Affirmative Discrimination in Higher Education

by Roger Clegg
Notes on the continuing struggle

Racial and ethnic admission preferences will probably have to be pried from the cold, dead fingers of university officials, but the pressure to end this affirmative discrimination continues.

For starters, such preferences are unpopular with most Americans, and most Americans have a dog in this fight. I’ll cite just two recent polls, from somewhat surprising sources. A survey conducted last April by MTV of “millennials” aged 14 to 24 found that 90 percent “believed that everyone should be treated the same regardless of race” — and so, unsurprisingly, 88 percent opposed affirmative action. The Boston Globe in July discussed a survey that resoundingly confirms the view of Massachusetts as a very liberal state – with one notable exception. “Amid those liberal tendencies, though, was an outlier: a stark opposition to affirmative action. Just 24 percent agreed that qualified minorities should receive special preference in hiring and education, while 69 percent disagreed.”

Here’s hoping decision-makers will listen. They did in California, another blue venue: “California voters will not be asked this year to decide whether to roll back California’s ban on racial preferences in college admissions,” Assembly speaker John A. Perez announced this spring, according to the Sacramento Bee. The story notes, “The move came a week after three Asian-American state senators — who had previously supported putting the question to voters — asked Pérez to put a stop the measure.” That is, what doomed the measure was, in particular, opposition from Asian Americans.

Even among the intelligentsia, there is more and more call for schools to admit economically and socially disadvantaged students of all racial and ethnic backgrounds. Here are two thematically similar pieces appearing recently in two liberal bastions: from the New York Times, “If Affirmative Action Is Doomed, What Next?,” by David Leonhardt; and, from the Chronicle of Higher Education, “What Sotomayor Gets Wrong about Affirmative Action,” by Richard D. Kahlenberg. Both talk about income/locale-based alternatives to racial preferences in university admissions, since both believe that such preferences are dying, and both discuss two new works on the alternatives, Place Not Race, by Sheryll Cashin, and a chapter in The Future of Affirmative Action by Anthony Carnevale, Stephen J. Rose, and Jeff Strohl.

Sometimes the support given for ending racial preferences is not only unlikely but inadvertent. Janet Napolitano, now head of the University of California system, wrote a Washington Post op-ed this spring that was illogical and dishonest in predictable ways – mischaracterizing the state’s ban on racial preferences, ignoring the costs of such discrimination and overstating the benefits, etc. — but she grudgingly admitted that the “educational benefits” of “diversity” can be achieved without racial discrimination. So her complaining actually amounts to an admission that other schools in other states are required to forgo racial and ethnic discrimination, too — since the Supreme Court has made clear that they can engage in such discrimination only if there is no alternative way to achieve diversity.

Likewise, Columbia University president Lee Bollinger’s recent defense of racial preferences made clear that the principal reason he favors them is based not on the “diversity” rationale but on a remedial rationale long rejected by the Supreme Court.

And sometimes the case is made forthrightly: A particularly comprehensive critique of affirmative action in university admissions was recently published by Peter Schuck in National Affairs

Napolitano’s op-ed was prompted by the Supreme Court’s decision on April 22 in Schuette v. BAMN. There the Court upheld the constitutionality of the ballot initiative passed in 2006 by voters in Michigan to ban, among other kinds of affirmative action, the use of racial and ethnic admission preferences at its public universities. The initiative was prompted by the Court’s 2003 decision that had allowed (but of course not required) the use of such preferences at the University of Michigan.

The Schuette decision opens the door for other states to end the use of racial preferences in university admissions. The list of states that either do not use or at some point in recent years have not used such preferences is long and growing: Michigan, California, Washington, Nebraska, Arizona, Oklahoma, Florida, Texas, Georgia, Iowa, and New Hampshire. States in which bans in recent years have been actively considered include Utah, Missouri, Virginia, Ohio, and even Wisconsin.

There is a role for the national legislature, too, if only it would play it. The fiftieth anniversary of the 1964 Civil Rights Act would be a good time for Congress to clarify what the Supreme Court ignored in the Bakke case, namely that the act prohibits the use of racial preferences in admissions to federally funded universities. At a minimum, it should include in the reauthorization of the Higher Education Act a requirement that federally funded schools (i.e., all American colleges and universities except Hillsdale and Grove City) report publicly whether they use such preferences and, if so, how they meet the legal requirements put on them by the Supreme Court.

In all likelihood, however, the federal action will remain in the courts. And that brings us, of course, to the continuing saga of Fisher v. University of Texas.

In June 2013, the Supreme Court overturned a Fifth Circuit decision upholding the University of Texas’s use of racial and ethnic admission preferences, sending the case back because the lower court’s scrutiny of the discrimination had been insufficiently strict. This summer, alas, a divided Fifth Circuit panel on remand again upheld the university’s discriminatory admissions policy (here are the judges’ opinions), and a request for the full circuit to rehear the case has been filed and is now awaiting decision.

The panel’s majority opinion says that it is all right to engage in racial discrimination in order to achieve the educational benefits that purportedly accrue from having a critical mass of this or that racial group. Yet the precise nature of the “educational benefits” at the University of Texas is never defined, nor is the term “critical mass.” And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy’s 2013 opinion for the Supreme Court demanded in this case — that, specifically, there are no race-neutral ways of achieving the relevant educational benefits — when these terms are undefined? As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger – the 2003 decision in which the Court upheld the use of racial preferences — is not working very well.

So it’s good that the legal team that is litigating the Fisher case is looking for other lawsuits to bring, and is targeting in particular Harvard, the University of Wisconsin, and the University of North Carolina–Chapel Hill.

Likewise, the Center for Individual Rights has filed a lawsuit in Connecticut on behalf of Pamela Swanigan, a graduate student in English at the University of Connecticut. The suit alleges that Ms. Swanigan was not allowed to compete for a highly prestigious merit-based scholarship despite being the top applicant the year she applied to UConn. Instead she was routed into a less prestigious and largely segregated scholarship program intended to increase “diversity” (Ms. Swanigan is biracial). As a result, she was deprived of the opportunity to compete for an academic award that would have benefited her career; what’s more, the diversity scholarship did not provide funds for off-campus dissertation work, an option that Ms. Swanigan wanted and thought she was getting.

I’m not at all convinced that there is a “compelling” interest in considering race for admissions into an English graduate program, even under the Court’s misguided precedents, let alone that the racially discriminatory award of scholarships is “narrowly tailored” to whatever that interest might be.

But here’s the fundamental question in this whole area: Just what do we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling “educational benefits” that racial discrimination is justified to make it perhaps more likely that these random conversations take place? The purported existence of such conversations — which is what the “diversity” argument boils down to – is the only justification for admission preferences that the University of Texas, or any other university, is using or can use.

Any such benefits are flimsy, debatable, and marginal, while the costs are heavy, indisputable, and numerous, as I discuss here. Among those heavy costs is, for example, the mismatch effect – the presence of which is increasingly well documented, and which harms, in particular, the African-American and Latino students who are supposed to be the beneficiaries of this discrimination.

One last thing: As legally dubious as the use of racial and ethnic preferences is by universities in student admissions, they are even more indefensible in faculty hiring and promotion.

— Roger Clegg is president and general counsel of the Center for Equal Opportunity.

Teaching Reform

by Frederick M. Hess
From the October 20, 2014, issue of NR

Those who fear that the big problem with America’s schools is the teachers who work in them would be heartened by spending a little time at an Educators 4 Excellence (E4E) conclave. Sydney Morris and Evan Stone launched Educators 4 Excellence in 2010 to push unions and schools to get serious about recognizing excellence and addressing mediocrity. The idea of E4E germinated during their hour-long commute on the 4 train from New York’s East Village up to their elementary school in the North Bronx, when they had plenty of time to share their frustrations. Says Morris, “In room 402, I could close the door and focus on my students. In that room, I had lots of responsibility, autonomy, and control. Yet beyond those four walls, I had little say in any decision that affected my students or me as a professional.”

