Do state constitutions affect school curriculum?

classroomStudent Carissa Harris has written an interesting article in support of her masters in political science at Virginia Tech. I found out about it because it discusses my piece on federalism and education. The most interesting part, to me, is her research into the possible correlation between state constitutions and civics curriculum.

First, Harris examined each of the 50 state constitutions. She breaks them down into three categories: (1) constitutions that provide for free schools but do not mention the importance of schools for democracy (this is the majority of states), (2) constitutions that “begin their education articles with an explicit statement that education is essential to the maintenance of democracy” (there are 14 of them) and (3) Iowa, which has no education provision in its constitution. Second, Harris examined “each state’s high school graduation requirements, both for social studies in general and for civics/government courses in particular.”

Harris was looking for a connection between strong constitutional provisions about education and strong graduation requirements in civic education, but she didn’t find much. “Only eight of the 14 states with such constitutional emphases include civics or government courses as part of their social studies requirements for high school graduation,” she wrote, leading to the conclusion that there is “[n]o clear connections between state constitutions and social studies requirements emerged from these 50-state comparisons.”

Harris then picked two neighboring states to compare: Minnesota, with a strong constitutional provision about education, and Wisconsin, without one. Here, she found some variation, concluding that “[e]ach state’s different approach to curriculum requirements indicates that the state with a more explicit education mandate in its constitution (Minnesota) has more specific and rigorous civics education graduation requirements. But that does not preclude an individual school district in Wisconsin from implementing the same or more rigorous civics requirements.”

I’m not surprised that there is a weak correlation here. My suspicion is that state politics vary just as much if not more than federal politics, and a particular constitutional provision—especially one so weak as an explanation for why the state needs to provides schools—reflects the political emphasis at a particular point in time. Curriculum, I would think, is changed more often, and likely at a different time, and by different political players, resulting in a weak connection between the constitutional authority for, and the nuts and bolts of, a state’s education policy.

Harris’s ultimate conclusion is stated stronger than her evidence supports: “That many states do not provide thorough civics education requirements (possibly because of lack of resources or because more focus is placed on curriculum areas subject to high stakes standardized tests) suggests that inconsistency in, and an overall lack of discussion about, education standards will continue. Without an explicit Constitutional motivation to set such standards, it appears the status quo will remain into the foreseeable future.” I’m not persuaded. I think that states can and will take more control on education if there is political willpower, regardless of “constitutional motivation.” In fact, no “constitutional motivation” will likely ever exist unless there is a strong education-reform political constituency.

On another note, Harris addresses my proposal that the Department of Education could have a strong role as a meeting place for state and federal education policymakers. She acknowledges that Congress is in fact heading this direction, but argues that “this would lead once again to more national control over education policy, which would contravene the trend of new judicial federalism.” I disagree that my proposal means more federal control over education policy. Right now we have lots of federal control, with standards many criticize as too one-size-fits-all. Giving states more ways to express their concerns to the Department of Education—whether through waiver applications, special notice and comment procedures, or stronger provisions for state-initiated judicial review—and giving the agency leeway to address these concerns, would tip the balance in the other direction.

California school districts get NCLB waivers

SchoolCrossingThe Department of Education has approved applications by eight local schools districts in California for waivers from No Child Left Behind. I’ve discussed these applications before, mentioning that it is unprecedented for local districts–rather than states–to be seeking waivers. I’ve also discussed how the Department of Education is a key arbitrator of the competing governmental voices in education policy: local, state, and federal.

Under the terms of this waiver, these districts must develop their own “college and career ready” standards. U.S. News summarized the key aspects of the district’s planned standards and reactions to it:

The new accountability system, known as the School Quality Improvement Index, will be based 60 percent on academic factors such as student performance and graduation rates, 20 percent on a “social-emotional domain” that focuses on absentee, suspension and expulsion rates, and 20 percent on the “culture-climate domain,” which focuses on how students, staff and parents evaluate school performance. The districts participating have also agreed to fully implement the more rigorous Common Core State Standards in the coming school year and implement assessments aligned to those standards by the 2014-15 school year.

Secretary Arnie Duncan praised the new system:

Education Secretary Arne Duncan said the new accountability system will hold schools more accountable for the progress of certain student subgroups, such as minority students or those with disabilities. Under NCLB, schools are held accountable for the progress of these groups only when there are at least 100 students in that group at a given school. But under the districts’ new system, that number is lowered to 20.

