117A

AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

AUGUST 14-15, 2017

RESOLUTION

RESOLVED, That the American Bar Association urges all federal, state, local, tribal, and territorial governments to adopt and implement laws, policies, and other effective measures to provide every child with equal access to elementary and secondary public schools funded at levels adequate to ensure a high-quality education.

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117A

REPORT

Relationship to Existing ABA Resolutions

The ABA has consistently adopted policies to promote education of the populace as a keystone to a functioning democratic society. Specifically, in 2004, ABA resolution 113 supported uninterrupted educational access and stability for homeless and foster care youth. In 2007, the ABA passed resolution 114, which urged the amendment of the No Child Left Behind Act or adoption of other legislation to ensure all students receive a high-quality civics education. In 2009, the House of Delegates adopted Resolution 118A, which urged legislatures to pass laws ensuring that all youth have the right to a high-quality education. Resolution 110, passed in 2010, encourages all lawyers to consider it a fundamental responsibility to ensure all students experience high quality civic learning.

Through this resolution, the ABA will recognize that merely supporting a right to high quality education can be an empty promise without also ensuring that all children have access to adequately funded schools and other critical educational resources. The ABA’s existing policy and these measures, taken together, will help to make high-quality education a reality.

The U.S. Supreme Court’s Recognition of the Importance of Education

In its long-standing policies on the issue of education, the ABA is guided by the United States Supreme Court’s recognition of the importance of education to our democratic society:

It [education] is required in the performance of our most basic public responsibilities … It is the very foundation of good citizenship. Today, it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. Brown v. Bd. of Ed. Of Topeka, 347 U.S. 483, 493 (1954)

Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. Plyler v. Doe, 457 U.S. 202 (1982).

The inestimable toll of that deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacles it poses to individual achievement, make it most difficult to reconcile the cost and principle of status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. Id. at 222

The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. Id. at 223.

The ABA recognizes that delivery of a high-quality education is a core imperative of government. Equal access is perhaps the easiest issue to measure because it turns on actual availability of opportunity at the student level to the same high quality education across relevant jurisdictions.

The balance of this report suggests means to explore key issues surrounding educational delivery and funding.

Assessing the Adequacy of a Public Education System

Educational achievement in general, and particularly literacy, are strongly correlated with a number of positive outcomes. From higher earnings to better health to decreased crime rates, literacy comes with numerous significant benefits. See World Literacy Foundation, The Economic & Social Cost of Illiteracy: A Snapshot of Illiteracy in a Global Context (2015), available at https://worldliteracyfoundation.org/wp-content/uploads/2015/02/WLF-FINAL-ECONOMIC-REPORT.pdf. In pure economic terms, the estimated cost of illiteracy in the United States is $362 billion annually. Id. at 4. Literacy is not merely a public good; it is a prerequisite to the meaningful exercise of other constitutionally protected rights. The United States Supreme Court has recognized that there may be “some identifiable quantum of education [that] is a constitutionally protected prerequisite to the meaningful exercise of [other rights].” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 36 (1973). As set forth herein, a basic level of access to literacy is one such prerequisite to the meaningful exercise of constitutional rights, including but not limited to voting, freedom of the press, interstate travel, and notice of criminal conduct.

The necessary level of literacy required as a prerequisite to exercise such rights is not an amorphous or unattainable concept. Over the past 40 years, academic research has developed effective, widely accepted literacy assessments, as well as measures of the literacy levels required to engage in certain activities.