Morris and Stone launched E4E after learning that, in the United Federation of Teachers’ 2010 leadership election, 65 percent of the votes were cast by retirees or non-classroom personnel. Morris marvels, “Classroom teachers were actually a minority of the folks who voted in that election!” Together with a dozen colleagues, Morris and Stone penned a declaration of beliefs that became the foundation of E4E. Stone says, “We had a bunch of teachers from seven or eight schools, some new and some with a decade or more of experience, but we all had the same frustrations: a lack of meaningful feedback, of tools and supports, of aspirational career pathways. The goal was to lay out our visions and beliefs and see if other teachers felt the same way.”

Teaching has long suffered occasional bouts of enthusiasm for “new unionism,” which promises to end industrial-era conventions in favor of a performance-oriented culture. Such talk has consistently come up empty because of entrenched union resistance, adverse conditions, and a lack of organizational muscle. But we may be in the midst of a more significant shift, as a generation of teacher-reformers seeks to take advantage of changes that give them a fighting chance.

The teachers’ unions face some daunting challenges. Financial headwinds have caused decades of persistent spending growth in schooling to give way to choppier waters, pitting young teachers against old on issues such as layoffs and pensions. Successful GOP efforts to narrow the scope of collective bargaining in states such as Wisconsin and Indiana have cost unions members and threatened their clout. Reformers fighting to curtail tenure protections and to get serious about teacher evaluation are visible across the land. And, for the first time in memory, these trends have caused the mighty 3 million–member National Education Association to suffer substantial membership losses. Unions are struggling to regain their footing and just may be forced to evolve.

Today’s teacher-reformers may be fresh-faced, but they’re also passionate, tech-enabled, and backed by big philanthropy and professional operatives. They’re fighting for an outsider’s reform agenda with an insider’s credibility and savvy. E4E’s declaration calls for the kind of tough-minded reform that teachers are often thought to oppose. It calls for a system that uses “an evenhanded performance-based pay structure to reward excellent teachers.” It calls for eliminating “last in, first out” layoffs and ensuring that tenure is a “significant professional milestone.” And it advocates “plac[ing] student achievement first” when making decisions about schooling or spending.

Stone says that advocating these beliefs hasn’t been easy. There have been plenty of petty attacks and cheap shots. “But,” he says, “we kept growing because we offered like-minded teachers camaraderie and a safe space for solutions-oriented dialogue. It wasn’t one teacher standing up, but many standing together.” Today, E4E encompasses more than 15,000 teachers in locales including New York City, Los Angeles, Chicago, Connecticut, and Minnesota.

Meanwhile, the union diehards may not be as strong as is commonly assumed. Teach for America co-CEO Matt Kramer observes that TFA alumni (who include both Morris and Stone) have long shown little interest in pursuing union leadership. More recently, he says, “we’ve started to see promising stories of TFA members and alumni getting involved. . . . When our people get involved, they see the ways they can make a difference, they step up, and we’re seeing changes. The unions have been held captive by a fringe element. But that’s changing in some places.”

Celine Coggins launched the Boston-based Teach Plus in 2009 because, she says, “at the time, when we talked about performance-based pay or teacher leadership, union leaders could say, ‘Teachers don’t want that,’ as if teachers were monolithic. And no one could really challenge or question them when they said that. I thought it’d make sense to bring teachers together, especially younger teachers, and see what they said.”

Drawing on her experience in both the classroom and the Massachusetts department of education, Coggins says, “When teachers think about unions and city councils, most of them think those are a waste of time and that it’s all just talk. Connecting the dots helps them get over that.” Teach Plus has put forward teacher-inspired plans for merit pay, performance-based evaluation, and tenure reform that have influenced policy in a number of cities and states. Today, there are more than 17,000 Teach Plus members in cities such as Boston, Los Angeles, Chicago, Memphis, D.C., and Indianapolis.

E4E and Teach Plus aren’t alone. Other ventures include New Orleans–based Leading Educators, Chicago-based VIVA Teachers, Gates Foundation–sponsored ECET2, and the reinvigorated National Network of State Teachers of the Year. Much of this activity has been turbocharged by a generation of energetic TFA corps members.

It can be easier than onlookers expect for these reformers to win over the silent majority of teachers and change the direction of their unions. After all, teachers know better than anyone that they suffer for the incompetents in their midst. The journal Education Next reported in 2014 that teachers believe 5 percent of those teaching in their local school systems deserve an “F” and another 8 percent a “D.” The independent think tank Education Sector has found that 75 percent of teachers want their union to make it simpler to remove ineffective teachers, and a survey by Scholastic and the Bill and Melinda Gates Foundation found that 89 percent believe tenure should reflect teacher effectiveness.

Mike Stryer started teaching high-school social studies in Los Angeles after nearly two decades in international business. Elected a building representative to the United Teachers of Los Angeles (UTLA), Stryer walked into his first union meeting and noted that the topic of discussion was not L.A.’s “35 percent dropout rate” but “the condition of Bolivian tin miners.” He says, “It made me realize why a lot of teachers are completely turned off by the union. It didn’t represent classroom realities, the needs of teachers, or the needs of students.”

In response, Stryer helped launch NewTLA. Stryer and his allies elected 75 teachers to the 300-member UTLA assembly. Stryer laughs, “I was called everything under the sun. Folks were saying, ‘You have a hidden agenda, you’re a privatizer.’ Just the other week, I was called a ‘Kool-Aid-drinking Nazi propagandist.’” The same group then pushed the UTLA to fight for teacher evaluations that would be based in part on student achievement.

Anticipating a fight, Stryer “studied the contract and the bylaws. It turns out we could bypass the leadership and take a referendum directly to the members if we got 500 members to sign a petition. The result couldn’t be overturned. Few people even knew you could do that. But we gathered the signatures and got it approved with 56 percent support. That made it the ‘official policy’ of the UTLA.” His success provided a model for a group of Boston Teachers Union members to form a group named BTU Votes and successfully fight to open up their union elections.

Stryer says, “Money could have helped, but it wasn’t necessary. This was all social media and word of mouth. It really only takes a few people. We were able to do this in Los Angeles with a core group of five!”

It’s easy for politicians and reformers to paint with too broad a brush. When it comes to teachers and unions, the usual formulation has been, “Teachers’ unions are awful, but we love our teachers.” This line has proven as ineffective as it is incoherent. For one thing, as Stanford University political scientist Terry Moe has shown, teachers’ unions generally reflect the preferences of their members. For another, attacks on tenure make clear that reformers think there are plenty of teachers who don’t deserve to be loved.

At a time when tens of thousands of reform-minded teachers have organized a vanguard, reformers would do well to paint teachers and unions with a finer brush. Rather than disparage unions or offer insincere laurels to all teachers, reformers should stand foursquare behind teachers who are fighting for professional responsibility. 

Twenty-first-century school reform, from Bush’s No Child Left Behind to Obama’s Race to the Top, has suffered for its fascination with grand national solutions. Efforts by today’s teachers reveal a more Tocquevillian impulse. Theirs is the activism of shopkeepers stripping off their aprons and working to set things right. Such an effort is altogether admirable. These teachers bring to the reform cause not only hard-won credibility, but also a practical appreciation of consequences and daily realities that can elude impassioned advocates who talk while others do.

– Frederick M. Hess is the director of education-policy studies at the American Enterprise Institute and the author of the forthcoming book The Cage-Busting Teacher. This article originally appeared in the October 20, 2014 issue of National Review.



Arne Duncan’s Office of Civil Rights: Six Years Of Meddling

by Michael J. Petrilli
The Obama Department of Education blocks opportunity in the name of civil rights.

At his confirmation hearing in 2009, Senator Lamar Alexander famously told Arne Duncan that “President-elect Obama has made several distinguished cabinet appointments, but in my view of it all, I think you are the best.” Duncan had already made statements indicating a willingness to embrace charter schools and break with the unions over teacher evaluations – sentiments not typically expressed by Democratic secretaries of education. And on many issues, Secretary Duncan has not disappointed, regularly pushing a pro-education reform line, especially via his bully pulpit.

Most intriguing about Secretary Duncan — from my perspective at least — was his early embrace of the theory of “tight-loose” federalism. As he put it in 2012,“the federal government should be tight on goals,” but state and local leaders should decide how to attain them. “Local leaders, not us, know their children and communities best — to try to micromanage 100,000 schools from Washington would be the height of arrogance,” he said.

