PEDAGOGICAL EVOLUTION:

THE CHARTER MODEL AND THE TRANSFORMATION OF PUBLIC EDUCATION

Ari Allen
December 17, 2010

I. Introduction
The American public education system is broken. In 2006, the average science
score for U.S. students ranked 17 among 30 OECD nations. The average mathematics
score ranked 24.1 Where we were once a leader, we are now a failure. We are not only
falling behind, we have been lapped. Unfortunately, we have not only failed ourselves,
but we have failed our children. Consequently, we are continually condemning our
nations future to failure which is inextricably intertwined with our childrens
development into constructive members of society.
There is a dual dilemma that arises when confronting the transformation of public
education. The goal is to both support disadvantaged students so that they have the tools
to fulfill their potential, while not compromising the need to challenge high-achieving
students. In a word, high-achievers should be allowed to soar, while the disadvantaged
should be taken under our wing and taught to fly.
When I began writing this paper, I was convinced that charter schools were the
answer to the failures plaguing American public education. I am still convinced that the
charter model can play a serious role in ensuring that we not only reform public
education, but that we transform it.
More importantly however, I have realized that before charter schools can
transform public education, the law must reform the implementation and transform the
administration of the charter model. This paper will explore: (A) the foundations of the
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1

Maria Glod, U.S. Teens Trail Peers Around World on Math-Science Test, Washington Post (December 5,
2007).

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charter model as a free-market approach to public education; (B) the critiques and
shortcomings of the current charter model; and (C) proposals to overcome the obstacles
necessary for the charter models success. For now, let us begin with the foundations of
the charter model.
II. Analysis
A. Foundations: The Charter Models Reliance on Free-Market Ideology
The charter model reflects market theory, in that it presumes diverse individual
preferences that are neglected in necessarily uniform public provision, because public
schools are shielded from market discipline and are not accountable to their consumers.2
In essence, it reflects a criticism of the public administration of education on the
assumption that public bureaucracies cannot innovate, whereas consumer choice and
competition between autonomous providers offer the opportunity and incentives to
innovate.3
Milton Friedman and Gary Becker, Nobel laureate economists have stated that
choice and competition would induce a more rapid rate of innovation into curriculum
and teaching.4 While most of the support for the choice movement has been found
among political conservatives (who generally resort to free-market solutions) and many
charter programs have been defeated by the teachers unions and the Democratic Party,5
even Bill Clinton declared that the right to choose will foster competition and
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2

H.J. Walberg, Market Theory of School Choice, Education Week, 19 (2000).

Christopher Lubienski, Innovation in Education Markets: Theory and Evidence on the Impact of
Competition and Choice in Charter Schools, American Educational Research Journal, 40:2, 398 (2003)
4
Milton Friedman, Economics and the Public Interest, New Brunswick, NJ: Rutgers University Press, 127
(1955).
5
See James Peyser, School Choice: When, Not If, 35 B.C. L. Rev. 619, 622 (1994).
3

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innovation.6 Furthermore, the use of charter schools in achieving innovative education

is of large importance in the No Child Left Behind Act.7 As such, the R&D potential is
an important part of any policy-oriented appraisal of the charter phenomenon.8
As such, states began implementing reforms to enable charters within their
jurisdiction. For example, Minnesota declared the purpose of charter schools in its
enabling law: (1) improve pupil learning; (2) increasing learning opportunities for
pupils; (3) encourage the use of different and innovating teaching methods.9
Meanwhile, Illinois sought the development of innovative and accountable teaching
techniques, in order to create more flexible pedagogical styles.10
Increased accountability is another important facet of the charter model, as
reflected in the Illinois enacting law. While charter schools receive considerably more
autonomy from state and local regulation in terms of student recruitment, curriculum,
budget and staffing, the schools must still propose an operating format and a set of
goals in their applications, and at the end of the charter period (typically five years), the
schools may be closed if they have not met their stated goals.11 Thus, accountability is
an additional benefit of the charter model approach, and can be compatible with
innovation because gauging accountability is based upon the schools specific stated

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6

Bill Clinton, State of the Union address (1997).

