Introduction

In his article forthcoming in Volume 47:1 of the Harvard Civil Rights-Civil Liberties Law Review, “The Right to Comprehensive Educational Opportunity,” Michael A. Rebell, a professor at Columbia University Teachers College, argues for the recognition of a constitutional right to quality education for all children. A draft of Rebell’s article appears below. Responses from professors and practitioners in law and education are posted below the article. Responses have been solicited from various academic and legal experts, and new responses will be posted as they are received.

On October 13th, 2011 the author was joined at Harvard Law School, by Harvard Law School Dean Martha Minow, Chair of the Institute for Educational Leadership Marty Blank, and Massachusetts Secretary of Education Paul Reville for a panel discussion of his article. HarvardCRCL.org provided a live blog of the event.

 

THE RIGHT TO COMPREHENSIVE EDUCATIONAL OPPORTUNITY

By Michael A. Rebell

Raising academic standards and eliminating achievement gaps between advantaged and disadvantaged students are America’s prime national educational goals. Current federal and state policies, however, largely ignore the fact that the childhood poverty rate in the United States is 22%, the highest in the industrialized world, and that poverty substantially impedes these children’s ability to learn and to succeed in school. In addition to important school-based educational resources like effective teaching, reasonable class sizes, and up-to-date learning materials, these children need additional comprehensive services, specifically, early childhood, health, after-school and other extended learning opportunities, and family supports. These services can be provided in a cost-efficient manner, and it is vital not only to children’s welfare, but also to the country’s democratic future and continued economic competitiveness in the global marketplace that such comprehensive services be provided on a large scale basis.

This article seeks to establish a statutory and constitutional basis for a right to comprehensive educational opportunity. The federal No Child Left Behind Act (“NCLB”), building on the nation’s egalitarian traditions, implicitly establishes a statutory right to comprehensive educational opportunity through its stated goal of providing “fair, equal and substantial” educational opportunities to all children and its mandate that all children be proficient in meeting challenging state standards by 2014; in the pending re-authorization of NCLB this implicit right should be made explicit. The constitutional arguments are based on both state and federal precedents. Dozens of state courts throughout the country have held that children have a constitutional right to a “sound basic education”; some of these cases have specifically held that the state constitution imposes an obligation on the state to create an education that overcomes the effects of poverty.

The federal constitutional argument is based on consideration of a broad range of equal protection cases under all three of the Supreme Court’s equal protection categories. First, probing an issue the Court left open in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), evidence and precedents from the state sound basic education cases demonstrate that an adequate education is a necessary prerequisite for students to exercise their free speech and voting rights; a sound basic education—and one that incorporates necessary comprehensive services—therefore, does constitute a fundamental interest under the federal Constitution. Next, based on the precedent of Plyler v. Doe, 457 U.S. 202 (1982), failing to provide children from impoverished backgrounds a meaningful educational opportunity will “perpetuate a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare and crime,” and their plight is, therefore, entitled at least to intermediate level scrutiny. Finally, even under the less demanding rational relationship standard, recent “second order” precedents indicate that the present practice of providing some, but far from all, low income students with vitally needed comprehensive services creates “two tiers” of citizens, a pattern that strongly offends the concept of equal protection. The final section of the article argues that implementation of the right to comprehensive educational opportunity, which is feasible even in tough economic times, is a constitutional responsibility of the executive and legislative branches, as well as the courts.

The full text of The Right to Comprehensive Educational Opportunity, by Michael A. Rebell is available here.

