Berkeley La Raza Law Journal
Volume 24
Article 3
2014
No Child Left Behind: Why Race-Based
Achievement Goals Violate the Equal Protection
Clause
Ayriel Bland
Follow this and additional works at: http://scholarship.law.berkeley.edu/blrlj
Recommended Citation
Ayriel Bland, No Child Left Behind: Why Race-Based Achievement Goals Violate the Equal Protection Clause, 24 La Raza L.J. (2015).
Available at: http://scholarship.law.berkeley.edu/blrlj/vol24/iss1/3
Link to publisher version (DOI)
http://dx.doi.org/doi:10.15779/Z38X67H
This Article is brought to you for free and open access by the Law Journals and Related Materials at Berkeley Law Scholarship Repository. It has been
accepted for inclusion in Berkeley La Raza Law Journal by an authorized administrator of Berkeley Law Scholarship Repository. For more information,
please contact [email protected].
NO CHILD LEFT BEHIND: WHY RACEBASED ACHIEVEMENT GOALS VIOLATE
THE EQUAL PROTECTION CLAUSE
Ayriel Bland
INTRODUCTION
No Child Left Behind (NCLB) was passed in 2002 under President George
W. Bush with the goal of increasing reading and math proficiency for all children in
the United States by 2014. However, as time progressed, meeting this goal appeared
improbable. Many states reacted by using waivers to set race-based achievement
standards, differentiating proficiency goals among student subgroups,2 including
racial minorities. This note argues that race-based proficiency goals violate the Equal
Protection Clause of the Fourteenth Amendment.
While race-based achievement goals may serve a compelling state interest
in promoting educational proficiency, ultimately these goals are not narrowly
tailored to achieve that interest and thus fail strict scrutiny. In part, these race-based
goals are not narrowly tailored due to the potential negative psychological effects
they cause minorities, particularly African and Latino Americans. Race-based
standards act as state-approved stamps of inferiority on particular minority groups,
which will likely have detrimental effects on their self-esteem3 and performance on
4
standardized tests.
Part I provides a short history of NCLB, including some of the educational
problems Congress targeted and the states' methods of implementing NCLB.
Additionally, Part I explains how states have used waivers to escape their students'
inevitable failure to meet NCLB's complete proficiency and also discusses the rise of
race-based achievement goals by presenting arguments for and against these goals.
Part II argues that race-based goals violate the Equal Protection Clause because they
are not the narrowest means of achieving NCLB's proficiency requirements, which I
support with psychological studies on African-American students. Lastly, Part III
briefly introduces many equally-effective alternatives to race-based achievement
1. 20 U.S.C. § 6311 (b)(2)(F) (2006). "Each State shall establish a timeline for adequate
yearly progress [which] shall ensure that not later than 12 years after the end of the 2001-2002 school
year, all students in each group ... will meet or exceed the State's proficient level of academic
achievement on the State assessments." Id.; see also Michele McNeil, States Punch Reset Button With
at
available
1-2
(2012),
1,
8,
WK.
32
EDUC.
Waivers,
NCLB
http://www.edweek.org/ew/articles/2012/10/17/08waiver-ep.h32.html.
2. See McNeil, supra note 1, at 1-2. Subgroups include minorities, ESLs, and those with
disabilities for example. 20 U.S.C. § 6301(2) (noting that NCLB's statement of purpose includes "meeting
the educational needs of low-achieving children in our Nation's highest-poverty schools, limited English
proficient children, migratory children, children with disabilities, Indian children. . . ."); see also id. §
6311 (b)(2)(C)(v)(II)(aa)-(dd).
3. See Brown v. Board of Education, 347 U.S. 483, 494 (1952).
4. Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and
Performance,52 AM. PSYCHOL. 613, 613 (1997).
60
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
goals that do not violate the Equal Protections Clause.
I.
BACKGROUND
A. History of No Child Left Behind
Congress passed NCLB in 2002, resolving to increase reading and math
levels among all elementary and secondary school-aged students in the United
States. NCLB's stated goal included giving all children a "fair, equal, and
significant opportunity to obtain a high-quality education and reach, at a minimum,
proficiency on challenging State academic achievement standards and state academic
assessments." States were originally required to set standards for all students
regardless of subgroup to achieve 100 percent proficiency by 2014. Additionally
states were required to set challenging academic standards, annually test children,
and develop and implement a statewide accountability system in order to receive
federal funds. As a method of holding schools accountable, states set "Adequate
Yearly Progress" (AYP) measures as benchmarks for schools, indicating progress
toward complete proficiency. Pertinent parts of a state's AYP include "annual
measurable objectives" (AMOs) and require separate AMOs for (1) "all public
elementaryl2 school and secondary school achievement" and (2) a school's
subgroups. AMOs require that a "single minimum percentage of students" in each
group "meet or exceed" proficiency goals in order to achieve complete proficiency
by 2014. For example in California, AMOs include the percent of students that
must meet or exceed English or math tests as dictated by California tests (e.g.,
California Standards Tests and the California High School Exit Exam).14
If a school and its subgroups reached their AMOs, the school met its
AYP. However, if a school failed to meet its AYP, it was given what amounted to a
warning. If the same school failed two consecutive years it was "identified for
school improvement."' 6 Nevertheless, NCLB's 'safe harbor' provision allowed
schools or districts to escape sanctions if a particularsubgroup failed to reach its
5. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified as
amended 20 U.S.C. §§ 6301 et. seq. (2002) (reauthorizing the Elementary & Secondary Education Act)).
6. 20 U.S.C. § 6301.
7. Id. §§ 6311(b)(1)(B)-(C).
8. Id. §6311(b)(1).
9. Id. §6311(b)(3).
10. Id. § 6311(b)(2)(A).
11. Id. §§ 6311(b)(2)(B)C).
12. Id. §§ 6311(b)(2)(C)(v), (G) (emphasis added). Subgroups include economically
disadvantaged students, students from major racial and ethnic groups, students with disabilities, and
students with limited English proficiency. Id. at § 631 1(b)(2)(C)(v).
13. Id. § 6311 (b)(2)(G); see Richard C. Herra, Note, Policing State Testing Under No Child
Left Behind: EncouragingStudents with Disabilitiesto Blow the Whistle on Unscrupulous Educators, 80
S. CAL. L. REv. 1433, 1438-1439 (2007).
14. Annual
Measurable
Objective
(AMO),
EDSOURCE,
available
at
http://www.edsource.org/1068.html (last viewed Dec. 10, 2013). For instance, the AMO for English in
elementary schools in 2004-05 required "that 24.4% of its students. . . test proficient or above on the
California Standards Test in that subject." Id.
15. 20 U.S.C. § 6311 (b)(2)(I).
16. Id. § 6316(b)(1)(A).
2014]
NO CHILD LEFT BEHIND
61
AYP. 17 Put differently, a school could still achieve its AYP even if one of its
subgroups did not make its AMO, provided the subgroup made significant gains in
closing the achievement gap.
Initially, states unsuccessfully threatened lawsuits or adjusted academic
standards and scoring systems to avoid sanctions, and then implemented waivers to
achieve the same purpose.19 NCLB's proficiency goals unintentionally drove states
to lower testing standards20 or "backload" its largest AYP gains to later years. 2 '
Some scholars argued that NCLB granted states complete discretion in determining
the "content and rigor" of state assessments and standards, in turn determining
proficiency thresholds.22 However, reaching complete proficiency proved difficult
24
23.
and many states applied for waivers to "soften the blow" of NCLB requirements.
Waivers granted by the U.S. Department of Education allow states to disregard the
by
2014 complete proficiency requirement, instead holding states accountable
25
subgroup passing rates or by significant closures in achievement gaps.
B. Era of the NCLB Waiver
Currently, forty-two states, the District of Columbia, and Puerto Rico have
applied and are officially approved for waivers by the U.S. Secretary of Education.26
17. Id. § 6311(b)(2)(1)(i) (emphasis added).
18. See McNeil, supra note 1, at 4-5.
19. See Kristina Doan, No Child Left Behind Waivers: A Lesson in FederalFlexibility or
Regulatory Failure?,60 ADMIN. L. REv. 211, 214-215 (2008).
20. Matthew D. Knepper, Comment, Shootingfor the Moon: The Innocence of the No Child
Left Behind Act's One Hundred Percent Proficiency Goal and Its Consequences, 53 ST. LOUIS L.J. 899,
913 (2009) (citing Michael Winerip, One Secret to Better Test Scores: Make State Reading Tests Easier,
N.Y. TIMES, Oct. 5, 2005, available at http://www.nytimes.com/2005/10/05/education/05education.htmi);
see also Thomas F. Risberg, Note, National Standards and Tests: The Worst Solution to America's
Education Problems ... Except for All the Others,79 GEO. WASH. L. REV. 890, 898 (2011).
21. Knepper, supra note 20, at 913 (citing Evan Stephenson, Evading the No Child Left
Behind Act: State Strategies and FederalComplicity, B.Y.U. EDUC. & L.J. 157, 158 (2006)). See also Ben
Wieder, No Child Left Behind: Not Dead Yet, THE PEW CHARITABLE TRUSTS,
http://www.pewstates.org/projects/stateline/headlines/no-child-left-behind-not-dead-yet-85899410770
(last viewed Jan. 22, 2013) (commenting on the debate around waivers and its difficulties); Damon T.
