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PEDAGOGICAL EVOLUTION: THE CHARTER MODEL AND THE TRANSFORMATION OF PUBLIC EDUCATION

Ari Allen

December 17, 2010

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I. Introduction

The American public education system is broken. In 2006, the average science

score for U.S. students ranked 17 among 30 OECD nations. The average mathematics

score ranked 24.1 Where we were once a leader, we are now a failure. We are not only

falling behind, we have been lapped. Unfortunately, we have not only failed ourselves,

but we have failed our children. Consequently, we are continually condemning our

nation’s future to failure – which is inextricably intertwined with our children’s

development into constructive members of society.

There is a dual dilemma that arises when confronting the transformation of public

education. The goal is to both support disadvantaged students so that they have the tools

to fulfill their potential, while not compromising the need to challenge high-achieving

students. In a word, high-achievers should be allowed to soar, while the disadvantaged

should be taken under our wing and taught to fly.

When I began writing this paper, I was convinced that charter schools were the

answer to the failures plaguing American public education. I am still convinced that the

charter model can play a serious role in ensuring that we not only reform public

education, but that we transform it.

More importantly however, I have realized that before charter schools can

transform public education, the law must reform the implementation and transform the

administration of the charter model. This paper will explore: (A) the foundations of the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1 Maria Glod, U.S. Teens Trail Peers Around World on Math-Science Test, Washington Post (December 5, 2007).

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charter model as a free-market approach to public education; (B) the critiques and

shortcomings of the current charter model; and (C) proposals to overcome the obstacles

necessary for the charter model’s success. For now, let us begin with the foundations of

the charter model.

II. Analysis

A. Foundations: The Charter Model’s Reliance on Free-Market Ideology

The charter model reflects market theory, in that it “presumes diverse individual

preferences that are neglected in necessarily uniform public provision, because public

schools are shielded from market discipline and are not accountable to their consumers.”2

In essence, it reflects a criticism of the public administration of education “on the

assumption that public bureaucracies cannot innovate, whereas consumer choice and

competition between autonomous providers offer the opportunity and incentives to

innovate.”3

Milton Friedman and Gary Becker, Nobel laureate economists have stated that

choice and competition “would induce a more rapid rate of innovation into curriculum

and teaching.”4 While most of the support for the “choice movement” has been found

among political conservatives (who generally resort to free-market solutions) and many

charter programs have been defeated by the teachers’ unions and the Democratic Party,5

even Bill Clinton declared that “the right to choose will foster competition and

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!2 H.J. Walberg, Market Theory of School Choice, Education Week, 19 (2000). 3 Christopher Lubienski, Innovation in Education Markets: Theory and Evidence on the Impact of Competition and Choice in Charter Schools, American Educational Research Journal, 40:2, 398 (2003) 4 Milton Friedman, Economics and the Public Interest, New Brunswick, NJ: Rutgers University Press, 127 (1955). 5 See James Peyser, School Choice: When, Not If, 35 B.C. L. Rev. 619, 622 (1994).

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innovation.”6 Furthermore, the use of charter schools in achieving innovative education

is of large importance in the No Child Left Behind Act.7 As such, the “R&D potential is

an important part of any policy-oriented appraisal of the charter phenomenon.”8

As such, states began implementing reforms to enable charters within their

jurisdiction. For example, Minnesota declared the purpose of charter schools in its

enabling law: “(1) improve pupil learning; (2) increasing learning opportunities for

pupils; (3) encourage the use of different and innovating teaching methods.”9

Meanwhile, Illinois sought “the development of innovative and accountable teaching

techniques,” in order to create more flexible pedagogical styles.10

Increased accountability is another important facet of the charter model, as

reflected in the Illinois enacting law. While charter schools “receive considerably more

autonomy from state and local regulation in terms of student recruitment, curriculum,

budget and staffing,” the schools must still “propose an operating format and a set of

goals in their applications,” and “at the end of the charter period (typically five years), the

schools may be closed if they have not met their stated goals.”11 Thus, accountability is

an additional benefit of the charter model approach, and can be compatible with

innovation because gauging accountability is based upon the schools specific “stated

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6 Bill Clinton, State of the Union address (1997). 7 Lubienski, supra note 3, at 400. 8 Id. at 401. 9 Minn. Stat. §124d.10, Sub. 1 (2010). 10 105 ILCS 5, 27A, et seq. (2010). 11 Kevin Huffman, Charter Schools, Equal Protection Litigation, and the New School Reform Movement, 73 N.Y.U. L. Rev. 1290, 1290 (1998).