Author

Michael A. Rebell

Bio photo of Michael A. RebellExecutive Director, Campaign for Educational Equity and Professor of Law and Educational Practice, Teachers College, Columbia University and Adjunct Professor of Law, Columbia Law School. A. B., Harvard College, LL.B, Yale Law School. I would like to thank William Koski, Roger Maldonado, Jessica Wolff, and Jay Worona for their thoughtful insights and suggestions, Pawanpreet Daliwal, Kyle Gruber, Sarah Kabourek, Talia Kraemer, Sara Peters, Philip Petrov, and Daniel Yaverbaum for their research assistance, and the many members of the New York State Comprehensive Educational Opportunity Task Force with whom I have had stimulating discussions that advanced my thinking on these issues over the past two years. I also appreciate the financial support and encouragement provided by the Judy and Jamie Dimon Foundation, the Ford Foundation, the Robert Sterling Clark Foundation and the Smart Family Foundation.

Responses

Jeffrey R. Henig

Bio photo of Jeffrey R. HenigJeffrey R. Henig is a professor of political science and education at Teachers College and a professor of political science at Columbia University. He is the author or coauthor of eight books, including The Color of School Reform: Race, Politics and the Challenge of Urban Education (Princeton, 1999) and Building Civic Capacity: The Politics of Reforming Urban Schools (Kansas, 2001), both of which were named–in 1999 and 2001, respectively–the best book written on urban politics by the Urban Politics Section of the American Political Science Association. Spin Cycle: How Research Gets Used in Policy Debates: The Case of Charter Schools (Russell Sage, 2008) won the American Educational Research Association’s (AERA) Outstanding Book Award, 2010. Most recently, he is co-editor and contributor to Between Public and Private: Politics, Governance, and the New Portfolio Models for Urban School Reform (Harvard Education Press, 2010).

Michael Rebell makes what I take to be a strong case for comprehensive education as a legal right. I am not a legal scholar, so I’ll leave the question of whether his arguments are likely to convince the courts to those with greater expertise. I’m a political scientist, and what I take away from this article is greater appreciation for the ways in which rights, as legal claims, and courts, as the venues in which those claims are adjudicated, are intimately intertwined with the broader political environment. Whether an effort to make explicit, in the future, a legal right that Rebell sees as currently implicit will succeed—or potentially backfire—will depend first and last on the response of actors and institutions that are more overtly political than the courts. For this reason, I think the real test of the rights claim may have less to do with its legal legitimacy than with its leverage as a tool for reframing policy debate and mobilizing public support.

The grounds for an implicit rights claim are the products of past political efforts.

Although they pop up in the historical narrative, Supreme Court cases like Brown, Rodriquez, and Plyler function less as the causal drivers than as insights into how judges are likely to interpret Congressional language and intent. At the national level, it is ESEA, and most particularly NCLB, that do the heavy lifting in Rebell’s argument, and it is to the interplay of presidential leadership, partisan and interest group politics, Congressional dynamics, and the leanings of public opinion that we would have to turn in order to understand how language like “significant opportunity to obtain a high quality education” and “proficiency on challenging state academic achievement standards” found their way into federal law. That the convergences that made NCLB a bipartisan collaboration have wafted away is a caution light against misplaced confidence that efforts to build upon this foundation can count on its solidity.

Converting the implicit to explicit will require political support.

In the world of the law, implicit contracts can carry real weight. In the world of politics they are more like a nod and a wink. Converting a symbolic affirmation of support for meaningful educational opportunity into a hard deal that commits the necessary resources requires more than just taking the next step. Republicans supported NCLB in part to provide a victory to their newly elected president on an issue that Bush had underscored as his highest priority. Conservative sentiments for states rights and preferences for market forces over government intervention were pushed below the surface for a time, but began to re-emerge even before the Obama victory. Today, with the Tea Party flexing its muscles, the prospects for doubling down on the commitments to real educational opportunity seem slim.

At least in the near-term, that could mean that the states are the better bet. That’s where the legal action has been since Rodriguez, as Rebell notes. For most of that time, the state courts were running ahead of the more politically attuned institutions, however. Have state courts, by affirming a challenging standard for what a sound and basic education implies, reframed public understanding and built a stronger political will to translate constitutional promises into meaningful comprehensive policies? It’s possible. But the resilient power of the idea of local control, the political clout of suburban constituencies, and the accumulating Republican gains in statehouses and legislatures suggest that a lot of effort may be needed in the near-term even to hold on to state-level gains. Forward political movement is possible in some states, but backsliding in others may more than balance the scale.

