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Regulation and the 'New American School': Society's Cost-Benefit Choice

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President Bush's education initiative, America 2000, would create 535 New American Schools as models to demonstrate that excellence is possible. One key component of the proposal is to cut "federal and state red tape that gets in the way ...''

The goal of a federal educational-flexibility bill and the comparable state measures that will presumably follow it is to free these 535 new schools from the regulatory burden faced by other schools. Research as well as conventional wisdom suggests that the bureaucratic nature of public schools is a major reason for their lower performance than that of private schools. The present regulatory system apparently is seen by the Bush Administration as a constraint on efforts to improve schools.

Many of us share this opinion. But if the answer to exemplary schools is freedom from regulations, then why not remove them from all schools? Why not create 110,000 unregulated New American Schools across the nation?

The answer is that most existing regulations serve useful social purposes, and because they do, they are unlikely to be removed.

Regulations have become an integral part of American life. As a society we solve problems by adopting regulations. Schools are regulated, in part, because they are convenient and logical points of contact for children. Compulsory attendance means that 90 percent of our children attend public schools. There is no other place in society where so many children can be contacted in one place and at one time for social programs, even if those programs are not directly related to education. Examples of such regulated programs include health screenings, child-abuse reporting, immunization rules, and immigration permits.

Schools are subjected to "barn door'' regulations--adopted after a "horse'' has escaped from the barn--to prevent the reoccurrence of a problem. Earthquake building safety was required in California after a major earthquake; kindergarten photographing and footprinting were required after several notorious kidnappings and disappearances; certification of school-district financial solvency was required in California after several district bankruptcies.

School regulations also arise because interest groups, such as teacher unions, parent groups, and private commerce, use lobbying and political action to press for special regulations, sometimes with little regard to their impact on children. Examples include lengthy, complex, and expensive termination procedures for tenured teachers; limits on employee transfers and layoffs that protect employees from arbitrary and inconvenient placements; and state lotteries sold because they promise to give a portion of their profits to schools. Once in place, such regulations are seldom reduced or eliminated, barring major realignment of power among interest groups. The Law of the Many and the Few takes over: The few fight strongly for their cause, while the many object weakly to what is a minor inconvenience to them.

Each single regulation imposed upon schools has an underlying social purpose. Each regulation was adopted to prevent the recurrence of a problem or to improve conditions for students, employees, parents, or some other group. There are few truly ridiculous regulations when each is examined on its own merits. For example, parents expect school personnel to be screened for criminal backgrounds, as well as for active tuberculosis. Society expects school districts to have safe buildings. It is compassionate to allow a teacher to return to the same classroom after a lengthy illness, even though this may break the continuity of instruction in the class.

If individual regulations are seldom nonsensical, then why does the educational-regulation system as a whole have a negative impact on schools? It is the cumulative, synergistic impact of the multitude of well intentioned regulations that stultifies schools. It is analogous to a death of a thousand cuts: None is fatal until all are added together. School personnel frequently report that compliance with new regulations issued in one year is not completed before the next year's regulations arrive. Procedure and compliance take priority over children.

Any public enterprise as heavily regulated as public schools must become bureaucratic to handle regulatory complexities. The expertise required to comply with complex regulations forces an organization to become careful, deliberate, procedural, and staffed with non-productive experts.

A new position proliferating in school districts is risk-management officer, whose task is to reduce litigation risks to the district. Schools are not alone in this regulatory box. Social-welfare systems, hospitals, and law enforcement also face burdensome and complex regulatory climates. These regulatory systems stifle spontaneity, individual solutions, and imaginative approaches by creating a mentality of regulatory "permission giving,'' that is, anything not prescribed must be prohibited, and, if not prohibited, it is risky.

Since there is little chance that public schools will escape regulation, why attempt to free only the 535 New American Schools from it? To do this would be neither fair to children nor helpful to education. Unequal school conditions are unfair to children, an argument advanced most forcefully in Brown v. Board of Education.

It is also important to maintain equal conditions under the Bush reforms because they are based upon an assumption of competition among schools. Schools must have an even playing field if they are to survive in a new open-market competition. It is unrealistic to create model schools in an artificial environment of few regulations, unless that environment can be created for all schools. A school which functions well under unique conditions has not created a transferable solution to help other schools; it has merely shown that it can succeed in that particular setting. The Bush initiative seeks to find solutions to improve all schools. It is unlikely to do this with an approach that is analogous to allowing part of an industry to operate without environmental- or worker-protection regulations to prove that it can be more productive than its regulated cousins.

If overregulation really hampers education, then we need to rethink the values underlying our present regulatory system. Regulations are not simply impediments to change. They represent the norms and aspirations of the larger society. If the educational price of regulations is too high, then we need to examine our other values. Do we want schools to continue to be the central access point to children if it means diverting us from instruction? Do we want schools to continue to promote other social goals, such as security of employment for teachers, or kindergarten footprinting, if these lower instructional quality? These are difficult questions, for one person's restrictive regulation is another person's sacred cow.

In the end, schools receive all the regulation that society wants them to have. Pogo's oft-quoted remark describes this situation perfectly, "We have the met the enemy and he is us.''

Michael Slater is associate director of the Educational Leadership Institute at the University of California at Santa Barbara.

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