Reforming Instructional Authority – Regulation & Liberty

Most conversations about K-12 education reform quickly turn to which initiatives are most likely to improve various student outcomes. Experts discuss how a change in tenure rules or an increase in per-pupil spending will influence standardized test scores, high school graduation rates, or lifetime earnings.

But this approach can distract us from something more fundamental. Education policy is as “political” as any domain of public life. Because it implicates families, civil society, employers, culture, history, higher education, self-government, and international competitiveness, it involves the clash of principles as well as questions of authority and responsibility. By focusing narrowly on policy proposals and performance metrics, we can neglect matters foundational to liberty, agency, and governing.

To understand what is—and should be—on the horizon for America’s schools, we must begin by understanding not just which initiatives have defined recent reform, but what all of this work has meant, at a more basic level, for governing principles and the distribution of power. This is a story about parental agency, pluralism, equality, social entrepreneurialism, local democratic control, state-level authority, and the shadow of the federal government.

Discrete Movements and Systemic Change

Many observers have understood the last several decades of K-12 reform as the competition of three “movements.”

The “accountability” movement clarified and made more rigorous what students were taught, established assessments to measure what students learned, and implemented interventions when results fell short. State-level learning standards, standardized reading and math tests, school and district report cards, and school and district takeovers are fruits of the accountability movement.

The “choice” movement sought to expand the options available to students, especially those from low-income families. The goal was to strengthen the hand of parents, spur innovation, diversify programming, and introduce more competition. The choice movement gave us charter schools, contract schools, vouchers, scholarship tax credits, and education savings accounts.

The “resources” movement was based on the view that school improvement required increased funding and additional educational programming. This led to higher overall spending levels, more dollars for low-income areas, higher teacher salaries, more classroom and administrative staff, more early-childhood programs, and so on.

Each movement can claim some policy wins. Compared to 40 years ago, there is unquestionably more accountability, choice, and spending in public education. State, district, and school report cards tell parents and citizens a great deal about system performance, and they focus system behavior. Student achievement has improved, especially in lower grades and in math; for instance, according to the Nation’s Report Card, the percentage of 4th grader proficient in math climbed from 13 percent in 1990 to 41 percent in 2019. Historically lower-performing student groups have made important gains, shrinking, but not closing, many gaps. More students are graduating from high school, graduating from two-year colleges, and graduating from four-year colleges. Millions of kids are attending schools of choice thanks to a range of government programs. School systems in general have more funding, especially those that serve low-income students.

We’ve also seen that some reforms haven’t had the effects hoped. Overall performance is still too low and achievement gaps remain. An overreliance on standardized test scores for assessing school performance had distorting effects on system behavior. Many families in suburban and rural communities still lack meaningful choice, and competitive pressure didn’t have the dramatic influence on urban districts that many expected. Substantial—often court-required—funding increases didn’t produce the gains advocates promised.

It is certainly worthwhile to study these various outcomes and find ways to reform the reforms. But that kind of close study of trees can obscure the forest. Something more foundational has taken place, and it should shape how we think about our future K-12 work: Combined, these movements have gradually but fundamentally reallocated authorities and responsibilities in K-12 schooling to better fit the needs of families, educators, and policymakers and to better align with America’s sensibilities about opportunity, agency, and the distribution of power.

The Demotion of the District

For about a century, American K-12 public education was organized as local government monopolies. By the late 19th century, when tuition-free public schools became rooted across the country, each geographic area had one provider of public education, a school district with an elected school board and a superintendent with an administrative staff. The district owned and operated all public schools in that area; there was no public education outside of the district. Kids were assigned to schools based on their home addresses. Often, the district’s schools were purposely made to be as similar to one another as possible—the “one best system.” Most important decisions were made by districts—e.g. hiring teachers, building new facilities, developing curriculum, granting diplomas.

There were good reasons for this system. The hyper-local nature of districts—there were 100,000 at one point, and most had just a few schools—helped communities feel attached to their schools and enabled one area to do things differently than another. The election of board members ensured districts were part of our deliberative-democratic system. Having all public-school kids go to the same uniform, government-run schools promised to advance the cause of opportunity, acculturation, and cross-class solidarity.

