character, or rather, its always-already mixed composition of lines. Such an approach to pedagogy inheres the genius of Celestin Freinet (Acker, 2007), whose incorporation of a classroom printery as a conductor for the desiring-production of his pupils begins by understanding that enunciation without authority,5 the connection of pedagogical life to the broader social fabric, and the dehierarchization of classroom labour are integral to the creation of conditions through which a people might be composed. As a careful experiment in mixing supple and molar segments, Freinetian pedagogy maintains the role of ‘standards’, yet renders them immanent to the desiring-production the group, its special interests and auto-articulation through the press as an enunciatory vehicle for connecting the life of the school to broader social forces and realities.6 Thinking through the institution: Lines of flight Only once pedagogy has become a matter of unleashing thought “and action from material repetition will it become capable of creating new styles and images of living. To think in this direction, however, institutional education must get a grip on life. Where this challenge has historically been redressed by way of submitting life to intensifying mechanisms of control and habituation, or rather, by organizing the supple forces of zoe in the representational image of molar individualism (bios), it has become complicit in perpetuating a form of ontological violence highly recalcitrant to the fabulation of a people out-of-step with the representational people-making of the State and the labour requirements of private industry (jagodzinski, 2011). Against this ontological violence, we have begun to think ‘institutional pedagogy’ as a mixed composition of molar and supple lines, where the latter function as a probe-head for detecting and producing potential alter-institutional formations out-of-step with the given. Yet, as Deleuze and Guattari warn, it is not enough to expect that a smooth or destratified space will save us. A supple line might always fall back into new microfascist behaviours. While a supple line might reterritorialize upon molar tendencies that have outlived their usefulness, Deleuze and Guattari suggest that they might eclipse the ‘strange attractor’ of the molar line and fulminate a line of flight that disappears into the distance. For contemporary education, it is the line of flight that constitutes the greatest political challenge in so far as it might be come capable of evading the image of an adapted and homogeneous people implicate to the teleology of standardization, producing instead the conditions for a nomadic war-machine capable of fulminating a critique of the State from the position of an outside thought. In this vein, it might be said that the dropout constitutes one of contemporary education’s greatest political problems. Of course, to suggest such a thing warrants caution, for the very image of the dropout is one fabulated as a foil to the idealization of a well-adapted and homogeneous institutional subject. Yet, in so far as the dropout deviates from the image towards which institutional life is made to aspire, it might function to illustrate tendencies of molecular revolution and, further, the emergence of a people-in-becoming not yet given institutionally. Aoki (2005) points to this molecular revolution via a Canada-wide study of dropout rates from university science programmes in the early 1990s. Why had one-third of previously successful students in science dropped out by the third year of their university science-degree programmes, Aoki informs, but for the reason that their education had failed to grasp prescient crises in the discipline and, further, the virtual potential for science to take up new issues and problems particular to the lives of students (pp. 199–200). According to the programme’s dropouts, their science education had failed to produce a salient attachment to life, or at least those molecular impulses of difference “unequal to the edicts of the ‘molar institution’. For Aoki (2005), the dropout’s line of flight fulminates two productive disruptions within the territory of institutional education. First, it deterritorializes the ostensibly stable image of the curriculum-as-plan by exceeding the a priori epistemic commitments, methodological habits and utilitarian possibilities presupposed by the plan as given. Second, the dropout resists integration by plotting a line that no longer differs by degree, or, rather, in accord with some founding image of ‘identity’ as its grounding matrix. The dropout might, in this sense, be thought of as a figure of disidentification that is already on the move elsewhere, into an ‘open landscape of multiplicity’ whereupon a people might be composed (p. 207). It is in this vein that the dropout might no longer be thought of in pejorative terms, but, rather, as a potential expression of para-academic, outlander and nomadic forces through which the molar institution might be confronted with what it is incapable of thinking. The 2012 Quebec protests might be thought of as one such expression, where disidentification with the State’s insistence that students be quiet and content was counter-actualized through the assemblage of molecular revolutions being prepared in other social domains and labour sectors. As spokespeople for CLASSE (la Coalition large de l’Association pour une solidarité syndicale étudiante) would suggest, the success of the student strikes against tuition hikes “and the repeal of rights to public assembly and freedom of enunciation would occur via the creation of diverse alliances that for their shared molecular struggle against the dogmatic assertions of State power would comprise a war-machine poised to break territories of power through the materialization of an outside thought (Deleuze and Guattari, 1986). The attempted silencing of the student protests through the enaction of emergency laws, forcible