The Contemporary Academic Literature Provides Strong and Judiciable Tools for Measuring the Education Necessary for Citizens to Meaningfully Engage in Various Constitutional Rights

When Rodriguez was decided in 1973, educational assessment was in its infancy. The federal government had only just begun focusing on standardized testing, and it would be decades before school testing was widespread or regular (it is now both). See National Commission on Excellence in Education, A Nation at Risk: The Imperative for Educational Reform, at 24-25 (April 1983), available at http://202.120.223.158/download/b42c4210-e82c-4244-aa-4f-89d2b31344a.doc (1983 National Commission on Excellence study advocating for the expansion of standardized testing at the primary and secondary school levels); No Child Left Behind Act of 2001, Pub. L. 107-110 (requiring state-mandated expansion of standardized testing for primary school students); National Education Association, History of Standardized Testing in the United States, http://www.nea.org/home/66139.htm (describing standardized testing’s now-widespread application). Moreover, in 1973 there were few reliable methods for discerning how much education was required for students to understand a given piece of writing. As a consequence, the plaintiffs (and the Court) in Rodriguez could not identify what specific amount of education was necessary for students to meaningfully exercise their First Amendment rights or to effectively participate in the political process. Nor could the Rodriguez plaintiffs (or the Court) assess whether certain schools or districts were failing to meet that minimum bar. This is no longer the case.

In the mid-1970s, J. Peter Kincaid calibrated the “Flesch-Kincaid” reading grade level assessment to measure the grade-level of technical materials for the U.S. Navy. See William DuBay, The Principles of Readability, at 21 (August 2004). Since then, the Flesch-Kincaid method has been widely employed by legislative and regulatory bodies to ensure that important social documents are sufficiently readable. See, e.g., South Carolina Department of Insurance, Departmental Interpretation of Act No. 66 of 1999, https://online.doi.sc.gov/Eng/Public/Bulletins/Bulletin996.aspx (requiring that life insurance forms “clearly and conspicuously state in a manner that achieves a grade level score of no higher than seventh grade on the Flesch-Kincaid readability test); Fla. Stat. 627.4145 (prohibiting insurance policies from being written higher than a 12th grade Flesch-Kincaid reading level).

In the decades following the introduction of Flesch-Kincaid, numerous other metrics have arisen for assessing the difficulty of text. Probably the most widely used measure today is the Lexile Framework, which, similar to Flesch-Kincaid, is a linguistic-based algorithm that can be applied to any text. Notably, the Common Core Standards rely heavily on the Lexile Framework and, as a consequence, Lexile measures are used today at the school level in all 50 states. Lexile, Common Core Standards, https://www.lexile.com/using-lexile/lexile-measures-and-the-ccssi/. Moreover, 20 states report Lexile measures statewide on their year-end assessments. Id. Over half of all U.S. students participate in reading assessments and programs that make use of Lexile measures. Id.

Accordingly, widely accepted measures of educational achievement can be used to identify the adequacy of elementary and secondary educational programs for preparation of students for the meaningful opportunities to participate in society through employment and through exercise of rights guaranteed by the U.S. Constitution.

Funding Formulae Must Focus on Educational Value to Students

No one reading the various challenges to and defenses of public education funding can reasonably conclude that there is but one lawful system of funding public education systems (e.g., income-based taxes; real property taxes; state or local government funding); rather the various jurisdictions have funded and will continue to fund public education systems by different means of taxation. The merits and lawfulness of taxation and distribution methods are beyond the scope of this resolution. The adequacy of the selected funding method to achieve equal access high quality education with the jurisdiction is at the core of this resolution.

Adequacy is not a matter of simple math, such as dollars per student. Costs to deliver the same quality of education can differ widely across the country and even within a jurisdiction; rural and urban costs may differ greatly; a school district with older but satisfactory facilities may spend less than a school district that has had to build new facilities. While there are admitted complexities at the cost calculation level, the ABA believes the real question is whether an equally high quality education is in fact being delivered for each student, even if per student costs differ across a district, county or state. Simply, a school district spending $5,000 per student per year is not necessarily delivering a 25% better educational product than a neighboring district spending $4,000 per student. In fact, theoretically the lower cost district could be better. The issue is student proficiency, and whether state and local systems meet the applicable definition of high quality education. There is ample information to compare student achievement in state and local systems. If, regardless of cost per student, a system does not meet reasonable levels of student proficiency it fails, and it either needs to be redesigned, its management needs to be changed or its funding needs to be increased or reallocated so that it does meet requirements reliably.