Indeed it would be. But trying to micromanage 100,000 schools from Washington is precisely what Duncan has been doing.

In fact, Duncan’s greatest failure — on par with politicizing the Common Core and trying to kill D.C.’s school voucher program — has been his unwillingness to follow through on the “loose” part of his “tight-loose” promise. It feels like there’s been no problem too big or too small for his Department of Education to tackle. This is particularly the case for his Office of Civil Rights (OCR), which has been a prime example of executive overreach and federal interference run amok for almost six years now.

Its actions haven’t just trampled all over federalism and the Tenth Amendment, though they have. They have also made it tougher for local educators and officials to do their jobs well.

The War on School Discipline
This conflict started in earnest in 2010, when Duncan gave a big speech at the Edmund Pettus Bridge in Selma, Ala., to mark the 45th anniversary of Bloody Sunday. He and his assistant secretary for civil rights, Russlynn Ali, promised to use “disparate-impact theory” to investigate schools that were disproportionately disciplining minority children or weren’t ensuring equal access to advanced courses. Furthermore, Ali promised to “issue 17 guidance letters that will touch on issues such as how districts should address sexual violence in schools, how nurses should be trained to address students’ food allergies or work with students who have diabetes, and how schools should address the needs of ELLs who are gifted or have disabilities.” No micromanagement there!

These were not empty threats. In January of 2014, OCR, along with the Justice Department, rolled out a “Dear Colleague” letter that is certain to have a chilling effect on the use of appropriate school-discipline measures.

The key part of the administration’s policy states,

The administration of student discipline can result in unlawful discrimination based on race in two ways: first, if a student is subjected to different treatment based on the student’s race, and second, if a policy is neutral on its face — meaning that the policy itself does not mention race — and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.

As eminent legal scholar Richard Epstein explains in a recent Education Next article,

Much of the analysis turns on the word “unjustified.” Disproportionate rates should not be regarded as unjustified merely because they reflect higher rates of improper behavior by minority students than by white students. But this point is never explicitly acknowledged in the ED and DOJ guidance.

This is the heart of the matter. What if African-American and Latino students actually misbehave at higher rates than do white and Asian students? If that’s the case, then race-neutral discipline policies, fairly applied, will result in a greater proportion of minority students receiving punishments. Yet the administration is saying that educators whose legitimate, even necessary, actions produce that result can still be charged with discrimination. Epstein rightly asks,

Just what sanction should apply to a school where discipline is imposed on a color-blind standard yet has statistically imperfect outcomes? Should some white students be summarily suspended, expelled, or otherwise sanctioned to make the numbers come out correctly? Or should schools give a pass to black students who have committed serious offenses in order to achieve the same ends?

Lamentably, it cannot surprise us if minority students today misbehave at “disproportionate” rates. African-American and Latino children in America are much more likely to face challenges that put them “at risk” for antisocial behavior. They are more likely to be poor (and much more likely to be extremely poor); more likely to grow up in a single-parent family (nearly always headed by a mother, which is especially problematic for boys growing up); much more likely to have a parent in prison; and much more likely to live in neighborhoods where poverty is concentrated. Civil-rights enforcers should, at minimum, consider these “background variables.” Yet the administration’s policy looks at race alone. 

A Right to Advanced Placement?
Another obsession of Duncan’s OCR has been getting more poor and minority students into advanced courses, such as the College Board’s AP classes. On its face this is a laudable goal, and reform-minded districts (and charter schools) have made much progress in preparing disadvantaged students for the rigors of challenging coursework. But is this an appropriate realm for civil-rights enforcement?

If schools are forced by an OCR investigation to expand access to AP classes for poor and minority kids, what are the chances that they will also do all the complex work it takes (from kindergarten through 11th grade) to make sure those students are ready? To implement solid curricula, hire stronger teachers, provide extra help for struggling children? Isn’t it much more likely that bureaucrats will simply flood AP courses with unprepared students? We can all guess what the impact will be on the students who are ready for AP coursework, whose classes will be inundated by peers who haven’t mastered the prerequisite material.

Yet that’s precisely the chain of events set in motion by OCR’s latest (and breathtakingly audacious) “Dear Colleague” letter, this one focused on “unequal access to educational resources.” While asserting a federal right to equal spending (something the left has sought ever since its defeat in San Antonio v. Rodriguez), OCR claims (emphasis added),

Equal educational opportunity requires that all students, regardless of race, color, or national origin, have comparable access to the diverse range of courses, programs, and extracurricular activities offered in our Nation’s schools. Students who have access to, and enroll in, rigorous courses are more likely to go on to complete postsecondary education. Further, completing college or other postsecondary education such as a technical certification is increasingly necessary for students to enter careers that will enable them to join the middle class.

Therefore, OCR assesses the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school. OCR generally considers a range of specialized programs, such as early childhood programs including preschool and Head Start, Advanced Placement and International Baccalaureate courses, gifted and talented programs, career and technical education programs, language immersion programs, online and distance learning opportunities, performing and visual arts, athletics, and extracurricular activities such as college preparatory programs, clubs, and honor societies.

So if a district has two high schools — one serving mostly affluent white students, and another serving mostly poor and minority students — those schools had better offer a similar number of Advancement Placement courses, lest the OCR come knocking on their doors. Never mind everything we know about low-income children coming into school with all manner of disadvantages, all of which make them much less likely to be ready for AP-level courses by the 12th grade. Some will make it there, to be sure, thanks in part to great schools. But to expect equal numbers of rich and poor to be ready for advanced courses is to ignore reams of social science and to engage in wishful thinking.

Each of these examples has three things in common. First, they show a complete disregard for the notion that federal power is limited by our Constitution. Second, they illustrate an almost endless faith in federal bureaucrats’ ability to intervene effectively and positively in far-away places. And third, and most disturbingly, they consistently disadvantage the poor and minority children who deserve our greatest support: those who are already striving to be successful. Schools serving poor and minority students will respond to these dictates by turning a blind eye to discipline problems and by crowding advanced courses with unprepared students.

It’s a perversion of the notion of equal opportunity, and it’s wrong.

— Michael J. Petrilli is research fellow at the Hoover Institution and president of the Thomas B. Fordham Institute.

What’s Right about Common Core

by Robert Pondiscio
The beleaguered standards include education ideas conservatives have long championed.

I confess I’m somewhat bewildered by the passionate arguments over the Common Core State Standards. Getting in high dudgeon about K–12 learning standards, which say almost nothing about what kids do in school all day, makes no more sense to me than getting apoplectic about food-handling procedures, which I seldom think about when pushing my cart through the grocery store. In New York City, where I live, architects seem grimly determined of late to litter the skyline with strange new monstrosities, each a greater eyesore than the last. It had not occurred to me to blame Gotham’s building codes. 

I expect an argument when I assign my students Aristotle, Hobbes, Locke, Mill, and Hayek. But standards? They are dry, unlovely things.

But no matter. I come neither to praise nor bury the Common Core State Standards, now widely regarded as a “damaged brand” and a political piñata. But I do wish to point out that the standards enshrine several sound education ideas that have long been near and dear to conservatives. If Common Core disappears tomorrow, the considerable energy that has gone into fighting the standards ought to be redirected toward ensuring their survival. If not, conservatives may win a pyrrhic victory over standards, losing the bigger, longer war to improve America’s schools. 

Here are a few big ideas in Common Core worth preserving and promoting:

Reading to Learn
If you haven’t set foot in an elementary school in a few decades, you might be surprised and dismayed to see what reading instruction has become. Most of us over the age of 40 probably remember learning to read, then reading to learn — and little explicit reading instruction after third grade. Those days are long over. Reading instruction in America now mirrors adolescence. It never ends. Under the pressure of testing, English-language arts (ELA) dominates the school day.

