Equality of Educational Opportunity Must Recognize Success of Student Outcomes – Testimony to the U.S. Commission on Civil Rights

WRITTEN TESTIMONY FOR THE U.S. COMMISSION ON CIVIL RIGHTS

BRIEFING ON Public Education Funding Inequality in an Era of Increasing Concentration of Poverty and Resegregation

DOUG MESECAR

ADJUNCT SCHOLAR, LEXINGTON INSTITUTE

MAY 20, 2016

Equality of Educational Opportunity Must Recognize

Success of Student Outcomes

Addressing equality of educational opportunity and improving student outcomes requires innovation.  Two innovations in particular hold promise: personalized learning and performance-based funding.  The antecedent to innovation is funding, including levels and distribution.

“[E]ducation has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.” (Plyler v. Doe, 457 U.S. 202, 221 (1982))

Citing this particular case is an appropriate starting point for my testimony before this commission and its briefing on public education funding inequality.  In this case, the U.S. Supreme Court struck down a Texas statute denying funding for education to immigrant children not legally admitted into the country. Today, the question before us is not whether funding is being denied to certain groups of students, it is about unequal education funding and whether such inequality constitutes a denial of opportunity for certain students to become an informed, productive, and ethical citizenry upon which our society functions and our nation’s future manifests.

Denial of opportunity has as much to do with what can be achieved — the outcome — as it does with not providing the simple offer of an opportunity. Indeed, it is nonsensical to argue equality of opportunity if there is no reasonable possibility of a positive outcome. It is not possible to mandate or universally expect an equality of outcome, but it is possible to address the conditions necessary to the exercise of opportunity to achieve a positive outcome and therefore fulfill the promise of equality of opportunity.

The old proverb that if you give a man a fish, you feed him for a day, but if you teach a man to fish, you feed him for a lifetime is fitting to this discussion of equality of opportunity. To analogize in this context, the giving of fish is simply providing funding — it is not a true opportunity. Although it is a provision of something of value, it has no expectation of an actual outcome.  The teaching of how to fish is the real opportunity because it has an inherent promise of a positive outcome embedded within it, and thus is the equality of opportunity.  Providing fish without teaching how to fish is the inequality, not how many fish are given.

To that end, the question before us is whether the amount and distribution of funding provided for public education is the key to equality of opportunity, or is it how a given amount of funding is utilized?  The true test of equality of opportunity is the question of differences in how funding is spent, for it is the action taken with funding that is the critical measure, not the amount or distribution of funding divorced from any action taken.  So, a logical question is whether there is an amount or a distribution of funding necessary to take appropriate action to provide a reasonable expectation of positive outcome and therefore a true equality of opportunity?

A more recent U.S. Supreme Court case, Horne v. Flores (557 U.S. 433 (2009), provides some guidance on whether there are required amounts or distributions of education funding mandated by federal law to provide equal opportunity.  The Horne case addressed the “appropriate actions” required to overcome language barriers and to provide instruction for English Language Learners (ELL) in the Nogales Unified School District (Arizona) under the federal Equal Educational Opportunities Act (EEOA).  A district court had found that funding was inadequate, but in its ruling, the Supreme Court held that the state should not be evaluated on the narrow analysis of additional spending, but instead should focus on outcomes in the context of equal opportunity.

Justice Alito, writing for the majority, found that the EEOA hinges upon “the quality of education programming and services provided to students, not the amount of money spent on them.”  Moreover, the Supreme Court found that additional funding had indeed been provided for ELL instruction, which although it was not enough to satisfy the lower court, was not a violation of EEOA since “[t]he EEOA’s “appropriate action” requirement does not necessarily require a particular level of funding.”  In other words, a certain amount of funding is not mandated by the federal EEOA even if such amount is different for different groups of students.  The EEOA requires an examination of outcomes in relation to opportunity; here, the state was found to be providing enough funding for ELL instruction and that positive outcomes could — and were — being achieved, and thus there was no violation.