But others are upset:

Dean Vogel, president of the California Teachers Association, said in a statement that the move is “absurd, counterproductive and divisive” and sets up a new bureaucracy to oversee the districts.

“The CORE waiver distracts from the good work already in progress by local educators across the state,” Vogel said. “This will create confusion for educators, students and parents.”

I understand where the opponents are coming from, in that this seems like an awful piecemeal approach to education policy. But preventing this type of local modification of standards is what some education reformers have criticized NCLB for. And I’ve argued before that that the Department of Education, if given appropriate freedom, might be the ideal meeting ground for local, state, and federal policymakers to each express and advocate their own priorities goals in setting educational guidelines. I see lots of benefits in the federal government imposing a simple requirement of having acceptable standards and allowing state and local districts to create their own ways of meeting that standard, with accountability from the Department. What do you think?

Local California School Districts Seeking NCLB Waivers

SchoolCrossingThe Sacramento Bee reports that nine local school districts jointly filed an application yesterday for a waiver from federal education standards under No Child Left Behind. This step is unusual for local districts, as it is usually the State seeking a waiver, as the Bee says:

Under federal law, districts can file their own applications, though they are generally filed by states. So far, 34 states and the District of Columbia have obtained waivers while 10 other requests are pending.

If the waiver is approved, the districts could start receiving federal funding again, to the tune of $110 million. That funding dried up when they failed to meet certain standardized benchmarks.

One superintendent explained, “We’re not trying to escape accountability,” and another added, “We are moving away from a sort of all-or-nothing focus on proficiency and moving toward a system of greater accountability, moving from the No Child to what I call the whole child.”

I support these types of applications, providing of course that the Department of Education carefully reviews the request. Yesterday, I published a post discussing my proposal that the Department of Education have even more discretion to grant these sorts of applications, because I think that the agency level is the best platform for cooperation between local officials and the federal government. Allowing this type of interaction, as I’ve said before, is consistent with emerging theories of federalism.

Proposal for reauthorizing No Child Left Behind

ICRE School busAs I noted in an earlier post, theories of federalism support a greater “polyphony” of state and federal input on education policy. That is, education policy and reform works best when both state and federal government can voice objectives and concerns. In my article, An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79, 98-102 (2012), I propose that Congress should give more control over to the Department of Education, or another agency, as a stage for these dual levels of government to address their concerns. Here’s why I think this is a good idea (and what potential problems might arise with this approach):

Instead of merely renaming the existing standards and making minor changes to teacher qualifications and consequences for failing to meet NCLB’s requirements, Congress should simply set the broader objectives of national education policy and let one or more administrative agencies fill in the rest of the details. As an example, Congress could set the broad objective of “having qualified teachers,” and allow an independent federal agency, in consultation with states, to set any further details of this objective. This approach not only allows for ongoing state participation in modifying the NCLB scheme, but it also promotes greater state participation in creating the specific policies that comprise NCLB reauthorization itself.

Such a task could fall to the DOE; the Secretary of Education is already working on drafting new proposals for reauthorization of NCLB. Moreover, the DOE already administers NCLB—issuing policy guidance and disciplining states for noncompliance. Scholars suggest that NCLB would improve if the DOE simply offered more policy guidance. Congress should go a step further, wiping the slate clean and instructing the DOE—in coordination with state governments—to create the specific guidelines for achieving broad educational goals through informal rulemaking. This approach would not necessarily require modifying the prohibition against the DOE setting curriculum, since the DOE—as Congress did with NCLB—could set only assessment criteria and allow states to set the actual content of school curriculum.

One of the primary weaknesses of this approach is that it relies on Congress limiting its own role in setting the particulars of education policy. But there are persuasive reasons that Congress should consider doing so. Since an agency will set the details of new policies, there is less potential for the partisan gridlock that derided past reauthorization efforts. For Republicans, and even the Tea Party, states’ rights are a key concern, and this approach encourages greater state participation in setting education policy. For Democrats, this approach ensures that the federal government will have a key role in setting objectives for education policy. Perhaps most importantly, for both parties, this approach sets the stage for the future success of federal and state relations regarding education policy. By moving the ongoing debate about education policy to a more responsive and flexible body, members of Congress can assure constituents that strides are being made in education policy, without having to shoulder the criticisms of again making multiple missteps due to political compromise.

