Charter Schools, Vouchers, and the Public Good

Charter schools and vouchers have thus far been promoted or vilified based on their potential to improve academic achievement for those students enrolled in them. This debate, however, ignores a more important question: whether these educational policies serve the public good. Education as a public good cannot be reduced solely to questions of academic achievement, much less the academic achievement of a subset of students. Theoretically, charter schools and vouchers can serve the public good, but in practice, they have not. This shortcoming, however, is not necessarily due to an inherent flaw in charters or vouchers, but the failure of public policy to place limits on them to ensure they serve the public good

Civil Rights, Charter Schools, and Lessons to Be Learned

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community has misinterpreted both its own decline and the rise of charter schools. Rather than look for external explanations, civil rights advocates should turn their scrutiny inward. And, rather than attack charter schools, they should learn from them. A close examination of past civil rights movements in education reveals that their decline was inevitable. Each of the various educational movements depended on establishing a causal connection between the reform sought and positive student outcomes. But precisely establishing causal connections in education is nearly impossible. Education involves too many variables to isolate conclusively the effects of educational policies on student outcomes. Ignoring this reality leaves civil rights reforms vulnerable to contraction. This weakness-not competition from charter schools-continues to undermine civil rights reform. Charter schools suffer from the same causal weakness, but it is not impeding their expansion because the charter movement, unlike civil rights, is not based primarily on evidence. Instead, charter school advocates emphasize ideological values that appeal to broad constituencies. These value-based constituencies form a movement that forces the expansion of charter schools and is undeterred by evidentiary critique. To regain relevance, civil rights advocates must scale back their reliance on evidentiary claims and reframe their arguments in terms of compelling values that can again inspire a movement.

Turning Stones of Hope into Boulders of Resistance: The First and Last Task of Social Justice Curriculum, Scholarship, and Practice

The most important and intangible aspect of teaching and practicing social justice law is retaining the hope that our efforts can translate into progressive results. At times, professors’ approaches to the subject of social justice tend toward pessimism that can have unintended negative effects on students. Thus, this Article calls on social justice professors to explicitly teach hope and, moreover, to produce practical scholarship on pressing legal issues that will help students keep hope once they leave school. This Article begins by exploring the theme of hope in John O. Calmore’s scholarship and how it interrelates with his project of producing social justice lawyers. It then delves into his teaching methodology and describes the specific competencies he tried to create in his social justice students, particularly in their writing and their approach to building relationships with clients. Next, the Article addresses how those lessons carry beyond law school, including both those instances where they help and those instances where practitioners are left wanting and needing more. From that point, the Article proceeds to describe how our teaching and scholarship can meet that need, and ultimately inspire hope. The Article ends with concrete examples from the legacy of Brown v. Board of Education that show how we can find, teach, and keep hope

Religion, Discrimination, and the Future of Public Education

The Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools. While these changes would drain enormous resources from an already underfunded public education system, even more important interests are at stake: antidiscrimination and basic core curriculum. More specifically, the further expansion of religion into voucher and charter programs calls into question whether states can require religious organizations to comply with antidiscrimination protections and deliver non-religious educational content that is consistent with state standards. This Article is the first to demonstrate that religious schools’ right to participate in certain education programs is not a right to reset all the rules of those programs. First, states retain authority to control the curriculum that public dollars support in both charter and private schools. Second, states have an affirmative obligation under federal law to ensure that all parties participating in state education programs comply with secular and antidiscrimination standards. Thus, rather than using the Court’s recent free exercise cases as an excuse to retreat from antidiscrimination and secular standards, states must reinforce those norms in a way that is consistent with newly established—but limited—free exercise rights

Civil Rights, Charter Schools, and Lessons to be Learned

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community has misinterpreted both its own decline and the rise of charter schools. Rather than look for external explanations, civil rights advocates should turn their scrutiny inward. And, rather than attack charter schools, they should learn from them

The Mysteriously Reappearing Cause of Action: the Court’s Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs

This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that are subject to these statutes. The Court has held that the only cause of action that exists under these statutes is for intentional discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of intentional discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of intentional discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts continue to assume that intentional discrimination includes only actions that are motivated by animus or the inappropriate consideration of gender or race. A thorough analysis of Supreme Court precedent, however, provides a different answer. Specifically, in regard to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments, the Court has also recognized that intentional discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate discrimination and inequity in federally funded programs. More specifically, the Court’s decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of intentional discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant’s choice is a cause of the continuance of the activity or condition. However, to permit plaintiffs to establish that any circumstances beyond those in the Court’s recent decisions are inconsistent with congressional objectives, federal agencies must provide regulations and guidance that specifically identify those circumstances

Federalizing Education by Waiver?

In the fall of 2011, the U.S. Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act ( NCLB\u27), but only on the condition that they adopt his new education policies- policies that had already failed to move forward in Congress. States had no choice but to agree because eighty percent of their schools were faced with serious statutory sanctions. As a result, the Secretary was able to unilaterally dictate core education policies for the nation\u27s public schools. For the first time, the content of school curriculum and the means by which schools would evaluate teachers came under the direct influence of a federal official. This Article demonstrates that this exercise of power was beyond the scope of the Secretary\u27s statutory or constitutional authority. To be clear, Congress can confer to agencies the power to impose policies through waiver conditions, but Congress must do so clearly and place limits on the scope of the conditions. NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending Clause doctrine requires both. Moreover, states\u27 inability to say no to these conditions raises serious questions of unconstitutional coercion. The Secretary also exercised the equivalent of lawmaking power when he imposed wide-reaching conditions with no statutory guidance from Congress. To avoid the difficult separation of powers issues this raises, however, a reviewing court might narrowly construe the statutory authority conferred to the Secretary. The statutory analysis is easy. The Secretary lacks explicit authority to condition waivers. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. For instance, the text of NCLB specifically prohibits the Secretary from requiring specific instructional content, academic achievement standards and assessments, [or] curriculum. In short, NCLB waivers are void on multiple grounds