As a practical matter for lawyers seeking to assess their local schools systems, the degree to which a system provides quality education can be determined in significant part by securing complete answers to certain key questions, including:

·  Is there a stable, supported and appropriately trained staff of administrators and educators?

·  Is instruction offered at both elementary and secondary school levels through curricula and teaching methods reasonably designed to achieve grade-level capability and knowledge goals for all children in the public education system?

·  Are there active compulsory processes in place and followed to evaluate attainment and need for intervention for each student having difficulty achieving or failing to achieve applicable grade-level goals?

·  Are there basic instructional materials provided to each pupil that are needed to achieve applicable standards?

·  Are there clean, healthy and safe physical conditions at all educational facilities?

·  Is there a teacher-student, student-student, administrator-teacher, parent-teacher-administrator and school-community environment within the public education system that is conducive to learning?

·  Does every child have equal access to developmentally appropriate opportunities?

·  Is there an effective process to evaluate the performance of the system in achieving capability and knowledge for every child and the above elements, as well as adequate resources for the design and implementation of corrective actions?

Conclusion

The ABA has repeatedly enacted policies underscoring lawyers’ indispensable role in assuring every child’s right to a high-quality education. Through personal involvement and engagement in their local public schools, whether as interested members of the community or members of school boards, lawyers can use readily available data to determine whether their state and local school districts are delivering quality education. Lawyers can identify, measure, and evaluate gaps, help experts develop plans to close them, and advocate privately and publicly for the needed reforms and funding, and, where necessary, seek the assistance of the judiciary.

Respectfully submitted,

Reginald M. Turner

Chair of the ABA Commission on the Lawyers’ Role in Assuring Every Child’s Right to a High-Quality Education

August 2017

GENERAL INFORMATION FORM

Submitting Entity: ABA Commission on the Lawyers’ Role in Assuring Every Child’s Right to a High-Quality Education

Submitted By: Reginald M. Turner, Chair, ABA Commission on the Lawyers’ Role in Assuring Every Child’s Right to a High-Quality Education

1.  Summary of Resolution(s). The recommendation urges all federal, state, local, tribal, and territorial governments to adopt and implement laws, policies, and other effective measures to assure every child equal access to high-quality, adequately funded elementary and secondary public education.

2.  Approval by Submitting Entity. The ABA Commission on the Lawyers’ Role in Assuring Every Child’s Right to a High-Quality Education approved the Resolution on April 20, 2017.

The Council of the Section of Civil Rights and Social Justice approved co-sponsorship of the Resolution during its Spring Meeting on Saturday, April 29, 2017.

The Commission on Youth at Risk approved co-sponsorship of the Resolution on April 24, 2017.

The Council of the Section of State and Local Government Law approved co-sponsorship of the Resolution during its Spring Meeting on Sunday, April 30, 2017.

On May 4, 2017, the Center on Children and the Law approved this Resolution.

3.  Has this or a similar resolution been submitted to the House or Board previously? No.

4.  What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? The ABA has consistently adopted policies to promote education of the populace as a keystone to a functioning democratic society. Specifically, in 2004, ABA Resolution 113 supported uninterrupted educational access and stability for homeless and foster care youth. In 2007, the ABA passed resolution 114, which urged the amendment of the No Child Left Behind Act or adoption of other legislation to ensure all students receive a high-quality civics education. In 2009, the House of Delegates adopted Resolution 118A, which urged legislatures to pass laws ensuring that all youth have the right to a high-quality education. Resolution 110, passed in 2010, encourages all lawyers to consider it a fundamental responsibility to ensure all students experience high quality civic learning.

5.  If this is a late report, what urgency exists which requires action at this meeting of the House? N/A

6.  Status of Legislation. (If applicable) None.