Equality, centralization, community, and governance in contemporary education law.

• Author: Pasachoff, Eloise
• Position: Response to article by Robert Garda in this issue, p. 613

A response to Robert Garda, Searching for Equity Amid a System of Schools: The View from New Orleans, 42 Fordham Urb. L.J. 613 (2015).

Table of Contents Introduction I. Inclusion Equality Versus Outcome Equality II. Centralization Versus Decentralization III. Community and Governance IV. What Next for New Orleans? What Next for Education Law? Introduction

Professor Garda tells a fascinating story about the rise of charter schools and the emerging system of schools in contemporary New Orleans, where, as of the 2014-2015 school year, one hundred percent of the public schools are charter schools. (1) This is an important story with national implications, not only for districts like the one I live in, Washington, D.C., where almost half of our public school students are now served by charter schools, (2) but also for districts with many fewer charter schools, or even none at all.

And here is why: the story Professor Garda is telling is not really about charter schools, or about a tension between charter schools and typical public schools. The main issues he has identified run much deeper than that. These issues may be characterized as falling within three key themes: a tension between what Professor Garda calls "inclusion equality" (3) and "empowerment" (4) or "outcome equality"; (5) a tension between centralization and decentralization; and the relationship between community and governance structures.

In this brief response, I take each of these themes in turn and situate them in the broader context of American education law; in so doing I argue that these are the core preoccupations of American education law writ large. To that extent. Professor Garda's characterization of the open questions confronting New Orleans somewhat oversimplifies matters. I close by connecting the road ahead for New Orleans with the path forward for education law more generally. In particular, I argue, any decision made by New Orleans (or any jurisdiction) to resolve these tensions is not likely to be permanent, even though education lawyers continually engage in efforts to resolve them. Moreover, the likely venues for such efforts, Professor Garda's Article teaches, include the state legislature, state agencies, and local governance structures. (6) By focusing on these venues, Professor Garda's Article underscores the need for contemporary legal education about education law to systematically address questions about law design and legislative and administrative processes, and not simply case law.

1. Inclusion Equality Versus Outcome Equality

   Professor Garda traces the idea of inclusion equality back to Brown v. Board of Education, (7) saying that this is the core concern of the major education civil rights statutes that trace their genesis to Brown. (8) This view, he says, "demands that every school attempt to educate every type of student regardless of ability, aptitude, race, or socioeconomic status." (9) In contrast, he says, empowerment or outcome equality dates back to the Reagan-era report A Nation At Risk, (10) and is linked to choice because, so the theory went, empowering parents with choice would lead to improved student outcomes, regardless of the homogeneity of the students in a school."

   Professor Garda acknowledges that the current all-charter model in New Orleans is "as far from achieving the new equality as the old New Orleans schools were from achieving inclusion equality." (12) But he does not sufficiently acknowledge that the tension between these visions of equality is embedded in the civil rights statutes themselves, as well as in developments in traditional public schooling completely outside the context of charters. (13)

   Consider, for example, one of the sayings often associated with Brown: that one of the theories animating Brown was that "green follows white." (14) Under this theory, money and everything it could buy in terms of educational quality would follow from the integration of black and white students--not just that integration was the end goal. (15)

   Or think about Title VI of the Civil Rights Act of 196416 and disparate impact theory. (17) Under this theory, Title VI precludes not just segregation or intentional differential treatment, but also policies that result in different outcomes. (18) The contemporary focus on disparities in school discipline and in access to educational resources directly results from using Title VI to promote equal outcomes. (19) Nor is this some new-fangled gloss on the statute's original meaning; it is what President Johnson famously said at Howard University about the point of the civil rights laws: "We seek not just ... equality as a right and a theory but equality as a fact and equality as a result." (20)

   Professor Garda also talks about the Equal Educational Opportunities Act, (21) which is often used for assessing the legality of programs serving English Language Learners (ELLs). (22) Here, too, while segregation is not permitted, (23) neither is it permissible to pay no attention to effective outcomes; the legal framework under this Act requires that a program serving ELLs must be proven effective in overcoming language barriers. (24)

   As for the treatment of students with disabilities, Professor Garda is correct that the law requires education in the least restrictive environment (25)--that is, education as much as possible with general education students (26)--but it nonetheless permits, even in traditional public schools, specialized and essentially segregated classrooms, such as dedicated autism classes. (27) Moreover, the Individuals with Disabilities Education Act (IDEA) (28) permits parents to sue school districts to pay for private placements in specialized schools for children with disabilities under certain circumstances. (29) More generally, IDEA empowers parents with the ability to bargain with schools over the services their children should receive. (30) And nothing in the civil rights laws got rid of state-run and state-funded specialized schools for the blind or the deaf. (31) The value of the integration presumption in educational disability law (what Professor Garda calls more generally "inclusion equality") is in fact deeply contested, as is its relation to outcomes for students with disabilities. (32)

   Professor Garda mentions Title IX only in passing and only in a footnote, (33) but there is a tension even within Title IX about inclusion and outcome equality. On the one hand, the statute says you cannot be subjected to discrimination in educational programs that receive federal funds on the basis of sex. (34) On the other hand, the statute contains numerous exceptions. (35) And, as Professor Garda notes, the Title IX regulations as redrafted almost a decade ago now explicitly permit single-sex classrooms and schools in the traditional public school system, as well as the charter school system, where the purpose of that exclusionary focus is to improve academic achievement. (36) Here, too, the relationship between inclusion equality and outcome equality is vigorously debated. (37)

   Moving beyond contested visions of equality embedded in the civil rights laws, magnet programs in traditional public schools also offer a useful comparison with the charter school model. Admission to magnet schools is often subject to certain criteria, whether by academic test, (38) by specialized skill or talent, (39) by subject-matter interest, (40) or sometimes even by identity or affinity group. (41) So inclusion for all-comers need not be the core focus of a system of traditional public schools. At the same time, magnet schools and related methods of providing a variety of public school offerings within a school system may be used to promote racial and socioeconomic integration. (42) Indeed, it is often argued that magnet schools designed properly can encourage both integration and improved academic outcomes. (43)

   For that matter, one early plan for charter schools themselves was that they were supposed to be inclusive. (44) When Albert Shanker outlined a vision for this new kind of school in the mid-1980s, he touted what he perceived as the superior ability of this new kind of school to ensure that students of all backgrounds would learn together, in contrast to traditional public schools that were failing at that mission. (45)

   At the same time, traditional public schools have long been focused--or have had that focus thrust upon them, depending on how you look at it--on outcomes. Think about the now longstanding focus on achievement gaps. (46) Title I of the Elementary and Secondary Education Act, now No Child Left Behind, has from its inception funded compensatory education, to supplement state and local funding; its goal has not been to ensure inclusive classrooms. (47) Think about the standards and accountability movement. (48) Think about the decades and decades of school finance litigation; (49) whether under theories of resource equity or adequacy, these cases have been focused on the inputs required to achieve the desired outcomes of academic success. (50)

   All of this is to say that Professor Garda oversimplifies matters in saying that the traditional view dating back to Brown and the original civil rights legislation has been focused on inclusion equality, that all traditional public schools have had to educate all comers, and that inclusion is the core focus of the education civil rights laws. (51) Instead, the debate between inclusion equality and outcome equality in New Orleans reflects a tension that goes far beyond charters schools versus traditional public schools. It is a tension at the core of the field of education law. Professor Garda's claim that the traditional view of inclusion equality is lost in the move to an all-charter district (52) thus makes the problem seem both too easy and too recent.

2. Centralization Versus Decentralization

   Professor Garda argues that part of the problems with the current system of schools in New Orleans...