repression by police forces, and mainstream media attacks branding protestors as irrational extremists would fail to suffocate the heterogeneous antilogos being prepared via the spatio-geographic occupation of public space, the disruption statistical numerability qua the creation of protest collectives, and the production of affective forces out-of-sync with the image of an orderly and adapted public demanded by the State. As with Deleuze and Guattari’s (1986) description of nomad tactics, Quebec’s micropolitical revolution functions to deterritorialize dominant regimes of signification. Such noological violence is aimed at a people given in advance, or, rather, a molar public domesticated in the image of the State and private sector. In distinction, CLASSE palpates a new image for thinking via a line of institutional and economic deterritorialization oriented to the actualization of free post-secondary education for all. It is hence via the line of flight, or a creative line of escape from the entrapment of institutionally sanctioned desiring-production that a life might be recommenced, or, rather, that institutional pedagogy might more fully re-engage with molecular forms of non-integration and refusal suffusing the contemporary social field. This posed, it is crucial to rejoin Guattari’s (2009) insight that it is not simply enough to alter the material organization of the school. As such protest group-subjects as CLASSE illustrate, society itself must be revolutionized. It is in this manner that the dropout might be repoliticized in terms of its ability to constitute a molecular war-machine that extends beyond the albeit crucial internal revolution of such social institutions as the school. Born from a process of deterritorialization, the dropout produces a constitutive line that begins to remap both social terrain and the territories of person-construction inscribed in such mechanisms as educational standardization. The dropout is both a process of disidentification and a means to place institutional life in immediate relation with its outside (Deleuze and Guattari, 1986). Herein, the dropout might be thought of as a minoritarian figure “vague (vagabond) enough to escape molar essences while fringe enough to elude over-identification with a given people. It is in this way that the dropout is always born on a constitutive line reterritorializing elsewhere – producing or inhabiting smooth ecologies with their own potentials for resingularization, revolutionary instants and experimental surges (Deleuze and Guattari, 1994). The dropout’s constitutive line of flight palpates a way in which we might ‘think leaving’ as an affirmative escape (Arsic, 2005). Contemporarily, such lines of escape are subject to intensifying powers of capture. While labouring under the alibi of ‘best pedagogical practice’, for example, the advancement of ‘no fail’ policies in many North American schools masks the contraction of the institutional subject to flows of State funding. Hence, where the dropout constitutes a potential break in the institution’s economic circuit, its threat becomes subjected to policy that effectively prevents ‘thinking leaving’. Such a trend might be extended in relation to the lauded educational rhetoric of life-long learning, which insists upon processes of permanent retraining, re-accreditation and permanent registration that effectively tether the desiring-production of the ‘educated’ subject to forms of institutional regulation and segmentary management. Such regulation of ‘pedagogical life’ in service of both the State and the private sector are amplified via the production of infinite debt, which produces an intractable barrier to the composition of a politicized nomadism (Holland, 2011). Increasingly, our ability to think outside the institution is ostensibly diminishing. The capture of smooth or otherwise, non-coded social space constitutes a significant problem in so far as education might take seriously the ethico-political challenge that life has a chance or, rather, that the desiring-production of unique group-subjects can shape the institution and broader social fabric. Again, these are not simply magic words. One might detect in the pedagogical thinking of Freinet, Neill, Oury, Guattari and others the necessity of dropping out in order that new space of alliance and association might be produced. For such educators as Neill (1992), escaping the violence of the modern school (the school-as-barracks) would necessitate the production of a war-machine oriented to the productive destruction of a hierarchical and militarized noology endemic to institutional thought. In brief, Neill’s Summerhill School is not simply another school within the boutique milieu of neo-liberal ‘edu-consumerism’. More radically, Summerhill is a dropout school, or, rather, a school born through a process of productive disidentification with the school in general. It is, in many ways, a school different in kind. It is the ‘outside thought’ or resingularization of the standardized school intent on the production of conditions (co-operative council, non-mandatory classes, heterogeneous student groupings) for the creation of new group-subject formations. On this intent, Neill infamously provoked: ‘I would rather see a happy street-sweeper than a neurotic Prime Minister’ (p. 10). Not without irony, Summerhill’s future would be “threatened in the late 1990s, when Tony Blair’s New Labour Government sought to reterritorialize Summerhill’s singularity back upon the State’s model of educational efficiency and production, hence reinscribing it along the presumed necessity of the State as a transcendent supervisory and regulatory power. Against this, Summerhill was able to evade capture through the resistance of its ‘heterogeneous’ advocates, who championed the necessity of its difference in a culture overcoded by party bosses, organizational hierarchies and the clichés of orthodox educational thought.


