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Remedial Education (Clint Bolick)

A world of education reform will change tomorrow when a group of families files a class action lawsuit in Chancery Court in Newark, N.J. They are asking for an immediate and meaningful remedy for 60,000 children trapped in failing schools — by transferring control over education funds from bureaucrats to parents.

Seeking to vindicate the state constitutional guarantee of a "thorough and efficient" education, the plaintiffs in Crawford v. Davy ask that children be allowed to leave public schools where fewer than half of the students pass the state math and language literacy assessments that measure educational proficiency; and that the parents of these children be permitted to take the pro rata share of the public money spent on their children, to seek better opportunities in other public or private schools. Supporting the families are three prominent New Jersey groups: the Black Ministers Council, the Latino Leadership Alliance, and Excellent Education for Everyone.

The remedy these parents seek is fundamentally different from the one established by more than three decades of litigation across the country. Courts in states like New York, Texas and California have ordered massive increases in school funding to fulfill state constitutional mandates for educational "equity" or "adequacy," all on the belief that more money will boost school quality and student performance. The funds have produced new programs and bureaucracies, but too often they fail to trickle down to the students by way of improved educational quality.

In any area other than education such a remedy would be considered bizarre. Suppose you purchased a car whose warranty promised "thorough and efficient" transportation, and it turned out to be a lemon. If you sued to enforce the warranty, would a court order a multibillion dollar payment to the auto maker in the hope that someday it would produce a better product? Of course not: It would order the company to give your money back so you could buy a different car.

That is what the families in this case are asking for. When children don’t learn, they may lose that opportunity forever, so a remedy that offers a hypothetical future improvement is no remedy at all. Only by giving parents control over their children’s education funds can they secure good schooling when their children need it — today. At the same time, the remedy will create a powerful catalyst for failing public schools to get their acts together.

School choice remedies are not unknown in education. Under the federal Individuals with Disabilities Education Act, the Supreme Court has ruled unanimously that where public schools fail to provide an "appropriate" education, they must pay tuition in private schools. Nationally, tens of thousands of children with disabilities benefit as a result. Likewise, the No Child Left Behind Act mandates that children in failing public schools must be allowed to transfer to better-performing public schools within the district. Only 1% of the eligible children have transferred, however, because of NCLB’S lack of a private school transfer option; and so nearly four million children languish in chronically failing public schools.

New Jersey courts have for their part repeatedly recognized that the state constitution’s education guarantee is judicially enforceable; and the state itself has set the minimum proficiency standards to which the defendant school districts in Crawford v. Davy fall appallingly short. New Jersey is also the state that has traveled farthest down the path of pursuing educational adequacy through new school funding and programs — starting in 1973, when the state Supreme Court first declared the state’s school finance system unconstitutional in Robinson v. Cahill and again in 1985 in Abbott v. Burke. Today, dozens of schools in the so-called Abbott districts remain under court control. With abundant funding, some Abbott schools have improved, while others haven’t. On balance, however, the New Jersey experience demonstrates that money alone cannot solve the ills of public education.

One of the defendant school districts in the new suit, Englewood City, spends $19,194 per student, well over twice the national average. But at Dismus Middle School, over two-thirds of the students do not have basic proficiency in math and fewer than half are proficient in language arts literacy. Newark, a recipient of massive Abbott funding, spends $16,351 per student and pays its teachers an average salary of $76,213. Yet in 24 of its schools, fewer than half the students demonstrate basic proficiency in math or language arts. At William H. Brown Academy and at Dr. Martin Luther King, Jr. School, fewer than one of every 10 students demonstrates basic math proficiency. It’s time to try something else for these children.

The lead plaintiff, Van-Ness Crawford, has struggled to obtain a safe and decent education for his three sons in the Newark Public Schools. But by reason of residency and financial circumstances, they are forced to attend Malcolm X. Shabazz High School, where over 80% of the students are failing mathematics. For them the guarantee of a thorough and efficient education is an empty promise. That will change if Mr. Crawford is able to wrest away a pro rata share of his sons’ education funds from the officials who have failed his children and thousands of others. Such a remedy also would send a wake-up call to other districts across the country: If they fail to produce, they may lose not only students who currently have no other choices, but the funding that accompanies them.

I grew up in Hillside, a suburb of Newark, in a single-parent, working-class family. In 1975, Hillside High School graduated me with enough skills to secure a scholarship at an excellent college and go on to a successful career in law and public policy. Some 31 years later, Hillside is at the 20th percentile nationally in language arts and math, and scores are plunging for the black and Hispanic students who comprise nearly 90% of its student body. Young people in that community today who go on to higher education and productive livelihoods do so not because they attended Hillside High, but despite it.

That so many schools are obstacles to opportunity stands the concept of public education on its head. To fulfill the promise of high-quality education we must enlist all options, including school choice. For Van-Ness Crawford’s sons and millions of other children in failing schools, that option cannot come soon enough.

Clint Bolick is president and general counsel of the Alliance for School Choice.  This column originally ran in the Wall Street Journal.