Coyote Blog

I am a bit late on this one, but a California judge has determined that giving kids tests that have consequences is unconstitutional:

A judge in Oakland struck down California's
controversial high school exit exam Monday, issuing a tentative ruling
suggesting the test is unfair to some students who are shortchanged by
substandard schools.

If finalized, the unexpected ruling
would block the state from carrying out its plan to deny diplomas for
the first time to tens of thousands of seniors who have been unable to
pass the exit exam.

Note that this standard essentially means that no tests with real consequences (e.g. denial of grade advancement or diploma) can ever be given, because with 1129 high schools in California, some schools will always be below par.  So his argument will always apply -- there will always be kids who can claim their school is on the low end of the normal distribution.  And even if every school were exactly the same, kids within these schools could, I presume, similarly argue to this judge that they had sub-par teachers or sub-par parents or a sub-par reading light or a sub-par dog that ate their homework.

By the way, doesn't this also imply that California can no longer name state champions among high schools in various sports?  After all, isn't that unfair to schools with lesser sports programs?  And couldn't I extend this ruling to say that California state run colleges shouldn't be using high school grades or SAT scores or any other test-based metric in selecting entrants since some of these folks came from low-performing schools?

This confusion of equal protection with equal outcomes is so absurd its not really even worth commenting on further.  I won't even bother, then, asking how the judge expects sub-par schools to be made to improve without testing-with-teeth, or even what objective standards the judge used to determine that any schools were "substandard" in the first place.

For those who support this ruling, and agree with the plaintiff attorney's language that sounds like students have a right to a diploma that can't be denied without due process, here is a question:  What is a diploma?  Obviously, you don't want it to mean that a student has demonstrated basic knowledge and abilities against an agreed upon standard.  Are we reduced to a diploma being a certificate of attendance, indicating that a student grimly sat through 4 years of classes and nothing else?

This same week, the Florida Senate was unable to rescue the very successful state voucher program in the face of last year's insane Florida Supreme Court ruling that vouchers were unconstitutional because the Florida Constitution's uniformity clause:

the Florida Supreme Court ruled 5-2 that the voucher program violated
the "uniformity clause" of the state constitution guaranteeing a
high-quality system of public schools. Because the performance of the
voucher kids was superior to those in public schools, the court ruled that education was not uniform -- or in this case not uniformly miserable.

The program in question that was struck down by the court awarded vouchers to students of schools that failed to pass state standards. 

The program at issue is Governor Jeb Bush's
seven-year-old "Florida A+ School Accountability and Choice Program."
For the first time, schools have been graded on the reading, writing
and math progress made by the children they are supposed to be
teaching. (Imagine that.) Any school that received an F in two of four
years is deemed a failure, and the kids then get a voucher to attend
another school, public or private.

One immediate impact -- according to researchers at
Harvard, Florida State, and the James Madison Institute -- has been
that the mere threat of competition caused many inner-city school
districts to improve. The percentage of African Americans who are now
performing at or above grade level surged to 66% last year, from 23% in
1999.

What is amazing about the court's decision is that every kid who got a voucher, 90% of whom are minorities, came from a school demonstrated by objective standards to be far below average.  But, according to the court, it is constitutional for these kids to be in schools that are far below average, but becomes unconstitutional when kids are moved to above average schools?  Does this make any sense?  I'ts sort of a reverse Lake Wobegone effect -- the system is constitutional as long as all the schools are below average but once any are above average then its unconstitutional.  LOL.

Here is the reason that the court's logic doesn't make sense:  The real thing they are concerned about with the uniformity clause is not uniform quality, but whether the schools are uniformly controlled by the government and uniformly populated with union rather than non-union teachers.

Note that both these decisions use the existence of flaws within the two states' educational systems (e.g. low-performing schools) combined with a "uniformity" or "equal protection" standard to strike down reforms aimed at fixing these very flaws.  Both are saying that you can't reform the schools until all the schools are equally good,  but of course the schools will never improve without reform. 

Update:  But good news in Newark.  It's depressing but not surprising to see my alma mater's own Cornell West out there fighting against school choice for African-Americans.

Update #2:  Walter Olson comments:

It would appear that from now on a high school diploma is meant to
signify not a student's actual mastery of a certain body of material,
but rather the mastery he or she would have attained had the breaks of
life been fairer. Employers, and all others who rely on California high
school diplomas in evaluating talent, would be well advised to adjust
their expectations accordingly.

I was gearing up to write a response to the Florida Supreme Court decision that strikes down a school choice plan as unconstitutional, but Baseball Crank did such a nice job, I will refer you to him.  The plan as crafted allowed students in low-performance schools to opt out with  a voucher for another public or private school.  The justices struck down the law because they felt that the Florida Constitution which requires a "uniform, efficient, safe, secure, and high quality system" of education thereby necessitates schools run by the government only.  Their "logic" was that using a public voucher at a private school thwarted the "uniform" part.

But here is the scary part of their interpretation of "uniform".  Most reasonable people would read the Constitution as meaning "uniform in quality".  But the voucher law as written almost by definition increases the uniformity of quality.  The vouchers were offered only to students at low performing schools.  The recipients of the vouchers could then stay at the same school or use the voucher to go to another school.  Since a voucher holder will only go to a different school if they perceive that school to be better than the school they are leaving, the law increases the net quality of education received (at least in the eyes of parents, though perhaps not in the eyes of the NEA or the education intelligentsia).  By any reasonable definition, improving the education of the kids receiving the worst education as determined by consistent standards should actually improve uniformity of quality, not reduce it.  From a quality standpoint, I would argue it is unconstitutional in Florida NOT to have this school choice plan.

So if it is not uniformity of quality that is being discussed, it must be uniformity of something else.  As Baseball Crank points out, what is left is a strongly Maoist overtone of uniformity of thought -- that everyone is receiving the same state programming.  This ability to opt out of state programming has always been at least as powerful of a driver for private and home schooling as bad quality.  While public education has been controlled mostly by the left, the right has been the main group "opting-out".  However, as the right takes over the left's cherished institutions, I made a plea a while back to the left to reconsider school choice:

At the end of the day, one-size-fits-all public schools are never
going to be able to satisfy everyone on this type thing, as it is
impossible to educate kids in a values-neutral way.  Statist parents
object to too much positive material on the founding fathers and the
Constitution.  Secular parents object to mentions of God and
overly-positive descriptions of religion in history.  Religious parents
object to secularized science and sex education.  Free market parents
object to enforced environmental activism and statist economics.   Some
parents want no grades and an emphasis on feeling good and self-esteem,
while others want tough grading and tough feedback when kids aren't
learning what they are supposed to.

I have always thought that these "softer" issues, rather than just
test scores and class sizes, were the real "killer-app" that might one
day drive acceptance of school choice in this country.  Certainly
increases in home-schooling rates have been driven as much by these
softer values-related issues (mainly to date from the Right) than by
just the three R's.

So here is my invitation to the Left: come over to the dark side.
Reconsider your historic opposition to school choice.  I'm not talking
about rolling back government spending or government commitment to
funding education for all.  I am talking about allowing parents to use
that money that government spends on their behalf at the school of
their choice.  Parents want their kids to learn creationism - fine,
they can find a school for that.  Parents want a strict, secular focus
on basic skills - fine, another school for that.  Parents want their
kids to spend time learning the three R's while also learning to love
nature and protect the environment - fine, do it...