Activity 1 — One CP

Explanation/SetupThe purpose of this activity is to introduce the Ban Private Schools CP in preparation for upcoming practice debates.

1. All students should review the 1AC (same as packet), 1NC, and 2AC below. They should also familiarize themselves with the Ban Private Schools CP file. Assume that the 1NC also included the Spending DA and that it will be extended alongside the counterplan as its net-benefit.

2. One student volunteer will be selected to represent the negative and one student volunteer will be selected to represent the affirmative. All other students will flow and judge the debate. We will discuss it between speeches.

4. The format of the debate is as follows:

1NC = not timed, no changes

CX of 1NC = 1 minute

2AC = not timed, no changes

CX of 2AC = 1 minute

2NC = 2 minutes 30 seconds

CX of 2NC = 1 minute

1AR = 1 minute

1AC

1AC — Inequality AdvantageContention One: Inequality

First, there are massive opportunity gaps in the K-12 education system. Millions of students are denied access to an excellent education. Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“Disrupting Education Federalism,” Washington University Law Review (92 Wash. U. L. Rev. 959), Available Online to Subscribing Institutions via Lexis-Nexis)IntroductionThe United States continues to tolerate a longstanding educational opportunity gap. Today, it relegates at least ten million students in low-income neighborhoods and millions more minority students to poorly performing teachers, substandard facilities, and other inferior educational opportunities . n1 This occurs in part because the U nited States invests more money in high-income districts than in low-income districts, a sharp contrast to other developed nations. n2 Scholars and court decisions also have documented the sizeable intrastate disparities in educational opportunity. n3 In addition, interstate inequalities in educational opportunity represent the largest component of disparities in educational opportunity. n4 The harmful nature of interstate disparities falls hardest on disadvantaged schoolchildren who have the most educational needs, n5 and states do not [*962]

possess the resources and capacity to address the full scope of these disparities . n6 Furthermore, research confirms that as the gap in wealth has grown between low-income and high- income families, the achievement gap between children in low- income and high-income families also has widened . n7

Although equal educational opportunity remains a central goal of the U.S. education

system, it has never been realized . n8 Indeed, the United States relies heavily on schools to overcome the influence of a child's circumstances , such as family income and structure, on life opportunities despite evidence that schools are not effectively serving this function. n9 Fulfilling the goal of equal educational opportunity will become increasingly important to the nation's interests given research that reveals that the United States will need more highly skilled workers to fill jobs that meet the economy's demands. This research also indicates that the achievement gap

must be closed to ensure that students from rapidly growing minority communities possess the educational skills necessary to contribute to the economy. n10

Second, current education policies exacerbate racial and economic inequality because they rely on devolution and choice.Sundquist 17 — Christian B. Sundquist, Professor of Law and Director of Faculty Research and Scholarship at Albany Law School, former Visiting Scholar at the Institute for Research on Poverty at the University of Wisconsin-Madison, holds a J.D. from Georgetown University Law Center, 2017 (“Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,” Mercer Law Review (68 Mercer L. Rev. 351), Winter, Available Online to Subscribing Institutions via Lexis-Nexis)B. The Failings of Choice, Competition, and Market-Based Education ReformsIn this milieu, the original purpose of the ESEA and Brown (and of the appropriate federal role in education) has become lost. Rather than utilizing federal policy and funding to combat the true roots of educational disparity—poverty and racial discrimination—the federal role has shifted under the market model to conceal these roots . The belief has become that "effective teaching" and a business-model of public education is all [*377] that is needed to overcome generational poverty and persistent racial discrimination. n143 Yet, it has become abundantly clear that the market strivings of federal education policy have forsaken the original promise of social equality embodied by Brown and the ESEA.

Our history demonstrates that school choice policies tend to develop as a tool to undermine Brown desegregation efforts as part of a larger effort to maintain racial inequality. While often utilizing race-neutral language such as "parental choice" and "individual freedom," modern choice policy " has the potential to perpetuate racial hierarchies " as parents make private decisions to self-segregate their children. n144 The equity rationale of Brown and the original vision of the ESEA are simply incompatible with the market rationale of current education policy:

[It] is apparent that two distinctly different ideologies motivated the Brown decision and NCLB. For Brown a separate education could never be equal, and affirmative racial integration was necessary to provide every child with a quality education. Conversely, under NCLB the ideologies of high-stakes accountability and a market-driven approach [assume] that a separate education can be equal. n145

The modeling of education policy around principles of consumer choice, competition, and market-accountability have increased educational disparities along class and race lines. n146 Since

the adoption of NCLB and RTT, our public schools have become increasingly segregated by race . n147 There is little reason to believe that rates of school segregation will decrease because of the passage of the ESSA, especially in light of its continued

expansion of charter schools, deregulation, and parental choice. The choice provisions of the ESSA (and formerly of NCLB and RTT) are fueling the re-segregation of our public schools primarily because the current market-model of education policy incorrectly assumes parents (that [*378] is, namely consumers) to be rational actors. A core principle of the market-model is that choice will foster competition amongst public schools, which then will force individual schools to improve the quality of education provided to students. n148 However, it has become increasingly clear that parents tend to choose schools "with a racial profile matching their own." n149 Indeed, there is evidence that the current school-choice provisions have so upset the racial balance of certain public schools as to run afoul of Brown Court desegregation orders. n150Parents selecting a school for their children are also influenced by "non-racial" factors not adequately captured by the market model of competition — including geography, inadequate resources, lack of motivation, and inadequate information regarding other options. n151 The application of market principles to public education has failed not only due to an incorrect assumption of rational acting by consumers, but because of significant informational asymmetries between schools and parents. n152The allure of choice as a salve for racial and social inequality in education is understandable, yet misguided. Martha Minow has written extensively on the "seductive" nature of choice, noting that choice can "imply that freedom and equality exist even when they are absent." n153 Professor Minow observes "that by subordinating racial and other kinds of integration to school choice, contemporary schooling policies ... expressly elevate private preferences" which tend to "reinforce or even worsen racial separation in American schools ." n154 Professor John A. Powell summarizes the failings of school choice as follows: [*379]

The reality of choice is that it is a racialized system that reproduces the inequity it is supposed to address. Effective responses to persistent segregation and concentrated poverty cannot be furnished by purely individualistic solutions such as letting students choose their school one by one . The Supreme Court considered this approach after Brown and rejected it as inadequate. n155

The larger problem with the market-model of public education is that it serves to normalize continued educational inequality . The existing framework purports to provide students with an equal opportunity to pursue an education from competitive options. The occurrence of educational failures within such a "neutral" market of consumer preferences can then be interpreted as owing to poor choices or personal deficit under this perspective, thereby rationalizing the persistence of racial and social educational disparities. n156 Diane Ravitch concluded as follows:

The testing, accountability and choice strategies offer the illusion of change while changing nothing. They mask the

inequity and injustice that are now so apparent in our social order. They do nothing to alter the status quo. They preserve the status quo. They are the status quo. n157

School choice and accountability reforms, as noted, have had relatively little impact on student performance. n158 The primary determinants of student success, rather, have been racial bias, family background, and socioeconomic status. n159 The focus on

"neoliberal solutions like NCLB, [*380] with its emphasis on efficiency and individualism,

divert attention away from the social issues that need to be solved if we are to really improve education outcomes ." n160 As a

result, current education policy "both directly and indirectly exacerbates racial, ethnic and economic inequality in society." n161 Our current approach to public education has grossly departed from the ideals and principles of racial and class equality that shaped the federal education role during the post-Brown and ESEA era. The substantive dimension of education federalism has thus wrongly shifted from ensuring racial equality in a democratic society to ensuring consumer choice in a competitive marketplace.

The recent enactment of the ESSA creates the possibility of further exacerbating race and class-based educational inequalities. While retaining the core principles of NCLB, the ESSA diminishes federal oversight of school performance while further expanding both consumer choice and deregulated teacher preparation programs. As Marian Wright Edelman observes, such a "gutting [of] a strong federal role in [an] education policy designed to protect [African- American and Latino] children ... jeopardizes their opportunity for a fair and adequate education." n162 Civil rights groups, including

the Southern Poverty Law Center and the New York chapter of the NAACP, fear that decreased "federal oversight of education will be much too weak to ensure [equal] education for Black and Latino students" in many states. n163 The prominent education and urban planning researcher Gary Orfield further opines that with the ESSA "we're going to get something that's much worse [than NCLB] - a lot of federal money going out for almost no leverage for any national purpose." n164 Education advocate Kalmann Hettlemann similarly views the ESSA as "a massive retreat from our national interest and commitment to equal educational opportunity, especially for poor and minority children." n165

[*381] The education federalism forged by the original ESEA and Brown envisioned federal regulation of public education to the extent necessary to promote social equality and racial

integration. n166 Such robust federal oversight was necessary in light of the historical practice of states to undermine educational opportunity for poor and minority children. n167 The devolution of the federal role in public education following the ESSA - coupled with its continued emphasis on standardized testing, choice, and market competition - threatens to increase race-and class-based disparities in education .

Third, public school funding remains unfair and inequitable — the latest study proves. ELC 17 — Education Law Center, a non-profit organization in New Jersey that advocates for equal educational opportunity and education justice in the United States, 2017 (“School Funding Remains Unfair For Most Students Across The Nation,” Press Release Announcing Release of Is School Funding Fair? A National Report Card, January 25th, Available Online at https://drive.google.com/file/d/0BxtYmwryVI00LWdhZjRXTTM5WUk/view, Accessed 06-14-2017)Is School Funding Fair? A National Report Card (NRC), released by Education Law Center (ELC)

today, finds that public school funding in most states continues to be unfair and inequitable , depriving millions of U.S. students of the opportunity for success in school .

The sixth edition of the NRC uses data from the 2014 Census fiscal survey, the most recent available. The NRC goes beyond raw per-pupil calculations to evaluate whether states are making sufficient investments in public education and distributing funding relative to need, as measured by student poverty. To capture

the variation across states, the NRC uses four interrelated "fairness measures" – Funding Level, Funding Distribution, Effort and Coverage – that allow for state-by-state comparisons while controlling for regional cost differences.

The NRC released today shows almost no improvement since the end of the Great Recession in those states that do not provide additional funding to districts with high student poverty. There is also no change in the vast differences in levels of funding for K-12 education across the states , even after adjusting for cost. The states with the highest funding levels , New York and New Jersey,

spend more than two and one-half times that of the lowest , Utah and Idaho.Key findings include:* Funding levels show large disparities , ranging from a high of $18,165 per pupil in New York, to a low of $5,838 in Idaho.

* Many states with low funding levels, such as California, Idaho, Nevada, North

Carolina, and Texas, are also low “effort” states, that is, they invest a low percentage of their economic capacity to support their public education systems.

* Fourteen states, including Pennsylvania, North Dakota, New York, and Illinois, have “regressive” school funding. These states provide less funding to school districts with higher concentrations of need as measured by student poverty.

* Students in certain regions of the country face a “double disadvantage” because their states have low funding levels and do not increase funding for concentrated student poverty. These “flat” funding states include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona and New Mexico in the Southwest.* Only a handful of states – Delaware, Massachusetts, Minnesota and New Jersey – have “progressive” school funding. These states have sufficiently high funding levels and significantly boost funding in their high poverty districts.

* States with unfair school funding perform poorly on key indicators of resources essential for educational opportunity. In these states, access to early childhood education is limited; wages for teachers are not competitive with those of comparable professions; and teacher-to-pupil ratios in schools are unreasonably high.The sixth edition of the NRC released today underscores the persistence of unfair school funding as a major obstacle to improving quality and outcomes in the nation’s public schools. Most states finance public education purely on political considerations from year-to-year, and not on assessments of the actual cost of delivering rigorous academic standards to all students. Most states also continue to use outmoded methods of funding public education that fail to allocate additional funding to address concentrated poverty and other risk factors , including English language proficiency and disabilities. These antiquated methods are the cause of persistent funding disparities between low wealth, high poverty and high wealth, low poverty districts, even in states with high funding levels, such as Connecticut and New York.

“School finance reform is long overdue,” said Bruce Baker, the Rutgers University

Graduate School of Education Professor who developed the report's methodology. “States must develop, and then fund, school finance formulas that identify the costs of providing essential education resources to students, accounting for diverse student needs and taking into account local fiscal capacity.”

“Lawmakers in states with deeply regressive and flat funding, like

Illinois, Nevada, Pennsylvania, Mississippi and Arizona, urgently need to overhaul their finance systems to give students a meaningful opportunity to succeed in school,” said David Sciarra, ELC Executive Director. “Even states with higher funding levels, such as Ohio and Maine, need to do more to ensure fair funding for each and every student.”

“President Trump is flatly wrong when he says our schools are flush with cash,” Mr. Sciarra added. “In fact, for students in many states and

entire regions, their schools are woefully underfunded, depriving them of the qualified teachers, support staff, reasonable class sizes and other interventions they must have to succeed in school. It's time to put fair school funding at the top of the nation's education reform agenda."

Fourth, the current system makes it impossible to provide all students with an equal opportunity for an excellent education. Ogletree and Robinson 16 — Charles J. Ogletree, Jr., Jesse Climenko Professor of Law and Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, holds a J.D. from Harvard Law School and an M.A. in Political Science from Stanford University, and Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“The K-12 Funding Crisis,” Education Week, May 17th, Available Online at http://www.edweek.org/ew/articles/2016/05/18/the-k-12-funding-crisis.html?print=1, Accessed 06-07-2017)Current discussions about K-12 education often highlight the reforms that seek to improve the quality of schooling. Some of these measures—the common-core standards, teacher evaluation, and, most recently, the Every Student Succeeds Act—undoubtedly have the potential to improve educational opportunities for students. However, what is often missing from education reform conversations is how these reforms can create sustainable changes to the education system. We believe

the system's very foundations are broken, and school funding is one of the most pressing issues in need of repair.

Most states have failed to create school funding systems that provide the necessary foundation for all children to receive equal access to an excellent education. The nation's children deserve no less,

particularly in view of evidence that money spent wisely on education matters. In a 2012 review of studies that looked at the effect of funding on student outcomes, education scholar Bruce D. Baker found that ongoing improvements that enhance the amount and distribution of funding can increase student achievement.

School funding took a substantial blow after the Great Recession began in 2007, even as federal funding from the economic-stimulus package in 2009 softened the impact. Despite the improving U.S. economy, school funding has been slow to recover, and schools still feel the recession's effects nine years later. The Center on

Budget and Policy Priorities found in a recent report that although 35 of the

46 states surveyed increased their general state aid per student in 2016,

25 are still providing less general state funding than they were in 2008. And at least seven of those states have cut 10 percent or more from their general state funding per student since the recession.And as a result of the recent drop in oil, coal, and gas revenues, Alaska, Oklahoma, and West Virginia, among other states, have had to make deep cuts in their K-12 school budgets and must now find new funding streams.

Whether in tough or strong economic times, families and education funding advocates lack a way to insist on the equitable financing needed for excellent schools. This absence arises in part from the U.S. Supreme Court's 1973 San Antonio Independent School

District v. Rodriguez decision , which affirmed that the U.S. Constitution neither explicitly

nor implicitly provided a remedy for closing the funding gaps across school districts. This decision closed the federal courthouse door to future decisions that could address K-12 spending gaps and, ultimately, the gaps in educational opportunities and resources among children across districts.

The decision thus remanded the design and implementation of more-effective school funding systems to the laboratory of the states. The Supreme Court's decision also noted the need for changes to school funding and expressed concern about the long and heavy reliance on local property taxes.Despite subsequent decades of state-level litigation on school finance, most changes to finance systems have failed to provide equal access to a high-quality education for all children. Most states continue to build education systems funded by property taxes that vary greatly depending on a child's ZIP code , rather than a child's needs and the desired educational outcomes.

Significant school finance reforms can , in fact, lead to improved educational and social outcomes for children .

A 2015 report from the N ational Bureau of Economic Research, which followed

children born between 1955 and 1985 through their adult lives in 2011, found that disadvantaged students completed an additional 0.46 years of schooling when districts had a 10 percent increase in per-pupil spending each year for the 12 years the children attended public school. In adulthood, their earnings increased by almost 10 percent, and their likelihood of living in poverty was reduced by roughly 6 percentage points, while children in districts without such spending increases did not experience similar benefits.

The study also found that increasing spending by 25 percent per student throughout the course of a K-12 education could erase the attainment gaps between students from low-income and nonpoor families.

Fifth, disparities in educational opportunity cement overall socioeconomic inequality. Robinson 13 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2013 (“The High Cost of Education Federalism,” Wake

Forest Law Review (48 Wake Forest L. Rev. 287), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)Although the nation's current approach to education federalism

undoubtedly generates some benefits, it also tolerates substantial inequitable disparities in educational opportunity both within and between states. n7 The reality of local control of education for many communities means the ability to control inadequate resources that provide many students substandard educational opportunities. n8 The [*289] opportunity divide in American education continues to relegate far too many poor and minority schoolchildren to substandard educational opportunities . n9 These communities are left behind in the competition for educational excellence. n10 In addition, high-poverty schools , particularly those within urban school districts, regularly yield the worst academic outcomes. n11

[*290] These disparities in educational opportunity hinder schools from fulfilling some of their essential national and institutional goals. Schools serve indispensable public functions within a democratic society : they prepare students to engage in the nation's political system in an intelligent and effective manner and transmit the fundamental societal values that a democratic government requires. n12 The nation also relies on its public schools as the principal institutional guarantor of equal opportunity within American society by serving as a mechanism to ensure that children are not hindered in attaining their dreams by their life circumstances. n13 Americans depend on schools to address the societal challenges created by social and economic inequality rather than creating the extensive social welfare networks that many industrialized countries have implemented. n14 The disparities in educational opportunity that relegate many poor and minority students to substandard schooling have hindered the ability of schools to serve these functions. Indeed, rather than solve these challenges, low graduation rates and substandard schools cost the United States

billions of dollars each year in lost tax and income revenues, higher health care costs, food stamps, and welfare and housing assistance, to name a few of the costs. n15

Sixth, closing the opportunity gap in education is vital to reduce inequality. Johnson 16 — Rucker C. Johnson, Associate Professor at the Goldman School of Public Policy at the University of California-Berkeley, Faculty Research Fellow at the National Bureau of Economic Research, Faculty Research Fellow at the W.E.B. Du Bois Institute at Harvard University, Research Affiliate at the National Poverty Center at the University of Michigan, Research Affiliate at the Institute

for Poverty Research at the University of Wisconsin, holds a Ph.D. in Economics from the University of Michigan, 2016 (“Can Schools Level the Intergenerational Playing Field? Lessons from Equal Educational Opportunity Policies,” Economic Mobility: Research & Ideas on Strengthening Families, Communities & the Economy, Edited and Published by the Federal Reserve Bank of St. Louis and the Board of Governors of the Federal Reserve System, Available Online at https://www.stlouisfed.org/~/media/Files/PDFs/Community-Development/EconMobilityPapers/EconMobility_Book_508.pdf?la=en , Accessed 06-19-2017, p. 321)Summary Discussion and ConclusionsThe key contributions of this study are three-fold. First, the paper provides a more detailed descriptive portrait of intergenerational economic mobility in the U nited States.

Second, the paper attempts to explain why black-white mobility differences narrowed significantly for successive cohorts born between 19 55 and 19 79, with a focus on the role of three major equal educational opportunity policies pursued over this period: school desegregation, school finance reforms, and roll-out and expansions of Head Start, improving the understanding of the intergenerational mobility process in the United States and illuminating the central role schools play in the transmission of economic success from one generation to the next.

Third, the paper emphasizes differences in early education and school quality —in particular, Head Start and school spending — as important components of the persistence in income across generations.

Indeed, schools —and policies that influence their optimal functioning— are transformative agents that either provide or deprive children of the opportunity to reach their full potential. These equal educational opportunity policies were instrumental in the making of a growing black middle class . The evidence shows that the footprints of paths toward upward mobility are preceded by access to high quality schools beginning in early childhood through 12th grade. These school reforms expanded on-ramps to poor and minority children to get on that path.

Evidence on the long-term productivity of education spending demonstrates that equal education policy initiatives can play a pivotal role in reducing the intergenerational transmission of poverty.

Seventh, racial and economic inequality is a form of structural violence that condemns entire populations to preventable suffering and death. Bezruchka 14 — Stephen Bezruchka, Senior Lecturer in Health Services and Global Health at the School of Public Health at the University of Washington, holds a Master of Public Health from Johns Hopkins University and an M.D. from Stanford University, 2014 (“Inequality Kills,” Divided: The Perils of Our Growing Inequality, Edited by David Cay Johnston, Published by The New Press, ISBN 9781595589446, p. 194-195)

Differences in mortality rates are not just a statistical concern—they reflect suffering and pain for very real individuals and families. The higher mortality in the U nited States is an example of what Paul Farmer, the

noted physician and anthropologist, calls structural violence. The forty-seven infant deaths occur every day because of the way society in the United States is structured, resulting in our health status being that of a middle-income country, not a rich country. There is growing evidence that the factor most responsible for the relatively poor health in the United States is the vast and rising inequality in wealth and income that we not only tolerate, but resist

changing. Inequality is the central element , the upstream cause of the social disadvantage described in the IOM report. A political system that fosters inequality limits the attainment of health.

The claim that economic inequality is a major reason for our poor health requires that several standard criteria for claiming causality are satisfied: the results are confirmed by many different studies by different investigators over different time periods; there is a dose-response relationship , meaning more inequality leads to worse health; no other contending explanation is posited; and the relationship is biologically plausible , with likely mechanisms through which inequality works. The field of study called stress biology of social comparisons is one such way inequality acts.

Those studies confirm that all the criteria for linking inequality to poorer health are met , concluding that the extent of inequality in society reflects the range of caring and sharing, with more unequal populations sharing less. Those who are poorer struggle to be accepted in society and the rich also suffer its effects. A recent Harvard study estimated that about one death in three in this country results from our very high income inequality. Inequality kills through structural violence . There is no smoking gun with this form of violence, which simply produces a lethally large social and economic gap between rich and poor.

Finally, the structural violence of inequality outweighs other impacts. There is an ethical obligation to address it.Ansell 17 — David A. Ansell, Senior Vice President, Associate Provost for Community Health Equity, and Michael E. Kelly Professor of Medicine at Rush University Medical Center (Chicago), holds an M.D. from the State University of New York Upstate Medical University College of Medicine, 2017 (“American Roulette,” The Death Gap: How Inequality Kills, Published by the University of Chicago Press, ISBN 9780226428291, p. kindle 307-363)There are many different kinds of violence. Some are obvious : punches, attacks, gunshots, explosions. These are the kinds of interpersonal violence that we tend to hear about in the news . Other kinds of violence are intimate and emotional.

But the deadliest and most thoroughgoing kind of violence is woven into the fabric of American society. It exists when some

groups have more access to goods, resources, and opportunities than other groups , including health and life itself. This violence delivers specific blows against particular bodies in particular neighborhoods . This unequal advantage and violence is built into the very rules that govern our society. In the absence of this violence, large numbers of Americans would be able to live fuller and longer lives .

This kind of violence is called structural violence , because it is embedded in the very laws, policies, and rules that govern day-to-day life.8 It is the cumulative impact of laws and social and economic policies and practices that render some Americans less able to access resources and opportunities than others . This inequity of advantage is not a result of the individual’s personal abilities but is built into the systems that govern society. Often it is a product of racism , gender , and income inequality . The diseases and premature mortality that Windora and many of my patients experienced were, in the words of Dr. Paul Farmer, “biological reflections of social fault lines.”9 As a result of these fault lines, a disproportional burden of illness, suffering, and premature mortality falls on certain neighborhoods, like Windora’s. Structural violence can overwhelm an individual’s ability to live a free , unfettered, healthy life .As I ran to evaluate Windora, I knew that her stroke was caused in part by lifelong exposure to suffering, racism, and economic deprivation. Worse, the poverty of West Humboldt Park that contributed to her illness is directly and inextricably related to the massive concentration of wealth and power in other neighborhoods just miles away in Chicago’s Gold Coast and suburbs. That concentration of wealth could not have occurred without laws, policies, and practices that favored some at the expense of others. Those laws, policies, and practices could not have been passed or enforced if access to political and economic power had not been concentrated in the hands of a few. Yet these political and economic structures have become so firmly entrenched (in habits, social relations, economic arrangements, institutional practices, law, and policy) that they have become part of the matrix of American society. The rules that govern day-to-day life were written to benefit a small elite at the expense of people like Windora and her family. These rules and structures are powerful destructive forces. The same structures that render life predictable, secure, comfortable, and pleasant for many destroy the lives of others like Windora through suffering , poverty , ill health , and violence . These structures are neither natural nor neutral. The results of structural violence can be very specific. In Windora’s case, stroke precursors like chronic stress, poverty, and uncontrolled hypertension run rampant in neighborhoods like hers. Windora’s illness was caused by neither her cultural traits nor the failure of her will. Her stroke was caused in part by inequity. She is one of the lucky ones, though, because even while structural violence ravages her neighborhood, it also abets the concentration of expensive stroke- intervention services in certain wealthy teaching hospitals like mine. If I can get to her in time, we can still help her. Income Inequality and Life Inequality Of course, Windora is not the only person struggling on account of structural violence. Countless neighborhoods nationwide are suffering from it, and people are dying needlessly young as a result. The magnitude of this excess mortality is mind-boggling. In 2009 my friend Dr. Steve Whitman asked a simple question, “How many extra black people died in Chicago each year, just because they do not have the same health outcomes as white Chicagoans?” When the Chicago Sun-Times got wind of his results, it ran them on the front page in bold white letters on a black background: “HEALTH CARE GAP KILLS

3200 Black Chicagoans and the Gap is Growing.” The paper styled the headline to look like the declaration of war that it should have been. In fact, we did find ourselves at war not long ago, when almost 3,000 Americans were killed. That was September 11 , 2001. That tragedy propelled the country to war. Yet when it comes to the premature deaths of urban Americans, no disaster area has been declared . No federal troops have been called up. No acts of Congress have been passed. Yet this disaster is even worse : those

3,200 black people were in Chicago alone, in just one year. Nationwide each year, more than 60,000 black people die prematurely because of inequality.10

While blacks suffer the most from this, it is not just an issue of racism, though racism has been a unique and powerful transmitter of violence in America for over four hundred years.11 Beyond racism, poverty and income inequality perpetuated by exploitative market capitalism are singular agents of transmission of disease and early death. As a result, there is a new and alarming pattern of declining life expectancy among white Americans as well. Deaths from drug overdoses in young white Americans ages 25 to 34 have exploded to levels not seen since the AIDS epidemic. This generation is the first since the Vietnam War era to experience higher death rates than the prior generation.12 White Americans ages 45 to 54 have experienced skyrocketing premature death rates as well, something not seen in any other developed nation.13 White men in some Appalachian towns live on average twenty years less than white men a half-day’s drive away in the suburbs of Washington, DC. Men in McDowell County, West Virginia, can look forward to a life expectancy only slightly better than that of Haitians.14But those statistics reflect averages, and every death from structural violence is a person . When these illnesses and deaths are occurring one at a time in neighborhoods that society has decided not to care about —neighborhoods populated by poor, black, or brown people — they seem easy to overlook , especially if you are among the fortunate few who are doing incredibly well. The tide of prosperity in America has lifted some boats while others have swamped. Paul Farmer, the physician-anthropologist who founded Partners in Health, an international human rights agency, reflects on the juxtaposition of “unprecedented bounty and untold penury”: “It stands to reason that as beneficiaries of growing inequality , we do not like to be reminded of misery of squalor and failure. Our popular culture provides us with no shortage of anesthesia.”15

That people suffer and die prematurely because of inequality is wrong . It is wrong from an ethical perspective . It is wrong from a fairness perspective . And it is wrong because we have the means to fix it.

