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NCAC: Research & Solutions: Policy: Reforming School Reform

Reforming School Reform

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*Professor, Harvard Law School. A version of this article was delivered as the Robert L. Levin Distinguished Lecture at Fordham Law School on April 22, 1999. This article was published in the Fordham Law Review, Volume 68, Number 2, Nov.1999, 257-288, and is reprinted with permission.

1. Jean Kerr, Please Don’t Eat the Daisies 13 (1957).

2. The contemporary sense of school crisis is traced by some to the 1983 publication of A Nation At Risk, which called for accountability and higher expectations while arguing that U.S. schools fall far short of international counterparts. See National Commission on Excellence in Education, A Nation At Risk: The Imperative for Educational Reform 5-14, 23-33 (1983); see also Martin Gerry, Service Integration and Beyond: Implications for Lawyers and Their Training, in Law and School Reform: Six Strategies for Promoting Educational Equity, 244, 247 (Jay P. Heubert ed., 1999) (tracing contemporary school reform to the publication of A Nation At Risk). Although some argue that the claim that American schools are in crisis is exaggerated, the insufficiencies of contemporary school models and practice are widely acknowledged. See Linda Darling-Hammond, The Right to Learn: A Blueprint for Creating Schools that Work 22-31 (1997).

3. For examples of the proliferating literature on choice, see John E. Chubb & Terry M. Moe, Politics, Markets and America’s Schools (1990) and Richard F. Elmore, Choice as an Instrument of Public Policy: Evidence from Education and Health Care, in 1 Choice and Control in American Education: The Theory of Choice and Control in Education 285 (William H. Clune & John F. Witte eds., 1990). For a discussion of classic early efforts to advance vouchers in particular, see John E. Coons & Stephen D. Sugarman, Education By Choice: The Case for Family Control (1978) and Milton Friedman, Capitalism and Freedom 85-107 (1962).

4. See Chubb & Moe, supra note 3, at 217-18; Matthew Miller, A Bold Experiment to Fix City Schools, The Atlantic Monthly, July 1999, at 15, 15-17.

5. See Phillip T. K. Daniel, A Comprehensive Analysis of Educational Choice: Can the Polemic of Legal Problems be Overcome?, 43 DePaul L. Rev. 1, 17 (1993). See generally Priscilla Wohlstetter, Education by Charter, in School-Based Management: Organizing for High Performance 139 (Susan Albers Morhman & Priscilla Wohlstetter et al. eds., 1994) (examining the potential of localized management in the charter schools of the United States and England).

6. Darling-Hammond, supra note 2, at 22.

7. See, e.g., R. Glen Ayers, Jr., Reforming the Reform Act: Should the Bankruptcy Reform Act of 1978 Be Amended to Limit the Availability of Discharges to Consumers?, 17 New Eng. L. Rev. 719, 719 (1982) (offering a critical analysis of the proposed bankruptcy improvements act of 1981); Ronald Daniels & Robert Howse, Reforming the Reform Process: A Critique of Proposals for Privatization in Central and Eastern Europe, 25 N.Y.U. J. Int’l L. & Pol. 27 (1992) (assessing the impact of economic reforms in Central and Eastern Europe); Kimit Muston, Valley Perspective: Dire Warnings, Brought to You by Democracy Lite, L.A. Times, Apr. 12, 1998, at B14 (considering reforms of Los Angeles’s reform charter); Reforming Reform, Denver Post, Apr. 30, 1998, at A13 (discussing a bill to allow leftover campaign finance money to pay for constituent mailings); Reforming the Reform: Heed Calls to Fix the Welfare Law, Star Trib. (Minneapolis-St. Paul), Feb. 9, 1997, at A28 (analyzing recent welfare reform measures); see also Phyllis Eisen, Where Do We Stand Vis-a-Vis Our Major Competitors in the Development of Human Resources, 22 Can.-U.S. L.J. 63, 65 (1996) (commenting that business and policy makers addressing human resources around the world “were reforming their reforms or they were reforming the reforms that they had already reformed”).

8. See Karla A. Turekian, Note and Comment, Traversing the Minefields of Education Reform: The Legality of Charter Schools, 29 Conn. L. Rev. 1365, 1378 (1997). See generally William Haft, Charter Schools and the Nineteenth Century Corporation: A Match Made in the Public Interest, 30 Ariz. St. L.J. 1023, 1024, 1035 (1998) (analyzing charter school reform through the nineteenth century public/private model of a corporation).

