A New Legal Duty for Urban Schools:Effective Education in Basic Skills

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As a result of recent educational research, urban public elementary schools are now, in my judgment, legally obligated for the first time to effectively educate in basic skills substantially all of their students, regardless of the percentage who are poor or members of racial minorities.

Previously, no such liability could be imposed because it could not be shown that it was possible to effectively educate the vast majority of students in such schools, let alone that effective schools serving such populations had any characteristics in common that ineffective schools could be required to adopt. But research has now shown that effective urban public schools do exist across the whole range of poor- and minority-student concentrations, and that effective urban public schools do have important characteristics in common. Moreover, these characteristics are within the schools' power to create.

The magnitude of both failure and success in urban public education is illustrated by schools in New York, Houston, and Philadelphia. As of several years ago, in certain schools, as many as 65 to 70 percent of the students in one or more of the grades from 2nd through 6th were one year or more below grade level in reading and/or mathematics or in composite basic skills, while 40 to 45 percent were two years or more below. Typically, 40 percent or more of the students in these schools were poor and 65 percent or more were members of minority groups.

By contrast, in these same systems at the same time, many other schools serving student bodies 40 to 100 percent of which were poor children and 10 to 100 percent of which were minority children were effective: No more than 20 percent of the students in any grade from 2nd through 6th were one year or more below grade level in reading, mathematics, or composite basic skills, and no more than 10 percent were two or more years below. This 20 percent/10 percent criterion I hereafter refer to as the "national standard."

Separate from these findings, "effective schools" research has established that effective schools share common characteristics. As identified by the late Ronald Edmonds, the five characteristics generally supported by researchers are: instructional leadership by the principal; agreement by the teachers and the principal on basic-skills education as the central goal; an orderly climate, with generally accepted disciplinary standards and a well-maintained physical plant; teacher conveyance of expectations that all students will adequately learn basic skills; and regular use of standardized tests to measure achievement and adjust instruction accordingly. Of these characteristics, the most significant appears to be high teacher expectations: The level of expectations directly affects the intensity and effectiveness with which teachers teach and students learn.

These characteristics are within the schools' power to create. By careful selection, training, and, if necessary, replacement, school districts can ensure that principals provide leadership and support to staff members on instructional matters. School administrators have it within their power to define and effectuate the teaching of basic skills as the central mission of the schools. School personnel are uniquely able to establish and enforce generally accepted disciplinary standards and to provide for good maintenance of school property. Through hiring, training, rewarding, and disciplining teachers, schools can ensure that teachers convey and act on the expectation that all students will adequately learn basic skills. And schools unquestionably can regularly administer standardized tests of basic skills and modify instructional efforts to respond to demonstrated student needs. (Indeed, schools in New York and Milwaukee, for example, have successfully instituted and operated for several years programs implementing such characteristics.)

Not only are the five factors commonly shared by effective urban public schools, but also--as many educators have already recognized--it is likely that any ineffective school that adopts them will improve its students' education in basic skills.

This follows not only from the consistent correlation between the presence of the five factors in effective schools and their absence in ineffective schools and the improvement achieved by many schools implementing the characteristics, but also from common sense. It is common sense that if the principal fails to provide instructional leadership to the staff, if the teachers do not convey the idea that students are expected to learn successfully, if school personnel do not agree on effective education in basic skills as their key goal, if they do not maintain an orderly and decent environment, and if they do not regularly assess student performance and incorporate the results into basic-skills instruction, students are not likely to learn basic skills well. Conversely, it is common sense that if school staffs reverse these behaviors, students will learn basic skills more effectively.

Given the demonstrated capacity of schools to succeed, public policy no longer provides any valid justification for their failure. The interests of society in their success are too great to allow schools to perpetuate demonstrably ineffective approaches while refusing to institute the characteristics of success. The new legal duty effectuates this societal interest: It requires that every urban public elementary school--regardless of its percentage of poor and/or minority children--must educate its students to the national standard already achieved by many schools, or, at the least, adopt the characteristics of success.