We are swamped by political action. What we need are new problematics that cut into conventional ways of knowing the political field. Flipping the dialectic will not due – absent the suicide of the coherence of the representational and universal subject as such, all attempts to move simply rigidify the dialectic opposition to the norm without truly challenging it. A joyous and affirmative critique is necessary to avoid the re-situation of ressentiment, only mirroring the status quo without any prayer to change it.

Eloff 15. Aragorn Eloff, nomad in South Africa, “Children of the New Earth – Deleuze, Guattari, and Anarchism,” July 31, 2015,


Instead of programs for political action, let’s produce shared problematics. How do we describe where we find ourselves? How did we get here? What are the intensive flows and processes underlying the world as it is presented to us? What diagrams is all this the effectuation of? Can we, via a practice of vice-diction, create new diagrams? We will always get the solutions we deserve as a consequence of how we pose and incarnate these problems. Organisation is crucial, but let us not forget that for all their differences of instantiation, any group can lapse into a mode of organisation that repeats the form of the Party and hardens into a new dogma defined by unquestioning loyalty, ascetism and the crushing or recuperation of desire turned against itself. We need “new micropolitical and microsocial practices, new solidarities, a new gentleness, together with new aesthetic and new analytic practices.” This is not about creating agreement, because the more we disagree “the more we create a field of vitality.” Again, we should be wary of the subjugated groups and their repressed desires, the groupuscules and their channelling of libidinal investments into hierarchies, reform and inertia. What is the viscosity and consistency of our group forms? How do we come together? What flows between us? What are our fluid dynamics? How quickly do we congeal or dissipate? Attentiveness to the new is crucial: the world now is not the world then and we are not who we were. The new fascism – the Urstaat awakened and given new strength by capitalism – produces a peace more terrifying than war and if we are not careful then “all our petty fears will be organized in concert, all our petty anxieties will be harnessed to make micro-fascists of us; we will be called upon to stifle every little thing, every suspicious face, every dissonant voice, in our streets.” This does not mean that we cannot, however, also act against our time in favour of a time to come. Engagements on the level of discourse are important but limited. Control functions just as much through machinic enslavement of the body – affects, percepts, imaginations, desires, calories, flows of water and electricity – as it does through the social subjection that produces, through the signifying systems that increasingly fill every corner of the world, alienation and ideological hegemonies. The new signifying systems also operate in a double movement, whereby they open up the flows of information whilst simultaneously closing down collective enunciative capacity. Ressentiment – revenge, resentment and reaction – impedes all revolutionary becoming and will only lead to further oppression, of each other and of ourselves. Do not trust those who spread ressentiment and call for the settling of accounts; they seek only slaves as allies and always reproduce what they aim to destroy. “To have ressentiment or not to have ressentiment – there is no greater difference, beyond psychology, beyond history, beyond metaphysics. It is the true difference or transcendental typology – the genealogical and hierarchical difference.” This is especially true of identity politics. If we remained trapped in a Hegelian spirit of revenge then our victories will always be written into the world as victories as slaves. Identity, even intersectional identity, reifies molar categories in its production of axes of differentiation. Instead of categories that always repeat the Same through false appeals to identity, analogy, resemblance and opposition, we would do better to think of our multiple and alway-shifting overlappings as events and encounters, not as perennial attributes of interpellated subjects. If we’re seeking to hold on to established identities, then what are we resisting? Our own transformation through association with other bodies? Our capacity to expand joy? Is it not precisely the blockage of desiring-production within sedimented identities that has resulted – and continues to result – in relations of hierarchy and domination? Besides, “the forces of repression need always an ascribable self and specifiable individuals to apply. When we become a little liquid, when we evade the ascription of the self” then perhaps we have a chance. Let us then become liquid; let us fold and unfold and refold in the practice of what Edouard Glissant calls ‘relation-identity’. This way we can also begin to discover our “rigid segments,” our “binary and overcoding machines,” and that “we are not simply divided up by binary machines of class, sex, or age” but that there are “others which we constantly shift [and] invent without realizing it.” Our true names are not “pure” but instead “bastard, lower, anarchical, nomadic, and irremediably minor.” At the same time, struggle on the level of axioms is not unimportant. The fight for reforms – for service delivery, for jobs, for recognition, for a voice – can aid in minority becomings. However, struggles on this level only facilitate such becomings and are not always necessary. These molar politics are “the index of another coexistent combat,” a micropolitics. At the very least, we must be done with the hegemony of hegemony. Our “revolutionary organization must be that of the war machine.” We seek a nomadic revolutionary science, not a Royal science of teleologies and base-superstructures and counter-hegemonies and determinations in the last instance. We are multiple, heterogeneous. There are always an infinity of peoples. We must commit altrucide and suicide. For as long as we remain trapped in the infinite demand of the Other, as long as our focus is on trauma, infinite justice, impossible horizons and melancholia, we are separated from our capacity to act by a reimposed transcendent dialectics of absolute responsibility. Instead, imbrication in movement, reciprocal feedback loops, mutual enfoldings of affect and expression, exchange and becoming-other-together.