But over time, America realized that, for all of its benefits, this system was flawed. Some districts were far less rigorous than others, meaning some kids were denied opportunities afforded to others. Different districts had different course requirements and taught subjects in different grades, making it difficult for students to transfer between districts. Some districts had unconscionably discriminatory practices. By dominating board elections and contract negotiations, a powerful union could heavily influence the district. Facing little to no competitive pressure, some large districts in particular developed the unfortunate characteristics of other monopolies, growing slow, bloated, and bureaucratic.

Moreover, since schools were enrolled using residential assignments and there was only one public-school provider in town, a family had little recourse if the school was unsafe or inadequate. Even if a school were broadly accepted, some families might not like it for a host of cultural, religious, or idiosyncratic reasons. They could petition the school board, but a monopoly can’t cater to each consumer’s preferences. This problem became more pronounced as districts grew to dozens or hundreds of schools and each family’s voice carried less weight. American pluralism and individual agency were being sacrificed for the efficiency and uniformity promised by ever larger district monopolies.

In too many instances, unfortunately, state courts have arrogated policy-making power, shifting seamlessly from determining the state government hasn’t met its school-related constitutional obligations to dictating how—e.g. mandating specific funding formulas, new school facilities, particular programming—it must do so.

But the district’s weaknesses stemmed from more than the need for decentralization and parental empowerment. State governments and Uncle Sam were implicated as well. Though the Tenth Amendment prevents the federal government from claiming too much power over schools, education involves national interests. Washington has a duty to ensure students have equal access to educational opportunity; to make sure we are forming citizens committed to fulfilling their civic duties; and to contribute to the development of adults capable of maintaining America’s international competitiveness. It is certainly a challenge to determine how best the federal government can help accomplish these goals, but it would be incorrect to say that Washington has no stake in such outcomes, and it would be jejune to say that the right strategy is doing nothing.

State-level equities were even greater. Under state constitutions, state governments bear the responsibility for ensuring the provision of an adequate system of public education. Although a state government may delegate day-to-day school operations to districts, state leaders still have an interest in making sure students are well served, that families are satisfied, that colleges receive prepared freshman, and that employers can find capable employees. As importantly, when lawsuits claim a school is insufficiently funded or a district is performing inadequately, the state government is ultimately on the legal hook. State courts can—and do—force state governments to respond.

In too many instances, unfortunately, state courts have arrogated policy-making power, shifting seamlessly from determining the state government hasn’t met its school-related constitutional obligations to dictating how—e.g. mandating specific funding formulas, new school facilities, particular programming—it must do so. Not only does this inflated role of judges disfigure our political and policy processes, the judiciary can also make poor decisions about how to improve schools. Such operational decisions should be left to the elected branches. But state courts’ improper method of engagement should not distract us from the important principle underscored when they properly decide to engage: Namely, that state governments have the principal power and obligation in American education policymaking.

So what we’ve had over the last several decades is less a series of battles among various movements than a single Great Sorting Out of authority and responsibility. Some of the power that had been consolidated in local school districts shifted down toward families and voluntary associations, up to state governments, and farther up to the federal government. Using this lens, we can better understand recent policy developments and forecast what’s to come.

Importantly—but insufficiently appreciated by many education observers—there is a great deal of agreement today about where power over different education domains should reside. Indeed, we see the most heated battles when policies disturb this evolved distribution of authority. The most important work over the next decade is not about pushing this new initiative or that but in appreciating this system-level change and enabling these different centers of power to solve the problems in their respective ambits.

The New Subsidiarity

The concept of subsidiarity is, at root, about the proper allocation of duties and authority. In politics today, its application often leads to greater decentralization (since so much power has gravitated to huge, distant institutions). But that’s not its calling card. It advises situating particular powers in the entities most naturally suited and best able to address them. That can mean greater centralization in some instances. Subsidiarity can help us understand the new realism in public education.