Lubienski, supra note 3, at 400.
8
Id. at 401.
9
Minn. Stat. 124d.10, Sub. 1 (2010).
10
105 ILCS 5, 27A, et seq. (2010).
11
Kevin Huffman, Charter Schools, Equal Protection Litigation, and the New School Reform Movement,
73 N.Y.U. L. Rev. 1290, 1290 (1998).
7

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goals. As one expert mentions, [a]ccordingly, the general notion is that charter schools
are both more autonomous and more accountable than other public schools.12 Indeed:
Supporters insist that the ultimate accountability the
threatened closure of the schools through a revoked charter
leads schools to focus on student achievement. They
argue that this is a market improvement from traditional
public schools, which have great difficulties firing
incompetent staff, let alone closing an entire school.13
For now, advocates point to the large number of charter schools with waitlists as
evidence of success and parent satisfaction.14
B. Shortcomings: Uniformity and the Achievement Gap
a. Risk-Averse Experimentation
One difficulty that many critics have pointed out is that the charter approach is
having counterintuitive outcomes namely, schools use their newfound autonomy to
emulate established practices found in successful schools.15 This is because parents are
seen as inherently conservative consumers.16 After all, parents dont want to use their
children as guinea pigs.17 As such, parental preferences constrain opportunities for
innovation.18
A secondary, but related problem, is identifying who the consumer is in an
education market. Is it the child, the parent, society-at-large?
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12

Huffman, supra note 11, at 1295.

Id. at 1295.
14
See Jeanne Allen, Testimony before Subcommittee on Early Childhood, Youth and Families, 1997 WL
14150772 (Sept. 16, 1997).
15
Lubienski, supra note 3, at 396.
16
Id. at 422.
17
Id. at 423.
18
Id. at 422.
13

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In education the identity of the consumera central role

in the economic cast of charactersis ambiguous and is
confounded by the production process. Students most
immediately consume education, but usually are not
themselves the customers choosing between options in an
education market system. Parents are the proxyconsumers in choosing for their children, buy they do not
consume in the sense of enjoying the individualized
capital effects of education as a direct personal benefit.
Others see the community or society as the ultimate
consumer of education because the externalities of
widespread provision involve general social effects, such as
crime rates, fertility rates, and social capital Without a
clear sense of the consumera lead character in a market
systemthe beneficiary of (and, therefore, motivation and
purpose for) innovation is uncertain.19
It seems however, that no matter who the consumer, education is an issue of such
grave importance, and methodological controversy, that schools tend to emulate
established conceptions of schooling rather than use their autonomy to try substantively
different approaches.20 While critics often cite this tendency as a shortcoming of the
charter model in achieving innovation, they often ignore that this tendency is the very
mechanism from which accountability arises. From an evolutionary perspective,
innovation and diversity (or variation) is only one piece of the puzzle. The other
important mechanism is selection, and we select based on standards of accountability.
Once a selection is made, it is imitated (or replicated) as a successful model for
pedagogical progress. For example, most of the practices that might seem innovative at
the local level would now appear to replicate approaches already familiar in the state or
known from elsewhere (an example is Massachusetts charters using the Edison
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19
20

Lubienski, supra note 3, at 425.

Id. at 399.

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curriculum).21 As such, the critique that rather than developing new educational
practices, charter schools are embracing curricular and instructional approaches already
in use,22 does not reflect poorly on the charter model. On the contrary, it shows that
both the innovation and selection mechanisms are both active and healthy in shaping
market forces.
However, we must ensure that the forces of selection do not overtake the forces of
innovation. In a word, economists would term these instances as monopolies. Indeed,
as critics note, public monopolies engender disincentives for trying different
approaches.23 As such, it is important to carefully balance innovation, diversification
and variation with emulation, imitation and selection. Only then can we have a truly
evolutionary system of education that adapts to the needs of whatever consumer it is
focused upon. For this reason, we must also be wary of education management
organizations (EMOs) as establishing a quasi-public monopoly over the entire realm of
education.
Yet selection also creates a scenario that provides specifically tailored options to
whatever consumer is approached it is a scenario in which diversification is itself an
innovation.24 For example, there are child-centered practices which are popular with
progressives, Afrocentric curricula for specific cultural pedagogies, hands-on learning,
block scheduling, and many other pedagogical variations.25 Importantly, a diverse menu
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21

Lubienski, supra note 3, at 419.

