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The Struggle To Fulfill a Judicial Mandate: How Not to 'Reconstruct' Education in W. Va.

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West Virginia may be "almost heaven." But a circuit-court judge and a citizens' coalition are raising hell with West Virginia's political and education establishments over the lack of both quality and equality in the state's school systems. It is no simple backwoods exorcism or another internecine feud between the Hatfields and the McCoys. On the contrary, the current struggle over school reform in West Virginia has profound implications for the rest of the nation--and may well be a harbinger of the tensions likely to burden public education for the remainder of the 1980's.

This turmoil has been triggered by the verdict of Special Circuit Court Judge Arthur M. Recht (acting on behalf of the West Virginia Supreme Court) in the case of Pauley v. Bailey.

Judge Recht ruled West Virginia's system of financing and delivering public education is unconstitutional. In a landmark 244-page opinion, he declared that the state's constitutional mandate to provide a "thorough and efficient" education for every child has been grossly and systematically violated by the county school systems, as well as by the relevant state agencies. He ordered the state legislature and the appropriate state and county agencies to do "no less than completely re-construct the entire system of education in West Virginia."

This sweeping mandate for reform was long overdue. Judge Recht's clear analysis of the failures of the public schools, and his courage in challenging a powerful array of state and county officials to uphold their responsibilities to West Virginia's children, should be the impetus for a dramatic upgrading of the West Virginia schools. This extraordinary judicial decision has opened the door to lasting, significant school improvement in a state where assuring the quality of the education provided to all children has been a matter of rhetoric rather than reality.

Not everyone has applauded Judge Recht's verdict. In fact, the state's political and education establishments have done everything in their power to once again slam the door shut on school reform. After all, there are numerous state and county officals with a strong vested interest in maintaining the status quo that they have controlled--and from which they have benefited both politically and economically--for many years. As a consequence, a campaign has been mounted to negate--or at least to lessen the impact of--the Recht mandate.

Led by the state's erstwhile "liberal" governor, John D. Rockefeller IV, these attacks have already taken their toll. For example, Judge Recht decided (under intense political pressure) to put aside his original intention to appoint an independent special commissioner to oversee the creation and implementation of a master plan reflecting his decision in the case. Instead, he is now allowing the West Virginia Department of Education--one of the major parties found guilty in Pauley v. Bailey--to dominate the planning and implementation processes.

Rarely in legal history have the guilty parties been given the authority to decide what restitution will be made to their innocent victims. As a Charleston Daily Mail editorial noted: "We always thought if you lost a court case, it was the other guy who got his way. ... If this were boxing, people would be yelling 'fix."'

Still, there is reason for optimism that the rare opportunity for lasting school improvement that the Recht decision offers will not be squandered. Judge Recht has retained the court's jurisdiction to review (and reject if necessary) the department of education's plan and to name a special commissioner. If Mr. Recht holds firm in seeing his verdict through the implementation phase, he can create an education system that fully and equitably benefits West Virginia's young people.

He will get significant support to that end from the West Virginia Education Project (WVEP)--a statewide coalition of parent groups, teachers, labor unions, community organizations, and other interested citizens. The WVEP is led by a dynamic and effective rural activist, Linda Martin, who is working to make this organization a significant counterbal-ance to the forces encouraging the judge and the legislature to tread lightly on the status quo and to make only token changes in the public schools.

The resolution of this case is now at a critical juncture. The West Virginia department of education has just submitted its proposed "master plan" for Judge Recht's consideration. The WVEP is opposing the state's plan on the grounds that it will not result in a genuinely "thorough and efficient" education system--even by the time it is fully implemented in the year 2000! Although Judge Recht denied the WVEP's motion to be included as an official plaintiff in this suit, he did grant them status as a "friend of the court" and will take their recommendations into account as he decides what comes next. Once again, the ball is in Judge Recht's court.

Beyond confirming that education,1lpolicy is an inherently and intensely politi-cal exercise--rather than a technical one best left to experts--the Recht decision reveals a number of issues confronting public schools,1lthroughout the country.