But what about Title VI of the Civil Rights Act of 1964, which protects people from discrimination based on race, color or national origin in programs or activities that receive Federal financial assistance? Title VI states that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. In the context of Horne and upon a review of U.S. Department of Justice statements, it is possible to conclude that disparities in funding caused by de facto conditions (i.e., local property taxes) and/or peculiarities in funding formulas not driven by de jure discrimination based on race, color or national origin, are not necessarily a violation of federal law or the Constitution.

It is fair to say that Horne has set decisional parameters for other cases that would seek to require specific funding requirements for educational programs in order to produce equal opportunity.  Indeed, the court acknowledged that, “[A]ny educational program, including the “appropriate action” mandated by the EEOA, requires funding, but funding is simply a means, not the end.”  To return to the fish analogy, Horne is saying that providing fish is a first step, but the number of fish provided is not the key factor; fish must be present, but the methods by which you teach how to fish and the results of that teaching are the key criteria.

Funding is a necessary pre-condition to equality of opportunity, but it isn’t sufficient — in and of itself — to produce transformative results.  If not used well, all the money in the world will not produce the kinds of outcomes we so desperately need for all our nation’s students, or solve our long standing educational inequalities. It is what is done with education funding that will ultimately produce a more equal and successful educational system.

An amicus brief in Horne, filed by a number of notable education scholars in support of the state, said it well: “There is virtually no evidence that ordering an increase in funding by itself leads to a significant positive effect on student achievement. It is far more important for States to focus on structural reform and on how their money is spent than on the bottom line of the education budget. … States and school districts will have no incentive to make difficult choices if courts continue to make increased funding the centerpiece of their remedies.”

The counterfactual to the prevailing assumption that most minority-majority districts and/or districts with high numbers of low-income students receive less money and therefore are at a disadvantaged is instructive.  There are a number of districts that are minority-majority and/or have predominately low-income students that receive more funding than districts with majority-white and higher income students.  For example, take the local region, where Montgomery County Public Schools regularly rates among the top-performing districts in Maryland and nationally, while spending over $12 thousand per student per year, which is far less than the public school system in the District of Columbia, which spends nearly $16 thousand per student per year, but ranks much less favorably nationwide.

Although aggregate funding per pupil can be challenging to precisely calculate because of different assumptions made by different jurisdictions on what is included in per pupil amounts, the overall point is still valid that large amounts of education funding can still result in poor outcomes — a denial of equal opportunity — while smaller amounts of funding can also produce great outcomes.  What then, can a given amount of education funding be used for to produce the kind of outcomes that make equal educational opportunity a reality?

Personalized Learning

Post No Child Left Behind (NCLB), there is a return to greater state and local decision-making under the Every Student Succeeds Act (ESSA), the latest iteration of the 1965 Elementary and Secondary Education — a key pillar of federal civil rights efforts. This federal change, combined with increasing global competition and greater technology access and effectiveness, is enabling districts across the country to pursue more transformative innovation to close achievement gaps and other performance measures that clearly indicate important outcomes and therefore opportunity.

A growing trend that embraces those trends, pressures, and opportunities is personalized learning.  As sated previously, it is the action taken with funding that is critical, and the implementation of personalized learning is demonstrating great potential to improve academic outcomes, particularly for at-risk kids.

What does it mean to personalize learning? Personalized learning takes place in flexible learning environments, where learning is based on personal learner profiles and paths, and students move on when they demonstrate mastery. Blended learning (incorporating high quality digital tools with effective in-person teaching) is a key way to personalize learning.

Rather than being constrained by a ‘wait to fail’ model where students only get more attention and personalization as they fail to succeed, personalized learning cuts through the lost time and angst of students failing before they get the opportunity for success. The teacher is the most important factor in the student experience and achieving results, but technology tools can help teachers reach and teach more students successfully.