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goals.” As one expert mentions, “[a]ccordingly, the general notion is that charter schools

are both more autonomous and more accountable than other public schools.”12 Indeed:

“Supporters insist that the ultimate accountability – the threatened closure of the schools through a revoked charter – leads schools to focus on student achievement. They argue that this is a market improvement from traditional public schools, which have great difficulties firing incompetent staff, let alone closing an entire school.”13

For now, advocates point to the large number of charter schools with waitlists as

evidence of success and parent satisfaction.14

B. Shortcomings: Uniformity and the Achievement Gap

a. Risk-Averse Experimentation

One difficulty that many critics have pointed out is that the charter approach is

having counterintuitive outcomes – namely, “schools use their newfound autonomy to

emulate established practices found in successful schools.”15 This is because parents are

seen as “inherently conservative consumers.”16 After all, parents don’t want to use their

“children as guinea pigs.”17 As such, “parental preferences constrain opportunities for

innovation.”18

A secondary, but related problem, is identifying who the “consumer” is in an

education market. Is it the child, the parent, society-at-large?

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!12 Huffman, supra note 11, at 1295. 13 Id. at 1295. 14 See Jeanne Allen, Testimony before Subcommittee on Early Childhood, Youth and Families, 1997 WL 14150772 (Sept. 16, 1997). 15 Lubienski, supra note 3, at 396. 16 Id. at 422. 17 Id. at 423. 18 Id. at 422.

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“In education the identity of the consumer—a central role in the economic cast of characters—is ambiguous and is confounded by the production process. Students most immediately ‘consume’ education, but usually are not themselves the ‘customers’ choosing between options in an education market system. Parents are the ‘proxy-consumers’ in choosing for their children, buy they do not ‘consume’ in the sense of enjoying the individualized capital effects of education as a direct personal benefit. Others see the community or society as the ultimate consumer of education because the externalities of widespread provision involve general social effects, such as crime rates, fertility rates, and social capital… Without a clear sense of the consumer—a lead character in a market system—the beneficiary of (and, therefore, motivation and purpose for) innovation is uncertain.”19

It seems however, that no matter who the consumer, education is an issue of such

grave importance, and methodological controversy, that schools “tend to emulate

established conceptions of schooling rather than use their autonomy to try substantively

different approaches.”20 While critics often cite this tendency as a shortcoming of the

charter model in achieving innovation, they often ignore that this tendency is the very

mechanism from which accountability arises. From an evolutionary perspective,

innovation and diversity (or variation) is only one piece of the puzzle. The other

important mechanism is selection, and we select based on standards of accountability.

Once a selection is made, it is imitated (or replicated) as a successful model for

pedagogical progress. For example, “most of the practices that might seem innovative at

the local level would now appear to replicate approaches already familiar in the state or

known from elsewhere (an example is Massachusetts charters using the Edison

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!19 Lubienski, supra note 3, at 425. 20 Id. at 399.

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curriculum).”21 As such, the critique that “rather than developing new educational

practices, charter schools are embracing curricular and instructional approaches already

in use,”22 does not reflect poorly on the charter model. On the contrary, it shows that

both the innovation and selection mechanisms are both active and healthy in shaping

market forces.

However, we must ensure that the forces of selection do not overtake the forces of

innovation. In a word, economists would term these instances as monopolies. Indeed,

“as critics note, public monopolies engender disincentives for trying different

approaches.”23 As such, it is important to carefully balance innovation, diversification

and variation with emulation, imitation and selection. Only then can we have a truly

evolutionary system of education that adapts to the needs of whatever consumer it is

focused upon. For this reason, we must also be wary of education management

organizations (EMOs) as establishing a quasi-public monopoly over the entire realm of

education.

Yet selection also creates a scenario that provides specifically tailored options to

whatever consumer is approached – it is a scenario in which “diversification is itself an

innovation.”24 For example, there are “child-centered practices” which are popular with

progressives, Afrocentric curricula for specific cultural pedagogies, hands-on learning,

block scheduling, and many other pedagogical variations.25 Importantly, a diverse menu

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!21 Lubienski, supra note 3, at 419. 22 Id. at 421. 23 Id. at 400. 24 Id. at 405. 25 Id. at 408.

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is necessary in order to ensure real choice. As such, “public choice theorists would see

such communities as homogenous preference clusters that best respond to aggregated

preferences while reducing friction and conflict over such issues in the wider context.”26

From this perspective, greater choice not only leads to greater individual autonomy in

choosing pedagogical methods, but also greater social cohesion within those pedagogical

methods (due to homogenous preference clusters) and more tolerance toward those who

prefer other pedagogical methods.