Freee black girls

Green, 6-29-2017 [Adrienne, “How Black Girls Aren’t Presumed to Be Innocent,” Atlantic,]//SC

A growing body of evidence has shown that the American education and criminal-justice systems dole out harsher and more frequent discipline to black youth compared with their non-black peers. But while most of that research has focused on black boys, a new study from the Georgetown Law Center on Poverty and Inequality specifically turned its attention to society’s perception of black girls. Researchers built in part on a 2014 report that concluded black boys are wrongly perceived as older than their actual age and are more likely to be viewed as guilty when they are suspected of a crime. The Georgetown study sought to determine whether there’s a similar effect for black girls—whether adults identify them as less innocent and less child-like than white girls of the same age. The results were resounding: Not only do the researchers report that “black girls were more likely to be viewed as behaving and seeming older than their stated age,” they also find that this dynamic is in place for girls as young as 5 years old. The study surveyed 325 adults from different racial, ethnic, and educational backgrounds, and from different regions of the country. (Most were white and female.) The researchers asked some participants about their perceptions of black girls, and some about white girls of the same age. Questions included: “How much do black [or white] females need to be comforted?” and “How much do black [or white] females seem older than their age?” The authors describe a pattern in their findings: “Across all age ranges, participants viewed black girls collectively as more adult than white girls,” the study reports. “Responses revealed, in particular, that participants perceived black girls as needing less protection and nurturing than white girls, and that black girls were perceived to know more about adult topics and are more knowledgeable about sex than their white peers.” When asked what she found most surprising about the results, Jamilia Blake, an associate professor at Texas A&M University and one of the report’s authors, said: “The age that we start to see this was very shocking. The fact that you would think a 5-year-old is more knowledgeable about sex is amazing to me.” The researchers suggest there is a connection between the stripping of black girls’ innocence and the harsher treatment they receive from public school officials and law enforcement. According to the study, compared to white girls, black girls are two times more likely to be disciplined for minor infractions like dress-code violations or loitering, two-and-a-half times more likely to be punished for disobedience, and three times more likely to be cited for being disruptive. While those statistics were obtained by surveying just one school in Kentucky, the authors say they hint at a broader trend of black girls enduring more punitive treatment than their peers: “Simply put, if authorities in public systems view black girls as less innocent, less needing of protection, and generally more like adults, it appears likely that they would also view black girls as more culpable for their actions and, on that basis, punish them more harshly despite their status as children.” Several recent incidents highlight the grave implications of subjectively defining what it means to be an innocent and compliant child. In 2013, a 16-year-old girl from Florida was arrested and expelled after her science experiment produced a minor explosion at school. A 15-year-old girl was slammed to the ground in 2015 by a McKinney, Texas, police officer who pinned her underneath his knees. Later that year, a 16-year-old girl was grabbed out of her seat by her neck and tossed across a South Carolina classroom by a school police officer. And in May, two 15-year-old twins in Boston faced detention and suspension because administrators said their braided hairstyles violated the school’s dress code. These anecdotes suggest that authorities’ perceptions of black girls may directly influence whether they come into contact with the juvenile-justice system, where as a group they are more likely to be referred and detained. In an interview with The Atlantic last year, Monique W. Morris, the author of Pushout: The Criminalization of Black Girls in Schools and a consultant on the Georgetown study, said people have “implicit racial and gender biases” when it comes to black femininity. She described how those biases affect how people perceive black girls and women: Too often, when people read these statistics, they ask, “What did these girls do?” when often, it’s not about what they did, but rather the culture of discipline and punishment that leaves little room for error when one is black and female. Black girls describe being labeled and suspended for being “disruptive” or “defiant” if they ask questions or otherwise engage in activities that adults consider affronts to their authority. Across the country, we see black girls being placed in handcuffs for having tantrums in kindergarten classrooms, thrown out of class for asking questions, sent home from school for arriving in shorts on a hot day. … We also see black girls criminalized—arrested on campus or referred to law enforcement—instead of engaged as children and teens whose mistakes could be addressed through non-punitive, restorative approaches. Both Morris and the study’s authors note that the United States’ legacy of racial discrimination—one that dehumanizes and sexualizes young girls of color—factors into how the child-like behavior of black youth is interpreted. “Adultification contributes to a false narrative that black youths’ transgressions are intentional and malicious, instead of the result of immature decision-making—a key characteristic of childhood,” the authors write. While such conclusions might not seem especially fresh given this history, the study’s utility lies in its explicit focus on the assumption of innocence as integral to childhood. White children benefit from better educational, legal, and social protections precisely because of this phenomenon, while black children aren’t as willingly afforded a pass for any youthful indiscretions.