The primary story is that, in the second half of the 20th century, we came to realize too much power had been invested in districts. As a result, some power flowed to Washington. Federal courts moved to root out various forms of discrimination, and Congress and the U.S. Department of Education (USED) expanded Uncle Sam’s activities related to services for students with disabilities, funding for disadvantaged populations, accountability for federal funds, and a variety of small initiatives favored by contemporary federal leaders (e.g. teacher quality, charter schools). Although some commentators fixate on the increased power of the federal government in K-12 education, and although Washington has certainly gone too far in certain areas, this theme is often overstated. Many domains of K-12 policy are faintly affected—much less controlled—by federal officials; much of the USED’s work consists of distributing formula-based dollars; and most principals and teachers go about their day-to-day activities giving little to no thought to Uncle Sam.

The bigger story is that state governments repossessed a good bit of authority from districts. On balance, this was the right decision for several reasons. Since state governments have most of the constitutional and statutory obligations, they couldn’t continue to assign so much school-operating power to districts and wash their hands of the outcomes. States were also able to do some good by requiring greater transparency and consistency. And, crucially, states handed to parents (in the form of various school differentiation and choice initiatives) some of the power it had taken from districts.

Although districts were still the primary operators of public schools, state governments asserted themselves in numerous ways. They provided substantially more funding to level the spending between districts and to ensure struggling districts had adequate resources. Similarly, in the spirit of rigor and fairness, states made clear what was to be taught across all public schools in particular grades and subjects, administered statewide tests, set statewide graduation requirements, established more statewide rules for educator credentialing, produced state-level report cards for schools and districts, and more.

Some power flowed down to parents and the voluntary associations of civil society. It had simply become untenable for America to maintain a system of schooling that offered many families minimal control. There is too much diversity within communities to expect everyone to be satisfied by a single school. As districts grew from overseeing a few schools apiece to dozens or even hundreds of schools, “local control” lost much of its meaning—a group of families has virtually no influence on the decisions of a sprawling multi-billion-dollar enterprise. There are too many instances of persistently failing and unsafe schools to allow home address to determine which school a student attends. It is unjust to allow a family of means to use its wealth to move to the district of its choice or pay for a private school while a low-income family is left with no options.

As such, states created and expanded many programs to grow and diversify the educational programs available to students. The list includes nonprofit-run charter and contract schools; state- or district-managed magnet and career-and-technical education schools; inter- and intra-district choice programs; vouchers and scholarship tax-credit programs that enable students to choose private schools; and education savings accounts that enable families to access an array of educational services if they are homeschooling or simply want supplemental activities. Today, more non-governmental bodies are operating schools with some degree of public support and more families are selecting which schools their kids attend. Without question, too many families still lack options, but enormous progress has been made.

Although the following formulation is admittedly facile, it encapsulates how decades of reform have redistributed educational authority. Families increasingly have the ability to choose from among a range of schools. A variety of non-governmental bodies have the ability to run public schools or receive public support while operating in the private sector. Democratically controlled local government bodies operate schools and make key decisions about an entire area’s system of schools. State governments make sure the system as a whole meets the state’s constitutional and legal requirements and addresses citizens’ concerns. The federal government pursues modest policy reforms and supports equal opportunity.

No one could’ve created these arrangements from scratch. We had to work our way here through decades of trial and error. But the result, though not neat and tidy, effectively blends principles Americans hold dear: parental agency, democratic decision-making, pluribus, unum, local variation, state-level commonality, decentralization, and federal authority.

The robustness of this evolved system is evident: Initiatives that upset this distribution of power and balance of principles lead to high-profile battles and, ultimately, course corrections or retreats. The most obvious examples come from federal or national overreach. The No Child Left Behind Act (NCLB), Race to the Top, Common Core, and the Obama administration’s NCLB waivers and “Dear Colleague” letters on discipline and bathroom policies were examples of power arrogation. Faraway authorities determined they knew best when it came to issues like school ratings and interventions, teacher evaluations, content standards, and school management. Before long, parents, educators, and local and state leaders revolted. The passage of the 2015 Every Student Succeeds Act, with its decentralizing provisions and strict prohibitions on federal administrative-state action, swung the pendulum back.

