Law and Opportunities for Learning: Top Down and Bottom Up

1. Law and Opportunities for Learning: Top Down and Bottom Up PACE OTL Meeting Hewlett Foundation October 10, 2003 Gary Blasi UCLA Law School, Stanford Law School

2. Preliminary Perspective:Framing Educational Adequacy and Equity • Top-Down, Macro, Aggregate “System” Frame • Looks at schools and districts (and sometimes state) in the aggregate or as “system” • Evaluates primarily based on Δ in average measured performance • Bottom-Up, Micro, Individual, “Desktop” Frame • Looks at what is available to the individual student at the desktop and in the classroom • Evaluates primarily based on both Δ in individual measured performance and on hard to measure factors • Often viewed as alternatives • Neither, taken alone, entirely adequate

3. Top-Down, Macro, “System” Frame • Frame adopted by most policy advocates, lawyers, courts • Relies on information at school or district level (sometimes including subgroups) • Sees successful reform as systemic change, producing improvements in macro measures of performance • Based on implicit generalized diagnosis (usually one) of causes of problems, like: • Lack of funds • Lack of motivation on the part of teachers • Poor instructional technique • Prescriptions often includes unstated assumptions, like: • More funding will result in changes at classroom level • Homework policies (“Assume a textbook . . .”)

4. Bottom-Up, Micro, “Desktop” Frame • Frame adopted by most students and parents • Relies on information at the desktop and classroom level • Sees successful reform as improvements at the desktop • Tends to localize diagnosis at the classroom or school level: • Teachers • Principals • Often includes unstated assumptions, particularly regarding resources of local school to respond • Teacher has sufficient training and resources • Principal can choose among all available teachers

5. Framing Adequacy Reform • Similar “systems”/”desktop” alternatives, neither of which is complete • Adequacy for what? • Labor market • Citizenship and quality of life • Ability to compete for higher ed slots • Most talk about results (Rose, CFE, etc) • Most action about funding levels • Assumptions: • Money will reach classroom, and • Money in classroom will result in OTL and learning

6. Two “Turing Tests” and One “Rawlsian Veil” • Test in School or District Frame: • Post-reform, looking at all indicators of • Opportunities for learning (students), • Opportunities for teaching (teachers), and • Opportunities for leading (principals), • can we predict the ethnic or class composition of the student body in the school or district? (or, vice versa) • Test in Student or Desktop frame: • Post-reform, looking at all the indicators of opportunities for learning for the student behind the desk, can we predict the race or class of the student sitting at the desk? • Rawlsian • Post-reform, would you (the informed expert and parent with perfect information), be willing to have your child assigned to a randomly drawn school in the system, assuming distance is costless?

7. Law and OTL: Rights, Remedies and Reality • What the court held • What right was created • Who holds the right: • In theory • In practice • Conditions/assumptions under which rights make a difference at the classroom and desktop level

8. Plessy (U.S., 1896) • Holding: public facilities can be segregated so long as they are equal • (Implicit) Right: substantially equal public schools • Holder: students • Assumptions: • Segregated schools can be equal • Equal protection law will be enforced • Equal means equal • Note Cumming: Blacks don’t need high school

9. A Plessy-era fact still relevant • “[b]eginning in the 1890’s, southern states subverted the educational equality provision in their constitutions by reposing discretion over the allocation of school funds in local boards of education.” -- Klarman, The Plessy Era

10. Brown (U.S., 1954) • Holding: schools cannot be equal if they are segregated andeducation “must be made available to all on equal terms” (often forgotten) • Right: to attend a desegregated (and equal) school • Holder: students • Assumptions: • Law will be enforced • Whites will improve integrated schools to protect their own • Segregation will not be repeated within “desegregated” schools • Schools can be integrated within the jurisdiction (removed by Milliken, 1974)

11. Serrano (CA, 1971 & 1976) • Holding: Constitution requires equality in interdistrict funding per pupil, as to some funds (not extending to facilities, categorical, or extramural funds) • Rights and holders • In theory: student right to attend equally funded school • In practice: district right to spend equally (as to some funding streams, as to district average) • Assumptions: • Law will be enforced • All LEA’s equally efficient in converting money to OTL • No significant costs disparities across regions or student populations

12. Butt (CA, 1992) • Holdings: • Actual deviations from “basic educational equality” as to factors that have a “real and appreciable effect” on student learning are unconstitutional, notwithstanding equal interdistrict funding • State has a duty to intervene, notwithstanding history and legislative preference for local district control of schools • Rights, of parents and students: • 1. Right to substantially actual equality in OTL, as to factors empirically demonstrated (or conceded by State) to have a “real and appreciable” impact on student learning. • 2. Right to action by State (State has “duty to intervene”) to prevent inequality • Assumptions: • Parents and students (or someone) will monitor interdistrict disparities • Law will be enforced