1AC — PlanThe United States federal government should establish and enforce a constitutional right to education guaranteeing that all children in the United States receive equal access to an excellent elementary and secondary public education and should increase funding to a level necessary to accomplish this goal.

1AC — SolvencyContention Two: Solvency

First, requiring equal access to an excellent education is vital to close opportunity and achievement gapsRobinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 205-206) I contend that the United States should strategically restructure and strengthen the federal role in education to establish the necessary foundation for a national effort to ensure equal access to an excellent education . This restructuring and strengthening of the federal role in education would require shifting some power away from the state and local governments and toward the federal government. The U nited States would then need to adopt a new understanding of education federalism that embrace s the federal government as the guarantor of equal opportunity , because it is the only government with the capacity and sufficient incentive to lead a national effort to achieve this widely supported, yet persistently elusive, goal. Although this would not require federalizing the nation's education system as at least one scholar has recommended, it would require acceptance of a larger federal role in education to hold the states accountable for ensuring that all students receive equal access to an excellent education.7

I define equal access to an excellent education as the opportunity for all students to attend a high-quality school that enables them to effectively pursue their life goals, to become engaged citizens, and to develop their abilities to their full potential.8 Equal access to an excellent education enables all students to receive “a real and meaningful opportunity to achieve rigorous college- and career-ready standards.” 9 If the United States pursues equal access to an excellent education as the primary goal for its education system, it will break the traditional link between low-income and minority status and inferior educational opportunities . This goal recognizes that educational opportunities should be tailored to meet the individual needs of students that may vary dramatically

depending on a variety of factors, including family structure and stability, students' health and nutrition, and neighborhood climate. This goal also embraces closing the opportunity gap as an essential prerequisite for closing the achievement gap. Furthermore, embracing racially and economically diverse schools is essential for achieving this goal given compelling research regarding the harms of racial and class isolation, the benefits of diversity, and evidence of diverse schools providing important educational benefits that cannot be duplicated by alternative reforms. 10 An excellent education for all schoolchildren should be the nation's ultimate [end page 205]

education goal , because all families ultimately want a first-rate education for their children and because the United States would benefit economically, socially, and politically from providing such an education.

Second, comprehensive federal action is needed for successful reform. Robinson 16 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education,” Harvard Law Review (130 Harv. L. Rev. 185), November, Available Online to Subscribing Institutions via Lexis-Nexis)B. Overturning RodriguezTo be most effective, a comprehensive federal agenda requires the assistance of all three branches of government . The executive branch enjoys the fewest obstacles to reform because it could use its existing authority to accomplish incremental shifts to education federalism through modest reforms that employ its existing authority and resources. n295 Nevertheless, given the full scope of the shift to education

federalism that I recommend, reforms instituted without any significant involvement of Congress or the Court would lack the comprehensive nature that ensuring equal access to an excellent education for all schoolchildren will ultimately demand. Legislation consistent with this agenda would send a n even more powerful message that the agenda represents the will of the people and thus may encourage greater state and local buy-in . n296 However, the eight-year delay in reenacting the Elementary and Secondary Education Act of 1965, which eventually led to the reduction of the federal role in education in the Every Student Succeeds Act, n297 and the great difficulties that Congress is experiencing in passing legislation n298 suggest that legislative reform consistent with my proposal is unlikely in the near term. [*231] Fortunately, the Court possesses the authority to unleash a powerful tool that could help to reduce the opportunity and achievement gaps that lead

universities and colleges to rely on affirmative action in admissions. It could overturn

Rodriguez , which held that the Constitution does not protect education as a fundamental right. n299

For over forty years, Rodriguez has served as a roadblock to access to federal courts for those who hope to address the entrenched disparities in funding and resources that relegate many disadvantaged and minority students to inferior educational opportunities in the United States. n300 Because the Court held that education was not a fundamental right, Rodriguez applied rational basis review to the funding gaps between districts within Texas. n301 The Court determined that Texas easily met this standard because its funding approach advanced local control of education, the Court lacked the expertise to second-guess the Texas system, and a ruling for the plaintiffs would greatly upset the balance of federalism. n302 The Court nonetheless noted the need for reform of school funding and challenged the states to undertake this reform. n303 Although many states have implemented funding reform since Rodriguez and state litigation has resulted in some important victories, these state efforts have fallen far short of the reforms required to provide all children equal access to an excellent education. n304 In light of the continuing disparities in educational opportunity, numerous scholars, myself included, have argued that Rodriguez was wrongly decided and should be overturned to provide a consistent and powerful federal remedy to address these disparities . n305 [*232] However, disagreement exists over the scope of the right that the Court should recognize. The Court left the existence of a fundamental right to some minimum education an open question in Rodriguez n306 and subsequently acknowledged that the question remains open. n307 If Rodriguez is overturned, some scholars envision the Court addressing only extreme forms of educational inequality by providing a federal right to a minimally adequate education. n308 Leading education scholar Professor Derek Black, on the other hand, has argued that such an education today would require that students receive the state-defined minimum of education and that this definition does not have to equal "a minimalist education." n309Given the likelihood that the Court will insist that affirmative action eventually end, the Court should take some responsibility for addressing the conditions that lead institutions to rely on affirmative action by overturning the decision that insulated opportunity gaps from federal accountability. The Court could choose from a variety of constitutional provisions to recognize a right to education. n310 For [*233] instance, the Court could hold that the Fourteenth Amendment 's requirement that states not deny equal protection of the laws n311 serves as a prohibition of the inequitable state disparities in educational opportunity or guarantees students an education that enables them to effectively employ their First Amendment rights and to be competent voters. n312 Recognizing and enforcing a federal right to education would provide greater authority and consistent impact than the state education clauses that vary widely in their protection — or lack thereof — of the right to education. n313

The federal courts have been and will remain an important and powerful avenue for enforcing education rights for all students throughout the United States in ways that do not make the content of a right dependent on the happenstance of geography or state law. n314 A federal constitutional right also

would enable the federal courts to address the substantial interstate disparities in funding that currently account for seventy-eight percent of per-pupil spending gaps . n315 This tremendous interstate disparity , which has reached a [*234]

"historic high" for spending differences, n316 reveals the failure of state courts to close spending gaps on their own. n317

If the Court chooses to overturn Rodriguez in a manner that would help to

close opportunity gaps, it should incorporate four essential principles into a constitutional right to education. First, the Court must embrace a robust fundamental right to education that moves beyond guaranteeing a rudimentary floor of educational opportunity. A minimal right would not make a meaningful impact on opportunity or achievement gaps. Instead, the Court should consider recognizing a right to education that requires states to provide an education-based justification for the quality of education provided and any disparities in educational opportunity . Such a standard would enable states to offer disparate opportunities to students with disabilities, English-language learners, and low-income children, but would force states to end the superior opportunities that are provided to wealthier children absent an educational justification for such disparities. Defining a fundamental right to education in this way would help to level the playing field within public schools and insist that states design education systems based on research and students' needs rather than power, politics, and privilege.

Second, the Court should include safeguards that reduce the likelihood that states level down their educational opportunities

n318 or seek to avoid the Court's requirements . n319 One safeguard could be an instruction to states that guaranteeing a federal right to education should avoid reducing the quality and nature of existing educational opportunities and instead should seek ways to expand the delivery of a high-quality education to those who are currently denied it. The Court also can reduce the likelihood of decreasing the quality of educational opportunities within a state by providing clear requirements on the nature of the education right. In this regard, the Court can learn from decades of school finance litigation that has worked to give meaning to the right to education embodied in state constitutions, n320 while recognizing [*235] that this litigation has had significant shortcomings and has not ultimately resulted in equal access to an excellent education for all children. n321Third, the Court must acknowledge that a constitutional right to education would shift education federalism in ways that would increase federal influence over education and reduce some aspects of state control over education. The Court must wrestle with its own prior pronouncements heralding the importance of local control of education. n322 Such a shift in an

area of traditional state control must be justified with an explanation for why this shift is both appropriate and warranted. n323When the Court provides this explanation, it should remind the states that Rodriguez urged state reform of school finance systems in light of the persistent and heavy reliance on property taxes and the disparities in educational opportunity. n324 The limited nature and impact of subsequent reforms remains apparent in light of the Equity and Excellence Commission's finding in 2013 that "students, families and communities are burdened by the broken system of education funding in America." n325 The Commission further noted that over forty years of reforms "have not addressed the fundamental sources of inequities and so have not generated the educational gains desired." n326 Scholars also have recognized the limited success of decades of funding litigation to remedy longstanding inequitable disparities in educational opportunity. n327 School funding data and research also confirm a host of shortcomings in state funding systems despite the Court's invitation to reform funding in ways that increase equal educational opportunities. n328In addition to the shortcomings noted above, most states have not designed their funding systems to accomplish their education goals. n329 Instead,

politics oftentimes drives the distribution of funding as state [*236]

politicians assess how much funding is available for a given school year and then bargain over how that amount should be divided among the students in the state. n330 When the Court acknowledges

that its decision will result in a shift in education federalism, it also should acknowledge that the laboratory of the states has failed to develop the reforms needed to ensure an equitable and excellent education for every child.Fourth, the Court must acknowledge that recognizing a constitutional right to education would only begin the process of closing opportunity and achievement gaps. The reform of funding systems and the redistribution of educational opportunity will take a significant amount of time. The Court will need to encourage lower courts to retain jurisdiction over cases enforcing this right, just as state courts typically retain jurisdiction over cases enforcing a state right to education. n331In this regard, the Court must avoid the errors of its desegregation cases, which initially insisted on effective desegregation in the late 1960s and early 1970s, n332 but then eventually emphasized the return to local control of schools rather than the effectiveness of desegregation orders. For example, in Milliken v. Bradley, n333 the Court overturned an interdistrict desegregation plan for the metropolitan Detroit area in part because the plan's inclusion of districts surrounding Detroit would cause a reduction in local control. n334 The Court took this action in spite of the Sixth Circuit's finding that crossing district boundaries was particularly appropriate given the state's discrimination that maintained racial segregation across school district boundaries and that failing to include the surrounding districts would "nullify" Brown v. Board of Education. n335 As I have explored in prior work, the Court's desegregation decisions in Board of Education of Oklahoma City Public Schools v. Dowell, n336 Freeman v. Pitts, n337 and Missouri v. Jenkins n338 [*237] also reified local control of the schools by focusing on releasing districts from court supervision rather than on effective and lasting school desegregation. n339 Scholars have documented how these cases signaled that the Court had determined that desegregation had gone on long enough and it was time for school boards to regain control even if desegregation was never ultimately accomplished. n340If a federal right to education is going to serve as a mechanism to close educational opportunity gaps and to reduce the need for selective institutions to rely on consideration of an applicant's race to achieve diversity's benefits, the Court must learn from how its desegregation decisions undeniably contributed to the racial isolation that pervades so many school districts today. n341 The Court's impatience with the slow nature of desegregation reveals a shallow understanding of the depth of the social ill that the Court declared unconstitutional in Brown and an unwillingness to insist upon ongoing federal court investment in the effective dismantling of segregation. Overturning Rodriguez will require the Court to confront longstanding and deeply entrenched inequalities within public education. The federal courts will be called upon to oversee reforms that topple the settled expectations of more privileged sectors of society, just as the Court confronted the expectations of racism and white privilege that supported racial segregation. Thus, the reforms required by the Court cannot give a wink and a nod to those who benefit from the status quo while simultaneously claiming to demand reform.The Court must eschew any approval of unwarranted delay, as

occurred in Brown II's command to desegregate with "all deliberate speed," n342 or any invitation to incomplete or ineffective results, as the Court sanctioned in

Dowell, Freeman, and Jenkins. n343 Instead, the Court must insist that states implement the reforms that will ensure [*238] equal access to an

excellent education. It must make clear that states will not be released from court oversight until they have done so. Consistent Supreme Court insistence on an excellent and equitable education for all children will provide lower federal courts the support that they will need both to confront state legislatures that resist changing the status quo and to prevent evasive actions similar to those invited by the Court's ambiguous pronouncements in Brown II. n344

In sum, a federal right to education that embraces these principles provides the most promising path toward closing opportunity and achievement gaps such that selective postsecondary institutions may not be required to

consider race to achieve diversity's benefits. n345 Unless the Court overturns Rodriguez, the Court will remain complicit with the deeply entrenched educational opportunity gaps and should not blame postsecondary institutions that must build diverse institutions despite those gaps.Foonote n345: Additionally, Congress could take a variety of actions to support the Court's recognition of a constitutional right to education. Congress could embrace the Court's requirements as conditions on funding in the E lementary and Secondary Education Act of 1965 or on any education funding, authorize grants to support reform, extend funding for the DOE to enforce new conditions, and monitor DOE enforcement of the conditions . See Robinson, supra note 141, (manuscript at 34-49) (proposing congressional mechanisms that could lead states to offer equal access to an excellent education); Robinson, supra note 18, at 1006-12 (describing how Congress can still expand the federal role in education despite the limits NFIB v. Sebelius, 132 S. Ct. 2566 (2012), placed on congressional spending). The executive branch could issue an executive order on the importance of compliance with the Court's decision recognizing a federal right to education, establish a commission to study and recommend effective responses, enforce any statutory conditions on education funding , and modify education regulations and guidance consistent with the Court 's pronouncements. These efforts would provide critical support for the Court's decision to recognize a constitutional right to education by overturning Rodriguez. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

Third, restoring the positive federal role in education is necessary to rectify racial and class oppression and promote integration. Only federal action can achieve educational equality. Sundquist 17 — Christian B. Sundquist, Professor of Law and Director of Faculty Research and Scholarship at Albany Law School, former Visiting Scholar at the Institute for Research on Poverty at the University of Wisconsin-Madison, holds a J.D. from Georgetown University Law Center, 2017 (“Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,” Mercer Law Review (68 Mercer L. Rev. 351), Winter, Available Online to Subscribing Institutions via Lexis-Nexis)B. A Positively Federalist View for Future Reauthorizations of the ESEA

A positive conception of federalism is particularly justified when attempting to divine the appropriate federal role in public education. As discussed previously, the primary constitutional basis for federal involvement in public education is premised on the government's responsibility to take positive action to remedy racial and class inequalities. n186 The Brown constitutional doctrine and the "War on Poverty" driven by the ESEA forged an understanding of education federalism rooted in positive social justice . It is particularly appropriate today that we restore this fundamental understanding of education federalism, given evidence of increasing racial disparities in public education and the noted failures of modern education federalism policy.

The federal guarantee of equal public education is critical ly important to the functioning of our democracy . As a public good, education helps our society develop those "fundamental values necessary to the transmission of our democratic society." n187 The provision of an equitable public education , devoid of identity- based disparities , is critical to provide children with " the knowledge needed to understand and participate effectively in the democratic process and to cultivate among children respect for and the ability to interact with others as beings of inherently equal moral worth ." n188 Indeed, both classic and contemporary constitutional scholars

argue that equal public education should be regarded as " a fundamental duty , or positive fundamental right because education is a basic human need and a constituent part of all democratic rights ." n189 The need, then, for a robust application of positive education federalism principles in this context cannot be stronger. [*385] The purpose of this Article is not to provide specific curricular recommendations to guide the future of public education. n190 Rather, this Article has attempted to define a new vision of positive education federalism - one that is rooted in a historical understanding of the constitutional obligation of the federal government to shape education policy goals in a manner that responds to unrelenting racial and class disparities. A few core principles regarding the substantive dimension of positive education federalism can be gleaned from this discussion:1. First Principle: Providing an equal public education is a federal responsibility that cannot be transferred to or assumed by private market forces.

The overarching conclusion of this Article is that ESSA, NCLB, and RTT unconstitutionally transfer federal responsibility for positively eliminating racial and class inequality in public education to private market forces under the auspices of competitive federalism. n191 This reading of the federal role in public education is ahistorical and undermines the core principles of equality informing Brown-era education federalism . n192

2. Second Principle: Positive federal action is justifiable in public education when necessary to rectify historical patterns of racial and class oppression.

It follows from the first principle that positive federal intervention in public education is justified when employed to directly respond to our unbroken history of racial and class disparities in educational outcomes. The original vision of the ESEA and Brown anticipated future positive efforts by the federal government to wield its block grant powers to actively dismantle old systems of oppression. n193 The current statutory framework has abandoned this vision of equality in its misguided pursuit to harness the market forces of consumer choice, accountability, and competition to limit the federal role in education . n194 [*386] 3. Third Principle: Our education federalism must acknowledge that racial discrimination and class oppression are the true roots of current educational disparities .Third, it is of the utmost importance that our education federalism fully acknowledge the historical and continuing causes of education disparities: racial discrimination and poverty. n195 The race and class-based roots of educational inequality are well-known and well-documented, and our education federalism can no longer hide behind the veil of ignorance provided by ESSA, NCLB, and RTT. n196 Far from acknowledging the reality of educational disparities, our current competitive federalist framework for education actively attempts to conceal these roots, with the specious promise that the free market principles of choice, accountability, and competition will eventually equalize education. n197 Modeling our education federalism around such race and class "neutral" market principles have led to a deepening of the crisis while allowing society to ignore the ways in which privilege shapes outcomes. n198

4. Fourth Principle: Our education federalism must strive to promote racial and class integration.

Finally, any equality-based vision of education federalism must promote the social integration of our public schools. The current competitive conception of education policy has failed those "faces at the bottom of [the] well" n199 and led to a rampant racial re-segregation of our schools . n200 This failure evinces a lack of faith and duty in fulfilling the original integrationist goals of Brown and the ESEA. Therefore, a positive theory of education federalism must promote federal efforts to integrate our public schools.

These core principles, on a theory of positive education federalism, can be used to inform future reauthorizations of the ESEA. While this Article does not attempt to advance specific changes in statutory law, it has attempted to redefine the substantive dimension of our education federalism in a manner that restores our faith in Brown, the ESEA, and the promise of racial and class equality. [*387] ConclusionThe neoliberal vision of education federalism embodied by ESSA, NCLB, and RTT has improperly shifted the federal government's role in public education from one of promoting desegregation and social equality to one of promoting market efficiency through the artifices of competition, choice, and accountability. This deflection of moral responsibility for class and racial inequality is tied to a larger process of post-racialism and "post-oppression," whereby seemingly "neutral" market solutions are seen as sufficient to promote equality in a liberal democracy. There is, after all, a comforting allure to believing that social inequality is non-systemic, and thus avoiding the cognitive dissonance (and structural upheaval) that comes from confronting our continuing legacy of racial and class privilege.

Allowing the "invisible hand" of the market to sort educational outcomes under the guise of "competition," "choice," and "accountability," however, has led to a deepening of the crisis confronting our public schools . The federal role in public education has been reduced to incentivizing reform centered around market principles, rather than promoting desegregation and the equality envisioned by Brown and the original ESEA. "Our

federalism" demands more than this. The substantive dimension of education federalism , as constitutionalized by Brown and framed by the original ESEA, must be restored in our public education policy. The adoption of a positive conception of the federal role in public education to frame future policy discussions can put us once again on the path towards achieving equality of educational outcome for all students.

Fourth, increased funding is vital to improve schools — the best research confirms. Baker 17 — Bruce D. Baker, Professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers, The State University of New Jersey, former Associate Professor of Teaching and Leadership at the University of Kansas, holds an Ed.D. in Organization and Leadership from the Teachers College of Columbia University, 2017 (“Does Money Matter in Education? Second Edition,” Albert Shanker Institute, Available Online at http://www.shankerinstitute.org/sites/shanker/files/moneymatters_edition2.pdf, Accessed 06-14-2017, p. 1-2)Executive Summary

This second edition policy brief revisits the long and storied literature on whether money matters in providing a quality education . It includes research released since the original brief in 2012 and

covers a handful of additional topics. Increasingly, political rhetoric adheres to the unfounded certainty that money doesn’t make a difference in education, and that reduced funding is unlikely to harm educational quality. Such proclamations have even been used to justify large cuts to

education budgets over the past few years. These positions, however, have little basis in the empirical research on the relationship between funding and school quality.In the following brief, I discuss major studies on three specific topics: (a) whether how much money schools spend matters; (b) whether specific schooling resources that cost money matter; and (c) whether substantive and sustained state school finance reforms matter. Regarding these three questions, I conclude:Does Money Matter?Yes . On average, aggregate measures of per-pupil spending are positively associated with improved or higher student outcomes . The size of this effect is larger in some studies than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that may moderate the influence of funding on student outcomes, such as how that money is spent. In other words, money must be spent wisely to yield benefits. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters.

Do Schooling Resources That Cost Money Matter?Yes . Schooling resources that cost money , including smaller class sizes, additional supports, early childhood programs and more competitive teacher compensation (permitting schools and districts to recruit and retain a higher-quality teacher workforce), are positively associated with student outcomes. Again, in some cases, those effects are larger

than in others, and there is also variation by student population and other contextual variables. On the whole, however, the things that cost money benefit students, and there is scarce evidence that there are more cost-effective alternatives.

Do State School Finance Reforms Matter?Yes . Sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes . While money alone may not be the answer, more equitable and adequate allocation of financial inputs to schooling provide a necessary underlying condition for improving the equity and adequacy of outcomes. The available evidence suggests that appropriate combinations of more adequate funding with more accountability for its use may be most promising. [end page 1]While there may in fact be better and more efficient ways to leverage the education dollar toward improved student outcomes, we do know the following:• Many of the ways in which schools currently spend money do improve student outcomes.

• When schools have more money, they have greater opportunity to spend productively. When they don’t, they can’t.

• Arguments that across-the-board budget cuts will not hurt outcomes are completely unfounded .

In short, money matters , resources that cost money matter , and a more equitable distribution of school funding can improve outcomes . Policymakers would be well-advised to rely on high-quality research to guide the critical choices they make regarding school finance .