Hewitt, Policy Essay, Reauthorize, Revise, and Remember: Refocusing the No Child Left Behind Act to
Fulfill Brown's Promise, 30 YALE L. & POL'Y REV. 169, 175 (2011). When states backload, they "dela[y]
the inevitable need to demonstrate significant improvement . .. adopted in nearly half of all states," which
"has resulted in increasing numbers of schools failing to make [AYP] in recent years." Hewitt, supra, at
175. Thus, "sanctions [are triggered] under NCLB, and, therefore, schools are forced to endure NCLB's
strict accountability measures or seek waivers from NCLB's accountability provisions." Id.
22. Risberg, supra note 20, at 898 (citing Martha Derthick & Joshua M. Dunn, False
Premises: The Accountability Fetish in Education, 32 HARv. J.L. & PUB. POL'Y 1015, 1019-20 (2009);
James E. Ryan, The Perverse Incentives of the No Child Left Behind Act, 79 N.Y.U. L. REV. 932, 941-42
(2004)).
23. Doan, supra note 19, at 216.
24. Brandi M. Powell, Comment, Take the Money or Run?: The Dilemma of the No Child Left
Behind Act for State and Local Governments, 6 LoY. J. PUB. INT. L. 153, 154 (2005).
25. ESEA Flexibility, U.S. DEP'T OF EDUC., http://www2.ed.gov/policy/elsec/guidleseaflexibility/index.html (last visited Dec. 10, 2013). As of March 2014, Wyoming, Iowa, Illinois, and the
Bureau of Indian Education's waivers are currently pending. Id.
26. States Granted Waivers From No Child Left Behind Allowed to Reapply for Renewal for
2014 and 2015 School Years, U.S. DEP'T OF EDUC., http://www.ed.gov/news/press-releases/statesgranted-waivers-no-child-left-behind-allowed-reapply-renewal-2014-and-201 (last accessed Dec 10,
2013); see also John Martin & Nick Valencia, A Majority of States Set Different Benchmarks By Race,
62
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
Waivers gave states three options to reset their AMOs: (1) reduce by half the
achievement gap between at-risk subgroups and all students within six years, which
requires "setting different performance goals for different groups of students"; (2)
achieve complete proficiency for all subgroups by 2020; or $3) employ "other" statedesignated methods similarly rigorous to the first option.2 In the end, most states
created race-based achievement goals through the third option and designed their
own AMOs with "varying goals among [] subgroups." 28
For most states, waivers are a promising, flexible alternative to the failed
judicial challenges and Congressional attempts to amend NCLB.29 Moreover,
waivers allowed states to opt out of particular NCLB provisions while retaining
NCLB funds. 30 The current U.S. Secretary of Education, Arne Duncan, claimed that
waivers spotlighted the "invisible" one million students, ignored under NCLB, by
better tracking student performance. 3 ' At least in the short-term, waivers improved
states' implementation of NCLB.
When applying for waivers, states and local educational agencies (LEAs)
submit proposals describing how the waivers will "increase the quality of
instruction" and "improve the academic achievement" of students.32 Additionally,
states and LEAs must describe "specific, measureable educational goals" every
school year for all affected schools and LEAs, including "methods used to measure
[the annual progress] for meeting such goals and outcomes."33 States and LEAs must
also explain how schools would "continue to provide assistance to the same
populations" for those waived prorams.34 And, throughout a waiver's duration,
states must submit annual reports while LEAs submit a report at the end of the
second year, and every year thereafter.
Waivers issued in 2011 require that
students be proficient in math and reading by 2014.37
CNN, http://schoolsofthought.blogs.cnn.com/2012/10/17/a-majority-of-states-set-different-benchmarksby-race/ (last visited Jan. 22, 2013).
27. See McNeil, supra note 1, at 3. Notably, only Arizona is striving for 100 percent
proficiency by 2020. Id.
28. Id.
29. See Doan, supra note 19, at 214 ("Congress has resisted large-scale changes during the
past five years . .. [w]aivers also appear to be a safer alternative to expensive litigation that has a low
success rate."); see also Powell, supra note 24, at 178.
30. See generally 20 U.S.C. § 7861; see Doan, supra note 19, at 216 (allowing the Secretary
of Education to withhold funds); see also Wieder, supra note 21 (quoting Margaret Spellings, former U.S.
Department of Education Secretary under George W. Bush, on the ability of states to continue receiving
federal funds while opting out, "It's going to mean more opaque systems ... [tlhe public is going to be illserved by this.").
31. See Wieder, supra note 21 (quoting Arne Ducan, "Collectively, these states are capturing
more than I million additional students . . . [tihese are students that were literally invisible under No Child
Left Behind.").
32. 20 U.S.C. § 786 1(b)(1)(B)(i}-(ii).
33. Id. § 7861(b)(1)(C).
34. Id. § 7861(b)(1)(E).
35. Id. §7861(e)(2);
36. Id. § 7861 (e)(1).
37. NCLB
Waivers:
A
State-by-State
Breakdown,
EDUC.
WK.,
http://www.edweek.org/ew/section/infographics/nclbwaivers.htm
(Updated
February 25, 2014)
[hereinafter State-by-State Breakdown]. "The Obama administration announced in 2011 it would award
waivers under the No Child Left Behind Act to states that agreed to adopt certain education ideas, such as
teacher evaluations tied to student test scores. In exchange, states would get flexibility from some of the
core tenets of the law, such as that 100 percent of students be proficient in math and reading by 2014.".Id.
NO CHILD LEFT BEHIND
2014]
63
Waivers are problematic precisely because they are not long-term
solutions. Some commentators argue that waivers "undermine the progress ...
made toward accountability" by failing to improve the implementation of NCLB
itself.39 This note develops an altogether different critique: waivers act as a gateway
for racial discrimination, allowing states to set different, race-based achievement
goals between students, and in turn signal that African Americans and Latinos are
inferior or less-capable learners.
C.
The Recent Advent of Race-Based Achievement Goals
Racial classifications in schools are not new: they have been used both
successfully and unsuccessfully and are reviewed by courts on a case-by-case
manner. Historically, the most well-known case on the use of racial classifications in
education is Brown v. Board of Education.40 In Brown, the Supreme Court
unanimously held racial discrimination in public education unconstitutional,
concluding once and for all that separate was not equal.41 Brown's most profound
(and perhaps most debated) insight was segregation's psychological impact on Black
students, "generat[ing] a feeling of inferiority as to their status ... that may affect
their hearts and minds in a way unlikely ever to be undone." 42 In the recent judicial
era, the Court tackled the use of racial classifications in higher education cases like
Grutter v. Bollinger,43 Gratz v. Bollinger,44 Fisherv. Texas, and in the hotly debated
elementary school decision Parents Involved in Community School. v. Seattle School
District No. 1.45 In the spirit of Brown, fervently scrutinizing race-based academic
goals is necessary as they potentially carry a similar sting of 'racial inferiority.'
In October 2012, Florida became the most recent state coming under fire for
implementin race-based academic goals, stirring up a hotbed of national
controversy. For example, by 2018, Florida will require 74 percent of AfricanAmerican, 88 percent of Caucasian, 81 percent of Hispanic, and 90 percent of Asian
students to be proficient in math and reading. 47 Florida is only one of many states
following this trend. In total, as of March 2013, twenty-three states approved for
38. See Doan, supra note 19, at 223; see also Wieder, supra note 21 (noting that the current
Secretary of the U.S. Department of Education recognizes waivers as a temporary fix).
39. See Powell, supra note 24, at 179 (citing No Child Left Behind Is Flexible, Comm. on
Educ. and the Workforce (Oct. 7, 2004) (chaired by John Boehner), available at
http://archives.republicans.edlabor.house.gov/archive/issues/109th/education/nclb/nclbflexible.htm).
40. 347 U.S. 483 (1952).
41. Id. at 495.
42. Id. at 494.
43. 539 U.S. 306, 326 (2003). The Supreme Court narrowed Grutter's application in Fisher v.
University of Texas, 133 S. Ct. 2411, 2419-2420 (2013). In Fisher, the Court noted that no judicial
deference is afforded to "the means chosen by the University to attain diversity [as] narrowly tailored to"
the schools' goal for diversity. Fisher, 133 S.Ct.at 2420. Moreover, universities using race in the
admissions process must prove that the use of race is "necessary," and the Court will consider "whether a
university could achieve sufficient diversity without using racial classifications." Id.
44. 539 U.S. 244, 270 (2003).
45. 551 U.S. 701 (2007).
46. See Martin & Valencia, supra note 26; Soni Sangha, Debate Erupts Over Florida RaceLATINO,
NEWS
Fox
Goals,
Achievement
Based
http://latino.foxnews.com/latino/lifestyle/2012/10/17/debate-erupts-over-florida-race-based-achievementgoals/ (last visited Jan. 22, 2013).
47. See Martin & Valencia, supra note 26.
64
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
waivers, including Florida and the District of Columbia, use race-based achievement
goals. 48 Only twelve states maintain the same target for all students.49
1. Arguments in Favor of Race-Based Achievement Goals
Some supporters argue that race-based achievement goals realistically
address the achievement gaps between ethnic groups, mainly between African
Americans and others.so A persistent achievement gap exists between African
American students and their White counterparts.5 ' Through the use of race-based
goals, states can take an "honest look" at the different starting points among
students. For example, since NCLB's conception, many educators incorrectly
assumed that all children began from the same place educationally.5 3 States should
have the option of exploiting the inherent flexibility of waivers in order to eliminate
the achievement gap.