There’s merit to the idea that if children struggle with it, they should spend more time reading. However, reading is not a “skill” like riding a bike that you can learn, practice, and transfer to any bike. It’s true that your ability to turn the letters on this page into words is a transferable skill; this explains why you can “read” made-up nonsense words like “plizzle” or “pagbo.” But making meaning from the written word is far more complicated. Reading comprehension largely depends on vocabulary and background knowledge — a common understanding of both the words and the context — shared between readers and writers. Pick up a newspaper story about a sport you don’t follow, for example, or try reading the instructions for installing an operating system on your computer (if you’re not a tech whiz) for a quick demonstration of the importance of background knowledge. You may find that you know all of the words, but still struggle to make sense of stories on subjects you don’t know a lot about. If reading comprehension feels like a skill to you, it’s because you know at least a little about a lot of things. Broad general knowledge of the world correlates with reading comprehension — the more you know, the more you take from reading. 

This is one of the primary reasons middle-class and affluent children are primed for reading success relative to their disadvantaged peers. Well-off kids are far more likely to bring to school the knowledge and verbal advantages that accrue from enrichment opportunities, educated parents, and a language-rich home environment — all of which pay big dividends in literacy.

The way most elementary schools teach reading has tended to ignore the symbiotic relationship between broad knowledge and broad reading ability. For years, teachers have been encouraged to teach comprehension as a collection of “reading strategies” to be applied to any text on any subject (like “predicting,” “visualizing,” or “finding the main idea”) as long as it’s at a child’s “just right” reading level.

By contrast, Common Core’s recognition that content matters — the more you know, the more you can read with understanding — is an important recognition of how reading comprehension actually works. It’s one of the reasons Common Core asks schools to spend more time with nonfiction texts. But with or without Common Core, overthrowing the content-agnostic, skills-and-strategies approach to reading instruction is long overdue.  And not just any nonfiction will do. Schooling needs to be coherent. 

Curriculum Matters
Nearly 30 years ago, an unlikely bestseller found its way on to the New York Times best-seller list and lingered there for six months. E. D. Hirsch Jr.’s Cultural Literacy came out at the height of the 1980s culture wars and was was fiercely championed by conservatives, starting with then–education secretary Bill Bennett. In the decades since, Hirsch has been indefatigable in arguing that progressive, “child-centered” education ideas do real harm to kids. If we want to ensure that every child can read and write competently, Hirsch argued, we have to ensure that schools impart a common body of knowledge in history, science, the arts, and other subjects. Hirsch founded the Core Knowledge Foundation, spawning a network of schools — public, private, and charter — dedicated to his curriculum. And where those schools weren’t available, homeschoolers have used his books to guide learning over countless kitchen tables.

But within the American education establishment, Hirsch’s arguments largely fell on deaf ears — until Common Core. To be clear, Common Core is not a curriculum, which is a defined and detailed course of study — lessons, assignments, books, and tests – in a given subject. But the authors make it clear the standards can’t be met without one. Indeed, perhaps the most important feature of Common Core is the most overlooked – its call for a knowledge-rich curriculum:

By reading texts in history/social studies, science, and other disciplines, students build a foundation of knowledge in these fields that will also give them the background to be better readers in all content areas. Students can only gain this foundation when the curriculum is intentionally and coherently structured to develop rich content knowledge within and across grades.

Hirsch was not involved in the writing of the Common Core Standards, but this brief passage is a tidy summary of his thought and insight. Indeed, the principal author of the Common Core Language Arts standards recently described Hirsch’s vision as “absolutely foundational” to the standards.

It’s hard to imagine a single education reform that would do more to improve the verbal proficiency of American children – especially low-income and minority kids – than for Hirsch’s call for a rich, coherent elementary and middle-school curriculum to take deep and permanent roots in American schools. It would be brutally ironic if our schools’ long-overdue core-knowledge moment – long devoutly wished by conservatives – was sacrificed on the altar of Common Core.

Show What You Know
There’s no nice way to say this. Writing in our schools is in appalling shape. The dominant “authentic” and “child-centered” instructional techniques championed by progressive educators haven’t helped much. Children as young as third grade are routinely asked to write about their personal experiences – even producing “memoirs.” The personal essay remains, alas, a staple of the college-admissions process, but it leaves students ill equipped for the demands of more-scholarly writing once they arrive on campus, much less for the kind of professional writing demanded by the real world.

Meanwhile, the old-fashioned book report is as dead as the dodo bird. Prior to Common Core, when children wrote about books they’d read, it was far more common to write a “personal response.” This can mean pages of inconsequential personal reflection only tangentially related to the book. This fashionable flavor of writing is intended to be engaging. If kids enjoy writing, the theory goes, they’ll write more. But too many teachers tend to be far more concerned with “voice” than with structure or grammar. At its worst, the “writer’s workshop” can feel more like group-therapy sessions than helping kids develop any particular set of skills.

Common Core focuses – some might say fetishizes – reading and writing for evidence. This doesn’t – or shouldn’t – mean that kids never write creatively or about topics they choose themselves. But there can be little doubt that the pendulum has swung too far in recent years in favor of personal expression. The very worst that one can say about this is that it’s an overdue market correction. This too deserves to survive, with or without Common Core.

There are other features of Common Core worth saving with or without the standards themselves. The standards reinforce the importance of phonics; it’s hard to see much support for discredited whole-language techniques.

And contrary to what critics claim, the math standards do not discourage memorization of math facts or the use of standard algorithms; in fact, they are much more traditional than most collections of state math standards that they replaced. Remember, there is no such thing as a Common Core “curriculum.” The daily parade of bizarre “Common Core” math problems and homework and reading assignments that litter social media is almost invariably a function of an individual school or teacher’s impressionistic interpretation, not the standards themselves.

But, again, no matter. Conservatives have valid reasons to object to Common Core’s rollout and overly warm federal embrace. But the overheated rhetoric around Common Core elides the fact that it incorporates several fundamentally sound and long overdue ideas that have gone missing from our schools for decades.

So throw out Common Core if you must. But be careful. Some of our babies are in that bathwater.

— Robert Pondiscio is senior fellow and vice president for external affairs at the Thomas B. Fordham Institute in Washington, D.C., and a senior adviser to Democracy Prep Public Schools.

Knowledge Makes a Comeback

by Sol Stern
From the October 20, 2014, issue of NR

I began writing about education 20 years ago, in part because of the disturbing instructional practices I was seeing at my children’s New York City elementary school. When my oldest son was accepted for the kindergarten class at P.S. 87 (despite living outside the catchment area) my wife and I celebrated our good luck. Also known as the William Tecumseh Sherman School, P.S. 87 was considered the crown jewel of Manhattan’s Upper West Side by the neighborhood’s liberal parents. It had just been named by Parents magazine as one of the ten best elementary schools — public or private — in the United States.

P.S. 87 proudly affirmed its progressive educational traditions, but I had no idea what that would mean for my kids’ education. The first thing I learned was that the school followed no common curriculum. Many of the teachers had been trained at Columbia University’s Teachers College or the Bank Street College of Education, where they were taught that they should “teach the child, not the text” and that all children were “natural learners.” Another pedagogical insight disseminated at these progressive ed schools was that the classroom teacher must be a “guide on the side” instead of a “sage on the stage.”

Thus my son’s third-grade teacher devoted months of classroom time to a unit on Japanese culture, with the children building a Japanese garden. When I asked my son what he had learned in math each day, he cheerfully answered, “We’re still building the Japanese garden.” My wife and I expressed our concern to the teacher about the apparent lack of math content. He told us not to worry; in building the garden with his classmates, my son was acquiring “real-life math skills.”

Nevertheless, we continued to worry, even more so when our son’s fourth-grade teacher assigned “real life” math-homework problems, including one in which he was asked to calculate how many Arawak Indians Christopher Columbus killed during his conquest of the island of Hispaniola.

As for history, P.S. 87’s children were taught almost nothing about the American Revolution or the Founding Fathers. I once asked my son and several of his friends whether they could tell me anything about the heroic Union commander their school was named after. They gave me blank stares. I realized that not only had the children not been taught anything about the historic figure who delivered the final blow against the slaveholders’ empire, but they knew almost nothing about any aspect of the Civil War. When I reported this to P.S. 87’s principal, he told me not to worry. Though he granted that it was important for children to learn about the Civil War, it was “more important to learn how to learn about the Civil War.”

I was now even more worried about my kids’ school. This led me to read E. D. Hirsch Jr.’s first two education books, Cultural Literacy and The Schools We Need and Why We Don’t Have Them. Without ever having stepped into P.S. 87, Hirsch critiqued the instructional approach that it and many other schools across the country were using. His books convinced me that the adults who worked in my kids’ school had abandoned common sense in favor of unproven progressive education fads that were causing harm, and not only to comparatively fortunate students but also, and especially, to poor minority children.