One expert writes, “A substantial number of the schools adjust traditional

boundaries of schooling—scheduling and age-grouping—for instance, to provide a

distinctive option for parents… Charter schools are able to move away from the

comprehensive or common school model of being ‘all things to all people’ by focusing

on serving specific groups—based on interest, ethnicity, risk factors, and so on.”27 The

problem with such homogenous preference clusters being reflected in education, is that it

would likely lead to a lack in diversity. Being that such specific innovations may “not be

transferable to most public schools,” because “a focus on hearing-impaired students, the

use of parent contracts, or an Afrocentric curriculum may offer advantages for educating

some students,” but certainly not all. 28 Thus, the charter model could lead to a new type

of ‘preference-based’ segregation. This will certainly prove to be a difficult obstacle in

balancing innovation and selection.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!26 Lubienski, supra note 3, at 401. 27 Id. at 415. 28 Id. at 415.

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1. The Nature of Experimentation: Diverse Pedagogical Models

As mentioned above, there are varying preferences when it comes to pedagogy.

This subsection is an attempt to show that while parents may be risk-averse toward

emerging pedagogical methods, there are many parents who are willing (and indeed,

seek) different approaches to education, based on their preferences or needs. Some of

these preferences are mere preferences – a preferred style of learning that may fit a

particular student. For example, students and families with particular interests (for

example, cultural or holistic education) may prefer a different pedagogical style than

students who prefer the risk-averse traditional models. On the other hand, some

preferences are due to necessity – hearing-impaired and special needs students require

different pedagogical methods because the traditional methodology simply will not

achieve pedagogical objectives. Below is a brief overview of some of these pedagogical

methods and how they may fit certain clusters of preferences and needs.

i. Waldorf Education

The Waldorf pedagogical model is based in the anthroposophical teachings of

Rudolf Steiner. It provides a unique pedagogical method that may be preferred by

families who believe in holistic education rather than traditional models. For example,

while traditional models focus on producing a productive work force by focusing

intensively on math and hard sciences, the Waldorf model purports to educate not only

mind, but body and soul as well – not only the productive faculties, but also the creative

and value-centric faculties. The Waldorf approach proceeds under the assumption that it

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is important to not only prepare the intellect, but the emotional and spiritual aspects of the

child entering the real world. The real world is not merely made up of scientific concepts

and mathematical models, but is dependent on social interactions, self-discipline, and

emotional wellbeing. One writer states this idea particularly elegantly:

“Waldorf education offers a unique approach to teaching and to the curriculum. The Waldorf movement with its unique understanding of the education of the child and its years of teaching practice deserves the informed consideration of those genuinely concerned with education and the development of human wholeness.”29

Students similarly understand the value of Waldorf education, and come to

appreciate its depth from a well-reasoned standpoint. One student explained:

“Learning… need not be limited to ‘intellectual activities and concepts.’ Through the

practical lessons, we are learning what is useful beyond the academic.”30 One educator

notes that life is not merely about “theoretical or abstract concepts,” but also practical

activities ranging from art to gardening. These ultimately “human” activities are

generally excluded from traditional education. However, any families and students

would prefer such a holistic education because it aligns with their value system and

reverts to a pedagogy that is less impersonal. Indeed:

“In a time when many educators have grown tired of traditional models of public school education, it might be helpful to examine further this rather unique, enduring, and growing school movement. The Waldorf Schools offer an approach to humanistic education, which has stood the test of time.”31

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!29 Sarah Foster, An Introduction to Waldorf Education, The Clearing House, 57(5): 228 (1984). 30 Id. at 229. 31 Foster, supra note 29, at 230.

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ii. The Ross Model

Similarly to the Waldorf model, the Ross model also presents a holistic approach to

education. As one observer notes:

“The Ross School approach is based on the idea of lifelong engagement in learning and wellbeing. Its integrated cultural history curriculum facilitates in-depth master of disciplinary subjects as well as interdisciplinary habits of mind.”32

The Ross School was originally located in East Hampton as a private school for

wealthy families, but has now expanded into the charter system in New York City.

Additionally, it has opened an institute that teaches its pedagogical methods to willing

educators that want to introduce the innovative methodology into traditional classrooms.

The Ross School finds its origins in the philosophical teachings of William Irwin

Thompson. According to Thompson, “to prepare the young for the future, adults have to

know where they are in the present.”33

The Ross curriculum focuses putting concepts in a historical context. The idea is

that if students can see the way concepts developed and became what they are today, they

have a greater likelihood of understanding the concepts, and creatively developing them

into the future. It also breeds tolerance and respect for other cultures because it

emphasizes the similarities between cultural teachings and begins in kindergarten by

introducing very simple concepts that develop and blossom into the diverse cultural !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!32 Marcelo Suarez-Orozco, Rethinking Education in the Global Era, The Phi Delta Kappan, 87(3): 209 (2005). 33 William Irwin Thompson, Transforming History, Lindisfarne Books, 13 (2009).

