Unshackled: Freeing America’s K–12 Education System

Advance Praise for Unshackled

If we are to guarantee every child in America the right to rise, we must be willing to reimagine and rethink our education-delivery system. With this book, Bolick and Hardiman offer a path forward to a transformed system that would unlock opportunity and lifelong success for each and every child.

—Governor Jeb Bush, chair, Foundation for Excellence in Education

What would the K–12 school system look like if you started from scratch? Bolick and Hardiman point out that education wouldn’t be shackled by a bureaucratic and inefficient government monopoly on the service. The authors make a convincing and data-driven case to fund students directly instead of school systems.

—Corey DeAngelis, director of school choice, Reason Foundation

A jedi and a padawan of the school choice universe wrote a book. America’s kids will be better for it. I’ve known Clint for almost twenty years and Kate for about two. Clint has changed the world a lot and I expect the same from Kate. This book is, I hope, just the first step in a long-standing and profound collaboration.

—Derrell Bradford, executive vice president, 50CAN

UNSHACKLED

UNSHACKLED

FREEING AMERICA’S K–12 EDUCATION SYSTEM

Clint Bolick and Kate J. Hardiman

HOOVER INSTITUTION PRESS

STANFORD UNIVERSITY     STANFORD, CALIFORNIA

hoover.org

With its eminent scholars and world-renowned library and archives, the Hoover Institution seeks to improve the human condition by advancing ideas that promote economic opportunity and prosperity, while securing and safeguarding peace for America and all mankind. The views expressed in its publications are entirely those of the authors and do not necessarily reflect the views of the staff, officers, or Board of Overseers of the Hoover Institution.

Hoover Institution Press Publication No. 718

Hoover Institution at Leland Stanford Junior University,

Stanford, California 94305-6003

Copyright © 2020 by the Board of Trustees of the Leland Stanford Junior University

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Library of Congress Control Number: 2020944236

ISBN 978-0-8179-2445-4 (pbk)

ISBN 978-0-8179-2446-1 (epub)

ISBN 978-0-8179-2447-8 (mobi)

ISBN 978-0-8179-2448-5 (PDF)

For my granddaughter Madelyn, and her future.—CB

To my former students, for their daily display of faith and perseverance. May we create a better education system for your children.—KJH

Contents

Preface by Clint Bolick

CHAPTER 1: Reimagining American Public Education

CHAPTER 2: America’s Dismal School System

CHAPTER 3: Eliminating the Middleman

CHAPTER 4: Decentralizing Education

CHAPTER 5: Hiring and Retaining Great Teachers—and Paying Them (Much) More

CHAPTER 6: Toward an Unshackled System

CHAPTER 7: The Technology Revolution in Learning

CHAPTER 8: Allocating Resources Effectively, Enabling Innovative Models

CHAPTER 9: The Legal Terrain

CHAPTER 10: A Model for Building the Future

Notes

About the Authors

Index

Preface

Clint Bolick

Why is a judge coauthoring a book about education reform?

My work on this book was not part of my day job, of course, but rather through my affiliation as a research fellow with the Hoover Institution, which provides a valuable outlet for writing and speaking on important issues. Most of those efforts are focused on law, but this book is not.

Like many lawyers—I would venture to guess, an ever-increasing number—I started out teaching. From my earliest memories, I always wanted to be a teacher. And in college, I set out to do exactly that. As a student at Drew University in New Jersey, I enrolled in a reciprocal teacher-training program at the nearby College of St. Elizabeth, a women’s Catholic college, where for most of my time I was the only male student. It was the first time I had ever set foot in a Catholic institution of any kind.

Through that program, I interned and student-taught at the high school and middle school levels. My internship in an inner-city high school was transformative. Growing up in a Newark suburb, my own public school academic experience was far from exemplary, but I gained the skills necessary to become the first person in my family to graduate from college.

But most of the low-income students who attended the school in which I interned would never have such opportunities. In fact, given the disorder that surrounded them, they were lucky if they survived the experience, much less graduated from high school and went on to college or productive livelihoods. That experience, I learned, was more the norm than the exception for economically disadvantaged youngsters who desperately need high-quality educational opportunities to succeed.

At the same time as I was interning and student teaching, I took a course at Drew in constitutional law. That, too, was transformative. Most inspiring, unsurprisingly, was Brown v. Board of Education. In that case, a passionate and determined lawyer named Thurgood Marshall and his talented and creative colleagues demanded an end to separate and unequal educational opportunities. And the United States Supreme Court proclaimed that, henceforth, educational opportunities would be provided to all students on equal terms.