On the first page of Cultural Literacy, Hirsch summed up the appalling situation in the nation’s schools: The “unacceptable failure of our schools has occurred not because our teachers are inept but chiefly because they are compelled to teach a fragmented curriculum based on faulty education theories.” The problem was not that progressive educators (like P.S. 87’s principal) favored the wrong curriculum, but that they stood for no curriculum at all, rejecting the idea that there might be a set body of knowledge that all students should be expected to master. Citing romantic theories of child development going all the way back to Rousseau, the progressives assumed that with just a little help from teachers, children could acquire their own knowledge.

The most devastating consequence of this “anti-curriculum” doctrine was that it tended to widen rather than narrow the gap in intellectual capital between middle-class children and those from disadvantaged families. “Learning builds cumulatively on learning,” Hirsch wrote. “By encouraging an early education that is free of ‘unnatural’ bookish knowledge and of ‘inappropriate’ pressure to exert hard effort, [progressive education] virtually ensures that children from well-educated homes who happen to be primed with academically relevant background knowledge, which they bring with them to school, will learn faster than disadvantaged children who do not bring such knowledge with them and do not receive it at school.” Hirsch believed that the struggle he was leading to create a content-rich curriculum for all children was the “new civil rights frontier.” This was long before education reformers of the Left and the Right began using the civil-rights analogy.

During the two decades since my children left P.S. 87, I have written about many of the attempts that have been made to transform the system by making schools more competitive and accountable — including vouchers, charter schools, and curbing the power of teachers’ unions. I ultimately concluded that although such “market” reforms were sometimes useful, they were insufficient by themselves to bring about significant overall improvement in student achievement or to significantly narrow the racial achievement gap. The market reforms did not affect the classroom. Hirsch argued that any reform scheme must ultimately be judged by whether it produces better classroom instruction and a coherent curriculum: “The effort to develop a standard sequence of core knowledge is, to put it bluntly, absolutely essential to effective educational reform in the United States.”

Hirsch’s warnings about the absence of a curriculum based on a defined body of knowledge have been prophetic. While there have been some gains in American students’ math scores in the early grades in recent decades, reading performance has lagged far behind. Moreover, according to a recent report from the National Assessment of Educational Progress, “average reading and mathematics scores in 2012 for 17-year-olds were not significantly different from scores in the first assessment year [1971].” Improvements in the lower grades aren’t significant if they disappear in high school, or if students entering college or the work force — the end product of the public-school system — need remediation in reading and writing, as many now do. Meanwhile, the ed schools continue to miseducate future teachers into believing that reading can be taught as a set of skills, including phonics, while ignoring the broad content knowledge that all good readers must acquire.

It’s tempting to speculate about how different this alarming picture of American student achievement might have looked if more attention had been paid to Hirsch’s plea for a content-based curriculum. Until the unveiling of the Common Core State Standards in 2010, Hirsch and his supporters had encountered little success in convincing school districts that the key to improving student achievement was a coherent, grade-by-grade curriculum. Now, with the adoption of the standards, there is at least an opening to do just that.

There has been much legitimate criticism of the Common Core national-standards document that 43 states have now pledged to implement. But with the exception of Massachusetts’ 1993 Education Reform Act (which was also heavily influenced by E. D. Hirsch’s ideas), no state’s standards have ever explicitly called for a content-based curriculum. On that point, the Common Core is a major improvement.

You wouldn’t know it from the incessant complaints about the standards by conservatives, but the Common Core document includes a breakthrough declaration about revolutionizing classroom instruction that is perfectly consistent with traditional education principles:

While the Standards make reference to some particular forms of content, including mythology, foundational U.S. documents, and Shakespeare, they do not — indeed cannot — enumerate all or even most of the content that students should learn. The Standards must therefore be complemented by a well-developed, content-rich curriculum consistent with the expectations laid out in this document.

Many of the grade-specific standards in the Common Core also require students to engage with specific content and broaden their historical and cultural literacy. For example, students in ninth and tenth grades are asked to “analyze seminal U.S. documents of historical and literary significance (e.g., Washington’s Farewell Address, the Gettysburg Address, Roosevelt’s Four Freedoms speech, King’s ‘Letter from Birmingham Jail’), including how they address related themes and concepts.”

These and other passages about content knowledge in the standards are an acknowledgment by the Common Core writers that the evidence has vindicated E. D. Hirsch’s critique of progressive education, along with his call for restoration of a content-based, grade-by-grade curriculum.

After a quarter century of neglect by the education establishment, this is a redemptive moment for Hirsch. It’s also an opportunity for my son’s old elementary school, P.S. 87, to begin teaching a coherent curriculum, including the Civil War.

– Sol Stern is a senior fellow at the Manhattan Institute and a contributing editor of City Journal. This article originally appeared in the October 20, 2014 issue of National Review.

Schools: The New Social-Welfare Centers

by Julie Gunlock
Schools do everything from babysitting to providing summertime meals, and that’s not good for families.

There are many reasons that our country’s public-school system fails so many American kids. Unions protect incompetent teachers (and even defend convicted child molesters), and our location-based schooling system prevents the kind of competition that has spurred tremendous innovation in other sectors of the economy.

Yet here’s another less-discussed reason many schools are in bad shape: Today, schools are not so much educational institutions as they are child-welfare centers, offering an array of services that lie outside the core educational mission.

Babysitting Services
Among the more popular programs offered at schools are the before- and after-school babysitting programs. While some are privately managed and operated, many are run directly out of the school. And even when the federal government awards grants to a private company, the programs are usually located on school property, using school facilities and resources.

Before- and after-school programs begin as early as 6 a.m. and run until 6 or 6:30 p.m. That means some children will spend more than twelve hours at school — that’s a long day even for adults. While these programs are often very popular and well run, they are also a burden on schools.

Moreover, these programs continue the already pronounced trend of shifting child-care responsibilities from family, friends, and, most of all, parents to schools and government-sponsored programs. That creates new challenges for schools, which can no longer expect parents or a loved one to engage with kids after school, helping with homework and hearing about what’s happening in their classrooms and among their peers.

Schools and these after-school care programs command the lion’s share of kids’ time during the work week and therefore end up providing the bulk of their educational and emotional support. That’s a big job even for the most dedicated education professionals, whose time is inevitably divided among dozens of kids. Kids who spend less time and who get less support from parents need more from schools, and even good schools can struggle to deliver.

School Meal Programs
Unsurprisingly, when kids began spending so many of their waking hours at schools, schools began taking over the responsibility of providing meals to students. And officials also see school feeding initiatives as a way to expand their programs and power.

For example, when officials in Washington, D.C., announced that they would expand the school dinner program from 99 to 123 of the city’s public schools, they explained to the Washington Post that the expansion had three goals: “hedging against childhood hunger, reducing alarming rates of obesity, and drawing more students to after-school programs.” So one direct purpose of these efforts is to encourage more parents to make use of after-school care. At some point the public might wonder when enough is enough: To what extent should schools be encouraging parents to outsource oversight of their kids to government bureaucracies?

This official also noted to the Post that principals and teachers reported that “not only were many kids hungry for the last few hours of a long day, some of them weren’t eating much at home.” The Post reporter focused his story on the expanded school-lunch program but could have instead considered a more fundamental question of why parents are sending their kids to school for ten-plus hours without packing them a simple meal or at least a snack to hold them over until dinner.

Similarly, a 2012 USA Today story about summer meals programs explained that these programs offer “a safe location for children to eat lunch, and [a place to] get free food to take home to their families.” Yet the reporter seemed to miss the much bigger story: Why aren’t parents feeding their children during the summer months? Why do children have to go to their schools or to mobile feeding sites to get food for themselves and their families? Talk about burying the lede!

