Legislating accountability: standards, sanctions, and school district reform.

• Author: Saiger, Aaron J.

TABLE OF CONTENTS INTRODUCTION I. ACCOUNTABILITY, DETERRENCE, AND SIGNALING A. School District Nonaccountability and the Disestablishment Incentive B. District Responsiveness to Incentive Systems C. State Incentives and Capacity D. A Two-Player Model of Deterrence II. OTHER ACTORS A. Courts B. Washington CONCLUSION: WHITHER THE EDUCATIONAL POLITY? INTRODUCTION

"Hold the public schools accountable!" This clarion cry, first heard in state capitals in the late 1980s, has since been repeated and amplified by many states, by the courts, and most recently, by the federal government. Only where school districts and schools are held to "account," the theory goes, ought one expect any program of school reform to be truly effective. Because unaccountable school districts lack incentives to succeed, waves of school reform have been able to wash over the nation's most troubled school districts for decades without substantially ameliorating their dismal and disgraceful performance. (1)

There can be no doubt that the programs grouped under the general rubric of the "New Accountability" mark an important shift in efforts to reform these troubled districts. (2) Accountability reforms operate in the public sphere, implicitly denying the claim that only markets can solve the problems of failing schools. They rely upon legislative and executive action, rather than locating the power to reform troubled schools in judges, who have limited control over schools' activities, no ongoing experience with education, and a constrained repertoire of remedies. And instead of regulating top-down, accountability reforms encourage flexibility at the local level where educational programs are implemented; they impose demands regarding outcomes and information sharing but leave local officials to find the best ways to reach the standards the programs impose.

This Article argues that accountability programs indeed offer a new and promising way to catalyze the reform of schools in crisis, but not by virtue of the features of the programs that have dominated public controversy. The most important innovation through which the New Accountability addresses the problems of distressed schools has to date been relegated to the sidelines. Public debate has focused on the wisdom and validity of testing students to measure their performance, the risks of regimenting education across a diversity of schools and modes of inquiry, the proper measurement of educational improvement, and the educational legitimacy of setting standards for schools in the first place. (3) The debate has come--implicitly in many cases and explicitly in some--largely to identify the New Accountability entirely with the practices of standard-setting, testing, and the dissemination of information about results. (4)

To make such an identification is to miss the reason that policymakers adopted a banner of "accountability" rather than simply one of "standards": American schools and school districts are peculiarly unaccountable institutions. They are insulated from the consequences of malfeasance by their natural monopoly over policy implementation, which ultimately must occur in classrooms widely dispersed and difficult to monitor; they are even more insulated by the peculiar intergovernmental structure of American education, which distributes responsibility for schools across two types of governments--states and school districts. (5) Although the state is the locus of constitutional authority over school policy, school districts enjoy virtually total power over policy implementation. This gives districts unusual freedom to pursue their own self-interest, which often diverges from the state's educational agenda. (6) District resistance to externally motivated policy change is the shoal upon which many previous education reform efforts have foundered. The fundamental task of accountability is to undermine district power to resist reform--not so much to define standards as to discover how to hold schools and school districts to whatever standards are established.

To do this requires attention above all not to standards but to sanctions. (7) At the intuitive heart of the term "accountability" is that failure should compel consequences. (8) The new accountability programs the states have adopted do not merely set standards for districts and schools to meet--they impose punishments for failure. In order to confront local leaders with genuine incentives to reform, moreover, these punishments are of a particular kind. Accountability sanctions are designed to curtail or eliminate local power. The ultimate sanction is "disestablishment": the school board and superintendent in a district failing persistently are unseated, and authority over all school matters reverts to the state. (9) Unlike judicial reform decrees or hierarchical diktats from state education departments, for which less-than-faithful implementation by a district carries few consequences, or market reforms, where the consequences of poor performance are attenuated, a disestablishment threat is vivid. Local officials at risk of losing their authority to manage district affairs have every reason to align their activities to an extent with state preferences.

The qualification--that states can force district realignment to an extent--is crucial. Accountability programs and threats of disestablishment do not magically transform districts into states' faithful agents. Just as numerous districts have resisted judicially-imposed school reform by taking advantage of the restricted palette and limited capacity of judicial actors, (10) districts seek to resist state-imposed reform as well. To be sure, districts will be appalled by the prospect of disestablishment and will undertake a variety of feasible but ambitious reforms in order to avoid its realization. But districts also recognize that imposing disestablishment sanctions carries political, educational, and financial costs for states. States may not be as enthusiastic about disestablishment as state officials would like districts to believe. Aware that disestablishment is painful for states as well as for themselves, districts must assess, rather than assume, the credibility of state threats to disestablish them. Unsure of the magnitude of the costs states face and the weight that states assign to those costs, such credibility determinations must necessarily be made in an environment characterized by incomplete information.

That districts must arrive at their own, uncertain conclusions about states' true intentions does not deprive state threats of the power to induce reform. Indeed, reform will likely be undertaken in a wider variety of districts than the state has actually targeted. Reform, however, will probably fall short of both the demanding standards of adequacy that states articulate in their accountability provisions and states' genuine preferences, which themselves are reflected imperfectly in statutory language. Incomplete information brings other costs as well: states must find ways to signal their seriousness about sanctions to districts that have reasons to doubt them, and it becomes impossible for states and districts to communicate directly and openly to one another what their goals and preferences are.

These very real costs notwithstanding, the structural limitations of accountability sanctions also work to benefit troubled public schools. Threats of disestablishment characterized by incomplete information vastly ameliorate the otherwise overwhelming difficulty faced by standards-based school reform: determining how high to set the bar. If standards are too low, desirable reforms go unimplemented; if too high, districts may be sanctioned unfairly and sometimes give up all effort. External policymakers, however, lack reliable methods by which to distinguish between standards that districts and schools cannot achieve--for the woes of urban education are complex and overwhelming--and those that they will not achieve--whether from want of incentives, institutional inertia, lack of creativity, or simply diverging preferences.

Because disestablishment threats allow districts to know the criteria for disestablishment only imperfectly, however, this problem is ameliorated substantially. Districts are more apt to try when there is a reasonable likelihood that some success plus good-faith effort will forestall sanctions, but are still motivated to try their best for fear that a lesser effort will yield a disastrous sanction. States are better positioned to reward the best efforts, punish the worst, and galvanize future reform if the criteria they use are specified imperfectly and known incompletely. On the other hand, states are also constrained by the need to keep their threats credible; districts only reform if they are convinced that the risks of noncompliance are genuine.

Part One of the Article elaborates upon this argument. The subsequent Part analyzes efforts by two governmental institutions other than the states to promote school accountability: the courts and the federal government. Although the New Accountability has been embraced by both--in the case of the federal government, embraced with a vengeance (11)--neither is likely to be able to use new accountability policies with much success, notwithstanding the conceptual similarities of their efforts to the state programs that are so promising. Key characteristics of state-district interaction--the shared incentives of both parties to avoid sanctions and incomplete information about credibility--are absent when disestablishment is threatened by judges or by Washington. The Article first considers judicial efforts to demand accountability, concluding that the political economy that accountability creates exacerbates the institutional disadvantages courts already face in the education reform field. The Article then considers the federal government, which sought to transform the New Accountability from a...