Finally, claims that “money doesn’t matter” are unethical and wrong. Baker 17 — Bruce D. Baker, Professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers, The State University of New Jersey, former Associate Professor of Teaching and Leadership at the University of Kansas, holds an Ed.D. in Organization and Leadership from the Teachers College of Columbia University, 2017 (“Does Money Matter in Education? Second Edition,” Albert Shanker Institute, Available Online at http://www.shankerinstitute.org/sites/shanker/files/moneymatters_edition2.pdf, Accessed 06-14-2017, p. 15-19)Summing Up The EvidenceThis brings me to a summary of the evidence on whether money matters in education. Despite the relative consistency of empirical findings over time regarding (a) whether per-pupil spending itself is related to student outcomes; (b) whether spending-related resources, such as teacher wages and class sizes, are related to student outcomes; and (c) whether improving the adequacy and equity of school funding can have positive effects on student outcomes, a persistent cloud of doubt hangs over political deliberations on school funding. Here, I review briefly the sources of that doubt, relative to what we do know with some confidence as well as what we still have yet to figure out about money and student outcomes.Main sources of doubtThe primary source of doubt to this day remains the above-mentioned Eric

Hanushek finding in 1986 that “there appears to be no strong or systematic relationship between school expenditures and student performance.”117 This single quote, now divorced entirely from the soundly refuted analyses on which it was based, remains a mantra for those wishing to deny that increased funding for schools is a viable option for improving school quality. Add to this statement the occasional uninformative and inflammatory anecdote regarding urban district spending and student outcomes in places

like Kansas City or New Jersey, or the frequently re-created graphs showing spending and achievement over the past few decades, and one has a rhetorical war against an otherwise overwhelming body of empirical evidence.118

While research evidence regarding the importance of funding and specific schooling resources for improving student outcomes has become clearer with time, Hanushek and a [end page 15] handful of peers have become even more entrenched in their views , as reflected in recent public testimony. Rhetoric among detractors has continued to drift from the cloud of

doubt to a rock of certainty. That is, certainty that money has little or no role in improving school quality, and that school finance reforms that infuse additional funds only lead to greater inefficiency, having little or no effect on either equity or adequacy of schooling. Notably, Hanushek asserts (now and then) that it’s not that money doesn’t matter at all, but rather that additional money doesn’t matter on top of the already high levels of spending that currently exist across all U.S. schools.To summarize, the current dogma of Hanushek includes the following core tenets:1. Because schools already spend so much and do so with such great inefficiency, additional funding is unlikely to lead to improved student outcomes.2. How money is used matters much more than how much money is spent.3. Differences in the amount of money some schools have than others are inconsequential, since those with less may simply make smarter spending decisions.According the recent rhetoric of Hanushek, these principles are ironclad. In his own words, they are “conventional wisdom” on which “virtually all analysts” agree. They are “commonly believed,” “overall truth” and backed by an “enormous amount of scientific analysis,” “substantial econometric evidence” and “considerable prior research.” For example, in the winter of 2015, in the context of school funding litigation in New York state, Hanushek opined:

“An enormous amount of scientific analysis has focused on how spending and resources of schools relates to student outcomes. It is now commonly believed that spending on schools is not systematically related to student outcomes.”119

Yet, the enormous amount of scientific analysis to which Hanushek referred in his expert testimony was primarily referenced to a 2003 summary of much of his prior work from the 1980s , work which has been discredited on numerous occasions , 120 including by research produced in the last 12 years. Similarly, in the same context (Maisto v. State of New York), Hanushek proclaims:

“There has been substantial econometric evidence that supports this lack of relationship.”Hanushek again backs his claims with the same short list of dated self-citation.121 In an even more recent attempt to rebut a new, major study finding positive effects of school finance reforms,122 Hanushek (2015) makes the following version of the same claim:

“Considerable prior research has failed to find a consistent relationship between school spending and student performance, making skepticism about such a relationship the conventional wisdom.”123

This time, he anchored that claim only to his 2003 piece (by hyperlink to the “prior research” phrase) on the failure of input-based schooling policies, 124 choosing to ignore entirely the considerably larger body of more rigorous work I summarize in my 2012 review on the topic.The extension of these claims that nearly everyone agrees there’s no clear relationship between spending and student performance is the assertion that there is broad agreement that how money is spent matters far more than how much money is available. As phrased by Hanushek in the context of New York state school finance litigation:

“Virtually all analysts now realize that how money is spent is much more important than how much is spent.”125As with the prior declarations, this one is made with the exceedingly bold assertion that virtually all analysts agree on this point—without reference to any empirical evidence to that point (a seemingly gaping omission for a decidedly empirical claim about a supposedly empirical truth). Further, “how money is spent” is constrained by whether sufficient money is there to begin with. While common sense dictates that how money is spent clearly matters, thus making this part of the statement widely agreeable, this does not preclude the relevance of how much money is available to spend.Perhaps most disconcerting is that Hanushek has recently extended this argument to declare that equity gaps in funding, or measures of them, aren’t an important policy concern either. Specifically, Hanushek proclaims:

“It also underscores how calculations of equity gaps in spending, of costs needed to achieve equity, or of costs needed to obtain some level of student performance are vacuous, lacking any scientific basis” (p. 4).126

Put differently, what Hanushek is opining by declaring calculations of equity gaps to be

vacuous and lacking scientific basis is that it matters not whether one school or district has more resources than another. Regardless of any spending differences, schools and districts can provide equitable education—toward equitable outcome goals. Those with substantively fewer resources simply need to be more efficient. Since all public schools and districts are presently so inefficient, achieving these efficiency gains through more creative personnel policies, such as performance-based pay and dismissal of “bad teachers,” is easily attainable.Of course, even if we assume that creative personnel policies yield marginal improvements to efficiency, if schools with varied levels of resources pursued these strategies [end page 16] with comparable

efficiency gains, inequities would remain constant. Requiring those with less to simply be more efficient with what they have is an inequitable requirement. This argument is often linked in

popular media and the blogosphere with the popular book and film Moneyball, which asserts that clever statistical analysis for selecting high-productivity, undervalued players was the basis for the (short-lived) success in 2002 and 2003 of the low-payroll Oakland Athletics baseball team. The flaws of this analogy are too many to explore thoroughly herein, but the biggest flaw is illustrated by the oft-ignored subtitle of the book: The Art of Winning an Unfair Game . That is, gaining a leg up through clever player selection is necessary in baseball because vast wealth and payroll differences across teams make baseball an unfair game. The public’s interest in providing equitable and adequate funding for education is likely greater than ensuring equitable and adequate baseball payrolls. Put more bluntly,

the education of present and future generations should not be an unfair game.

From judges to scholars , critics of Hanushek have characterized his evidence as “ facile ,” based on “ fuzzy logic ,” 127 and “ weak and factually tenuous .” 128 Two recurring examples used by Hanushek to illustrate the unimportance of funding increases for improving outcomes are the “long-term trend” or “time trend” argument and anecdotal claims of the failures of input-based reforms in New Jersey. Baker and Welner (2011) tackle in depth the fallacies of Hanushek’s New Jersey claims.129 Here, I point to Hanushek’s own, albeit facile, unacknowledged self-debunking of his New Jersey claims. But first, I address the long-term trend claim.Again, from recent testimony in New York state, Hanushek provides the following exposition of the long-term trend assertion:

“The overall truth of this disconnect of spending and outcomes is easiest to see by looking at the aggregate data for the United States over the past half century. Since 1960, pupil-teacher ratios fell by one-third, teachers with master’s degrees over doubled, and median teacher experience grew significantly (Chart 1).4 Since these three factors are the most important determinants of spending per pupil, it leads to the quadrupling of spending between 1960 and 2009 (after adjusting for inflation). At the same time, plotting scores for math and reading performance of 17-year-olds on the National Assessment of Educational Progress (NAEP, or “The Nation’s Report Card”) shows virtually no change since 1970 (Charts 2 and 3).5”130

This claim, like many of Hanushek’s, is made with language of astounding certainty—the “overall truth” as it exists in the mind of Hanushek. This claim is commonly accompanied by graphs showing per-pupil spending going up over time, pupil-to-teacher ratios going down and national assessment scores appearing relatively flat, much of which is achieved via the smoke and mirrors of representing spending and outcome data on completely different scales, and via the failure to adjust appropriately for the changing costs and related obligations of the public education system and for the changing demography of the tested population.131 Oversimplified visuals are used to make the proclamation that student achievement shows “virtually no change,” a statement discredited on closer inspection.132 Jackson, Johnson and Persico (2015) provide additional examples of how such facile analyses lead to fallacious conclusions.133As explained by Baker and Welner (2011),134 Hanushek for years has cited the failures of New Jersey’s school finance reforms as the basis for why other states should not increase funding to high-poverty schools. In litigation in Kansas in 2011, Hanushek proclaimed:

“The dramatic spending increases called for by the courts (exhibit 34) have had little to no impacts on achievement. Compared to the rest of the nation, performance in New Jersey has not increased across most grades and racial groups (exhibits 35-40). These results suggest caution in considering the ability of courts to improve educational outcomes.”135

Hanushek reiterated these claims in the context of a even more recent New York school funding challenge.136 This is a surprising claim to preserve when one’s own recent (2012), marginally more rigorous analyses of state achievement growth rates on national assessments (from 1992 to 2011)137 find the following:

“The other seven states that rank among the top-10 improvers, all of which outpaced the United States as a whole, are Massachusetts, Louisiana, South Carolina, New Jersey, Kentucky, Arkansas, and Virginia.”138

Further, the same report reveals that New Jersey has seen particularly strong growth in reducing the number of the lowest-performing students (those scoring at the “below basic” level), especially for eighth-grade math. To be sure, there are others in academe and policy research that raise questions about the most effective ways to leverage school funding to achieve desired outcomes, and do so via more

rigorous, thoughtful analyses. The most recent rigorous and relevant academic research is addressed in the remainder of this brief. There are others who opine in the public square139 and courtroom140 that school finance reform—specifically infusing additional funding to districts serving high-need student populations—is neither the most effective nor the most efficient path toward improving schooling equity or adequacy. But empirical evidence to support claims of more efficient alternatives remains elusive.No rigorous empirical study of which I am aware validates that increased funding for schools in general, or targeted to [end page 17] specific populations, has led to any substantive, measured reduction in student outcomes or other “harm.” Arguably, if this were the case, it would open new doors to school finance litigation against states that choose to increase funding to schools. Twenty years ago, economist Richard Murnane summarized the issue exceptionally well when he stated:

“In my view, it is simply indefensible to use the results of quantitative studies of the relationship between school resources and student achievement as a basis for concluding that additional funds cannot help public school districts. Equally disturbing is the claim that the removal of funds … typically does no harm” (p. 457).141

Murnane’s quote is as relevant today as it was then. The sources of doubt on the “Does money matter?” question are not credible .While there remains much to debate, discuss and empirically evaluate regarding the returns to each additional dollar spent in schools—and the strategies for improving educational efficiency, equity and adequacy—we must finally be willing to cast aside the most inane arguments and sources of evidence on either side of the debate. Specifically, the following five contentions no longer have a legitimate place in the debate over state school finance policy and whether and how money matters in K-12 education:1. Vote counts of correlational studies between spending and outcomes, without regard for rigor of the analyses and quality of the data on which they depend; 2. The long-term trend argument and supporting graphs that show long-term spending going up and NAEP scores staying flat ; 3. International comparisons asserting , and perhaps illustrating via scatterplot,

that the United States spends more than other developed countries but achieves less on international assessments; 4. Anecdotal assertions that states such as New Jersey and cities such as Kansas City provide proof positive that massive infusions of funding have proven ineffective at improving student outcomes; and5. The assertion that how money is spent is much more important than how much is available .

Vote count tallies without regard for study quality and rigor are of relative little use for understanding whether money matters in schooling and are of no use for discerning how. The long-term trend argument is perhaps the most reiterated of all arguments that money doesn’t matter,

but it is built largely on deceptive, oversimplified and largely wrong characterizations (accompanied by distorted visuals) of the long- term trends in student outcomes and school spending. Facile international comparisons are equally deceitful , in that they (a)

fail to account for differences in student populations served and

the related scope of educational and related services provided; and (b) fail to appropriately equate educational spending across nations, including the failure to account for the range of services and operating costs covered under “educational expense” in the United States versus other countries (for example, public employee health and pension benefits). And anecdotal assertions of failures resulting from massive infusions of funding are rebutted herein and elsewhere.142Finally, while the assertion that “how money is spent is important” is certainly valid, one cannot reasonably make the leap to assert that how money is spent is necessarily more important than how much money is available. Yes, how money is spent matters, but if you don’t have it, you can’t spend it. It is unhelpful at best for public policy, and harmful to the children subjected to those policies, to pretend without any compelling evidence that somewhere out there exists a far cheaper way to achieve the same or better outcomes (and thus we can cut our way down that more efficient path). As so eloquently noted by a three-judge panel in Kansas when faced with this question:

“Simply, school opportunities do not repeat themselves and when the opportunity for a formal education passes , then for most, it is most likely gone . We all know that the struggle for an income very often—too often— overcomes the time needed to prepare intellectually for a better one.

“If the position advanced here is the State’s full position, it is experimenting with our children which have no recourse from a failure of the experiment.”143

What do we know?Based on the studies reviewed in this brief, there are a few things we can say with confidence about the relationship between funding, resources and student outcomes.First, on average, even in large-scale studies across multiple contexts, aggregate measures of per-pupil spending are positively associated with improved and/or higher student outcomes. In some studies, the size of this effect is larger than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that moderate the influence of funding on student outcomes, such as how that money is spent. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters . [end page 18] Second, schooling resources that cost money, including class size reductions and

increased teacher compensation, are positively associated with student outcomes. Again, these effects are larger in some cases and for some populations. On balance, though, there are ways to spend money that have a solid track record of success. Further, while there may exist alternative uses of financial resources that yield comparable or better returns in student outcomes, no clear evidence identifies what these alternatives might be.Third, sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes . While money alone may not be the answer, adequate and

equitable distributions of financial inputs to schooling provide a necessary underlying condition for improving the adequacy and equity of outcomes. That is, if the money isn’t there, schools and districts simply don’t have a “leverage option” that can support strategies that might improve student outcomes. If the money is there, they can use it productively; if it’s not, they can’t. But, even if they have the money, there’s no guarantee that they will use it productively. Evidence from Massachusetts, in particular, suggests that appropriate combinations of more funding with more accountability may be most promising.

1NC

1NC — Ban Private Schools CPFirst off is the Ban Private Schools Counterplan.

The United States federal government should abolish private and parochial K-12 schools and require compulsory attendance in public K-12 schools in the United States.

Only the counterplan can remedy educational inequalities — it’s impossible as long as private schools exist. Chemerinsky 15 — Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (“Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 249-250)On May 17, 2014, the nation celebrated the sixtieth anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education.1 The simple and tragic reality is that American public education is separate and unequal.2 Schools today are more segregated than they have been for decades, and segregation is rapidly increasing. Wide disparities exist in funding for schools. In Brown, Chief Justice Earl Warren spoke eloquently of the importance of education and how separate can never be equal.3 More than a half century later, in an even more technologically complex society, education is even more essential.The causes for this tragedy are easy to recite. There never has been the political will to pursue equal educational opportunity. No president since the

1960s has devoted any attention to decreasing segregation or to equalizing school funding. The Supreme Court refused to allow the needed steps to deal with the problem in its holding that metropolitan school districts can be created as a remedy only in very limited circumstances and that disparities in school funding do not violate the Constitution.4 Moreover, Supreme Court [end page 249] decisions in the 1990s have required the lifting of even successful desegregation orders, causing the resegregation of schools.5 The Court’s most recent decision about school desegregation, Parents Involved in Community Schools v. Seattle School District No. 1, greatly limited the ability of school boards to pursue voluntary desegregation plans, such as by considering race as one factor in assigning students so as to enhance diversity.6In this essay, I look behind these explanations and argue that the central problem in achieving equal educational opportunity has been the lack of a unitary system of education. Desegregation will not occur in most cities so long as parents can move their children to suburban or private schools . Adequate, let alone equal , funding for schools will not occur so long as wealthy parents can send their children to private or suburban schools , where far more is spent on education than in inner cities. A crucial aspect of Brown’s wisdom was the importance of a unitary system of education. Minority children are far more likely to receive quality education when their schooling is tied to that of wealthy

white children. The failure to create truly unitary systems is the core explanation for the inequalities in American schools today.

Consider a simple analogy: the dual system of medical care. If wealthy people had to receive their medical treatment in public hospitals, is there any doubt that the quality of those hospitals would be dramatically different? But so long as the public hospital system is just for poor people, and often predominately racial minorities at that, they never will be of the same quality as top private hospitals. The same is true of schools .

Therefore, I propose a radical solution: the abolition of private and parochial schools in the U nited States and the creation of large metropolitan school districts. Under this proposal, every child will be required to attend these public schools . In this way, there truly would be a unitary system of education and , as a result, equality of school funding and meaningful desegregation. Desegregation and equalization of funding can be achieved through this approach, but probably not otherwise .

2AC

2AC — Ban Private Schools CP1. Immediate Action Key — the plan guarantees equal access to an excellent education for everyone now. This immediately initiates aggressive reforms. Counterplan-induced change takes generations. Benedikt 13 — Allison Benedikt, Executive Editor at Slate, 2013 (“If You Send Your Kid to Private School, You Are a Bad Person,” Slate, August 29th, Available Online at http://www.slate.com/articles/double_x/doublex/2013/08/private_school_vs_public_school_only_bad_people_send_their_kids_to_private.html, Accessed 07-02-2017)You are a bad person if you send your children to private school. Not bad like murderer bad—but bad like ruining-one-of-our-nation’s-most-essential-institutions-in-order-to-get-what’s-best-for-your-kid bad. So, pretty bad.I am not an education policy wonk: I’m just judgmental. But it seems to me that if every single parent sent every single child to public school, public schools would improve. This would not happen immediately. It could take generations . Your children and grandchildren might get mediocre educations in the meantime , but it will be worth it, for the eventual common good. (Yes, rich people might cluster. But rich people will always find a way to game the system: That shouldn’t be an argument against an all-in approach to public education any more than it is a case against single-payer health care.)So, how would this work exactly? It’s simple! Everyone needs to be invested in our public schools in order for them to get better. Not just lip-service investment, or property tax investment, but real flesh-and-blood-offspring investment. Your local school stinks but you don’t send your child there? Then its badness is just something you deplore in the abstract. Your local school stinks and you do send your child there? I bet you are going to do everything within your power to make it better.And parents have a lot of power. In many underresourced schools, it’s the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administration’s face when a teacher is falling down on the job. Everyone, all in. (By the way: Banning private schools isn’t the answer . We need a moral adjustment, not a legislative one.)

2. Permute: Do Both. Federal guarantee plus private school ban best way to rapidly improve public schools. Avoids spending DA because private school ban transfers millions to public schools.

3. Parental Leverage Fails — wealthy parents will only lobby for their schools, not all public schools. Munger 13 — Dave Munger, Editor of ScienceSeeker—a science news portal, former Co-Founder and Editor of ResearchBlogging.org—a website that collects posts about peer-reviewed research, 2013 (“No, sending your child to public school won’t save the schools. Not even if everyone did it.,” Word Munger—a blog, August 29th, Available Online at http://wordmunger.com/?p=1822, Accessed 07-02-2017)An Allison Benedikt article on Slate is getting a lot of attention, partly due to its provocative headline: “If you send your kid to a private school, you are a bad person.”Benedikt’s argument is basically this: People who send their kids to private school care about their kids’ education, so if those kids were in public school, the parents would work to make that school better.

Oh, if only that were true. If only somehow the children of the wealthy (and their parents) could make schools a better place for everyone by their mere presence . Wouldn’t that be great? But you know what? They wouldn’t .

Sure, the wealthy parents might spend more time volunteering in the schools. They might lobby for more money to be spent on schools and for better schools to be built.

But they wouldn’t want this for everyone . They would want this for their kids . So they wouldn’t lobby for a new school to replace the crumbling central-city school; they’d lobby for a gleaming new suburban palace in their wealthy neighborhood (but not too close — wouldn’t want to spoil their view of the golf course).Think I’m wrong? Look, this already happens . Plenty of wealthy parents are too cheap to send their kids to private schools. So they send them to public schools, then set up PTAs to raise money for those schools, turning them into the next best thing to a private school, at a fraction of the cost. They lobby against busing. They support zoning laws restricting high-density development so that poor people can’t afford to live in their neighborhoods. They do all this even though they could afford to send their kids to private school.

These people are not benevolent . Sure, they care about their kids. To a lesser extent

they care about their neighbor’s kids. But they don’t care about poor kids . They might say they care, but they certainly aren’t volunteering to put on a bake sale at the poor kids’ school. They’re not coaching the poor kids’ Little League teams, they’re not advocating for higher wages so poor parents can afford a better life for their own children.There are a lot of things wrong with the public schools. I may not know

how to fix them, but I do know one thing: Asking wealthy folks to voluntarily stop sending their kids to private schools won’t fix the schools .And it especially won’t help the public schools that need help the most.

4. Ban Gets Circumvented — rich families will buy out-of-school supplements so their kids retain a huge advantage. Removes their incentive to push for improved public schools.

5. Religious Freedom DA — banning private schools violates it. Garnett 13 — Rick Garnett, Professor of Law, Concurrent Professor of Political Science, and Director of the Notre Dame Program on Church, State, and Society at the University of Notre Dame, holds a J.D. from Yale Law School, 2013 (“Mandatory public education,” PrawfsBlog—a scholarly legal blog, January 7th, Available Online at http://prawfsblawg.blogs.com/prawfsblawg/2013/01/mandatory-public-education.html, Accessed 07-02-2017)At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education

sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto)

resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."

In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated

objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking

education funding from local property values), but – as I tried to flesh out in more detail, a few years

ago, here – the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies , are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way , it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand ( and support financially ) choices and options , and to include (appropriately qualified) religious schools fully in the enterprise of public education , i.e., educating the public, at public expense .

6. Residential Clustering DA — the counterplan causes rich people to move to the suburbs. They still won’t care about urban schools. Adler 13 — Ben Adler, Freelance Journalist who has reported for Newsweek, Politico, and The Nation, 2013 (“Even if Private Schools Didn't Exist, There Would Still Be Rich Suburbs,” The Atlantic, September 3rd, Available Online at https://www.theatlantic.com/national/archive/2013/09/even-if-private-schools-didnt-exist-there-would-still-be-rich-suburbs/279295/, Accessed 07-02-2017)"You are a bad person if you send your children to private school," argues Allison Benedikt in an article that appeared on Slate last week. Benedikt makes two points to parents: that going to a diverse public school will provide their kids with an education no less important than what they learn in the classroom, and that rich parents have a moral obligation to suffer the same frustrations with public schools as poor parents, so that they will be motivated to demand that the schools be improved. Conservatives criticized Benedikt on liberty grounds, but others have failed to point out how Benedikt's argument is not right on its own terms. Even Benedikt's usually insightful colleague Matthew Yglesias praised it. Benedikt's argument is objectionable, and not just because it is obnoxious and ignorant, but because it would lead to bad policy. Benedikt claims inner-city public schools would be better off if parents were unwilling to consider private school, but she is wrong .The reason is the narrowness of Benedikt's view of America, as if she had just landed in New York City from Mars. She seems to think that the only types of people in America are the urban poor and the urban rich. She writes, "Whatever you think your children need--deserve--from their school experience, assume that the parents at the nearby public housing complex want the same. No, don't just assume it. Do something about it. Send your kids to school with their kids."Benedikt bizarrely assumes that her readers are wealthy and educated but that they live near a public housing complex. From that false premise, she infers that the only

choice facing the rich is an homogenous private school or a diverse public school.

What's missing from this portrait? The suburbs . You know, they're the place where a majority of Americans live. Sending their kids to private school is only one approach the affluent take to avoid sending their children to inner-city public schools. The more common choice is to move to the suburbs .So, is someone who moves to an exclusive, wealthy suburb and sends their kids to the gold-plated public schools a good person in Benedikt's view? Implicitly, yes, since she makes no distinction between cities and suburbs, or rich school districts and poor ones.In fact, though, the average student in a wealthy suburban public school may be exposed to no greater diversity—possibly even less, thanks to

private school scholarship programs—than one finds in most urban private schools.Consider Potomac, Maryland, which is the kind of wealthy coastal blue state community where Slate readers might live. The median household income in 2011 was $167,436. Despite being next to the "Chocolate City" of Washington, D.C., the population is less than six percent African-American. At Winston Churchill High, a public high school in Potomac, fewer than five percent of the students qualify for reduced-price or free school lunches. By contrast, elite urban private schools in D.C., such as Maret and Georgetown Day, report that their student bodies are approximately 20 percent African-American. Then there is the fact that living in many urban neighborhoods will expose a child to diversity that raising her in car-dependent fancy suburb will not.So how does a wealthy family moving to Potomac for the fancy public schools help anyone but the family itself?It doesn't. (For the New York region, just substitute for Potomac a town such as Scarsdale, in Westchester, where the median household income in 2011 was $220,119 and the school district is only 1.3 percent black.) If the choice you are making —and for most rich parents, this is the

choice, if they consider staying in the city at all—is between living in the city and sending their kids to private school or moving to the suburbs and sending their kids to public school, the inner-city poor benefit more from the former . In that case, at least the family's income and taxes will stay in the city . While the public schools don't benefit from the family's social capital, they also have one fewer student drawing on their resources. The existence of private school options may help keep rich families in the city , and cities are undoubtedly better off with wealthy residents than without them. Just compare the fiscal health and crime rates of Detroit, St. Louis or Cleveland to New York, San Francisco or Boston.

Another hole in Benedikt's logic is the presence of another option on the spectrum of urban public-school avoidance: magnet schools and charters. Plenty of well-off urban parents who do send their kids to public school choose selective magnets, or at least charters that require some parental involvement to apply. If you send your kids to public schools that are disproportionately wealthy and white compared to the city as a whole, are you an evil person? By following Benedikt's thinking on private schools, the answer should be yes. But since, like "suburbs," the words "magnet" and "charter" appear nowhere in her piece, she is implying sending your kid to an elite public magnet school is a morally pure choice while sending her to private school is evil.

The same goes for gifted programs and tracking. Are parents who send their kids to the local public school's gifted program evil as well? If not, how is their decision to make sure their child is challenged academically any different than that of a private-school parent?I grew up in Park Slope, Brooklyn. My parents were among the earliest wave of the neighborhood's gentrifiers. Gentrification is now seen by many people—ironically, often gentrifiers themselves—as a dirty word connoting the arrival of Starbucks and the ejection of longtime residents. In 1979, though, when my parents bought their house, New York City was struggling with rising crime, near fiscal insolvency and rapid out-migration. The decision of any educated professionals to stay was widely viewed--including by many working-class families hanging on in the Slope--as a blessing. (As Suleiman Osman, a native Slopie and professor of American Studies at George Washington University, explains in his 2011 book The Invention of Brownstone Brooklyn, the middle-class and working-class families who did not want to leave neighborhoods like Carroll Gardens and Park Slope actively recruited gentrifiers as a stabilizing force.) Every Slope kid I know from a middle-class or wealthy family attended a magnet school, a Catholic school, or a private school, rather than one of the locally zoned public schools. Why? Some urban public schools are so bad that parents fear more than a sub-par education if their kids go there. My local district school, Sarah J. Hale—since shut down by the city for failing its students academically—was known as "Sarah Jail" and was on the news while I was in high school because a student sliced a teacher.If there were no private or magnet school options, the college-educated liberal parents who revived Park Slope would not all have, as Benedikt naively imagines, simply sent their kids to John Jay and Sarah J. Hale and shrugged at the thought they would have a better chance of getting stabbed than getting into a good college. They would have moved

to the suburbs.

7. No Solvency — no parental leverage in public schools. Pethokoukis 13 — James Pethokoukis, Columnist and Blogger at the American Enterprise Institute, former Washington Columnist for Reuters Breakingviews, former Business Editor and Economics Columnist for U.S. News & World Report, 2013 (“Please, sending your kids to private school doesn’t make you a bad person,” AEIdeas—the American Enterprise Institute’s blog, August 29th, Available Online at https://www.aei.org/publication/please-sending-your-kids-to-private-school-doesnt-make-you-a-bad-person/, Accessed 07-03-2017)I am actually reluctant to comment on Slate’s trolling-masquerading-as-analysis piece “If You Send Your Kid to Private School, You Are a Bad Person.” And I certainly don’t want to spend much time refuting writer Allison Benedikt’s fact-free, data-free “argument”: If more upper-middle class and wealthy parents — a.k.a. Slate readers, I guess — sent their kids to their local public schools, the US education system would suddenly improve.1. So I asked AEI’s Michael McShane for his two cents:

Because public schools are by and large residentially assigned, the rich have their totally awesome (and essentially private due to the home price in the school’s catchment area) public schools and poor people are trapped in failing schools because they can’t move away. That’s what leads to Balkanization. You choosing to send your kids to a suburban public school does nothing for the kids in SouthEast.Private schools, especially with public support, break the connection between residence and schooling, which holds more potential for desegregation and a mixing of students from different background than residential assignment of public schooling.

