Boston College Third World Law Journal Volume 27 Issue 1Ensuring an "Adequate" Education for Our Article 3 Nation's Youth: How Can We Overcome the Barriers? 1-1-2007 What Matters Even More: Codifying the Public Purpose of Education to Meet the Education Reform Challenges of the New Millenium Charles A. McCullough II [email protected] Follow this and additional works at:http://lawdigitalcommons.bc.edu/twlj Part of theEducation Law Commons Recommended Citation Charles A. McCullough II,What Matters Even More: Codifying the Public Purpose of Education to Meet the Education Reform Challenges of the New Millenium, 27 B.C. Third World L.J. 45 (2007), http://lawdigitalcommons.bc.edu/twlj/vol27/iss1/3 This Symposium Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please [email protected]. WHAT MATTERS EVEN MORE: CODIFYING THE PUBLIC PURPOSE OF EDUCATION TO MEET THE EDUCATION REFORM CHALLENGES OF THE NEW MILLENNIUM Charles A. McCullough, II* Abstract: With the U.S. Constitution silent on the matter and local gov- ernments allowed to designate funds to fulªll various purposes of educa- tion, citizens and policymakers are left adrift in determining which edu- cational reform initiatives will provide a quality education. Therefore a clear public purpose of education must be codiªed at the federal and state level through constitutional amendment and legislative enactments to avoid this current situation. This article explores philosophies, court opinions, and state constitutions to develop and propose a universal pub- lic purpose of education suitable for codiªcation. The codiªcation of a public purpose of education will assist the education community in pro- moting and funding educational reform initiatives, such as the National Board Certiªcation of teachers offered by the National Board for Profes- sional Teaching Standards, that have proven widely successful in increas- ing student achievement though, as of yet, have not garnered extensive federal and state government support. I. The Need for a Public Purpose of Education The education reform attendance list: increased funding, new fa- cilities, more technology, challenging curricula, accountability through testing, quality teachers, and parental involvement. Yes, they are all equally important. No, alone, no single one is the silver bullet. More * Charles A. McCullough, II, received a B.A. degree in History from Pepperdine Uni- versity and an M.Ed. in Higher Education Administration and J.D., from Boston College. He is currently Special Assistant to the President of the National Board for Professional Teaching Standards. Prior to this, McCullough served as Attorney-Advisor to the District of Columbia Public Schools and law clerk to Harvard University. He has served Montgomery County, Maryland, as a member of the Board of Education, para-educator, and appointee to several community commissions. He extends his gratitude to Professor Ruth-Arlene Howe for being the impetus for this work. To his team of editors, Martin A. Earring, An- thony C. Dvarskas, Lyana G. Palmer, Monira I. Parkinson, Rashida J. Wilson, Lillie M. Saunders, Kenneth R. Hopson, Joseph A. Aguerrebere, and most dear of all, Sheryl D. Turner, he extends his eternal gratitude for their speed, efªciency, and thoroughness. 45 46 Boston College Third World Law Journal [Vol. 27:45 important than discussing these great concepts for reform, however, is deªning a common ground upon which the nation can base its educa- tion reform dialogue. Plainly stated, it is imperative that the federal government and the state legislatures codify a single and uniform pub- lic purpose of education. With a codiªed purpose to reference, the courts and legislatures could play a more effective role in ensuring education adequacy under state constitutions and in the current con- text of education reform requirements. A clearly deªned public pur- pose of education would also provide one more tool that would allow state and federal legislatures to move more rapidly beyond partisan en- trenchments to ªnd not just a middle ground, but a solid ground for identifying and funding effective educational reform initiatives. Fur- thermore, a federally codiªed public purpose may be used nationally by parents to determine the proper expectations and rights of a child sent to public school. Some may argue that national standards or a national curriculum are better tools than codiªcation to bring focus to the education re- form movement. However, the problem is not an absence of good re- form ideas or national standards. There are federal provisions that provide national standards for education.1 A national curriculum has existed since the ªrst day that Advanced Placement classes and exams were available to high school students. A national standard for receiv- ing a high school diploma has been available since the inception of the International Baccalaureate Program. As the president of the Na- tional Commission on Teaching and America’s Future (NCTAF) ob- served, “We do have national standards, they are just not applied to all kids.”2 In this manner, education becomes a mirror to society, simply reºecting societal outputs.3 Additional studies are not needed to dem- onstrate the fact that children of minority groups or of low socio- economic status are more likely to receive a lower quality of public education than other children. Unfortunately, a broken public educa- tion system is often cited for being the cause of this fact. Ironically, it is not the system that is broken; the problem is that the system was 1 See No Child Left Behind Act of 2001, Pub. L. 107-110, 115 Stat. 1425 (2002) (to be codiªed as amended primarily in scattered sections of 20 U.S.C.). 