Professor Rebell knows well that victories in state courts can seem hollow when there is not a sufficiently strong constituency to hold legislators’ feet to the fire. After arguing the CFE case that led the New York Court of Appeals to articulate an expansive view of the education needed to function as a citizen and worker in the contemporary world, he has watched with others as tight money and restrictive politics whittled the implied promise down to a disappointing delivery. Against that backdrop, his call to establish comprehensive basic education as a right might best be understood as much as a political rallying cry as legal brief.

Asserting a legal right can help mobilize political support that can be important even if the courts don’t buy the claim.

The courts are an attractive venue especially for groups and issues that are having difficulty gaining traction in electoral politics. If Rebell’s arguments convince the Supreme Court to revisit Rodriguez or additional state courts to follow the lead of New Jersey and others in their insistence that pre-school, supplemental education, and family engagement be part of the remedy, that would constitute a valuable victory in tough times. Just as important, if not more so, is the chance that this argument will sow seeds on political grounds. Numbers count in politics, but so do intensity, commitment, and an animating sense of justice. A compelling case that all children have the right to a meaningful education, tied to the recognition that meeting that obligation requires interventions in non-school as well as school-centered conditions, can build momentum for progress even if the courts prove reticent.

Bill Koski

Bio photo of Bill KoskiBill Koski is the Eric & Nancy Wright Professor of Clinical Education, Professor of Law, and Professor of Education (by courtesy) at Stanford University. He is the founder and director of the law school’s Youth and Education Law Project and has represented hundreds of disadvantaged children and their families in educational equity, disability rights, school discipline, and school reform matters. He currently serves as co-lead counsel in the Robles-Wong v. California school finance litigation that seeks to reform the state’s dysfunctional public school financing scheme. Reflecting his multidisciplinary background as a lawyer and social scientist, Professor Koski’s scholarly work focuses on the related issues of educational accountability, equity, and adequacy; the politics of educational policy reform; and judicial decision-making in educational policy reform litigation.

It is difficult to be anything but sympathetic to Michael Rebell’s project of advancing a right to a “comprehensive educational opportunity” or “meaningful educational opportunity” that includes a broad set of services and resources that will give all children an equal opportunity to be successful in school and, ultimately, productive participants in the modern economy and our civic institutions. Indeed, educational research has long demonstrated that traditional schooling alone may not be able to close the academic achievement gap. At least since the seminal Coleman Report of 1966,1 we’ve known that all school related factors combined explain only a portion of the variation in student academic achievement, the rest is explained by socio-demographic characteristics such as characteristics of the family, peer influences, and student learning capacities.2 Recent evidence from such high-performing schools as Geoffrey Canada’s Harlem’s Children’s Zone and KIPP’s charter schools also seems to suggest that a comprehensive approach to children’s well-being, provision of extended school services and targeted educational interventions, and a focus on parental involvement can mitigate the background effects of poverty. The takeaway from this work is that reform in the classroom alone can only go so far and we must, as Rebell argues, provide a comprehensive educational opportunity that includes a broad range of supports and services for children and their families. This article makes a forceful case for the need to go beyond traditional school reform litigation focused on money and specific school resources to a constitutional right to a broader array of resources necessary to provide a meaningful educational opportunity.

Rebell also makes a persuasive normative case that ensuring all children have a meaningful opportunity for academic success is instrumental to achieving the American Dream of social and economic mobility limited only by one’s efforts and, perhaps, innate abilities. Access to The Dream is not only important at the individual level, educational researchers from corners as diverse as the Hoover Institution (Rick Hanushek) and Columbia Teachers’ College (Hank Levin) all appear to agree that public education is critical to the economic and social well-being of the nation as a whole. Naturally, then, I fully support Rebell’s campaign for a comprehensive, meaningful public education for all. And his article, The Right to Comprehensive Educational Opportunity, is a clarion manifesto of first principles in that campaign.

