Author: Craig Livermore


The Middle Path of Reform

A contrarian approach is perhaps endemic to the reformer.   If A is the problem, then it is natural to assert anti-A as the solution.  In the realm of education, if we have been losing ground as a nation, and if the skills gaps among racial groups have not been closing, then the obvious choice of legal reform efforts, beginning in the 1980’s and 1990’s, has been to blame the highly regulated system of public educational bureaucracies.  If such educational systems were A, then the solution, for the reformer, must be the anti-A of choice, competition, and accountability to loosen the stasis of ineffective systems.  Thus was born the state assessment movements of the 1990’s which culminated in the federal choice and accountability No Child Left Behind (NCLB) legislation of 2002, the charter school movement which began in the 1990’2, and the rise to preeminence of accountability educational leaders such as Michael Bloomberg and Schools Chancellor Joel Klein of New York who began reforms in 2002, and Michelle Rhee of Washington, D.C., who was appointed Schools Chancellor in 2007.

However, in 2010, Rhee and Klein are no longer Schools Chancellors, significant reforms and flexibility to NCLB are being advocated by President Obama, and the charter school and choice movements are struggling to determine how to replicate the results of highly successful charter models more broadly.  Although successes exist, there are a myriad of frustrated reformers originally arrayed with weapons of Harvard Business Review terminology, data-driven instruction, and high expectations who have been slain on the battle field by entrenched interests, the lack of human capital for extremely difficult work, and psycho-social and academic barriers, especially in the urban context, which are rooted in depth beyond what human beings can face with any level of comfort.

The United States is undoubtedly moving into another epoch in educational reform.  The question is:  Will we continue to manifest bipolar disorder and revert back to A, or will a dialectic of A and anti-A yield a uniquely informed synthesis?   One could argue that it is precisely such synthesis underlying President Obama’s Blueprint for Reform for the Elementary and Secondary Education Act (NCLB is the current version of this legislation), as well as his competitive grant program Race to the Top under the American Recovery Reinvestment Act.  In his educational approach, Obama seeks to unleash local ingenuity through competition, walk the federalism tight rope by encouraging, but not requiring, states to adopt common national assessment standards, and maintain accountability for school performance, but with more funding for school improvement.

But the middle path of synthesis is not compromise.  It is a third way (or a fourth way, etc.), and thus its thoughtful substance threatens deeply the worlds of A and anti-A.  Recent political history, of course, has overtly challenged visions of complexity.  As the current political landscape collides with the next wave of educational reform that is upon us, we can only hope that synthesis is possible.  If one is a supporter of the Obama vision–and I am–then one must believe that the tortoise must outlast the hair.  One must have the integrity and resilience to maintain faith when the fears of the world have necessitated a reversion to anti-A.  One must have the courage to live in uncertainty and seek complex solutions to the almost unbearably complex challenges we face.


The Supreme Court on School Interrogations and Parental (Dis)empowerment

The Supreme Court has in the past several weeks granted certiorari in two cases involving the rights of juveniles in police interrogations in the school setting.  In Greene v. Camreta, the Ninth Circuit Court of Appeals ruled that the interrogation of a juvenile by police authorities in the school setting in the absence of a warrant, court order, exigent circumstances, or parental consent, was an unconstitutional seizure under the Fourth Amendment of the United States Constitution.  In the Matter of J.D.B., the Supreme Court of North Carolina held that a 13 year old burglary suspect who was interrogated by police officials in his school without parental notification and consent, was not in custody, and thus he was not entitled to have Miranda warnings read to him.   By agreeing to hear both J.D.B. and Greene in this term, the Supreme Court is undoubtedly seeking to clarify the legal standards surrounding the increasing law enforcement presence in public schools.   However, on a broader level, the Court is also entering into the societal discussion regarding the role of the public school in American democracy.  As it is increasingly accepted that the school is becoming the central societal institution, the lack of parental notification for the interrogations in Greene and Camreta is of particular concern.  The marginalization of parental involvement in such issues of morality and law may stem from a growing suspicion regarding the rearing abilities of parents.  If the Supreme Court does not elevate the right of parental involvement in school interrogations to Constitutional concern, then it will be throwing judicial weight to society’s growing cynicism toward the ability of parents, especially in challenging urban contexts, to manifest parental responsibility.

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College Preparedness, Law, and the Structure of Standards

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

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Law, Education, and Hard-Driving Reform

Shortly after Washington D.C. Mayor Adrian Fenty was defeated in the mayoral primary this September, Michelle Rhee resigned from her position as the Washington D.C. Schools Chancellor.  In her three years in the position, Rhee had gained a national reputation as a zealous “no-excuses” reformer seeking to hold teachers and educational administrators accountable in an attempt to raise urban student assessment scores.   Along with Geoffry Canada of the Harlem Children’s Zone, Rhee is spotlighted in the educational documentary Waiting for Superman as the type of reformer needed to turn around the multi-decade dysfunction and despair of urban education.  However, Mayor Fenty’s political loss and Michelle Rhee’s resignation can rightly been seen as the most visible incident of a growing national educational trend to push back on hard-driving top-down reform with genesis outside of the communities which are in need of reform.

When Newark Mayor Cory Booker, New Jersey Governor Chris Christie and Facebook Founder Mark Zuckerberg (Geoffry Canada was there as well) recently appeared on the Oprah Winfrey Show to announce the $100 million donation to the Newark Schools by Zuckerberg, Oprah hinted to Mayor Booker that Rhee is a dynamic reformer who could fill the soon to be vacant position of the Newark Public Schools Superintendent.  Mayor Booker affirmed Rhee’s dynamism, but quickly stated that the real genesis of reform in urban education must emanate organically from the community.  It is the parents, students, and community members which must be the supermen and superwomen.  And thus, on November 1, 2010, an initiative called PEN Newark (Partnership for Education in Newark) has been launched as the first stage in the utilization of the Zuckerberg donation for education reform.   PEN Newark has been founded as a collaborative effort between Mayor Booker and Newark Public Schools Advisory Board of Education Chair Shavar Jeffries.  Jeffries is an organic leader from Newark who ran his campaign in 2010 on a platform of community engagement.  The initiative is an extensive feedback and outreach initiative.  Its mission is to connect, interview, survey, and speak with all stakeholders within the Newark community concerning the types of reform the Zuckerberg donation should generate.  Mayor Booker has learned this political lesson well.  And, indeed, this is the model of participative and collaborative reform that is gaining momentum nationally as a reaction to hard-driving no-excuses top-down reform.

But if this is all politics and education, what does it have to do with the Law?  Everything.  Public education in the United States is completely constructed and defined by an interactive array of legal regulation–both policy and jurisprudence.   From comprehensive federal accountability legislation such as the No Child Left Behind Act (the current iteration of the Elementary and Secondary Education Act first passed by Congress in 1965), to the interpretation of educational rights by state and federal courts, to the strong support of collective bargaining agreements by most state law makers, education is minutely regulated.  For example, the New Jersey Supreme Court’s 20 Abbott v. Burke opinions have interpreted the New Jersey Constitution’s right to a “thorough and efficient education” (Article VIII, Sec. 4) to not only delineate school funding formulas which provide for vertical equity (more money for students facing greater need), but have also mandated preschool education, reform from specific educational models, facilities construction and even curricular content standards.   Over the past forty years, as urban schools have increasingly struggled with low performance, inefficiency and mismanagement, and, at times, corruption, greater detail and layers of policy and jurisprudence-based regulation have been implemented.  When such micro-regulation has been added to schools within communities under great stress and poverty, dysfunction has been guaranteed, and stasis has resulted.

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