2 Thomas Carroll, President, Nat’l Comm’n on Teaching & America’s Future, Address at the National Commission on Teaching and America’s Future Partners’ Symposium (July 9, 2006). 3 Kurt Landgraf, President & Chief Executive Ofªcer, Educ. Testing Serv., Address at the National Forum on Education Policy (July 12, 2006). 2007] Codifying the Public Purpose of Education 47 never organized to serve everyone.4 Codifying a public purpose is part of a larger effort to get the educational system to do something that it was never designed to do—serve every student equitably. Yes, there is a cultural divide as to how the nation views and re- ceives education. Concepts of teaching, and therefore learning, are as varied as our schoolhouses. The nation needs a codiªed public pur- pose that is federally uniform. More importantly, with a set purpose by which to view the viability of education reform initiatives, any person vested in the educational debate—student, teacher, parent, or policy- maker—could transcend the bureaucratic and traditional approach to determining educational reform. Armed with the codiªed public pur- pose, they will be better equipped to achieve an equitable and quality system of public education. One must ªrst address the question what is the purpose of educa- tion before one can fully understand the dimensions of an adequate education and, in turn, create a competent plan of reform. To this end, Neil Postman observed that “[w]ithout a purpose, schools are houses of detention, not attention.”5 This prophetic statement was perhaps not far-reaching enough in its honesty. What one observes throughout the country is that, without a deªned purpose of education, the childhood schoolhouse becomes a mere holding cell for the adulthood detention house.6 For those lucky enough to avoid this fate, the alternative may consist of an even greater penance—arriving at adulthood unprepared to contribute the full capacity of one’s innate abilities. A. The Federal Government and a Public Purpose of Education 1. The Call to Codiªcation As the importance of deªning the purpose of education appears to be self evident, one would suppose that the chorus of philosophers, legis- lative enactments, and judicial pronouncements on education would have long ago led to a codiªed deªnition of a public educational pur- pose. However, this is not the case, most fundamentally because the American tradition of public education is deeply rooted in the notion of 4 Carroll, supra note 2. 5 Neil Postman, The End of Education: Redeªning the Value of School 7 (Vin- tage Books 1996) (1995). 6 See generally Johanna Wald & Daniel J. Losen, Deªning and Redirecting a School-to-Prison Pipeline, in 99 New Directions for Youth Dev. 9 (2003), available at http://media.wiley. com/product_data/excerpt/74/07879722/0787972274.pdf. 48 Boston College Third World Law Journal [Vol. 27:45 local control.7 This is underscored by the fact that each of the seven arti- cles and twenty-seven amendments of the U.S. Constitution is silent as to any aspect of education. The silence of the founding fathers on the education issue has led some to conclude that the consequent intent was for all matters of public instruction to be legislated locally.8 However, just as the pre- sent-day Congress has increasingly crept into the area of local educa- tional policy through the No Child Left Behind Act (NCLB), so too did the early Congress begin the process of shaping the look of public education with the passage of the Northwest Ordinance of 1785.9 Un- fortunately, this zeal for education policy did not result in a speciªc provision in the U.S. Constitution, which was ratiªed only four years later. Nevertheless, the passage of the Ordinance suggests that the fed- eral legislature contemplated by our founding fathers was properly empowered and obligated to guide matters of public instruction when the need for appropriate direction and uniformity arose. If it is proper for the federal government to act more decisively in matters of public instruction—and if it chooses to do so—it becomes that much more necessary for the federal government to codify a public purpose of education. Without codiªcation, education will re- main subject to political whimsy. Even the President of the Educa- tional Testing Service, discussing current investment in public educa- tion, has asserted that “[w]e must de-politicize the political discussion in education, because it is about the future of our society and we are failing large cohorts of our children.”10 The idea of establishing a joint federal and state public purpose of education is not entirely new either. As recently as 1989, at the di- rective of President George H.W. Bush, the governors of several states, led by then Arkansas Governor Bill Clinton, convened to address the manner in which the nation could set goals and quantiªable stan- dards to improve the quality of education in the United States.11 The following six National Education Goals were created: 7 See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 481 (1982) (quoting Milliken v. Bradley, 418 U.S. 726, 741–42 (1974)). 