Proponents argue that race-based proficiency goals help struggling
minorities by holding school districts accountable, requiring schools to accelerate
academic progress without decreasing expectations for minorities. 54 Although the
rates at which students reach proficiency varies, the end goal for each student is the
same: complete proficiency.
The result, not the means, is what matters.
48. See Michele McNeil, NBC News Tackles Race-Based Goals in States' NCLB Waiver
Plans,
EDUC.
WK.,
http://blogs.edweek.org/edweek/campaign-k12/2013/03/NBCNews tackles racegoals in NCLB waivers.html (last updated Mar. 6, 2013) (see
interactive map). States using race-based goals include: Delaware, Washington, Wisconsin, Arkansas,
Indiana, Kentucky, Georgia, Tennessee, Minnesota, Mississippi, New Jersey, North Carolina, the District
of Columbia, Maryland, Virginia, New York, Connecticut, Rhode Island, Utah, and South Dakota. Id.; see
also State-by-State Breakdown, supra note 37 (noting the status of states' waivers).
49. State-by-State Breakdown, supra note 37. Oregon, Arizona, Idaho, Ohio, Colorado,
Louisiana. Michigan, Missouri, Nevada, New Mexico, South Carolina, and Oklahoma (with Wisconsin
setting the same goal in 2017 for all different targets). Id.
50. See Martin & Valencia, supra note 26 (quoting Pam Stewart, Florida Department of
Education's commissioner, ". . . [I]t is very important for us to look at where our students are. We have
very ambitious goals overall. If only our critics would look at how far we arc looking at moving subgroups
in that particular indicator.").
51. Joy Farmer, The No Child Left Behind Act: Will It Produce a New Breed of School
FinancingLitigation?, 38 COLUM. J.L. & Soc. PROBs. 443, 450-52 (2005); see also Daniel J. Losen,
Challenging Racial Disparities: The Promise and Pitfalls of the No Child Left Behind Act's RaceConscious Accountability, 47 How. L. J. 243, 253-54 (2004) (recognizing persistent achievement gaps
among Latinos and African Americans in reading and mathematics). The "tracking" tactics employed by
many schools exacerbate inequalities and cause increased segregation among race, gender, and national
origin axes. Losen, supra, at 253-54.
52. See Sangha, supra note 46 (quoting Daren Briscoe, spokesperson for the U.S. Department
of Education, "What Florida is being permitted to do is say 'let's take a look not at where we want to be
but let's take an honest look at where students are starting out from."').
53. See McNeil, supra note 1, at 1-2 (quoting Arne Duncan, Secretary of U.S Department of
Education, "The fact is, many educators didn't take NCLB seriously because it assumed all children
start from the same place and learn at the same rate. That's just not reality.").
54. Emily Richmond, Are Schools Setting Achievement Goals Based on a Student's Race?,
NAT'L J. (Nov. 20, 2012), http://www.nationaljoumal.com/thenextamerica/education/are-schools-settingachievement-goals-based-on-a-student-s-race-20121120 (quoting Amy Wilkins of Ed Trust, commenting
on the misunderstanding of race-based achievement goals, "[Race-based goals] hold school and districts
accountable for accelerating academic progress, not diminishing expectations for any individual students
or groups of students."). She also indicated that low income and students of color "get less of everything
that matters" and are being "poorly served by their schools." Id.
55. See McNeil, supra note 1, at 3 (quoting U.S. Secretary of Education, Ame Duncan,
"Personally, I am less concerned about performance targets and goals ... than I am about getting
NO CHILD LEFT BEHIND
2014]
65
Accordingly, because the result is what matters, race-based achievement goals can
help close the achievement gap by focusing resources on minorities.5 7 Moreover,
race-based goals are not permanent solutions but time-sensitive provisions that will
exist only for a designated period of time.
Proponents of race-based achievement goals also argue that these goals are
in line with a stated purpose of NCLB: closing the racial achievement gap. NCLB's
statement of purpose lists "closing the achievement gap between high- and lowperforming children, especially the achievement gaps between minority and
nonminority students ... and their more advantaged peers" as a legitimate goal. In
turn, race-conscious remedies like race-based academic goals are acceptable if they
"might help boost achievement of the under-performing group." 6 By setting
different standards for each race, policy makers recognize the histories of
61
discrimination and impacts upon particular ethnic groups like African Ameicans.
2.
Arguments Against Race-Based Achievement Goals
Opponents of race-based standards, however, argue that these goals
normalize the idea that certain students of color are incapable of learning at rates
similar to other children, and in turn are academically inferior.62 All children can
learn regardless of their ethnicity or background. Setting lower bars for certain
subgroups tells some children they must be inherently inferior. 63
results-and at the end of the day, the result that matters most is whether kids are learning and gaps
are narrowing. "). See also Remarks of U.S. Secretary of Education Arne Duncan at the Education
Trust Conference: Dispelling the Myth School Awards Dinner, U.S. DEP'T OF EDUC.,
http://www.ed.gov/news/speeches/remarks-us-secretary-education-arne-duncan-he-education-trustconference (last visited Jan. 22, 2013) (noting the goal for waivers include, "Protect[ing] children,
sett[ing] a high bar, and provid[ing] as much flexibility as possible.") [hereinafter Remarks of Arne
Duncan].
56. McNeil, supra note 1, at 3; see also Remarks of Arne Duncan, supra note 57 ("[T]he
result that matters most is whether kids are learning and [achievement] gaps are narrowing
dramatically.").
57. Sangha, supra note 46 (quoting Amy Wilkins, VP of the Education Trust, "To meet these
goals for Latino and African-American students, schools will have to finally and quite deliberately focus
more attention and resources on them.").
58. Id. Depending on the option states choose, plans created by waivers can last for five years.
John O'Connor, Explaining Florida's New Race-Based Achievement Goals, STATEIMPACT,
(last
http://stateimpact.npr.org/florida/2012/10/15/explaining-floridas-new-race-based-achievement-goals
visited Jan. 22, 2013).
59. 20 U.S.C. § 6301(3) (emphasis added).
60. See Losen, supra note 51, at 275. Losen makes no argument for NCLB's implementation
through race-based achievement goals, though he does advocate for NCLB's implantation using raceconscious methods. Id.
61. See Id. at 268. ("Without eradicating the conscious and unconscious racial discrimination
of adult educators and policymakers, the playing field in our schools will never be level for children of
color.").
62. See Richmond, supra note 54 (citing Carla O'Connor, Associate Professor at the School of
Education, University of Michigan, noting that because NCLB assumed all students would perform
comparably, race-based achievement goals "suggest not all kids have that ability, and we shouldn't even
try ... [o]nce we shift to different standards, we're institutionalizing the notion that's not even feasible.");
see also Martin & Valencia, supra note 26. But see McNeil, supra note 1, at 1-2 (reiterating a general
consensus that NCLB's 100 percent proficiency goal is "unworkable."). The "message has changed from
all students . .. achiev[ing] proficiency to one that is different, and seemingly more realistic: [a]cademic
goals can vary, even by subgroup, as long as states significantly close achievement gaps."). Id.
63. See McNeil, supra note 1, at 4 (quoting Nevada's superintendent of public instruction,
66
BERKELEY LA RAz4 LAWJOURNAL
[Vol. 24:59
Additionally, many commentators have noted that the real issue stems from
a lack of adequate resources. NCLB is insufficiently funded, a fact acknowledged
by President Barack Obama.65 As long as children of color are "over-represented in
inadequately funded schools," the lack of funding "contributes in critical ways to
racial disparities in achievement that could actually be exacerbated by NCLB." 66
Therefore, the focus should be on schools' lack of finances needed to meet NCLB's
standards. Many scholars suggest the best method of ensuring minorities meet their
school's AYP includes directing federal funds towards those students because state
revenue shortages have exacerbated insufficient funding.
A different group of critics see race-based standards as inherently
paradoxical. While formally setting lower standards for Blacks and Hispanics, in
reality, the plan effectively requires more improvement from these traditionally,
lower performing groups. 69 In Florida, for example, the percentage of Black students
who must score at or above grade level must increase 36 percent from the previous
year, translating into an overall 94.7 percent increase.70 Whereas, the percentage of
James W. Guthrie, "[W]e don't have any need to distinguish among the subgroups. They all have got to
come up ... [w]e have to push up our expectations for all students."). Nevada is a state where goals for
students are all the same. Id. (emphasis added).