Id. at 421.
23
Id. at 400.
24
Id. at 405.
25
Id. at 408.
22

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is necessary in order to ensure real choice. As such, public choice theorists would see
such communities as homogenous preference clusters that best respond to aggregated
preferences while reducing friction and conflict over such issues in the wider context.26
From this perspective, greater choice not only leads to greater individual autonomy in
choosing pedagogical methods, but also greater social cohesion within those pedagogical
methods (due to homogenous preference clusters) and more tolerance toward those who
prefer other pedagogical methods.
One expert writes, A substantial number of the schools adjust traditional
boundaries of schoolingscheduling and age-groupingfor instance, to provide a
distinctive option for parents Charter schools are able to move away from the
comprehensive or common school model of being all things to all people by focusing
on serving specific groupsbased on interest, ethnicity, risk factors, and so on.27 The
problem with such homogenous preference clusters being reflected in education, is that it
would likely lead to a lack in diversity. Being that such specific innovations may not be
transferable to most public schools, because a focus on hearing-impaired students, the
use of parent contracts, or an Afrocentric curriculum may offer advantages for educating
some students, but certainly not all. 28 Thus, the charter model could lead to a new type
of preference-based segregation. This will certainly prove to be a difficult obstacle in
balancing innovation and selection.

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26

Lubienski, supra note 3, at 401.

Id. at 415.
28
Id. at 415.
27

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1. The Nature of Experimentation: Diverse Pedagogical Models

As mentioned above, there are varying preferences when it comes to pedagogy.
This subsection is an attempt to show that while parents may be risk-averse toward
emerging pedagogical methods, there are many parents who are willing (and indeed,
seek) different approaches to education, based on their preferences or needs. Some of
these preferences are mere preferences a preferred style of learning that may fit a
particular student. For example, students and families with particular interests (for
example, cultural or holistic education) may prefer a different pedagogical style than
students who prefer the risk-averse traditional models. On the other hand, some
preferences are due to necessity hearing-impaired and special needs students require
different pedagogical methods because the traditional methodology simply will not
achieve pedagogical objectives. Below is a brief overview of some of these pedagogical
methods and how they may fit certain clusters of preferences and needs.

i. Waldorf Education
The Waldorf pedagogical model is based in the anthroposophical teachings of
Rudolf Steiner. It provides a unique pedagogical method that may be preferred by
families who believe in holistic education rather than traditional models. For example,
while traditional models focus on producing a productive work force by focusing
intensively on math and hard sciences, the Waldorf model purports to educate not only
mind, but body and soul as well not only the productive faculties, but also the creative
and value-centric faculties. The Waldorf approach proceeds under the assumption that it

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is important to not only prepare the intellect, but the emotional and spiritual aspects of the
child entering the real world. The real world is not merely made up of scientific concepts
and mathematical models, but is dependent on social interactions, self-discipline, and
emotional wellbeing. One writer states this idea particularly elegantly:
Waldorf education offers a unique approach to teaching
and to the curriculum. The Waldorf movement with its
unique understanding of the education of the child and its
years of teaching practice deserves the informed
consideration of those genuinely concerned with education
and the development of human wholeness.29
Students similarly understand the value of Waldorf education, and come to
appreciate its depth from a well-reasoned standpoint. One student explained:
Learning need not be limited to intellectual activities and concepts. Through the
practical lessons, we are learning what is useful beyond the academic.30 One educator
notes that life is not merely about theoretical or abstract concepts, but also practical
activities ranging from art to gardening. These ultimately human activities are
generally excluded from traditional education. However, any families and students
would prefer such a holistic education because it aligns with their value system and
reverts to a pedagogy that is less impersonal. Indeed:
In a time when many educators have grown tired of
traditional models of public school education, it might be
helpful to examine further this rather unique, enduring, and
growing school movement. The Waldorf Schools offer an
approach to humanistic education, which has stood the test
of time.31
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29

