Education is not listed among the enumerated powers of Article I Section 8 of the Constitution. Yet the national governments of the United States have maintained an interest in education going back to the Congress under the Articles of Confederation, which in the Land Ordinance of 1785 established that the 16th of the 36 square miles of the territory in the Northwest being surveyed under the authority of the Congress was reserved for the maintenance of free public schools.

The major current Federal involvement in K-12 education, Title I of the Elementary and Secondary Education Act, was part of LBJ’s great society and was intended to provide “Financial Assistance To Local Educational Agencies For The Education Of Children Of Low-Income Families.” This was a recognition that some districts lacked the tax base to provide an equitable education, and in other districts children of poverty were provided with lesser resources than those from more well-off circumstances. This especially affected minorities, especially blacks in inner cities and in some rural parts of the South, thus undercutting the promise made in Brown v Board.

This morning, two pieces of legislation intended to address some of the inequities of current federal educational funding will be introduced by Rep. Chaka Fattah, D- PA02. These are the Fiscal Fairness Act and the Student Bill of Rights Act, tomorrow both of which are designed to amend the Elementary and Secondary Education Act of 1965 (ESEA).

Rep. Fattah is not currently on the House Committee on Education and the Workforce, which is the authorizing committee for legislation affecting schools. He left that committee when he joined Appropriations, which as an “exclusive” committee (as is, for example, Ways and Means), requires that the Members serve on no other committees absent a waiver. Yet education has remained his primary interest throughout his Congressional service, now in its 9th term.

Recently one of our own, spedwybabs, was meeting with one of his staffers and when she heard about the Representative’s initiatives, suggested connecting the office with me because of my interest in matters educational. As one of his staff noted during our exchanges,

Our country was predicated on the fundamental idea of equality, yet in every state in the country there continue to be poor children receiving less of everything we know they need to experience a quality education. Our ongoing attempts at closing the proverbial achievement gap through various policies and practices, while necessary and generally well intentioned, have not adequately addressed vast gaps in opportunity and funding. Left unaddressed, these gaps will continue the disparate academic outcomes we witness along racial, economic, language, and ability lines.

I cannot in one posting thoroughly explore all of the legislative language. The office was kind enough to send me the text being introduced, along with some background and explanatory material, from which I am heavily borrowing. Today I want to give some background on both initiatives and offer a few comments of my own. I hope in the near future to go into greater depth on the issues these legislative initiatives are intended to address.

The Student Bill of Rights (SBOR) is something the Congressman has been pursuing for several Congresses. The current iteration is based on the Opportunity to Learn framework of the Schott Foundation, and is supported by among other the National Education Association. As a key adviser to the Congressman wrote me, it

addresses the centuries-old injustice of dramatic inadequacy and inequity of resources between school districts. While we have made significant strides in recent years in measuring the difference in educational outcomes between schools and districts, there has not been nearly as much attention paid towards the resources that encourage, allow, or promote student learning. We do not fully know to what extent all children have a meaningful opportunity to learn.

SBOR defines opportunity to learn indicators as:
• Highly effective teachers
• Early childhood education
• College preparatory curricula; and
• Equitable instructional resources

The bill requires that States provide ideal or adequate (as defined by the State) access to each of these resources. The bill also requires States to comply with substantive Federal or State court orders regarding the adequacy or equity of the State’s public school system.

Similar to improvement plans required under existing law, SBOR requires States to provide a remediation plan to address any disparity or inadequacy in the opportunity to learn indicators available to the lowest and highest performing school districts.

Here let me offer some observations, or if you will, editorializing. Let’s look at the first of the opportunity ot learn indicators listed above, “Highly effective teachers.” The current 2001 iteration of the ESEA, commonly known as No Child Left Behind, has a provision that all children are supposed to be instructed by “highly qualified teachers.” Recently the 9th Circuit Court of Appeals ruled that teachers from programs such as Teach for America, which provide minimal training before placing their candidates in the classroom (in TFA, only 5 weeks), did not meet the qualifications of the law, and the parents of such children had to be notified. TFA is heavily politically connected, and as a result Sen. Harkin (chair of the Senate Committee on Health, Education, Labor and Pensions that previously was led by the late Ted Kennedy), inserted language into a Continuing Resolution to change the definition of “highly qualified” so that those from TFA were so considered and parents would not have to be notified. It is not clear to me how this benefits the students taught by those reclassified. In my mind, the change was more to benefit TFA and similar programs without regard for the impact of the effect upon the students.

This should be of concern. Let me quote from the legislative language of the bill a portion which quotes from the Secretary of Education, Arne Duncan:

(9) According to the Secretary of Education, as stated in a letter (with enclosures) dated January 19, 2002, from the Secretary to States—

(A) racial and ethnic minorities continue to suffer from lack of access to educational re- sources, including ‘‘experienced and qualified teachers, adequate facilities, and instructional programs and support, including technology, as well as . . . the funding necessary to secure these resources’’; and
(B) these inadequacies are ‘‘particularly acute in high-poverty schools, including urban schools, where many students of color are isolated and where the effect of the resource gaps may be cumulative. In other words, students who need the most may often receive the least, and these students often are students of color’’.