2. Aren’t the “bad people” — to use Allison Benedikt’s language — here the ones who would trap lower-income and poor kids in their local education monopoly? Or as Alex Tabarrok puts it: “Barricading parents into the poor schools their government offers them is like barricading people into communist East Germany .”

Tabarrok also notes that merely having more activist parents inside a school monopoly might not change much without competition : “When you complain of delay where is your voice more likely to be heard; at a restaurant or at the d epartment of m otor v ehicles? It’s the threat of exit that makes people listen .”

3. Oh, by the way, do we have any data on the educational impact of helping lower-income and poor kids escape the public education monopoly? Like, say, data from the District of Columbia Opportunity Scholarship Program? Well, the US Education Department’s OSP study found the program, McShane points out, “produced $2.62 in benefits for every dollar spent on it. In other words, the return on public investment for the private-school voucher program during its early years was 162 percent.” What’s more, “The OSP increased the high-school graduation rate of students by 12 percentage points if they were lucky enough to win the annual scholarship lottery.”4. One more from McShane:

It’s also a proud tradition in America (since Pierce v. Society of Sisters in 1925) to recognize that children are not instruments of the state. They do not exist to promote the goals of the government or the community, they (and their parents) are free to (within limits) to be educated as they best see fit. Obviously this person has no idea about the anti-Catholicism and anti-immigrant racism that lead people to make the same argument that she is making, albeit 100 years ago.

Choice won’t fix everything wrong with America’s school, but choice and competition create the environment where change is possible.

8. Constitutional Liberty DA — the counterplan crushes it.Volokh 13 — Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at the University of California-Los Angeles School of Law, Academic Affiliate for Mayer Brown LLP—a law firm, holds a J.D. from the University of California-Los Angeles, 2013 (“Equality vs. Liberty,” The Volokh Conspiracy—a scholarly legal blog, January 23rd, Available Online at http://volokh.com/2013/01/23/equality-vs-liberty/, Accessed 07-02-2017)The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents’ right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Court’s decision in Employment Division v.

Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.

A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking . After all, the argument that “[i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools” and that “[c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools” could apply to many things. For instance, if wealthy people know that, if they or their family members

prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child .

Likewise, one can argue that public libraries are underfunded , too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries . Naturally,

private provision of medical care would have to be forbidden, too , since only that will give rich people an incentive to vote for more funding for medical care for the poor.

And of course people in poor, high-crime neighborhoods often don’t get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this:

Let’s bar people from buying private housing , and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.

Think also of the other ways that some people find themselves “separate and unequal” — how about in the ability to reach the

public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you don’t have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status , so as to at least reduce this inequality .To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they — like abortion rights and sexual autonomy rights — aren’t mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this

view. He is acknowledging that there is a constitutional right to control the upbringing of one’s children, but is saying that this right, “like other fundamental rights , is not absolute,” and can be trumped by a “ compelling interest in achieving equality of educational opportunity.” It follows that other fundamental constitutional rights , such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that it’s

recognized as a constitutional right) would likewise have to yield to the “compelling interest in achieving equality.”

Activity 2 — Two CPs

Explanation/SetupThe purpose of this activity is to improve students’ strategic thinking and argument selection. It teaches lessons about counterplans, kick-outs, conditionality, and affirmative and negative strategy.

1. Assume the 1AC, 1NC, and 2AC below.

2. One student will be selected to read the 1NC. All other students will flow.

3. One student will be selected to read the 2AC. All other students will flow.

4. All students should prepare to deliver a 4 minute 2NC speech that extends one (and only one) of the counterplans. They must kick the other counterplan. Assume that the 1NC also included the Spending DA and that it will be extended in the 1NR as a net-benefit to the counterplan that is extended.

5. We will discuss as a group the best blueprint for the 2NC. There is one blueprint that is almost certainly the best.

6. One student volunteer will be selected to deliver a 2NC. The rest of the students will flow and discuss. Time permitting, we will allow additional student volunteers to deliver their version of the speech.

1AC

1AC — Inequality AdvantageContention One: Inequality

First, there are massive opportunity gaps in the K-12 education system. Millions of students are denied access to an excellent education. Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“Disrupting Education Federalism,” Washington University Law Review (92 Wash. U. L. Rev. 959), Available Online to Subscribing Institutions via Lexis-Nexis)IntroductionThe United States continues to tolerate a longstanding educational opportunity gap. Today, it relegates at least ten million students in low-income neighborhoods and millions more minority students to poorly performing teachers, substandard facilities, and other inferior educational opportunities . n1 This occurs in part because the U nited States invests more money in high-income districts than in low-income districts, a sharp contrast to other developed nations. n2 Scholars and court decisions also have documented the sizeable intrastate disparities in educational opportunity. n3 In addition, interstate inequalities in educational opportunity represent the largest component of disparities in educational opportunity. n4 The harmful nature of interstate disparities falls hardest on disadvantaged schoolchildren who have the most educational needs, n5 and states do not [*962]

possess the resources and capacity to address the full scope of these disparities . n6 Furthermore, research confirms that as the gap in wealth has grown between low-income and high- income families, the achievement gap between children in low- income and high-income families also has widened . n7

Although equal educational opportunity remains a central goal of the U.S. education

system, it has never been realized . n8 Indeed, the United States relies heavily on schools to overcome the influence of a child's circumstances , such as family income and structure, on life opportunities despite evidence that schools are not effectively serving this function. n9 Fulfilling the goal of equal educational opportunity will become increasingly important to the nation's interests given research that reveals that the United States will need more highly skilled workers to fill jobs that meet the economy's demands. This research also indicates that the achievement gap

must be closed to ensure that students from rapidly growing minority communities possess the educational skills necessary to contribute to the economy. n10

Second, current education policies exacerbate racial and economic inequality because they rely on devolution and choice.Sundquist 17 — Christian B. Sundquist, Professor of Law and Director of Faculty Research and Scholarship at Albany Law School, former Visiting Scholar at the Institute for Research on Poverty at the University of Wisconsin-Madison, holds a J.D. from Georgetown University Law Center, 2017 (“Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,” Mercer Law Review (68 Mercer L. Rev. 351), Winter, Available Online to Subscribing Institutions via Lexis-Nexis)B. The Failings of Choice, Competition, and Market-Based Education ReformsIn this milieu, the original purpose of the ESEA and Brown (and of the appropriate federal role in education) has become lost. Rather than utilizing federal policy and funding to combat the true roots of educational disparity—poverty and racial discrimination—the federal role has shifted under the market model to conceal these roots . The belief has become that "effective teaching" and a business-model of public education is all [*377] that is needed to overcome generational poverty and persistent racial discrimination. n143 Yet, it has become abundantly clear that the market strivings of federal education policy have forsaken the original promise of social equality embodied by Brown and the ESEA.

Our history demonstrates that school choice policies tend to develop as a tool to undermine Brown desegregation efforts as part of a larger effort to maintain racial inequality. While often utilizing race-neutral language such as "parental choice" and "individual freedom," modern choice policy " has the potential to perpetuate racial hierarchies " as parents make private decisions to self-segregate their children. n144 The equity rationale of Brown and the original vision of the ESEA are simply incompatible with the market rationale of current education policy:

[It] is apparent that two distinctly different ideologies motivated the Brown decision and NCLB. For Brown a separate education could never be equal, and affirmative racial integration was necessary to provide every child with a quality education. Conversely, under NCLB the ideologies of high-stakes accountability and a market-driven approach [assume] that a separate education can be equal. n145

The modeling of education policy around principles of consumer choice, competition, and market-accountability have increased educational disparities along class and race lines. n146 Since

the adoption of NCLB and RTT, our public schools have become increasingly segregated by race . n147 There is little reason to believe that rates of school segregation will decrease because of the passage of the ESSA, especially in light of its continued

expansion of charter schools, deregulation, and parental choice. The choice provisions of the ESSA (and formerly of NCLB and RTT) are fueling the re-segregation of our public schools primarily because the current market-model of education policy incorrectly assumes parents (that [*378] is, namely consumers) to be rational actors. A core principle of the market-model is that choice will foster competition amongst public schools, which then will force individual schools to improve the quality of education provided to students. n148 However, it has become increasingly clear that parents tend to choose schools "with a racial profile matching their own." n149 Indeed, there is evidence that the current school-choice provisions have so upset the racial balance of certain public schools as to run afoul of Brown Court desegregation orders. n150Parents selecting a school for their children are also influenced by "non-racial" factors not adequately captured by the market model of competition — including geography, inadequate resources, lack of motivation, and inadequate information regarding other options. n151 The application of market principles to public education has failed not only due to an incorrect assumption of rational acting by consumers, but because of significant informational asymmetries between schools and parents. n152The allure of choice as a salve for racial and social inequality in education is understandable, yet misguided. Martha Minow has written extensively on the "seductive" nature of choice, noting that choice can "imply that freedom and equality exist even when they are absent." n153 Professor Minow observes "that by subordinating racial and other kinds of integration to school choice, contemporary schooling policies ... expressly elevate private preferences" which tend to "reinforce or even worsen racial separation in American schools ." n154 Professor John A. Powell summarizes the failings of school choice as follows: [*379]

The reality of choice is that it is a racialized system that reproduces the inequity it is supposed to address. Effective responses to persistent segregation and concentrated poverty cannot be furnished by purely individualistic solutions such as letting students choose their school one by one . The Supreme Court considered this approach after Brown and rejected it as inadequate. n155

The larger problem with the market-model of public education is that it serves to normalize continued educational inequality . The existing framework purports to provide students with an equal opportunity to pursue an education from competitive options. The occurrence of educational failures within such a "neutral" market of consumer preferences can then be interpreted as owing to poor choices or personal deficit under this perspective, thereby rationalizing the persistence of racial and social educational disparities. n156 Diane Ravitch concluded as follows:

The testing, accountability and choice strategies offer the illusion of change while changing nothing. They mask the

inequity and injustice that are now so apparent in our social order. They do nothing to alter the status quo. They preserve the status quo. They are the status quo. n157

School choice and accountability reforms, as noted, have had relatively little impact on student performance. n158 The primary determinants of student success, rather, have been racial bias, family background, and socioeconomic status. n159 The focus on

"neoliberal solutions like NCLB, [*380] with its emphasis on efficiency and individualism,

divert attention away from the social issues that need to be solved if we are to really improve education outcomes ." n160 As a

result, current education policy "both directly and indirectly exacerbates racial, ethnic and economic inequality in society." n161 Our current approach to public education has grossly departed from the ideals and principles of racial and class equality that shaped the federal education role during the post-Brown and ESEA era. The substantive dimension of education federalism has thus wrongly shifted from ensuring racial equality in a democratic society to ensuring consumer choice in a competitive marketplace.

The recent enactment of the ESSA creates the possibility of further exacerbating race and class-based educational inequalities. While retaining the core principles of NCLB, the ESSA diminishes federal oversight of school performance while further expanding both consumer choice and deregulated teacher preparation programs. As Marian Wright Edelman observes, such a "gutting [of] a strong federal role in [an] education policy designed to protect [African- American and Latino] children ... jeopardizes their opportunity for a fair and adequate education." n162 Civil rights groups, including

the Southern Poverty Law Center and the New York chapter of the NAACP, fear that decreased "federal oversight of education will be much too weak to ensure [equal] education for Black and Latino students" in many states. n163 The prominent education and urban planning researcher Gary Orfield further opines that with the ESSA "we're going to get something that's much worse [than NCLB] - a lot of federal money going out for almost no leverage for any national purpose." n164 Education advocate Kalmann Hettlemann similarly views the ESSA as "a massive retreat from our national interest and commitment to equal educational opportunity, especially for poor and minority children." n165

[*381] The education federalism forged by the original ESEA and Brown envisioned federal regulation of public education to the extent necessary to promote social equality and racial

integration. n166 Such robust federal oversight was necessary in light of the historical practice of states to undermine educational opportunity for poor and minority children. n167 The devolution of the federal role in public education following the ESSA - coupled with its continued emphasis on standardized testing, choice, and market competition - threatens to increase race-and class-based disparities in education .

Third, public school funding remains unfair and inequitable — the latest study proves. ELC 17 — Education Law Center, a non-profit organization in New Jersey that advocates for equal educational opportunity and education justice in the United States, 2017 (“School Funding Remains Unfair For Most Students Across The Nation,” Press Release Announcing Release of Is School Funding Fair? A National Report Card, January 25th, Available Online at https://drive.google.com/file/d/0BxtYmwryVI00LWdhZjRXTTM5WUk/view, Accessed 06-14-2017)Is School Funding Fair? A National Report Card (NRC), released by Education Law Center (ELC)

today, finds that public school funding in most states continues to be unfair and inequitable , depriving millions of U.S. students of the opportunity for success in school .

The sixth edition of the NRC uses data from the 2014 Census fiscal survey, the most recent available. The NRC goes beyond raw per-pupil calculations to evaluate whether states are making sufficient investments in public education and distributing funding relative to need, as measured by student poverty. To capture

the variation across states, the NRC uses four interrelated "fairness measures" – Funding Level, Funding Distribution, Effort and Coverage – that allow for state-by-state comparisons while controlling for regional cost differences.

The NRC released today shows almost no improvement since the end of the Great Recession in those states that do not provide additional funding to districts with high student poverty. There is also no change in the vast differences in levels of funding for K-12 education across the states , even after adjusting for cost. The states with the highest funding levels , New York and New Jersey,

spend more than two and one-half times that of the lowest , Utah and Idaho.Key findings include:* Funding levels show large disparities , ranging from a high of $18,165 per pupil in New York, to a low of $5,838 in Idaho.

* Many states with low funding levels, such as California, Idaho, Nevada, North

Carolina, and Texas, are also low “effort” states, that is, they invest a low percentage of their economic capacity to support their public education systems.

* Fourteen states, including Pennsylvania, North Dakota, New York, and Illinois, have “regressive” school funding. These states provide less funding to school districts with higher concentrations of need as measured by student poverty.

* Students in certain regions of the country face a “double disadvantage” because their states have low funding levels and do not increase funding for concentrated student poverty. These “flat” funding states include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona and New Mexico in the Southwest.* Only a handful of states – Delaware, Massachusetts, Minnesota and New Jersey – have “progressive” school funding. These states have sufficiently high funding levels and significantly boost funding in their high poverty districts.

* States with unfair school funding perform poorly on key indicators of resources essential for educational opportunity. In these states, access to early childhood education is limited; wages for teachers are not competitive with those of comparable professions; and teacher-to-pupil ratios in schools are unreasonably high.The sixth edition of the NRC released today underscores the persistence of unfair school funding as a major obstacle to improving quality and outcomes in the nation’s public schools. Most states finance public education purely on political considerations from year-to-year, and not on assessments of the actual cost of delivering rigorous academic standards to all students. Most states also continue to use outmoded methods of funding public education that fail to allocate additional funding to address concentrated poverty and other risk factors , including English language proficiency and disabilities. These antiquated methods are the cause of persistent funding disparities between low wealth, high poverty and high wealth, low poverty districts, even in states with high funding levels, such as Connecticut and New York.

“School finance reform is long overdue,” said Bruce Baker, the Rutgers University

Graduate School of Education Professor who developed the report's methodology. “States must develop, and then fund, school finance formulas that identify the costs of providing essential education resources to students, accounting for diverse student needs and taking into account local fiscal capacity.”

“Lawmakers in states with deeply regressive and flat funding, like

Illinois, Nevada, Pennsylvania, Mississippi and Arizona, urgently need to overhaul their finance systems to give students a meaningful opportunity to succeed in school,” said David Sciarra, ELC Executive Director. “Even states with higher funding levels, such as Ohio and Maine, need to do more to ensure fair funding for each and every student.”

“President Trump is flatly wrong when he says our schools are flush with cash,” Mr. Sciarra added. “In fact, for students in many states and

entire regions, their schools are woefully underfunded, depriving them of the qualified teachers, support staff, reasonable class sizes and other interventions they must have to succeed in school. It's time to put fair school funding at the top of the nation's education reform agenda."

Fourth, the current system makes it impossible to provide all students with an equal opportunity for an excellent education. Ogletree and Robinson 16 — Charles J. Ogletree, Jr., Jesse Climenko Professor of Law and Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, holds a J.D. from Harvard Law School and an M.A. in Political Science from Stanford University, and Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“The K-12 Funding Crisis,” Education Week, May 17th, Available Online at http://www.edweek.org/ew/articles/2016/05/18/the-k-12-funding-crisis.html?print=1, Accessed 06-07-2017)Current discussions about K-12 education often highlight the reforms that seek to improve the quality of schooling. Some of these measures—the common-core standards, teacher evaluation, and, most recently, the Every Student Succeeds Act—undoubtedly have the potential to improve educational opportunities for students. However, what is often missing from education reform conversations is how these reforms can create sustainable changes to the education system. We believe

the system's very foundations are broken, and school funding is one of the most pressing issues in need of repair.

Most states have failed to create school funding systems that provide the necessary foundation for all children to receive equal access to an excellent education. The nation's children deserve no less,

particularly in view of evidence that money spent wisely on education matters. In a 2012 review of studies that looked at the effect of funding on student outcomes, education scholar Bruce D. Baker found that ongoing improvements that enhance the amount and distribution of funding can increase student achievement.

School funding took a substantial blow after the Great Recession began in 2007, even as federal funding from the economic-stimulus package in 2009 softened the impact. Despite the improving U.S. economy, school funding has been slow to recover, and schools still feel the recession's effects nine years later. The Center on

Budget and Policy Priorities found in a recent report that although 35 of the

46 states surveyed increased their general state aid per student in 2016,

25 are still providing less general state funding than they were in 2008. And at least seven of those states have cut 10 percent or more from their general state funding per student since the recession.And as a result of the recent drop in oil, coal, and gas revenues, Alaska, Oklahoma, and West Virginia, among other states, have had to make deep cuts in their K-12 school budgets and must now find new funding streams.

Whether in tough or strong economic times, families and education funding advocates lack a way to insist on the equitable financing needed for excellent schools. This absence arises in part from the U.S. Supreme Court's 1973 San Antonio Independent School

District v. Rodriguez decision , which affirmed that the U.S. Constitution neither explicitly

nor implicitly provided a remedy for closing the funding gaps across school districts. This decision closed the federal courthouse door to future decisions that could address K-12 spending gaps and, ultimately, the gaps in educational opportunities and resources among children across districts.

The decision thus remanded the design and implementation of more-effective school funding systems to the laboratory of the states. The Supreme Court's decision also noted the need for changes to school funding and expressed concern about the long and heavy reliance on local property taxes.Despite subsequent decades of state-level litigation on school finance, most changes to finance systems have failed to provide equal access to a high-quality education for all children. Most states continue to build education systems funded by property taxes that vary greatly depending on a child's ZIP code , rather than a child's needs and the desired educational outcomes.

Significant school finance reforms can , in fact, lead to improved educational and social outcomes for children .

A 2015 report from the N ational Bureau of Economic Research, which followed

children born between 1955 and 1985 through their adult lives in 2011, found that disadvantaged students completed an additional 0.46 years of schooling when districts had a 10 percent increase in per-pupil spending each year for the 12 years the children attended public school. In adulthood, their earnings increased by almost 10 percent, and their likelihood of living in poverty was reduced by roughly 6 percentage points, while children in districts without such spending increases did not experience similar benefits.

The study also found that increasing spending by 25 percent per student throughout the course of a K-12 education could erase the attainment gaps between students from low-income and nonpoor families.

Fifth, disparities in educational opportunity cement overall socioeconomic inequality. Robinson 13 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2013 (“The High Cost of Education Federalism,” Wake

Forest Law Review (48 Wake Forest L. Rev. 287), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)Although the nation's current approach to education federalism

undoubtedly generates some benefits, it also tolerates substantial inequitable disparities in educational opportunity both within and between states. n7 The reality of local control of education for many communities means the ability to control inadequate resources that provide many students substandard educational opportunities. n8 The [*289] opportunity divide in American education continues to relegate far too many poor and minority schoolchildren to substandard educational opportunities . n9 These communities are left behind in the competition for educational excellence. n10 In addition, high-poverty schools , particularly those within urban school districts, regularly yield the worst academic outcomes. n11

[*290] These disparities in educational opportunity hinder schools from fulfilling some of their essential national and institutional goals. Schools serve indispensable public functions within a democratic society : they prepare students to engage in the nation's political system in an intelligent and effective manner and transmit the fundamental societal values that a democratic government requires. n12 The nation also relies on its public schools as the principal institutional guarantor of equal opportunity within American society by serving as a mechanism to ensure that children are not hindered in attaining their dreams by their life circumstances. n13 Americans depend on schools to address the societal challenges created by social and economic inequality rather than creating the extensive social welfare networks that many industrialized countries have implemented. n14 The disparities in educational opportunity that relegate many poor and minority students to substandard schooling have hindered the ability of schools to serve these functions. Indeed, rather than solve these challenges, low graduation rates and substandard schools cost the United States

billions of dollars each year in lost tax and income revenues, higher health care costs, food stamps, and welfare and housing assistance, to name a few of the costs. n15

Sixth, closing the opportunity gap in education is vital to reduce inequality. Johnson 16 — Rucker C. Johnson, Associate Professor at the Goldman School of Public Policy at the University of California-Berkeley, Faculty Research Fellow at the National Bureau of Economic Research, Faculty Research Fellow at the W.E.B. Du Bois Institute at Harvard University, Research Affiliate at the National Poverty Center at the University of Michigan, Research Affiliate at the Institute

for Poverty Research at the University of Wisconsin, holds a Ph.D. in Economics from the University of Michigan, 2016 (“Can Schools Level the Intergenerational Playing Field? Lessons from Equal Educational Opportunity Policies,” Economic Mobility: Research & Ideas on Strengthening Families, Communities & the Economy, Edited and Published by the Federal Reserve Bank of St. Louis and the Board of Governors of the Federal Reserve System, Available Online at https://www.stlouisfed.org/~/media/Files/PDFs/Community-Development/EconMobilityPapers/EconMobility_Book_508.pdf?la=en , Accessed 06-19-2017, p. 321)Summary Discussion and ConclusionsThe key contributions of this study are three-fold. First, the paper provides a more detailed descriptive portrait of intergenerational economic mobility in the U nited States.

Second, the paper attempts to explain why black-white mobility differences narrowed significantly for successive cohorts born between 19 55 and 19 79, with a focus on the role of three major equal educational opportunity policies pursued over this period: school desegregation, school finance reforms, and roll-out and expansions of Head Start, improving the understanding of the intergenerational mobility process in the United States and illuminating the central role schools play in the transmission of economic success from one generation to the next.

Third, the paper emphasizes differences in early education and school quality —in particular, Head Start and school spending — as important components of the persistence in income across generations.

Indeed, schools —and policies that influence their optimal functioning— are transformative agents that either provide or deprive children of the opportunity to reach their full potential. These equal educational opportunity policies were instrumental in the making of a growing black middle class . The evidence shows that the footprints of paths toward upward mobility are preceded by access to high quality schools beginning in early childhood through 12th grade. These school reforms expanded on-ramps to poor and minority children to get on that path.

Evidence on the long-term productivity of education spending demonstrates that equal education policy initiatives can play a pivotal role in reducing the intergenerational transmission of poverty.

Seventh, racial and economic inequality is a form of structural violence that condemns entire populations to preventable suffering and death. Bezruchka 14 — Stephen Bezruchka, Senior Lecturer in Health Services and Global Health at the School of Public Health at the University of Washington, holds a Master of Public Health from Johns Hopkins University and an M.D. from Stanford University, 2014 (“Inequality Kills,” Divided: The Perils of Our Growing Inequality, Edited by David Cay Johnston, Published by The New Press, ISBN 9781595589446, p. 194-195)

Differences in mortality rates are not just a statistical concern—they reflect suffering and pain for very real individuals and families. The higher mortality in the U nited States is an example of what Paul Farmer, the

noted physician and anthropologist, calls structural violence. The forty-seven infant deaths occur every day because of the way society in the United States is structured, resulting in our health status being that of a middle-income country, not a rich country. There is growing evidence that the factor most responsible for the relatively poor health in the United States is the vast and rising inequality in wealth and income that we not only tolerate, but resist

changing. Inequality is the central element , the upstream cause of the social disadvantage described in the IOM report. A political system that fosters inequality limits the attainment of health.

The claim that economic inequality is a major reason for our poor health requires that several standard criteria for claiming causality are satisfied: the results are confirmed by many different studies by different investigators over different time periods; there is a dose-response relationship , meaning more inequality leads to worse health; no other contending explanation is posited; and the relationship is biologically plausible , with likely mechanisms through which inequality works. The field of study called stress biology of social comparisons is one such way inequality acts.

Those studies confirm that all the criteria for linking inequality to poorer health are met , concluding that the extent of inequality in society reflects the range of caring and sharing, with more unequal populations sharing less. Those who are poorer struggle to be accepted in society and the rich also suffer its effects. A recent Harvard study estimated that about one death in three in this country results from our very high income inequality. Inequality kills through structural violence . There is no smoking gun with this form of violence, which simply produces a lethally large social and economic gap between rich and poor.

Finally, the structural violence of inequality outweighs other impacts. There is an ethical obligation to address it.Ansell 17 — David A. Ansell, Senior Vice President, Associate Provost for Community Health Equity, and Michael E. Kelly Professor of Medicine at Rush University Medical Center (Chicago), holds an M.D. from the State University of New York Upstate Medical University College of Medicine, 2017 (“American Roulette,” The Death Gap: How Inequality Kills, Published by the University of Chicago Press, ISBN 9780226428291, p. kindle 307-363)There are many different kinds of violence. Some are obvious : punches, attacks, gunshots, explosions. These are the kinds of interpersonal violence that we tend to hear about in the news . Other kinds of violence are intimate and emotional.