9. See Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 Minn. L. Rev. 825, 870 & n.148 (1996); see also Mary Jane Lee, Note, How Sheff Revives Brown: Reconsidering Desegregation’s Role in Creating Educational Opportunity, 74 N.Y.U. L. Rev. 485, 502, 512-27 (assessing the cross-district enrollment opportunities available in Connecticut after the Connecticut Supreme Court’s 1996 ruling in Sheff v. O’Neill).

10. A challenge to such a plan, brought by parents who wished to use the voucher money to pay for sectarian schools, recently lost in the Maine Supreme Court. See Bagley v. Raymond Sch. Dep’t, 728 A.2d 127, 147 (Me. 1999).

11. The leading examples here are Cleveland, Ohio, and Milwaukee, Wisconsin. Both plans have withstood state constitutional challenges predicated on concerns about state support of religion. See Simmons-Harris v. Goff, 711 N.E.2d 203, 209 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602, 630 (Wis. 1998), cert. denied, 119 S. Ct. 466 (1998).

12. See Bagley, 728 A.2d at 133-35 (withstanding free–exercise challenge).

13. See Simmons-Harris, 711 N.E.2d at 210; Jackson, 578 N.W.2d at 607-10.

14. Adam Cohen, A First Report Card on Vouchers, Time, Apr. 26, 1999, at 36, 36. The Cleveland plan, for example, targets low-income children. See Margaret A. Nero, Case Comment, The Cleveland Scholarship and Tutoring Program: Why Voucher Programs Do Not Violate the Establishment Clause, 58 Ohio St. L.J. 1103, 1103 (1997) (describing the Cleveland Plan). Universal plans, unrestricted by income, are often criticized for remaining unavailable to low-income families where the voucher would not cover the total cost of private education. See Dominick Cirelli, Jr., Utilizing School Voucher Programs to Remedy School Financing Problems, 30 Akron L. Rev. 469, 497 (1997); Molly S. McUsic, The Law’s Role in the Distribution of Education: The Promises and Pitfalls of School Finance Litigation, in Law and School Reform: Six Strategies for Promoting Educational Equity, supra note 2, at 88, 120-128.

15. In Cleveland, for example, the voucher level is nowhere close to paying for schooling at the most prestigious secular private schools, which charge nearly six times as much as the amount of the voucher. The voucher basically permits working class and poor families to select parochial schools, which can keep tuition low because of charitable contributions and extremely low teacher salaries. See Nero, supra note 14, at 1111-12; see also Education: Answered Prayer, The Economist, Apr. 5, 1997, at 27, 27-28 (“Lower teachers’ pay is the main reason why Catholic schools are cheaper [than public schools].”). In addition to direct church-based grants, parochial schools often have teachers and other staff who are not paid at market rates. See, e.g., Steve Kloehn, Hales . . . More Than Just a School: In These Halls, Everyone is Family, Chi. Trib., June 2, 1996, at A1 (discussing the success of one inner-city Catholic high school in Chicago).

16. See McUsic, supra note 14, at 127-28.

17. Seymour B. Sarason, Charter Schools: Another Flawed Educational Reform? 18 (1998).

18. See Chubb & Moe, supra note 3, at 3-35. The fly-by-night diploma mill schools that cropped up in the wake of the G.I. Bill leads many observers to warn that school vouchers similarly will elicit unscrupulous offers of inadequate schools. See Gerald Uelman, A ‘Kick in the Pants’ With Dangerous Ramifications, L.A. Times, Oct. 15, 1993, at B9; Lionel Van Deerlin, Shell Game: Vouchers Would Leave Some Schools in Chaos, San Diego Union-Trib., Mar. 5, 1993, at B7.

19. See Abby R. Weiss, Going It Alone: A Study of Massachusetts Charter Schools 1-27 (1997).

20. See id.

21. Sarason, supra note 17, at 62.

22. Kevin B. Smith & Kenneth J. Meier, The Case Against School Choice: Politics, Markets, and Fools 56 (1995).

23. See, e.g., In ‘96, Phoenix Built for Future: Renovations, New Structures Led Changes, Ariz. Republic/Phoenix Gazette, Jan. 1, 1997, § 4 (Central Phoenix Community), at 1 (noting that a fledgling charter school is closing its doors despite a glitzy opening). The danger of fly-by-night schools opening to take advantage of public dollars has already been demonstrated by the GI Bill. See World War II: 50 Years Ago Today, St. Petersburg Times, May 31, 1995, at A4.

