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Against a Constitutional Right to Education

The history of education in the United States is a patchwork of family teachings, independent tutorials, public and private religious schools, grammar schools, vocational academies, Latin schools, colleges and universities with varying degrees of private, local township, school district, state and federal organization and control. While the framers of the United States constitution firmly believed that an educated citizenry was essential for the practice of democracy, and many of them argued for a national University of the United States and school system, there is no right to education articulated in the constitution or the Bill of Rights, and so no national system of education was ever organized. Pulliam and Van Patten (2007). Under the Tenth Amendment, which reserves to the states anything not granted to the federal government or prohibited to the states by the constitution, systems of education have remained for the most part under local control.

The basic unit of education throughout the United States is the public school district. But since the days of the Puritans in Massachusetts Bay Colony, there has been great disparity in the funding of local education and the quality of education each district has provided for its population. Pulliam and Van Patten (2007). Nearly four-hundred years later not only do these funding and educational quality disparities continue to persist, but they are exacerbated by the positional nature of education. A quality education is necessary to get into a good college. A good college education is necessary to obtain a good job. A good job is necessary to pursue one’s dreams and live the life every man and woman wants to live, or in other words, to “secure the blessings of liberty to ourselves and our posterity” Payne-Tsoupros (2010). But the disparities that exist between school districts, and even within individual districts, jeopardize the ability of those most at risk—and especially those from school districts made up of populations on the lower end of the socio-economic continuum—from obtaining that all-important quality education.

The No Child Left Behind Act (NCLB) represents a federal effort to correct this inequity, however critics believe that while it may help some obtain a better education, it will actually have a “dumbing down” effect by lowering educational standards, creating endless litigation, and resulting in a declaration of a “right” to education by the United States Supreme Court and an eventual nationalization of the educational system. Payne-Tsoupros (2010). After briefly explaining the major issues that have resulted from financial disparity and the remedies attempted by the NCLB, this article will argue that instead of a right to education being declared, the NCLB should be found unconstitutional by the Supreme Court and the federal government should leave control of education to the states and local school districts.

The public school system in the United States was built on a financing model from property taxes and local control. Local communities have always created school districts and elected school boards that decided curriculum and educational philosophies. Because of this, there has always been disparities in one form or another from school district to district. The finance equalization movement arose in response to these disparities:

“The finance equalization movement arose in the late 1960s in response to school funding systems’ inherent financial inequalities. Most education was financed through local property taxes, which depend on the level of wealth in the school district. This wealth level, in part, depends to some degree on the district’s residents’ relative affluence or poverty, as well as on the value of commercial property. The quality and level of services school districts could afford, therefore, could be related to the students’ families’ socioeconomic status. Thus, students from poor families might have fewer educational opportunities than those from affluent families. Through litigation and other forms of public pressure, the finance equalization movement asked states to increase the flow of state dollars to low-spending school districts in order to reduce spending disparities.” Owings (2010, p. 165).

After a series of court cases, the United States Supreme Court ruled in School District v. Rodriguez (1973) that education was not a fundamental right and that the equal protection clause of the fourteenth amendment did not require equality in school funding or prohibit disparities in funding. This marked the end of equity funding litigation and returned the battleground for disparity resolution to state governments and their respective state constitutions. Owings (2010).

Unlike the United States Constitution that makes no reference to education, many state constitutions require states to provide an “adequate” education to its residents. Equity plaintiffs soon began to question what an “adequate” education entailed, and adequacy litigation began in which the argument was usually made that due to financial and resource disparity, various schools and districts could not compete with wealthier districts and therefore could not provide an adequate education to its residents. Adequacy plaintiffs won more than a majority of their law suits and courts began to order school districts and states to provide additional funding necessary to ensure an adequate education. Addonizio (2009). Critics of adequacy funding argue that “these rulings constitute a judicial intrusion into educational and fiscal policymaking…and more fundamentally, these judicial excursions into political and policy matters violate basic principles of separation of powers. That is, these court decisions are not merely bad public policy—they undermine our representative form of government by smuggling appropriations past the legislative and executive branches into the public square.” Addonizio (2009, p. 85). Further, “a number of courts that have focused on the education articles of state constitutions have found an egalitarian principle, rather than or in addition to the principle of adequacy implicit in the ‘thorough’ or ‘uniform’ requirements.” Addonizio (2009, p. 86).

Briffault, in his chapter in School Money Trials which Addonizio reviews, explains that this “blurring of adequacy and equity claims [i]s evidence of courts struggling with arguments and issues that are shifting and confused,” Addonizio (2009, p. 86) and he’s right. Since both adequacy and equity litigation share the same argument that it is a disparity in funding between schools that accounts for differing achievement levels of individual students in a school and schools and districts as units themselves, the only real difference between the two forms of litigation is one of semantics. Since the United States Supreme Court ruled that funding disparities are not unconstitutional, plaintiffs had to find another argument with the same outcome. So rather than arguing the funding disparity causes the lower achievement, they make the existential argument that since their achievement levels are lower, they are not being provided with an adequate education under their state constitution like the wealthier districts with greater funding. What is the state and court remedy? Provide the lower achieving school or district with the financial means to provide the resources to attain an adequate level of performance, which was the same remedy under the equity litigation.

No Child Left Behind is an Inadequate Remedy that Should Be Declared Unconstitutional

The “No Child Left Behind Act” is a response to all of the adequacy litigation in its various forms across the United States from state to state. Observing that the American people wanted to guarantee an adequate education for their children, the Bush administration passed the NCLB with specific targets all states had to hit in the form of Annual Yearly Progress (AYP) towards meeting state educational standards to receive Title I federal funding. But the NCLB left it up to the states to determine what constituted the standard that schools had to meet, and NCLB compliance by the schools is achieved based on the targets the state set.