8 See id. 9 William O. Swan, The Northwest Ordinances, So-Called, and Confusion, 5 Hist. of Educ. Q. 235, 235 (1965). In the Ordinance, the early federal government provided for the sur- vey and reservation in each township of a lot at coordinate N16° to be used for the pur- pose of a public school. Id. 10 Landgraf, supra note 3. 11 Beverly B. Swanson, An Overview of the Six National Education Goals, Eric Digs.org, May, 1991, http://www.ericdigests.org/pre-9220/six.htm. 2007] Codifying the Public Purpose of Education 49 • All children in America will start school ready to learn • The high school graduation rate will increase to at least ninety percent • American students will leave grades four, eight, and twelve having demonstrated competency in challenging subject matter • U.S. students will be ªrst in the world in science and mathematics achievement • Every adult American will be literate and will possess the knowl- edge and skills necessary to compete in a global economy • Every school in America will be free of drugs and violence12 Unfortunately, though the completion deadline for these six goals was the year 2000,13 none have yet to be satisªed. Yet these goals remain just as applicable today as they were nearly two decades ago. To avoid watching the hope for a clear and uniform public purpose of education fade, that public purpose must be codiªed into law to survive beyond the promising words of press conferences and television coverage. That deªned purpose of education should be beyond a simple statement, and it should have the strength of legal ac- countability and the force of law through the interpretation of the courts. If such a public purpose of education were codiªed, it would remain the constant sifter used in policy discussions, board of educa- tion meetings, and classrooms when evaluating the course and speed of education reform. 2. The Legislative Challenge A remarkable challenge exists when trying to pass a bill at the fed- eral or state level, especially when the bill simply states a deªnition. As indicated by long time federal government relations ofªcial, Anna Davis, most bills are composed of programmatic, ªnding, and deªni- tion sections.14 With no associated program to authorize or appropriate and no ªndings to detail, a bill for codiªcation would simply state a feeling of Congress. This type of measure is usually the province of a non-binding resolution.15 Such resolutions are often passed by general consent, without comment from the other house of Congress or legally binding signiªcance other than the persuasive power of being recorded 12 Id. 13 Id. 14 Interview with Anna Davis, Executive Dir. for Fed. Gov’t Relations, Nat’l Bd. for Prof’l Teaching Standards, in Arlington, Va. (July 7, 2006) [hereinafter Davis Interview]. 15 Id. 50 Boston College Third World Law Journal [Vol. 27:45 in the annals of the federal legislature.16 The weak character of this form of legislation would leave it to the same fate as the six National Education Goals championed nearly two decades ago. Davis feels the most effective legislation has some means of quan- tiªcation.17 Yet, a bill codifying the public purpose of education would not have any readily quantiªable elements, as the public purpose sur- passes the scope of common education quantiªcation tools. Further- more, there is no simple funding formula that can be implemented to ensure the public purpose is met for every child. As a consequence, a united audience on this measure may begin to fracture. Also, though many legislators could agree in principal with such an organic act, they may be inclined to vote against it because of its potential to later limit the viability of their own proposed educational reform pro- grams.18 In the end, a bill codifying a public purpose of education in Congress stands the same chances of succeeding as any other bill and would be subject to the same political winds. Yet, perhaps the strong- est protection against these political winds is the growing national sentiment to better focus the education reform movement. In addi- tion, the great strength of a public purpose codiªcation bill is that it would illustrate the inspirational purpose for education shared by a vocal majority of citizens. However, the matter of codifying a public purpose of education is also a matter for the states. In many ways, if the public purpose of education is codiªed solely as an act of the federal government, it may only have the effect of the widely criticized NCLB.19 16 Id. 17 Id. However, Davis concedes that numerous factors often play a role in speeding the passage of a bill into law. Id. Having served with the Federal Trade Commission, Davis readily recalled that other than the authorization to enter World War II, the fastest bill ever passed by Congress was the establishment of the Do Not Call Registry. Id. Other than the impending 2004 election, the bill was able to pass swiftly with minimal dissent because the majority of Congress had personal knowledge of the matter. See id.; see also Press Re- lease, Ofªce of the Press Sec’y, President Signs Do Not Call Registry (Sept. 29, 2003), available at http://www.whitehouse.gov/news/releases/2003/09/20030929-10.html [here- inafter Do Not Call Registry]. As evidenced by the 50 million telephone numbers entered in the registry within the ªrst three months of its existence, the bill also enjoyed the sup- port of many Americans. See Do Not Call Registry, supra. 