The Yale Law Journal


Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools

21 Nov 2006

In two articles—one recently published in this Journal and another forthcoming in the NYU Law Review—Professor Goodwin Liu argues that the federal government should play a greater role in financing public education, should distribute more fairly among states its funds targeted to the neediest schools, and should establish national standards to measure student achievement. Would Liu’s specific policy proposals—the subject of the NYU piece—be enough to close the achievement gaps between underprivileged students and their more advantaged peers? As he acknowledges, probably not. But Liu’s emphasis on federal leadership is just what is needed if we are finally to reform our highly decentralized system of public education. In this brief response essay, I mean to suggest how Liu’s proposals might, with a few tweaks, motivate states and counties to make reforms of their own that would improve our nations’ schools.

It’s been done before. Federal action through Goals 2000 and the 1994 reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA) led all fifty states to adopt a standards-based framework of education that is premised on the idea that everyone involved—students, teachers, schools, district administrators, and state officials—should be held accountable for reaching a set level of performance. As part of that framework, all the states now set specific academic achievement standards and measure student performance with standardized testing. Those federal bills succeeded by offering federal funds in exchange for the states’ cooperation. That success came relatively cheap: federal funds total less than nine percent of the total expenditures for elementary and secondary education. Even that (relatively) small amount of federal aid shook up a system noted for its resistance to change.

The No Child Left Behind Act of 2001 (NCLB), the latest reauthorization of the Elementary and Secondary Education Act, built on the Goals 2000 and ESEA provisions. Most importantly, NCLB required states to publicly report their students’ scores on achievement tests, and to break down that data by income, race and ethnicity, and special needs categories of English language learners and students with disabilities. These reporting requirements forced states to focus on closing the achievement gaps between rich and poor students and white and minority students. Arguably, NCLB’s education goals were the most equitable—in the sense of fostering greater equality across incomes and races—since the Civil Rights Act of 1964 and the federal legislation of the 1970s that established the educational rights of women, girls, and students and teachers with disabilities.

Liu rightly criticizes NCLB for leaving intact the old Title I formula for distribution of federal funds. That formula ignores differences between states’ tax bases and budgets, which means that Title I’s support for low-income students differs widely among states. For example, by Liu’s analysis, in 2001 Arizona and Michigan had close to the same number of low-income students, but in 2001 Title I provided $761 per low-income child in Arizona and $1786 per low-income child in Michigan. That difference in Title I funding came about solely because Michigan spent more of its own money on education.

But Liu overlooks an important benefit of NCLB and other federal incentives. These laws prodded the states and local school districts to experiment with reforms to local education systems. Since NCLB, the states have invested heavily to improve their testing systems and have initiated new ways to track individual student performance from year to year. They are also beginning to experiment with new kinds of interventions in low-performing schools and new ways of compensating effective teachers. There is need for many more such experiments. But because experimentation and evaluation are expensive and politically risky, states and localities are reluctant to invest the funds needed to succeed. Only substantial federal funding can overcome that reluctance.

But experimentation is not necessary for Congress to tackle two pressing funding equity problems. First, Congress should financially reward states that distribute school funding more equitably. During the past two decades many states did reform their education budgets to direct more money to needier students and poorer localities. But most states could do better. Big states like Illinois and New York continue to maintain very high per-pupil funding differences—over $2000 per student—between their lowest- and highest-poverty districts.

Congress should provide financial carrots for states and districts to adopt weighted student funding schemes that direct money to where children need it most. A recent proposal by a bipartisan group of seventy-five distinguished past and current government officials, educators, and researchers shows how this could be done. Entitled Fund the Child: Tackling Inequity and Antiquity in School Finance and prepared by the Thomas B. Fordham Institute, the paper calls for undoing the old, widespread, unjust, and inefficient state systems of education funding, in which money is distributed based on the numbers of teachers and programs, on the types of facilities, or even on political jockeying. In their place, the Institute recommends a more equitable system in which a real dollar amount, determined solely by the educational needs of each child, follows the child as he or she moves between schools or even districts.

Second, the federal government should also reward local districts that eliminate the all-too-common funding problem known as staff-based resource allocation. This problem occurs when districts allocate money among schools as if all teachers earned identical salaries, even though better-paid teachers—usually those with more experience and training—are much more likely to teach in more affluent neighborhoods. Because all schools receive the same budget outside of teacher salaries, the affluent schools are left with more resources. As a result of this common budgeting practice, districts often provide less money for low-performing and high-poverty schools. This problem infects not only districts’ allocations of their own funds but also their allocations of federal and state funds, and therefore often undermines state and federal efforts to aid high-poverty schools.

Indeed, Congress contributes to this problem. As Liu points out, Congress needs to close the “comparability loophole” in the provision of Title I funds. That loophole exempts teacher salary differentials from Title I’s requirement that states and localities fund each school equally. This exemption means that some Title I funds actually support non-Title I schools, which frustrates Title I’s intent to help high-poverty schools. Instead, Congress should distribute Title I money based on the educational needs of students, with no exemptions.

The times demand that Congress focus local leaders’ attention on the equity of education funding. If we do not vastly improve the educations of our low-income students and students of color—a group growing as a proportion of the population—then our workforce will soon find itself gravely under-prepared for the jobs that our country must fill in order to remain internationally competitive and maintain our high standard of living.

Cynthia G. Brown is Director of Education Policy at the Center for American Progress.

Preferred Citation: Cynthia G. Brown, Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools, 116 Yale L.J. Pocket Part 163 (2006),