64. See, e.g., Richmond, supra note 54 ("Minority students are not just scoring lower than
their white peers on high-stakes tests; they are also getting less access to the most qualified teachers, the
best schools, and the most expansive academic opportunities."); Joseph 0. Oluwole & Preston C. Green,
No Child Left Behind Act, Race, and Parents Involved, 5 HASTINGS RACE & POVERTY L.J. 271, 295
(2008) (noting the actual differences between funds promised by NCLB versus funding actually received);
Goodwin Liu, Interstate Inequality ofEducationalOpportunity, 81 N.Y.U. L. REv. 2044, 2061-63 (2006)
(stating that the differences in education vary among state due to student demographics and differences in
regional cost); Shannon K. McGovern, Note, A New Model for States as Laboratoriesfor Reform: How
Federalism Informs Education Policy, 86 N.Y.U.L. REV. 1519, 1546 (2011) (noting increased federal
funds will help with state inequalities, though not sufficient in of itself); Jamie Gullen, Colorblind
Education Reform: How Race-Neutral Policies Perpetuate Segregation and Why Voluntary Integration
Should be Put Back on the Reform Agenda, 15 U. PA. J.L. & Soc. CHANGE 251, 255 (2012) (noting the
achievement gap is the widest in high segregated and poverty stricken schools).
65. See McNeil, supra note 1, at 3-5 (quoting President Barack Obama, "But the problem
that [NCLB] had was, because it was under resourced . . . a lot of minority kids were coming into
school, already behind . . . [schools] weren't even coming close to meeting these standards.").
66. See Losen, supra note 51, at 285. See also Maurice R. Dyson, De Facto Segregation &
Group Blindness: Proposalsfor Narrow Tailoring Under A New Viable State Interest in PICS v. Seattle
School District, 77 UMKC L. REV. 697, 725 (2009). Other important school resources for race-conscious
methods to be effective include "availability or lack thereof of special instructional methodologies (e.g.,
accelerated learning, curriculum compacting and multi-grade grouping), lab opportunities (e.g., computer,
language, and science labs), or extracurricular performance activities." Id.
67. See Dyson, supra note 66, at 711 ("Thus, if race-conscious remedies are to be effective,
they cannot only target students of color, but also must attempt to allocate resources through the use of
race-conscious remedies to students of color in a more nuanced fashion . . ."). See also Martin & Valencia,
supra note 26 (quoting Dennis Parker of ACLU, "If the kids aren't getting the resources to address the
standards, you should address that, but to lower standards really sends a bad message to children of all
age . . . [t]his feels like resignation to me, saying we only expect so much for a certain kids' race or
ethnicity."); see also Sangha, supra note 46 (quoting Amy Wilkins, VP of the Education Trust, "To meet
these goals for Latino and African-American students, schools will have to finally and quite deliberately
focus more attention and resources on them.").
68. See, e.g., Farmer, supra note 51, at 454-55; Preston C. Green III et al., Race-Conscious
Funding Strategiesand School Finance, 16 B.U. PUB. INT. L. J. 39, 53 (2006) ("[T]he penalties contained
in the statute may finally convince state legislatures to adopt voluntarily race-conscious school funding
policies and to commission adequacy studies that include race variables."); Dyson, supra note 65, at 711.
69. See O'Connor,supra note 58.
70. Id. ("[T]he percentage of white students scoring at or above grade level on the [state
exam] must increase by 19 percen[t] . . . [t]hat's a 27.5 percent increase. The percentage of black students
NO CHILD LEFT BEHIND
2014]
67
White students who must score at or above grade level must increase 19 percent
from the previous year, which translates into an overall 27.5 percent increase. 7 In
turn, policy makers overlook the fact that race-based goals require more from lower
performing groups than from their higher performing counterparts in a short time
span, seemingly contradicting the underlying assumption(s) for setting lower goals
for Blacks and Latinos.72 Thus, race-based achievement goals are imperfect largely
because of how the numbers are presented. 7 3 And in order to meet these goals, within
the short designated period, and usually with fewer resources, schools will have to
"finally and quite deliberately focus more attention and resources" on Latino and
African-American students. However, a major concern is whether schools will
follow through and designate resources to achieve these proficiency goals.
II.
A.
LEGAL ANALYSIS
Strict Scrutiny in Race and Public Schools
The Supreme Court is extremely suspicious of any racial classification used
by the government: "all legal restrictions which curtail the civil rights of a single
racial group are immediately suspect." 75 However, "[t]hat is not to say that all such
76
restrictions are unconstitutional . . . [but] are subject .. . to the most rigid scrutiny."
Nor does it matter if these classifications are beneficial: they are always subject to
strict scrutiny.
As explained in Adarand v. Pena, in racial contexts, courts are required to
78
Skepticism
apply three principles: skepticism, consistency, and congruence.
examination;"79
searching
requires that any racial classification receive the "most
consistency deals with the appropriate standard of review under the Equal Protection
clause and that all racial classifications are "strictly scrutinized" 8 ; and finally,
congruence requires that the application of Equal Protection analris under the Fifth
Amendment applies similarly to the Fourteenth Amendment. Therefore, "any
person, of whatever race" has the "right to demand that any government actor" must
scoring at or above grade level on the [state exam] must increase by 36 percentage points to meet state
goals. That's a 94.7 percent increase.").
71. Id.
72. Id. One assumption though not conclusive, views minority students as unable to learn at
comparable rates to other students. See supra Part I.C. I.
73. O'Connor, supra note 58 ("[p]art of the problem is how the Department of Education
presented the numbers.").
74. Id. (quoting Amy Wilkins of the Education Trust).
75. Korematsu v. US, 323 U.S. 214, 217 (1944); see also Fullilove v. Klutznick, 448 U.S.
448, 491 (1980) (Stewart, J., dissenting ) ("Any official action that treats a person differently on account
of his race or ethnic origin is inherently suspect.").
76. Id.
77. Adarand Constructors v. Pena, 515 U.S. 200, 224 (1995) (citing Richmond v. J.A. Croson,
448 U.S. 469, 494 (1989) ("The standard of review under the Equal Protection Clause is not dependent on
the race of those burdened or benefited by a particular classification.")).
78. Id. at 223-34.
79. Id. at 223 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986) (plurality
opinion of Powell, J.)).
80. Id. at 224 (citing Croson, 488 U.S.at 494 and Regents of Univ. of Cal. v. Bakke, 438
U.S.265, 289-290 (1978)).
81. Id. (citing Buckley v. Valeo, 424 U.S. 1, 93 (1976)).
68
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
"justify any racial classification subjecting that person to unequal treatment under
strictest judicial scrutiny."82
The strictest standard of review requires race classifications to be narrowly
tailored to achieve the state's compelling interest.
Courts review benign
classifications under strict scrutiny because without a more searching judicial
inquiry, judges would have difficulty determining "what classifications are in fact
motivated by illegitimate notions of racial inferiority or simple racial politics."84 In
turn, strict scrutiny for "race-based measures" require that "the means chosen 'fit'
[the state's] compelling goal so closely that there is little or no possibility that the
motive for classification [is] illegitimate racial prejudice[s] or stereotype[s]." 85
Therefore, even if courts recognize states' race-based achievement goals as
benign or beneficial they are still subject to strict scrutiny. This Article argues that
race-based achievement goals fail strict scrutiny.
B.
Compelling State Interests and Racial Classificationin Public Schools
In the school setting, the Court has recognized two government interests as
compelling: (1) diversity and (2) remedying past discrimination. 86 Regarding the
first, diversity is a compelling interest only in higher education, i.e. undergraduate or
graduate schooling.87 For the second interest in elementary and secondary schools,
the state's harm must originate from segregation in order to satisfy remedying past
discrimination. Where the Court is willing to accept the interest of remedying past
discrimination, this is limited only to dejure segregation.89 The Court defined de jure
segregation as "'carry[ing] out a governmental policy to separate pupils in schools
solely on the basis of race,"' which does not include racial imbalance as a
consideration.90 Unlike de jure segregation, de facto segregation, or racial imbalance,
can result from such "innocent private decisions" as voluntary housing choices not
linked to unconstitutional means.91
For example, in Parents Involved v. Seattle School District, a defendant
school district failed to present evidence demonstrating Seattle districts were ever
segregated by law or subject to court-ordered desegregation decrees.92 According to
the Court, the districts that were initially segregated, and thus subject to court decree,
could no longer use the goal of remedying past discrimination as a viable interest
because these districts were no longer segregated. 93
82. Id. at 224.
83. Adarand v. Pena, 515 U.S. at 227.
84. Richmond v. Croson, 488 U.S. at 493.
85. Id.
86. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.1, 551 U.S. 701, 720-22
(2007) (citing Freeman v Pitts, 503 U.S. 467, 494 (1992) and Gruter,539 U.S. at 328).
87. Id.; Grutter,539 U.S. at 328.
88. Parents Involved, 551 U.S. at 721.
89. Id. at 749-50.
90. Id. 749-50 (citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 6 (1971) and
Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450, 452 (1968)).
91. Id. (citing Swann, 402 U.S. at 25-26, 31-32; Missouri v. Jenkins, 515 U.S. 70, 115-16
(1995) (Thomas, J., concurring); and Freeman, 503 U.S. at 494)).
92. Id. at 720.
93. Id.at720-21.
2014]
NO CHILD LEFTBEHIND
69
Using this precedent, states could argue that a compelling interest exists in
using race-based achievement goals to rectify past discrimination. 94 Ultimately,
however, such a conclusion depends highly on each school's racial history. If a
school district lacks a segregated history directly linked to de jure segregation, no
remedial measures are available to the district. As the Court noted, racial imbalance
95
through 'innocent private decisions' or de facto segregation is not unconstitutional.
