It Ain’t Our Job 
By Martin Harris

It’s said, in both criticism and defense of the American legal system, that anyone can sue anyone else. There are exceptions; one is "sovereign immunity",  the modern description of the feudal rule that "the king can do no wrong", which has been adopted  for political safety and legal shelter by all levels of contemporary government (look at the recent events in Berkshire for an example). Another arises when a court declines to hear the case, which has just happened in a suit against the Feds by a handful of States (proudly led by Vermont, and in Vermont proudly led by now-retired Brandon school superintendent William Mathis) demanding and arguing on behalf of public education for –no surprise here-- more money.

He bases his argument on the Unfunded Mandates Reform Act of 1995, Public Law 104-4, which was adopted in 1995 to quell taxpayer negative response to a number of Federal demands that private citizens make public investments without reimbursement, for example that business owners re-build their existing facilities to meet new handicap access requirements. Now, the lawsuit aimed at the No Child Left Behind legislation of 2001, objects to the requirement that public education do a better job of public education, as measured in basic school subjects like reading and math by the annual National Assessment of Educational Progress tests.  Federal involvement in education comes as the string attached to Federal money for schools, maybe ten percent of typical budgets. Whether public schools could reject the money, cut the string, and teach as they wish is a legal question which hasn’t yet been legally argued, but there’s one example of private education already doing just that: Hillsdale College in Michigan. And, of course, there’s home schooling and non-public education, both small but growing sectors of the school-choice spectrum, and both of which typically produce students far more literate and numerate than their public school peers, as measured by SAT tests and in-college results.

The NAEP tests have been around since 1969, with their typically dismal student test score findings published every year in the National Digest of Educational Statistics. The scores in such subjects as math and reading have typically been in the mid-200’s ever since;  for example, Table 112 in the 2007 NDES covers the years 1971 to 2004  and shows that 4th graders went, in reading, from 208 to 219 (out of a possible 500), while 8th graders went from 255 to 259; and 11th graders went from 285 to –drumroll—285. These numbers equate to "proficiency" percentages in the low-20’s to high 40’s range; for example, Vermont 8th graders came in at 42% proficient (able to function at grade level) in 2007. No one in education cared much as long as the test scores stayed pretty much unreleased (to this day the Vermont NAEP scores aren’t posted on the public education website or published in annual school reports) to the taxpaying public, but that deliberate neglect changed with a key part of NCLB, requiring 1. that public schools get almost all of their students to "proficient" by 2014 and 2. that from 2002 on, each school demonstrate measurable Annual Yearly Progress, as measured by improvements in NAEP test score results, towards that goal. It hasn’t happened, for reasons (root causes, if you prefer) requiring a whole ‘nother column to outline, and scores have remained fairly stagnant,  but the lawsuit takes a whole ‘nother direction: it argues that nowhere in contemporary educator job-description is any actual requirement or expectation that teachers get any specific number or percentage of their students to "proficient", and that, therefore, the new and offensive NCLB requirement is really an unfunded mandate as prohibited by P.L. 104-4. In contrast to military education –if the student didn’t learn, it’s because the teacher didn’t teach—or private ed, with various modes of student evaluation of instructors, public educators are adamant in rejecting student achievement as an indicator of teacher competence. And, indeed, there are substantial sectors of the student body which can’t or won’t achieve "proficient" for reasons of native intelligence, cultural environment, or peer-conformance attitude which have been heavily discussed in the professional literature. In contrast, public education doctrine professes that all students are teachable.

Note that the lawsuit doesn’t argue that teachers couldn’t get all their students to "proficient" if they wanted to, even the seemingly intractable sub-groups now dragging overall test scores down; it argues that with more money, they could do just that. Without more money, it just isn’t possible to make the effort; with more money, it is. In the interim, public education apparently recognizes that it has a credibility problem similar to appliance producers saying to customers "don’t  expect even half of all your in-home devices to work as implied by our assurances of ‘excellence’ when sold"  and so all States but one –Nebraska—have purchased and deployed alternative tests, easier than NAEP,  on which higher percentages of students miraculously make "proficient". A recent lengthy Wall Street Journal article (30 Oct) describes how the feds are forcing correlation of such easier tests as NECAP with the national standard NAEP, to show just how much deception is underway, with implication, if not direct promise, that such devices won’t go unchallenged. You have to agree with the law-suit originators dismissing the judicial dismissal of their case: this argument isn’t over.

Martin Harris is a former Chairman of Citizens for Property Rights