– Initial Research Findings on Student Outcomes

Indeed, the emerging evidence about blended learning is very encouraging, as academic research and case studies of specific schools show that students benefit when personalized blended learning is used effectively.  Making learning personal for each student is a key way to close the gap for at-risk students. One notable meta study published in 2013 from the well-respected SRI International says, “The advantage over face-to-face classes was significant in those studies contrasting blended learning with traditional face-to-face instruction.”

When implemented comprehensively and with fidelity, personalized blended learning has been shown to produce significant learning gains for all learners, especially at-risk students in poverty and/or learning English. There is new, promising research from the RAND Corporation, which found that “[t]he longer students experience personalized learning practices, the greater their growth in achievement.” The report, entitled “Continued Progress: Promising Evidence on Personalized Learning,” is an important contribution to understanding whether personalized learning is producing results and how it is being implemented.

The achievement outcomes identified in the RAND study are strong and indicative of the great potential for personalized blended learning to be transformative. Other worthy contributions to the research base come from the Michael and Susan Dell Foundation and the Christensen Institute, which looked at schools and districts pursuing personalized blended learning.

– What Personalized Learning Can Look Like

As the U.S. Commission on Civil Rights develops its report on public education funding and inequality, with recommendations on how all levels of government can better ensure our country’s students have an equal opportunity for a quality education regardless of race, national origin, or zip code, a powerful example of overcoming the odds stands tall in Middletown, NY.

“We cannot have high expectations without rich opportunities,” according to Superintendent Ken Eastwood, the innovative leader of a high-poverty, majority-minority district in Middletown, NY, which exemplifies an approach to addressing educational inequalities that has great promise.

The increasingly diverse array of students in Middletown’s — and the nation’s — classrooms reflect a changing society amidst a more globally competitive world. In an era of more challenging academic standards, higher expectations for all students, and greater distractions to learning, educators are faced with a very difficult dilemma in consistently and appropriately meeting the needs of all learners.

Middletown has also faced funding challenges as its per-pupil expenditure is approximately $1,000 below similarly situated districts.  The district filed a complaint with the U.S. Department of Education’s Office for Civil Rights because of its belief that the funding disparity was inappropriate and a violation of federal law.  As discussed later, utilizing performance-based funding to distribute an impactful amount of education funding would benefit Middletown and go a long way toward addressing it’s funding challenges by simplifying complicated funding formulas, making them more transparent and responsive to performance rather than political or legal maneuvering.

To address their funding situation, Middletown also sought and won a U.S. Department of Education Race to the Top District (RTT-D) grant. This RTT-D grant helped Middletown scale up already promising improvement strategies, most prominently personalized learning. Superintendent Eastwood knew he needed a strategy to address the huge spread of individual student needs in a scalable and systematic way. Personalized learning, enabled by the use of technology in a blended learning environment, became the clear path forward.

This economically challenged district is improving on important metrics — for example, 4-year high school graduation rates have increased from 51 to 80 percent over the past nine years, and three-fourths of students in Middletown’s blended learning program outperform their peers in non-blended classrooms in math.

Middletown, other districts, and public charter school networks like Aspire are showing that there is a way to produce significant academic outcomes for high poverty, minority students using personalized learning at scale and with different funding levels.  It is increasingly apparent that personalized blended learning can be a solution capable of producing outcomes that defy trends, close achievement gaps, and promote equality of opportunity. Personalized learning doesn’t necessarily require large new spending initiatives; what it does require are changes in how funds are used.  Pouring more money into existing activities that aren’t producing results is not a recipe for improving opportunity and outcomes for all students.

Performance-based Funding

In this era of uneven economic conditions and limited government resources, new thinking about how to fund public education, and for what activities, is critical.  The current system allocates revenue almost entirely upon student enrollment, which misaligns incentives for improving outcomes. Change is needed, for simply providing funding to schools does not produce results; providing funding to schools that produce results is potentially game-changing.