Misalinment/black savages

Wynter’06—2006 ( “Interview with Syliva Wynter, ProudFlesh Interview: New Afrikan Journal of Culture, Politics & Consciousness, Issue 4) KZaidi

SYLVIA WYNTER: There was an article in The New York Times or somewhere where they had an argument showing this gap consistently in all tests between Black and white students. You can say, okay, the economic issue’s there; and, of course, inferior schools and so on. But, nevertheless, amongst middle-class Blacks and whites, the same gap exists. Now, Claude Steele was the first social psychologist to try and ask, “Why is this?” Had he gone and looked at Woodson, Woodson had already told him why. Woodson said, “Look, it’s the order of ‘knowledge’ itself.” It’s the regime of “truth.” The very discipline of social psychology is a function of that part of the regime of “truth” of the order of “knowledge” that structures the “consciousness” that holds us together as members of the Westernized middle-classes. You see?

PROUD FLESH: What love and respect we have for Woodson, his The Mis-Education of the Negro (1933) most especially!

SYLVIA WYNTER: What does he say? If you look at the system of “knowledge,” in the curriculum, it’s set up to motivate every white student and to de-motivate every Black student. The system of “knowledge” itself is what functions to motivate and to de-motivate. Notice, it motivates those who are to be at the top and it de-motivates those who are to be at the bottom. So you begin to say then, “What do our systems of ‘knowledge’ do?” And you begin to ask yourself, “How are human orders reproduced?” “How is it that each order is reproduced?” “Why must there be this “gap” between Black and white?”

If you look at it, The Bell Curve [by Richard J. Herrnstein and Charles Murray, 1994] gave us an “explanation” as to why there is this gap. Okay? Because they are saying that the gap exists because of differential levels of inherited . . . whatever it is that you call it, “intelligence quotients.” Now I want to make a distinction between whatever it is that you call “I.Q.” at the level of individuals because if you’ve had children, you are amazed at the differences between them. But the differences are never along one line. There are different aptitudes and activities. So let’s put the individual out of it. But how is it that you manage at the level of the group to get the gap produced? Suppose you change the question and ask, “How is the gap produced!?!” Even if The Bell Curve were right. Where The Bell Curve’s thing is very powerful: they’re giving an “explanation.” We’ve never given an explanation! But Woodson was giving an explanation. Do you see?


SYLVIA WYNTER: We have not wanted to . . . [Laughter] . . . take up Woodson for a simple reason–in the same way as in the medieval order they saw the heavens through a geocentric model and, therefore, they could not explain why some stars seem to be moving backwards, because they couldn’t imagine that it was from the perspective of a moving Earth that that appears to be so. Within the terms of our “biocentric” conception of being human, “consciousness” is “natural.” We cannot ask ourselves then, “How is the gap produced?” The gap has to be “natural.” Do you see what I mean? But if Fanon says, “besides ontogeny there is sociogeny,” then it means that it is the institutions of a specific mode of sociogeny that calls for that gap to be produced; and the system of “knowledge” enacts the mode of sociogeny of every society–whatever is the conception of being human. If you’re in the medieval order, the system of “knowledge” has to argue that the Earth is at the center of the universe–not just because we don’t feel it move, but because after the Adamic “Fall” it became the abode of “fallen Mankind.” “God” decreed it to be fixed in the universe as the dregs of the universe. This is how you’re going to be thinking in the medieval order. So you’re never ever going to imagine the Earth to move. Conceptually, since you are “fallen Man,” your abode has to be fallen. Okay? To imagine that we have orders of “consciousness” we have to make another leap.

It means, if the human is a “purely biological” being, as we now assume, then how can you have different orders of consciousness? How could the people of medieval Europe have been “conscious” of the world in a totally different manner to their descendants in “America” today. Put the rest of out of the picture. Think of Europeans, right? The Western European of today has nothing to do with the Western European of the medieval order. It’s a totally different order of consciousness. But to do that you cannot imagine that the human is “purely biological.” With Fanon, you explain the order vis-à-vis a governing sociogenic principle that was/is instituting of the order of consciousness.

PROUD FLESH: This also explains the negative reaction to Woodson when he first published The Mis-Education of the Negro; that is, when he first began to deliver the talks, publish the pieces and make the statements that would become the book.

SYLVIA WYNTER: They can’t look at it!

PROUD FLESH: It was seen as a leap–out of respectability.

