Christopher Edley, Jr.

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Beyond Civil Rights Exhaustion No-Fault
Regulation of K-12 Education

• Christopher Edley, Jr.
• Orrick Professor of Law Dean
• Co-Director, Chief Justice Warren Institute on
  Race, Ethnicity and Diversity
• January 14, 2008

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No Child Left Behind Where It Came From

• Background
• Horace Mann, the Common School, Dedham MA
• Brown v. Bd. (1954)
• Elementary and Secondary Education Act (1965)
• Novel state role
• San Antonio v. Rodriguez (1973) the fundamental
  right NO, but . . .
• IDEA
• State constitutional provisions New Yorks CFE
  litigation
• Wide-Scale Standards-Based School Reform A
  Nation At Risk (1983)
• Businesses mobilized cf. NDEA instrumentalism
• Connection to regulatory reform
• Staggering, persistent disparities a threat to .
  . .
• Political realignment?
• Clinton failures Gore failures
• The 2001 Bush-Kennedy-Miller coalition
• Stalled reauthorization in fall 2007

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No Child Left Behind Test-Driving a New
Strategy?

• The basic mechanism
• State-defined proficiency goals achieved by
  2014
• Measured by tests
• AYP Adequate yearly progress to get there
• Escalating interventions for schools that need
  improvement
• The Grand Bargain
• More money for better results (perhaps not enough
  of either)
• Some flexibility on strategy accompanied by
  outcome regulation

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Civil Rights ProvisionsBut With Huge Holes

• Targeting subgroup disparities
• Data disclosure
• Making it easy to fail AYP
• Targeting distribution of HQTs
• Soft safeguards against abusive testing
• High school completion goals

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No-Fault Regulation for Racial Justice Salient
Elements

• The predicate no intent needed
• The regulatory design
• Inputs, judged by --
• Equity
• Adequacy
• Outputs, judged by
• Achievement (Tests?)
• Attainment (graduation, college-going)
• Other?
• Levers/Tools remedial designs
• Agents/Objects
• Infrastructure issues
• public information and participation data RD
  human capital judicial review
• Complementarity to other strategies and tactics
  in civil rights and social justice

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Mend It, Dont End ItCivil Rights Priorities
for NCLB Reauthorization

• Defend subgroup accountability, including
  interventions
• Strengthen/support interventions, especially
  system failures
• Cf. What Works Clearinghouse
• Testing abuses
• Graduation rates
• HQET
• Professional development reform
• Intra-district resource equity in teachers, etc.
• Drop-Out Factories
• Growth models
• ELL reforms
• Special Ed referral rates and service equity?

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Conclusion