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interpretations that we have today. In a Campbellian sense, truth is unknowable but

wears many masks. The goal of the Ross School is to understand the many masks, and to

also understand them as masks, and not an ultimate truth. Such beliefs in “ultimate

truths” are barriers to mutual understanding, tolerance and respect. As such, students are

taught to be more compassionate citizens – which in my view, is an important civics

lesson.

Moreover, Thompson criticizes the public school system by noting: “The public

school system was a response to the elimination of the child labor that had been fine for

the farm but was not fine for the factory.”34 As such, Thompson suggests that we are

approaching a new “planetary culture,” and so education needs to be revamped

accordingly. While this belief would not be shared by every parent or student, it is

certainly a promising alternative with an interesting value system that many families

would and do subscribe to.

The pedagogical approach involves teaching students concepts chronologically.

In other words, kindergarten students learn what the prehistoric learned on their own (the

discovery of patterns and cycles – such as seasons and the rising and setting of the sun).

This develops through early Mesopotamian societies by teaching irrigation and

agricultural techniques, and then on to Greek civilization in which students learn about

Pythagoras and his contemporaries. Eventually, by the end of high school, are learning

modern relativistic physics. The curriculum culminates with a senior project that allows

the students to creatively develop these concepts into the future.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!34 Thompson, supra note 33, at 11.

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This approach makes intuitive sense – allow children to develop as if they have

lived through the entire cultural history of humanity. In my opinion, there can be no

better pedagogical approach to obtain a full understanding of concepts vertically

(chronologically) and horizontally (cross-culturally). However, from a Ross perspective,

truth is unknowable, and thus, my views are merely that – my views. Clearly I have my

own preferences – and they may differ from other students’ and their families. The point

however, is that there are real alternatives out there, and no matter how radical, students

and families should have the option to explore these alternatives. Nobody should have a

monopoly on education, lest we end up in 1984. Child development is too important and

personal to be subject to public monopoly. Of course, private schools are always an

option – but not for everybody. The charter model allows families to explore these

alternatives even if they do not have the financial means to enroll their children in private

schools. Varying value systems require varying pedagogical models. Access to these

models is of prime importance if we are to close the achievement gap because all students

must have equal access to new and innovative pedagogies.

iii. Special Needs and Autism

While most special needs programs are built into larger charter schools, there are

also charters that specifically cater to students with special needs. Indeed, their charter’s

objectives include special needs as part of its purpose. In the opinion of this author,

charters that are directly tailored directly to the needs of their students will be most

successful in reaching their objectives – especially in cases of special needs, such as

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autism. This should seem intuitive – a charter should be specific when defining its target.

If a charter lumps together multiple objectives, it is likely to diminish and dilute them all.

However, in the case of special education, some critics disagree. For example,

one argument, supporting the integration of autistic and mainstream students, holds that

“once autistic children are segregated from others, they can never return to normal

societal functioning.”35 In other words, the presence of mainstream students helps the

autistic children learn to function socially in the real-world without being protected by an

illusory bubble. Additionally, it could be argued that this breeds tolerance, respect and

understanding of the autistic children by those in the mainstream. For example, as one

administrator explains: "Philosophically, we prefer to have our students exposed to a

general education population.”36 As such, “the children are in separate classrooms, but

they are in the same cafeteria for breakfast and lunch, and they walk the same hallways."

This debate is not an easy one to resolve. However, at least the charter model provides

the freedom to choose amongst these methods, and then the opportunity to evaluate

which methods are most effective. This is further evidence of the utility of the charter

model in sorting effective pedagogy as applied to specific needs and preferences.

However, when it comes to autistic children, we can find a point of general

agreement: autistic children can “develop to function normally within society if they get

early intervention.”37 For this reason, it is important to have specialized early intervention

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!35!Colleen Wixon, Specialized Programs Can Reach Autistic Children, South Florida Sun-Sentinel (Oct. 28, 2007).!36!Kathleen McGrory, Autistic Kids Find Options, Sun-Sentinel (Oct. 19, 2009).!37!Wixon, supra note 35.!

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programs that are accessible to all parents – not just those that can afford private school.

If every child is entitled to an education, then autistic children are entitled to early

intervention, because they cannot be educated without it. As noted by Laura McGill, a

specialist in autistic programs: “a lot of traditional approaches don’t work [with autistic

preschoolers].”38

For example, the use of pictures in communication is one non-traditional need

that is provided specifically for autistic students, and would not be provided more

generally. Some students may not be able to verbally communicate, and so, the

classroom is designed so that students can point to pictures in communicating with their

teachers and peers. Additionally, small class sizes are needed because autistic children

have trouble tolerating noise and overstimulation.39 As such, it is clear that parents of

autistic children have a special need that must be addressed – and not merely a

preference. There are pedagogical approaches that serve autistic students better than

traditional methods, and so, the charter system is one way to bridge the divide between

those that can afford quality special education and those who cannot.

b. The Achievement Gap

Many opponents to the charter model fear that the schools will “discriminate,

either explicitly or implicitly, by race or socioeconomic status and will deny equal access

to public education opportunity.”40 However, this seems inconsistent with the fact that

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!38!Wixon, supra note 35.!39!Id.!40 Huffman, supra note 11, at 1292.