My tandem experiences as a student teacher and in constitutional law provided me with two insights. First, that although decades had passed since Brown, America’s education system was still largely separate and unequal, startlingly deficient in providing high-quality opportunities to children who most need them. Second, following Thurgood Marshall’s inspiration, that I could accomplish more to expand those opportunities in the courtroom than in the classroom.

Fortunately, I had the tremendous opportunity to work as a public interest litigator and to help defend the nation’s first inner-city school voucher program in Milwaukee in the early 1990s. Other legal battles followed, including defending a scholarship tax credit in the court in which I am honored to now serve (I certainly never imagined that when I first argued there!). Those battles culminated in the landmark 2003 Supreme Court decision Zelman v. Simmons-Harris, which upheld the constitutionality of the Cleveland school voucher program. I recounted those twelve years of litigation in an earlier book, Voucher Wars: Waging the Legal Battle over School Choice.

One of those experiences echoes in recent events. On April 29, 1992, a colleague and I were in South-Central Los Angeles to meet with low-income parents who wanted to secure a better education for their children. Unfortunately, it was the same day as the acquittal of police officers who had beaten Rodney King. My colleague and I were among the first people attacked as riots broke out while we were driving to the meeting. Not fully apprehending the danger, and because parents had braved the disturbance to meet with us, we proceeded with the meeting. Afterward, we barely escaped with our lives as we navigated the violence to return safely to our downtown hotel. But the families could not leave, and despite our efforts in court, their children remained trapped in failing schools. That widespread protests against injustice have emerged again nearly thirty years later demonstrates how little of the needed systemic change we have accomplished.

During my litigation career, I was often opposite people of good faith who were equally committed to high-quality education but who believed that private school choice would harm public education. Although I strongly disagree and believe that the record abundantly demonstrates otherwise, I have always wanted to expand my focus to more fully encompass public school reform. After all, the vast majority of American children attend public schools, and indeed my own four kids have never spent a day in a private school. I was privileged to serve on three boards of innovative public charter schools: Basis Schools, Great Hearts Academies, and schools sponsored by the Challenge Foundation. But I have always wanted to join hands with those who desire to bring about reform and improvement in traditional public schools.

Over my decades as a lawyer, I have spoken on education issues at dozens of law schools across the country. Always there were one or more students whose paths to law school were similar to mine. Many of them are former public school teachers, often through programs like Teach for America. Although most of them came from affluent backgrounds, their teaching experiences in dangerous or appallingly low-performing schools opened their eyes and motivated them to seek change, some of them as lawyers. Whether they are liberal or conservative or somewhere in between, I feel great kinship with these reformers.

One of those talented young reformers is my coauthor, Kate Hardiman. When I first met Kate, she was a student at the University of Notre Dame and set on a career first as a teacher, then as a lawyer. She had also taken an influential class in education law and policy and wrote her senior thesis on the legality and morality of school choice programs, using the Indiana voucher program as a case study.

After graduation, Kate became a teaching fellow with the Alliance for Catholic Education and taught English in a Catholic inner-city high school in Chicago. In that position, Kate was able to experience the tremendous benefits of private, faith-based education for economically disadvantaged inner-city schoolchildren. While teaching, she also began writing in earnest on education policy issues for the Washington Examiner and other outlets. Now an evening student at Georgetown Law Center, Kate also works as a full-time legal fellow at Cooper & Kirk PLLC, a constitutional litigation firm in Washington, DC. Kate plans to devote her legal career to education reform. We need many more committed, talented, and energetic reformers like her.

In our conversations, Kate and I came to realize that no one had yet written a book presenting a comprehensive vision of education reform: not top-down, one-size-fits-all education but an environment where the talents of educators and principals can be unleashed to produce high-quality educational environments in the midst of abundant options. We decided to write that book, and in these pages we humbly present our vision. Although this is fully a collaborative effort, throughout the book we have interspersed personal comments reflecting our individual experiences.

Although I am now removed from direct involvement in public policy, my years as a judge have only strengthened my passion for education reform. Nearly every serious criminal case that comes before us involves young men who never had a chance. As a society we have finite influence over the lot into which children are born, but we do have great influence over whether and how they are educated. Both Kate and I, as well as many of you reading this book, have witnessed the soaring prospects that high-quality education can deliver, as well as the stultifying futures to which poor education too often consigns vulnerable children.

Judges rarely write books on public policy, owing perhaps to few of them coming from public-policy backgrounds. Some do, perhaps most notably Richard Posner on the US Court of Appeals for the Seventh Circuit, who has written on myriad topics ranging from capitalism to national emergencies to the Clinton impeachment. Justice William O. Douglas published books on environmental policy, Latin American politics, and global federalism. Recently, many state supreme court justices have spoken out on reforms they support in the criminal justice system. Though judges may comment on policy, we must be careful not to commit ourselves to positions on specific legal issues and must recuse ourselves from cases in which our impartiality might reasonably be questioned.