This proposal also might be challenged as unconstitutional. States could argue that, if they are forced to accept federal funds before they know the specific rules the DOE will eventually promulgate, the rule is too ambiguous. Indeed, courts have been conflicted over whether to permit agencies to fill in the details of federal spending-clause legislation, though mainly when an agency issues guidance with a congressional mandate. Congress could require that new DOE regulations remain nonbinding until the next installment of federal funds, allowing states to accept unambiguous terms when accepting funds. Congress also could preempt these arguments by unambiguously notifying states that the DOE is entrusted with  interpreting the broad conditions set by Congress. States might also argue that this approach is an unconstitutional delegation of congressional regulatory authority. But delegation is permissible as long as Congress gives an “intelligible principle” to guide agency rulemaking. The Supreme Court, unwilling to second guess most delegations, has interpreted “intelligible principle” very broadly, upholding even a delegation that simply required regulations “in the public interest.” In fact, only two statutes have ever violated this rule, both of which gave little or no guidance. As long as Congress sets some broad educational goals—such as a general standard that schools hire qualified, effective teachers—then the delegation would probably be constitutionally permissible.

This proposal—using administrative law to give states a more prominent voice in setting federal education policy—encapsulates the emerging theories of federalism discussed previously. In regards to the proposition that federalism is obsolete, the administrative state offers a chance to rewrite the structural elements of government. The national priorities for education are still promulgated through federal agencies, thereby accounting for the United States’ uniform normative  desire for better elementary and secondary education.  Additionally, it permits regional or state experimentation until a more cohesive national ideal is identified. In regards to empowerment and polyphonic federalism, the whole objective of this approach is to further empower states while not diminishing federal power, actually adding further players—independent agencies—into the group of entities seeking to solve educational deficiencies. By empowering agencies to set the specifics of federal education policy, the federal government would appropriately set a stage for a dynamic ongoing debate over education policy. This debate would allow the federal and state governments to learn from each other without the crippling necessity of cumbersome congressional action to dramatically change course.

2012 BYU Educ. & L.J. at 98-102 (footnotes omitted).

Applying theories of federalism to education reform

file5011249338919As a follow up to my earlier post with a concise history of the federal role in education, I’d like to share another portion of my paper about applying theories of federalism to education reform. The full text can be downloaded at SSRN. Here’s my thoughts on modern theories of federalism as applied to No Child Left Behind (NCLB), with footnotes omitted, as appears on pages 91 to 94 of An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79 (2012):

Under a conventional viewpoint of federalism, NCLB is a federal encroachment into a traditionally state realm.  But the federal role in education shows no signs of decreasing, so new theories are needed to explain and analyze this unique federal and state collaboration.

NCLB could just be a sign that federalism is obsolete in America. This contention has been made by Professors Malcolm Feeley and Edward Rubin, who suggest that federalism is merely a tool for political compromise. According to them, America now has a strong national identity and the states do not hold strong distinct values, so federalism is no longer necessary. Although they recognize federalism won’t disappear any time soon, Feeley and Rubin suggest that education is an area where national standards may be particularly appropriate, as highlighted by the recent initiative of the National Governors Association to establish uniform national education standards. Feeley and Rubin point out that people promoting “state rights” often use federalism arguments to obscure their true objectives–whether they are preserving parental control, promoting school experimentation, or avoiding federal bureaucracy–when it would be better to debate these underlying policies directly.

Instead of arguing federalism is obsolete, Professor Erwin Chemerinsky argues for an augmented theory of federalism as empowerment.  He contends that the genius of federalism is giving multiple actors power to address society’s ills. He suggests that federal and state governments should vigorously and simultaneously try to reform education, with little restraint from courts.  He also argues that, to empower states, the preemption doctrine should be applied only in circumstances where the federal government expressly preempts state law. Although this theory appears to be broader than the Supreme Court’s current stance on federal power, it is less radical than the theory that federalism is obsolete altogether.