Similarly, if a district once had a history of segregation, yet came to unitary status
either in the past or recently, such history is no longer relevant.96 Whether a district
under NCLB could use past discrimination as a compelling state interest depends
mainly on its own, particular desegregation history. Thus, it appears unlikely that
racial classifications within NCLB could stand for every state or LEA based on the
compelling interest of rectifying past racial discrimination.
C. Alternative Compelling State Interests that PotentiallyJustify Racial
Classifications
Let us now assume that remedying past discrimination does not qualify as a
compelling interest. States could argue that race-based achievement goals should be
considered a compelling interest in achieving NCLB's proficiency goals because of
the judicial recognition of education's importance, the fact of executive approval,
and the difficulties of implementing NCLB.
States could argue that educating America to meet NCLB's reading and
math proficiency is a compelling state interest. Existing case law does not recognize
education as a fundamental right. 97 However, many advocates urge for a federal right
to education.98 The Supreme Court in 1952 described public school as a "principal
instrument in awakening the child to cultural values, in preparing [children] for later
professional training, and in helping [children] to adjust normally to [their]
environment." 99 The Court in Brown viewed education as "perhaps the most
important function of state and local governments" as demonstrated by compulsory
education laws. oo Public education is so important because "some degree of
education is necessary to prepare citizens" to participate "effectively and
94. Diversity as a compelling interest will not be discussed further in this note because it is
unlikely a state would be able to successfully claim race-based achievement goals were instated to
increase diversity in elementary schools.
95. ParentsInvolved, 551 U.S. at 749-750.
96. Id. at 720-21.
97. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
98. See, e.g., Kimberly J. Robinson, The Case for a CollaborativeEnforcement Modelfor a
FederalRight to Education, 40 U.C. DAVIS L. REV. 1653, 1712-16 (2007) (arguing that Congress should
recognize a federal right to education through spending legislation); Note, A Right to Learn?: Improving
Educational Outcomes Through Substantive Due Process, 120 HARV. L. REV. 1323, 1341-44 (2007)
(arguing that a right to education exists through substantive due process); Michael Salerno, Note, Reading
Is Fundamental: Why the No Child Left Behind Act Necessitates Recognition of a Fundamental Right to
Education, 5 CARDozo PuB. L. POL'Y & ETHICS J. 509, 538-40 (2007) (arguing that NCLB makes
education a fundamental right through state-compliance schemes). But see Daniel Greenspahn, A
ConstitutionalRight to Learn: The Uncertain Allure of Making a FederalCase Out of Education, 59 S.C.
L. REV. 755, 756-57 (2008) (arguing that currently, it is not the time to argue for a federal right to
education, and instead advocates should work with the state court, legislators, and local citizens).
99. Brown, 347 U.S. at 493.
100. Id.
70
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
intelligently" in the United States' political process.ioi
Additionally, the Court has recognized public education as a vital
instrument for inculcating democratic values into America's youth which supports
the use of race-based goals to meet NCLB's academic goals.
Even if public
education is not a "right" granted by the Constitution, education has been recognized
as necessary for "sustaining our political and cultural heritage" of America, through
educating the youth.' 03
Moreover, I suggest a novel argument that the complex nature of NCLB's
implementation encourages the Court to view NCLB's proficiency goals as a
compelling state interest. Under the original NCLB Act, states were unable to
achieve complete proficiency by 2014. Since then, however, the U.S. Secretary of
Education 1 an agent of the Executive, has empowered states to utilize waivers'
flexibility to make necessary adjustments.
NCLB's difficulty lies within the structure in which it is embedded: dual
federalism.106 Depending on the scholar, NCLB has been described as a program
implemented through either "cooperative" or "coercive" federalism. 107 Cooperative
federalism focuses on the close relationship between state and federal
108
governments.
Under cooperative theory, local governments implement national
policy while simultaneously designing and implementing the program in a manner
addressing "the needs and identity" unique to the locality.109 By contrast, coercive
federalism focuses on the federal government's increased use of statutory mandates,
conditional grants, preemption and administrative regulations in order to compel
states' compliance with federal initiatives. 110 In turn, the federal government seeks
"congressional authority to directly control education." II Therefore, NCLB is a
federal policy caught between these two paradigms and this, in turn, explains the
difficulty of its effective application.112
101. Wisconsin v. Yoder, 406 U.S. 205, 221 (1972).
102. See Ambach v. Norwick, 441 U.S. 68, 76-77 (1979) (stating that public schools are
important "in the preparation of individuals for participation as citizens, and in the preservation of the
values on which our society rests."); Plyler v. Doe, 457 U.S. 202, 221 (1982) ("education has a
fundamental role in maintaining the fabric of society."); see also Brown, 347 U.S. at 493.
103. Plyler, 457 U.S. at 221-22.
104. 20 U.S.C. § 7861(a).
105. See Powell, supra note 24, at 154.
106. See Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV.
243, 246 (2005). "Dual federalism refers to the concept that the state and national governments enjoy
exclusive and non-overlapping spheres of authority." Id. (citing Robert Post, Federalism in the Taft Court
Era: Can It Be "Revived"?, 51 DUKE L.J. 1513, 1526-37 (2002)).
107. McGovern, supra note 64, at 1523-24.
108. See Schapiro, supra note 106, at 284.
109. Patricia E. Salkin, The Quiet Revolution and Federalism: Into the Future, 45 J.
MARSHALL L. REV. 253, 259 (2012).
110. See McGovern, supra note 64, at 1523 (citing Paul Posner, The Politics of Coercive
Federalism in the Bush Era, 37 PUBLIUs 390, 391 (2007)).
Ill. Robinson, supra note 98, at 1726; see also Daniel J. Elazar, Cooperative Federalism,in
COMPETITION AMONG STATES AND LOCAL GOVERNMENTS: EFFICIENCY AND EQUALITY IN AMERICAN
FEDERALISM 65, 79 (Daphne A. Kenyon & John Kincaid eds., 1991); Joseph F. Zimmerman, NationalState Relations: Cooperative Federalism in the Twentieth Century, 31:2, PUBLIUS, 15, 15, 17-18, 27
(Spring 2001).
112. See McGovern, supra note 64, at 1523-24; see also Kamina Aliya Pinder, Federal
Demandand Local Choice: Safeguarding the Notion of Federalismin Education Law and Policy, 39 J.L.
& EDUC. 1, 11-14 (2010) (noting that while NCLB is cooperative federalism, "most state and local
2014]
NO CHILD LEFTBEHIND
71
In conclusion, as an alternative to remedying past discrimination as a
compelling interest, which would likely be limited to a number of states, the Court's
recognition of educating students to meet NCLB's goals as a compelling state
interest would grant more states legal standing to defend their interests.
D. Race-BasedAchievement Goals are Not Narrowly Tailored
Even assuming the Supreme Court would find NCLB's proficiency goal to
be a compelling state interest, the use of race-based achievement goals is
unconstitutional because it is not narrowly tailored to implement NCLB. Under strict
scrutiny, racial classifications are upheld only if they are "narrowly tailored" to
achieve the compelling government interest.
The Court has noted that "context
matters" when reviewing race-based government action under the Equal Protection
Clause. 114
1. Race-Based Achievement Goals are Not Sufficiently Tailored
Proponents of race-based achievement oals should not confuse the U.S.
Department of Education's granting of waivers, which demonstrates the Executive
branch's approval of state action, as conferring constitutionality. Under the
separation of powers, the judiciary determines whether state and federal actions are
constitutional, not the Executive or the Legislature.m The U.S. Department of
Education's approval of states' waivers and use of race-based achievement goals,
while illustrating executive support, does not demonstrate constitutional legitimacy.
African and Latin American students are capable of learning at rates
comparable to any other race. While proponents define race-specific goals as
benevolent discrimination, Justice Clarence Thomas has trenchantly observed that
"[t]he Constitution does not, however, tolerate institutional devotion to the status
quo . . . when such devotion ripens into racial discrimination." 17 Moreover, "blacks
[and Latinos] can achieve in every avenue of American life without the meddling,"
in this case, of state legislatures. ' And unlike Justice Anthony Kennedy's
concurring opinion in Parents Involved where race-conscious remedies could avoid
strict scrutiny, these race-based achievement goals "lead to different treatment based
119
on . . . classification[s] that teach each student he or she is to be defined by race."
Based on these considerations, race-based achievement goals are not sufficiently
tailored to implement NCLB's proficiency requirements.
education 'officers would assert that NCLB is far more coercive than it is collaborative"); James S.
Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of
School Governance and Legal Reform, 28 N.Y.U. REV. L. & Soc. CHANGE 183 (2003).
113. See Croson, 488 U.S. at 493.
114. See Grutter, 539 U.S. at 327 (citing Gomillion v. Lightfoot, 364 U.S. 339, 343-344
(1960)).
115. See ESEA Flexibility, supra note 25 and accompanying text.
116. Marbury v. Madison, 5 U.S. 137, 177 (1803). "It is emphatically the province and duty of
the judicial department to say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on
the operation of each." Id.
117. Grutter,539 U.S. at 350 (Thomas, J., dissenting).
118. Id.
119. ParentsInvolved, 551 U.S. at 789.
72
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
Moreover, NCLB's reading and mathematics proficiency goals can be
implemented without using race-based academic standards. NCLB's difficulty stems
from the dual federalism structure in which it is embedded.120 By taking the best of
the dueling cooperative and coercive federalism paradigms,121 the federal
government should become more active in states' affairs regarding variances among
social, racial, and economic differences present within states' school-aged
122
population.
