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Should There Be a Federal Right to Education?

By Daarel Burnette II — January 07, 2020 11 min read
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The federal government ceded much of its control over education policy to states and local school districts in 2015 when President Barack Obama signed into law the bipartisan Every Student Succeeds Act.

But some scholars and advocates think that recent NAEP and international test scores showing stagnant outcomes and achievement gaps for U.S. students amid rising costs for K-12 public education signal that the federal government should aggressively intervene by setting new standards and holding school administrators’ feet to the fire when they fail to meet them.

In her new book, A Federal Right to Education: Fundamental Questions for Our Democracy, Kimberly Jenkins Robinson, a law professor at the University of Virginia, collected thoughts from legal and education law scholars about the challenging questions that a federal right to education would bring about. Why should the federal government guarantee all children such a right? What should a federal right to education guarantee? Why are state protections to a right to education inadequate?

Two lawsuits that argue for a federal right to an education are expected to land on the Supreme Court’s dockets in the coming years. A federal lawsuit out of Detroit argues students’ reading scores are so abysmal that graduates of the state-run schools are ill-prepared to vote. A similar lawsuit out of Providence, R.I., coursing its way through federal courts makes a similar argument about that district’s civic education standards. But local and state officials have long complained that decisions about education policy eminating from Washington are too far removed from the classroom.

Robinson began her legal career litigating school finance and constitutional law cases and has written extensively (including for Education Week) about the history of the legal right to an education and education federalism. EdWeek chatted with Robinson about her work advocating for a federal right to an “excellent” education. Here is an edited transcript of that discussion.

What role should the federal government have in addressing educational inequities?

Many want to limit the federal role in education because of the shortcomings of the No Child Left Behind Act. They argue that, “we let the federal government do what they want, and they made quite a mess of things.”

There are two answers to that: First, NCLB accomplished quite a bit ... such as the disaggregation of achievement data to show the achievement gap. That was a significant and important shift in our understanding of education in our nation. And that achievement will be something that will be enduring in federal law. We knew from NAEP data and other data that we had a national achievement gap, but now you’re forced to look at it school by school.

Second, part of what was missing in NCLB was a focus on the opportunity gap that drives the achievement gap. We need to examine how we got here and pay attention to the opportunity gap that we never fixed. We never fixed it with desegregation. And so, we’re still living with that legacy, not to mention the fact that we are increasing racial isolation in schools.

But then on top of that, we also need to make sure that we are documenting, measuring, and acting on the opportunity gap. Once you measure the opportunity gap, you then need to close it by giving kids the resources they need. I believe that the federal government should create a set of incentives, and then eventually legislation that requires states and districts to close opportunity gaps.

One of the problems with No Child Left Behind was that it tried to do everything all at once. We increased federal involvement in education, we sought to get rid of the “soft bigotry of low expectations, and then mandated that schools fix the achievement gap. But what my work proposes is a far more incremental approach, where we first create incentives for states to do the right thing, which is basically close the opportunity gap, which will lead to closing a large part of the achievement gap. Then once we have a model in place for states and the language that we would need for federal legislation to do this, then you start attaching Title I dollars to these new federal conditions.

The current provisions in Title I that require some attention to the gap are completely eviscerated. Those provisions that say you must have comparable resources—everyone knows the scholarship shows that they are not enforced. You first need incentives and then conditions on the billions of dollars that we spend on education to come with conditions that states and districts are closing their opportunity gaps. And until the federal government does that, it’s enabling states to maintain the opportunity gap because we’re not requiring you to change it. So, the federal government is part of the problem until it becomes part of the solution.

It also is important to understand that local control is not an end of itself. Local control is intended to achieve experimentation that leads to excellence. And if you can’t show that your local control is getting you there, then you don’t need to have it. Either get to excellence, or let someone else be the leader who can do it. These are our kids’ futures we’re talking about. These are not small matters.

What was flawed about San Antonio Independent School District v. Rodriguez [the U.S. Supreme Court case that ruled a school district’s funding mechanism was not a violation of the 14th ammendment Equal Protection clause]? What openings did it leave lawyers?

Rodriguez decided that ... there isn’t a federal right to education, but left the door open for future litigants to argue that the education being provided to children wasn’t adequate to prepare them to exercise their rights to free speech and to vote.

Brown v. Board of Education [which ruled racially segregated schools illegal] and Plyer v. Doe [which required states to provide an education to children regardless of their immigration status] undocumented immigrant children] made clear that separating education is unlawful and intentionally excluding students is not permissible. But what the court lost is the heart and spirit of Brown because the court moved toward a very heightened focus on returning powers to local control, just as districts were finally starting to require effective desegregation. Milliken v. Bradley [which ruled unconstitutional an effort by Detroit and its suburbs to integrate its school systems] cemented the urban-suburban divide, particularly in the North and the West.