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“about twenty percent [of charter schools] were started to target specific student groups,

including at-risk, language minority, and racial minority students.”41 Indeed:

“Many have been designed specifically to aid students with disabilities who have difficulty succeeding in traditional schools. According to a study by the Hudson Institute, sixty-three percent of all charter school students are members of racial minority groups, fifty-five percent live below the poverty line, nineteen percent have a diagnosed disability (compared with ten percent of all students nationwide), nineteen percent have limited English proficiency, and fourteen percent would not otherwise attend school at all. Among the specialty charter schools are academies for high school dropouts, technical skills academies, and schools for the deaf. The U.S. Department of Education has offered less optimistic assessments, estimating that while charter schools serve a slightly higher portion of students of color than statewide averages, they generally serve a slightly lower percentage of disabled students and limited English proficiency students than traditional public schools, and about the same proportion of low-income students.”42

As such, it seems that even the most pessimistic of statistics shows that

discrimination is no more problematic in the charter system than in the public school

system. From another perspective, it is in fact, less problematic than the public school

achievement gap. It is also important to note that these statistics are most promising in

states that have lenient laws on the regulation of charters – in other words, allowing

charter schools greater autonomy. For example:

“[I]n both Colorado and Georgia, charter schools serve about half as many black students (by percent of total students served) as traditional public schools and serve fewer low-income students. The Colorado Senate debated

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!41 See U.S. Dep’t of Educ., A Study of Charter Schools: First Year Report (May, 1997). 42 Huffman, supra note 11, at 1298-9.

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repealing the state’s charter school legislation but ultimately voted to let it continue indefinitely despite arguments from state Democrats that charter schools failed to reach at-risk students. In Arizona, by contrast, the statewide percentage of black students in charter schools is three times higher than in other public schools, and charter schools serve a higher percentage of low-income students. The variance may reflect the limited state oversight of charter schools; without legislative standards for recruitment or enrollment, states depend a great deal on the efforts of individual school operators.”43

As such, it is important to have coherent standards for recruitment and enrollment

to ensure that charter schools not only promote achievement, but progress in closing the

achievement gap. Many advocates would claim that the charter school specifically

targets this objective as well. For example:

“Advocates also believe that all families should be able to choose which schools their children attend, pointing out that wealthy parents already may choose between public and private schools. Choice advocates dismiss concerns that low-income parents will do a poor job of choosing schools as paternalistic and claim that parents of all backgrounds can and will learn to make adequate educational choices for their children. Finally, advocates argue that charter schools are reaching more minority and low-income children than traditional schools. They point out that nearly two-thirds of charter school students nationwide are nonwhite, and more than half come from low-income families, demonstrating that the lack of regulation has not been used by most charter school operators to exclude minorities and low-income youth. Advocates tie these figures to the entrepreneurial opportunities created by charter schools, arguing that charter schools are drawing educational innovators who expand opportunities for low-income and minority students.”44

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!43 Huffman, supra note 11, at 1299. 44 Id. at 1301-2.

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However, many would claim that we specifically need regulation to ensure that

discrimination does not take place in the charter school system. For example:

“Opponents of charter school reform believe that loose regulation will allow charter schools to siphon the wealthiest and best-educated families from traditional public schools. These opponents fear that traditional neighborhood schools will deteriorate and that the charter school movement will disproportionately burden lower classes and children of color… In a market economy of public education, opponents particularly fear that the ‘failing’ schools will disproportionately become schools for the urban poor and children of color. This siphoning would leave traditional public school students to languish in underfunded, low-quality schools.”45

On this note, we turn to the obstacles to the success of the charter

model as both a driver of pedagogical innovation and a healer of the

achievement gap.

i. Information Deficit

As with any market, the accurate dissemination of information is of the utmost

importance to the proper functioning of that market. If information is not provided, the

consumer has no basis on which to make a choice. This is often pointed to as one of the

greatest dangers that the charter movement imposes on the achievement gap:

“Choice advocates dismiss concerns that low-income parents will have difficulty choosing schools, but this ignores the fact that many parents may be altogether unaware that they even have choices. If parents do not know that charter schools exist or cannot ascertain the purpose of each school, they will not make bad choices, but will choose through uninformed passivity. The nature of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!45 Huffman, supra note 11, at 1302-3.