Similarly, differences in states' school-aged population exacerbate
financial funding problems.123 For example, states with low finances have greater
concentrations of low-income, minority, and English language learner students than
states that do not.124 Problems with "fiscal capacity and equality" are "mutually
reinforcing" because disadvantaged students require more funds for special services,
including "English-language teachers reduced-price lunches, and tutoring . .. than
revenue-poor states can provide."'12 In turn, alternative solutions that address
NCLB's underlying problems, like funding inequality, would more effectively
address the achievement gap without resorting to unconstitutional racial
classification. Thus, race based-achievement goals are not narrowly tailored to
achieve NCLB's proficiency goals.
Race-based achievement goals fail to address NCLB's underlying problems.
For instance, close to sixty years after Brown, public schools are more segregated
than before, but through de facto as opposed to de jure segregation.126 Segregation in
public schools is not a problem of the past. NCLB's school choice provision, which
supposedly allows students to transfer from low-performing to high-performing
schools, could theoretically serve as an indirect remedy to continued segregation
In reality, however, this has not been the case.128 To ensure such provisions are
implemented commentators suggest a right of action through judicial or
administrative proceedings,129 functioning similarly to the enforcement mechanisms
120. See Schapiro, supra note 106, at 246.
121. See supra text accompanying notes 105-110.
122. See McGovern, supra note 64, at 1545.
123. Id. at 1544-45 (noting that student performance is strongly dependent on a state's ability
to fundraise). There exists no "clear" federal cause of action addressing "interstate inequality." Id. at 1545.
See also Rodriguez, 411 U.S. at 37 (1973) (holding that education is not a fundamental right and
furthermore federal government should not closely scrutinize the state government's intrastate education
inequality).
124. See Liu, supra note 64, at 2061-62.
125. See McGovern, supra note 64, at 1545.
126. See Hewitt, supra note 21, at 191 (2011) (citing James E. Ryan, The Real Lessons of
School Desegregation,in FROM SCHOOLHOUSE TO COURTHOUSE: THE JUDICIARY'S ROLE IN AMERICAN
EDUCATION 73 (Joshua M. Dunn & Martin R. West eds., 2009)); see also Sabrina Zirkel & Nancy Cantor,
50 Years After Brown v. Board of Education: The Promise and Challenge of MulticulturalEducation, 60
J. SOC. SCI., 1, 5 (2004) (noting that back in 2000, due to the demographic changes indicated by the 2000
census, de facto segregation is less possible than it used to be).
127. Hewitt, supra note 21, at 191 (citing Richard Lee Colvin, Public School Choice: An
Overview, in LEAVING NO CHILD BEHIND?: OPTIONS FOR KIDS IN FAILING SCHOOLs 10, 13, (Frederick M.
Hess & Chester E. Finn, Jr., eds., 2004)).
128. See Dyson, supra 66, at 729-31 (discussing school districts' anxiety to "promot[e]"
transfers of "special-needs minority students to high-performing schools" despite their right to, from
schools "'in need of improvement."' Receiving schools have "incentive[s] to discourage at-risk minority
student transfers" as a means "to omit" them from their AYP).
129. See Hewitt, supra note 21, at 193 ("the reauthorized law should offer parents and
students the opportunity to enforce their rights to key provisions through administrative and/or judicial
proceedings, particularly in federal court.").
2014]
NO CHILD LEFT BEHIND
73
following Brown.' 30
Also, meaningful solutions to NCLB outside of unconstitutional race
classifications include increasing the federal government's role in the oversipht of
As a
state expenditures to prevent NCLB funds from being used inappropriately.
complement to this, the federal government could distribute federal funds to schools
in "inverse proportion" to their fiscal ability-most similarly to federal Medicaid
funds.132 Moreover, state education departments are limited in funding, so they are
forced to focus "compliance capacity at the expense [of] policy expertise;" while "a
strong federal role" is necessary, state co-operation is equally important.' 33 Again,
the complexities of NCLB are exacerbated by the role of our dual federalist system.
Otherwise, retaining effective educators is perhaps the most feasible
solution. The government can incentivize the best and brightest-those with a
"personal sense of responsibility and compassion"-to teach at low performing
schools through loan forgiveness programs.134 If not, continued efforts "by the
[socioeconomically] privileged to maintain their privilege" will continue to exist and
erect barriers against equal education.135 Having quality teachers is just as important.
Ineffective teachers not only decrease student achievement but also correlate with
increased dropout rates.136 Despite NCLB's provision calling for "highly qualified"
teachers, Congressional concessions to expand the definition has done more to hurt
137
than help low-income, minority communities.
And at a structural level, NCLB lacks a holistic approach to addressing
problems that typically fall outside the sphere of traditional education. Currently,
schools require "essential programs and services" which include "not only adequateschool based sources ... but also the full range of comprehensive services" like early
education, extended learning time, health services, and family support. 13 Again, this
130. Id.
131. See McGovern, supra note 64, at 1554; see generally Ryan, supra note 22, at 932
(discussing incentives for states to weaken test evaluations and superficially inflate test scores).
132. Goodwin Liu, National Citizenshipand Equality of EducationalOpportunity, 116 YALE
L.J. POCKET PART 145, 150 (2006). Goodwin Liu suggests a three method NCLB policy reform: (1)
Congressional approval for non-government organizations to develop national education standards and
provide incentives for voluntary adoption by states, (2) Congress should reform Title I to allocate aid
based on child poverty, adjusted for regional cost differences that are not proportional to each state's perpupil spending, and (3) federal government should finance interstate disparities and establish a national
baseline for educational opportunity that no state or district may fall below). Id.
133. See McGovern, supra note 64, at 1547 (citing Paul Manna, SCHOOL'S IN: FEDERALISM
AND THE NATIONAL EDUCATION AGENDA, 80, 107-08, 113 (2006)).
134. See Maurice R. Dyson, Are We Really Racing to the Top or Leaving Behind the Bottom?
Challenging Conventional Wisdom and Dismantling InstitutionalRepression, 40 WASH. U. J.L. & POL'Y
181, 227 (2012).
135. Id.
136. Id. at 193 (citing Spyros Konstantopoulos, Effects of Teachers on Minority and
DisadvantagedStudents'Achievement in the Early Grades, 110 ELEMENTARY SCH. J. 92, 93 (2009)).
137. See Hewitt, supra note 21, at 189 (citing Julian Vasquez Heilig et al., Alternative
Certificationand Teach For America: The Searchfor High Quality Teachers, 20 KAN. J.L. & PUB. POL'Y
388, 409-10 (2011) (noting that Congress' definition change of "highly qualified" teachers for states
potentially allows those who are not state certified to disproportionately impact minority, low-income, and
ESL and disabled students); see also Michael A. Rebell, The Right to Comprehensive Educational
Opportunity, 47 HARV. C.R.-C.L. L. REv. 47, 67-68, 116 (2012) (noting that "essential" resources for
low-income students include effective teachers, currently there is no federal standard and "highly qualified
teachers" are only required to pass minimum competency state certification exams).
138. See Rebell, supranote 137, at 73-74; see also Dyson, supra note 134, at 233.
74
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
requires schools to have the necessary resources.139 A more individualized and
tailored education that effectively addresses fundamental, broad-ranging needs of
underperforming and predominantly majority-minority schools is needed. 140
Improvements to standardized testing not only include removing "psychological
threats embedded in academic environments," but also removing "other barriers to
achievement including objective biases [and] the effects of poverty.,, 14 1
Finally, Congress needs to revise aspects of NCLB because it is plagued
with loopholes that undermine NCLB's attempt to address funding disparities
between schools within the same district. For instance, NCLB requires school
districts to equitably fund all public schools on an "intradistrict basis. 142NCLB
allows districts to apply for supplemental funds to address the educational needs of
schools with student concentrations living in poverty, but only if districts
demonstrate funding comparability between schools. 143 However, a 'comparability
loophole' in NCLB allows districts to maintain funding diSparities, which
undermines the very purpose of the comparability provision.
For example,
resource inequities between schools within the same district allows veteran teachers
paid at higher salaries to move to low-poverty schools, "leaving novice teachers"
who earn less to concentrate in high-poverty schools. 145
In conclusion, race-based achievement goals are not narrowly tailored as
demonstrated by case law precedent and because alternative solutions exist that more
effectively address the achievement gap. Moreover, race-based achievement goals
fail to address the true underlying problems of NCLB, mainly a lack of funding and
inequitable distribution of school resources.
2.
The Reply: Race-Based Achievement Goals are Narrowly
Tailored
Opponents of race-based achievement goals fail to consider the context
surrounding these goals and that their temporary nature makes them narrowly
tailored.
These goals are comparable to sunset provisions in race-conscious
139. See Hewitt, supra note 21, at 184 (stating that schools with fewer resources are unable to
retain the best teachers).
140. See Dyson, supra note 134, at 233.
141. See Gregory M. Walton & Steven J. Spencer, Latent Ability: Grades and Test Scores
Systematically Underestimate the Intellectual Ability of Negatively Stereotyped Students, 20 PSYCHOL.
SC., 1132, 1132-1139 (2009).
