FEDERAL STANDARDS FOR PUBLIC K-12 EDUCATION IN AMERICA: A PROPOSAL BASED ON GARY B. V. WHITMER.

• Author: Ives, Callie

Introduction 304 I. Discussion of Federal Public School Reform Efforts 308 A. San Antonio Independent School Districts v. Rodriguez: The Binding Supreme Court Precedent 308 B. The Problems of the State Law Landscape 309 C. Gary B. v. Whitmer 310 D. Review and Recent Development 312 II. A Proposal for Agency Action to Set Federal Minimum Standards for Public Schools in The United States 313 A. The United States's Value on Education Cannot End Here 314 B. The Importance of Title I's Inclusion in the Proposed Agency Action 315 C. Logistics of Agency Regulations 317 D. Proposal Based on Plaintiffs's Argument in Gary B 318 1. Teaching 318 2. Facilities 321 3. Materials 322 4.Unworkable and Unnecessary Portions of Gary B 322 E. Methods of Promulgation 323 1. Interpretive Rule 323 2. Legislative Rule 327 3. Recommendation 328 III. Challenges This Regulation Must Overcome to be successful 328 A. The States' Rights Argument 328 B. Is This a True Area of Expertise Where Courts Should Defer to the Agency? 329 C. Interpretive Rules Do Not Have the Force of Law 330 D. Exceptions to the Proposed Rule 330 E. Achieving This Outcome Can Still Mean a School is Failing in Other Regards 331 Conclusion 332 INTRODUCTION

Even though Isabelle Perticone received an amazing childhood education, she had an especially exceptional opportunity during her senior year of high school. Perticone is a recent graduate of Darien High School. (1) Darien is a town and school district near Stamford, Connecticut, (2) which is also a suburb of New York City. (3) In 2019, students in fourth, eighth, and twelfth grade from the Darien Public School System exceeded the national average in both reading and math skills. (4) Perticone's high school experience culminated with a semester interning at Facebook's headquarters in Manhattan. (5) She described her experience as a personal highlight as well as an academically "eye-opening and exciting experience" that she thinks every high school senior should undergo. (6) Perticone has since received her high school diploma and begun her Freshman year of college at Tulane University, a four year university located in New Orleans, Louisiana. (7)

While Perticone's experience at a top tier high school internship is shared by some, others have had subpar educational opportunities with limited access to career development experiential opportunities. (8) Since 2017, 30 states have seen an increase in the number of eighth grade students who do not surpass basic literacy requirements. (9) These reading struggles span across all racial and socioeconomic groups, (10) compound over time, and have the potential to severely limit students' opportunities after high school graduation."

D'Leisha (Nene) Dent had a much different educational experience than Perticone. Dent grew up in Tuscaloosa, Alabama. (12) Even though she is an honors student at Central High School since middle school, she has slim prospects for college or any other form of higher education. (13) In fact, during Dent's senior year of high school, one of her peers, another one of Central High's brightest, was concerned about Dent's struggle with vocabulary and spelling. (14) These academic issues are due to an education system that failed Dent. This is especially concerning given her school's reputation; Central High School has historically been considered "a renowned local high school" despite its declining effectiveness. (15) The school grew prestigious after it was a site of early racial integration among schools in the South. (16) Dent's entire family attended this school, and while it had been declining in the decades since her grandfather was a student, it is now considered "a struggling school." (17)

These contrasting anecdotes exemplify the issue this Note seeks to address. The schools mentioned above are in different states and thus are likely to have differing standards as to what they teach. (18) This is in part because setting standards for public education is currently a matter primarily reserved to state governments. (19) Both Perticone and Dent appear to be exceeding their school's standards. Perticone earned a prestigious internship and Dent was an honors student for over four years. (20) However, Perticone is continuing on to a highly ranked four-year private college and Dent, realistically, has "marginal college prospects." (21) The disparate outcomes of these two students highlight the effect of schools having differing standards as to what is taught. While other factors may be present in this situation, such as differing socioeconomic statuses and the extremely high price of college in the United States, disparate educational standards are also a significant contributing factor. (22)