24. See Smith & Meier, supra note 22, at 28-29.

25. See Richard Weissbourd, The Vulnerable Child 171-84 (1996). Robert Slavin’s Success for All program offers one of the most impressive efforts at scale-up, but the replication problem remains difficult. See Lisbeth B. Schorr, Common Purpose 58-60 (1997). Second and third generation versions of the program do not generate as strong results as do the first impressive experiments. See Weissbourd, supra note 25, at 171-84.

26. Development of a replicable curriculum is not enough given the shortage of high-quality teachers. As a result, scale-up efforts typically sacrifice classroom level creativity for rigid, predictable passage through prescribed materials. See id. at 176-78 (discussing Success for All).

27. Smith & Meier, supra note 22, at 28.

28. The Chicago Public Schools provide an example of one system that has shut down failing schools not by relying on individual choice mechanisms, but instead utilizing a centralized administrative structure that puts schools on probation and pairs them with advisors under a tight time frame for required improvement. See Cameron McWhirter and Sheryl Kennedy, Windy City Shines as School Reform Success: Progress is Reported a Decade After Being Labeled Nation’s Worst, Detroit News, Mar. 21, 1999, at A10. The results in Chicago have been encouraging. See id.

29. See Smith & Meier, supra note 22, at 49-50 (noting that there are not enough good schools to provide sufficient slots if all the failing schools close).

30. See id. at 49-50 (citing Bill Honig, Why Privatizing Education is a Bad Idea, Brookings Review, Winter 1990-91; Subcomm. on Elementary, Secondary, and Vocational Education of the H.R. Comm. On Education and Labor, 101st Cong., Problems Concerning Education Vouchers Proposals and Issues Related to Choice (Comm. Print 1990)). Smith and Meier conducted their own empirical study using district-level data from Florida that pointed toward precisely this development of a two-tiered system where an exit option existed. See id. at 56. “Choice may reward schools that succeed in offering quality education, but it may also leave behind and take resources from schools dealing with the most pressing problems confronting the educational system.” Id. at 56.

31. Studies repeatedly show the enormous impact of family income and parents’ education on children’s school performance and performance on standardized tests. See Leroy D. Clark, The Future Civil Rights Agenda: Speculation on Litigation, Legislation, and Organization, 38 Cath. U. L. Rev. 795, 806 (1989). Racial differences also persist in standardized tests for reasons that are not entirely clear. For a thoughtful treatment of the continuing racial gap in test scores, see generally Christopher Jencks & Meredith Phillips, America’s Next Achievement Test: Closing the Black-White Test Score Gap, The American Prospect, Sept.-Oct., 1998, at 44. Nonetheless, affirmative action at the college level does improve the post-school opportunities for minority students. See generally William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (1998) (analyzing the benefits of a race-based admissions process by tracing the income and opportunities of minority students after college).

32. For a broad critique of testing and grades, see Alfie Kohn, Punished by Rewards 200 (1993).

33. One of the very few evaluations of voucher programs focused on Cleveland’s experiment and produced findings that now fuel the arguments of both advocates and opponents. Although two-thirds of parents of students receiving vouchers report that they are very satisfied—compared with only thirty percent of other parents—actual results, measured by test scores, show small gains for voucher students in science and language and no differences in reading, math, social studies, and overall results when compared with students in the regular schools. See Adam Cohen, supra note 14, at 37. Teachers in the regular public schools had better credentials in terms of post-college work and teaching experience than teachers in the schools receiving vouchers, although the voucher schools offered on average somewhat smaller classes—smaller, on average, by three students. No suburban public schools proved willing to accept the vouchers. See id. at 36-38.

34. See generally Jay Heubert & Robert Hauser, High Stakes: Testing for Tracking, Promotion and Graduation (1999) (issuing recommendations about the appropriate use of tests as instruments of education policy).

35. See Janet Bingham, Statewide Charter School District Proposed, Denver Post, Jan. 13, 1999, at A18 (discussing a Colorado State Board of Education proposal to create a statewide charter school district).

36. See McUsic, supra note 14, at 122 (“The irony of the school choice model is that it requires two components that are not in adequate supply: committed and interested parents, and empty desks in high quality public or private schools.”).

37. See Bingham, supra note 35, at A18.

38. See Smith & Meier, supra note 22, at 76-77 (“Choice seems to have a real potential to exacerbate the already considerable problems of de facto segregation in the public school system.”).

39. See Diane Ravitch, The Great School Wars: New York City, 1805-1973: A History of the Public Schools as Battlefield of Social Change 107-230 (1974); David B. Tyack, The One Best System: A History of American Urban Education 78-176 (1974).