Sadly, feeding kids is less and less seen as the parents’ responsibility, as many school officials actively discourage parents from performing this simple task. The much-lauded Healthy and Hunger Free Kids Act of 2010 — the school-lunch reform bill pushed by the first lady — did just that when it created a mechanism for the automatic enrollment of poor kids in school meal programs. Parents no longer even had to take the step of signing their kids up for free or reduced-price meals. Instead, students who were already receiving welfare benefits were automatically added to the meal rolls. The bill authorized the USDA to award bonuses to states that expand their free-lunch rolls — thereby incentivizing states to increase enrollment in the programs.

In February 2014, the first lady announced yet another expansion of school feeding programs: All children who attend schools in which 40 percent or more of the students are eligible (not actually participating, but eligible) for free or reduced-price lunch will now be provided, at no cost to them, school-prepared meals. In other words, demonstrating financial need is no longer required to get a government handout. Instead, all parents are encouraged to let the state take over this core parental duty.

The first lady said that the expansion was a way to “reduce the stigma and paperwork for schools,” but it also came at a big cost: Study after study shows that parental involvement is key to helping kids eating right and maintain a healthy weight, yet government increasingly seeks to push parents out of the role of feeding their own kids.

And There’s More . . . 
Today, schools do an awful lot more than reading, writing, and arithmetic. From gardening programs to school-based clubs to condom handouts and sex education to those often-politicized environmental and recycling efforts, schools have become the hub for everything a child must learn and do. Some would argue that this is a good thing, because schools have become a gathering place for the community. But putting so many responsibilities in the hands of schools erodes it.

Consider school gardens, which have long been promoted as a solution to the problem of childhood obesity problem. The idea behind the enthusiasm for these gardens was that children would more eagerly consume healthy food if they knew where it came from. But as Caitlin Flannigan observed in The Atlantic, in a powerful essay entitled “Cultivating Failure”: “The suicidal dietary choices of so many poor people are the result of a problem, not the problem itself. The solution lies in an education that will propel students into a higher economic class, where they will live better and therefore eat better.”

In other words, rather than invest so much time on these outdoor fantasies, shouldn’t schools focus on improving children’s true educational outcomes? After all, it isn’t as though schools are doing such a bang-up job on their core responsibility that they’ve earned the right to take on more and more responsibility. In fact, our national test scores confirm that schools fail to teach a frightening portion of the next generation even the most basic skills. According to the 2013 National Assessment of Educational Progress, known as the “Nation’s Report Card,” only a third of eighth-grade schoolchildren attending public schools can read and do math at grade level. High-school students fared even worse — scoring an average of 153 out of 500, and only 288 in reading. In spite of these grim numbers, public schools spend, on average, more than $12,000 per child.

And It’s About to Start Even Earlier
The president’s fiscal-year 2015 budget includes a $75 billion Preschool and Early Head Start Child Care Initiative to create universal government-run child care for all three- and four-year-olds. Stressed parents might applaud the idea of getting more help with their preschoolers, but, once again, there are major costs to government taking over the duties of raising children.

When homeschooling became popular in the mid ’90s, critics often suggested that homeschooled kids would miss out on the socialization aspect of school. In response, many parents created private sports leagues, clubs, and other activities for homeschooled kids. Today, studies show that homeschoolers are thriving compared with their peers.

Parent involvement matters. When schools take the place of parents in many areas, as they are doing increasingly, it pulls focus from their primary job of educating kids. Even more alarmingly, it marginalizes parents.

— Julie Gunlock writes for the Independent Women’s Forum.

A Real Education Market

by Andrew P. Kelly
From the October 20, 2014, issue of NR

In mid June, the Department of Education put for-profit Corinthian Colleges out of business. Citing the company’s failure to respond to claims it had fudged job-placement data and falsified attendance records, the department placed a 21-day hold on any additional federal loan and grant money due the institution. Corinthian’s 107 colleges — serving 72,000 students under the Heald, Everest, and Wyotech brands — draw 83 percent of their revenue from federal sources, and the firm was already reeling from two years of declining enrollment and a dozen state-level investigations. Despite Corinthian’s $1.6 billion in revenues in 2013, the department’s hold left it without enough cash to pay the bills. In early July, the firm agreed to sell most of its campuses and close the rest.

The announcement sent a shock through the for-profit sector. The Obama administration’s bloodlust for such schools had put the industry on its heels since 2009. But before June, none of them had been effectively forced out of business by the government. Education Department officials themselves must have realized that they had overstepped, and feigned ignorance that the hold would be the final nail in Corinthian’s coffin.

Many conservatives were understandably outraged by the administration’s coup de grâce. The Wall Street Journal editorial page called it an “extraordinary violation of due process . . . akin to a judge issuing the death penalty while a case is in discovery.” Economist Richard Vedder called it an “ideological victory at the expense of many poor younger Americans.” A longtime Wells Fargo analyst of the sector called it a “chilling and aggressive new level of oversight.”

These critics are right to question the administration’s ideological campaign — more witch hunt than reform effort — against private enterprise in education. Still, it is also hard to ignore the incongruity here: Since when are conservatives the staunchest defenders of a company that takes nearly all of its revenue from taxpayers, let alone one that is known to charge substantial sums for a shoddy product? As of 2012, nearly 30 percent of Corinthian students defaulted on their federal loans within three years of entering repayment, and a 2013 investigation found that campuses had boosted job placement numbers by paying temp agencies $2,000 to hire their graduates for short stints.

Two things can be true simultaneously: First, the department’s execution of Corinthian was an ideologically motivated and inappropriate use of federal power. Second, any rational market would have driven many of Corinthian’s programs out of business long ago. Indeed, perhaps the most telling aspect of the Corinthian saga is that it takes unprecedented federal overreach to drive a poorly performing college out of business.

The bigger problem is that for every Corinthian College there are literally hundreds more — public, nonprofit, and for-profit alike — that fail students and taxpayers but operate just below the radar. Thousands more charge far too much for a mediocre product, saddling students with debt that outweighs the value of what they were taught.

It’s time to ask why we subsidize so much failure in American higher education, and what we can do about it. Our goal should be to change the incentives that allow colleges — and not just the for-profit ones, but all of them — to survive and even thrive regardless of whether they deliver anything of value.

From the outside, federal higher-education policy looks like a conservative Shangri-La: Aid is given out as a voucher, and students can choose any college they want, including private institutions. Private accreditation agencies are tasked with ensuring academic quality, keeping government regulators at arm’s length. Ideally, market forces should reward good colleges and force the bad ones out of business, with accreditation agencies setting minimal standards: a model of market-based social policy.

But this market has been less successful in reality. Colleges have capitalized on goodwill, federal largesse, and hands-off regulation by doing whatever they please. That has included charging ever-higher tuition to finance ever-larger campuses while paying little attention to how their students fare once they enroll.

Unfortunately, the students aren’t faring particularly well. Evidence suggests that college students spend ten fewer hours studying per week today than they did in the 1960s. When two researchers tracked student learning at four-year colleges, they found that more than one-third made no perceptible gains in critical thinking between their freshman and senior years.

Nationally, just over half of all students who start a degree or certificate program finish a credential within six years, and those with some college but no degree now earn about as much as their high-school-educated peers. While those who graduate are better off, they are often unprepared for the world of work. The New York Fed found that 44 percent of recent college graduates were working jobs that did not require a college diploma in 2012, a fraction that has been on the rise since 2000.

All of this failure costs a whole lot more than it used to. Tuition prices at public four-year colleges have nearly quadrupled since the early 1980s, and the federal government now hands out $170 billion a year in grants, loans, and tax credits. Students are borrowing more than ever to finance college, but earnings have not kept pace. The effective delinquency rate on student loans is now as high as it was on subprime mortgages at the height of the housing crisi

If you ask progressives, many will tell you that for-profits are to blame for these troubling trends. For instance, in a recent New York Times op-ed, Cornell professor Suzanne Mettler argued that “tougher regulations of the for-profits, long overdue, are the quickest way to help the poorest Americans who seek college degrees.”

But the notion that problems are limited to a particular tax status — and one covering schools that enroll only about 12 percent of higher-ed students — is nonsense. According to the latest federal data, borrowers from 488 of the colleges eligible for federal student aid had three-year default rates of 25 percent or higher. True, the majority of those schools were for-profit, but 166 were public institutions and 40 were private nonprofits. When it comes to graduation rates at two- and four-year colleges, there is no shortage of embarrassing results. In 2012, 681 public colleges had graduation rates of less than 25 percent, a mark matched by 165 for-profits.