18 See Davis Interview, supra note 14. 19 Paul E. Robertson & Martin R. West, Is Your Child’s School Effective? Don’t Rely on NCLB to Tell You, 4 Educ. Next 76, 77 (2006), available at http://media.hoover.org/ documents/ednext20064_76.pdf. A recent study conducted by Paul E. Peterson of Har- vard University and Martin R. West of Brown University cites the major problem of NCLB as being the manner in which it characterizes schools by simply dividing them into two categories: those that are making adequate yearly progress (AYP) and those that are not. 2007] Codifying the Public Purpose of Education 51 B. State Governments and a Public Purpose of Education 1. The Interplay of State Constitutions and Courts Codifying a public purpose of education is not a foreign concept for all states. Illinois and Louisiana have each created a state goal of educa- tion in enumerated articles of their respective constitutions. Much like the public purpose proposed later in this article, Louisiana’s goal of edu- cation is to establish educational learning environments that provide equal access to all children wherein the opportunity is present for each child to develop to their fullest potential.20 Illinois’s constitution takes this concept a step further, and declares that the public purpose of edu- cation is for all the state’s children to learn to the fullest capacity and that the right to such an education is fundamental to the state’s citizenry.21 Such a strong statement of purpose could easily be construed to create a right for all children to receive a superior education. Unfortunately, Illinois courts have yet to go that far, but instead have found that “education [is] not a fundamental right for equal protection purposes under the United States Constitution, and . . . Id. This rudimentary differentiation between schools attaining and failing to meet federal benchmarks does not provide a satisfactory measure for assessing quality, nor does it indi- cate the exact contrast of achievement between these schools. See id. at 76. The authors conclude that the system of measuring school achievement in use by the Florida Depart- ment of Education provides much more valuable information than NCLB. See id. at 76–77. The program, known as the “A+ Plan for Education,” established a ªve category grading system (“A” through “F”) that, unlike NCLB standards, takes into account how much spe- ciªc students have learned in a given year and offers a more precise indication of the stan- dard deviation between schools performing well and those that are not. See id. at 78–79. As a consequence there exists a confusing and vast contrast between federal and state ªndings regarding school performance in the state. Id. at 79. This was evident in 2004 when nearly seventy-ªve percent of the state’s 2649 schools did not make federal AYP. Id. at 79. Yet, of this same group of schools the state deemed more than half deserving of the highest achievement mark under the A+ Plan for Education. See id. at 76, ªg.1; see also Hoover Inst., NCLB Does Poor Job of Distinguishing Good Schools from Ineffective Ones (Sept. 28, 2006), http://www.hoover.org/pubaffairs/releases/4269286.html. The questionable nature of NCLB’s effectiveness in determining student and school performance was echoed in re- sponses given to the 38th Annual Phi Delta Kappa/Gallup Poll of the Public’s Attitudes Toward the Public Schools. See Lowell C. Rose & Alec M. Gallup, The 38th Annual Phi Delta Kappa/Gallup Poll of the Public’s Attitudes Toward the Public Schools (Sept. 2006), http://www.pdkintl.org/kappan/k0409pol.htm. The poll, pub- lished in September 2006, found that sixty-nine percent of the respondents felt that the use of a single test as NCLB requires cannot provide a fair picture of whether or not a school needs improvement. Id. Over forty percent of respondents put the blame of failing schools on the NCLB law itself. Id. 20 La. Const. art. VIII, pmbl. 21 Ill. Const. art. X, § 1. 