142. See Hewitt, supra note 21, at 184.
143. Id.
144. Id. at 184-85 (citing Marguerite Roza, What If We Closed the Title I Comparability
Loophole?, in ENSURING EQUAL OPPORTUNITY IN PUBLIC EDUCATION 59, 68-70 (Ctr. for Am. Progress
ed., 2008), http://www.americanprogress.org/issues/2008/06/pdf/comparability.pdf. Some of the worst
examples in the comparability loophole caused high-poverty schools to receive less funding than lowpoverty schools in the same district from state and local sources. Id. at 185; see also Comparabilityof
State and Local Expenditures Among Schools Within Districts:A Reportfrom the Study of School-Level
Expenditures, U.S. DEP'T OF EDUC., 3 (2011), http://www2.ed.gov/rschstat/eval/title-i/school-levelexpenditures/school-level-expenditures.pdf; Matt Hill, Funding Schools Equitably: Results-Based
Budgeting in the Oakland Unified School District, in ENSURING EQUAL OPPORTUNITY IN PUBLIC
EDUCATION 79, 86-87 (2008).
145. Hewitt, supra note 21, at 185. Accordingly, these practices add up to hundreds of
thousands of dollars at the district level. Id.; see also Roza, supra note 144, at 69-70.
146. See supra text accompanying notes 17-19.
NO CHILD LEFT BEHIND
2014]1
75
college admissions, increasing the probability that race-conscious methods will be
upheld.147 For example, race-conscious policy admissions consider the use of race in
admitting students into universities and colleges, but require that the use of race be
148
Thus, the
limited to a period of time, i.e., through the use of sunset provisions.
short span of these goals lends themselves to constitutionality.
Ultimately, states are "laboratories for experimentation" which must be able
"to devise various solutions where the best solution is far from clear."14 9 Therefore,
states must have the opportunity to test out these goals, if only for a limited time.
Many states applied for waivers to receive relief from the 2014 deadline because of
NCLB's challengingly complex nature. 0o The U.S. Department of Education
in turn demonstrating federal support for race-based
approved states' waivers,
goals as a necessary expedient. In sum, given the difficulty surrounding NCLB's
implementation, race-based achievement goals are narrowly tailored to effectuate
NCLB's proficiency goals.
3.
Not Narrowly Tailored: Reexamining the Potential Negative
Impact of Race-Based Achievement Goals from a Psychology
Perspective
However, even considering the proponents' counter arguments, race-based
achievement goals are still not narrowly tailored because they cause psychological
harm and potentially exacerbate the achievement gap.
Paralleling Brown, race-based achievement goals are unconstitutional as
evidenced by psychology studies of stereotype threat on African-American
students. 152 While acknowledging that states should be granted flexibility in
implementing NCLB, the question remains to what extent. Some proponents argue
results are more important than the means used to justify race-based achievement
goals.' 53 However, policy concerns dictate a closer look at the psychological and
emotional impacts of such decisions. A main concern for the Brown Court was racial
segregation's effect on African American students, with all nine Justices agreeing
that segregation caused inferiority complexes among Black youth.154 Likewise,
lowering achievement oals would have similar effects on African and Latin
American youth today.
In the field of psychology, scholars have established that stereotypes of
147. See Grutter, 539 U.S. at 342 (noting that sunset provisions in college admissions have an
end date terminating the racial policy). "Accordingly, race-conscious admissions policies must be limited
in time." Id.
148. Id. "In the context of higher education, the durational requirement can be met by sunset
provisions in race-conscious admissions policies and periodic reviews to determine whether racial
preferences are still necessary to achieve student body diversity."
149. United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring).
150. See supra text accompanying note 19.
151. See supra text accompanying note 19.
152. See Brown, 347 U.S. at 494.
153. See McNeil, supra note 1, at 3 (quoting U.S. Secretary of Education, Ame Duncan
"Personally, I am less concerned about performance targets and goals ... than I am about getting
results-and at the end of the day, the result that matters most is whether kids are learning and gaps
are narrowing.").
154. See supra text accompanying notes 41-42.
155. See supra Part I.C.2.
76
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
minority students can contribute to their poor academic performance.'s6 As
previously mentioned, Black students have consistently scored lower than their
White counterparts on standardized achievement tests. 157 The media perpetuates this
perception of Black students and in turn reinforces a view of them as lacking the
intellectual ability to perform and succeed on standardized tests.' 58 Once these
harmful images are released Black students can internalize them, adversely
impacting their school performance. 159
Stereotype threat can be defined broadly as the process by which members
of a "stigmatized group" come to associate themselves with negative stereotypes tied
to their group as a whole.160 Accordingly, these stigmatized groups become
concerned with giving "credence" to their group's negative stereotypes through poor
academic performance.
In other words, Black students experience "performancedisruptive apprehension" regarding the possibility of confirming "a negative racial
inferiority" either "in the eyes of others, [their] own eyes, or both at the same
time."'162 Research has indicated that even academically successful Black college
students can be affected by what is known as stereotype threat. 163 While stereotype
threat is neither the sole nor complete reason for Black students' lower test scores,
when framed in the context of state approved race-based achievement goals, it is
possible and reasonable to see the connection between them.
In the case of minority students like African Americans, stereotype threat
manifests itself in the classroom as well as test-taking settings and interferes with or
impedes their academic performance.165 GeneraIl , these are situations where a
stereotyped group's intellectual ability is relevant. In turn, Black students (or other
156. Steele, supra note 4, at 613 (revealing the effects of stereotypes of women and African
Americans); see generally Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual
Test PerformanceofAfrican Americans, 69 J. PERS. & SOC. PSYCHOL. 797 (1995).
157. See Steele, supranote 4, at 615; see also Oluwole, supra note 64, at 280-82.
158. Jones Kellow & Brett D. Jones, The Effects of Stereotypes on the Achievement Gap:
Reexamining the Academic Performance of African American High School Students, 34 J. BLACK
PSYCHOL. 94, 95 (2008).
159. See id. at 95.
160. Id. at 97; see also Patricia Devine, Stereotypes and Prejudice: Their Automatic and
Controlled Components, 56 J. PERS. & Soc. PSYCHOL. 5,12, 15 (1989) (noting that people who report
having no negative biases about African Americans can make prejudiced assumptions, which can only be
counteracted by active recognition on their parts).
161. Walton, supra note 141, at 1137 (comparing ACT, GPA scores of American women and
Black students with White European students from the seventh grade to the collegiate level).
162. Joshua Aronson et al., Reducing the Effects of Stereotype Threat on African American
College Students by Shaping Theories of Intelligence, 38 J. EXPERIMENTAL SOC. PSYCHOL. 113, 114
(2000).
163. Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of
Academically Successful African Americans, in THE BLACK-WHITE TEST SCORE GAP 401, 424
(Christopher Jenecks & Meredith Philips eds., 1999) (finding stereotype threat lowers the performance of
high-scoring, African-American college students on a difficult verbal test similar to the SAT in a
laboratory setting).
164. Paul R. Sackett et al., On Interpreting Stereotype Threat as Accounting for African
American-White Difference on Cognitive Tests, 59 AM. PSYCHOL. 7, 11 (2004) (cautioning against the
misinterpretation that stereotype threat accounts as a complete explanation for African American and
White differences on standardized testing and schooling).
165. See Steele, supra note 4, at 614; see also Kellow, supra note 158, at 95 ("[s]tereotypes
related to testing are especially important to consider in this age of accountability given the unprecedented
focus on standardized tests as a means to gauge student progress.").
166. See Aronson, supra note 162, at 160.
2014]
NO CHILD LEFT BEHIND
77
minorities similarly situated) bare an "extra cognitive9 and emotional burden" which
167
Regardless
is not applicable to people "for whom the stereotype does not apply."
of the socioeconomic status of a Black student, pervasive "'rumors of inferiority'
cause Black youth to internalize negative stereotypes, leading to self-fulfilling
prophecies of low performance.168 Therefore, stereotypes have actual effects on
minority students in the standardized testing arena.
Nevertheless, according to a 2008 study of American high school freshmen,
while Blacks reported lower expectations of success in comparison to their White
counterparts, they did not report lower self-perception in their ability to succeed on
standardized tests. This seems to suggest that while African-American students are
less optimistic regardin7 how well they will perform, there is less doubt concerning
As such, freshman African-American students are aware
their ability to succeed.
of the negative stereotypes and in turn these stereotypes affect their expectations of
success on standardized tests.171 It is interesting that, where test administrators
fostered an environment that removed stereotype threat African Americans
performed equal to if not better than their White counterparts.
Race-based achievement goals are problematic because they continue to
reinforce the perception that minorities like Blacks (and Latinos who are similarly
situated) are unable to learn at rates similar to others. 173 As mentioned previously,
once students begin to internalize these negative stereotypes test scores respond
accordingly. 1 74 While stereotype threat does not account for all the discrepancies
between Black and White students on standardized testing, it is a key piece of the
puzzle.' 7 5 It does not matter whether a student believes the stereotype to be true to be
affected by it, only that he or she be aware of it.176 Other pieces of the puzzle include
examining differences in educational and economic opportunities between these
167. Id.
168. See Steele, supra note 4, at 615, 617 (discussing other psychological studies which also
conclude that "rumors of inferiority" about Black students can become so pervasive that they are
internalized) (citing Jeff Howard & Ray Hammond, Rumors of Inferiority, NEW REPUBLIC Sept. 9, 1985,
at 17, 18-23). Minority student achievement gaps persist regardless of the socioeconomic differences of
Black students. Id. at 615; see also Kellow, supra note 158, at 116 (noting that stereotype threat triggered
by high-stakes, statewide standardized tests causes blacks to perform lower due to associations with
negative stereotypes in academic achievement).