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charter schools creates a heightened danger of astute parents choose before less informed parents… Schools may be designed in ways that implicitly favor quick-acting, better-informed parents through first-come-first-served admissions policies and the absence of extensive publicity describing the new schools. Implemented on a large scale, charter schools have the potential to tilt school choice, leaving children of poor and ill-informed parents behind.”46

Furthermore, schools may use shrewd marketing techniques to specifically target

and attract higher-achieving students rather than diversifying their student body.

Whether this is deplorable is a controversy for another day. What is clear however is that

information needs to be information, not marketing. In this way, the primary area that the

newly deregulated charter system needs to be re-regulated in, is in how information is

reported. Not only do we need to avoid deceptive information and discriminatory

marketing, but we also need to reconcile the curricular autonomy of charter schools with

the need for reportable standards by which they can be measured against. Indeed, “the

need to judge institutions and outcomes requires standardized criteria for evaluation.”47

However, state- or nation-wide standardized testing would only undermine the

original goal of curricular autonomy, flexibility and innovation. Under such

circumstances, it would be difficult for a charter school established to serve at-risk

students “to provide consumers with evidence justifying their approach,”48 because they

would be measured against external standardized tests that do not necessarily align with

the charter’s objectives. For this reason, it seems clear that we need a new approach to

standardization. One proposal is particularly appealing – that schools “be judged based !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!46 Huffman, supra note 11, at 1318. 47 Lubienski, supra note 3, at 420. 48 Id. at 421.

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on their adherence to their stated charter goals. Therefore, schools that serve

disadvantaged groups will be measured based on improvements of their students, not

against an external standard.”49 This seems especially promising, and creates a paradox

with great potential – namely, the customization of standardization. If the goal of the

charter model is to allow schools autonomy in writing their own “charter” then the

provision of information should rely on “their adherence to their stated charter goals.” In

order to do this, schools would need to create internal controls that measure standards

within that particular school. Perhaps more promising would be to evaluate students on a

case-by-case basis before aggregating statistics for purposes of reporting information. In

other words, improvement-based standardization would test students on the same

material when they enter, and when they exit a specific curriculum (whether it is

monthly, annually, or otherwise). This would be a more accurate reflection of whether

school objectives and student expectations are being met. Once this information is

aggregated, there is sufficient information for a parent to make a decision upon. A parent

can look at the goals and pedagogical style of a school, decide on what fits their child

best, and then evaluate how successful that school has been in implementing and

executing that pedagogy. For example: “Some schools release information about

students’ progress every year while others are examined closely only when applying for a

charter renewal.”50 It would seem intuitive that the releasing information about student

progress more frequently would lead to more informed school choice decisions.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!49 Huffman, supra note 11, at n213. 50 Id. at 1295.

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Unfortunately for now, “almost no states provide standards for information

dissemination.”51 This is viewed as a serious flaw in charter reform legislation. As one

expert explains:

“One flaw in the state charter school legislation is the lack of standards and funding for dissemination of information to public school students and families. Lack of adequate information may prevent some parents from placing their children in charter schools… Some states mention the importance of providing information. For example, Minnesota’s enabling act says: ‘The sponsor, the operators, and the department of children, families and learning must disseminate information to the public on how to form and operate a charter school and how to utilize the offerings of a charter school. Particular groups to be targeted include low-income families and communities, and students of color.”52

However, :

“Concrete standards for information disbursement are almost nonexistent in state legislation. States typically leave student recruitment to local districts and to individual charter schools. Unlike intradistrict choice programs, charter schools are frequently new schools run out of nonschool building including community centers and churches. Their existence may be entirely unknown to many parents in the district. Charter schools beginning in low-income neighborhoods often have to distribute information door-to-door. While schools vigilant in pursuing at-risk students may succeed this way, schools have the power to recruit students with a higher chance of success.”53

So what is holding back the more extensive dissemination of information? The

likely answer is a usual one: funding. However, “[w]hile state legislators may wish to

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!51 Huffman, supra note 11, at 1295. 52 Id. 53 Id. at 1317.