But there are other examples. Many local districts resisted their state’s efforts to create centralized policies on teacher evaluations, and many have fought against the proliferation of statewide standardized tests and technocratic state report cards on school and district performance. On the other end of the spectrum, state and local leaders have pushed back when school choice grew too rapidly for their liking. As Detroit reached the point when half of its students would be attending charter schools, there was an effort to reestablish a degree of local democratic control over the city’s entire system of public education. When New Orleans’ system became nearly all-charter in the decade after Hurricane Katrina, the state re-empowered a locally elected school board to oversee the system.

A common response from reformers to such actions was to criticize these local systems. When districts pushed back against state-level or federal initiatives, they were often called parochial or resistant to necessary reform. When local systems sought to slow choice and differentiation, they were accused of being hostile to parents, controlled by unions, or jealous defenders of their own prerogatives. At times, such charges were warranted. But viewed through the lens of subsidiarity, we can reach a more charitable conclusion: Local, democratically controlled institutions have an important place—possessing legitimate powers and duties—in America’s system of schools. We should expect, even welcome, their opposition to efforts aiming to push too much power down and efforts to consolidate too much power above.

Contemporary Priorities in the New Arrangements

America is prevented from ever developing a national consensus agenda by the genuine, unavoidable, and healthy philosophical differences of opinion about what public education should prioritize. America’s tradition of pluralism and decentralization presents a further barrier to consensus. So those interested in change—especially conservatives—should not think in terms of a singular, specific, inflexible list of national reform programs. That approach has caused many of the education-policy problems over the last several decades. Instead, as I’ve argued here, we should think in terms of the distribution of power. We ought to have general goals and then consider by whom they should be tailored and pursued.

This gives us a way to identify pressing problems and key opportunities while appreciating a key point that has often gone missing from discussions of school reform—that it matters how and by whom something is accomplished. This approach can tell us a great deal about which new initiatives are possible—even likely; which proposals are non-starters; and where activists should direct their attention. The framework that results is that America should continue to advance parental empowerment and educational diversification; that reformers should respect local democratic decision-making; that state governments have enormous power and responsibilities; and that Uncle Sam should not be allowed to meddle in school operations but his judicious use of the bully pulpit and modest policy mechanisms in matters of national interest is warranted.

Beginning with the lowest, most-human level in our framework—the authority of families and the mediating bodies of civil society—we should think in terms of the tension between expanded, differentiated options and democratic control. The former empowers parents and citizens and respects pluralism; the latter facilitates public deliberation, communal decisions, and balances private and public interests. We should continue to grow chartering and private-school choice. This should include expanding the enormously successful reform of urban charter schools, developing new types of charter schools (like those focused on career-and technical education and classical education), exploring the possibility of religious charter schools in the wake of the Espinoza decision, and growing scholarship programs and ESAs.

The Covid era has only heightened the need for smart, careful thinking about choice. Because so many districts have not opened for face-to-face instruction, families have created solutions for themselves. This has included choosing private schools that have resumed in-person operations, making use of online learning, and experimenting with homeschooling and “pods.” In the short-term, districts and states should find ways to help parents make sure their kids keep leaning, whether by helping them find options or funding such innovative choices (and certainly by not standing in the way of parents exploring such solutions). But state and local policymakers need to think about the longer-term as well. Many families will want to return to their traditional public schools and routines when the pandemic ends; but many will decide that these novel approaches to schooling better suit their students’ needs. The government should develop policies, particularly funding mechanisms, that support the creation and improvement of these new options and help families access them.

For instance, enabling more funding to follow students to the school or program of their choice (e.g. via reformed funding formulas, ESAs, or scholarships) would not only help more families access different programs, it would also foster the creation of new providers who could rely on stable streams of public funds. Similarly, state policy should give leeway to charter-school operators and even traditional school districts to contract with a variety of programs that offer micro-school or pod-like services. This could include waivers from state and local requirements related to educator certification, facilities, transportation, and school calendars.