No, the problem is much deeper and more insidious than tax status alone. It’s a function of colleges’ self-interest and the flawed federal policies that indulge them. Democrats argue that for-profit colleges’ interest in maximizing revenue encourages bad behavior. What they fail to realize is that all colleges operate according to self-interest. Public and nonprofit institutions may not be out to maximize revenue per se, but they work instead to maximize prestige and influence. These colleges operate under what economist (and former president of the University of Iowa) Howard Bowen called the “revenue theory of costs”: They raise all the money they can and spend all the money they raise. And because the quest for prestige is open-ended, public and nonprofit colleges will tend to seek never-ending increases in spending, financed by never-ending fundraising and never-ending increases in tuition.

But maximizing prestige may have little to do with the quality of the education students receive. In fact, since measures of student learning don’t factor into popular rankings or public-funding formulas, there’s little reason to invest in great teaching. University of Michigan economist Brian Jacob and his colleagues have found that outside of the highest achievers, students tend to choose campuses that spend the most on amenities, not the ones that spend the most on instruction. Of course, the same problem applies to the for-profits: Building the best recruiting and marketing departments will attract students and revenue, but it won’t help them learn anything.

Higher-education policy could try to change these incentives. But the federal student-aid system seems tailor-made to serve the interests of colleges. The problem is threefold.

First, federal aid programs encourage any high-school graduate to enroll in any accredited institution at any price. With no underwriting of any kind, federal loans provide no signal as to the expected value of a given program. A generous federal loan program for parents, which allows borrowing up to the cost of attendance, helps ensure that students will have the money to pay tuition bills. And access to easy credit gives colleges every incentive to enroll students. Whether they succeed or not, colleges are paid in full.

Second, prospective consumers have difficulty judging the quality of different options. Some of this is unavoidable; college is hard to evaluate until it is actually experienced. But some of these blind spots are self-inflicted. Basic pieces of information needed to make a sound investment — out-of-pocket costs, the proportion of students who graduate on time, the share who earn enough to pay back their loans after graduation — are either incomplete or nonexistent. That’s due, in part, to a 2008 law that prohibited the federal government from collecting data on all college students. Championed by the private-college lobby and congressional Republicans, the ban keeps useful (and potentially embarrassing) information — things like graduation rates, debt, and post-college earnings — out of the public eye. As a result, prospective students typically have no idea whether a given program will be worth their while and are easily wooed by flashy amenities, high tuition prices, and promises of a high salary.

Information gaps would be less problematic if we could count on the accreditation agencies that serve as gatekeepers for federal aid programs to hold colleges accountable. Therein lies the third problem: Rather than protecting consumers, accreditation actually keeps poor-performing colleges in business. Accreditation is a process of peer review. Faculty from other campuses evaluate peer institutions, and accreditation agencies finance their operation with dues from the colleges they accredit. It is also a binary variable — you are either accredited or you’re not. Because federal aid is the lifeblood of colleges, the consequences of revoking accreditation are incredibly severe, with the result that accreditors are reluctant to go that far.

Together, these three structural problems have created a system in which poorly performing colleges that would never pass muster in a functioning market are rarely stripped of their access to federal aid. That aid, in turn, encourages consumers to buy substandard products they would otherwise avoid.

Conservatives typically respond to these problems with familiar calls to do away with federal aid entirely. But without any federal aid, we’d face the under-provision problem we started with: Many low-income students who would benefit from post-high-school education could not afford it. Phasing out federal aid would certainly lead to a drop in prices, but it’s not clear that the market alone would ensure equal opportunity for all qualified students.

In the absence of serious efforts to change the incentives for colleges, Republicans have ceded this ground to Democrats. As the existing system continues to deteriorate, progressive proposals to create an elaborate system of federal college ratings or a federally funded “public option” will get serious consideration. Conservatives who want to maintain and improve the market-based system must present their own set of solutions. Two ideas stand out.

The most direct way to align the interests of colleges with those of students and taxpayers is to give colleges “skin in the game” when it comes to student loans. Currently, colleges can enroll any high-school graduate with a pulse because they bear almost none of the risk that the student will fail. They’re held harmless unless and until more than 40 percent of their borrowers default on federal loans within three years. Default rates are easily gamed, though, and if students default after three years, the college gets off scot-free. Last month, the Department of Education went so far as to “adjust” some schools’ default rates at the eleventh hour in order to save them from losing aid eligibility.

As my American Enterprise Institute colleague Alex Pollock has argued, when mortgage lenders operated under a similar set of incentives — handing out risky loans, bundling them up, and then selling them to investors, thereby shedding the risk — the result was the subprime-mortgage crisis. “A principal lesson from mortgages, nearly universally agreed upon, is that those who create the mortgages should retain a material part of the credit risk,” Pollock wrote in 2012. It is a lesson that he argues we should extend to higher education.

The simplest approach would be to make colleges responsible for paying back a fixed percentage of the loans their students default on. A clear, objective risk-sharing policy would hit colleges where it hurts — their budget — and would not be all-or-nothing like current default-rate regulations or the accreditation system.

Democratic senators Jack Reed, Dick Durbin, and Elizabeth Warren have introduced legislation that would force colleges with high default rates to pay back a share of defaulted loans. But here again, Democrats would rather play favorites than hold all colleges to account. The bill includes exemptions for historically black colleges and universities and for community colleges, schools that have default rates higher than the national average. And the proposal would cover only campuses where more than 25 percent of students take out loans. In other words, Democrats believe that only a subset of colleges should have skin in the game.

Excluding groups of colleges from risk sharing would be akin to exempting some mortgage lenders from regulation because they lend to subprime clients. We know how such lenders behaved when they had no skin in the game, and it wasn’t pretty. A better way to avoid unintended consequences would be to couple risk sharing with rewards for serving low-income students well. For instance, the feds could provide colleges with a cash bonus for every Pell Grant recipient they graduate, providing schools with an incentive to lift students out of poverty.

The second way to align the interests of colleges, students, and taxpayers is to provide consumers of higher education with the information they need to make informed decisions. In K–12 education, Republicans have been the party of transparency and accountability. The No Child Left Behind Act failed on many fronts, but it did compel states to collect and publish valuable information on the performance of public schools. When it comes to higher education, though, many congressional Republicans have stood in the way of similar ideas, not only rejecting the Bush administration’s recommendation to collect better federal data but banning such collection outright. This policy has left consumers in the dark when it comes to basic facts about their options, leading to bad investments and stunted market discipline.

Not all Republicans have toed the line. Senator Marco Rubio (Fla.) teamed up with Democrat Ron Wyden of Oregon to propose the Know before You Go Act, which would require the federal government to collect data on graduation rates, debt, and post-college earnings and publish that information for each program a college offers. Without support from other conservatives, however, these efforts to empower and protect consumers will go nowhere.

Some might argue that skin-in-the-game and transparency reforms represent an expansion of federal power. Conservatives should strenuously disagree. Skin in the game is not an expansion of the federal role, but a way to ensure that federal investments don’t go to waste. This sort of arrangement is standard in other policy areas. In the food-stamp program, for example, if local agencies dole out too many benefits in error, states must pay financial penalties to the federal government. Since that policy was instituted, food-stamp error rates have plummeted.

Likewise, the federal government is the only entity that can systematically track and publish information on post-college earnings and debt. Some states have tried admirably, but they can’t follow graduates across their borders. Put simply, better consumer information is a public good without which the market will continue to fail.

Rather than micromanaging colleges from Washington, these reforms would compel them to consider taxpayers and students’ interests as well as their own. Conservatives should welcome such a change.

– Andrew P. Kelly is a resident scholar at the American Enterprise Institute, whose Center on Higher Education Reform he directs. This article originally appeared in the October 20, 2014 issue of National Review.

The Left’s Legal War on Children

by Jason Bedrick
The war against school choice hurts the very children it is supposed to help.

Nearly 60 years after Milton Friedman proposed a system of universal school choice in his seminal essay “The Role of Government in Education,” his vision is more popular than ever — and opponents of school choice are taking every measure to fight it.