SYLVIA WYNTER: Out of respectability. In fact, someone like Steele (who’s a social psychologist), he did wonderful experiments at Stanford because he asked himself, “Why did these middle-class, upper middle-class Black students begin to do so badly at Stanford?” He set up some tests for them. He found that whenever the tests had to do with their “intelligence,” they would do very badly. But whenever it was just a plain test or something quite abstract, you know what I mean, that didn’t reflect on their “intelligence,” then things were roughly equal. He found the same would happen between European students doing math and Asians, because Asians are “supposed” be very good at math; and between men and women in some aspects. The same thing could be set up. So Steele isn’t really seeing what Woodson talked about–degrees of motivation and de-motivation. How is he going to make that leap? Woodson is ruled out, even before he has started.

My thing is that what Black Studies should have been is a place where you bring a Steele and a Woodson together. That would be the perspective from which you bring them together. Steele is going to have to begin to say to himself, the gap, the degrees of difference (usually about fifteen percent), should be proportional to the degrees motivation and de-motivation at the level of groups in the overall order of representation. So with all of these books about the representation of Africans and women and so on, you begin to see that these are not arbitrary things. These are a function of a whole behavior-motivational schema which is reproducing the order–all of us in our different places. Woodson has gone totally outside the concept that this is “natural.” He is saying, “No. The function of the curriculum is to structure what we call ‘consciousness,’” and therefore certain behaviors and attitudes.

PROUD FLESH: That’s why the system stigmatizes, even demonizes what it calls “drop-outs.”

SYLVIA WYNTER: In fact, if you notice what is now happening, the order no longer needs labor.

PROUD FLESH: Right, it doesn’t.

SYLVIA WYNTER: It is increasingly becoming automated. So masses and masses of people have to be pushed out, in Europe as well as here in the U.S. They have to be dropped out. Even this thing about “the new tests” is a mechanism to make sure you’re going to be able to be dropped out “legitimately.” If you keep the logic of the system going, they will be shut out of the economic order; and, as Maurice Godelier [French anthropologist and author of Rationality and Irrationality in Economics (1974) and The Enigma of the Gift (1999), for example] says, “to be shut out of the economic order is to be shut out of social existence.” For the first time, social existence is defined in economic terms. This is becoming the enormous problem that the logic of the system cannot solve, that is, the great masses of people who have to be cast out. That is why so many Black men are in prison. See what I mean?


SYLVIA WYNTER: You’re going to have to use the prison system to legitimate the logic of what I’m calling “Man,” the logic of the reproduction of “Man,” which over-represents itself as if it were “the human.”

By the way, when I talk about the whole “bio-chemistry” thing (that is, the status-cum-semantic activation of the opiate reward and punishment neuro-chemical system of the brain), more and more work is being done that shows that in every order the lower echelons are the ones who die and have more diseases, especially those who are unemployed. They’ve done insightful work on this in places like Glasgow. The women at thirty look like old women. So what you’re saying is that the reproduction of a hierarchy and the rankings are at the tremendous price of those who are expelled from the order. When are we going to be able to apply this knowledge to the homeless as well? What we can do is to go from the premise that “the personal dignity of the human cannot be sacrificed under any circumstances.” Then we say, “How do we create a world?” I am arguing that you cannot



BINGHAM 2001 (Charles, Professor of Education at DePaul, WHAT FRIEDRICH NIETZSCHE CANNOT STAND ABOUT EDUCATION: TOWARD A PEDAGOGY OF SELF-REFORMULATION. Educational Theory, 00132004, Summer 2001, Vol. 51, Issue 3, pp. 337-8)


When it comes to education in schools, some philosophers mortgage their worldviews. One such philosopher is Friedrich Nietzsche.[1] Nietzsche sees in schooling a derivative activity that cannot sustain his radical views of the human self. He cannot, for example, imagine an education that would cultivate human beings who are truly “cultured.”[2] And he does not believe that mass education can foster democratic habits among most individuals.[3] Nietzsche demarcates the goals of his own philosophical project from the goals of German education of late nineteenth century. What I am interested in is this line of demarcation. What can such a line tell us about either Nietzsche’s theory of education, or about education in schools per se? Why did he in his early work disparage education in schools when he could instead have re-visioned all such education in Nietzschean terms ? Questions like this, about Nietzsche’s demarcation, beg for different sorts of answers than do other questions that typically get posed in educational theory. For example, a typical question might ask how the work of Nietzsche can be applied to education. But this would contradict his intent. Nietzsche does not think his philosophy fits into what universal education has to offer. Thus the untypical question: What is it in schooling that does not tolerate his philosophy? In this essay I will look at Nietzsche’s exclusion of schooling. I will ask why mass education does not gain purchase in his worldview; why institutional pedagogy is disparaged. Of course, I do not choose Nietzsche randomly. I choose him because Michel Foucault puts us on the scent of Nietzsche’s reasoning. Taking a cue from Foucault, we learn that Nietzsche’s rejection has much to do with the self reproductive capacities of education. Foucault has shown that educational institutions, since before Nietzsche’s era, are places where the modern self is re-produced as a norm.[4] Such institutional norming of selves must be seen against the backdrop of Foucault’s time-removed mentor, Nietzsche, who advocates versions of subjectivity that do not fall within such a modern norm. For Nietzsche, only radical versions of the human self will do, and it is this fact that is at the bottom of his condemnation of mass education. But while it is easier for Nietzsche to condemn education as a practice that will not sustain a radical vision of self than it is to imagine the possibility that education can produce alternate forms of selfhood, that is not to say that we should follow him. Ultimately, this essay will posit that education in schools should not be sold short in this way. Education can and should foster radical forms of selfhood. The process can be begun by both listening to Nietzsche’s philosophy, and by ignoring his claims about the detriments of mass education.