Similar to Chemerinsky, Professor Robert Schapiro argues for a “polyphonic” approach to federalism. Since the federal and state governments cannot take away each other’s authority to create law, these governments “represent independent voices of authority.” Schapiro describes this interaction as “polyphony”–when both federal and state governments can voice their independent ideas and concerns on education law and policy.  He criticizes Chemerinsky’s theory for having “nothing to say about the No Child Left Behind Act, other than that courts should keep their hands off it.” In contrast, polyphonic federalism, he argues, provides “at least a framework” for analyzing NCLB. As a “joint state-federal effort to improve education,” he says, NCLB fosters more accountability of education policy set solely by states. Schapiro acknowledges, however, that his “analysis rests to some extent on an optimistic account of NCLB,” and he never recommends how NCLB should change when reauthorized. The changes he does propose–limiting preemption doctrine and using our dual court system to protect fundamental rights–would have little effect on NCLB because of the liberal judicial approach to the Spending Clause and the lack of a federal right to education.

Finally, NCLB could be viewed through the lens of Professor Gillian Metzger’s work. She argues that, because the administrative state necessarily intersects with federalism concerns, administrative law is useful to states and courts in addressing these concerns. For example, states have used traditional agency procedures to challenge the rationality of agency decisionmaking. And the Supreme Court has used administrative law to address federalism by applying unique standing rules and heightened substantive scrutiny when analyzing agency action challenged by states.  Metzger argues that agencies are particularly responsive to states because regional offices give agencies a closer connection to states and state implementation ensures that agencies account for their interests. Additionally, agencies safeguard state interests because their rulemaking guidelines require review of state input in a way that ad hoc litigation does not; agencies are subject to judicial review; and agencies can review state concerns on an ongoing basis.  As discussed in the next section, Metzger’s proposal holds promise in increasing the “polyphony” of NCLB because administrative law might provide the perfect stage for state and federal government to raise their voices on education policy.

A concise history of the federal role in education

Landaff, Grafton County, New Hampshire. Younger children in one of the town's 3 one-room school hous . . . - NARA - 521481I have a new article coming out in the BYU Education and Law Journal in which I argue that Congress should give more control to the U.S. Department of Education in reauthorizing the No Child Left Behind Act. I like the section that lays out the history of federal involvement in education, so I’m posting it below, with citations omitted. You can download the full article from SSRN.

For the first one hundred years of U.S. history, Congress had a limited but active role in education. For example, as early as 1785, the federal government required that proceeds from the sale of land in the Northwest Territories go to public schools.  Congress may have operated with self-restraint due to pervading views of strong states’ rights. As a result, the Supreme Court did not strike down a single federal law as violating the Commerce Clause or the Tenth Amendment.

Congress’s role increased after the ending of the Civil War in 1865. The federal government required new Union states to provide free public schools and established an early form of the Department of Education, though departmental powers were limited mainly to collecting and publishing data on the state of American education. The Court responded by putting limits on congressional power: by 1936 the Court had narrowed the scope of Commerce Clause power and had used the Tenth Amendment to prohibit even federal taxing and spending power from encroaching into traditionally state activities. Despite the Court’s restrictive views, however, Congress enacted the 1917 Smith-Hughes Act, which succeeded in providing federal aid to schools in the form of grants for vocational programs.

From the late 1930s to the early 1990s, the Court’s opposition to congressional power decreased, clearing the way for a greater federal role in education. The Court shifted to a “nationalist” perspective, rejecting the Tenth Amendment as a constraint on federal legislative power and permitting broad legislation based on Congress’s commerce and spending powers. The federal role in education indeed expanded: Congress provided money for school construction and teacher salaries, supported veterans going to college and local school districts affected by military mobilization, passed school lunch programs, and provided aid for areas affected by federal acquisition of property. The Cold War further encouraged federal support for math, science, and foreign language education to stay competitive with Soviet rivals.

This federal aid, however, tended to favor wealthier school districts to the detriment of poorer countryside and urban schools. To combat these disparities, Congress enacted influential federal education legislation, including the 1965 Elementary and Secondary Education Act (ESEA), the precursor of No Child Left Behind. ESEA dramatically increased federal spending on K-12 education and helped the Department of Education gain prominence in setting education policy–as the agency administered ESEA. Congress also set the Secretary of Education as a cabinet post.

At the same time, the states began creating statewide education policies. States have always provided, and continue to provide, the majority of the nation’s education funding, but typically did not have experts and political bodies dedicated to education policy until the 1970s.  Since this time, state governments have made strides towards providing equality of financing amongst school districts, increasing educational quality, and setting standards for student achievement.