52 Boston College Third World Law Journal [Vol. 27:45 [is] not subject to strict scrutiny.”22 Rather, the court concluded that the appropriate standard of review was the rational basis test.23 Never- theless, the court’s current interpretation should not discourage any codiªcation efforts. Indeed, the fact that the court would even con- sider the argument of education to be a fundamental right indicates the power of enshrining the public purpose in a state constitution.24 Until the Illinois court’s relatively recent decision, the state constitu- tion’s stated goal provided a clear and reasonable expectation for all Illinois residents as to the goal of the state in educating their school- aged children.25 Thus, it is necessary to codify the purpose in such a manner so that its positive effects would not be undone by subsequent statutes or court rulings as was the case in Illinois. Without question, this will be a difªcult task.26 In West Virginia, where the state legislature tepidly addressed the matter of public education in its constitution, the court held that the constitutionally required provision of a “thorough and efªcient system of free schools” was enough to vest education as a fundamental right for all West Virginians.27 This decision required that any denial of the right to such an education system be subjected to strict scrutiny.28 Therefore, the language used to codify the public purpose of educa- tion need not be full of legal jargon to have far-reaching effects. In- deed, it may only take the right set of judges to have the public pur- pose of education reach into the courtroom where it can properly calibrate the scales of justice to assist in the proper adjudication of education reform debates. Beyond speciªc language to be codiªed, another question regard- ing the codiªcation of the public purpose of education may be where in the state constitution should the public purpose be added. The impor- tance of location was illustrated in North Carolina, where education was declared a fundamental government function by the Supreme 22 Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1193–94 (Ill. 1996). 23 Id. 24 See id. 25 See Ill. Const. art X, § 1. 26 Some would argue that the actions of the Illinois court could easily be remedied if the public purpose of education stopped being merely a “goal” and instead presented clearer and quantiªable directives to the state. This approach would, in theory, stymie any avenue for the court to limit the creation of a state educational right vesting from a public educational purpose codiªed in a state constitution. Unfortunately, theories like these do not always bare-out. 27 W. Va. Const. art. XII, § 1; see Phillip Leon M. v. Greenbrier County Bd. of Educ., 484 S.E.2d 909, 913 (W. Va. 1996). 28 Phillip Leon M., 484 S.E.2d at 913. 2007] Codifying the Public Purpose of Education 53 Court of North Carolina.29 The justices recognized the signiªcance of education in the state and ruled as they did in part because education received its own speciªcally enumerated article in the state’s constitu- tion.30 2. State Legislatures and Codiªcation If citizens do not wish to try their luck at waiting for a sympathetic bench of judges, state legislatures must be urged to codify the public purpose of education in the declaration of rights articles common to all state constitutions. Similar in nature to our federal bill of rights, all ªfty states have a section echoing federal rights and detailing additional state rights for their citizens. The Declaration or Bill of Rights sections range from the seventeen rights outlined in the Minnesota Constitu- tion to the ªfty-seven rights written in the Constitution of Maryland.31 The rights articulated are, in large part, similar across the states. Freedom of speech, religion, and the press are universal. Many states have used their declaration of rights sections to grant rights not in- cluded in the U.S. Constitution.32 In fact, a recent and frequent spate of states passing similar constitutional amendments to declare rights that are important to them indicates that it is not improbable to have a national movement to codify the public purpose of education as a state right. Codifying the public purpose as a state constitutional right 29 See Rowan County Bd. of Educ. v. U.S. Gypsum Co., 418 S.E. 2d 648, 655 (N.C. 1992). 30 See id. 31 See infra Appendix. The chart located in the appendix is one compiled from my own independent research on the state constitutions. I will refer to this chart periodically throughout the rest of the article. 32 Florida, New Jersey, and North Dakota have granted additional rights on matters of employment. See Fla. Const. art. I, § 6.; N.J. Const. art. I, § 19; N.D. Const. art XI, § 24. Other states, such as Louisiana and Wisconsin, have added rights dealing with inherently local concerns including a right to ªsh, trap, and hunt. See, e.g., La. Const. art. I, § 27; Wis. Const. art I, § 26. Triumphantly, states have also added rights for their citizens which seek to better society through individual empowerment. This has been the impetus behind the adoption of the various Victim Rights Amendments passed by thirty-four states throughout the Midwest, Northeast, and South. See National Victims’ Constitutional Amendment Passage, State Victims Rights Amendments, http://www.nvcap.org/stvras.htm (last visited Nov. 18, 2006) (providing a color-coded map indicating which states have enacted victims’ rights amendments and allowing users to link to the text of their respective amendments). Sadly, state declarations of rights also have been used to divest the rights of citizens. Such was the probable motive for the eighteen states that have passed the Marriage Protection Amend- ments barring marriage or civil unions for countless citizens. See Eric Ervin, Arizona Rejects Anti-gay Marriage Amendment, Wash. Blade.com, Nov. 8, 2006, http://www.washblade.com/ 2006/11-8/news/national/amendments.cfm.