Currently, there are no federal or state standards requiring a specific level of K-12 public education. (23) President George W. Bush's administration passed the No Child Left Behind Act, which held schools accountable for students's reading and math proficiency. (24) However, Congress eliminated this piece of legislation in 2015. (25) Moreover, while federal "Common Core" standards were created during the Obama administration, states were never required to adopt them. (26) "Common Core" standards were merely guidance and they only became mandatory when a state's Board of Education voted to accept the standards. (27) The standards were not universally accepted and states were free to terminate programs as they saw fit. (28) Furthermore, even in states where "Common Core" was adopted, the states voted on their own version of the standards. (29) State governments have failed to create a comprehensive and uniform method of regulation in this area. (30) This failure is one of the primary causes of the massive disparity in the quality of education that public schools provide. (31) Nonetheless, the United States has a long history of prioritizing schooling as a key element of childhood development. (32) Thus, the government has a continuing interest in maintaining high-quality schools across the nation.

This Note proposes a means of mitigating the disparities between the quality of education that different public schools in cities across the United States provide. Specifically, this Note argues that the United States Department of Education should promulgate a rule that conditions Title I funding on satisfying criteria related to teaching, facilities, and materials. (33) Importantly, this recommendation retains the control states have over their K-12 educational systems. However, it sets minimum thresholds that state plans must satisfy. (34) The ultimate goal of this rule is to incentivize schools to teach students to read at or above their respective grade level. Because literacy has the potential to elevate one's professional and social capabilities, implementing reading level standards may be the best way to ensure students are prepared for their future endeavors. (35)

Part I explains the current lack of both federal guidance and standards regarding K-12 public schools across the United States, as well as the resulting disparities. (36) Part II proposes that the Department of Education promulgate federal standards on this matter and outlines specific requirements the standard should include. (37) Part III highlights some of the challenges that the agency rule would need to overcome to foster success. (38)

1. DISCUSSION OF FEDERAL PUBLIC SCHOOL REFORM EFFORTS

   This Part examines Supreme Court precedent on education standards with a specific focus on San Antonio Independent School Districts v. Rodriguez, and highlights how the holding must coexist with state law. (39) This Part also summarizes Gary B. v. Whitmer, which is a Sixth Circuit case that this Note uses to formulate an agency regulation. (40)

   1. San Antonio Independent School Districts v. Rodriguez'. The Binding Supreme Court Precedent

      The Supreme Court held in San Antonio that there is no federal constitutional right to education. (41) The Court reasoned that to do otherwise would raise federalism concerns. (42) Additionally, the Court could not find a constitutional right here because it was unable to classify this as either an equal protection or due process violation. (43)

      San Antonio was a class action lawsuit brought by low-income MexicanAmerican parents living in the impoverished, urban Edgewood School District. (44) The plaintiffs in this class action suit, as well as the community as a whole, suffered from conditions of poverty. (45) The plaintiffs alleged that their school district's minimal federal government funding violated the equal protection clause because it reflected disparate treatment, (46) and it inhibited their participation in the nation's democracy. (47) The school funding schema was one where some districts received significantly more tax money from the more populated areas, while other districts were encompassed with farmland and thus received less tax money. (48) The district court held that the funding was unconstitutional, stating in its opinion that education is a fundamental right. (49) A court of appeals did not hear the case. The school district appealed the district court's decision directly to the Supreme Court. The Supreme Court reversed the district court findings and held that this case did not require an equal protection analysis nor any other Constitutional doctrine. (50)

      The Supreme Court held that there is no fundamental right to education (51) even though the plaintiffs showed massive fiscal disparities among school districts. (52) The Court further stated that nothing in its holding minimizes the significance and need for public school K-12 education. (53) However, the Court was concerned that a constitutional right to education may upset the balance of power between states and the federal government. (54) Thus, the Court held that education is not a fundamental right (55) and is a matter reserved for state legislatures. (56)

   2. The Problems of the State...