Common Standards for K-12 Education?: Considering the Evidence: Summary of a Workshop Series (2008)

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6 Political and Legal Considerations T he discussion of costs led naturally to a consideration of the politi- cal factors that would need to be considered if the nation were to move toward common standards and of the implications such a move might have for legal action regarding educational adequacy. Lor- raine McDonnell provided a framework for thinking about political fea- sibility, and Goodwin Liu provided an overview of the implications for litigation. POLITICAL FEASIBILITY Any major policy change will impose political costs, McDonnell explained, and she suggested six factors that policy makers are likely to consider in deciding whether the educational and political benefits of moving to common standards outweigh the political as well as the finan- cial costs. Her analysis was based on the recent history of similar educa- tion reforms, the theoretical and empirical literature on policy design, and interviews with leaders in the five states that were included in the analysis conducted by Massell, described in Chapter 2. The first point to consider is what sort of common standards option is being suggested. Options that are more limited in scope and grow out of voluntary collaborations among, say, a small number of states are likely to impose fewer political costs than options that either are more comprehensive in scope or are perceived as having been imposed from above. Thus, the first of the six factors is the perceptual element, or how the 53 

54 COMMON STANDARDS FOR K-12 EDUCATION? change is framed. For example, is it presented as a solution to a specific problem that those involved believe needs to be solved? Is the common standard viewed as more or less rigorous than the standard it replaces? Will it be seen as imposing additional burdens, as No Child Left Behind (NCLB) did, or as a way to address the shortcomings of NCLB? Advocates of common standards, she argued, would be wise to consider the incen- tives for state policy makers to incur the political risks of making such a significant change. State requirements for standards approval are another important factor. In most states, standards development and review require a multistep process. Ultimate authority generally rests with the state board of educa- tion, although in some cases the legislature must also sign off. However, many other participants influence the process in different ways. As the discussion about the quality of content standards illustrates, there is a ten- sion between a broadly inclusive process and a more controlled one. The more broadly inclusive approach tends to engender less opposition than an approach that relies more heavily on expert opinion, and it is more consistent with democratic political values. The tradeoff, however, is that the standards developed through the more inclusive process may be less consistent and focused than those developed through a process shaped primarily by subject matter experts. Moreover, the multistep process allows numerous opportunities for opponents of the idea to mobilize, which means that advocates would need to consider the likelihood that groups will mobilize in support or opposi- tion to the change. Given the history of bitter disputes at the national and state levels over curricula, McDonnell found, many policy makers are unwilling to consider any change more drastic than modest, grassroots- based approaches to common standards. Related, then, is the need for policy entrepreneurs, individuals, or groups who are willing to invest the time and political resources to make an active push for a policy goal. Many groups serve this function at the national level, although these groups may need to build state-level net- works in order to get the issue on the agenda and shape perceptions of the proposed change. Such networks would also provide ways to anticipate the responses of groups likely to have strong reactions to a significant policy change. Without them, the political costs of the policy change are likely to be much greater. McDonnell also pointed out that time and resource constraints often mean that policy makers pay limited attention to implementation issues when considering new policies. Yet, she explained, “we know from lots of research over 30 years that few policies reach schools and classrooms without significant modification. You can’t mandate what matters in the classroom.” Thus, policy makers need to consider what will be required to 

POLITICAL AND LEGAL CONSIDERATIONS 55 implement the policy, both practical and political efforts. Considerations include a state’s existing capacity, the design of the initiative, and other state policy priorities that may compete for attention, as well training, support, expertise, and time for teachers to become truly comfortable with the changes they are being asked to make. Along with the specific implementation requirements, advocates will need to consider one additional factor: the mismatch between political cycles and the time frames required for policies to be implemented and to produce their intended effects. This tension is evident with any kind of education policy, because it takes time to implement a policy fully, and then even more time for its effects to manifest themselves. But elec- toral cycles are two or four years, and elected officials often feel intense pressure to show results or take quick action to solve problems—even those that require longer term solutions. “The policy entrepreneurs who are thinking about common standards right now see an opening policy window. There is a question about how long that window is going to be open,” McDonnell observed. At the same time, however, quick action to take advantage of that window may conflict with the goal of taking an incremental approach through which local capacity can be built gradually, and policy makers can be encouraged to embrace the approach in their own time. And of course, calculations related to timing may look different in different states. McDonnell closed with the observation that, although none of these factors is an immutable obstacle to common standards, “federalism is a very powerful idea in this country. I just can’t believe that any kind of common standards option or common standards movement is really going to alter this defining characteristic of U.S. education policy.” Thus, whatever form common standards might take, her view is that they would be likely to have a unique profile in each state. IMPLICATIONS FOR EDUCATIONAL ADEQUACY LITIGATION Litigation over equity and adequacy has had a very significant effect on education policy over the past decade or so, and it is likely to have important implications for any move to common standards. Goodwin Liu provided an overview of the history of school finance litigation, the ways the issue of educational adequacy has been treated by the courts, and the relationship between legislated standards and adequacy lawsuits. The first efforts to address educational inequities in the courts were federal suits brought during the 1960s and early 1970s, Liu explained. These were claims based on the equal protection clause of the 14th amend- ment to the U.S. Constitution, on the theory that financing education with property taxes created large disparities among population subgroups. A 