But we—judges, lawyers, and teachers alike—remain citizens, and all Americans are deeply impacted by our education system. All of us, regardless of our perspectives, have an important role to play in expanding educational opportunities. Our nation is deeply and bitterly divided over so many issues, not least education policy. Our nation’s children cannot afford for us to remain polarized.

In Unshackled, Kate Hardiman and I offer a hopeful vision of a transformed education system that empowers families, teachers, and others who have a stake in successful outcomes to have a much greater impact in providing high-quality educational opportunities. We fervently hope that everyone who reads this book will find some ideas worth considering, and that some will find many of them meritorious. Most of all, we hope the ideas we present will spark earnest conversation about systemic reform based on a central provocative question: What type of education system would we create if we were starting afresh today?

CHAPTER 1

Reimagining American Public Education

Take a moment for a thought experiment.

If you were creating the ideal American elementary and secondary education system from scratch, with absolutely no preconceptions derived from the current system and with the full range of technological tools at your disposal, what would it look like?

If you give this exercise even a modicum of thought, chances are that the model you come up with would look little like the ossified, monopolistic, monolithic, top-down, bureaucratic, command-and-control, hidebound, wasteful, inefficient, brick-and-mortar, one-size-fits-all, special-interest-dominated system to which most of America’s children are consigned.

Education is America’s great conundrum. Its structure and outcomes have largely remained the same since the early 1900s despite waves of reform and a rapidly evolving society. We are the greatest, freest, most productive nation in the world, yet our primary and secondary educational system is mediocre compared to those of other industrialized nations. Though there is seemingly little that anyone agrees on in American public life these days, the general consensus is (and has been for decades) that something is wrong with our public education system.

The best and brightest students from the entire globe flock to our nation’s colleges and universities, yet our K–12 schools are so feeble that most high school graduates need remedial courses when they get to college. We remain the most cutting-edge nation in terms of technological innovation, yet our educational institutions are largely untouched, and certainly untransformed, by the breathtaking advances that have profoundly affected and improved almost every other aspect of our lives. We spend more on K–12 education than almost every other nation, yet our fiercest international competitors produce far-better-educated students for less money. Our educational system produces only a fraction of the skilled workers needed for high-tech jobs. We cannot continue to compete effectively in a global economy if our educational system continues to produce such dismal results.

Our education system not only fails to reflect our national commitments; it rejects them.

We measure educational quality in terms of dollars spent rather than results obtained, with little accountability for the allocation of billions in taxpayer funds.

We believe in merit-based compensation, yet we pay teachers based largely on seniority, not for how much students learn.

We are averse to bureaucracies, yet we spend lavishly on administrators who contribute little to the educational enterprise, and they are paid far higher salaries than our best teachers.

We have well-intentioned philanthropic funders from the technology sector who invest in the stagnant status quo rather than in bringing disruptive innovation to the educational marketplace in ways that fueled their own entrepreneurial success.

We made a solemn commitment more than sixty years ago to provide equal educational opportunities for all American children regardless of race; yet despite enormous investments, the vast majority of students trapped in failing public schools are those who need education improvements the most, including low-income and minority schoolchildren.

We embrace choice and competition for virtually every important product and service in our lives, but we resist choice and competition for the service most central to our children’s future.

If someone who lived in the late 1800s were to teleport to the present day, that person would recognize almost nothing about life in America. Nothing, that is, except our schools, which have changed remarkably little in the last 125 years. Most students still attend the brick-and-mortar school assigned based on their zip code (though these schools are now far larger). They sit in rows focused (or not) on one teacher in the front of the classroom. The schools are organized into districts whose boundaries are usually unchanged, despite shifting demographics. That nineteenth-century factory model adequately served generations of American students (less so those who were segregated into inferior schools) through much of the twentieth century. Yet it works poorly for most children in the twenty-first century. Sadly, we are bound to that system by nostalgia, inertia, lack of imagination, and the political muscle of some of the nation’s most powerful special-interest groups.

Were we to loosen those bonds, we would enable our largely untapped capacity to deliver a personalized, high-quality education to every student. Education that reflects the values, abilities, needs, interests, and aspirations of children and their families. Education that harnesses our technological power and can be accessed in traditional settings, at home, or in a blended experience. Education that equips American students for the ever-evolving challenges that will determine our nation’s future freedom and prosperity on the world stage.

This book is primarily about the policy changes necessary to bring our educational system, perhaps kicking and screaming, into the twenty-first century. Although we highlight many effective educational models and innovations in the following chapters, we do not prescribe all of them for all students. We have had far too many prescriptions from self-styled experts who know what works, and we have wasted precious resources in pursuit of educational