In a recent survey by Education Next, half of those polled expressed support for universal school vouchers, and 60 percent favored giving tax credits for individual and corporate donations to scholarship organizations that help low- and middle-income families pay private-school tuition. Moreover, a recent Friedman Foundation survey found that support for school-choice tax-credit laws was highest among groups that traditionally vote for Democrats, including low-income Americans (67 percent), younger people (74 percent), blacks (72 percent), and Hispanics (80 percent).

That popularity has translated into political success. The number of private-school choice programs has more than tripled in the last decade, from 15 in 2004 to 51 programs in 24 states and Washington, D.C., today. In that time span, the number of students attending a private school with a voucher or tax-credit scholarship has grown from just under 100,000 to over 300,000.

Much of that growth has occurred in just the last few years. Since 2011, dubbed “The Year of School Choice” by the Wall Street Journal, states have adopted 24 new school-choice laws and expanded 33 existing choice programs. None have been legislatively repealed.

With school choice winning in state legislatures and the court of public opinion, opponents of choice have turned to the courts to stop them. Left-wing groups like the American Civil Liberties Union, Americans United for Separation of Church and State, the Southern Poverty Law Center, the teachers’ unions, and the Florida School Boards Association have filed a bevy of lawsuits in recent years to stem the school-choice tidal wave. Perversely, these organizations’ lawsuits would harm the very populations that they claim to want to help.

There are currently active anti-school-choice lawsuits in Alabama, Colorado, Oklahoma, Louisiana, and North Carolina, plus two in Florida. Last month, a judge dismissed a third lawsuit by the Florida Education Association because it could not demonstrate harm and therefore lacked standing. Lower courts in Oklahoma and North Carolina recently struck down those states’ special-needs voucher and low-income voucher, respectively. Those decisions are being appealed.

Earlier this year, a federal judge tossed out a challenge to Alabama’s school-choice law, which absurdly claimed that the law violated the equal-protection clause because it failed to rescue all children from low-performing public schools. The judge held that the “equal protection” the plaintiffs sought was, “in effect, equally bad treatment.” A second lawsuit challenging Alabama’s school-choice law on procedural grounds is pending appeal.

What follows is a summary of three of the main types of legal challenges that school-choice laws currently face.

The most common anti-school-choice legal challenge claims that such laws unconstitutionally fund religious education with public money.

In 2002, the U.S. Supreme Court held in Zelman v. Simmons-Harris that school-voucher programs are consistent with the First Amendment’s Establishment Clause when they serve a secular purpose and are neutral with respect to religion, and when aid goes to parents, who then choose where their child attends school. Thus any public money that flows to a religious institution does so only as a result of the choice of a child’s parents. In this sense, a parent who uses a school voucher is constitutionally no different from a person who regularly hosts Bible studies in his Section 8 subsidized apartment or uses SNAP funds to purchase food for a religious feast.

Since this decision closed the door to challenges under the U.S. Constitution, opponents of school choice turned to the historically anti-Catholic “Blaine Amendments” contained in most state constitutions. During the late 19th century, Senator James Blaine of Maine, a nativist, sought to amend the U.S. Constitution to forbid state aid to religious schools, fearing that Catholic immigrants would want government funds for their parochial schools. At that time, public schools were de facto nondenominational Protestant schools. Though Blaine’s effort was unsuccessful at the federal level, most states adopted some version of his proposed amendment, often in addition to an earlier constitutional provision prohibiting the “compelled support” of religion.

State supreme courts have differed in their interpretation of the Blaine Amendments. Some courts have closely tracked the U.S. Supreme Court’s First Amendment jurisprudence, as the Indiana Supreme Court did last year in unanimously upholding the state’s voucher law. However, the Arizona Supreme Court had previously struck down two voucher laws under that state’s Blaine Amendment.

Nevertheless, the Arizona court upheld the state’s school-choice tax-credit law because tax credits do not constitute public funds. The U.S. Supreme Court later ruled likewise in ACSTO v. Winn (2011), holding that funds do not become “public money” until they have “come into the tax collector’s hands.” In that sense, tax credits are constitutionally no different from tax deductions or exemptions. For example, no reasonable person believes that a church is “publicly funded” because its donors receive charitable-donation tax deductions or because the church itself receives a 100 percent property-tax exemption.

Last month, the New Hampshire Supreme Court rejected a Blaine Amendment challenge to the state’s school-choice tax-credit law, holding that none of the plaintiffs had standing to sue since the law did not harm them. School-choice tax-credit laws have a perfect record so far in states’ high courts and the U.S. Supreme Court.

Earlier this year, Arizona’s education-savings-account law also survived a Blaine Amendment challenge, despite the state supreme court’s previous hostility toward vouchers. The court ruled that the law was constitutional because parents can spend the funds on a wide variety of educational expenses beyond tuition — and a significant number of families did not spend any of the funds on tuition.

The Florida public-school establishment is suing to repeal the Sunshine State’s 13-year-old school-choice tax credit and its new education savings accounts under the state’s Blaine Amendment and its “uniformity clause,” which mandates that “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools. . . . ” The Florida Supreme Court previously struck down the state’s voucher program under this provision in Bush v. Holmes (2006), on the grounds that the vouchers “divert[ed] public dollars” from “the sole means set out in the Constitution for the state to provide for the education of Florida’s children.”

In other words, the Florida Supreme Court interpreted “uniform” to mean “exclusive.” That reading would be strained even if not for the fact that the very same sentence of the Florida Constitution explicitly authorizes the state to create “other public education programs that the needs of the people may require.” Further straining credulity, the court interpreted the latter clause to refer only to junior colleges and adult-education programs.

Both the dissenters and two of the five justices in the Holmes majority have since been replaced, so it’s unclear how the new bench is likely to rule. It remains to be seen whether it has the will to eliminate the nearly 70,000 scholarships going to mostly minority, low-income families.

Following the U.S. Supreme Court, the Florida Supreme Court may find that the plaintiffs do not have standing to challenge the school-choice tax-credit law because it does not utilize public funds. Moreover, since the Holmes decision also interpreted “uniform” to mean that all schools must teach the same curriculum, it would appear to outlaw the state’s public charter schools, which are not required by Florida statute to teach the state curriculum. The far-reaching consequences, combined with the fact that Holmes contradicts the plain meaning of the state constitution, may be enough to persuade the new bench to overturn or at least narrowly limit the Holmes precedent.

Last year, the U.S. Department of Justice attacked Louisiana’s voucher law, claiming that it thwarted the DOJ’s efforts to desegregate public schools. Ludicrously, the initial brief pointed to only two examples: a school that “lost six black students as a result of the voucher program,” thereby “reinforcing the school’s racial identity as a white school in a predominantly black school district,” and a disproportionately black school that “lost” five white students. The shift in the racial makeup of each of these schools was less than 1 percent, yet that was too much for the racial bean counters at the DOJ.

Worse, Louisiana’s vouchers were restricted to low-income families with children assigned to failing public schools. More than 85 percent of the voucher recipients were black. The Washington Post condemned the DOJ’s lawsuit as “appalling,” noting that “rules to fight racism” were being “used to keep students in failing schools.”

The absurdity of the DOJ’s lawsuit was further exposed when two studies by researchers at the University of Arkansas and Boston University revealed that the net effect of the voucher program was to improve racial integration. The DOJ eventually backpedaled somewhat, dropping its demand that it have authority to approve or deny every single voucher, but a federal judge ruled that the state must fork over data about the race of participating students, which the DOJ could use in future challenges.

Defenders of the public-school monopoly have had limited success in their lawfare against school choice, despite a few painful decisions. As the courts continue to uphold choice programs, opponents will likely shift to using regulation to strangle choice programs and turn to more targeted legal challenges, like the DOJ’s threats against Milwaukee’s voucher program over special-needs enrollment. When crafting school-choice laws, wise legislators will consult in advance with the experts at the Institute for Justice, the Goldwater Institute, the Pacific Legal Foundation, or the Becket Fund for Religious Liberty to ensure that their legislation is well designed to withstand the inevitable legal challenge.

As ever, eternal vigilance is the price of educational liberty.

— Jason Bedrick is an education-policy analyst at the Cato Institute’s Center for Educational Freedom.