169. See Kellow, supra note 158, at 112-113 (emphasis added). "African American students
reported lower proximal expectancies for success than White students (in the same condition) on the taskspecific item (related to their spatial ability), but did not report lower self-perceptions of ability and
expectancies for success in the domain of mathematics." Id. at 112.
170. Id. at 112-13.
171. Id. at 99, 113 (emphasis added). But see Sackett, supra note 164, at I1.
172. See Walton, supra note 141, at 1137 ("[W]e obtained evidence for latent ability. In
treatment conditions, African American students performed better at the mean level of prior performance
than European American students.").
173. See supra notes 42, 46 and accompanying text.
174. See supra Kellow, note 158, at 95.
175. See Sackett, supra note 164, at II (emphasis added) (expressing concem about the
misrepresentation of Claude Steele and Joshua Aronson's 1995 stereotype threat experiment). "[The
misrepresentation] has the potential to wrongly lead to the belief that there is less need for research and
intervention aimed at a broad range of potential contributing factors, such as differences in educational
and economic opportunities of African American and White youth.") Id.
176. See Aronson, supra note 162, at 114; see also Joshua Aronson et. al, When White Men
Can't Do Math: Necessary and Sufficient Factors in Stereotype Threat, 35 J. EXPERIMENTAL Soc.
PSYCHOL. 11-23 (1999).
78
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
students, or put differently, looking at the standardized testing discrepancies
comprehensively as opposed to through a narrow lens. 177
As viewed broadly from a consequentialist constitutional stance,'s setbacks
in the education of minorities translate into problems for society at large.' 79
Essentially, constitutional consequentialists argue that individuals are "never morally
required" to behave in a manner that "produces worse consequences."' 80 The goal is
to "secure a state of affairs that is superior according to principles . . . in our practice
[and] to alternatives.
Democratic principles of liberty and equality are policy
values "in the sense that debates over policy invoke them."' 82 Therefore a policy that
promotes equality and liberty "usually commends its adoption." 83
Returning to the statistics, states with large numbers of failing schools end
up paying for increased incarceration costs, higher crime rates, and less economic
growth for a nation needing greater skilled labor.184 In 2005 for example, Columbia
researchers determined that health-related losses for high school dropouts amounted
to $58 billion a year with annual tax losses exceeding $50 billion. A one percent
increase in high school graduation rates could reduce annual crime costs by $1.4
billion per year.186
With this information framing the discussion around NCLB, race-based
achievement goals have a strong potential to contribute to the stereotype threat that
minorities like African Americans experience in academic settings. Regardless of the
explanations given, states' use and the Executive branch's acceptance of race-based
achievement goals suggest that Blacks and Latinos cannot perform at standards
similar to Whites. States and the federal government have institutionalized secondrate expectations for Black and Latino students by setting lower reading and math
proficiency goals. In turn, the stereotype that these minorities are unable to
academically achieve is perpetuated. 87 These perpetuations become internalized and
a self-fulfilling prophecy of low performance results,' 88 contradicting the intended
177. See Sackett, supra note 164, at 11; see also Steele, supra note 4, at 616 (noting the
structural and cultural threats to Black students' academic success).
178. See Philip Pettit, Consequentialism and Respect for Persons, 100 ETHICS 116, 119
(1989). "The consequentialist holds that the proper way for an agent to respond to any values recognized
is to promote them: that is, in every choice to select the option with such prognoses that it is . . . the best
gamble with those values." Id.
179. Dyson, supra note 134, at 231-232.
180. Ronald, Dworkin, In Praise of Theory, 29 ARIZ. ST. L.J. 353, 364 (1997). There are
nuances to this theory that this note will not address.
18 1. See id.
182. Robert Cooter, Constitutional Consequentialism: Bargain Democracy Versus Median
Democracy, 3 THEORETICAL INQ. L. 1, 3 (2002).
183. See Cooter,supra note 182, at 3.
184. Dyson, supra note 134, at 231-232. Opponents of "restorative school finance" may end
up dealing with higher incarceration and crime rates and opponents of "educational tuition benefits" for
undocumented immigrants may result in less economic growth in a nation needing more specialized skills.
Id.
185. See Greenspahn, supra note 98, at 761 (citing Henry M. Levin & William H. Kilpatrick,
The Social Costs of Inadequate Education, in SUMMARY OF COLUMBIA UNIVERSITY TEACHERS COLLEGE
SYMPOSIUM ON THE SOCIAL COSTS OF INADEQUATE EDUCATION (Oct. 24-26, 2005) 2, 16-17 (2005),
mea.org/tef/pdf/social-costs-of-inadequate.pdf
186. Id.
187. Kellow, supra note 158, at 95.
188. See id.
2014]
NO CHILD LEFT BEHIND
79
purpose of race-based achievement goals: increasing reading proficiency in these
targeted groups.189 These race-based goals are unconstitutional under the Equal
Protection Clause because they are not narrowly tailored to achieve the compelling
state interest of achieving NCLB's complete educational proficiency.
III.
CONCLUSION
Authors have already commented that NCLB in its current state is
unconstitutional on grounds unrelated to the Equal Protection Clause. 90 Compliance
with NCLB causes states and schools to focus "obsessively" on annual student
testing and shortsighted goals.
While NCLB is a federal spending program,
making states' participation optional, Congress's threat of withholding funds
unconstitutionally coerces states to participate in NCLB.192 Additionally, because
federal funding is inadequate to comply with NCLB, the law unconstitutionally
directs each state's educational policy. And, in practice, NCLB has already proven
unworkable: states turned to waivers for flexibility in their attempts to satisfy
NCLB's proficiency goals.194 States continue to struggle with insufficient monetary
resources needed to satisfactorily implement NCLB.
However, I argue that states' use of race-based achievement goals are
unconstitutional because they are not sufficiently and narrowly tailored to satisfy
strict scrutiny. Race-based achievement goals fail to address the actual underlying
issues: lack of funding, inadequate teachers, and poorly written legislation, to name a
few. Studies in psychology demonstrating the problem of stereotype threat and its
effects on Black students further support the claim that race-based achievement goals
are not narrowly tailored. Moreover, race-based achievement goals can reasonably
contribute to stereotype threat. While stereotype threat is not the sole reason for
consistent achievement gaps between Black and White students, states and courts
189. See supra Part I.C.I.
190. This note will not debate the validity of these claims, nor mention all of them, but will
merely recite what some scholars have previously stated on the issue.
191. See Anthony Consiglio, Note and Comment, Nervous Laughter and the High Cost of
Equality: Renewing "No Child Left Behind" Will Safeguard a Vibrant Federalism and a Path Toward
Educational Excellence, 2009 BYU EDUC. & L. J. 365, 368 (2009); see also Diane Ravitch, Op-Ed., Get
Congress Out of the Classroom, N.Y. TIMES, Oct. 3, 2007, at A25; Charles R. Lawrence Ill, Who Is the
Child Left Behind?: The Racial Meaning of the New School Reform, 39 SUFFOLK U. L. REV. 699, 705
(2006) (quoting Thomas Sobol, "Educating children is like nurturing a garden; things need to be tended
steadily and slowly, and it doesn't help to pull them up by the roots and measure them too often.").
192. Consiglio, supra note 191, at 368.
193. Id. See also L. Darnell Weeden, Does the No Child Left Behind Law (NCLBA) Burden
the States as an Unfunded Mandate Under Federal Law?, 31 T. MARSHALL L. REv. 239 (2006); Gina
Austin, Note, Leaving Federalism Behind: How the No Child Left Behind Act Usurps States'Rights, 27 T.
JEFFERSON L. REv. 337 (2005); Michael D. Barolsky, Note, High Schools Are Not Highways: How Dole
Frees States from the Unconstitutional Coercion of No Child Left Behind, 76 GEO. WASH. L. REv. 725
(2008); Coulter M. Bump, Comment, Reviving the Coercion Test: A Proposal To Prevent Federal
Conditional Spending that Leaves Children Behind, 76 U. COLO. L. Rev. 521 (2005). But see generally
Regina R. Umpstead, The No Child Left Behind Act: Is It an Unfunded Mandate or a Promotion of
FederalEducationalIdeals?, 37 J.L. & EDUC. 193 (2008).
194. See supratext accompanying note 19.
195. See McGovern, supra note 64, at 1524; see generally Andrew G. Caffrey, Note, No
Ambiguity Left Behind: A Discussion of the ClearStatement Rule and the Unfunded Mandates Clause of
No Child Left Behind, 18 WM. & MARY BILL RTS. J. 1129 (2010) (noting states' arguments against NCLB
as an unfunded mandate).
80
BERKELEY LA RAZA LAWJOURNAL
[Vol. 24:59
should consider this threat as further support for why race-based goals are not
precisely tailored to implement NCLB's proficiency goals. Accordingly, race-based
achievement goals are unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment.