William S. Koski & Rob Reich, When "adequate" Isn't: the Retreat from Equity in Educational Law and Policy and Why it Matters

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 56 No. 3

EMORY LAW JOURNAL

Volume 56 2006 Number 3

ARTICLES

WHEN "ADEQUATE" ISN'T: THE RETREAT FROM EQUITY IN EDUCATIONAL LAW AND POLICY AND WHY IT MATTERS

William S. Koski^*

Rob Reich^**

INTRODUCTION .............................................................................................. 547

I. THE RETREAT FROM EQUALITY IN EDUCATIONAL LAW AND

POLICY ................................................................................................ 554

A. From "a right which must be made available to all on equal terms" to "a sound basic education": The Judiciary's Retreat from Equality ............................................................................... 555

1. A Brief History of School Finance Litigation ....................... 556

2. Adequacy as a State Constitutional Standard ...................... 562

3. Adequacy as a Remedy ......................................................... 565

B. From Targeting the Needy to Expecting that All Children Can

Learn: Educational Policy's Shift from Targeted Equity to

One-Size-Fits-All Accountability ................................................ 571

1. Title I and the Great Society ................................................. 572

2. The Reagan Era's Focus on Excellence ............................... 575

3. Standards-Based Reform, the New Accountability in

Education, and the No Child Left Behind Act ...................... 577

II. WHY EQUALITY MATTERS MORE THAN EVER IN EDUCATIONAL

POLICY: A NORMATIVE FRAMEWORK ................................................ 589

A. Equality and Adequacy ............................................................... 589

B. The Case for Adequacy ............................................................... 592

1. Equality Is Economically Inefficient .................................... 593

2. Equality Unfairly Constrains Liberty .................................. 593

3. Equality of What? ................................................................ 594

C. The Case for Equality ................................................................. 595

1. What Is a Positional Good? ................................................. 596

2. Education as a Positional Good .......................................... 597

3. Evidence for the Positional Aspects of Education ............... 599

a. Connection to Success in College and Postsecondary

Admissions ..................................................................... 599 b. Connection to Success in the Labor Market .................. 600 c. Credentialism and Signaling ......................................... 603

D. Why We Should Endorse Equality, Not Adequacy ..................... 604

1. Dignitary Harms of Unequal Education .............................. 606

2. Fairness in Competition for Postsecondary Admissions and Spots in the Labor Market ............................................ 606

E. Equal Educational Opportunity ................................................. 608

1. Four Conceptions of Equal Educational Opportunity ......... 608

2. Adequacy Cannot Satisfy Any Form of Equality of

Educational Opportunity ..................................................... 610

F. Tempering Our Normative Conclusions ..................................... 612

1. Education Is a Multifaceted Good ....................................... 612

2. Reject Equality Monism ....................................................... 613

III. EDUCATIONAL POLICY AND EDUCATIONAL EQUALITY ...................... 614

CONCLUSION .................................................................................................. 615

ABSTRACT

In the wake of Brown v. Board of Education and the Great Society's social agenda, congressional and judicial policymaking in the arena of education was decidedly focused on creating greater equality of educational opportunity for poor children by tying the fortunes of poor and privileged children together and targeting resources to those in need. In the past two decades or so, however, there has been a shift away from the rhetoric and policy of providing equal educational opportunities to the rhetoric and policy of providing an "adequate" quality of education irrespective of resource inequalities among schools. This shift, we argue, is reflected in two important policymaking venues: (1) the federal and state courts, in several waves of educational finance litigation, and (2) federal and state legislatures, in the decline of laws designed specifically to enhance educational resources in poor communities and the concomitant rise in one-size-fits-all standards-based accountability regimes that pay less attention to ensuring the provision of resources to the needy.

In this Article, we seek to inject equality back into the policy conversation by arguing that "adequate" is not good enough in educational policy. Although education is in many respects a public good in that we all benefit from a well-educated citizenry, education is also a private good in that students gain psychic, economic, and status benefits throughout their lives. As a private good, however, education possesses unusually strong "positional good" aspects. That is, one's position or relative standing in the distribution of education, rather than one's absolute attainment of education, matters a great deal. To the extent that education is positional, one person's possession of more education necessarily decreases the value of another's education. From a public policy perspective, then, we should be concerned about making some people educationally worse off whenever we adopt policies that exacerbate or fail to diminish educational inequalities. More to the point, the recent shift away from equity-minded policies to adequacy-minded (or equity-neutral) policies must be reconsidered; to the extent that education is a good with strong positional aspects, we need to focus on the comparatively worse off, targeting resources to the needy, and we ought still to object to inequalities even above a threshold level of adequacy.

INTRODUCTION

Just over a half a century ago, the United States Supreme Court held that when a state undertakes to provide children with an education, such an opportunity is a "right which must be made available to all on equal terms."¹

In a similar spirit, upon signing the Elementary and Secondary Education Act of 1965, Title I of which constituted unprecedented federal support to low- income children in public schools, President Lyndon B. Johnson declared that "[b]y passing this bill, we bridge the gap between helplessness and hope for more than 5 million educationally deprived children."²Educational law and policy had the unambiguous objective of achieving equal educational opportunity for children and, more specifically, targeting resources and attention to the neediest among our children.

The past two decades or so, however, have witnessed a decided shift away from the rhetoric and policy of providing equal educational opportunities to the rhetoric and policy of providing an "adequate" education to all children, irrespective of resource inequalities among schools and school districts and sometimes irrespective of the economic or educational needs of students. Defended on pragmatic political grounds, on the perceived failure of equity- driven school reform, and on the difficulty of defining "equality of educational opportunity," the concept of "educational adequacy" has framed the recent discussion among scholars, courts, and policymakers. Nowhere is this more evident than in the arena of educational finance reform litigation, where advocates and courts abandoned the doctrine and rhetoric of equity and adopted the language of adequacy. So clear was this shift that Peter Enrich, in an influential 1995 article, argued that educational finance policy was "leaving equality behind."³More recently, the standards-based reform and educational accountability movements of the 1990s, culminating in the 2001 No Child Left Behind Act (NCLB), have focused on setting educational content standards that "all children can learn" without particular regard to whether all children are receiving, or should receive, equal educational resources.

In this Article, we aim to return equity to the fore. We argue that the shift from equity to adequacy in education and the concomitant shift from the rhetoric and policies targeted to poor and underprivileged students to rhetoric and policies that apply to all students cannot be supported on normative grounds and will ultimately not ensure broad-based support for public schooling. Put simply, "adequate" is not good enough in educational policy. We base this conclusion on a normative analysis of equality and adequacy concepts in educational policy, an analysis that gains additional strength in light of our contention that education is in large part what has been called a "positional good."

Although education is in many respects a public good in that we all benefit from a well-educated citizenry, education is also undoubtedly a private good in that students gain psychic, economic, and status benefits throughout their lives. We argue that as a private good, however, education possesses unusually strong "positional good" aspects. That is, one's position or relative standing in the distribution of education, rather than one's absolute attainment of education, matters a great deal. To the extent that education is positional, one person's possession of more education necessarily decreases the value of another's education. From a public policy perspective, then, we should be concerned about making some people educationally worse off whenever we adopt policies that exacerbate or fail to diminish inequality. More to the point, from a normative perspective, the recent shift away from equity-minded policies to adequacy (or equity-neutral) policies must be reconsidered.

Not all will agree that the adequacy litigation, standards-based reform, and "new accountability" movements in education...