The federal position shifted in 1981 when President Reagan took office trumpeting the goal of a limited federal government. Although he managed to slow the increasing level of federal spending on education, at least initially, he did not otherwise decrease the federal role in education directly. But he did limit the federal role in less-obvious ways. For example, he required that executive agencies consider specific federalism concerns when formulating policies (an order revoked by President Clinton) and, along with President Bush, managed to appoint a Supreme Court majority of conservatively-inclined justices. These conservative justices have abated the increasing role of the federal government in education, defending states’ rights under the Tenth Amendment and limiting the scope of the Commerce Clause by prohibiting the federal government from regulating the states in regards to “noncommercial” activities. So as Congress continues to increase the federal role in education, the Supreme Court has essentially worked against that effort, shifting back to a “federalist” perspective, increasingly focused on states’ rights.

Although states’ rights advocates expected this “federalism revolution” to affect Congress’s spending power, the Court has left this power largely unbridled. Even today, the Spending Clause remains mostly unconstrained by federalism concerns resulting in Congress pushing its education policy on states primarily by conditioning federal funding on state adherence to federal priorities. For example, in 1994 Congress passed President Clinton’s Goals 2000: Educate America Act, which focused on using federal aid to assist states in creating their own academic achievement standards and assessment mechanisms. Congress included these types of reforms in subsequent reauthorizations of ESEA, including No Child Left Behind.

How cities can cultivate genius

I just got the new Wired magazine in the mail (March 2012), and it has an interesting article called “Cultivating Genius” by Jonah Lehrer. (Sorry, no online link yet.) The article starts by essentially making the same point that Edward Glaeser makes in Triumph of the City about how innovators and creators tend to congregate, especially in cities, which allow for the quick spread of ideas.

But not all places attract and cultivate geniuses. Lehrer points to three “meta-ideas” places adopt that seem to encourage genius:

  1. Human mixing, i.e., diversity. I see three areas where this point is important. First, the debate about immigration, because, as Lehrer points out, “in the overall population, a 1 percent increase in the number of immigrants with college degrees leads to a 9 to 18 percent rise in patent production.” Second, to me, it is also important to affirmative-action policies, which the Supreme Court recently agreed to revisit, because colleges and universities are where many of our new ideas are generated. Third, it may have implications for general diversity in the US. For more on that, see this 2000 diversity-index map from the Census Bureau (the trends haven’t shifted too much in the past decade, according to this USAToday map):diversity in the US
  2. Education. Lehrer believes that effectively educating the lower and middle class will waste less genius. I agree. For an interesting visual on education in the US, see this graphic from Good Magazine comparing education levels to salary:
  3. Risk taking. Lehrer suggests that we do a better job developing institutions that encourage risk taking. He makes the point that we develop great athletes because we have institutions that take risks to develop them, with the result that even small towns often produce at least one or two great athletes once in awhile. We should do the same with other types of genius, he says.

It is this third point that I think deserves the most attention from cities. As I’ve previously said, cities may be the best place for government innovation and risk-taking, for four reasons:

  1. Cities tend to be more pragmatic and less ideological than other levels of government.
  2. Density of human potential that hastens the spread of ideas.
  3. Less bureaucracy (smaller government) lets cities respond more quickly.
  4. There is less aftermath if a new innovation fails in one city than in a whole state or country.

Lehrer’s article is thought provoking (and short), so I encourage you to check it out (I’d add a link when it’s up).

Comparing effect of teacher scores and parent engagement on Chicago student math scores


Here’s a chart from Chicago open data about the progress report for Chicago Public Schools for the 2011 to 2012 school year.

Here’s what I did. I narrowed the list of schools down to 208, including only those that had data in these three categories: ISAT (Illinois Standard Achievement Test) Exceeding Math %, parent engagement score, and teacher score. (I don’t know how the progress report scored teachers or parent engagement.) I then charted the math achievement score against and the parent-engagement and teacher scores, and added a trend line.

Here’s what it shows: Both parent engagement and high teacher scores are important to achievement; there is an upward trend in math scores for both variables. Teacher score, however, seems to have the stronger effect, according to this data. Never underestimate the power of a good teacher.

The trend with ISAT Exceeding Reading scores is substantially the same as the math-scores trend.

Thoughts?