A Federal Right to Education

Fundamental Questions for Our Democracy

Kimberly Jenkins Robinson

• Publisher: NYU Press
• Year: 2019
• ISBN:
  9781479890743
• Topic: Derecho
• Subtopic: Derecho público

How the United States can provide equal educational opportunity to every child

The United States Supreme Court closed the courthouse door to federal litigation to narrow educational funding and opportunity gaps in schools when it ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Constitution does not guarantee a right to education. Rodriguez pushed reformers back to the state courts where they have had some success in securing reforms to school funding systems through education and equal protection clauses in state constitutions, but far less success in changing the basic structure of school funding in ways that would ensure access to equitable and adequate funding for schools. Given the limitations of state school funding litigation, education reformers continue to seek new avenues to remedy inequitable disparities in educational opportunity and achievement, including recently returning to federal court.

This book is the first comprehensive examination of three issues regarding a federal right to education: why federal intervention is needed to close educational opportunity and achievement gaps; the constitutional and statutory legal avenues that could be employed to guarantee a federal right to education; and, the scope of what a federal right to education should guarantee. A Federal Right to Education provides a timely and thoughtful analysis of how the United States could fulfill its unmet promise to provide equal educational opportunity and the American Dream to every child, regardless of race, class, language proficiency, or neighborhood.

Part I

Why the United States Should (or Should Not) Consider Recognizing a Federal Right to Education

1

The Justifications for a Stronger Federal Response to Address Educational Inequalities

Jason P. Nance

Introduction

Inequalities within our nation’s public education system stubbornly persist on multiple levels with respect to several student groups but particularly with respect to race and poverty. These inequalities are present in both access to educational resources and educational results. Research confirms that students of color and low-income students are more likely to attend schools in deplorable physical conditions;1 to have less access to higher-level courses, counselors, gifted and talented programs, and music and art programs;2 to be taught by teachers who are less credentialed, less experienced, and lower paid;3 and, to attend racially segregated schools where there are lower levels of peer competition and support.4 For example, in Livingston Junior High School, a school in Alabama where most of the students are from low-income families and all of them are African Americans, there are several broken windows, the bathrooms have broken stalls, tiles fall from the ceiling, the roof leaks, and there is mold, peeling paint, and cracked floors throughout the school.5 In William Penn School District, a school district in Philadelphia where most of the students are African Americans, students run to arrive early to class during the winter months in order to receive the best blankets because they attend a school with uninsulated metal walls.6

Many disparities in educational opportunity can be traced to funding inequalities. Per-pupil spending varies significantly on many levels, thereby limiting the educational opportunities and achievement for many children. For example, a recent study reveals that in the majority of states the difference between the highest and lowest spending district is over $10,000 per student (and over $20,000 in some states).7 Furthermore, funding disparities too often do not correspond to differences in student needs. In almost half the states, school districts serving more affluent students on average receive more money per student than do school districts serving impoverished students.8 In those states that do provide on average more funding to high-poverty school districts, only a handful provide substantially more funding to higher-poverty school districts.9 One empirical study found that on average the highest poverty school districts in the nation spend approximately $1,200 less per student than do the lowest poverty school districts.10 That same study also found that on average school districts serving the highest concentrations of students of color spend approximately $2,000 less per student than school districts with the highest concentrations of white students do.11 These funding inequalities are particularly concerning because economists document that increases in funding for low-income school districts lead to increases in student achievement.12

As important as adequate funding is for providing a meaningful educational opportunity, student integration is just as important, if not more important. Poor students attending predominantly middle-class schools benefit from (1) attending schools where parents are more involved in the school community and know how to hold the school accountable for shortcomings, (2) having more highly skilled teachers who have higher expectations for their students, and (3) being surrounded by peers who are more academically engaged and less likely to misbehave.13 Indeed, several empirical studies confirm that student integration along socioeconomic status (SES) lines (which is highly correlative to integration along racial lines) is a critical component for student achievement.14 To be clear, none of these studies suggest that simply going to school with poor children directly impacts a student’s ability to achieve. Rather, the level of student poverty in a school turns out to be a proxy for other school characteristics that do directly affect student achievement.15

Heather Schwartz studied seven years of performance data from 850 low-income students in Montgomery County, Maryland. These students were randomly assigned to public housing apartments that were zoned for either moderate-poverty schools or low-poverty schools. The school district made a series of educational investments to support the students who attended the moderate-poverty schools, such as full-day kindergarten, reduced class sizes, increased professional development for teachers, and specialized instruction for high-needs students, but did not make these investments in the low-poverty schools. After five to seven years, students assigned to low-poverty schools outperformed their peers who attended moderate-poverty schools in both reading and math. In addition, by the time the low-income children who attended the low-poverty schools graduated from elementary school, the gap existing between the low-income children and the other children was cut by one-third for reading and one-half for math. These findings underscore that the opportunity to attend a predominantly middle-class school may be more critical to closing the achievement gap than providing additional resources to high-poverty schools.16

Unsurprisingly, we also find stark inequalities in educational outcomes for minority and low-income students. Recent data show that 48 percent of fourth-grade, 42 percent of eighth-grade, and 48 percent of twelfth-grade African American students read below grade level, compared to 21 percent, 15 percent, and 21 percent of white students, respectively.17 These wide achievement gaps were also present with respect to Hispanic students, American Indian / Alaska Native students, and low-income students generally.18 Sean Reardon recently analyzed roughly forty million state achievement-test scores in grades three through eight during 2009–13 in every public school district in the country.19 He found that, on average, African American students score roughly two grade levels lower than white students in the same district, and Hispanic students score roughly o...