As the courts continue to play an active role in the resolution of education issues, the tension between their role in assessing what is wrong and their role in determining how it should be remedied will continue to grow. In Pauley v. Bailey, Judge Recht's diagnosis of the financial and educational ills of the public schools was much more solid than his prescriptions for how these ills ought to be cured. The lesson here is hardly new--that judicial activism is most effective when applied to the direct resolution of factual concerns and to the indirect resolution of value-laden concerns through the enforcement of just and appropriate procedures. Still, the lesson is worth remembering as the courts continue to intervene in education policy.

One of the problems with the Recht opinion (and indeed, much of American education) is that it confuses educational standards with educational standardization. In other words, it confuses the level of quality that schools must attain with the idea that there is only one sensible way for all schools to attain that level of quality. Setting standards speaks to what schools must do and to what parents and students have a right to expect of these public institutions. By contrast, standardization (although it sounds the same) is really a very different idea, for it refers to a very specific strategy for how these standards can be achieved.

Education is still much more of an art than a science, and much more of a process of trial and error than a cut-and-dried or mechanical set of procedures. What the court, the legislature, and the education profession must insist upon is a high standard of quality, not a uniform standard of school1lorganization and instruction. Ironically, a major push for standardization is more likely to result in consistent mediocrity than in genuine excellence.

There is also an underlying assumption in the Recht opinion (one held by many educators) that good resources result in good schools. On the surface this seems like a reasonable assumption. However, decades of school reforms focused on the quality and quantity of resources together with the results of study after study have shattered the credibility of this assumption.

While it is true that what goes up must come down, it is emphatically not true that what you put into schools determines precisely what you get out of them. There are numerous examples from around the country of very well-endowed schools that offer a poor education. The opposite is also true. The availability of resources is important, but is less important in the long run than what schools do with the resources that are available.

Another lesson of the West Virginia case has to do with decision making. The planning and implementation of a "thorough and efficient" system of public schools is being entrusted in West Virginia (as elsewhere) to a collection of politicians, law-yers, government officals, and highly placed education administrators. The people missing altogether are the people with the greatest personal stake in the outcome and the greatest knowledge of what's worked in the past, what hasn't worked and why--the parents, teachers, principals, and students of West Virginia.

One of the recurring themes in the research on school improvement is that the official, intended beneficiaries only occasionally enjoy the rewards of the reforms carried out on their behalf. The most frequent beneficiaries of "reforms" turn out to be the reformers themselves!

The implication of this historically-validated conclusion is clear. If one is serious about ensuring that the traditional victims of public-education systems--poor children, minority students, rural youth, and so forth--become the beneficiaries, then every effort must be made to vest at least a moderate level of control and authority directly in them or their guardians.

Parents, students, teachers, and principals need not hold all the power in order to benefit from reforms. However, they must be viewed as full and equal partners in the decision-making process (through school site councils, for example) for a fairer distribution of the educational rewards to occur.

On another issue, the specific standards Judge Recht proposed are likely to lead to a new round of school consolidations. By buying into the metropolitan model of large schools with specialized teachers and supervisors for every subject and level, Judge Recht (like the West Virginia department of education he criticizes) overlooks the inherent virtues of small, community-oriented schools. He also ignores the potential of advanced technologies to diversify and expand the curriculum without the need to hire a lot of highly credentialed, highly paid, and hard-to-find specialists and supervisors.

Ironically, research has shown that consolidation encourages higher dropout rates among the very students the judge's standards are supposed to benefit most. The schools may be improved, but that fact will make little difference to those rural students who predictably will drop out of school because of the hardship of transportation and the impersonal feeling of large, consolidated schools.

Meaningful school reform must be based upon improving what actually happens to children, not upon building fancy new schools or upon making rural schools into second-rate, miniature replicas of metropolitan ones.

West Virginia is different from most states in that its constitution mandates a "thorough and efficient" system of public education. Yet even in states where this explicit expectation of quality has no firm legal standing, there is a growing political mandate for thorough and efficient schools. West Virginia's education system did not meet this standard and it is an open question as to whether any state's system would be judged to be thorough and efficient. However, whether the impetus is legal, political, financial, or moral, the demand for school systems that meet this criterion will only grow greater in the future. As a result, the sound of Judge Recht's gavel in West Virginia may reach far beyond the hills and hollows of Appalachia.

Vol. 02, Issue 17, Page 24

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