The K-12 Funding Crisis

Current discussions about K-12 education often highlight the reforms that seek to improve the quality of schooling. Some of these measures—the common-core standards, teacher evaluation, and, most recently, the Every Student Succeeds Act—undoubtedly have the potential to improve educational opportunities for students. However, what is often missing from education reform conversations is how these reforms can create sustainable changes to the education system. We believe the system\u27s very foundations are broken, and school funding is one of the most pressing issues in need of repair

Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education

In this Comment, I argue that much greater care and attention must be paid to the educational opportunity gaps and resulting achievement gaps that prompt many colleges and universities to rely on affirmative action. Increased attention to greater equality and excellence in elementary and secondary education can help reduce or eliminate the need for affirmative action, which is an approach that fundamentally aims to ensure equality. Without additional attention to closing opportunity gaps, the Court may declare that the time has come for affirmative action to end, but the United States will not be equipped to maintain diverse, selective postsecondary institutions and the many benefits that they bring

How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez

In the Rodriguez decision, the U.S. Supreme Court held that the plaintiffs did not have a right under the Constitution\u27s Equal Protection Clause, which required the state of Texas to remedy disparities in funding for schools in high-wealth and low-wealth school districts. One of the principal reasons that the Court rejected the plaintiffs\u27 claims was the need to maintain the current balance of power between the federal and state governments over education. Indeed, the Court acknowledged in Rodriguez that even though all equal protection claims implicate federalism, it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, because upholding the plaintiffs\u27 claims would ultimately lead the Court to invalidate the school systems in all fifty states. Although some contend that these decisions and results are driven more by a lack of political will rather than education federalism, the consistency with which federalism has arisen as a real or imagined obstacle to reforms aimed at ensuring equal educational opportunity suggests that federalism is a significant contributing factor, even if other factors also adversely influenced these reforms. I contend that the United States should strategically restructure and strengthen the federal role in education to establish the necessary foundation for a national effort to ensure equal access to an excellent education. This restructuring and strengthening of the federal role in education would require shifting some power away from the state and local governments and toward the federal government. The United States would then need to adopt a new understanding of education federalism that embraces the federal government as the guarantor of equal opportunity, because it is the only government with the capacity and sufficient incentive to lead a national effort to achieve this widely supported, yet persistently elusive, goal. Although this would not require federalizing the nation\u27s education system as at least one scholar has recommended, it would require acceptance of a larger federal role in education to hold the states accountable for ensuring that all students receive equal access to an excellent education

No Quick Fix for Equity and Excellence: The Virtues of Incremental Shifts in Education Federalism

In this Article, I join these calls for the federal government to lead states to reform their school funding systems. In doing so, I build upon my recent scholarship that calls for additional federal leadership insisting that states prioritize equity and excellence in education. I recommend that we restructure education federalism by requiring the federal government to serve as the ultimate guarantor of equal access to an excellent education. My theory of education federalism embraces federal policymaking strengths in education, such as federal research, technical, and financial assistance, that support state and local reforms to promote equity and excellence. This theory would retain state and local control over education where states and localities possess superior policymaking strengths, including preserving states as laboratories of reform that determine how to achieve equity and excellence. It also would promote new forms of state and local control over education by enhancing state and local capacity for reform. This Article provides a practical application of my theory for reconstructing education federalism in ways that would support equal access to an excellent education. My analysis serves two goals. First, I present research regarding some of the central school funding system shortcomings that may not be widely understood. The shortcomings that I analyze are: the provision of less revenue to districts with substantial concentrations of students with greater needs; the failure to tailor funding to the objective of the education system; substandard funding amounts; and insufficient oversight of school funding. Second, scholars have increasingly begun to call for a federal role in education funding by proposing a single-step reform. In contrast, I contend that the United States should incrementally increase federal influence over school funding to prompt states to maintain equitable funding systems

Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools

The Supreme Court\u27s decision in Brown v. Board of Education held that separate educational facilities were inherently unequal. After tolerating substantial delay and evasion of the requirements of Brown, the Court eventually required school districts to dismantle the dual systems by eliminating all traces of separate schools and creating integrated schools. In contrast to numerous scholars that have contended that many of the Court\u27s later school desegregation decisions withdrew from or grew weary of school desegregation, this Article argues that the effect of many of the Court\u27s leading school desegregation decisions was to reconstitutionalize segregated schools. Furthermore, the Court\u27s recent decision in Parents Involved in Community Schools v. Seattle School District No. 1 will exacerbate this effect by making it substantially more difficult for school districts to remedy such schools. This Article concludes with a proposal for how the President and U.S. Department of Education could implement a comprehensive plan to resurrect Brown\u27s promise to end separate and unequal schools