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avoid spending state money in this way, if they are serious about school reform,

information systems must be explicitly created and funded.”54 Indeed:

“[S]tates should require extensive disbursement of information. All parents should know which charter schools are available to their children. This could be accomplished either by requiring new schools to demonstrate district wide recruitment efforts, or preferably by requiring local school districts to disseminate information prior to opening charter schools… One method of increasing the participation of the least wealthy is to ask all parents to fill out a form ‘choosing’ a school. Thus, when charter schools open in a district, all students would submit a form indicating whether the student wishes to transfer to a charter school or return to a neighborhood school. Inevitably, some parents would choose through abstention. Some commentators, however, have suggested that such a policy would increase the percentage of ‘choosers.’”55

ii. Transportation

Another obstacle to the success of the charter model involves public

transportation. This is especially relevant to equal protection issues and the achievement

gap, because underlying the general discussion of busing is the more general concept of

funding. Where the state cannot provide public transportation, the wealthy will be able to

provide it for their children. The disadvantaged however, have nowhere to turn. Below

is an excerpt, which articulates the situation with the utmost clarity:

“Since most charter schools are open to children from the entire school district, the availability of transportation can determine student and parent choice. When no transportation is provided by the district, students again

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!54 Huffman, supra note 11, at 1326. 55 Id.

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become classified on the basis of parental time and wealth. Students with access to cars or with money to ride the bus can attend charter schools while others lose this choice. Losing the opportunity to attend charter schools may be significant, depending on one's view of the movement… Classification based on parental ability to provide transportation creates serious equal protection questions, since students may be segregated by ability to access the choice schools."56

In essence, there are obstacles to the charter system that would not be foreseen at

first glance. However, if we are to have both an effective charter system with

pedagogical experimentation and evolution, and a charter system that assists in closing

the achievement gap, rather than widening it, we must take these obstacles into account.

Transportation is just one obstacle – others are surely to arise as we further develop the

charter system. One thing is clear however: without substantive equal protection, the

charter system will cause more harm than it does good.

iii. Admissions

Granting school autonomy includes autonomy with regards to admissions. While

a private actor performing a public service would usually be required to provide equal

access to all interested, the quasi-privatization of the education system create a unique

and problematic situation.

Charter schools “may be designed with specific academic goals in mind.”57 As

such, the schools must make “important admissions decisions… including whether to

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!56 Huffman, supra note 11, at 1326. 57 Id. at 1322.

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grant or deny student admission based on past academic performance or past behavior.”58

However, this goes completely against the purpose of the public education system, and

especially against ideals that separate is not equal. This places charter schools between a

rock and a hard place – attempting to balance the dilemma discussed at the outset of this

paper. How do we allow the high-achievers to soar while taking the low-achievers under

our wings? This is an especially difficult undertaking without inadvertent discriminatory

effects. This is because “charter schools have additional accountability, since their

charters will be revoked or renewed based on their success in meeting their stated

goals.”59

Additionally, there may be “external pressures… to admit students with a greater

likelihood of long term success.”60 For example, some schools only accept students with

a “’satisfactory’ behavior record at previous public schools.”61 Unfortunately, this has

major consequences for the achievement gap:

“Allowing schools to exclude students with prior behavior problems essentially sets up a choice system that only serves students who already have achieved at least a modicum of success in school. This raises policy questions about the purpose of charter schools. If these schools are effective in raising the performance of at-risk students, why exclude students with prior difficulties in public schools?”62

Under this line of reasoning, we are taking at-risk students because they are a

blank slate that can be molded toward achievement – thus avoiding their inherent “risk.”

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!58 Huffman, supra note 11, at 1323. 59 Chester Finn, Jr. et. al., Charter Schools in Action: What Have We Learned?, 71 (1996). 60 Huffman, supra note 11, at 1323. 61 Id. at 1328. 62 Id.

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On the other hand, we are giving up on students that “missed the boat” because they are

already too far along, and too far behind. This is another obstacle to be addressed in the

charter debate – but not in this current discussion. In short however, lacking standards

“for information distribution and charter school admissions creates potential equal

protection issues under both the federal and state constitutions.”63

Lottery systems are not very helpful in eliminating this problem. While they

certainly help diversify students within charter schools, lotteries are largely flawed. As

one expert notes, “[c]urrent lottery regulations only create lotteries when schools are over

capacity.”64 Thus, “[b]ecause first-come-first-served policies allow well-informed

parents to act before lotteries are necessary, they should be changed.”65 However, a

solution is also offered:

“By combining a lottery for admission with a mandatory choice system, all parents would select a school at the same time. Parents would fill out a form choosing a school (or ranking some or all schools in order of preference), and all forms would be submitted by the same date. District officials would then conduct a lottery for all school where demand exceeds capacity. This approach would truly combine equal opportunity with free market policies.”66

Overall, it is clear that while the foundation of the charter movement relies on the

deregulation of public education, the success of the movement relies on the reregulation

of the admissions process – from the distribution of information, to the physical access to

the school.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!63 Huffman, supra note 11, at 1323. 64 Id. at 1327. 65 Id. at 1328. 66 Id.

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C. Reformation and Transformation: Evolutionary Education

It is clear that “diversification of options alone is not sufficient”67 in order for the

charter model to succeed. Indeed, it is both diversification and access (which includes

access to information, and also physical access to the school) that creates innovation.