A key question is in which areas should the state take the lead, and in which areas should states defer to localities. In some areas, we need forceful state action.

But at the same time, policymakers must remain mindful of the countervailing forces. Citizens want a degree of democratic deliberation about public education, and states have some responsibility to ensure that new options are sound and that the needs of all students are met. It is unwise for the government to use a crisis to advance other policy priorities, so we should not see Covid as a tool for radically changing schooling. Without prudence in public leadership, emergency conditions often lead to terrible policy. However, the government should not dig in its heels and stubbornly preserve existing arrangements that current conditions have revealed to be outmoded. In advancing choice and differentiation, especially during this once-in-a-century public-health crisis, we need creative, careful, shrewd public leaders.

State leaders are the key to the next wave of education reform: Our schools need to make significant progress on a number of fronts, including better performance in basic skills like reading and math, expanded programming for gifted students, new career-focused high school programs, and a recommitment to history and civics. We’ve recognized that the federal government can’t be the primary mover of most reforms. State governments retain the power and responsibility to govern public education. In the years ahead, much will hinge on the vision, energy, experience, and temperament of governors, state legislators, state superintendents, and state boards of education.

A key question is in which areas should the state take the lead, and in which areas should states defer to localities. In some areas, we need forceful state action. States should ensure that content standards are rigorous. States should also preserve statewide assessments in the most important grades and subjects: Parents, citizens, and educators should know that state leaders prioritize the improvement of student achievement in key areas, and the public should be made aware of how our students and schools are performing.

States should also rethink accountability measures for high school. Although graduation rates have increased in the last generation, student performance has largely flatlined. Moreover, many students arrive at college unprepared to succeed, and many students who don’t pursue higher education enter the professional world without work-ready skills. Lastly, states must have the courage to overhaul persistently failing school districts. Generally, state governments should refrain from dramatic, disruptive action at the local level, especially when results are solid and families are satisfied; local leaders, citizens, and families should primarily drive change. But in instances where an entire local system continues to underperform and local reform levers have failed, state governments must act.

In other areas, the balance between state and local authority is more complicated. Civics and character are prime examples. States should unabashedly prioritize the teaching of civics and history in a way that produces adults knowledgeable about the nation’s past—its astonishing accomplishments and its indefensible mistakes—and capable of meeting the responsibilities of citizenship in a democratic republic. For the last 20 years fewer than one quarter of 8th graders reached proficiency on the civics test associated with the Nation’s Report Card. States should have rigorous standards and assessments that indicate how seriously its officials take this subject.

But smaller communities have the right to make decisions about details, for instance the emphasis placed on the history of a particular ethnic community or city and the relative importance of, say, protest and volunteerism. Currently, there are heated debates about “patriotic” education, social justice, and “anti-racism.” These are just the latest manifestations of the perpetual conversation about how citizens should be formed. This is similar to the debates about character education—whether it should be purposely anodyne to avoid conflict or include provocative discussions of morality and virtue.

Although those in positions of state-level authority will have strong opinions on these matters, a recurring theme in American public education is that the nastiest fights occur when distant authorities push reforms out of step with the sensibilities of a community. Sometimes the best use of governing authority is to inspire and encourage—not force. States would be wise to appreciate that the new distribution of authority and balance of principles includes a great deal of deference to pluralism and local agency.

Such state-level humility, however, should be understood as of a piece with the continued expansion of choice: If a district adopts a civics or character curriculum that a family cannot abide, that family should be able to choose another school. The same applies to other district policies that may be objectionable, whether on school culture, discipline, or something else. Local democratic control and educational pluralism can coexist: A community’s majority can decide what its public schools will and won’t do, and if families disagree, they maintain the right of exit. In fact, the ability of families to select non-district options can make school systems take parental feedback more seriously.

Education reformers of the last generation learned the hard way why America has a long tradition of state leadership on education, thousands of small districts, and a robust private-school sector: Americans want to keep control of public education close to home, not cede it to “experts” far away. The fierce opposition to NCLB, RTTT, Common Core, and other initiatives crafted and led by folks that parents couldn’t even name was a reminder and a warning: Uncle Sam better not get too big for his britches. There is no appetite for new, massive, intrusive federal education initiatives.