The High Cost of The Nation\u27s Current Framework for Education Federalism

This Article will show the consistent ways that the current understanding of education federalism within the United States has hindered three of the major reform efforts to promote a more equitable distribution of educational opportunity: school desegregation, school finance litigation, and, most recently, NCLB. In exploring how education federalism has undermined these efforts, this Article adds to the understanding of other scholars who have critiqued these reforms and examined why the nation has failed to guarantee equal educational opportunity. For example, scholars have argued that the failure to undertake earnest efforts to achieve equal educational opportunity is caused by a variety of factors, including the lack of political will to accomplish this goal, the domination of suburban influences over education politics, and the failure of the United States to create a social welfare system that addresses the social and economic barriers that impede the achievement of many poor and minority students.1s In a past work, I also explored some of the reasons that these efforts have failed to ensure equal educational opportunity. In light of this literature, education federalism undoubtedly is not the only factor that has influenced the nation\u27s inability to ensure equal educational opportunity. Nevertheless, it is important to understand the consistent ways in which education federalism has contributed to the ineffectiveness of efforts to ensure equal educational opportunity as scholars propose new avenues to achieve this paramount goal. In addition, in both past and future work, I argue that the nation should consider embracing a new framework for education federalism that would enable the nation to more effectively achieve its goals for public schools. Understanding how education federalism has hindered past reforms is an essential part of exploring how education federalism should be reshaped. In addition, this Article also briefly highlights that when the Supreme Court and Congress limited reforms to advance equal educational opportunity, they harkened back to an extinct model of dual federalism and failed to acknowledge that, since the New Deal, the nation has moved to the increasing jurisdictional partnerships that are oftentimes labeled cooperative federalism.21 In this way, this Article engages some of the federalism scholarship. Furthermore, this Article notes that one possible explanation for some of the Court\u27s decisions is that the Court may be claiming that federalism prevents it from acting when the Court lacks the will or an interest in ensuring that equal educational opportunity becomes a reality for all schoolchildren. Although it would be impossible to confirm if this explanation is accurate, this Article identifies the evidence that suggests that this behavior by the Court may be occurring. After noting this possibility, this Article then takes the Court at its word that education federalism is driving its decisions while exploring the ramifications of the Court\u27s decisions for equal educational opportunity. This Article proceeds in three parts. Part I examines how education federalism functioned as one of the critical impediments to school desegregation. Part II analyzes how education federalism has handcuffed the reach of school finance litigation. Part III critiques how education federalism has undermined the effectiveness of NCLB. This analysis reveals how the interrelated interests in maintaining the current balance of power between the federal and state governments and in preserving local control of education have limited the effectiveness of these reforms. By examining how education federalism has served as one of the central obstructions to reforms that sought to ensure equal educational opportunity, this Article concludes that future efforts to advance equal educational opportunity must undertake an analysis of how education federalism can be restructured to support all children receiving an equal opportunity to obtain an excellent education

Disrupting Education Federalism

The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation\u27s education goals. One ofthe nation\u27s unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform,I argue that disrupting the nation\u27s longstanding approach to education federalism-which I define as the balance of power between federal, state, and local governments that emphasizes substantial state autonomy over education- is necessary for a successful national effort to achieve this goal. I then provide a foundational theory for strengthening the federal role in education by analyzing the essential elements of a successful reform effort based upon research regarding the strengths of federal education policymaking and upon identification of the missing elements of current reforms. Finally, I respond to many of the potential arguments against disrupting education federalism. For instance, I argue that National Federation of Independent Business v. Sebelius continues to provide ample room for Congress to expand the federal role in education in ways that are needed to build a more equitable education system. I also explain that although strengthening the federal role in education will reduce some forms of state and local control over education, it also will provide states and localities new forms of control

The Constitutional Future of Race-Neutral Efforts to Promote Diversity and Avoid Racial Isolation in Our Elementary and Secondary Schools

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools because the decision leaves very little room for racial classifications that would survive strict scrutiny. This Article further contends that governments should be given wide latitude to adopt race-neutral efforts to avoid racial isolation and create diverse schools because these efforts will help school districts accomplish the goals of the Equal Protection Clause while avoiding many of the potential harms of racial classifications. In light of how Parents Involved will push districts to focus on race-neutral efforts to achieve diversity and avoid racial isolation, this Article confronts the key issues that will determine the future of efforts to provide diverse elementary and secondary schools

Fourth Circuit Finds University of Maryland Minority Scholarship Program Unconstitutional, Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994)

The use of minority scholarships to create a diverse student body and to remedy past discrimination has been the subject of considerable controversy in recent years. Although such scholarships constitute a small percentage of financial aid for higher education, opponents of minority scholarships argue that they unfairly discriminate against non-minority students on the basis of race. In Podberesky v. Kirwan, the Fourth Circuit held that the University of Maryland at College Park (UMCP) denied Daniel Podberesky, a Hispanic/white student, equal protection of the laws by excluding him from consideration for the race-based Benjamin Banneker Scholarship Program. The program, the court held, was not narrowly tailored to remedy past discrimination at the University. In its analysis, however, the court applied only a portion of the applicable legal standard. A proper analysis of the program using the factors set forth in United States v. Paradise would have demonstrated that the program was narrowly tailored to address the racial problems of the University

A Proposal for Collaborative Enforcement of a Federal Right to Education

This chapter proposes an innovative approach for directing the expanding federal role in education. The proposed approach encourages states to address disparities in opportunity that prevent disadvantaged students from achieving their full potential and builds on the understanding reflected in the NCLB that the federal government will remain critical in public education reform. The proposal re-examines an avenue for federal involvement that the US Supreme Court considered in several cases and scholars have debated for more than 30 years: a federal right to education