BINGHAM 2001(Charles, Professor of Education at DePaul, WHAT FRIEDRICH NIETZSCHE CANNOT STAND ABOUT EDUCATION: TOWARD A PEDAGOGY OF SELF-REFORMULATION. Educational Theory, 00132004, Summer 2001, Vol. 51, Issue 3, pp. 345-6)


Nietzsche’s self-radicalizing project should thus be understood as a re-description of learning that turns upside-down prevalent educational assumptions about the self. For example, commonsense notions of the self hold that there is a self that arrives at school and educational experience is negotiated by that self. The student may negotiate educational experience by different means — by means of reasoning, narrative, or emotions, for example — but in any case, the self is always there during this process. According to this commonsense view of education, there is a lack of education when the self cannot negotiate (by whatever means) the educational experience that is to be obtained at school. But as Nietzsche points out, a model of education that treats such a self as pre-given is already a lack of education from the very start. If we begin by assuming that there is some self that is being educated, then we have already bracketed much educational work. As he puts it, such a steadfast understanding of self is part of our “great stupidity.“[17] When we assume that forms of selves are pre-given, we inoculate conceptions of self from being the subject of education. Yet that is what most education does: It treats the self as if it is not something that needs to be taught as a set of forms, and thus it naturalizes the self as inviolable by the very act of not teaching multiple forms of self. As Nietzsche reminds us, education so conceived is actually based on a moral paradigm of steadfast self-hood. When it comes to moral convictions, a person is usually praised for being steadfast and immovable. For example, a person who has a steadfast commitment to social justice or to religious principles is called exemplary, not uneducable. For Nietzsche, any such understanding of education is confused at a very deep level. For education to be educative, it cannot be grounded in the primary assumption that there is someone who is at a very deep level (say, at the level where we hold our most cherished beliefs) unchangeable. To be so grounded is to consider human beings educable and expect the self to stay steadfast. Educational aims claim to be comprehensive, yet they are predicated upon a moral understanding of steadfastness that is incompatible with profound self-learning. Nietzsche explains this predicament: At times we find certain solutions of problems that       inspire strong faith in us; some call them henceforth       their “convictions.” Later — we see them only as steps to       self-knowledge, signposts to the problem we are — rather       to the great stupidity we are, to our spiritual fatum, to       what is unteachable very “deep down.”[18] For Nietzsche, self-integrity is premised upon a certain unteachable-ness. Teachable-ness, in contrast, cannot be an attribute of self-same selves. Learning must be an assault on “the problem of who we are.” For, who we are is fundamentally a “great stupidity.” Following Nietszche, our “convictions,” our “self-knowledge,” and our “faiths” are matters that go against learning. These steadfast parts of self that are now considered the rock upon which learning takes place are, instead, the subjective elements that are most in need of education. It is the decentering of these self-stabilities that must be at the heart of learning for Nietzsche. Education worthy of its name cannot take calm harbor among self-same assumptions that guide moral paradigms. Education must instead assail self-integrity. Pedagogy must make overt efforts to make teachable “the great stupidity we are.”