This duty flows independently from each of five legal sources. First, the constitutions of 48 of the 50 states explicitly protect education; they require the states to provide, for example, "thorough and efficient" education or declare "ample provision" for education to be "the paramount duty of the state." State supreme courts have already construed some of these clauses as mandating effective teaching and adoption of the most successful educational practices known. As to elementary schools, the rationale for such clauses is to ensure that all students are effectively educated in basic skills. This purpose cannot be satisfied unless these clauses are construed to require ineffective schools to give up their incontrovertibly failing educational behaviors and attitudes and adopt the characteristics of success.

Second, under the 14th Amendment's due-process clause, the serious deprivations of liberty entailed by compulsory education can be justified only if they are rationally related to achieving the objective for which they were imposed. It is not rational to compel children to attend school to be adequately educated in basic skills and then permit the schools to frustrate this objective by refusing to adopt the characteristics of success.

Third, even the least demanding 14th Amendment equal-protection standard prohibits the government from treating people differently unless the differences are rationally related to a legitimate state interest. A school district's effective education of the vast majority of students in some of its elementary schools, but not in others, while refusing to adopt the behaviors and attitudes likely to lead to improvement for the ineffective schools' students is not rationally related to any legitimate state interest.

Fourth, the duty derives from state constitutions' equal-protection clauses. The analysis is similar to that under the U.S. Constitution, but the state claim is even stronger. Because virtually all state constitutions (unlike their federal counterpart) explicitly protect public education, discriminatory treatment of students in different schools thereunder generally would not be justifiable unless necessary to achieve a compelling state interest. Schools refusing to adopt the characteristics of effective schools could not satisfy this test.

Finally, the state common law of negligence imposes the duty. Each of the four traditional elements of negligence is met: duty of care, breach, causation, and injury. Public policy, which it is the task of negligence law to vindicate, demands that educators be held to a duty to exercise reasonable care in performing their academic functions. Where existing educational approaches have failed, reasonable care necessitates adopting alternative educational approaches that are likely to improve achievement. A school's refusal to incorporate the five factors while its students fail to meet the national standard breaches the duty. Breach is the legal cause of injury, since it is more likely than not that if the school had embraced the characteristics, its students' achievement would have improved. And inadequate education in basic skills causes legally cognizable economic and psychological injury.

The greatest need now is to galvanize the will of society toward implementing the duty of urban public schools to provide effective education in basic skills. The widespread assumption that the failure of poor and minority students in urban public schools is inevitable must be overcome. From governors to local school officials, from state and federal education officers to civic leaders, from business spokesmen to teachers and their unions, from the media to the President, the message that must go out across the country and be institutionalized in the schools is that poor and minority urban elementary-school students are expected to succeed.

Hereafter, every urban public-school system needs to publish regularly for each elementary school the percentages of students in each grade who are one year or more and two years or more below grade level in reading or mathematics, as well as the percentages of students in each school who are poor or members of racial minorities. Any school in which more than 20 percent of the students in any grade are one year or more below grade level and/or in which more than 10 percent are two years or more below grade level must rigorously assess whether it has fully adopted the five characteristics and must be opened for public observers to do likewise.

Any such school that has not thoroughly embodied the characteristics must develop and implement a plan to do so. Each school's teachers and principal should be maximally involved in the plan's design, execution, and whatever subsequent modifications may be necessary to fully establish and maintain the characteristics. This is essential not only so that each plan will accurately reflect the school's problems and strengths, but also to maximize the staff's commitment to the plan's success. Such schools cannot satisfy their legal duty unless their students routinely achieve at least the national standard or the schools have fully implemented the five characteristics for a substantial period of time and still fail.

If repeated efforts by school parents, advocacy organizations, individual school administrators and teachers, the media, businesses, politicians, and other interested parties fail to persuade school districts to have their ineffective schools adopt the characteristics of success, the courts may be invoked, but only as a last resort. Voluntary cooperation, if attainable, is likely to produce faster and more certain educational improvements. It remains for the public to demand implementation of the duty, the schools to undertake it, and the courts to enforce it.

Vol. 05, Issue 09, Page 24-20

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