Equality, Centralization, Community, and Governance in Contemporary Education Law

A response to Robert Garda, Searching for Equity Amid a System of Schools: The View from New Orleans, 42 Fordham Urb. L.J. 613 (2015). Table of Contents Introduction I. Inclusion Equality Versus Outcome Equality II. Centralization Versus Decentralization III. Community and Governance IV. What Next for New Orleans? What Next for Education Law? Introduction Professor Garda tells a fascinating story about the rise of charter schools and the emerging system of schools in contemporary New Orleans, where, as of the 2014-2015 school year, one hundred percent of the public schools are charter schools. (1) This is an important story with national implications, not only for districts like the one I live in, Washington, D.C., where almost half of our public school students are now served by charter schools, (2) but also for districts with many fewer charter schools, or even none at all. And here is why: the story Professor Garda is telling is not really about charter schools, or about a tension between charter schools and typical public schools. The main issues he has identified run much deeper than that. These issues may be characterized as falling within three key themes: a tension between what Professor Garda calls "inclusion equality" (3) and "empowerment" (4) or "outcome equality"; (5) a tension between centralization and decentralization; and the relationship between community and governance structures. In this brief response, I take each of these themes in turn and situate them in the broader context of American education law; in so doing I argue that these are the core preoccupations of American education law writ large. To that extent. Professor Garda's characterization of the open questions confronting New Orleans somewhat oversimplifies matters. I close by connecting the road ahead for New Orleans with the path forward for education law more generally. In particular, I argue, any decision made by New Orleans (or any jurisdiction) to resolve these tensions is not likely to be permanent, even though education lawyers continually engage in efforts to resolve them. Moreover, the likely venues for such efforts, Professor Garda's Article teaches, include the state legislature, state agencies, and local governance structures. (6) By focusing on these venues, Professor Garda's Article underscores the need for contemporary legal education about education law to systematically address questions about law design and legislative and administrative processes, and not simply case law. I. Inclusion Equality Versus Outcome Equality Professor Garda traces the idea of inclusion equality back to Brown v. Board of Education, (7) saying that this is the core concern of the major education civil rights statutes that trace their genesis to Brown. (8) This view, he says, "demands that every school attempt to educate every type of student regardless of ability, aptitude, race, or socioeconomic status." (9) In contrast, he says, empowerment or outcome equality dates back to the Reagan-era report A Nation At Risk, (10) and is linked to choice because, so the theory went, empowering parents with choice would lead to improved student outcomes, regardless of the homogeneity of the students in a school." Professor Garda acknowledges that the current all-charter model in New Orleans is "as far from achieving the new equality as the old New Orleans schools were from achieving inclusion equality." (12) But he does not sufficiently acknowledge that the tension between these visions of equality is embedded in the civil rights statutes themselves, as well as in developments in traditional public schooling completely outside the context of charters. (13) Consider, for example, one of the sayings often associated with Brown: that one of the theories animating Brown was that "green follows white." (14) Under this theory, money and everything it could buy in terms of educational quality would follow from the integration of black and white students--not just that integration was the end goal. …