Critics of NCLB argue that tying funding and sanctions against the schools to meeting AYP results in two major disincentives to improved learning and higher educational achievement. The first disincentive is that teachers will focus their efforts on marginal students who have a chance of meeting state standards and ignore other students. Since school funding and sanctions is tied to schools making AYP towards 100% of all students meeting state educational standards, teachers will focus their efforts where they can contribute the most to their school meeting AYP goals. This is called educational triage. Like triage conducted every day in hospitals or war zones around the world, doctors go first to the patients who need immediate help to survive. They ignore those who cannot be helped and will die anyway, and they save for later those who are stable and are not at risk. The same happens in the school under NCLB: teachers focus on those who can be helped. Students that already meet or exceed state standards get little attention. And cruelly, those that have no hope of meeting state standards will be ignored. Payne-Tsoupros (2010).

The second disincentive to improved learning and higher achievement is that states may lower their educational standards to ensure that their schools can meet AYP and continue to receive Title I funding. The lowering of standards and the focus on marginal students at the expense of good students and those who “can’t be helped,” results in the overall “dumbing down” of a student population at best, and at worst, a focus away from helping all students maximize their own unique potential. Payne-Tsoupros (2010).

These disincentives are likely because of adequacy litigation. State constitutions require the state to provide an adequate education. If they cannot do so, as demonstrated by a school failing to make AYP, then states become liable for the failure of their student population and susceptible to lawsuits. In individual schools, teachers will be under enormous pressure to help as many students as possible to meet state standards, or their school will be subject to financial sanctions under Title I if the school fails to meet AVP as a whole. The result is that both the best and brightest and those most at risk will slip through the cracks as teachers, the schools and the state do what they can to help the marginal meet state standards. Payne-Tsoupros (2010).

Further, without setting a national standard, which cannot be done under NCLB because the Supreme Court has ruled that there is no right to education, and certainly the federal government would not want to assume responsibility for the education of the nation’s students; state standards become less and less equivalent. The National Association of Educational Progress (NAEP) assessment testing done each year already reflects differences from state to state. States that show high levels of proficiency against their own standards may show low levels of proficiency in the same categories when measured against NAEP standards. These discrepancies in proficiency already reflect significant differences across states as the impact of NCLB is beginning to cascade across the educational spectrum. Payne-Tsoupros (2010).

As reports are published and the media investigates and it is discovered that states no longer meet AYP under the NCLB, public opinion and pressure will again force the hand of government, perhaps in a high profile lawsuit where an individual sues a state or a state sues the federal government over some aspect of NCLB or failure to provide an adequate education. If the suit is appealed to the Supreme Court, the court may decide it does, after all, need to declare a universal right to an adequate education. The day that happens is the day that local control of education and the advantage of choosing a school to attend or a school district to live in will disappear and the federal government will gain control over education in all its forms: curriculum, length of school year, educational standards, text books, reading lists, the teaching of creationism, intelligent design and evolution. In a democratic nation under the rule of law, the federal government can be beneficial and provide high, attainable, universal standards and standardization of practices. This can streamline many educational processes, make application and acceptance to universities easier, save schools and school districts a lot of time and money and have many other benefits. But if the government were so inclined, it would require a great expansion of the bureaucracy and create a major need for new taxation to support that bureaucracy—one our debt-ridden society can ill afford. Orwellian scenarios and the control of information and the editing of history could also take place, or the access to controversial ideas or unconventional teaching methods and creativity could be restricted or prohibited with chilling effects on actual education activities at state and local levels.

These are just some of the reasons why the NCLB Act should be repealed or found unconstitutional by the Supreme Court at the earliest opportunity, not the least of which is that there is no mention in the constitution regarding any type of education at all. Pulliam and Van Patten (2007). The Act fails miserably because it appeals to the lowest common denominator. There are no provisions in the act to help each student maximize his or her own potential and each student to realize his or her own personal dream.

A right to education sounds like a good thing in principle. Everyone needs to get as much education as they can and continue to engage in learning activities throughout life, but a right to an education wouldn’t necessarily have an impact in terms of increasing motivation and learning or an increase in test scores for those who simply, for whatever reason, are not motivated to achieve in school. The declaration of a right cannot change human nature. Social pressure can, but an individual’s desire needs to come from within and nurtured by teachers who love to teach and are committed to all of their students, not just the ones that will help them receive “highly qualified” status or help them forestall funding sanctions from the federal government.

Addonizio, M. F. (2009). Review of “School money trials: The legal pursuit of educational adequacy, 2007”. Journal of Education Finance, 35 (1), 85-95.

Hall, S. H. (2010, October 9). Report finds funding inequities for charter schools, calls for moratorium. The Times-Tribune, p. n/a. Retrieved January 13, 2011, from ProQuest Newsstand. (Document ID: 2158451961).

O’Connor, K. and Sabato, L. (2009). American government. (E. Stano, Ed.) New York, New York: Longman.

Owings, W. A. (2010, Fall). The alpha and omega syndrome: Is intra-district funding the next ripeness factor? Journal of Education Finance, 36 (2), pp. 162-185.

Payne-Tsoupros, C. (2010). No child left behind: disincentives to focus instruction on students above the passing threshold. Journal of Law and Education, 39 (4), 471-501. Retrieved January 13, 2011, from Criminal Justice Periodicals. (Document ID: 2192954091).

Pulliam, J. D. and Van Patten, J. J. (2007). History of education in America (9th ed.). (D. A. Stollenwerk, Ed.) Upper Saddle River, New Jersey: Pearson Merrill Prentice Hall.

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Zhang, H. (2009). Mapping academic achievement and public school choice under the no child left behind legislation. Southeastern Geographer, 49 (1), 24-40.

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