Funding education should not be solely based on student counts and notions of deficiency based on student characteristics; rather, education funding should also take into account outcomes achieved despite challenges. An innovative funding model gaining traction in several states is worth serious consideration.  Performance-based funding (PBF) is a method of funding social programs like education in which public education funding is directed to schools, organizations, and programs that produce better results than the status-quo.

Today, government budgets are almost exclusively designed to pay for inputs rather than producing results. PBF can provide a new approach to improving educational funding while addressing systemic inefficiency. It has gained traction in higher education and merits consideration in the context of improving K-12 education funding and results.  There is an emerging bipartisan consensus that it is no longer acceptable to throw good money after bad on ineffective government programs, because special interests manipulate government budgets to protect their interests regardless of actual results.

A number of states have been implementing PBF for various programs over the last several years.  Arizona began a statewide PBF program in 2013, called “Student Success Funding,” which expanded in 2014. Likewise, Michigan has been implementing a limited model since 2012. Pennsylvania took a slightly different approach, providing funding flexibility in exchange for performance-based outcomes. And Florida has had a long-standing funding model tied to its A-F grading system that provides additional funding based on student outcomes.

In Michigan, PBF is applied to new funding over and above existing funding schools are already receiving, or applied to existing funds already received. While these experiments are too new to make a statement about outcomes yet, they are worthy endeavors because they are additive; PBF is an incentive structure in addition to basic school and district funding.

– PBF in Federal Education Funding

Now the federal government is following their lead. In fact, ESSA includes significant innovation in two performance-based funding, or “pay-for-success,” authorities.  Pay-for-success is included as an option to fund activities under Title I, Part D of ESSA, which addresses the education of neglected and delinquent students, and also in a provision of Title IV.  These provisions are closely modeled on a bipartisan proposal originally put forward by Senators Hatch (R-Utah) and Bennet (D-Colo.).

Collectively, the combined funding for these two authorities enables over $300 million to potentially be used for innovative PBF initiatives.  Though relatively small, these provisions represent a watershed by their inclusion in the most important piece of federal education legislation.

Also in ESSA is Title I, which provides over $14 billion in support of the education of disadvantaged students, but has byzantine funding formulas that perpetuate a number of inequities, is incredibly opaque, and has not resulted in much tangible academic improvement.  Moving toward a more performance-based funding approach for Title I could be a revolution in improving academic outcomes for poor and minority students.

While the academic and administrative policies of Title I have been radically overhauled over the last decade, there has not been a similar focus on the equally important financial policy.  Title I is the single largest K-12 program that the federal government funds. At the core of Title I is a basic bargain: significant investment of federal funds for students in poverty in return for significantly improved outcomes for those students. Unfortunately, these outcomes have proven elusive.

While there have been changes on the margins of Title I formulas, there has not been a comprehensive rethinking of how federal funding is provided to states, districts, and schools like the pay-for-success funding authorities cited above,. This is a critical oversight given that Title I provides supplemental education funding to nearly 24 million students in more than half of all public schools, including 68 percent of elementary schools.  The current reauthorization — ESSA — missed a huge opportunity by not including any significant Title I funding formula improvements, particularly those that include a performance component.

Providing additional resources does not necessarily result in student success; moving from inputs to outputs by focusing on measurable achievement is absolutely essential for student success and our country’s prosperity. While some have suggested various tweaks to the Title I formulas, they all miss the basic point that funding should contain a performance component.  As policymakers look to the future of federal education funding, incorporating PBF into Title I could deliver long-term, positive results.

There are certainly tradeoffs is using PBF models, such as directing funding away from established, though less easily measured, programs; requiring new methods of oversight from governmental entities; or experiencing unproductive programs. Not every PBF program will be designed optimally or deliver anticipated outcomes. The question is not whether we can afford to undertake innovative new approaches, but whether we can afford not to.

Legislators of all stripes need to start making policy differently in order to achieve better outcomes. Instead of just funding the status quo, lawmakers should reward schools for both achievement AND improvement to promote classroom innovation and close persistent and egregiously large achievement gaps.