But the deadliest and most thoroughgoing kind of violence is woven into the fabric of American society. It exists when some

groups have more access to goods, resources, and opportunities than other groups , including health and life itself. This violence delivers specific blows against particular bodies in particular neighborhoods . This unequal advantage and violence is built into the very rules that govern our society. In the absence of this violence, large numbers of Americans would be able to live fuller and longer lives .

This kind of violence is called structural violence , because it is embedded in the very laws, policies, and rules that govern day-to-day life.8 It is the cumulative impact of laws and social and economic policies and practices that render some Americans less able to access resources and opportunities than others . This inequity of advantage is not a result of the individual’s personal abilities but is built into the systems that govern society. Often it is a product of racism , gender , and income inequality . The diseases and premature mortality that Windora and many of my patients experienced were, in the words of Dr. Paul Farmer, “biological reflections of social fault lines.”9 As a result of these fault lines, a disproportional burden of illness, suffering, and premature mortality falls on certain neighborhoods, like Windora’s. Structural violence can overwhelm an individual’s ability to live a free , unfettered, healthy life .As I ran to evaluate Windora, I knew that her stroke was caused in part by lifelong exposure to suffering, racism, and economic deprivation. Worse, the poverty of West Humboldt Park that contributed to her illness is directly and inextricably related to the massive concentration of wealth and power in other neighborhoods just miles away in Chicago’s Gold Coast and suburbs. That concentration of wealth could not have occurred without laws, policies, and practices that favored some at the expense of others. Those laws, policies, and practices could not have been passed or enforced if access to political and economic power had not been concentrated in the hands of a few. Yet these political and economic structures have become so firmly entrenched (in habits, social relations, economic arrangements, institutional practices, law, and policy) that they have become part of the matrix of American society. The rules that govern day-to-day life were written to benefit a small elite at the expense of people like Windora and her family. These rules and structures are powerful destructive forces. The same structures that render life predictable, secure, comfortable, and pleasant for many destroy the lives of others like Windora through suffering , poverty , ill health , and violence . These structures are neither natural nor neutral. The results of structural violence can be very specific. In Windora’s case, stroke precursors like chronic stress, poverty, and uncontrolled hypertension run rampant in neighborhoods like hers. Windora’s illness was caused by neither her cultural traits nor the failure of her will. Her stroke was caused in part by inequity. She is one of the lucky ones, though, because even while structural violence ravages her neighborhood, it also abets the concentration of expensive stroke- intervention services in certain wealthy teaching hospitals like mine. If I can get to her in time, we can still help her. Income Inequality and Life Inequality Of course, Windora is not the only person struggling on account of structural violence. Countless neighborhoods nationwide are suffering from it, and people are dying needlessly young as a result. The magnitude of this excess mortality is mind-boggling. In 2009 my friend Dr. Steve Whitman asked a simple question, “How many extra black people died in Chicago each year, just because they do not have the same health outcomes as white Chicagoans?” When the Chicago Sun-Times got wind of his results, it ran them on the front page in bold white letters on a black background: “HEALTH CARE GAP KILLS

3200 Black Chicagoans and the Gap is Growing.” The paper styled the headline to look like the declaration of war that it should have been. In fact, we did find ourselves at war not long ago, when almost 3,000 Americans were killed. That was September 11 , 2001. That tragedy propelled the country to war. Yet when it comes to the premature deaths of urban Americans, no disaster area has been declared . No federal troops have been called up. No acts of Congress have been passed. Yet this disaster is even worse : those

3,200 black people were in Chicago alone, in just one year. Nationwide each year, more than 60,000 black people die prematurely because of inequality.10

While blacks suffer the most from this, it is not just an issue of racism, though racism has been a unique and powerful transmitter of violence in America for over four hundred years.11 Beyond racism, poverty and income inequality perpetuated by exploitative market capitalism are singular agents of transmission of disease and early death. As a result, there is a new and alarming pattern of declining life expectancy among white Americans as well. Deaths from drug overdoses in young white Americans ages 25 to 34 have exploded to levels not seen since the AIDS epidemic. This generation is the first since the Vietnam War era to experience higher death rates than the prior generation.12 White Americans ages 45 to 54 have experienced skyrocketing premature death rates as well, something not seen in any other developed nation.13 White men in some Appalachian towns live on average twenty years less than white men a half-day’s drive away in the suburbs of Washington, DC. Men in McDowell County, West Virginia, can look forward to a life expectancy only slightly better than that of Haitians.14But those statistics reflect averages, and every death from structural violence is a person . When these illnesses and deaths are occurring one at a time in neighborhoods that society has decided not to care about —neighborhoods populated by poor, black, or brown people — they seem easy to overlook , especially if you are among the fortunate few who are doing incredibly well. The tide of prosperity in America has lifted some boats while others have swamped. Paul Farmer, the physician-anthropologist who founded Partners in Health, an international human rights agency, reflects on the juxtaposition of “unprecedented bounty and untold penury”: “It stands to reason that as beneficiaries of growing inequality , we do not like to be reminded of misery of squalor and failure. Our popular culture provides us with no shortage of anesthesia.”15

That people suffer and die prematurely because of inequality is wrong . It is wrong from an ethical perspective . It is wrong from a fairness perspective . And it is wrong because we have the means to fix it.

1AC — PlanThe United States federal government should establish and enforce a constitutional right to education guaranteeing that all children in the United States receive equal access to an excellent elementary and secondary public education and should increase funding to a level necessary to accomplish this goal.

1AC — SolvencyContention Two: Solvency

First, requiring equal access to an excellent education is vital to close opportunity and achievement gapsRobinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 205-206) I contend that the United States should strategically restructure and strengthen the federal role in education to establish the necessary foundation for a national effort to ensure equal access to an excellent education . This restructuring and strengthening of the federal role in education would require shifting some power away from the state and local governments and toward the federal government. The U nited States would then need to adopt a new understanding of education federalism that embrace s the federal government as the guarantor of equal opportunity , because it is the only government with the capacity and sufficient incentive to lead a national effort to achieve this widely supported, yet persistently elusive, goal. Although this would not require federalizing the nation's education system as at least one scholar has recommended, it would require acceptance of a larger federal role in education to hold the states accountable for ensuring that all students receive equal access to an excellent education.7

I define equal access to an excellent education as the opportunity for all students to attend a high-quality school that enables them to effectively pursue their life goals, to become engaged citizens, and to develop their abilities to their full potential.8 Equal access to an excellent education enables all students to receive “a real and meaningful opportunity to achieve rigorous college- and career-ready standards.” 9 If the United States pursues equal access to an excellent education as the primary goal for its education system, it will break the traditional link between low-income and minority status and inferior educational opportunities . This goal recognizes that educational opportunities should be tailored to meet the individual needs of students that may vary dramatically

depending on a variety of factors, including family structure and stability, students' health and nutrition, and neighborhood climate. This goal also embraces closing the opportunity gap as an essential prerequisite for closing the achievement gap. Furthermore, embracing racially and economically diverse schools is essential for achieving this goal given compelling research regarding the harms of racial and class isolation, the benefits of diversity, and evidence of diverse schools providing important educational benefits that cannot be duplicated by alternative reforms. 10 An excellent education for all schoolchildren should be the nation's ultimate [end page 205]

education goal , because all families ultimately want a first-rate education for their children and because the United States would benefit economically, socially, and politically from providing such an education.

Second, comprehensive federal action is needed for successful reform. Robinson 16 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education,” Harvard Law Review (130 Harv. L. Rev. 185), November, Available Online to Subscribing Institutions via Lexis-Nexis)B. Overturning RodriguezTo be most effective, a comprehensive federal agenda requires the assistance of all three branches of government . The executive branch enjoys the fewest obstacles to reform because it could use its existing authority to accomplish incremental shifts to education federalism through modest reforms that employ its existing authority and resources. n295 Nevertheless, given the full scope of the shift to education

federalism that I recommend, reforms instituted without any significant involvement of Congress or the Court would lack the comprehensive nature that ensuring equal access to an excellent education for all schoolchildren will ultimately demand. Legislation consistent with this agenda would send a n even more powerful message that the agenda represents the will of the people and thus may encourage greater state and local buy-in . n296 However, the eight-year delay in reenacting the Elementary and Secondary Education Act of 1965, which eventually led to the reduction of the federal role in education in the Every Student Succeeds Act, n297 and the great difficulties that Congress is experiencing in passing legislation n298 suggest that legislative reform consistent with my proposal is unlikely in the near term. [*231] Fortunately, the Court possesses the authority to unleash a powerful tool that could help to reduce the opportunity and achievement gaps that lead

universities and colleges to rely on affirmative action in admissions. It could overturn

Rodriguez , which held that the Constitution does not protect education as a fundamental right. n299

For over forty years, Rodriguez has served as a roadblock to access to federal courts for those who hope to address the entrenched disparities in funding and resources that relegate many disadvantaged and minority students to inferior educational opportunities in the United States. n300 Because the Court held that education was not a fundamental right, Rodriguez applied rational basis review to the funding gaps between districts within Texas. n301 The Court determined that Texas easily met this standard because its funding approach advanced local control of education, the Court lacked the expertise to second-guess the Texas system, and a ruling for the plaintiffs would greatly upset the balance of federalism. n302 The Court nonetheless noted the need for reform of school funding and challenged the states to undertake this reform. n303 Although many states have implemented funding reform since Rodriguez and state litigation has resulted in some important victories, these state efforts have fallen far short of the reforms required to provide all children equal access to an excellent education. n304 In light of the continuing disparities in educational opportunity, numerous scholars, myself included, have argued that Rodriguez was wrongly decided and should be overturned to provide a consistent and powerful federal remedy to address these disparities . n305 [*232] However, disagreement exists over the scope of the right that the Court should recognize. The Court left the existence of a fundamental right to some minimum education an open question in Rodriguez n306 and subsequently acknowledged that the question remains open. n307 If Rodriguez is overturned, some scholars envision the Court addressing only extreme forms of educational inequality by providing a federal right to a minimally adequate education. n308 Leading education scholar Professor Derek Black, on the other hand, has argued that such an education today would require that students receive the state-defined minimum of education and that this definition does not have to equal "a minimalist education." n309Given the likelihood that the Court will insist that affirmative action eventually end, the Court should take some responsibility for addressing the conditions that lead institutions to rely on affirmative action by overturning the decision that insulated opportunity gaps from federal accountability. The Court could choose from a variety of constitutional provisions to recognize a right to education. n310 For [*233] instance, the Court could hold that the Fourteenth Amendment 's requirement that states not deny equal protection of the laws n311 serves as a prohibition of the inequitable state disparities in educational opportunity or guarantees students an education that enables them to effectively employ their First Amendment rights and to be competent voters. n312 Recognizing and enforcing a federal right to education would provide greater authority and consistent impact than the state education clauses that vary widely in their protection — or lack thereof — of the right to education. n313

The federal courts have been and will remain an important and powerful avenue for enforcing education rights for all students throughout the United States in ways that do not make the content of a right dependent on the happenstance of geography or state law. n314 A federal constitutional right also

would enable the federal courts to address the substantial interstate disparities in funding that currently account for seventy-eight percent of per-pupil spending gaps . n315 This tremendous interstate disparity , which has reached a [*234]

"historic high" for spending differences, n316 reveals the failure of state courts to close spending gaps on their own. n317

If the Court chooses to overturn Rodriguez in a manner that would help to

close opportunity gaps, it should incorporate four essential principles into a constitutional right to education. First, the Court must embrace a robust fundamental right to education that moves beyond guaranteeing a rudimentary floor of educational opportunity. A minimal right would not make a meaningful impact on opportunity or achievement gaps. Instead, the Court should consider recognizing a right to education that requires states to provide an education-based justification for the quality of education provided and any disparities in educational opportunity . Such a standard would enable states to offer disparate opportunities to students with disabilities, English-language learners, and low-income children, but would force states to end the superior opportunities that are provided to wealthier children absent an educational justification for such disparities. Defining a fundamental right to education in this way would help to level the playing field within public schools and insist that states design education systems based on research and students' needs rather than power, politics, and privilege.

Second, the Court should include safeguards that reduce the likelihood that states level down their educational opportunities

n318 or seek to avoid the Court's requirements . n319 One safeguard could be an instruction to states that guaranteeing a federal right to education should avoid reducing the quality and nature of existing educational opportunities and instead should seek ways to expand the delivery of a high-quality education to those who are currently denied it. The Court also can reduce the likelihood of decreasing the quality of educational opportunities within a state by providing clear requirements on the nature of the education right. In this regard, the Court can learn from decades of school finance litigation that has worked to give meaning to the right to education embodied in state constitutions, n320 while recognizing [*235] that this litigation has had significant shortcomings and has not ultimately resulted in equal access to an excellent education for all children. n321Third, the Court must acknowledge that a constitutional right to education would shift education federalism in ways that would increase federal influence over education and reduce some aspects of state control over education. The Court must wrestle with its own prior pronouncements heralding the importance of local control of education. n322 Such a shift in an

area of traditional state control must be justified with an explanation for why this shift is both appropriate and warranted. n323When the Court provides this explanation, it should remind the states that Rodriguez urged state reform of school finance systems in light of the persistent and heavy reliance on property taxes and the disparities in educational opportunity. n324 The limited nature and impact of subsequent reforms remains apparent in light of the Equity and Excellence Commission's finding in 2013 that "students, families and communities are burdened by the broken system of education funding in America." n325 The Commission further noted that over forty years of reforms "have not addressed the fundamental sources of inequities and so have not generated the educational gains desired." n326 Scholars also have recognized the limited success of decades of funding litigation to remedy longstanding inequitable disparities in educational opportunity. n327 School funding data and research also confirm a host of shortcomings in state funding systems despite the Court's invitation to reform funding in ways that increase equal educational opportunities. n328In addition to the shortcomings noted above, most states have not designed their funding systems to accomplish their education goals. n329 Instead,

politics oftentimes drives the distribution of funding as state [*236]

politicians assess how much funding is available for a given school year and then bargain over how that amount should be divided among the students in the state. n330 When the Court acknowledges

that its decision will result in a shift in education federalism, it also should acknowledge that the laboratory of the states has failed to develop the reforms needed to ensure an equitable and excellent education for every child.Fourth, the Court must acknowledge that recognizing a constitutional right to education would only begin the process of closing opportunity and achievement gaps. The reform of funding systems and the redistribution of educational opportunity will take a significant amount of time. The Court will need to encourage lower courts to retain jurisdiction over cases enforcing this right, just as state courts typically retain jurisdiction over cases enforcing a state right to education. n331In this regard, the Court must avoid the errors of its desegregation cases, which initially insisted on effective desegregation in the late 1960s and early 1970s, n332 but then eventually emphasized the return to local control of schools rather than the effectiveness of desegregation orders. For example, in Milliken v. Bradley, n333 the Court overturned an interdistrict desegregation plan for the metropolitan Detroit area in part because the plan's inclusion of districts surrounding Detroit would cause a reduction in local control. n334 The Court took this action in spite of the Sixth Circuit's finding that crossing district boundaries was particularly appropriate given the state's discrimination that maintained racial segregation across school district boundaries and that failing to include the surrounding districts would "nullify" Brown v. Board of Education. n335 As I have explored in prior work, the Court's desegregation decisions in Board of Education of Oklahoma City Public Schools v. Dowell, n336 Freeman v. Pitts, n337 and Missouri v. Jenkins n338 [*237] also reified local control of the schools by focusing on releasing districts from court supervision rather than on effective and lasting school desegregation. n339 Scholars have documented how these cases signaled that the Court had determined that desegregation had gone on long enough and it was time for school boards to regain control even if desegregation was never ultimately accomplished. n340If a federal right to education is going to serve as a mechanism to close educational opportunity gaps and to reduce the need for selective institutions to rely on consideration of an applicant's race to achieve diversity's benefits, the Court must learn from how its desegregation decisions undeniably contributed to the racial isolation that pervades so many school districts today. n341 The Court's impatience with the slow nature of desegregation reveals a shallow understanding of the depth of the social ill that the Court declared unconstitutional in Brown and an unwillingness to insist upon ongoing federal court investment in the effective dismantling of segregation. Overturning Rodriguez will require the Court to confront longstanding and deeply entrenched inequalities within public education. The federal courts will be called upon to oversee reforms that topple the settled expectations of more privileged sectors of society, just as the Court confronted the expectations of racism and white privilege that supported racial segregation. Thus, the reforms required by the Court cannot give a wink and a nod to those who benefit from the status quo while simultaneously claiming to demand reform.The Court must eschew any approval of unwarranted delay, as

occurred in Brown II's command to desegregate with "all deliberate speed," n342 or any invitation to incomplete or ineffective results, as the Court sanctioned in

Dowell, Freeman, and Jenkins. n343 Instead, the Court must insist that states implement the reforms that will ensure [*238] equal access to an

excellent education. It must make clear that states will not be released from court oversight until they have done so. Consistent Supreme Court insistence on an excellent and equitable education for all children will provide lower federal courts the support that they will need both to confront state legislatures that resist changing the status quo and to prevent evasive actions similar to those invited by the Court's ambiguous pronouncements in Brown II. n344

In sum, a federal right to education that embraces these principles provides the most promising path toward closing opportunity and achievement gaps such that selective postsecondary institutions may not be required to

consider race to achieve diversity's benefits. n345 Unless the Court overturns Rodriguez, the Court will remain complicit with the deeply entrenched educational opportunity gaps and should not blame postsecondary institutions that must build diverse institutions despite those gaps.Foonote n345: Additionally, Congress could take a variety of actions to support the Court's recognition of a constitutional right to education. Congress could embrace the Court's requirements as conditions on funding in the E lementary and Secondary Education Act of 1965 or on any education funding, authorize grants to support reform, extend funding for the DOE to enforce new conditions, and monitor DOE enforcement of the conditions . See Robinson, supra note 141, (manuscript at 34-49) (proposing congressional mechanisms that could lead states to offer equal access to an excellent education); Robinson, supra note 18, at 1006-12 (describing how Congress can still expand the federal role in education despite the limits NFIB v. Sebelius, 132 S. Ct. 2566 (2012), placed on congressional spending). The executive branch could issue an executive order on the importance of compliance with the Court's decision recognizing a federal right to education, establish a commission to study and recommend effective responses, enforce any statutory conditions on education funding , and modify education regulations and guidance consistent with the Court 's pronouncements. These efforts would provide critical support for the Court's decision to recognize a constitutional right to education by overturning Rodriguez. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

Third, restoring the positive federal role in education is necessary to rectify racial and class oppression and promote integration. Only federal action can achieve educational equality. Sundquist 17 — Christian B. Sundquist, Professor of Law and Director of Faculty Research and Scholarship at Albany Law School, former Visiting Scholar at the Institute for Research on Poverty at the University of Wisconsin-Madison, holds a J.D. from Georgetown University Law Center, 2017 (“Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,” Mercer Law Review (68 Mercer L. Rev. 351), Winter, Available Online to Subscribing Institutions via Lexis-Nexis)B. A Positively Federalist View for Future Reauthorizations of the ESEA

A positive conception of federalism is particularly justified when attempting to divine the appropriate federal role in public education. As discussed previously, the primary constitutional basis for federal involvement in public education is premised on the government's responsibility to take positive action to remedy racial and class inequalities. n186 The Brown constitutional doctrine and the "War on Poverty" driven by the ESEA forged an understanding of education federalism rooted in positive social justice . It is particularly appropriate today that we restore this fundamental understanding of education federalism, given evidence of increasing racial disparities in public education and the noted failures of modern education federalism policy.

The federal guarantee of equal public education is critical ly important to the functioning of our democracy . As a public good, education helps our society develop those "fundamental values necessary to the transmission of our democratic society." n187 The provision of an equitable public education , devoid of identity- based disparities , is critical to provide children with " the knowledge needed to understand and participate effectively in the democratic process and to cultivate among children respect for and the ability to interact with others as beings of inherently equal moral worth ." n188 Indeed, both classic and contemporary constitutional scholars

argue that equal public education should be regarded as " a fundamental duty , or positive fundamental right because education is a basic human need and a constituent part of all democratic rights ." n189 The need, then, for a robust application of positive education federalism principles in this context cannot be stronger. [*385] The purpose of this Article is not to provide specific curricular recommendations to guide the future of public education. n190 Rather, this Article has attempted to define a new vision of positive education federalism - one that is rooted in a historical understanding of the constitutional obligation of the federal government to shape education policy goals in a manner that responds to unrelenting racial and class disparities. A few core principles regarding the substantive dimension of positive education federalism can be gleaned from this discussion:1. First Principle: Providing an equal public education is a federal responsibility that cannot be transferred to or assumed by private market forces.

The overarching conclusion of this Article is that ESSA, NCLB, and RTT unconstitutionally transfer federal responsibility for positively eliminating racial and class inequality in public education to private market forces under the auspices of competitive federalism. n191 This reading of the federal role in public education is ahistorical and undermines the core principles of equality informing Brown-era education federalism . n192

2. Second Principle: Positive federal action is justifiable in public education when necessary to rectify historical patterns of racial and class oppression.

It follows from the first principle that positive federal intervention in public education is justified when employed to directly respond to our unbroken history of racial and class disparities in educational outcomes. The original vision of the ESEA and Brown anticipated future positive efforts by the federal government to wield its block grant powers to actively dismantle old systems of oppression. n193 The current statutory framework has abandoned this vision of equality in its misguided pursuit to harness the market forces of consumer choice, accountability, and competition to limit the federal role in education . n194 [*386] 3. Third Principle: Our education federalism must acknowledge that racial discrimination and class oppression are the true roots of current educational disparities .Third, it is of the utmost importance that our education federalism fully acknowledge the historical and continuing causes of education disparities: racial discrimination and poverty. n195 The race and class-based roots of educational inequality are well-known and well-documented, and our education federalism can no longer hide behind the veil of ignorance provided by ESSA, NCLB, and RTT. n196 Far from acknowledging the reality of educational disparities, our current competitive federalist framework for education actively attempts to conceal these roots, with the specious promise that the free market principles of choice, accountability, and competition will eventually equalize education. n197 Modeling our education federalism around such race and class "neutral" market principles have led to a deepening of the crisis while allowing society to ignore the ways in which privilege shapes outcomes. n198

4. Fourth Principle: Our education federalism must strive to promote racial and class integration.

Finally, any equality-based vision of education federalism must promote the social integration of our public schools. The current competitive conception of education policy has failed those "faces at the bottom of [the] well" n199 and led to a rampant racial re-segregation of our schools . n200 This failure evinces a lack of faith and duty in fulfilling the original integrationist goals of Brown and the ESEA. Therefore, a positive theory of education federalism must promote federal efforts to integrate our public schools.

These core principles, on a theory of positive education federalism, can be used to inform future reauthorizations of the ESEA. While this Article does not attempt to advance specific changes in statutory law, it has attempted to redefine the substantive dimension of our education federalism in a manner that restores our faith in Brown, the ESEA, and the promise of racial and class equality. [*387] ConclusionThe neoliberal vision of education federalism embodied by ESSA, NCLB, and RTT has improperly shifted the federal government's role in public education from one of promoting desegregation and social equality to one of promoting market efficiency through the artifices of competition, choice, and accountability. This deflection of moral responsibility for class and racial inequality is tied to a larger process of post-racialism and "post-oppression," whereby seemingly "neutral" market solutions are seen as sufficient to promote equality in a liberal democracy. There is, after all, a comforting allure to believing that social inequality is non-systemic, and thus avoiding the cognitive dissonance (and structural upheaval) that comes from confronting our continuing legacy of racial and class privilege.

Allowing the "invisible hand" of the market to sort educational outcomes under the guise of "competition," "choice," and "accountability," however, has led to a deepening of the crisis confronting our public schools . The federal role in public education has been reduced to incentivizing reform centered around market principles, rather than promoting desegregation and the equality envisioned by Brown and the original ESEA. "Our

federalism" demands more than this. The substantive dimension of education federalism , as constitutionalized by Brown and framed by the original ESEA, must be restored in our public education policy. The adoption of a positive conception of the federal role in public education to frame future policy discussions can put us once again on the path towards achieving equality of educational outcome for all students.

Fourth, increased funding is vital to improve schools — the best research confirms. Baker 17 — Bruce D. Baker, Professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers, The State University of New Jersey, former Associate Professor of Teaching and Leadership at the University of Kansas, holds an Ed.D. in Organization and Leadership from the Teachers College of Columbia University, 2017 (“Does Money Matter in Education? Second Edition,” Albert Shanker Institute, Available Online at http://www.shankerinstitute.org/sites/shanker/files/moneymatters_edition2.pdf, Accessed 06-14-2017, p. 1-2)Executive Summary

This second edition policy brief revisits the long and storied literature on whether money matters in providing a quality education . It includes research released since the original brief in 2012 and

covers a handful of additional topics. Increasingly, political rhetoric adheres to the unfounded certainty that money doesn’t make a difference in education, and that reduced funding is unlikely to harm educational quality. Such proclamations have even been used to justify large cuts to

education budgets over the past few years. These positions, however, have little basis in the empirical research on the relationship between funding and school quality.In the following brief, I discuss major studies on three specific topics: (a) whether how much money schools spend matters; (b) whether specific schooling resources that cost money matter; and (c) whether substantive and sustained state school finance reforms matter. Regarding these three questions, I conclude:Does Money Matter?Yes . On average, aggregate measures of per-pupil spending are positively associated with improved or higher student outcomes . The size of this effect is larger in some studies than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that may moderate the influence of funding on student outcomes, such as how that money is spent. In other words, money must be spent wisely to yield benefits. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters.

Do Schooling Resources That Cost Money Matter?Yes . Schooling resources that cost money , including smaller class sizes, additional supports, early childhood programs and more competitive teacher compensation (permitting schools and districts to recruit and retain a higher-quality teacher workforce), are positively associated with student outcomes. Again, in some cases, those effects are larger

than in others, and there is also variation by student population and other contextual variables. On the whole, however, the things that cost money benefit students, and there is scarce evidence that there are more cost-effective alternatives.