Sarah Foster, An Introduction to Waldorf Education, The Clearing House, 57(5): 228 (1984).
Id. at 229.
31
Foster, supra note 29, at 230.
30

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ii. The Ross Model

Similarly to the Waldorf model, the Ross model also presents a holistic approach to
education. As one observer notes:
The Ross School approach is based on the idea of lifelong
engagement in learning and wellbeing. Its integrated
cultural history curriculum facilitates in-depth master of
disciplinary subjects as well as interdisciplinary habits of
mind.32
The Ross School was originally located in East Hampton as a private school for
wealthy families, but has now expanded into the charter system in New York City.
Additionally, it has opened an institute that teaches its pedagogical methods to willing
educators that want to introduce the innovative methodology into traditional classrooms.
The Ross School finds its origins in the philosophical teachings of William Irwin
Thompson. According to Thompson, to prepare the young for the future, adults have to
know where they are in the present.33
The Ross curriculum focuses putting concepts in a historical context. The idea is
that if students can see the way concepts developed and became what they are today, they
have a greater likelihood of understanding the concepts, and creatively developing them
into the future. It also breeds tolerance and respect for other cultures because it
emphasizes the similarities between cultural teachings and begins in kindergarten by
introducing very simple concepts that develop and blossom into the diverse cultural
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32

Marcelo Suarez-Orozco, Rethinking Education in the Global Era, The Phi Delta Kappan, 87(3): 209
(2005).
33
William Irwin Thompson, Transforming History, Lindisfarne Books, 13 (2009).

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interpretations that we have today. In a Campbellian sense, truth is unknowable but

wears many masks. The goal of the Ross School is to understand the many masks, and to
also understand them as masks, and not an ultimate truth. Such beliefs in ultimate
truths are barriers to mutual understanding, tolerance and respect. As such, students are
taught to be more compassionate citizens which in my view, is an important civics
lesson.
Moreover, Thompson criticizes the public school system by noting: The public
school system was a response to the elimination of the child labor that had been fine for
the farm but was not fine for the factory.34 As such, Thompson suggests that we are
approaching a new planetary culture, and so education needs to be revamped
accordingly. While this belief would not be shared by every parent or student, it is
certainly a promising alternative with an interesting value system that many families
would and do subscribe to.
The pedagogical approach involves teaching students concepts chronologically.
In other words, kindergarten students learn what the prehistoric learned on their own (the
discovery of patterns and cycles such as seasons and the rising and setting of the sun).
This develops through early Mesopotamian societies by teaching irrigation and
agricultural techniques, and then on to Greek civilization in which students learn about
Pythagoras and his contemporaries. Eventually, by the end of high school, are learning
modern relativistic physics. The curriculum culminates with a senior project that allows
the students to creatively develop these concepts into the future.
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34

Thompson, supra note 33, at 11.

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This approach makes intuitive sense allow children to develop as if they have
lived through the entire cultural history of humanity. In my opinion, there can be no
better pedagogical approach to obtain a full understanding of concepts vertically
(chronologically) and horizontally (cross-culturally). However, from a Ross perspective,
truth is unknowable, and thus, my views are merely that my views. Clearly I have my
own preferences and they may differ from other students and their families. The point
however, is that there are real alternatives out there, and no matter how radical, students
and families should have the option to explore these alternatives. Nobody should have a
monopoly on education, lest we end up in 1984. Child development is too important and
personal to be subject to public monopoly. Of course, private schools are always an
option but not for everybody. The charter model allows families to explore these
alternatives even if they do not have the financial means to enroll their children in private
schools. Varying value systems require varying pedagogical models. Access to these
models is of prime importance if we are to close the achievement gap because all students
must have equal access to new and innovative pedagogies.
iii. Special Needs and Autism
While most special needs programs are built into larger charter schools, there are
also charters that specifically cater to students with special needs. Indeed, their charters
objectives include special needs as part of its purpose. In the opinion of this author,
charters that are directly tailored directly to the needs of their students will be most
successful in reaching their objectives especially in cases of special needs, such as