But Americans continue to believe that public education ought to serve all students well. And it has often been Washington that made schools fairer, whether through Brown vs. Board of Education’s banning of racial discrimination, Title IX’s opening of opportunities to girls, the Individuals with Disabilities in Education Act’s protections for students with special-education needs, Title I’s funding for low-income students, or A Nation At Risk pushing for better schools for all.

We are likely to see ambitious progressives inside the Biden administration try to use the latter point to overcome the former. That is, federal initiatives that obviously overextend Uncle Sam’s reach will be defended as serving the cause of equity. Biden’s early proposals suggest as much. It appears that he will use executive authority to reinstate Obama-era policies (overturned by the Trump administration) that expansively interpreted federal Civil Rights statutes to allow Uncle Sam to alter school- and district-level policies on discipline and the use of bathrooms. Biden also promised to dramatically increase federal funding for low-income students, those with special needs, and for pre-kindergarten programs.

The Biden-Sanders “unity task force” and the priorities of the left’s most aggressive activists at least suggest a Biden administration could aim to go even farther, attempting to use executive-branch action to strengthen unions, undermine charter schools and school choice, and reduce testing. Given that President Trump issued an Executive Order “to combat offensive and anti-American race and sex stereotyping and scapegoating” in federally funded training and programming, we should not be surprised if some on the left call for Biden to issue an Executive Order encouraging “anti–racism” and “intersectionality” training. It is hard to overstate how far left the once moderate education-reform movement has traveled.

Should a President Biden dispense with his promises of moderation and authorize his administration to beef up the federal government’s role in schools, we will see another era of polarized education politics. States, districts, and families will rebel as they have in the past. His team should instead accept the new distribution of power and balance of principles, and primarily defer to families, civil-society bodies, local leaders, and state governments. This doesn’t mean the federal government does nothing. But it does mean appreciating the limits of centralized authority and the importance of pluralism and individual and community agency.

Biden and his secretary of education should use the bully pulpit to energize, inform, and advocate. They should launch blue-ribbon commissions on pressing subjects, like learning loss during the pandemic, civics, character development, and career-and-technical education to advance important conversations and develop recommendations. They should even propose modest federal initiatives, like small competitive grants, to spur innovation in areas like high-school reform. But Uncle Sam cannot and should not lead the charge in the years ahead.

Citizens, Not Revolutionaries

This analysis will probably strike national education activists of all stripes as unambitious. Good.

For entirely too long, advocates have sought revolutionary change that touches all corners of the land. Indeed, most forward-looking commentary is built around sets of recommendations that the author believes to be essential for everyone, everywhere. But that misunderstands American pluralism, the Tenth Amendment, democratic deliberation, and civil society—not to mention the lessons of the last several generations of reform. We need to stop thinking in terms of specific, scalable initiatives and instead allow the various actors across the educational continuum take up their particular authorities and duties. This includes taking ownership of the fact that student performance, especially among disadvantaged populations, must improve.

The next era of education reform should not be organized around passionate promises about how this universal intervention or that will revolutionize schooling. That approach has been repeatedly tried, and it has repeatedly come up short. For the next decade each school reformer should think in terms of the distribution of power, the balance of principles, and where s/he can personally do the most good. We should expand and diversify the educational options available to families, respect the right of communities to exert a measure of democratic control over education, empower an array of civil-society bodies to provide educational services, recognize the primary place of state governments, and appreciate that the federal government has a modest but nontrivial role in ensuring all students can realize the promise of public education. Then each education reformer can see him or herself as a citizen contributing to a particular component of the system instead of as a revolutionary overhauling the system for everyone.

America needs activists fired up about stagnant education systems with inadequate and inequitable results. But we will know we’re on the right track once we start hearing reformers talk about starting a new charter school, seeking a local school board seat, serving on a PTA, taking part in a commission established by the state board of education, or running for the state legislature instead of going to Washington to fundamentally alter American public schooling.

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