Do State School Finance Reforms Matter?Yes . Sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes . While money alone may not be the answer, more equitable and adequate allocation of financial inputs to schooling provide a necessary underlying condition for improving the equity and adequacy of outcomes. The available evidence suggests that appropriate combinations of more adequate funding with more accountability for its use may be most promising. [end page 1]While there may in fact be better and more efficient ways to leverage the education dollar toward improved student outcomes, we do know the following:• Many of the ways in which schools currently spend money do improve student outcomes.

• When schools have more money, they have greater opportunity to spend productively. When they don’t, they can’t.

• Arguments that across-the-board budget cuts will not hurt outcomes are completely unfounded .

In short, money matters , resources that cost money matter , and a more equitable distribution of school funding can improve outcomes . Policymakers would be well-advised to rely on high-quality research to guide the critical choices they make regarding school finance .

Finally, claims that “money doesn’t matter” are unethical and wrong. Baker 17 — Bruce D. Baker, Professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers, The State University of New Jersey, former Associate Professor of Teaching and Leadership at the University of Kansas, holds an Ed.D. in Organization and Leadership from the Teachers College of Columbia University, 2017 (“Does Money Matter in Education? Second Edition,” Albert Shanker Institute, Available Online at http://www.shankerinstitute.org/sites/shanker/files/moneymatters_edition2.pdf, Accessed 06-14-2017, p. 15-19)Summing Up The EvidenceThis brings me to a summary of the evidence on whether money matters in education. Despite the relative consistency of empirical findings over time regarding (a) whether per-pupil spending itself is related to student outcomes; (b) whether spending-related resources, such as teacher wages and class sizes, are related to student outcomes; and (c) whether improving the adequacy and equity of school funding can have positive effects on student outcomes, a persistent cloud of doubt hangs over political deliberations on school funding. Here, I review briefly the sources of that doubt, relative to what we do know with some confidence as well as what we still have yet to figure out about money and student outcomes.Main sources of doubtThe primary source of doubt to this day remains the above-mentioned Eric

Hanushek finding in 1986 that “there appears to be no strong or systematic relationship between school expenditures and student performance.”117 This single quote, now divorced entirely from the soundly refuted analyses on which it was based, remains a mantra for those wishing to deny that increased funding for schools is a viable option for improving school quality. Add to this statement the occasional uninformative and inflammatory anecdote regarding urban district spending and student outcomes in places

like Kansas City or New Jersey, or the frequently re-created graphs showing spending and achievement over the past few decades, and one has a rhetorical war against an otherwise overwhelming body of empirical evidence.118

While research evidence regarding the importance of funding and specific schooling resources for improving student outcomes has become clearer with time, Hanushek and a [end page 15] handful of peers have become even more entrenched in their views , as reflected in recent public testimony. Rhetoric among detractors has continued to drift from the cloud of

doubt to a rock of certainty. That is, certainty that money has little or no role in improving school quality, and that school finance reforms that infuse additional funds only lead to greater inefficiency, having little or no effect on either equity or adequacy of schooling. Notably, Hanushek asserts (now and then) that it’s not that money doesn’t matter at all, but rather that additional money doesn’t matter on top of the already high levels of spending that currently exist across all U.S. schools.To summarize, the current dogma of Hanushek includes the following core tenets:1. Because schools already spend so much and do so with such great inefficiency, additional funding is unlikely to lead to improved student outcomes.2. How money is used matters much more than how much money is spent.3. Differences in the amount of money some schools have than others are inconsequential, since those with less may simply make smarter spending decisions.According the recent rhetoric of Hanushek, these principles are ironclad. In his own words, they are “conventional wisdom” on which “virtually all analysts” agree. They are “commonly believed,” “overall truth” and backed by an “enormous amount of scientific analysis,” “substantial econometric evidence” and “considerable prior research.” For example, in the winter of 2015, in the context of school funding litigation in New York state, Hanushek opined:

“An enormous amount of scientific analysis has focused on how spending and resources of schools relates to student outcomes. It is now commonly believed that spending on schools is not systematically related to student outcomes.”119

Yet, the enormous amount of scientific analysis to which Hanushek referred in his expert testimony was primarily referenced to a 2003 summary of much of his prior work from the 1980s , work which has been discredited on numerous occasions , 120 including by research produced in the last 12 years. Similarly, in the same context (Maisto v. State of New York), Hanushek proclaims:

“There has been substantial econometric evidence that supports this lack of relationship.”Hanushek again backs his claims with the same short list of dated self-citation.121 In an even more recent attempt to rebut a new, major study finding positive effects of school finance reforms,122 Hanushek (2015) makes the following version of the same claim:

“Considerable prior research has failed to find a consistent relationship between school spending and student performance, making skepticism about such a relationship the conventional wisdom.”123

This time, he anchored that claim only to his 2003 piece (by hyperlink to the “prior research” phrase) on the failure of input-based schooling policies, 124 choosing to ignore entirely the considerably larger body of more rigorous work I summarize in my 2012 review on the topic.The extension of these claims that nearly everyone agrees there’s no clear relationship between spending and student performance is the assertion that there is broad agreement that how money is spent matters far more than how much money is available. As phrased by Hanushek in the context of New York state school finance litigation:

“Virtually all analysts now realize that how money is spent is much more important than how much is spent.”125As with the prior declarations, this one is made with the exceedingly bold assertion that virtually all analysts agree on this point—without reference to any empirical evidence to that point (a seemingly gaping omission for a decidedly empirical claim about a supposedly empirical truth). Further, “how money is spent” is constrained by whether sufficient money is there to begin with. While common sense dictates that how money is spent clearly matters, thus making this part of the statement widely agreeable, this does not preclude the relevance of how much money is available to spend.Perhaps most disconcerting is that Hanushek has recently extended this argument to declare that equity gaps in funding, or measures of them, aren’t an important policy concern either. Specifically, Hanushek proclaims:

“It also underscores how calculations of equity gaps in spending, of costs needed to achieve equity, or of costs needed to obtain some level of student performance are vacuous, lacking any scientific basis” (p. 4).126

Put differently, what Hanushek is opining by declaring calculations of equity gaps to be

vacuous and lacking scientific basis is that it matters not whether one school or district has more resources than another. Regardless of any spending differences, schools and districts can provide equitable education—toward equitable outcome goals. Those with substantively fewer resources simply need to be more efficient. Since all public schools and districts are presently so inefficient, achieving these efficiency gains through more creative personnel policies, such as performance-based pay and dismissal of “bad teachers,” is easily attainable.Of course, even if we assume that creative personnel policies yield marginal improvements to efficiency, if schools with varied levels of resources pursued these strategies [end page 16] with comparable

efficiency gains, inequities would remain constant. Requiring those with less to simply be more efficient with what they have is an inequitable requirement. This argument is often linked in

popular media and the blogosphere with the popular book and film Moneyball, which asserts that clever statistical analysis for selecting high-productivity, undervalued players was the basis for the (short-lived) success in 2002 and 2003 of the low-payroll Oakland Athletics baseball team. The flaws of this analogy are too many to explore thoroughly herein, but the biggest flaw is illustrated by the oft-ignored subtitle of the book: The Art of Winning an Unfair Game . That is, gaining a leg up through clever player selection is necessary in baseball because vast wealth and payroll differences across teams make baseball an unfair game. The public’s interest in providing equitable and adequate funding for education is likely greater than ensuring equitable and adequate baseball payrolls. Put more bluntly,

the education of present and future generations should not be an unfair game.

From judges to scholars , critics of Hanushek have characterized his evidence as “ facile ,” based on “ fuzzy logic ,” 127 and “ weak and factually tenuous .” 128 Two recurring examples used by Hanushek to illustrate the unimportance of funding increases for improving outcomes are the “long-term trend” or “time trend” argument and anecdotal claims of the failures of input-based reforms in New Jersey. Baker and Welner (2011) tackle in depth the fallacies of Hanushek’s New Jersey claims.129 Here, I point to Hanushek’s own, albeit facile, unacknowledged self-debunking of his New Jersey claims. But first, I address the long-term trend claim.Again, from recent testimony in New York state, Hanushek provides the following exposition of the long-term trend assertion:

“The overall truth of this disconnect of spending and outcomes is easiest to see by looking at the aggregate data for the United States over the past half century. Since 1960, pupil-teacher ratios fell by one-third, teachers with master’s degrees over doubled, and median teacher experience grew significantly (Chart 1).4 Since these three factors are the most important determinants of spending per pupil, it leads to the quadrupling of spending between 1960 and 2009 (after adjusting for inflation). At the same time, plotting scores for math and reading performance of 17-year-olds on the National Assessment of Educational Progress (NAEP, or “The Nation’s Report Card”) shows virtually no change since 1970 (Charts 2 and 3).5”130

This claim, like many of Hanushek’s, is made with language of astounding certainty—the “overall truth” as it exists in the mind of Hanushek. This claim is commonly accompanied by graphs showing per-pupil spending going up over time, pupil-to-teacher ratios going down and national assessment scores appearing relatively flat, much of which is achieved via the smoke and mirrors of representing spending and outcome data on completely different scales, and via the failure to adjust appropriately for the changing costs and related obligations of the public education system and for the changing demography of the tested population.131 Oversimplified visuals are used to make the proclamation that student achievement shows “virtually no change,” a statement discredited on closer inspection.132 Jackson, Johnson and Persico (2015) provide additional examples of how such facile analyses lead to fallacious conclusions.133As explained by Baker and Welner (2011),134 Hanushek for years has cited the failures of New Jersey’s school finance reforms as the basis for why other states should not increase funding to high-poverty schools. In litigation in Kansas in 2011, Hanushek proclaimed:

“The dramatic spending increases called for by the courts (exhibit 34) have had little to no impacts on achievement. Compared to the rest of the nation, performance in New Jersey has not increased across most grades and racial groups (exhibits 35-40). These results suggest caution in considering the ability of courts to improve educational outcomes.”135

Hanushek reiterated these claims in the context of a even more recent New York school funding challenge.136 This is a surprising claim to preserve when one’s own recent (2012), marginally more rigorous analyses of state achievement growth rates on national assessments (from 1992 to 2011)137 find the following:

“The other seven states that rank among the top-10 improvers, all of which outpaced the United States as a whole, are Massachusetts, Louisiana, South Carolina, New Jersey, Kentucky, Arkansas, and Virginia.”138

Further, the same report reveals that New Jersey has seen particularly strong growth in reducing the number of the lowest-performing students (those scoring at the “below basic” level), especially for eighth-grade math. To be sure, there are others in academe and policy research that raise questions about the most effective ways to leverage school funding to achieve desired outcomes, and do so via more

rigorous, thoughtful analyses. The most recent rigorous and relevant academic research is addressed in the remainder of this brief. There are others who opine in the public square139 and courtroom140 that school finance reform—specifically infusing additional funding to districts serving high-need student populations—is neither the most effective nor the most efficient path toward improving schooling equity or adequacy. But empirical evidence to support claims of more efficient alternatives remains elusive.No rigorous empirical study of which I am aware validates that increased funding for schools in general, or targeted to [end page 17] specific populations, has led to any substantive, measured reduction in student outcomes or other “harm.” Arguably, if this were the case, it would open new doors to school finance litigation against states that choose to increase funding to schools. Twenty years ago, economist Richard Murnane summarized the issue exceptionally well when he stated:

“In my view, it is simply indefensible to use the results of quantitative studies of the relationship between school resources and student achievement as a basis for concluding that additional funds cannot help public school districts. Equally disturbing is the claim that the removal of funds … typically does no harm” (p. 457).141

Murnane’s quote is as relevant today as it was then. The sources of doubt on the “Does money matter?” question are not credible .While there remains much to debate, discuss and empirically evaluate regarding the returns to each additional dollar spent in schools—and the strategies for improving educational efficiency, equity and adequacy—we must finally be willing to cast aside the most inane arguments and sources of evidence on either side of the debate. Specifically, the following five contentions no longer have a legitimate place in the debate over state school finance policy and whether and how money matters in K-12 education:1. Vote counts of correlational studies between spending and outcomes, without regard for rigor of the analyses and quality of the data on which they depend; 2. The long-term trend argument and supporting graphs that show long-term spending going up and NAEP scores staying flat ; 3. International comparisons asserting , and perhaps illustrating via scatterplot,

that the United States spends more than other developed countries but achieves less on international assessments; 4. Anecdotal assertions that states such as New Jersey and cities such as Kansas City provide proof positive that massive infusions of funding have proven ineffective at improving student outcomes; and5. The assertion that how money is spent is much more important than how much is available .

Vote count tallies without regard for study quality and rigor are of relative little use for understanding whether money matters in schooling and are of no use for discerning how. The long-term trend argument is perhaps the most reiterated of all arguments that money doesn’t matter,

but it is built largely on deceptive, oversimplified and largely wrong characterizations (accompanied by distorted visuals) of the long- term trends in student outcomes and school spending. Facile international comparisons are equally deceitful , in that they (a)

fail to account for differences in student populations served and

the related scope of educational and related services provided; and (b) fail to appropriately equate educational spending across nations, including the failure to account for the range of services and operating costs covered under “educational expense” in the United States versus other countries (for example, public employee health and pension benefits). And anecdotal assertions of failures resulting from massive infusions of funding are rebutted herein and elsewhere.142Finally, while the assertion that “how money is spent is important” is certainly valid, one cannot reasonably make the leap to assert that how money is spent is necessarily more important than how much money is available. Yes, how money is spent matters, but if you don’t have it, you can’t spend it. It is unhelpful at best for public policy, and harmful to the children subjected to those policies, to pretend without any compelling evidence that somewhere out there exists a far cheaper way to achieve the same or better outcomes (and thus we can cut our way down that more efficient path). As so eloquently noted by a three-judge panel in Kansas when faced with this question:

“Simply, school opportunities do not repeat themselves and when the opportunity for a formal education passes , then for most, it is most likely gone . We all know that the struggle for an income very often—too often— overcomes the time needed to prepare intellectually for a better one.

“If the position advanced here is the State’s full position, it is experimenting with our children which have no recourse from a failure of the experiment.”143

What do we know?Based on the studies reviewed in this brief, there are a few things we can say with confidence about the relationship between funding, resources and student outcomes.First, on average, even in large-scale studies across multiple contexts, aggregate measures of per-pupil spending are positively associated with improved and/or higher student outcomes. In some studies, the size of this effect is larger than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that moderate the influence of funding on student outcomes, such as how that money is spent. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters . [end page 18] Second, schooling resources that cost money, including class size reductions and

increased teacher compensation, are positively associated with student outcomes. Again, these effects are larger in some cases and for some populations. On balance, though, there are ways to spend money that have a solid track record of success. Further, while there may exist alternative uses of financial resources that yield comparable or better returns in student outcomes, no clear evidence identifies what these alternatives might be.Third, sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes . While money alone may not be the answer, adequate and

equitable distributions of financial inputs to schooling provide a necessary underlying condition for improving the adequacy and equity of outcomes. That is, if the money isn’t there, schools and districts simply don’t have a “leverage option” that can support strategies that might improve student outcomes. If the money is there, they can use it productively; if it’s not, they can’t. But, even if they have the money, there’s no guarantee that they will use it productively. Evidence from Massachusetts, in particular, suggests that appropriate combinations of more funding with more accountability may be most promising.

1NC

1NC — Ban Private Schools CPFirst off is the Ban Private Schools Counterplan.

The United States federal government should abolish private and parochial K-12 schools and require compulsory attendance in public K-12 schools in the United States.

Only the counterplan can remedy educational inequalities — it’s impossible as long as private schools exist. Chemerinsky 15 — Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (“Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 249-250)On May 17, 2014, the nation celebrated the sixtieth anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education.1 The simple and tragic reality is that American public education is separate and unequal.2 Schools today are more segregated than they have been for decades, and segregation is rapidly increasing. Wide disparities exist in funding for schools. In Brown, Chief Justice Earl Warren spoke eloquently of the importance of education and how separate can never be equal.3 More than a half century later, in an even more technologically complex society, education is even more essential.The causes for this tragedy are easy to recite. There never has been the political will to pursue equal educational opportunity. No president since the

1960s has devoted any attention to decreasing segregation or to equalizing school funding. The Supreme Court refused to allow the needed steps to deal with the problem in its holding that metropolitan school districts can be created as a remedy only in very limited circumstances and that disparities in school funding do not violate the Constitution.4 Moreover, Supreme Court [end page 249] decisions in the 1990s have required the lifting of even successful desegregation orders, causing the resegregation of schools.5 The Court’s most recent decision about school desegregation, Parents Involved in Community Schools v. Seattle School District No. 1, greatly limited the ability of school boards to pursue voluntary desegregation plans, such as by considering race as one factor in assigning students so as to enhance diversity.6In this essay, I look behind these explanations and argue that the central problem in achieving equal educational opportunity has been the lack of a unitary system of education. Desegregation will not occur in most cities so long as parents can move their children to suburban or private schools . Adequate, let alone equal , funding for schools will not occur so long as wealthy parents can send their children to private or suburban schools , where far more is spent on education than in inner cities. A crucial aspect of Brown’s wisdom was the importance of a unitary system of education. Minority children are far more likely to receive quality education when their schooling is tied to that of wealthy

white children. The failure to create truly unitary systems is the core explanation for the inequalities in American schools today.

Consider a simple analogy: the dual system of medical care. If wealthy people had to receive their medical treatment in public hospitals, is there any doubt that the quality of those hospitals would be dramatically different? But so long as the public hospital system is just for poor people, and often predominately racial minorities at that, they never will be of the same quality as top private hospitals. The same is true of schools .

Therefore, I propose a radical solution: the abolition of private and parochial schools in the U nited States and the creation of large metropolitan school districts. Under this proposal, every child will be required to attend these public schools . In this way, there truly would be a unitary system of education and , as a result, equality of school funding and meaningful desegregation. Desegregation and equalization of funding can be achieved through this approach, but probably not otherwise .

1NC — School Choice CPNext off is the School Choice Counterplan.

The United States federal government should substantially restrict K-12 education monopolies and support school choice for parents and students by:

* attaching federal education funds to individual students and conditioning the receipt of federal funds to a school’s participation in an open enrollment process conducted by a state-sanctioned authority;

* allowing states to opt out of the statutory and regulatory requirements of federal education laws in exchange for creating a marketplace of informed school choice and competition including public, charter, private, and virtual schools;

* promoting informed parental choice by producing and disseminating research on the relative performance of students at each school; and

* enforcing civil rights laws regarding education.

First, the counterplan is the best way to improve K-12 education because it promotes competition and choice. Whitehurst 12 — Grover J. “Russ” Whitehurst, Director of the Brown Center on Education Policy at the Brookings Institution, Member of The Koret Task Force on K–12 Education—a group of senior education scholars brought together by the Hoover Institution, former Director of the Institute of Education Sciences at the U.S. Department of Education, former U.S. Assistant Secretary for Educational Research and Improvement, former Chair of the Department of Psychology at the State University of New York at Stony Brook, holds a Ph.D. in Experimental Child Psychology from the University of Illinois at Urbana-Champaign, 2012 (“Let the Dollars Follow the Child,” Education Next, Volume 12, Number 2, Spring, Available Online at http://educationnext.org/let-the-dollars-follow-the-child/, Accessed 06-15-2017)Washington is at a crossroads on K–12 education policy. Policymakers can 1) continue down the path of top-down accountability; 2) devolve power to states and districts, thereby

returning to the status quo of the mid-1990s; or 3) rethink the fundamentals, do something different, and empower parental choice.

The federal government’s involvement in K–12 education has accelerated through the Clinton, Bush, and Obama administrations. The best evidence indicates that this substantially heightened federal role has had only modest impact on student achievement, far short of what had been hoped. It might be that further centralization would yield more benefits, but it is doubtful that more federal control is politically possible, and, in any case, any additional yield is uncertain.

The second option—devolving recently accumulated federal power to the states—underlies recent reauthorization proposals for the Elementary and Secondary Education Act (ESEA) that allow each state to establish its own accountability system and that require teeth only for the very lowest-performing schools. It is unclear to us how releasing states and school districts from federal accountability and granting them maximum flexibility is anything more than a return to the status quo. It is the regrettable consequence of that approach that motivated increased federal involvement in the first place.The Koret Task Force at the Hoover Institution (see sidebar, page 16), of which I am a member, believes that an evolved form of the ESEA that retains rigorous accountability is preferable to returning control of public schooling to local public-school monopolies and states, which will fall into old habits all too quickly. But we believe that the best interests of the nation require something other than either a return to the happy days of local school governance or evolutionary improvements to the type of top-down accountability found in No Child Left Behind.We need a fundamentally new approach.

We propose to reform the nation’s schools on the basis of two principles that have served the nation exceedingly well throughout its history: federalism and choice . The federal structure of our government offers an opportunity to specify the role of Washington strategically, to leverage what it clearly can do best, while allocating to states and locales what they are best suited to do. Our particular view of federalism is disciplined by the laws of economics and empirical experience, a perspective known as fiscal federalism. The second organizing principle is choice. Much has been written and studied regarding choice in education—on charter schools, vouchers, choice among district schools, and much more—but the idea, so powerful in our economy and in other enterprises, including higher education, has rarely been examined in the context of federalism and the appropriate roles of Washington and lower levels of government.A New FrameworkWhat is fiscal federalism? Fiscal federalism argues that government services are most efficiently delivered if provided closest to the taxpayers or consumers receiving them, and that competition among local governments for residents and taxpayers will improve those services. In the context of public education, the challenge is to identify the areas of constraint for local providers of education services, determine which can be best addressed by state government, and assign the remainder to Washington.But there is a fundamental flaw in fiscal federalism theory as it applies to education: the ability of taxpaying parents of school-age children to vote with their feet (leave school districts with which they are dissatisfied) is severely constrained for the low-income populations that are most likely to find themselves served by low-performing schools. This lack of geographical mobility for large segments of the population undermines the competitive pressure that low-performing schools and school districts would otherwise expect to face. This leaves those districts vulnerable to the interests of whoever is powerful at the local level, more often than not organizations that represent teachers who are employed by school districts, rather than to the influence of parents and taxpayers.One way to correct the strong tendency of local school bureaucracies to cater more to adult than student interests is to intervene from above, the course of action taken by Washington over the last 15 years. We argue that this has been only weakly effective while imposing a heavy regulatory burden on schools. We propose instead to create real competition for students and the public funding that accompanies them among the providers of K–12 education services. Considerable research indicates that schools respond to competitive pressure. In a systematic review of 41 empirical studies on this topic through 2002, Columbia University researchers Clive Belfield and Henry Levin found that “a sizable majority report beneficial effects of competition.”In our proposal, funding must follow students and be weighted to compensate for the extra costs associated with high-need students if schools are to compete for students and if parents are to have real choice . Parents must have the widest possible choice of schools for their children and be armed with good information on the performance of schools. Informed choice that is accompanied by financial consequences for schools will create a marketplace for schooling that will evolve toward greater

responsiveness to what parents want, will be more innovative , and will become more productive .A Role for WashingtonThe federal government currently funds a wide range of K–12 education initiatives (see Table 1). The task force has identified just four functions that are essential to its role in education: creating and disseminating info rmation on school performance in each classroom and program effectiveness, including information on individual student performance; enforcing civil rights laws; providing financial support to high-need students; and enhancing competition among providers .Information : The provision of information on the condition of education and on the results of education research is primarily a public service. In such situations, a serious free-rider problem exists: because it is impossible to prevent a class of consumers who have not paid for the information from consuming it, far too little evidence will be produced if it is not supported by an organization with the entire nation’s interests at heart. The free-rider problem is one reason that state and local authorities cannot be entrusted with the task of knowledge production.

Furthermore, evidence does not merely need to be produced; it needs to be based on high-quality data. Gathering and auditing data are almost pure public services. Thus, it is easy to justify federal support for research,

data gathering, and dissemination of information. Without valid information on the performance of students at each school relative to that of their peers across the country, the entire education enterprise flies blind, leaving parents, teachers, school managers, and policymakers with nothing more than intuition and consensus as the basis for making decisions.

Civil Rights : When state and local actions in education are discriminatory, the federal government should step in to enforce civil rights laws. Acts of unjust discrimination, such as those that would deny a student an educational experience for which the student is qualified based solely on race, gender, disability, or other protected status, are costly to society. Students who fail to be educated may need cash transfers as adults; they might take up crime or engage in other antisocial behaviors. Owing to mobility and society-wide redistribution, we all suffer in these cases. Thus, the federal government, and not merely state and local governments, has an obligation to curb discrimination.

Compensatory Funding : Regardless of whether the underlying cause is disability, lack of English proficiency, or poverty, high-need students are more expensive to educate than other students. Failure to provide additional resources can provide an incentive for other students to move to another school if they are able. The burden that the high-need student produces will thus

be disproportionately borne by those who are too immobile to avoid it, most likely other high-need students. The federal government can counteract these inequities through cash transfers. The difficulty is figuring out the right financial supplement and the best mechanism for distributing it.Title I of the ESEA and the Individuals with Disabilities Education Act (IDEA) are designed to disburse funds to states and school districts for the education of high-need students. Rather than the complicated federal schemes under which funds are currently disbursed to districts, funds should be attached to the student . Individual schools would receive federal funds based on student counts , with a weighting formula to adjust for factors such as the increased burden of educating high-need students and for regional differences in costs. Sometimes called “backpack funding,” weighted funding that follows the student has been shown to direct proportionally more funds to schools that serve needy students than traditional distribution schemes.

Choice and Competition : The federal government can and should restrict education monopolies and support school choice for parents and students. The current system, which relies on residential mobility to drive school districts to improve education services, does not work well enough to improve education outcomes or to ensure equity. Such a system consigns the poor and immobile to inferior schools and leaves the control of schools in the hands of those who benefit most from the status quo. The simple feature of eliminating a default school assignment by the school district—thus requiring every parent to engage in school choice— eliminates socioeconomic differences in the likelihood that parents will shop for schools . Further, if parents could exercise school choice through web-based portals that highlight the important variables of school performance, socioeconomic differences in knowledge could be muted. Here, again,

the federal government has a role to play, for example, by funding open competitions for designers and implementers of school-choice portals.