40. See Darling-Hammond, supra note 2, at 24; see also Smith & Meier, supra note 22, at 16 (showing an apparent decline in SAT scores attributable to shifting demographics). “If 1990 SAT scores are weighted to reflect the demographic makeup of the 1975 pool of test takers, scores actually improved by 30 points in fifteen years.” Id. (citation omitted).

41. See Gary Orfield, The Growth of Segregation: African Americans, Latinos, and Unequal Education, in Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education 53, 53-55 (Gary Orfield & Susan E. Eaton eds., 1996) [hereinafter Orfield, The Growth of Segregation].

42. See Darling-Hammond, supra note 2, at 26.

43. Students in Iowa, Minnesota, and North Dakota score close to the levels of math proficiency needed to demonstrate moderately complex reasoning processes well above the level necessary to show proficiency in numerical operations and beginning problem solving. Students in Louisiana and Mississippi on average do not meet this lower threshold. See id.

44. See id.

45. See Derrick Bell, A Model Alternative Desegregation Plan, in Shades of Brown: New Perspective on School Desegregation 124, 136 (Derrick Bell ed., 1980) [hereinafter A Model Alternative].

46. See Gerald Torres, Remarks at the Nathan Huggins Lectures at Harvard University (Apr. 21, 1999).

47. See supra notes 41-45 and accompanying text.

48. See generally Lawrence Cremin, American Education: The Metropolitan Experience 1876-1980, 153-55 (1988) (emphasizing the transformation and proliferation of educational institutions as the United States became a metropolitan society and exploring the role of those institutions in the export of American culture to other regions of the world).

49. Sometimes called the theory of “green follows white,” racial integration of institutions where whites remain the majority should protect the institutions against racially unequal distribution of resources. See, e.g., Richard Kluger, Simple Justice 748-78 (1975) (describing the history of Brown v. Board of Education and discrimination against African-Americans); Richard Thompson Ford, Geography and Sovereignty: Jurisdictional Formation and Racial Segregation, 49 Stan. L. Rev. 1365, 1366 (1997) (examining the effect of racial segregation on political empowerment); Paul Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 Colum. L. Rev. 728, 776 (1986) (describing compensatory educational improvements as an element of integration plans).

50. 347 U.S. 483 (1954).

51. Id. at 494.

52. See id. at 495.

53. See Gary Orfield, Conservative Activists and the Rush Toward Resegregation, in Law and School Reform: Six Strategies for Promoting Educational Equity, supra note 2, at 39, 46-48 [hereinafter Orfield, Conservative Activists].

54. See Milliken v. Bradley, 418 U.S. 717, 752 (1974).

55. See generally Orfield, The Growth of Segregation, supra note 41, at 53 (analyzing trends towards increased segregation). Housing resegregation has been a major reason for this pattern. See Gary Orfield, Segregated Housing and School Resegregation, in Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education, supra note 41, at 291, 291-330.

56. See Orfield, Conservative Activists, supra note 53, at 73. But see Missouri v. Jenkins, 515 U.S. 70, 102 (1995) (finding the district court’s effort to improve student achievement and enhance desegregation exceeded its authority).

57. See Derrick Bell, Serving Two Masters, 85 Yale L.J. 470, 471-72 (1976).

58. See Milliken v. Bradley, 433 U.S. 267 (1977); Bell, A Model Alternative, supra note 45, at 130.

59. See Missouri v. Jenkins, 515 U.S. 70 (1995); Milliken, 433 U.S. at 282-83; see also Orfield, Conservative Activists, supra note 53, at 69-71 (discussing the withdrawal of court supervision over schools).

60. See Nathaniel R. Jones, Letter to the Editor, 86 Yale L.J. 378 (1976).

61. See supra note 49 and accompanying text; see also Bell, A Model Alternative, supra note 45, at 135-36; Marilyn V. Yarbrough, Still Separate and Still Unequal, 36 Wm. & Mary L. Rev. 685, 692 (1995).

62. Once the Supreme Court ruled out a federal right or remedy in response to wealth-based differences in school finance, the reform effort turned to state claims, chiefly under state constitutional provisions. See, e.g., Serrano v. Priest, 557 P.2d 929, 957-58 (Cal. 1976) (holding that California’s public school financing system violated the equal protection provisions of the California Constitution); Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684 (Mont. 1989) (finding the state’s method of funding elementary schools unconstitutional); Abbott v. Burke, 575 A.2d 359 (N.J. 1990) (declaring New Jersey’s Public School Education Act unconstitutional as applied to poor urban school districts).