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autism. This should seem intuitive a charter should be specific when defining its target.
If a charter lumps together multiple objectives, it is likely to diminish and dilute them all.
However, in the case of special education, some critics disagree. For example,
one argument, supporting the integration of autistic and mainstream students, holds that
once autistic children are segregated from others, they can never return to normal
societal functioning.35 In other words, the presence of mainstream students helps the
autistic children learn to function socially in the real-world without being protected by an
illusory bubble. Additionally, it could be argued that this breeds tolerance, respect and
understanding of the autistic children by those in the mainstream. For example, as one
administrator explains: "Philosophically, we prefer to have our students exposed to a
general education population.36 As such, the children are in separate classrooms, but
they are in the same cafeteria for breakfast and lunch, and they walk the same hallways."
This debate is not an easy one to resolve. However, at least the charter model provides
the freedom to choose amongst these methods, and then the opportunity to evaluate
which methods are most effective. This is further evidence of the utility of the charter
model in sorting effective pedagogy as applied to specific needs and preferences.
However, when it comes to autistic children, we can find a point of general
agreement: autistic children can develop to function normally within society if they get
early intervention.37 For this reason, it is important to have specialized early intervention
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35!Colleen

Wixon, Specialized Programs Can Reach Autistic Children, South Florida Sun-Sentinel (Oct.
28, 2007).!
36!Kathleen McGrory, Autistic Kids Find Options, Sun-Sentinel (Oct. 19, 2009).!
37!Wixon, supra note 35.!

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programs that are accessible to all parents not just those that can afford private school.
If every child is entitled to an education, then autistic children are entitled to early
intervention, because they cannot be educated without it. As noted by Laura McGill, a
specialist in autistic programs: a lot of traditional approaches dont work [with autistic
preschoolers].38
For example, the use of pictures in communication is one non-traditional need
that is provided specifically for autistic students, and would not be provided more
generally. Some students may not be able to verbally communicate, and so, the
classroom is designed so that students can point to pictures in communicating with their
teachers and peers. Additionally, small class sizes are needed because autistic children
have trouble tolerating noise and overstimulation.39 As such, it is clear that parents of
autistic children have a special need that must be addressed and not merely a
preference. There are pedagogical approaches that serve autistic students better than
traditional methods, and so, the charter system is one way to bridge the divide between
those that can afford quality special education and those who cannot.
b. The Achievement Gap
Many opponents to the charter model fear that the schools will discriminate,
either explicitly or implicitly, by race or socioeconomic status and will deny equal access
to public education opportunity.40 However, this seems inconsistent with the fact that

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38!Wixon,
39!Id.!
40

supra note 35.!

Huffman, supra note 11, at 1292.

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about twenty percent [of charter schools] were started to target specific student groups,
including at-risk, language minority, and racial minority students.41 Indeed:
Many have been designed specifically to aid students with
disabilities who have difficulty succeeding in traditional
schools. According to a study by the Hudson Institute,
sixty-three percent of all charter school students are
members of racial minority groups, fifty-five percent live
below the poverty line, nineteen percent have a diagnosed
disability (compared with ten percent of all students
nationwide), nineteen percent have limited English
proficiency, and fourteen percent would not otherwise
attend school at all. Among the specialty charter schools
are academies for high school dropouts, technical skills
academies, and schools for the deaf. The U.S. Department
of Education has offered less optimistic assessments,
estimating that while charter schools serve a slightly higher
portion of students of color than statewide averages, they
generally serve a slightly lower percentage of disabled
students and limited English proficiency students than
traditional public schools, and about the same proportion of
low-income students.42
As such, it seems that even the most pessimistic of statistics shows that
discrimination is no more problematic in the charter system than in the public school
system. From another perspective, it is in fact, less problematic than the public school
achievement gap. It is also important to note that these statistics are most promising in
states that have lenient laws on the regulation of charters in other words, allowing
charter schools greater autonomy. For example:
[I]n both Colorado and Georgia, charter schools serve
about half as many black students (by percent of total
students served) as traditional public schools and serve
fewer low-income students. The Colorado Senate debated
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41
42

See U.S. Dept of Educ., A Study of Charter Schools: First Year Report (May, 1997).
Huffman, supra note 11, at 1298-9.