56 COMMON STANDARDS FOR K-12 EDUCATION? second wave of similar lawsuits was brought in state courts in the 1970s and 1980s. These cases were efforts to take advantage of a doctrine that was successful in the Supreme Court under Chief Justice Earl Warren: that there are positive social and economic rights implicit in the U.S. Consti- tution, such as the right to medical care, basic income, among others, as well as education. In a 1973 ruling, however, San Antonio Independent School District v. Rodriguez, the Supreme Court found that the federal courts should not adjudicate issues of school finance equity. The Court reasoned that these cases are very complicated and involve too many unresolved questions, such as how equality should be defined. Would it mean equality of dol- lars? Of opportunity? Of material resources? Would it be measured by district, by school, or by students? Was the primary concern taxpayer equity or children’s equity? In 1973, Liu pointed out, much of the research now available regarding the impact of spending on the quality of educa- tion had not yet been conducted. Moreover, he suggested, the principle of local control of public education had not yet been modified to make room for national or federal initiatives, such as standards-based reform or NCLB, so the idea of a federally determined standard of school finance equity would have seemed quite radical at that time. The Rodriguez deci- sion did not, however, rule on the question of whether there is a federal constitutional right to an adequate education—and the court still has not done so. In response to the Rodriguez ruling, plaintiffs turned to the state courts, with mixed results. The California Supreme Court found that the state’s school finance system did violate the equal protection clause, and courts in Connecticut, Tennessee, and West Virginia were also receptive to that claim. Similar cases were rejected in other states, however, including Colorado, Illinois, Washington, and Wisconsin. In general, Liu explained, in states that had successful lawsuits, the result was that the districts that had been less well funded received modest boosts. A third wave of lawsuits also targeted state courts, using a revised theoretical argument that focused on adequacy rather than equity. Liu suggested several factors that were responsible for this shift. First, ade- quacy theories were less radical in their implications than the equality- based argument, because equality is so difficult to define. Courts may have shied away from acknowledging equity as a right in part because it could potentially be unlimited, and it could be a precedent applicable in other contexts. Educational adequacy, however, could be defined by a threshold below which no one should be allowed to fall, and it was thus both less radical and less costly in its implications. It also seemed less likely to pit districts against one another. The state courts have looked favorably on the adequacy arguments, 

POLITICAL AND LEGAL CONSIDERATIONS 57 pioneered in Kentucky in 1989 and in New Jersey in 1990: in 20 of 29 states in which such lawsuits have been filed since 1989, the plaintiffs have won. In these states, the courts have tended to define an adequate education in fairly broad terms, Liu noted—more expansively than NCLB has done. In Kentucky, for example, an adequate education was defined as one that provides every student with seven components, which include oral and written communication skills; knowledge of economic, social, and political systems; grounding in the arts; and others, but it does not include performance to a particular level on standardized assessments. The result in Kentucky was the Kentucky Education Reform Act of 1990, which was an early model for the standards-based reform move- ment, but Liu noted that political momentum to embrace standards and reform the system had already existed in that state prior to the ruling. In New Jersey and Ohio, in contrast, the legislatures did not act as quickly or decisively, and the courts have acknowledged the limits to their power to bring about change. The courts have, however, generally attempted to monitor the states’ responses to the rulings, and the Massachusetts Supreme Court recently relinquished its jurisdiction on the grounds that the state had fully complied with the legal requirement. Liu offered some comments about the relationship between the courts’ definitions of adequacy and other kinds of standards that states adopt through some sort of democratic process. One might expect that state- developed standards would provide a ready resource for courts because they represent what the people of the state have defined as acceptable guidelines. However, state standards tend to be far more narrowly focused than judicial definitions of educational adequacy. “Judges don’t want to tie themselves to the mast of just reading, math, and science. They have a broader vision of education in mind,” Liu explained. Moreover, test scores that can meet legislated standards sometimes obscure other kinds of inequalities—there may be significant inequality among the group of students who can pass a minimum cut point, for example. There may also be inequality in the curriculum and instruction that is brought about by testing requirements. Students in a low-performing school may be focused on “drill and kill” to get them over a certain score level, while other students receive a much richer education. And making particular performance standards the legal requirement may give legislatures a perverse incentive to lower the standards and impoverish education for all students. Thus, Liu concluded, standards are likely to continue to be informa- tive to the courts but not to be adopted by them as legal standards, regard- less of whether they are developed at the state or the national level. More- over, standards are not likely to influence the courts except as they are filtered through an individual state’s education system. He also believes 

58 COMMON STANDARDS FOR K-12 EDUCATION? that standards that are articulated as means of providing for equality of opportunity and of maintaining the political and social fabric are more likely to be compelling to the courts than are standards defined as means of maintaining economic competitiveness for a state or for the nation. “Courts,” he explained, “do not believe it is their role to think about whether or not the nation or the state is adequately competitive relative to the rest of the country.” They do regard it as their role to safeguard the democratic system of government, which relies on responsible voters, jurors, and citizens, and on social stability, which in turn depends on the existence of sufficient guarantees of fairness in individual opportunity. Liu’s closing thought was that, although the current U.S. Supreme Court seems unlikely to enter into the question of whether the U.S. Con- stitution guarantees some fundamental right to educational adequacy, that may change in time. Any effort to litigate this claim could succeed, in Liu’s view, only if sufficient groundwork had been laid in develop- ing public consensus as to what constitutes educational adequacy. The cooperation necessary to develop common standards could serve as a critical element in developing a consensus that would reassure the Court that it was not going far out on limb in finding a right to educational adequacy.