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This file contains a Right To Education affirmative. It includes all previous materials released at Georgetown. Another wave will be produced during the second week at SDI.

To construct a 1AC, students should choose one or more modules to add to the Inequality Advantage stem. They may also choose to read the International Law Advantage. The Inequality stem and Solvency contention can be shortened if necessary.


1AC — Inequality Advantage (Stem)

Contention ( ): Inequality

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)


The 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 United 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

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 Reforms

In 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. n150

Parents 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. n152

The 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:


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.

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, 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."

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, 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 National 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.

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