– New Jersey’s Education Funding Model

A useful example of the unclear connections between education funding and opportunities for children is New Jersey, a state with one of the highest education spending levels in the country.  Over the three decades since the 1985 Abbot v. Burke decision, court-dictated spending mandates have played a major role in shaping state education funding.

For all of the taxpayer money New Jersey spends on education, it is not efficiently spent and what it does buy in terms of academic outcomes is uneven and tenuous.  When looking at achievement across different economic, racial and achievement groups, New Jersey has some of the largest achievement gaps in the country, despite overall high aggregate achievement when averaging all student scores.  In other words, the high achievement in New Jersey is not equally distributed and is despite the performance of poor and minority students.  New Jersey needs to do more to ensure a child’s race or zip code is not the best predictor of academic achievement like promoting personalized learning.

The New Jersey Legislature, which spends more money on education than on any other government function, has always relied on increasing funds in the hopes that somehow this will lead to different, stronger outcomes. New Jersey schools spent an average of $17,250 to educate each student during the 2013-14 school year, based on federal Census data, ranking it in the top three states in the country.  That compares to the national average of approximately $11,000 per student.

Despite these impressive spending statistics, there are significant achievement gaps, which have persisted for some time.  Black, Latino and low-income students trail behind their white and more affluent peers in both reading and math proficiency levels.

In the most recent data available from the 2013 National Assessment of Educational Progress (NAEP), New Jersey’s achievement gaps continue to fester. In fourth-grade math, the percentage of black students scoring proficient or above is 37 percentage points behind their white peers. Latino students trail 31 percentage points behind their white peers. And on the eighth-grade reading assessment, black students are 30 percentage points behind their white peers.   Low-income students are 34 percentage points behind their non-low-income peers.

These inequities emerge in other metrics. While New Jersey’s overall high school graduation rates are strong, with 86% of students graduating on time, there are large gaps.  While 93% of white students graduated on time in New Jersey, only 75% of black students, 77% of Latino students and 75% of economically disadvantaged students graduated on time.  Similarly, when looking at state trends in comparison to some specific urban areas in New Jersey, disconcerting inequities emerge with on-time high school graduation rates in the most challenged school districts being dramatically lower. In Asbury Park, Trenton and Camden, fewer than 50% of students graduated on time in 2012. In Jersey City, Paterson and Newark, fewer than 70% of students made it to graduation in four years.

Addressing these long-standing and glaring gaps should be reason enough to re-examine how New Jersey could better leverage its nation-leading spending. The problem of misaligned incentives is a well-researched topic in numerous fields.  But it has not been a topic of deep research and reflection in education, where the misalignment between funding and performance is at best a drag on the system and student performance, and at worst, a fundamental flaw that ensures our schools will never improve sufficiently for the nation to live up to its founding ideals of equality and opportunity.

Conclusion

Is the annual expenditure on U.S. public elementary and secondary education  — $600+ billion, 5.2 percent of the nation’s GDP — enough or sustainable? Reasonable people can disagree, especially when considering the different federal, state, and local jurisdictions involved.  When viewed through the prism of achievement results, however, it seems increasing clear that this spending is likely not sustainable at the present level of opportunity and outcomes.  This $600 billion is certainly not distributed evenly, and there is not an equality of opportunity based on outcomes produced.

Allocating dollars based on educational results is gaining traction because of its potential to drive student performance higher in a scalable way that has system-level implications. Rewarding schools for both achievement and improvement (i.e., longitudinal growth) can promote innovation and achievement. PBF is a model that integrates easily with personalized learning approaches.

Personalized learning and performance-based funding are new, strategic directions in improving academic outcomes, funding schools, and ultimately, pursuing educational excellence and equality of opportunity. Perhaps, as decision-makers at all levels of government face increasingly difficult budget processes, more states will follow the lead of their peers in federal and state government by experimenting with and adopting more performance-based funding initiatives while encouraging personalized learning.