63. Thus, some suits seek redistribution of resources from wealthier to poorer communities; some seek to supplement low-wealth districts either through higher taxes or shifts from other portions of the state budget; some focus on gaining comparable yields on property taxes or the same rate even if the valuation of the properties in different districts sharply diverge; and others emphasize financial and other reforms necessary to ensure minimal levels of adequacy in schooling. See McUsic, supra note 14, at 105-08.

64. See Richard Elmore, Remarks During a Panel Presentation at the Harvard Civil Rights-Civil Liberties Law Review’s Symposium on School Choice (March 6, 1999). Thus, regulation of sexual harassment causes considerable concern among those who want to make sure that schools avoid excessive interference with normal student behavior or that schools devote more resources to law enforcement than education. See Jehan A. Abdel-Gawad, Note, Kiddie Sex Harassment: How Title IX Could Level the Playing Field Without Leveling the Playground, 39 Ariz. L. Rev. 727, 767-68 (1997). Many observers also worry about the disparate impact of both school discipline rules and special education placement on boys.

65. Some schools have experimented with girl-only math classes to redress apparent patterns of math phobia and underachievement among girls; others have pursued male-only academies in minority neighborhoods. See infra note 66 and accompanying text. The current state of the law suggests that gender segregation may be permissible if comparable opportunities are available to members of the other sex. See Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880, 882 (3d Cir. 1976), aff’d 430 U.S. 703 (1997) (per curiam). But the law is changing. See United States v. Virginia, 518 U.S. 515 (1996).

66. Compare Isabel Wilkerson, Detroit’s Boys-Only Schools Facing Bias Lawsuit, N.Y. Times, Aug. 14, 1991, at A1 (discussing a women’s group’s challenge of all-boy academies), and Maureen M. Smith, Roseville District Dropping All-Girls Class Plan, Star Trib. (Minneapolis-St. Paul), Mar. 11, 1998, at B1 (noting that the district feared challenges to all-girls classes and dropped the idea), with Shirley Salemy, Girls-Only Class May Be Equation for Mastering Math, Chi. Trib., Apr. 14, 1996, § 4 (Metro Lake), at 1 (describing support from women’s research group for girls-only math classes). A federal court granted an injunction against all-male academies in Detroit. See Garrett v. Board of Educ. of the Sch. Dist. of Detroit, 775 F. Supp. 1004, 1014 (E.D. Mich. 1991). But, a compensatory purpose may justify all-girl classes under some circumstances. See Catherine G. Krupnick, Legal and Policy Issues Raised by All-Female Public Education, 14 N.Y.L. Sch. J. Hum. Rts. 155, 170-73 (1998) (presenting contrasting views on all-female public schooling); Note, Inner-City Single Sex Schools: Educational Reform or Invidious Discrimination?, 105 Harv. L. Rev. 1741, 1757-58 (1992) (finding educational studies about single-sex and single-race education inconclusive but potentially worth experimentation). Another approach is to alter the instructional techniques but maintain co-educational instruction. See Deborah L. Rhode, Single-Sex Schools Can Only Be Way Stations, Nat’l L.J., Aug. 18, 1997, at A19.

67. On sexual harassment, see generally Abdel-Gawad, supra note 64 (arguing that Title IX provides students with a right to sue their school districts for hostile environment sexual harassment), and Melanie Hochberg, Note, Protecting Students Against Peer Sexual Harassment: Congress’s Constitutional Powers to Pass Title IX, 74 N.Y.U. L. Rev. 235 (1999) (contending that Title IX is within Congress’s Fourteenth Amendment power and abrogates sovereign immunity). Concerns about differential rates of punishment for boys and girls in the school context often intersects with concerns about racial disparities, for it is usually minority boys who face the disproportionate number of suspensions and expulsions. See Chris Adams, Suburban Black Boys Also At Risk, Times-Picayune (New Orleans), Feb. 10, 1992, at A1; Myriam Marquez, Why Are the Orange County Schools Failing So Many Hispanics?, Orlando Sentinel, Mar. 3, 1998, at A8.

68. See O’Connor v. Donaldson, 422 U.S. 563 (1975); Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1960); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), aff’d sub nom. Wyatt v Aderholt, 503 F.2d 1305 (5th Cir. 1974).

69. See generally Thomas F. Felton, Comment, Sink or Swim? The State of Bilingual Education in the Wake of California Proposition 227, 48 Cath. U. L. Rev. 843 (1999) (exploring the effects of California’s termination of bilingual education).