Market-based competition cannot prevail in public education unless the consumers of public education can choose where to be schooled. We propose that as a condition of the receipt of federal funds to support the education of individual students, schools be required to participate in an open enrollment process conducted by a state-sanctioned authority . Such a process would maximize the matches between school and student preferences. Unified open-enrollment systems that

encompass as many choices as possible from the regular public, charter, private, and virtual school universes are essential to the expansion of choice and competition in K–12 education. These systems have to be designed so that all schools have the same time frame for applications and admission decisions, and so that they cannot be gamed by either schools or applying families.

The federal government has a legitimate role in overseeing the marketplace for schooling, including the architecture of parental choice systems. It is in the interest of society that the concentration of high-need students not increase in particular schools. Choice systems have to be carefully and explicitly designed to avoid students being sorted by race, economic background, and other conditions. Several options exist for ensuring that schools cannot discriminate against groups of students, including a lottery system (currently required in federal regulations for

start-up charter schools), controlled choice (in which algorithms are used to maintain balanced

enrollment), and a financial or fee supplement attached to students in protected classes.

Second, school choice is the most effective way to improve K-12 education — the best meta-study proves. Wolf 16 — Patrick J. Wolf, Distinguished Professor of Education Policy and 21st Century Endowed Chair in School Choice in the Department of Education Reform at the University of Arkansas College of Education and Health Professions, Principal Investigator of the School Choice Demonstration Project, holds a Ph.D. in Government from Harvard University, 2016 (“School Choice Boosts Test Scores,” Jay P. Greene’s Blog—a scholarly education blog, May 10th, Available Online at https://jaypgreene.com/2016/05/10/school-choice-boosts-test-scores/, Accessed 06-19-2017)Private school choice remains a controversial education reform. Choice programs, involving school vouchers, tax-credit scholarships, or Education Savings Accounts (ESAs), provide financial support to families who wish to access private schooling for their child. Once declared dead in the U.S. by professional commentators such as Diane Ravitch and Greg Anrig, there are now 50 private school choice programs in 26 states plus the District of Columbia. Well over half of the initiatives have been enacted in the past five years. Private school choice is all the rage.But does it work? M. Danish Shakeel, Kaitlin Anderson, and I just released a meta-analysis of 19 “gold standard” experimental evaluations of the test-score effects of private school choice programs around the world. The sum of the reliable evidence indicates that , on average, private school choice increases the reading scores of choice users by about 0.27 standard deviations and their math scores by 0.15 standard deviations. These are highly statistically significant , educationally meaningful achievement gains of several months of additional learning from school choice. The achievement benefits of private school choice appear to be somewhat larger for programs in developing countries than for those in the U.S. Publicly-funded programs produce larger test-score gains than privately-funded ones.The clarity of the results from our statistical meta-analysis contrasts with the fog of dispute that often surrounds

discussions of the effectiveness of private school choice. Why does our summing of the evidence identify school choice as a clear success while others have claimed that it is a failure (see here and here)? Three factors have contributed to the muddled view regarding the effectiveness of school choice: ideology, the limitations of individual studies, and flawed prior reviews of the evidence.School choice programs support parents who want access to private schooling for their child. Some people are ideologically opposed to such programs, regardless of the effects of school choice. Other people have a vested interest in the public school system and resist the competition for students and funds that comes with private school choice. No amount of evidence is going to change their opinion that school choice is bad.A second source of disputes over the effectiveness of choice are the limits of each individual empirical study of school choice. Some are non-experimental and can’t entirely rule out selection bias as a factor in their results (see here, and here). Fortunately, over the past 20 years, some education researchers have been able to use experimental methods to evaluate privately- and publicly-funded private school choice programs. Experimental evaluations take the complete population of students who are eligible for a choice program and motivated to use it, then employ a lottery to randomly assign some students to receive a school-choice voucher or scholarship and the rest to serve in the experimental control group. Since only random chance, and not parental motivation, determines who gets private school choice and who doesn’t, gold standard experimental evaluations produce the most reliable evidence regarding the effectiveness of choice programs. We limit our meta-analysis to the 19 gold standard studies of private school choice programs globally .

Each of the gold standard studies, in isolation , has certain limitations. In the experimental evaluation of the initial DC Opportunity Scholarship Program that I led from 2004 to 2011, the number of students in testing grades dropped substantially from year 3 to year 4, leading to a much noisier estimate of the reading impacts of the program, which were positive but just missed being statistically significant with 95% confidence. Two experimental studies of the Charlotte privately-funded scholarship program, here and here, reported clear positive effects on student test scores but were limited to just a single year after random assignment. Two recent experimental evaluations of the Louisiana Scholarship Program found negative effects of the program on student test scores but one study was limited to just a single year of outcome data and the second one (which I am leading) has only analyzed two years of outcome data so far. The Louisiana program, and the state itself, are unique in certain ways, as are many of the programs and locations that have been evaluated. What are we to conclude from any of these individual studies?Meta-analysis is an ideal approach to identifying the common effect of a policy when many rigorous but small and particular empirical studies vary in their individual conclusions. It is a systematic and scientific way to summarize what we know about the effectiveness of a program like private school choice . The sum of the evidence points to positive achievement effects of choice.

Finally, most of the previous reviews of the evidence on school choice have generated more fog than light, mainly because they have been arbitrary or incomplete in their selection of studies to review. The most commonly cited school choice review, by economists Cecilia Rouse and Lisa Barrow, declares that it will focus on the evidence from existing experimental studies but then leaves out four such studies (three of which reported positive choice effects) and includes one study that was non-

experimental (and found no significant effect of choice). A more recent summary, by Epple, Romano, and Urquiola, selectively included only 48% of the empirical private school choice studies available in the research literature. Greg Forster’s Win-Win report from 2013 is a welcome exception and gets the award for the school choice review closest to covering all of the studies that fit his inclusion criteria – 93.3%. (Greg for the win!)Our meta-analysis avoided all three factors that have muddied the waters on the test-score effects of private school choice. It is a non-ideological scientific enterprise , as we followed strict meta-analytic principles such as including every experimental evaluation of choice produced to date, anywhere in the world. Our study was accepted for presentation at competitive scientific conferences including those of the Society for Research on Education Effectiveness, the Association for Education Finance and Policy, and the Association for Policy Analysis and Management. Our study is not limited by small sample sizes or only a few years of outcome data. It is informed by all the evidence from all the gold standard studies. Finally, there is nothing arbitrary or selective in our sample of experimental evaluations. We included all of them, regardless of their findings. When you do the math, students achieve more when they have access to private school choice .

Third, school choice is key to equal opportunity and integration. The plan locks students into a failed system. Ford 17 — Virginia Walden Ford, Executive Director of D.C. Parents for School Choice—the political grassroots organization that successfully lobbied for voucher legislation in DC, 2017 (“School choice the fastest track to integration,” The Hill, May 23rd, Available Online at http://thehill.com/blogs/pundits-blog/education/334608-school-choice-the-fastest-track-to-integration, Accessed 06-19-2017)Access to a quality education shouldn’t depend on where you live , where you came from or how much money you make .As a mom who fought like heck to make sure my son was in the right schooling environment for him, I believe education is a basic American right that keeps our nation on the right track. But recent history has shown that public schools are increasingly segregated not just by race, but also by income. Families too often are forced to send their child to a default school, regardless of the quality of the education or the achievement level of their peers. It wasn’t supposed to be this way. The landmark Supreme Court case Brown vs. the Board of Education of Topeka — a unanimous decision that ended the deplorable “separate-but-equal” statutes that had been in place — turns 63 this month. In the 1960s and 1970s, the decision worked to integrate schools, especially as neighborhoods became more racially integrated.But by the 1980s, neighborhoods continued becoming more integrated, but public schools went in the opposite direction.Between 1970 and 2009, income-based segregation more than doubled, with the percentage of families residing either in “affluent” or “low-income” neighborhoods going from 15 percent to 33 percent.When it comes to residential real estate, schools often wind up linked to property values. That means the price of renting or owning in a “good” district continues to rise, making economic integration an impossibility for many families. Worse, there are those who use the economic segregation of education to reverse the original intent of the justices in Brown.

Take, for example, the recent case of Gardendale, Ala., a predominantly white suburb that’s attempting to separate itself from the much more diverse Jefferson County school district to which it belongs. A number of minority students from other parts of Jefferson County have taken advantage of intradistrict school choice to attend school in Gardendale. Instead of embracing these students, families in Gardendale want to create their own district, and some have openly admitted their motivation is race-based.The Jefferson County students may soon be denied the access to a quality education that we have repeatedly said defines our nation. The reality is that Brown didn’t get us where we need to be: It broke down barriers but failed to establish new pathways. That’s why I strongly believe that we must have a robust system of state-based educational choice if we ever intend to empower every K-12 student in America.

School choice addresses the problem of deepening segregation in two ways: First, it uncouples the decisions about where to live and where to send children to school. Second, it allows schools to provide different educational offerings to different audiences, empowering families to choose schools based on what their students actually need.

If we truly want to desegregate our schools and promote academic achievement, here are three easy ways to get started: First, enact universal school choice programs that allow all families to access the funds that are set aside by state governments to educate their students. Programs can be scaled to ensure greater access for lower-income and special needs families, but universality helps erode non-economic barriers and makes sure all families have shared interests in the sustainability of these programs.

Second, work with education providers, community groups, policymakers and other stakeholders to promote accountability and prevent fraud using a common-sense system of checks and balances.

Finally, make sure families are aware of and understand the schooling options available to their students, including information available in multiple languages, outreach from community groups and services to help with application forms along with other administrative support.

We know this approach works. State-based choice programs across America have been proven to improve academic outcomes, raise parental satisfaction and produce more civic- minded, tolerant students .As Congress prepares to ask Secretary of Education Betsy DeVos next week about the Trump administration’s education budget, Members should consider the importance of school choice policies made at the local and state level as opposed to being dictated by the federal government.Two decades ago, as a single mom trying to find the best educational fit for my kids, I didn’t know where to turn. My son was only able to access a great education because he received a private scholarship that paid his private school tuition. I know how drastically different — and worse — his life would be without that education.When the Supreme Court unanimously decided in Brown more than six decades ago, the justices surely didn’t anticipate desegregation followed by intense re-segregation and self-segregation.

Until the system of haves and have-nots , historically and presently defined by race and money , is upended , American K- 12 education will continue to exist as a separated, unequal enterprise.

True school choice — making sure all students can get in where they fit in — will help solve the K-12 integration dilemma .

Fourth, the plan and permutation make revolutionary school innovation impossible. Only universal choice solves. Forster 16 — Greg Forster, Senior Fellow with the Friedman Foundation for Educational Choice, holds a Ph.D. in Political Philosophy from Yale University, 2016 (A Win-Win Solution: The Empirical Evidence on School Choice, Fourth Edition, May, Available Online at http://www.edchoice.org/wp-content/uploads/2016/05/A-Win-Win-Solution-The-Empirical-Evidence-on-School-Choice.pdf, Accessed 06-19-2017, p. 35)Only Universal School Choice Can Sustain Dramatic ChangeUltimately, the only way to make school reform work on a large scale is to break the government monopoly on schooling. The monopoly is not just one powerful obstacle to reform among many; it is what makes all the many obstacles as powerful as they are. The monopoly ensures that no meaningful accountability for performance can occur , except in rare cases as a result of

Herculean efforts. The monopoly empowers a dense cluster of rapacious special interests resisting efforts to improve schools .The monopoly creates an environment where the urgent need for change cannot be made a tangible part of the daily cultural life of the school. Institutional culture in the existing system is hostile, not just to this or that reform, but also to reform in general , because the monopoly excludes the only institutional basis for making the need for change seem plausible and legitimate: the prospect of losing the institution’s client base and the funding that goes with it.

When any institution has a captive client base, support for innovation vanishes. Reform requires people and institutions to do uncomfortable new things, and change will not occur until discomfort with the status quo becomes greater than the discomfort of the change. An institution with captive clients can continue to function into the foreseeable future more or less as it always has, without change. Why not just continue doing things in the way that feels comfortable and natural?Worst of all, the monopoly pushes out educational entrepreneurs who can reinvent schools from the ground up. Only a thriving marketplace that allows entrepreneurs to get the support they need by serving their clients better can produce sustainable innovation.

In any field of human endeavor—whether education, medicine, politics, art, religion,

manufacturing, or anything else—entrepreneurs who want to strike out in new directions and do things radically differently need a client base . There need to be people who will benefit from the new direction and support it. And that client base must be robust on three dimensions: size,

strength, and suffrage. There must be enough supporters; they must have enough ability to provide support; and they must have enough freedom to decide for themselves what to support.

The government school monopoly crowds out this client base . School choice has the potential to solve this problem by providing enough families (size) with enough dollars (strength) and enough choice (suffrage) to support educational entrepreneurs .

Unfortunately, existing school choice programs fall short on all three dimensions. Only universal choice can open the door to the full- fledged revolution in schooling America needs in the new century.

Finally, the counterplan alone is key to prevent coercion. Reject the plan because it is an unethical violation of freedom. McCluskey 16 — Neal McCluskey, Director of the Center for Educational Freedom at the Cato Institute, former Policy Analyst at the Center for Education Reform, holds a Ph.D. in Public Policy from George Mason University, 2016 (“Ultimately, ‘School Choice’ Must Be about Freedom,” Cato At Liberty—the Cato Institute’s blog, January 25th, Available Online at https://www.cato.org/blog/ultimately-school-choice-must-be-about-freedom, Accessed 06-19-2017)It is National School Choice Week, and this ever-growing event-of-events will feature discussions throughout the country tackling test scores, competition, empowering the poor, efficient use of taxpayer dollars, monopoly breaking, and numerous other, very important topics. But ultimately just one goal must be paramount: maximizing freedom . In the end, it is defending liberty – the true, bedrock American value – that school choice must be about .

This is first and foremost a normative conviction. Freedom must have primacy because society is ultimately composed of individuals, and leaving individuals the right and ability to control their own lives is fundamentally more just than having the state – be it

through a single dictator, or majority of voters – control our thoughts, words, or actions.

Of course, children are subject to someone’s control no matter what. But a corollary to free individuals, especially when no one is omniscient and there is no unanimous agreement on what is the “right” way to live, or think, or believe, must be free association –

free, authentic communities. We must allow people and communities marked by hugely diverse religious, philosophical, or moral views , and rich ethnic and cultural identities and backgrounds ,

to teach their children those things . Short of stopping incitement of violence or

clear parental abuse, the state should have no authority to declare that “your culture is acceptable,” or “yours must go.” Indeed, crush the freedom of communities and you inevitably cripple [destroy] individual liberty , taking away one’s choices of how and with whom to live.

Of course, the reasons to demand educational freedom are not just

normative. They are also about effective education, and it is not hard to understand, at a very basic level, why.If there are things on which all agree, choice is moot – all will teach and respect those things. But if we do not all agree, forcing diverse people to support a single system of “common” schools yields but three outcomes: first, divisive conflict ; then, either inequality under the law – oppression – when one side wins and the other loses, or lowest-common-denominator curricula to keep the peace. Forced conflict and curricular mush no one should want. And inequality under the law we should all loathe and fear, even if we do not care about the rights of others and think we will come out the victors today. Tomorrow, we may not.

School choice is something for which all Americans should fight .

But ultimately, it is too limiting. What we need is freedom for all .

2AC

2AC — Ban Private Schools CP1. Immediate Action Key — the plan guarantees equal access to an excellent education for everyone now. This immediately initiates aggressive reforms. Counterplan-induced change takes generations. Benedikt 13 — Allison Benedikt, Executive Editor at Slate, 2013 (“If You Send Your Kid to Private School, You Are a Bad Person,” Slate, August 29th, Available Online at http://www.slate.com/articles/double_x/doublex/2013/08/private_school_vs_public_school_only_bad_people_send_their_kids_to_private.html, Accessed 07-02-2017)You are a bad person if you send your children to private school. Not bad like murderer bad—but bad like ruining-one-of-our-nation’s-most-essential-institutions-in-order-to-get-what’s-best-for-your-kid bad. So, pretty bad.I am not an education policy wonk: I’m just judgmental. But it seems to me that if every single parent sent every single child to public school, public schools would improve. This would not happen immediately. It could take generations . Your children and grandchildren might get mediocre educations in the meantime , but it will be worth it, for the eventual common good. (Yes, rich people might cluster. But rich people will always find a way to game the system: That shouldn’t be an argument against an all-in approach to public education any more than it is a case against single-payer health care.)So, how would this work exactly? It’s simple! Everyone needs to be invested in our public schools in order for them to get better. Not just lip-service investment, or property tax investment, but real flesh-and-blood-offspring investment. Your local school stinks but you don’t send your child there? Then its badness is just something you deplore in the abstract. Your local school stinks and you do send your child there? I bet you are going to do everything within your power to make it better.And parents have a lot of power. In many underresourced schools, it’s the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administration’s face when a teacher is falling down on the job. Everyone, all in. (By the way: Banning private schools isn’t the answer . We need a moral adjustment, not a legislative one.)

2. Permute: Do Both. Federal guarantee plus private school ban best way to rapidly improve public schools. Avoids spending DA because private school ban transfers millions to public schools.

3. Parental Leverage Fails — wealthy parents will only lobby for their schools, not all public schools. Munger 13 — Dave Munger, Editor of ScienceSeeker—a science news portal, former Co-Founder and Editor of ResearchBlogging.org—a website that collects posts about peer-reviewed research, 2013 (“No, sending your child to public school won’t save the schools. Not even if everyone did it.,” Word Munger—a blog, August 29th, Available Online at http://wordmunger.com/?p=1822, Accessed 07-02-2017)An Allison Benedikt article on Slate is getting a lot of attention, partly due to its provocative headline: “If you send your kid to a private school, you are a bad person.”Benedikt’s argument is basically this: People who send their kids to private school care about their kids’ education, so if those kids were in public school, the parents would work to make that school better.

Oh, if only that were true. If only somehow the children of the wealthy (and their parents) could make schools a better place for everyone by their mere presence . Wouldn’t that be great? But you know what? They wouldn’t .

Sure, the wealthy parents might spend more time volunteering in the schools. They might lobby for more money to be spent on schools and for better schools to be built.

But they wouldn’t want this for everyone . They would want this for their kids . So they wouldn’t lobby for a new school to replace the crumbling central-city school; they’d lobby for a gleaming new suburban palace in their wealthy neighborhood (but not too close — wouldn’t want to spoil their view of the golf course).Think I’m wrong? Look, this already happens . Plenty of wealthy parents are too cheap to send their kids to private schools. So they send them to public schools, then set up PTAs to raise money for those schools, turning them into the next best thing to a private school, at a fraction of the cost. They lobby against busing. They support zoning laws restricting high-density development so that poor people can’t afford to live in their neighborhoods. They do all this even though they could afford to send their kids to private school.

These people are not benevolent . Sure, they care about their kids. To a lesser extent

they care about their neighbor’s kids. But they don’t care about poor kids . They might say they care, but they certainly aren’t volunteering to put on a bake sale at the poor kids’ school. They’re not coaching the poor kids’ Little League teams, they’re not advocating for higher wages so poor parents can afford a better life for their own children.There are a lot of things wrong with the public schools. I may not know

how to fix them, but I do know one thing: Asking wealthy folks to voluntarily stop sending their kids to private schools won’t fix the schools .And it especially won’t help the public schools that need help the most.

4. Ban Gets Circumvented — rich families will buy out-of-school supplements so their kids retain a huge advantage. Removes their incentive to push for improved public schools.

5. Religious Freedom DA — banning private schools violates it. Garnett 13 — Rick Garnett, Professor of Law, Concurrent Professor of Political Science, and Director of the Notre Dame Program on Church, State, and Society at the University of Notre Dame, holds a J.D. from Yale Law School, 2013 (“Mandatory public education,” PrawfsBlog—a scholarly legal blog, January 7th, Available Online at http://prawfsblawg.blogs.com/prawfsblawg/2013/01/mandatory-public-education.html, Accessed 07-02-2017)At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education

sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto)

resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."

In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated

objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking

education funding from local property values), but – as I tried to flesh out in more detail, a few years

ago, here – the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies , are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way , it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand ( and support financially ) choices and options , and to include (appropriately qualified) religious schools fully in the enterprise of public education , i.e., educating the public, at public expense .

6. Residential Clustering DA — the counterplan causes rich people to move to the suburbs. They still won’t care about urban schools. Adler 13 — Ben Adler, Freelance Journalist who has reported for Newsweek, Politico, and The Nation, 2013 (“Even if Private Schools Didn't Exist, There Would Still Be Rich Suburbs,” The Atlantic, September 3rd, Available Online at https://www.theatlantic.com/national/archive/2013/09/even-if-private-schools-didnt-exist-there-would-still-be-rich-suburbs/279295/, Accessed 07-02-2017)"You are a bad person if you send your children to private school," argues Allison Benedikt in an article that appeared on Slate last week. Benedikt makes two points to parents: that going to a diverse public school will provide their kids with an education no less important than what they learn in the classroom, and that rich parents have a moral obligation to suffer the same frustrations with public schools as poor parents, so that they will be motivated to demand that the schools be improved. Conservatives criticized Benedikt on liberty grounds, but others have failed to point out how Benedikt's argument is not right on its own terms. Even Benedikt's usually insightful colleague Matthew Yglesias praised it. Benedikt's argument is objectionable, and not just because it is obnoxious and ignorant, but because it would lead to bad policy. Benedikt claims inner-city public schools would be better off if parents were unwilling to consider private school, but she is wrong .The reason is the narrowness of Benedikt's view of America, as if she had just landed in New York City from Mars. She seems to think that the only types of people in America are the urban poor and the urban rich. She writes, "Whatever you think your children need--deserve--from their school experience, assume that the parents at the nearby public housing complex want the same. No, don't just assume it. Do something about it. Send your kids to school with their kids."Benedikt bizarrely assumes that her readers are wealthy and educated but that they live near a public housing complex. From that false premise, she infers that the only

choice facing the rich is an homogenous private school or a diverse public school.

What's missing from this portrait? The suburbs . You know, they're the place where a majority of Americans live. Sending their kids to private school is only one approach the affluent take to avoid sending their children to inner-city public schools. The more common choice is to move to the suburbs .So, is someone who moves to an exclusive, wealthy suburb and sends their kids to the gold-plated public schools a good person in Benedikt's view? Implicitly, yes, since she makes no distinction between cities and suburbs, or rich school districts and poor ones.In fact, though, the average student in a wealthy suburban public school may be exposed to no greater diversity—possibly even less, thanks to

private school scholarship programs—than one finds in most urban private schools.Consider Potomac, Maryland, which is the kind of wealthy coastal blue state community where Slate readers might live. The median household income in 2011 was $167,436. Despite being next to the "Chocolate City" of Washington, D.C., the population is less than six percent African-American. At Winston Churchill High, a public high school in Potomac, fewer than five percent of the students qualify for reduced-price or free school lunches. By contrast, elite urban private schools in D.C., such as Maret and Georgetown Day, report that their student bodies are approximately 20 percent African-American. Then there is the fact that living in many urban neighborhoods will expose a child to diversity that raising her in car-dependent fancy suburb will not.So how does a wealthy family moving to Potomac for the fancy public schools help anyone but the family itself?It doesn't. (For the New York region, just substitute for Potomac a town such as Scarsdale, in Westchester, where the median household income in 2011 was $220,119 and the school district is only 1.3 percent black.) If the choice you are making —and for most rich parents, this is the

choice, if they consider staying in the city at all—is between living in the city and sending their kids to private school or moving to the suburbs and sending their kids to public school, the inner-city poor benefit more from the former . In that case, at least the family's income and taxes will stay in the city . While the public schools don't benefit from the family's social capital, they also have one fewer student drawing on their resources. The existence of private school options may help keep rich families in the city , and cities are undoubtedly better off with wealthy residents than without them. Just compare the fiscal health and crime rates of Detroit, St. Louis or Cleveland to New York, San Francisco or Boston.

Another hole in Benedikt's logic is the presence of another option on the spectrum of urban public-school avoidance: magnet schools and charters. Plenty of well-off urban parents who do send their kids to public school choose selective magnets, or at least charters that require some parental involvement to apply. If you send your kids to public schools that are disproportionately wealthy and white compared to the city as a whole, are you an evil person? By following Benedikt's thinking on private schools, the answer should be yes. But since, like "suburbs," the words "magnet" and "charter" appear nowhere in her piece, she is implying sending your kid to an elite public magnet school is a morally pure choice while sending her to private school is evil.

The same goes for gifted programs and tracking. Are parents who send their kids to the local public school's gifted program evil as well? If not, how is their decision to make sure their child is challenged academically any different than that of a private-school parent?I grew up in Park Slope, Brooklyn. My parents were among the earliest wave of the neighborhood's gentrifiers. Gentrification is now seen by many people—ironically, often gentrifiers themselves—as a dirty word connoting the arrival of Starbucks and the ejection of longtime residents. In 1979, though, when my parents bought their house, New York City was struggling with rising crime, near fiscal insolvency and rapid out-migration. The decision of any educated professionals to stay was widely viewed--including by many working-class families hanging on in the Slope--as a blessing. (As Suleiman Osman, a native Slopie and professor of American Studies at George Washington University, explains in his 2011 book The Invention of Brownstone Brooklyn, the middle-class and working-class families who did not want to leave neighborhoods like Carroll Gardens and Park Slope actively recruited gentrifiers as a stabilizing force.) Every Slope kid I know from a middle-class or wealthy family attended a magnet school, a Catholic school, or a private school, rather than one of the locally zoned public schools. Why? Some urban public schools are so bad that parents fear more than a sub-par education if their kids go there. My local district school, Sarah J. Hale—since shut down by the city for failing its students academically—was known as "Sarah Jail" and was on the news while I was in high school because a student sliced a teacher.If there were no private or magnet school options, the college-educated liberal parents who revived Park Slope would not all have, as Benedikt naively imagines, simply sent their kids to John Jay and Sarah J. Hale and shrugged at the thought they would have a better chance of getting stabbed than getting into a good college. They would have moved

to the suburbs.