Innovation does not occur independently – it is the result of an evolutionary process.

This process involves diversification, and then selection. A free market does not

necessarily ensure these two facets – and if one is missing, the effects could be

counterintuitive and counterproductive. However, when both are present, one can

witness the evolution of a market – in this case, the evolution of education. Indeed,

“innovation does not have to emerge in the for of a singular or distinctly new invented

practice but may involve the combination or continuation of a coherent philosophy.”68

From this perspective, “charter schools themselves are an innovation in governance,”69

and “all newness is a matter of recombining attributed from preexisting models.”70 In

this way, the tendency toward uniformity noted earlier is not problematic – rather, it

enforces the accountability of the charter system. It ensures that diversity of options is

not the sole objective of the movement, but rather, that success is the goal – and success

can only be achieved through accountability. For example, “an invention is adapted for

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!67 Little Hoover Commission, The Charter Movement: Education Reform, School by School (Report No. 138), Sacramento, CA (1996). 68 Lubienski, supra note 3, at 402. 69 Id. 70 Id.

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commercial application (innovation) before diffusion through the marketplace largely by

imitation.”71

Consequently, most policy recommendations involve “focusing on how to better

liberate choice and competition as catalysts for change,” and considering “some ways in

which the interactions of institutions within market dynamics may themselves cause

curricular and pedagogical conformity.”72 However, we must be careful not to “trend

toward standardization of practice rather than innovation.”73 The system is especially

endangered by growing EMOs:

“Whereas teachers were often cast in roles as innovators developing new and exciting curricula, the reality is that they often implement curricular decisions made by building or corporate managers or EMOs.”74

Either way, “charter school legislation represents a step in the road to public

school choice.”75 In sum:

“If schools are forced to compete for students, students will leave failing and ineffective schools. Schools will then be forced to either improve or lose students, and schools that fail to demonstrate success will close down, leaving only those schools that have survived marketplace accountability.”76

III. Conclusion

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!71 Lubienski, supra note 3, at 404. 72 Id. at 419. 73 Id. at 417. 74 Id. at 418. 75 Jonathan Cleveland, School Choice: American Elementary and Secondary Education Enter the ‘Adapt or Die’ Environment of a Competitive Marketplace, 29 J. Marshall L. Rev. 75, 95 (1995). 76 Id.

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In a landmark case, Justice Brennan held that education was not merely a

“governmental benefit” but instead, “played a fundamental role in maintaining the fabric

of our society.”77 As such, it seems that a massive influx of funding would be an obvious

first step in ensuring that the fabric of our society remains strong. If that funding is

utilized to better regulate the flow of information about expectations and achievements of

particular schools, and to pay for necessary technological innovations, and to provide

public transportation for students who have none, then we have succeeded in our attempt

to provide the American dream: a land of equal opportunity. However, charter schools

can play a large role in advancing these aims. Indeed, they already have begun to do so:

“Charter schools will play a prominent role in public education during the coming decade. They suit the political agendas of many and hold great promise for developing innovative approaches to public education. Charter schools have the potential to reinvigorate the public schools in districts that desperately need a boost.”78

However, we must be careful in implementing and executing this delicately

designed system:

“[A]s states quickly move forward with charter school legislation, they risk establishing a process that merely provides further opportunities for well-informed families while ghettoizing the poor and uninformed. The movement toward deregulation allows schools to exclude the neediest students, either through explicit policies or simply through lack of adequate information. Most significantly, several policy changes would allow states to mandate a strong, autonomous charter school movement without depriving

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!77 Plyer v. Doe, 457 U.S. 202, 221 (1982). 78 Huffman, supra note 11, at 1327-8.

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access to the schools. Greater state oversight of admissions policies and dissemination of information would close potential avenues of litigation while maintaining the legitimacy of charter schools.”79

It is in this authors opinion that the charter school system will both improve

overall achievement through innovative pedagogy, remain flexible to keep up with the

times and assist in closing the achievement gap. However, on a final note, the charter

model reconciles one of the major tensions within the very notion of public education:

“[T]he issue of innovation in charter schools moves into problematic questions about the public nature of schools and the value of the common school ideals or the comprehensive model relative to other goals such as effectiveness and innovation.”80

On this note, we no longer need to reconcile the varying preferences and ideals

held by the diverse fabric of our society. Rather, we create a system of education that

reflects the one common ideal that we all hold dearly – a meta-ideal that allows us to

choose the ideals we wish to follow – freedom of choice, and, consequently, equal

opportunity as well.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!79 Huffman, supra note 11, at 1328. 80 Lubienski, supra note 3, at 407.