70 . See Marcelo Suarez-Orozco et al., Cultural, Educational, and Legal Perspectives on Immigration: Implications for School Reform, in Law and School Reform: Six Strategies for Promoting Educational Equity, supra note 2, at 160, 173 (discussing the exclusion of immigrants and other limited English proficiency students).

71. See Lau v. Nichols, 414 U.S. 563, 568-69 (1974) (interpreting a federal statute); Dan Losen, Remarks During a Panel Presentation at the Harvard Civil Rights-Civil Liberties Law Review’s Symposium on School Choice (March 6, 1999).

72. See Lau, 414 U.S. at 568.

73. See Rachel F. Moran, The Politics of Discretion: Federal Intervention in Bilingual Education, 76 Cal. L. Rev. 1249, 1288 (1988) (quoting Gary Orfield’s concerns about segregative impact of bilingual education programs); Suarez-Orozco et al., supra note 70, at 173.

74. See Felton, supra note 69, at 847-48. Just as California is ending bilingual education, Texas began recruiting California teachers to staff its bilingual education programs. See Liz Seymour, Texas Tries to Lure Away Teachers: Bilingual Education: After Prop. 227 Victory, School District with Growing Spanish-Speaking Population Is Sending Recruiters to California, L.A. Times, June 5, 1988, at A3; Leif B. Strickland, Texans Corall Few Spanish-Speaking Teachers from Area, San Diego Union-Trib., June 20, 1998, at B8.

75. See generally Paul Weckstein, School Reform and Enforceable Rights to Quality Education, in Law and School Reform: Six Strategies for Promoting Educational Equity, supra note 2, at 306 (stressing the importance of high quality instruction).

76. See Orfield, The Growth of Segregation, supra note 41, at 64-65.

77. See Thomas Hehir & Sue Gamm, Special Education: From Legalism to Collaboration, in Law and School Reform: Six Strategies for Promoting Educational Equity, supra note 2, at 205, 229-30.

78. See Mary Leonard, School Ruled Liable in Harassment Case, Boston Globe, May 31, 1999, at C7.

79. See Smith & Meier, supra note 22, at 27-28.

80. Id. at 28.

81. See Ravitch, supra note 39, at 6-76.

82. See Tim King, Commentary, Catholic High Schools Offer Hope, Chi. Trib., Feb. 16, 1999, at A14.

83. See supra Part II..

84. The civic dimensions of public schools include: (1) democratic political control; (2) public dollars collected and distributed through public mechanisms; (3) public management staffed by public employees; (4) implementing public norms, such as racial desegregation, free speech protections, due process protections; and (5) preparing students for civic participation through explicit and implicit curricular activities. Does abandoning 1, 2, and 3 jeopardize 4 and 5?

85. See Orfield, The Growth of Segregation, supra note 41, at 64-65.

86. See Kevin S. Huffman, Charter Schools, Equal Protection Litigation, and the New School Reform Movement, 73 N.Y.U. L. Rev. 1290, 1299 (1998).

87. See id. at 1299.

88. See McUsic, supra note 14, at 126.

89. See id. at 127. These are not the kinds of problems well addressed by litigation challenges to school finance schemes.

90 . See Justin M. Goldstein, Exploring ‘Unchartered’ Territory: An Analysis of Charter Schools and the Applicability of the U.S. Constitution, 7 S. Cal. Interdisc. L.J. 133, 149-50 (1998); see also Huffman, supra note 86, at 1291-93 (discussing the large variation of charter schools among different states).

91. See Goldstein, supra note 90, at 162. Even private schools receiving no public funds may face the sanction of loss of their tax exempt status.

92. See Rendell-Baker v. Kohn, 457 U.S. 830, 840-43 (1982).

93. See John B. McConahay, Reducing Racial Prejudice in Desegregated Schools, in Effective School Desegregation: Equity, Quality and Feasibility 35, 48 (Willis D. Hawley ed., 1981).

94. I apologize to Jim Wallis, who coined the phrase “steering the wind.”

95. The Music Man (Warner Brothers Pictures 1960).

96. We could join the bandwagon of excessive claims, but in the name of uniting the best of past and future reforms. Consider, accordingly, that shifting to school choice is a reform that we could not simply discard and then start over again. If fully embraced, school choice would not leave enough of a system in place to return to common schools.

97. See Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 33-35 (1997). See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998) (outlining a more collaborative form of government rule-making).

98. Audre Lorde, Sister Outsider 144 (1984).