Whatever our national approach to education, if it continues to exacerbate the inequality of opportunity for children of lesser means, who are disproportionally found among minority communities (especially Black, Hispanic and Native American), we will continue a pattern of disparity that Brown v Board at least in theory was supposed to address, as were many other court rulings and legislative initiatives. Absent equity we will be leaving children behind, no matter how nobly we may label some laws.

As to the Fiscal Fairness Act, allow me to quote the brief summary offered on the Congressman’s Congressional web page:

The ESEA Fiscal Fairness Act – amends the Elementary and Secondary Education Act, which is up for reauthorization this year, and a takes giant step toward achieving the promise of Brown v. Board of Education, which ended legal segregation in schools but has left unfulfilled the promise of equal opportunity in all our schools. The measure requires school districts to equalize the real dollars spent among all schools within its jurisdiction – with the imperative to raise the resources allotted to schools in the poorest neighborhoods to meet those in well-off schools – before receiving federal aid.

Let me add language from the summary sent out by the Congressman’s office:

The original purpose of the Elementary and Secondary Education Act of 1965 (ESEA)was to provides supplemental funding to districts and schools to cover some of the additional costs of educating low-income students. Inherent in the law was the recognition that, because of the realities of povert, these students would need resources in addition to those available to their peers. More than any other provision in that law, the comparability requirement seeks to ensure that federal funds are used to support existing, equitable State and local efforts, rather than to compensate for State and district inequities. Because of loopholes in the Statute, Departmental regulations, and a lack of meaningful enforcement, this provision has never truly lived up to its intended purpose. The ESEA Fiscal Fairness Act seeks to correct this historic oversight and to restore the original intent of the ESEA. The bill addresses problems with the current statute and its implementation, as well as updates the law to accommodate current school improvement strategies and the use of Title I funds.

If one reads through the legislative language of the two proposal, one cannot escape the realization that our ongoing approaches to educational reform are still failing too many of our young people, and thus our society as whole. Looking at the larger picture, which is often necessary to persuade legislators whose districts are not heavily affected by the issues these bills seek to address, or who philosophically or for economic reasons oppose spending federal funds for public education, we find arguments about the impact upon our economic interests as a nation and the high proportion of our young people who cannot meet the standards required for military service, thereby posing a potential threat to national security. I acknowledge these are important.

For me, perhaps because I am a classroom teacher, my focus is the individual students. We have students who transfer to the school in which I teach from elsewhere. Some arrive without having had the opportunities necessary to develop educationally. Some come from schools that are resource poor, from districts that lack resources or distribute them in an unfair manner that tends to disproportionally hurt those who already begin with lesser opportunity. I believe that a public school should provide every student the opportunities that mean s/he can develop fully as an individual. Circumstances of birth and geography should not be allowed to limit one’s potential. In part that is why I continue to teach in a PUBLIC school, despite the difficulties (overcrowded classrooms, financial stresses on the system, some disciplinary issues) concomitant with such a setting (although our school is far better off than many with respect to these and similar issues).

I have no idea what chance Rep. Fattah has of getting his proposals enacted into law. With the Republicans controlling the House, and with some of the members of the relevant authorizing committee not particularly in favor of a major federal role in education, I am not sanguine about the changes of success in these initiatives. Still, I believe the Congressman is to be commended for raising the issues he does, because we need to consider the impact of what is currently happening to our young people, in large part because what we do in educational policy has the effect, intended or otherwise, of perpetuating and even exacerbating the lack of educational equity that has been such an unfortunate part of our heritage.

If nothing else, perhaps these issues can become a part of the conversation. In my mind they should be more significant than the latest round of test scores.

Unfortunately, there is a school of thought that thinks we should spend LESS on public education, that has no trouble with expanding class size – here I note that high scoring Finland committed to keeping class sizes significantly smaller than most American public schools, at a level round 20. One cannot help but wonder about that impact, even if Bill Gates argues that a highly skilled teacher with a larger class is better than two smaller classes one of which has a less skilled teacher. That may be true, but then should not the response be to provide more highly skilled teachers rather than overburdening those we already have? I am going to remember that when today I look out at my three Advanced Placement classes containing respectively 36, 38, and 38!

I intend to remain in contact with the Congressman’s office. I may even have a dialog with him. I am committed to helping people understand the issues around education. These are interesting proposals, worthy of full discussion and exploration. I fear that in the current climate they might receive neither. Part of my writing about them is to try to raise their visibility.

Thanks for reading.


About the Author

Kenneth Bernstein

Kenneth Bernstein is a National Board certified social studies teacher at Eleanor Roosevelt High School in Greenbelt, Maryland, where he serves as the lead union representative for the teachers. He blogs as "teacherken" at Daily Kos and has written for The New York Times, Teacher, CNN.Com, and Huffington Post. He is a 2010 Washington Post Agnes Meyer Outstanding Teacher.

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