13. Williams (CA, 2000 - ?) holdings thus far • Holdings (thus far): • State must operate some system of oversight that will “prevent, or discover and correct” unconstitutional inequalities in OTL. (11/00) • Claims alleging a duty of state to operate some system of oversight that will “prevent, or discover and correct” allegedly unconstitutional inadequacies in OTL are not decidable in this case. (7/03) • Rights, of parents and students: • To sufficient system of oversight to “prevent, or discover and correct” disparities in actual OTL (not just funding). • Assumptions: • State (and public knowledge) of significant disparities will lead to actual reductions in inequality (by state action or subsequent court order) • Monitoring of (at least) “foundational” OTL indicators is not impossible • Further issues raised by Williams 

14. What Alondra Jones Learned (Per Schrag, The Final Test)And What We Can Learn from Her • Some Indicators of Opportunity Reported by Plaintiff Alondra Jones • No textbooks for homework • Strings of substitute teachers and no coherent curriculum in some classes • “Spanish” class with subs showing different movie each day • Amistad, but also Liar, Liar and Halloween (in English) • Labs with no equipment • Rooms without enough chairs or desks • Rats and mice, distracting to learning and communicating disrepect • Bathrooms too disgusting to use • Did she learn? • From a remarkable teacher who engaged her, • About inequality and not just the content per the standards • Lessons? • OTL doesn’t matter? • Alondra got into Berkeley, and is going to Howard. • For every Alondra Jones, there are 100 dropouts • Money isn’t everything? • SFUSD not the poorest district in the State • Nor is Balboa the worst school in SF, or California • Who was accountable to Alondra? Anyone ever ask her about her OTL?

15. Six Reasons Alondra’s School Might Be a “Success” (As Determined by API Changes) • The school is, in fact, quite successful, both for Alondra and for other students. •  Many of the lower scoring students who attended the school last year have "disappeared." • The school has within it "two schools," one of which is performing very well and another school which is performing very poorly, but averages nevertheless rise marginally. • The school was operating last year at a true efficiency rate (converting available resources to test-measured learning) of 20%. This year, with the introduction of Open Court and the elimination of all programs that do not contribute to increasing test scores (music, athletics, vocational education, etc.), the true efficiency rate is is 25%. • The school does an amazing job of taking students who bring very little in the way of human and social capital to school and maximizes their potential beyond all reasonable expectations. It did a slightly less good job last year, at least as reflected in test scores. • The school does an absolutely terrible job of educating students, regardless of what human and social capital they bring to school, and did an even worse job last year.

16. The False Opposition of Testing and OTL • The law (and common sense): • The state may not constitutionally condition, e.g., a high school diploma, on a passing a test unless students have been given reasonable access to the content tested (Debra P., 5th Cir., 1981) • Legal (and common sense) alternatives to ending the HSEE (and other high-stake tests): • Insure that students have reasonable OTL • Set even higher goals than, e.g., the HSEE

17. Other “opportunities” required to enable “desktop” OTL and high performance • Students: • Opportunities to Learn • Teachers: • Opportunities to Teach • OTL about effective teaching and learning • Principals: • Opportunities to Lead • OTL about effective leadership, management and learning • District Officials: • Opportunities to Lead and Manage • OTL about effective leadership, management, and learning • School Boards: • Opportunities to Lead, Manage and Spend • OTL about leadership, management, and learning • State Officials: • Opportunities to Learn, Plan, Tax and Spend

18. Indicators of Opportunity • Indicators <> Opportunities, but: • Real world requires best available indicators • Systems cannot assume exceptions are the norm • The temptation to outlier arguments: • The home-schooled novelist (NY Times) • The apprentice lawyer / law professor • Some indicators are more difficult than others • “Foundational” indicators in Williams not as difficult • As leadership, communities of practice, expectations • Critical need for • grounded, empirical research • on indicators for ALL the opportunities • for students, teachers, principals, …

19. Independent of Preference for Market, Centralized, Decentralized, or Mixed Systems That Might Rely on Indicators • No one can accurately assess performance out of context • Ironies of the simple “nothing matters” school: experts can’t figure out what matters to student achievement, but parents will somehow know • I must be a terrific teacher because my UCLA and Stanford law students are really good at what I teach them (and they will earn $140,000 next year) • Beyond measured performance and incentives • Indicators of OTL and other opportunities essential to rigorous development of best practices, and • Required to inform policy decisions with complete data rather than rhetoric and wishful thinking

20. Implementing OTL Measures • Multiple methods, e.g. • Survey teachers on CBEDS day • Survey students on test day • Sample surveys (1000 teachers/$80K) • Different methods for different variables • Risk Sensitivity • Allocate more expensive assessment to schools/districts at greatest risk • Efficiency • Spectre of centralized inspectorate notrequired for any purpose • Decentralized inspections • Restaurants by County Health Departments • Privatized inspections • New school construction by approved inspectors • Automobiles, airplanes by licensed inspectors