7. No Solvency — no parental leverage in public schools. Pethokoukis 13 — James Pethokoukis, Columnist and Blogger at the American Enterprise Institute, former Washington Columnist for Reuters Breakingviews, former Business Editor and Economics Columnist for U.S. News & World Report, 2013 (“Please, sending your kids to private school doesn’t make you a bad person,” AEIdeas—the American Enterprise Institute’s blog, August 29th, Available Online at https://www.aei.org/publication/please-sending-your-kids-to-private-school-doesnt-make-you-a-bad-person/, Accessed 07-03-2017)I am actually reluctant to comment on Slate’s trolling-masquerading-as-analysis piece “If You Send Your Kid to Private School, You Are a Bad Person.” And I certainly don’t want to spend much time refuting writer Allison Benedikt’s fact-free, data-free “argument”: If more upper-middle class and wealthy parents — a.k.a. Slate readers, I guess — sent their kids to their local public schools, the US education system would suddenly improve.1. So I asked AEI’s Michael McShane for his two cents:

Because public schools are by and large residentially assigned, the rich have their totally awesome (and essentially private due to the home price in the school’s catchment area) public schools and poor people are trapped in failing schools because they can’t move away. That’s what leads to Balkanization. You choosing to send your kids to a suburban public school does nothing for the kids in SouthEast.Private schools, especially with public support, break the connection between residence and schooling, which holds more potential for desegregation and a mixing of students from different background than residential assignment of public schooling.

2. Aren’t the “bad people” — to use Allison Benedikt’s language — here the ones who would trap lower-income and poor kids in their local education monopoly? Or as Alex Tabarrok puts it: “Barricading parents into the poor schools their government offers them is like barricading people into communist East Germany .”

Tabarrok also notes that merely having more activist parents inside a school monopoly might not change much without competition : “When you complain of delay where is your voice more likely to be heard; at a restaurant or at the d epartment of m otor v ehicles? It’s the threat of exit that makes people listen .”

3. Oh, by the way, do we have any data on the educational impact of helping lower-income and poor kids escape the public education monopoly? Like, say, data from the District of Columbia Opportunity Scholarship Program? Well, the US Education Department’s OSP study found the program, McShane points out, “produced $2.62 in benefits for every dollar spent on it. In other words, the return on public investment for the private-school voucher program during its early years was 162 percent.” What’s more, “The OSP increased the high-school graduation rate of students by 12 percentage points if they were lucky enough to win the annual scholarship lottery.”4. One more from McShane:

It’s also a proud tradition in America (since Pierce v. Society of Sisters in 1925) to recognize that children are not instruments of the state. They do not exist to promote the goals of the government or the community, they (and their parents) are free to (within limits) to be educated as they best see fit. Obviously this person has no idea about the anti-Catholicism and anti-immigrant racism that lead people to make the same argument that she is making, albeit 100 years ago.

Choice won’t fix everything wrong with America’s school, but choice and competition create the environment where change is possible.

8. Constitutional Liberty DA — the counterplan crushes it.Volokh 13 — Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at the University of California-Los Angeles School of Law, Academic Affiliate for Mayer Brown LLP—a law firm, holds a J.D. from the University of California-Los Angeles, 2013 (“Equality vs. Liberty,” The Volokh Conspiracy—a scholarly legal blog, January 23rd, Available Online at http://volokh.com/2013/01/23/equality-vs-liberty/, Accessed 07-02-2017)The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents’ right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Court’s decision in Employment Division v.

Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.

A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking . After all, the argument that “[i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools” and that “[c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools” could apply to many things. For instance, if wealthy people know that, if they or their family members

prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child .

Likewise, one can argue that public libraries are underfunded , too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries . Naturally,

private provision of medical care would have to be forbidden, too , since only that will give rich people an incentive to vote for more funding for medical care for the poor.

And of course people in poor, high-crime neighborhoods often don’t get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this:

Let’s bar people from buying private housing , and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.

Think also of the other ways that some people find themselves “separate and unequal” — how about in the ability to reach the

public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you don’t have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status , so as to at least reduce this inequality .To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they — like abortion rights and sexual autonomy rights — aren’t mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this

view. He is acknowledging that there is a constitutional right to control the upbringing of one’s children, but is saying that this right, “like other fundamental rights , is not absolute,” and can be trumped by a “ compelling interest in achieving equality of educational opportunity.” It follows that other fundamental constitutional rights , such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that it’s

recognized as a constitutional right) would likewise have to yield to the “compelling interest in achieving equality.”

2AC — School Choice CP1. Racialized Inequality DA — choice increases segregation and racial inequality.James 14 — Osamudia R. James, Associate Professor of Law at the University of Miami School of Law, holds an LL.M. from the University of Wisconsin Law School and a J.D. from Georgetown University Law Center, 2014 (“Opt-Out Education: School Choice as Racial Subordination,” Iowa Law Review (99 Iowa L. Rev. 1083), Available Online at https://ilr.law.uiowa.edu/print/volume-99-issue-3/opt-out-education-school-choice-as-racial-subordination/, Accessed 06-20-2017)A. Race and the School-Choice MarketChoice rhetoric contemplates the sphere for reformed education as a market. The commodification of education in this way has prompted no shortage of critiques identifying the ways in which the conditions for a properly functioning education market are difficult—if not impossible—to dictate. Problems with an education market, however, go beyond the mere absence of ideal market

conditions. Rather, the problems extend to the ways in which race and racism warp the market , undermining the possibility that an education market could ever genuinely optimize educational outcomes for marginalized students and families in that market.

As an initial matter, the choices of poor, working class, and minority students and their families in the education market are severely limited . Community bias against these groups , for example, is often reflected in local policies like zoning for multi-family housing that can limit access to particular schools —charter and voucher schools included. Input and influence of marginalized communities regarding charter school policies (including school offerings,

the number of schools, location, and themes) is subject to the same limitations that undermine these groups in any political process.

Information asymmetry and unequal bargaining power also undermine the market for parents of color. Marginalized minority parents, in particular, often do not have ready access to the data and information that would enable them to make good schooling decisions . Moreover, minority parents are often on unequal footing when they engage with school systems, given the pervasiveness of cultural-deficit theories that demean and devalue minority parental participation in their children’s education.

The idea of the “rational parent” as an actor in the education marketplace, who is able to choose the best educational option for his or her child, is a myth — even if one assumes genuinely broadened options, better info rmation, and increased bargaining power. Although parents assert that they care most about academics, studies suggest that

even after controlling for educational programming and performance, parents use heuristics—namely race — when making school choices . In one study, for example, an increase of more than two percent in the African-American student population correlated with a parental perception that school quality had declined, even when objective evidence contradicted

that perception. Allowing parents to self-segregate within schools in this way is a “successful,” but undesirable, optimization of parental preferences. Moreover, a market in which parents select schools based mostly on racial composition , instead of objective measures of academic excellence, is not really an education market, but rather a racialized social market playing out in the sphere of public education. The education market, legitimate or illegitimate, is not an arena in which rational decisions about education take place.

2. Blame-Shifting DA — choice gives the state an excuse to neglect public schools. Makes all aff impacts worse. James 14 — Osamudia R. James, Associate Professor of Law at the University of Miami School of Law, holds an LL.M. from the University of Wisconsin Law School and a J.D. from Georgetown University Law Center, 2014 (“Opt-Out Education: School Choice as Racial Subordination,” Iowa Law Review (99 Iowa L. Rev. 1083), Available Online at https://ilr.law.uiowa.edu/print/volume-99-issue-3/opt-out-education-school-choice-as-racial-subordination/, Accessed 06-20-2017)2. Private Responsibility for Public EducationIn addition to problematically fostering competition in a context that should be collaborative, school choice also privatizes responsibility for public education. “Privatize” does not necessarily mean that school choice results in the enrollment of students at private schools, although private school enrollment is one aspect of the opt-out revolution in public education. Rather, here, the term “privatize” means the relegation of care, concern, and investment in public education to the private sphere—to individual parents and caregivers, rather than to the public. There is not a natural line of demarcation for decisions that should not be made privately because they impact the public; rather, society has to draw those lines independently. Given, however, the interdependent nature of education, and the extent to which access to quality education has largely been shaped by the economic and racial composition of classrooms, public education is one area in which those lines must be drawn more carefully, and with less opportunity for privatization than in other spheres of American life.Like the expansion of the voucher program in Louisiana, lawmakers often present school-choice policies as the product of a proactive legislative response to state educational problems. When a state,

however, adopts school- choice policies to address problems that are widespread and structural in nature— like social, racial, and economic isolation in school districts— the state abrogates communal responsibility for those problems . Although these additional “choices” result in perverse outcomes for marginalized parents and caregivers, having already made sufficient choices available, the state can now claim it is no longer responsible for addressing the achievement gap through school or housing integration. This phenomenon has led to the privatization of individual schooling decisions that are public in their effect. It has also eliminated public debate of the merits and consequences of these ostensibly private decisions, and immunized these choices from attack or characterization as illegitimate, even as those choices marginalize some in the education system.

As responsibility shifts, so does blame . Having exercised the choices they were given, parents and caregivers of color are now made to exclusively bear a burden they cannot carry alone;

individual parents, after all, cannot address structural causes of the achievement gap . When asked to give up on genuine equality in favor of the fiction of self-reliance, however, participants in the school system ultimately play into a sort of amnesia about the history of public education and the institutional structures that impede its potential. One must not forget segregation of public schools, the imperative of integration, and vulnerability of students—as manifested in food insecurity, low socioeconomic status, or inadequate healthcare—that the school system and the broader society must manage. Ignoring these realties and instead buying into school choice will only leave the vulnerable among us more vulnerable when market options and school choices fail to magically close the achievement gap , or result in more fraud and failing schools.

This outcome is particularly troubling because others in society already devalue the decisions and preferences of poor and minority people. Given that undervaluing, responsibility for failure in education can then be easily laid at the feet of those who chose . This rhetorical move is familiar in gender equality policy debates, where any number of gender disparities (e.g., the disproportionate presence of women in lower-paying jobs and the financial insecurity which acting as primary caregiver creates) is justified as the result of women’s choices. One can similarly expect choice in education policy to play the same role—once students and parents choose, policymakers can ignore the structural problems that drive the achievement gap but that cannot be traced to any single individual choice.

3. Reject Neg Ev — Forster and Wolf are biased and wrong. Lubienski 16 — Christopher Lubienski, Professor of Education Policy and Director of the Forum on the Future of Public Education at the University of Illinois, Fellow with the National Education Policy Center at the University of Colorado-Boulder, holds a Ph.D. in Education Policy and Social Analysis from Michigan State University, 2016 (“Review of A Win-Win Solution and The Participant Effects of Private School Vouchers across the Globe,” National Education Policy Center, June, Available Online at http://nepc.colorado.edu/thinktank/review-meta-analysis, Accessed 06-20-2017, p. 14-15)VII. Usefulness of the Reports for Guidance of Policy and PracticeThe reports reviewed here have garnered attention in the broader policy

discussion, although often primarily with pro-voucher advocates ,54

reflecting the echo-chamber nature of the discussion reflected in these

reports. Neither report has been independently peer reviewed, and they suffer from the problems noted above, which undercut their credibility.

Both reports make a number of methodological choices that shape their results. They focus on randomized controlled trials for defensible reasons, but

without acknowledging the limitations of RCTs, even though those limitations are widely known.55 The sets of RCT studies selected for use are also problematic , with the Friedman Foundation report using a process that is not as

systematic as it indicates, and in fact is shown to have been erroneous,

while the University of Arkansas report’s selection criteria left it with a highly skewed set of studies , and no insights from the longest-running and more comprehensive national voucher programs. At the same time, the University of Arkansas report makes no effort to account for publication bias in its selection process, which may exaggerate its findings.

The reports also take very different approaches to other voucher “impacts.” The University of Arkansas meta-analysis focuses only on academic achievement , and not on issues such as the impact on segregation , which is known to

be a detrimental factor in countries that have embraced vouchers.56 The Friedman Foundation report does attempt to address some of those other factors, but in its treatment of

academic achievement (the focus of this review) it conflates learning gains with non-cognitive outcomes such as college attendance , without apparently

recognizing that these are distinct issues that are possibly susceptible to different influences besides the offer or use of a voucher.

Overall, the reports present findings that are not particularly helpful for advancing our understanding on the impacts of vouchers on student achievement. Together they tend to present

[end page 14] a mixed set of findings , with benefits appearing for one group in one context, but not for the same group in another city, or even in another subject. The results from the global meta- analysis are shaped largely by one city in one country, and the report is not designed to tell us why vouchers would have a greater impact there. Indeed, we don’t know why voucher impacts — positive or negative —

appear in one case, but not in another. Thus, the theoretical underpinnings motivating vouchers, as set out by Milton Friedman and subsequent theorists, do not appear to be very strong when applied to the real world, even when tested by voucher advocates.The Arkansas report concludes with recommendations for more RCTs, without offering any guidance about how researchers might overcome the limitations of randomization to take into account peer effects, or improve upon generalizability. But the report also encourages consideration of “the cost-benefit tradeoffs associated with voucher programs” — by which the authors mean to suggest that vouchers are “cost effective, since they tend to generate achievement outcomes that are as good or better than traditional public schools, but at a fraction of the cost.”57 Instead of focusing only on saving money when educating disadvantaged students, a better approach would be to consider vouchers in terms of their potential for enhancing student learning relative to the effects of other interventions ’ ability to do so. For example, instead of looking at school vouchers alone, we should be considering the effect sizes of school vouchers compared to, say, housing vouchers, integrated classrooms, or smaller class sizes. In fact, perhaps the largest meta-analysis on education interventions has done just that, looking at the effect sizes of various influences on student learning , and finding little support for school choice programs. Drawing on over 800 meta-analyses encompassing over 50,000 studies of different influences in

academic achievement,58 that meta-study ranked the school choice option 59 107th out of 138 factors , beneath class size, professional development for teachers and peer tutoring…but above summer vacation and television.

4. Permute: do both — guarantee equal access to excellent public education and provide choice. Avoids disads to choice alone.

5. No “Innovation” Net-Benefit — corporate reforms don’t solve the case. Michie 11 — Gregory Michie, Senior Research Associate at the Center for Policy Studies and Social Justice at Concordia University Chicago, 2011 (“The trouble with ‘innovation’ in schools,” The Washington Post, May 24th, Available Online at https://www.washingtonpost.com/blogs/answer-sheet/post/the-trouble-with-innovation-in-schools/2011/05/23/AFEgw79G_blog.html, Accessed 06-20-2017)An irony in all this is that one of the favored words of the business-minded reformers who continue to push a results-driven, corporate model of school change is “innovation.” Of all the buzzwords that zip through

current conversations about school improvement, it may be the most repeated. It peppers the language of Race to the Top, and charter school cheerleading, and teacher recruitment pitches. If you’re not talking about innovating, you’re probably not getting heard.But the word, like so many others in education, has been hijacked . The “new reformers” have appropriated it as a descriptor for policy proposals and practices they advocate, and as an antonym for almost anything else. Charter schools? Innovative. Regular public schools? Definitely not. Competing for education funding? Innovative. Assuring that adequate monies go to schools that most need them? Passé. Evaluating teachers based on test scores? Innovative. Collective bargaining? Old school.Corporate reformers have come to own the word so completely that they’re able to promote even the most wrongheaded ideas and still be portrayed by many media outlets as innovators. Bill Gates says we should crowd more students into the classrooms of the “top 25 percent of teachers” in order to save money. Does any school-based educator believe that that’s a good idea? The film Waiting for Superman, a favorite of the innovation crowd, puts forth an image of student learning that is as ill-conceived as it is crude: the empty-vessel head of a cartoon student is opened up and a pile of information is poured in. It’s all about efficiency -- more head-filling, less fact-spilling. But hey, that’s innovation!Since many of the practices, values, and terminology (”Are you tracking me?”) of the new reformers have been borrowed from the business world, it’s also important to remember that what corporate CEOs celebrate as innovative isn’t necessarily fair or just . Bob Herbert’s final column for The New York Times in March lamented the growing wealth gap in the U.S., and highlighted the fact that General Electric, which racked up $14.2 billion in profits in 2010, paid zero federal taxes. With so many families struggling to make ends meet, how can this be? According to The Times’ own reporting, G.E. implements “an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting (italics mine) that enables it to concentrate its profits offshore.”I’m all for fresh ideas, but just because a notion is novel or different doesn’t mean it’s good for teachers and kids . The trouble with

many of the current “innovations” in education is that they do nothing to challenge the broader policy framework that prizes higher test scores above all else — in fact, they often embrace it. So teacher and student creativity will continue to be squashed at every turn. And the poorer the kids in a given classroom or school, the more likely that is to be true.That, for me, is the most troubling aspect of where we appear to be headed. The Obama administratin’s plan for reauthorizing NCLB would allow most schools to escape the pressure cooker of annual yearly progress-chasing that has marked the past decade, and that’s a good thing. But for the 10 percent of schools at the bottom of the test-score pile — mostly schools of the urban poor — the heat would be turned up even higher: more testing, more “data-driven” instruction, and more sanctions, while creativity, divergent thinking, and the arts continue to get left behind.I think about the seventh and eighth graders I taught in Chicago — kids like Ramon, who daydreamed in poetic verse but had a hard time sitting still, or Josefina, a recent immigrant who struggled with English but found her voice when a video camera was in her hands. What place is there for kids like them in the schools we’ve made? How will they discover their gifts, pursue their dreams? And if they become alienated by their schooling experiences — which seems likely — where will they turn?It depends on who you ask, I suppose. Michelle Rhee, former D.C. schools chancellor and one of the rock-star “innovators” in education, famously told Time magazine in 2008:

“The thing that kills me about education is that it’s so touchy-feely. People say, ’Well, you know, test scores don’t take into account creativity and the love of learning.’ I’m like, ’You know what? I don’t give a crap.’ Don’t get me wrong. Creativity is good and whatever. But if the children don’t know how to read, I don’t care how creative you are. You’re not doing your job.”

On the other hand, Sir Ken Robinson, professor emeritus at the University of Warwick and author of Out of Our Minds, argues in two widely circulated talks from the TED conference that schools too often end up stifling kids’ creative spirits. “Creativity is as important in education as literacy,” Robinson says, “and we should treat it with the same status.”We should — but with the continued reliance on annual testing in the administration’s Blueprint for Reform, it may not happen anytime soon. That means too many kids in our poorest neighborhoods will continue, even if their test scores rise, to receive what can

only be called an impoverished education. And no matter what the new reformers say, there’s nothing innovative about that .

6. No “Coercion” Net-Benefit — choice undermines freedom and agency. Weigh consequences.James 14 — Osamudia R. James, Associate Professor of Law at the University of Miami School of Law, holds an LL.M. from the University of Wisconsin Law School and a J.D. from Georgetown University Law Center, 2014 (“Opt-Out Education: School Choice as Racial Subordination,” Iowa Law Review (99 Iowa L. Rev. 1083), Available Online at https://ilr.law.uiowa.edu/print/volume-99-issue-3/opt-out-education-school-choice-as-racial-subordination/, Accessed 06-20-2017)B. Beyond PaternalismIn the abstract , choice can be an integral feature of law or policy that promotes equal rights and opportunities. Accordingly, defenders of school choice may ultimately argue that limiting school choice, particularly for minority parents and caregivers unsatisfied with their local schools, is pernicious paternalism. After all, some choice is better than no choice at all. My response is threefold.First, limiting choice is not grounded in attempts to protect parents and children from their irrational choices. To the contrary, opting out, even to enroll in comparable schools that fail to improve academic outcomes, might be characterized as a rational response to the negative and racialized school experiences that families of color as well as poor and working-class families experience. And until system-wide problems in the American educational system are addressed, caregivers and families have few options other than exercising the limited “choice” they have been afforded to either take advantage of school choice or exit the public school system altogether. Accordingly, I advocate for limitations on school choice to prevent the disastrous social consequences—the abandonment of the public school system, to particularly deleterious consequence for poor and minority schoolchildren and their families—that occur as the collective result of individual, albeit rational, decisions. I also advocate for limitations on school choice in an attempt to encourage individuals to consider their obligations to children not their own, but part of their community all the same. Although outside the scope of this Article, this thought exercise applies with equal force to school choice that extends beyond charter schools and voucher

programs, including homeschooling, private school education, and even housing decisions made by the wealthy.Second, as I have argued, students of color and their families may, indeed, be “ opti ng out ,” but those decisions do not reflect genuine choice or agency. Rather, opting out is a response of parents with no reasonable alternatives who are sensitized to the way their actions, or failures to act, will be devalued on account of their race and class. In such a context, genuine choice is not exercised at all . As such, advocating for limits on school choice for those students and their families does not really undermine their exercise of choice—which was minimal or nonexistent to begin with . Placing limitations on choice for everyone in the school system, however, may materially improve education for all when those families that used their choice and privilege to leave the system are required to return.

Third, the actual impact of school choice cannot be ignored. Given the racialized realities of the current education system, choice is not ultimately used to broaden options or agency for minority parents. Rather, school choice is used to sanitize inequality in the school system; given sufficient choices, the state and its residents are exempted from addressing the sources of unequal educational opportunities for poor and minority students . States promote agency even as the subjects supposedly exercising that agency are disabled. Experience makes clear that school choice simply should not form an integral or foundational aspect of education reform policy. Rather, the focus should be on improving public schooling for all students such that all members of society can exercise genuine agency , initially facilitated by quality primary and secondary education. Ultimately, improving public education begins with preventing its abandonment.

7. Market Approach Fails — can’t solve systemic social inequalities. Sundquist 17 — Christian B. Sundquist, Professor of Law and Director of Faculty Research and Scholarship at Albany Law School, former Visiting Scholar at the Institute for Research on Poverty at the University of Wisconsin-Madison, holds a J.D. from Georgetown University Law Center, 2017 (“Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,” Mercer Law Review (68 Mercer L. Rev. 351), Winter, Available Online to Subscribing Institutions via Lexis-Nexis)IntroductionThe accepted narrative of the American public education system is one of decline, educational "crisis," n1 and systemic failure. Our public schools increasingly are segregated by race and class in the

post-Brown era, n2 while fundamental social inequalities persist among schools in regards to educational quality, financing, and outcomes. Long viewed as essential to the economic and democratic development of America's

citizenry, our unequal system of universal public education has forsaken the "faces at the bottom of [the] well" in an era of deregulation and decreased social welfare funding. n3 [*352] The federal government previously responded to the failure of Brown's promise of equal educational opportunity by introducing legislation - the No Child Left Behind Act of 2001 (NCLB) n4 and the Race to the Top Act of 2009 (RTT) n5 - that promoted educational reform informed by the classic market principles of consumer choice, competition, and accountability. Under this schema, the failure of America's public schools could be traced to an overregulation of education that has promoted bureaucratic stasis, ineffective teaching, and unaccountability at the cost of the individual liberty of parents and children to attend the school of their choice. The role of the federal government, then, was to utilize its fiscal block grant-in-aid powers to cultivate the private and market-based properties of public education.The well-documented failures of the NCLB and RTT to promote student

achievement, much less equality in education, led Congress to pass the Every Student

Succeeds Act in December of 2015 (ESSA). n6 The bi-partisan ESSA has been hailed by both liberal and conservative education reformers for not only superseding the much-reviled NCLB and RTT framework, but also for shifting control over certain aspects of public education policy to state and local actors.The new education act nonetheless largely leaves untouched the substantive framework of NCLB and RTT. The ESSA retains the core focus of the past education framework in its continued emphasis on promoting student achievement through consumer choice, accountability, high-stakes testing, and inter-school competition. If anything, the ESSA has broadened the market-based approach of federal education policy by shifting the responsibility for employing corporate measures of accountability to states (themselves serving as "laboratories of experimentation" subject to market demands).And yet the crisis of America's system of public education is less a manifestation of under-incentivized schools, inadequate school choice, and poor teaching, than it is a reflection of unrelenting poverty and persistent racial discrimination . The modeling of education policy and law around the oft-criticized market assumptions of consumer choice, competition, and accountability have led to a deepening of the crisis confronting public schools. Since the adoption of market-based education legislation [*353]

such as NCLB and RTT in the last ten years, our public schools have been re-segregating at an accelerated rate and the achievement gaps between the rich and poor, and white and non-white have deepened. n7

The market model of public education preserved through the new ESSA legislation does not provide answers to our current educational dilemma, but the model merely deflects the responsibility of providing an equitable public education from the public sphere of federal and state government to the private sphere. There are no easy answers to the public school crisis, and simply incorporating misplaced assumptions of competition, rational choice, and market accountability into public educational policy will not resolve the situation. We need to acknowledge that our school failures are not due

to the absence of market incentives and processes in education, but are caused by systemic social inequalities - including poverty , racial discrimination and segregation , unequal school financing , and inadequate teacher compensation .

8. Public Funding Tradeoff DA — vouchers worsen segregation and inequality by shifting public funds to private schools. Chemerinsky 15 — Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (“Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 260-261)At the same time, efforts that push away from unitary schools should be disfavored. Most notably, voucher systems are undesirable because they are the antithesis of a unitary system. Vouchers encourage parents to send their children to private and parochial schools and to abandon public schools. Vouchers will only exacerbate segregation and inequalities in educational opportunity. In large cities, top private schools often cost over $25,000 a year; a voucher worth $2,500 does not give poor children the ability to attend these schools. Instead, vouchers take money away from the public school, leaving poor children with the choice of attending even worse public schools , lesser private schools, or religious schools. My central point is that the focus should [end page 260] be on how to ensure that all children are in the same school system; vouchers have exactly the opposite effect .

9. Conditionality is a Voting Issue — it incentivizes coverage over engagement, discouraging clash. Lower bar for 1NC inclusion encourages counterproductive “throw-ins” that sap scarce speech time and ensure late-breaking debates. “Drop contests” don’t develop student expertise because they lack focused disagreement and iterative in-depth rejoinder. “Two conditional” interp promotes contradictory extremism by incentivizing simultaneous “fringe left” and “fringe right” options to “box-in” aff. Ruins in-depth policy comparison and destroys aff ground. “One conditional” interp preserves enough neg flexibility without sacrificing fairness and clash. Subsequent rounds ensure deeper debates over different proposals.