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Overview
Experts agree that
accountability is a driving force changing both the
policy-making and operational aspects of every public school
system in this nation. More specifically, the impact of
accountability for student academic progress is evident at
every level of contemporary public education, from pre-school to
college and university.
The genesis of the
accountability movement in public education, as we know it
today, can be found in a much larger reform movement. It can be
directly traced to the confluence of the following occurrences
between the mid-1980’s and 2000: the
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publication of books, articles
and reports proposing needed reform in public education;
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sustained
publication of national and international data showing the
performance and progress of our nation’s public school students
in reading, science, mathematics, history, and geography;
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organized efforts of
such powerful groups as The National Alliance for
Business and The Business Roundtable to impose a
“business, market/competition-oriented, data-driven model”
on the management of public schools;
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impact of the
Total Quality Movement (especially the teachings of T.
Edwards Deming) on school system operations and quality control;
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efforts of parent
and teacher organizations to establish site-based (school
building-level) management as the primary means of school
governance;
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initiatives of
United States Presidents to establish national goals for public
education, including specific national standards for student
academic performance;
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avalanche of court
challenges in over half of the states seeking fiscal equity
and adequacy in public school funding;
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legislative efforts
in several states (e.g., Kentucky) to totally restructure
public education from the top down;
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growing consumer
attitude of the general public and a shift from measuring inputs
to measuring outputs (i.e., measuring the financial
investment in public education by analyzing the relationship
between dollars spent and results expressed in student
performance outcomes);
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emphasis on ensuring
that all students receive an adequate (basic,
minimal) educational opportunity;
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implementation of
statewide student competency testing (e.g., end of course
examinations, end of grade examinations) to measure student
educational progress;
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establishment of
statewide academic standards (in English, mathematics, science,
social studies), and connecting student academic performance
indicators to school accreditation, to school funding levels,
and to administrator and teacher evaluation;
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introduction of such
terms as “educationally bankrupt schools,” “failing schools,”
“low performing schools,” and “academically successful schools;”
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publication and
dissemination of “school report cards,” for regions, states,
individual school systems, and individual schools, detailing
such data as statewide student test scores, the frequency of
student disciplinary actions, the number of teachers certified
in the subjects they teach;
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initiation of state
“takeovers” by state boards of education (e.g., New
Jersey), in situations where local school systems are judged as
“failing;” and
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implementation of
state mandated exit examinations as a precondition of high
school graduation (currently, more than twenty states
have established such a requirement).
A capstone event in the
educational accountability movement came in January,
2002, when President George W. Bush signed into law the No
Child Left Behind Act of 2001 (P.L. 107-110). This new and
broad-based federal law requires, among other things, that
students in low performing “failing” schools (as measured by
standardized test results) be given an opportunity to transfer
to a higher performing “successful” school (with free
transportation provided by the local school district). The law
also requires that school officials inform parents of teachers
in their child’s school who are not qualified to teach what they
are teaching.
Thus, in the new millennium,
public pressure is on state and local school officials to
accomplish three accountability-driven objectives.
First, to ensure taxpayers that all dollars earmarked for
public education are being wisely spent. Second, to
demonstrate a positive return (expressed in terms of student
academic progress) on the growing financial investment made in
this nation’s future citizens. Third, to show that
quality control measures are in place in every school, holding
school officials, administrators, and teachers directly
accountable for student achievement or the lack thereof.
It must be
emphasized, however, that accountability is not a simple
concept. It is a multifaceted process involving reporting,
analyzing, explaining, justifying, and taking responsibility for
results. While contemporary public school systems are well into
the reporting and analyzing dimensions, and the explaining and
justifying activities are now underway, the last piece of the
accountability puzzle, responsibility for results
(expressed in terms of student academic outcomes) has most
recently become the focus of a national debate.
Emerging
Issues
Who is
directly responsible when students fail to achieve acceptable
scores on statewide student academic competency tests (local
school boards, superintendents, building principals, classroom
teachers, parents, or students)? Who is at fault when an entire
school system, or a particular school in a school system, fails
to meet state-mandated accreditation standards? Will parents of
“failing students” in “failing schools” go to court seeking
remedy? Will litigating parents allege that school officials and
staff have “failed in their duty” or “breached their
responsibility” to provide students with an adequate (basic,
minimal) education? Will dissatisfied parents charge local
school officials and staff with “educational malpractice?” What
will the courts say? Currently it is unclear as to any definite
answers to these questions; however, one can reexamine past case
law from various states and speculate.
Case
Law:
In the late 1970’s, two state
court decisions (one from California and one from New York)
gained considerable attention in the education community. In the
California case, Peter W. v San Francisco Unified
School District (1976), a high school graduate went to court
seeking damages from his former school system for what he
alleged was “inadequate instruction.” His inability to read and
write, he said, was caused by the negligence of his teachers.
Ruling in favor of the school system, the court focused on the
complexities of fixing fault where a student has “failed to
learn.” In the court’s view, “Unlike the activity of the highway
or the marketplace, classroom methodology affords no readily
acceptable standards of care, or cause, or injury. The science
of pedagogy itself is fraught with different and conflicting
theories of how or what a child should be taught…. [T]he
achievement of literacy in the schools, or its failure, are
influenced by a host of factors which affect the pupil
subjectively, from outside the formal teaching process, and
beyond the control of its ministers.”