Now the hard work begins of refining the contours of this right, developing workable policies to effectuate the right, politicking in D.C. and state legislatures, and persuading the public to—despite Rebell’s protestations that such reforms are affordable—pay for this ambitious effort. To that end, I offer some first-impression thoughts to continue and strengthen this conversation amongst allies and to prepare to debate the inevitable detractors. Specifically, the next steps should be further refinement of the normative and empirical parameters of the “right to a meaningful education” (I will use this term to include the “right to a comprehensive educational opportunity” and the “right to a meaningful educational opportunity”), further analysis of the doctrinal constraints and opportunities for realizing this right in our courts, and a sober assessment of the institutional and majoritarian politics that Rebell and his allies, among whom I consider myself, will need to navigate.

The Normative Concept of the Right to a Meaningful Education

As I mentioned, there is much moral force behind the “American Dream” argument that essentially posits that Americans will tolerate much inequity in social and economic outcomes, so long as we believe that all of us had an equal opportunity—through public education—to achieve success. That is the tacit (or explicit) deal that has been in cut in our modern free market society. (Of course, there is a countervailing neo-Marxist argument that we rarely hear any more—think Bowles and Gintis3–that holds that education–and the illusion of equality of educational opportunity–is what reifies economic and social hierarchy in which we live.)

That said, Rebell is not clear about the theory of justice or equality that undergirds his description of a “meaningful education.” Refining this theory isn’t merely an exercise for ivory tower moral philosophers. It is among the arguments that can justify and drive coherent educational policy or a litigation strategy. Put simply, what are the background conditions that the State—through public education—must correct or equalize to provide a “fair” opportunity for success? Must the State compensate for the effects of the lack of access to healthcare? (Rebell thinks so.) The effects of parents who rarely read to their children and use only rudimentary language in the household? The complex effects, more broadly, of inter-generational poverty? Or how about the effects of emotional or even physical disabilities that may be linked to poverty and are not of the child’s creation? Christopher Jencks’s accessible and provocative essay— Whom Must We Treat Equally for Educational Opportunity to be Equal?4—laid out the case for differing theories of justice that would approach these background deprivations in different ways. It is then a short move from these conceptions of justice or equality to public policy. For instance, if we want to compensate for the background social “deprivation” of having never been exposed to the English Language, which Jencks would fit into a theory of “weak moralistic justice,” we ought to provide effective interventions for English Learners and, perhaps, translation and other services to ensure that parents of EL children have access to their schools and their teachers. If we are serious about compensating for the level of literacy in the home, shouldn’t we adopt educational reforms that intrude directly into the home at very young ages? If we truly want to compensate for the effects of poverty and household instability, shouldn’t we provide intensive mental health “wraparound” services to children suffering the emotional effects of poverty? I don’t know where the normative line should be drawn, but it must be drawn and theory-based or the push for meaningful education risks being pulled apart by its own incoherence.5

Nor should we forget that all of these conceptions of meaningful education are instrumental to ensuring educational opportunity, not just or equitable economic or social outcomes. But what is the difference? An expansive interpretation of the right to an education quickly subsumes most other conceivable social welfare programs or goals aimed at social justice and equality. Rebell has drawn the line at early childhood education, physical and mental health care, expanded learning time, and family engagement and support. But why stop there? Isn’t stable and affordable housing instrumental to ensuring academic success? The quest for a meaningful education as an end goal does run some risk of being called a smokescreen for a redux of a more generalized War on Poverty and the concomitant (and, for the time being, failed) quest for greater social welfare rights through constitutional litigation.