Is school funding fair?

We know children in high-poverty schools need more funds than other students to compete effectively with their more-affluent peers. Many states fail to provide adequate and equitable funding. We oftentimes treat every child the same, but the challenge is that not every kid needs the same amount of resources. For low-income communities, there are is a constellation of things that poverty brings into the classroom. By giving the same funding, we’re clearly disadvantaging those children. Even more so when we give them less funding, and that’s inexcusable. This continues year after year, generation after generation, and then there’s a cumulative adverse impact on test scores and outcomes.

When it comes to the history of America’s public school system, what inspires you? What disturbs you?

What inspires me is where we’ve come from. We had slavery, and then Jim Crow. And there was a time when I would not be teaching at the University of Virginia School of Law. I wouldn’t have even been let in the front door.

Unfortunately, however, Jim Crow’s reach remains strong. You know, we still have love letters to Jim Crow, all around our nation with the statues that honor civil war “heroes.” We still have a long, close relationship with Jim Crow that is impacting our society today. And that is one thing that our nation has never recognized. The United States invested heavily in Jim Crow, at the federal, state and local level. However, the dismantling of Jim Crow received much more of a cursory effort, was much more limited in scope, was much shorter, and we invested less. Because of that, Jim Crow continues and lives on and continues to affect things due to our failure to fully dismantle this very elaborate system we put in place.

We still use this mantra of local control, as though that should be one of the premier guideposts of education when it is merely intended to be a means to an end. Local control that leads to excellence—it’s wonderful. But local control that leads to inadequate, inequitable, and substandard educational opportunities is not an American value.

The Supreme Court is often a champion of local control. But what it loses sight of is that local control in and of itself is not the goal. The goal is having well-educated and effective citizens and children who are prepared to engage in our economy. We need a far greater partnership between the federal and state government. We need to have a partnership rather than an approach in which the states are in control and the feds are on the sidelines. That’s not an effective partnership.

So, what you keep referring to is that the feds have an incentive to assure equity between states, between districts, and between schools. What is the incentive here? Why should the feds care about the quality of education for kids?

The federal government should care about it for several reasons. One, it’s costing us a lot of money to have inequitable and inadequate schools. There’s quite a bit of social science data showing that inadequate schools cost us billions in health-care costs, social welfare programs, and in the criminal justice system. It costs us in our tax revenues, when children aren’t reaching their full potential and aren’t earning as much as they could. It is very well established in social science research that the nation is paying for its lack of investment and attention to these issues.

You’re going to pay less now, or pay more later. If you reduce our academic disparities, you would get greater civic engagement and fewer instances of criminal justice involvement. You also could reduce the ancillary costs of criminal justice to the victims and the families and communities that are affected.

I’m recommending actually a more cost-effective way to pay for it, which is investing in education at the outset. And there are some things that can’t be quantified. What is the cost of not having an educated citizenry?

Are you advocating that a federal right to education be enacted legislatively or through the courts?

Just like the civil rights movement took a multifaceted approach, I think we should be pushing every possible avenue for the recognition of a federal right to education. There are litigators who are in federal court now who are seeking to get the right recognized. But the litigation was begun thinking that there would be a court appointed by Hillary Clinton rather than Donald Trump.

Even if the Supreme Court rejects a case arguing that there is a constitutionally protected right to education, Congress certainly still can and should enact legislation that recognizes one. All of those avenues should be pursued. And not just [through the courts and Congress] but also a constitutional amendment that recognizes the right to an education.

Ultimately, in my work, I focused on a congressional right to education in part because you can get the public buy in that you don’t have when the court announces something. A congressional right allows Congress to work out over time with the states what the scope and nature of the right should be. But undoubtedly, the right should guarantee an excellent education for each child.

Finally, I’m wondering if you have any thoughts about the presidential candidates debating education funding. Are you skeptical? Or do you think this is good that presidential candidates are engaging in debate about the federal government and education?

Yes, I think this is a very positive development that the Democratic candidates are talking about engaging the federal government in education, more in part because the president has a unique bully pulpit to push a progressive education agenda. He or she can send the message to the nation over and over and over again that the situation we have is intolerable, and we must do something about it. And both sides of the political aisle have noted that education is an important civil rights issue.

What I really want to see is action, not just talk. I think part of that needs to be preceded by a national conversation about the opportunity gap. And so, to the extent that the candidates are helping to raise attention to education disparities, I think that’s beneficial. States have an important role to play in education to ensure excellent schools, and the federal government can partner along with states to help them achieve that. The great thing about the executive branch is there’s a lot it can do even without Congress acting. The president can call attention to this issue, have a national commission study this issue and make recommendations. That was done under President Obama. But those recommendations never received the adequate attention they deserved.

But at this point, it’s so easy on the campaign trail to talk. It’s much harder to actually take action and do something.