Teach about suffering


Hyland 85 (J.T. PhD, “Unhappiness and Education: some lessons from Schopenhauer,” in Educational Studies, 11:3, 227-8)

The recent revival of interest in the education of the emotions in philosophy of education is to be welcomed since questions concerned with the development of a person’s character, moral values and general life stance must, without doubt, be accorded a central place in discussions about the educational enterprise. In this respect, Bonnett’s recommendations for the cultivation of the poetic and artistic aspects of human nature, and the direction of the educator’s attention to the “fluidity and spontaneity of Being” (1983, p. 32) as a response to the threat of dehumanisation and alienation posed by modern technological materialism are timely. Similarly, Griffiths (1984) contends that the education of the emotions should inform all aspects of the life and work of schools, and provides a much-needed reminder of the importance of this sphere of educational endeavour. A primary shortcoming of all such programmes of affective education, however, is the insufficient consideration given to the darker and irrational aspects of the human condition. Thus, Dunlop’s account (1984) stresses the need for a balance between the social and individual aspects of learning and explores the importance of the school’s ethos, and we are left with the impression that objectives in this area can be achieved fairly easily by means of certain pedagogic and curriculum improvements. But there seems to be a systematic avoidance of the realities of everyday life in such programmes—a determination to steer clear of the pain, adversity and strife which are characteristically part of every human life and which, for many people, militate against the achievement of moral and emotional stability. This overly optimistic picture needs to be challenged, and I submit that Schopenhauer’s vision of life can help educators to redress the balance in this respect. “Neither the sun nor death can be looked at with a steady eye” noted La Rochefoucauld, and it seems that a similar unsteadiness also distorts our perception of other unpleasant aspects of life. What is required is a determination to explore the sources and consequences of unhappiness in life, of that miserable striving which Schopenhauer identified with the will to live. This would involve turning the critical attention of pupils towards such issues as pain, illness, poverty, loneliness, depression and aspects of death and dying, areas which, if they are discussed at all in schools, are treated only superficially. The conventional approach to such topics needs to be questioned and altered along the lines suggested by Schopenhauer, and the various ways of dealing with the human predicament may then be outlined and explored. All this is fundamental to and a prerequisite of the formulation of objectives and teaching methods in this sphere. Literature comes to mind as, perhaps, the most apposite vehicle for this sort of learning, and the excellent account offered by Hepburn (op. cit.) for the education of the emotions through literature is difficult to improve upon. However, the traditional criteria of literature must not be allowed to distract us from our primary objective which is, not the pursuit of literature for its own sake (though, as mentioned above, aesthetics offers one way of escaping from the slavery of the will), but for its ability to illuminate certain crucial features of the human condition. This objective is quite different from the more orthodox objectives of literature teaching which (although there are signs of change in the new examination proposals and in recent criticisms of the standard line, see Weldon, 1985) are overly impersonal and predomi- nantly academic. I have been astonished to witness a discussion, for instance, of the deep pessimism and nihilism of Hardy’s Jude the Obscure conducted in a purely clinical fashion, as if Hardy had not intended us to learn something from the story of the crushing tragedy and appalling adversity of Jude Fawley’s life and to apply this knowledge to our own circumstances. History and social studies are also ideally suited to the re-appraisal of affective objectives that I am suggesting, though all curriculum areas would benefit from a shaking of the foundations in this respect. There are two main objectives of such a re-appraisal, both of which could be accepted by educators who might not want to endorse the whole of Schopenhauer’s thesis. First, though we may not agree that the miserable striving and vicissitudes of the will are quite as definitive of life as Schopenhauer says they are, we can still recognise that they play a significant enough part in the lives of most of us to warrant rather more attention than the curriculum typically gives them. The rationale here is that which undergirds all educational activity, described by Schopenhauer as pure and genuine philosophising, viz. the pursuit of truth and objectivity. It is just as intellectually reprehensible to avoid or give only cursory treatment to the problems of terminal illness or suicide as it would be to give a one-sided account of the French Revolution or to discuss contemporary world politics without reference to Marxism. Just to clear up a possible misconception, the particular interpretation of the pursuit of truth advocated here must not be seen as an oblique way of pursuing happiness by learning from the misfortunes of others, counting blessings or any other such homilies. In any case, I tend to agree with Von Wright (1963, pp. 93 ff.) that, since unhappiness bears all the hallmarks of being a contrary not a contradictory of happiness, it might be both a logical and an empirical mistake to try to achieve happiness in this roundabout manner. Dearden was right to say that we cannot sensibly question the value of happiness. I have not been concerned at all with this question but, rather, with other questions to which I think educators ought to give greater consideration. The pursuit of objective knowledge is an intrinsic educational objective, but it is here only a necessary preliminary to the all-important instrumental one of providing pupils with the wherewithal to achieve that mastery over the will which Schopenhauer described as the means of salvation. Expressed in different ways, this has been a central aim of all philosophising since Socrates, and ought to inform all areas of educational activity. Our vision will remain distorted and confused until we have learned to recognise the forces which shape our thoughts and actions, and are able to apply this knowledge to practical living. If clarity of vision sometimes renders experience unpalatable, so be it. Although such knowledge may not always help us to change the world in any concrete way, the refinement of our powers of reflection and deliberation leads to the attainment of that self-knowledge which, as Hampshire (1979) demonstrates, will always be a liberating and never a restricting possession.