I hasten to add, however, that the quest for a right to a meaningful education is not doomed by conceptual indeterminacy. While we will never reach complete consensus on what an equal or just level of education might be, we can certainly refine the concept to an acceptable level of clarity that sensible public policy and judicial decision-making will ensue.

The Empirical Case for the Content of a Meaningful Education

Rebell is banking much on his footnote 15 and the “series of research papers that analyze the current state of research in [each of the four areas he includes in his comprehensive approach to educational opportunity] and that demonstrate a direct relationship between each of these factors and student achievement.” Rebell seems to be arguing that the parameters of the right to a meaningful education must be based, at least in part, on the empirical evidence demonstrating the effectiveness of his identified “non-school” supports and services. Would that it were that we have so much confidence in the determinants of educational achievement. Even something as self-evident as high-quality preschool provokes debate as to whether it provides the cost-effective, long-term benefits that its proponents profess.6 Put simply, beyond the well-documented importance of high quality teaching and access to instructional materials, there is very little robust consensus on “what works” in education.

Still, this is public policy, not neurosurgery. We must make the best decisions on the best available evidence and Rebell has made the case for his list of resources. Whether his list prevails depends upon the strength of the research and sympathizers’ ability to persuade policy-makers of their necessity. Whether his list is comprehensive enough is worth further exploration. What is imperative is that Rebell and his supporters rely on high-quality research if social science is to guide the constitutional and public policy arguments.

The Doctrinal Case for the Right to a Meaningful Education

More than 40 years ago, in discussing the concept of equality of educational opportunity in school finance litigation, Jack Coons, William Clune, and Stephen Sugarman wrote:

The standards problem is essentially one of achieving intelligibility. . . . If the court hopes to generate the consensus necessary to meaningful change it must identify with reasonable clarity the locus and nature of the constitutional defect. Society cannot or will not respond to canons incapable of communication. . . . Where substantive rights depend upon Delphic distinctions the court stands endlessly on flypaper, unable to clear more than one foot at a time. Unless the court can find an effable essence, its judgments tend to be ad hoc and unpredictable, qualities which in the school finance case will evoke nothing but criticism of the court and evasion by the legislatures.7

While part of their concern was the normative/conceptual indeterminacy of equality of educational opportunity, the more pragmatic concern is that the right to equality of educational opportunity must be sufficiently clearly articulated to ensure its effective application and enforcement. While I am not going to analyze or critique Rebell’s thoroughgoing doctrinal case for an Equal Protection right to a meaningful education, it is worth noting that even in the span of a few pages, Rebell vacillates between comparative theories of equality and qualitative theories of educational adequacy.8 If the right to comprehensive education has some qualitative component—which it must—we quickly get to the normative and empirical questions of where the doctrinal line should be drawn between what’s within and what’s outside the right. As I suggested, one might think the case is easy for preschool, summer school, and extended school days under the “right to an education.” The line gets tougher to draw when it comes to “physical and mental health care” and “family engagement and support.” It may be Rebell’s intention to leave the line fuzzy and allow deliberative processes to settle upon a line, but some legislators and many courts may be uncomfortable with such doctrinal fuzziness.

The Politics of the Right to a Meaningful Education

It is difficult to be opposed to Rebell’s project in the abstract. But once we begin to operationalize the right to an education, very real fiscal and political tradeoffs will need to be made. There isn’t sufficient room here to analyze those tradeoffs, but, as Michael Rebell surely recognizes, the success of this campaign depends on the ability to persuade policy-makers, judges, and the public that the investment in a comprehensive education is essential to the well-being of our nation. This article is the rallying cry for those who want to move that project forward. Now his supporters must roll up their sleeves and refine what it means to have a “comprehensive educational opportunity.”