In the New York case, Donohue v Copiaque (1979), an
unemployed, eighteen-year old, former student and his parents
brought a “failure to educate” claim against a public school
system. The young man could neither read menus nor take the
written portion of test for a driver’s license, and his mother
had to help him fill out job applications. The parents claimed
that school officials (1) should have provided their son with
special help (in the lower grades), (2) should not have promoted
their son from grade to grade, (3) should have advised them of
their son’s reading problem, and (4) should have provided
appropriate personnel and facilities to respond to their son’s
needs. The court ruled in favor of the school system, because
there was no precedent for holding public school officials
liable for “failure to educate a student.”
In 2000, a Connecticut appellate court decided a parent’s claim
that his three-year old daughter had been exposed to “reckless
instruction of an improper curriculum.” Vogel v Maimondes
Academy (2000), involved a father’s objection to his
daughter’s enrollment in a family life education-type program
intended to help children develop interpersonal skills, make
sound value judgements and moral decisions. More specifically,
he took issue with a part of the course that involved teaching
children the difference between “proper and improper touching.”
Characterizing the father’s lawsuit as one of “educational
malpractice,” the court was unreceptive to his claim. In the
court’s view, “vast numbers of states have rejected educational
malpractice claims sounding in tort.” Citing both Peter W.
and Donohue, the court opined that claims of educational
malpractice put the judiciary in the awkward position “of
defining what constitutes a reasonable educational program and
deciding whether that standard has been reached.” The appellate
court added that an educational malpractice claim based on a
contract theory also would be unsuccessful.
In 2001, a Louisiana appellate
court heard a related case where a parent sued the Orleans
Parish School Board on behalf of his son and 2,600 other
students. More specifically, in Tollett v Members (2001),
the parent alleged that the school board allowed students to be
taught Algebra 1 by teachers who were not certified.
Subsequently, students were denied credit (for the course)
applied toward high school graduation. In his complaint the
parent charged board members with “willful neglect, and
intentional disregard of their duties,” for knowingly allowing
students to be taught by uncertified teachers. The court ruled
in favor of the school officials. In such a case as this one,
said the court, public school board members can be found liable
only if plaintiff can show that the damage suffered by students
was directly caused by “willful and wanton misconduct” of school
board members. In the court’s view, the burden is on the
plaintiff parent to show this and he failed to carry his burden.
Evident in the above (albeit
limited) case law is the traditional attitude of judicial
restraint regarding matters of pedagogy and student learning.
Judges hearing past complaints of educational malpractice
maintained their role of deciding questions of law, and resisted
an opportunity to decide what is or is not educationally sound
policy or practice. In this writer’s opinion, the case law
examples cited above demonstrate a reluctance on the part of
judges to recognize a student’s “failure to learn” as grounds
for granting remedy in a court of law. In essence, it was not
possible to fix blame using existing tort law and contract law
standards. Thus, absent a showing of deliberate, willful, or
wanton conduct on the part of school officials or classroom
teachers to deny a student access to a basic educational
opportunities, parents will not prevail in settling educational
accountability disputes through litigation.
Policy
Implications:
In the
current climate of accountability for student academic
progress, the policy implications are clear. It is vitally
important that school officials assume a proactive posture.
Therefore, it is recommended that the policies of a school
system clearly state that:
- the board,
administration, and staff are committed to providing every
student in the school system with equal access to a quality
academic education;
- the curriculum at
each school incorporates and is consistent with the basic
academic requirements articulated in the mandated statewide
standards of learning;
- all student’s are
regularly assessed and evaluated to determine their (1) levels
of mastery in the required academic subjects, (2) needs for
remedial help and assistance in each of the required academic
subjects, and (3) eligibility for participation in required
remedial programs;
- all parents are (1)
kept regularly informed of their child’s academic progress, (2)
treated as active and responsible partners with administrators
and classroom teachers in their child’s educational program, (3)
invited to actively participate (e.g., as tutors,
volunteers, readers) at school, and (4) encouraged to request
immediate help and early assistance for their children if and
when problems are evident;
- all classroom
teachers will receive regularly scheduled in-service training
and other professional assistance intended to develop and
improve their teaching methodologies and strategies, especially
in the required academic subjects; and
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accountability for student academic progress
(i.e., progress toward mastering the basic curriculum) is
an important item in evaluating the qualifications,
effectiveness, and productivity of every administrator and staff
member (especially classroom teachers), and is factored into
every personnel decision (e.g.,
recruitment, hiring, assignment, salary, non-renewal, and
dismissal).
Resources Cited
No Child Left Behind Act (P.L.
107-110), 20 U.S.C. 6301, et. seq. (2002)
Donohue v Copiaque Union Free
School District, 418 N.Y.S. 2d 375 (N.Y. App. 1979)
Peter W. v San Francisco Unified
School District, 131 Cal. Rptr. 854 (Cal. App. 1976)
Vogel v Maimonides Academy, 754 A.
2d 824 (Conn. App. 2000)
Tollett v Members of Orleans
Parish School Board, 782 So. 2d 681 (La. App. 4th
Cir. 2001)
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions expressed in this commentary are
those of the author.
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