1 James S. Coleman, et al., Equality of Educational Opportunity (1966).

2 This is not to say that schools don’t matter. On the contrary, schools and teachers in particular can make a big difference in student learning. See Charles T. Clotfelter, Helen F. Ladd & Jacob Vigdor, Teacher-Student Matching and the Assessment of Teacher Effectiveness, 41 J. Human Resources 778 (2006); Steven Rivkin, Eric Hanushek, & John Kain, Teachers, Schools, and Academic Achievement, 73 Econometrica 417 (2005).

3 Samuel Bowles & Herb Gintis, Schooling in Capitalist America (1976).

4 Christopher Jencks, Whom Must We Treat Equally for Educational Opportunity to be Equal?” 98 Ethics 518 (1988).

5 Of course, if we take the logic of equal opportunity too far, we would be looking at a Brave New World or enlisting Vonnegut’s “Handicapper General” to simply remove the child from the family (as it’s clear that the biggest determinant of school and life outcomes is probably the family) or “handicap” those with genetic or other background advantages. There needs to be some principled stopping point for how far the state and society ought to go in leveling the playing field.

6 See Susanna Loeb & Daphna Bassok, Early Childhood and the Achievement Gap, in Handbook of Research in Education Finance and Policy 517 (Helen F. Ladd & Edward B. Fiske, eds., 2008).

7 John Coons, William Clune, & Stephen Sugarman, Private Wealth and Public Education (1970).

8 Rebell argues at pages 86-88 that not only does Equal Protection is a comparative concept that ensures that Congress cannot provide a benefit to some children while denying the same benefit to similarly situated children, it also contemplates a qualitative standard of educational adequacy below which no child should be permitted to fall. This latter principle echoes Frank Michelman’s classic “minimum protection” formulation of Equal Protection. Frank I. Michelman, The Supreme Court 1968 Term Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 13 (1969).

Kevin Dougherty

Bio photo of Kevin DoughertyKevin J. Dougherty is an Associate Professor in the Department of Education Policy and Social Analysis at Teachers College, Columbia University. A sociologist by training, he is interested in issues of social inequality and how they can best be addressed by public policy. His current research is on the implementation and organizational and student impacts of the application of performance accountability by state governments to higher education institutions. This is part of a larger interest in the use of market and quasi-market forces to regulate public agencies.

I found Michael Rebell’s article on comprehensive educational opportunity very interesting as it made both the legal and social scientific case for the importance of this policy concern. As I read the article, three points came to mind:

1. The importance of including under comprehensive educational opportunity the experience of summer learning and the problem of chronic absenteeism. Not only do we have to equalize opportunity before and during formal schooling, but we also have to prevent the expansion of inequality during the summer, when the equalizing effect of formal schooling on student learning is largely suspended. A majority of the gradually widening achievement gap during elementary and secondary schooling occurs during the summer when less advantaged students are learning far less than more advantaged students. This has come out in the research of Karl Alexander, Doris Entwisle, and Douglas Downey. Furthermore, research by Douglas Ready indicates that chronic absenteeism plays an equivalent role in producing differences in educational achievement during the school year. Students who are chronically absent from elementary school (due to such reasons as family instability or health problems) also do not benefit from the equalizing impact of formal schooling.

2. There is an interesting political paradox that seemingly much of the effort at the state level to legislatively and judicially define comprehensive educational opportunity seems to have come – as Rebell’s paper notes – in states such as Alaska, Arizona, Kentucky, North Carolina, and South Carolina that are characterized by conservative political cultures that are typically resistant to social-welfare policies. It would be interesting to probe what has allowed these states to pursue comprehensive educational opportunity despite a seemingly inhospitable political-cultural climate. This points more generally to often ignored progressive possibilities in seemingly conservative places.

3. U.S. law and political culture have been much more resistant to recognizing poverty or class inequality as a suspect class, in comparison to race and gender. Yet, the argument for comprehensive educational opportunity is very much about – among other things – social class. What can we learn – from the seeming success in making arguments for legally recognizing comprehensive educational opportunity – about ways of making more effective arguments for legal and political attention to social class inequality more generally?