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repealing the states charter school legislation but

ultimately voted to let it continue indefinitely despite
arguments from state Democrats that charter schools failed
to reach at-risk students. In Arizona, by contrast, the
statewide percentage of black students in charter schools is
three times higher than in other public schools, and charter
schools serve a higher percentage of low-income students.
The variance may reflect the limited state oversight of
charter schools; without legislative standards for
recruitment or enrollment, states depend a great deal on the
efforts of individual school operators.43
As such, it is important to have coherent standards for recruitment and enrollment
to ensure that charter schools not only promote achievement, but progress in closing the
achievement gap. Many advocates would claim that the charter school specifically
targets this objective as well. For example:
Advocates also believe that all families should be able to
choose which schools their children attend, pointing out
that wealthy parents already may choose between public
and private schools. Choice advocates dismiss concerns
that low-income parents will do a poor job of choosing
schools as paternalistic and claim that parents of all
backgrounds can and will learn to make adequate
educational choices for their children. Finally, advocates
argue that charter schools are reaching more minority and
low-income children than traditional schools. They point
out that nearly two-thirds of charter school students
nationwide are nonwhite, and more than half come from
low-income families, demonstrating that the lack of
regulation has not been used by most charter school
operators to exclude minorities and low-income youth.
Advocates tie these figures to the entrepreneurial
opportunities created by charter schools, arguing that
charter schools are drawing educational innovators who
expand opportunities for low-income and minority
students.44
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43
44

Huffman, supra note 11, at 1299.

Id. at 1301-2.

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However, many would claim that we specifically need regulation to ensure that
discrimination does not take place in the charter school system. For example:
Opponents of charter school reform believe that loose
regulation will allow charter schools to siphon the
wealthiest and best-educated families from traditional
public schools. These opponents fear that traditional
neighborhood schools will deteriorate and that the charter
school movement will disproportionately burden lower
classes and children of color In a market economy of
public education, opponents particularly fear that the
failing schools will disproportionately become schools for
the urban poor and children of color. This siphoning would
leave traditional public school students to languish in
underfunded, low-quality schools.45
On this note, we turn to the obstacles to the success of the charter
model as both a driver of pedagogical innovation and a healer of the
achievement gap.
i. Information Deficit
As with any market, the accurate dissemination of information is of the utmost
importance to the proper functioning of that market. If information is not provided, the
consumer has no basis on which to make a choice. This is often pointed to as one of the
greatest dangers that the charter movement imposes on the achievement gap:
Choice advocates dismiss concerns that low-income
parents will have difficulty choosing schools, but this
ignores the fact that many parents may be altogether
unaware that they even have choices. If parents do not
know that charter schools exist or cannot ascertain the
purpose of each school, they will not make bad choices, but
will choose through uninformed passivity. The nature of
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45

Huffman, supra note 11, at 1302-3.

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charter schools creates a heightened danger of astute

parents choose before less informed parents Schools may
be designed in ways that implicitly favor quick-acting,
better-informed parents through first-come-first-served
admissions policies and the absence of extensive publicity
describing the new schools. Implemented on a large scale,
charter schools have the potential to tilt school choice,
leaving children of poor and ill-informed parents behind.46
Furthermore, schools may use shrewd marketing techniques to specifically target
and attract higher-achieving students rather than diversifying their student body.
Whether this is deplorable is a controversy for another day. What is clear however is that
information needs to be information, not marketing. In this way, the primary area that the
newly deregulated charter system needs to be re-regulated in, is in how information is
reported. Not only do we need to avoid deceptive information and discriminatory
marketing, but we also need to reconcile the curricular autonomy of charter schools with
the need for reportable standards by which they can be measured against. Indeed, the
need to judge institutions and outcomes requires standardized criteria for evaluation.47
However, state- or nation-wide standardized testing would only undermine the
original goal of curricular autonomy, flexibility and innovation. Under such
circumstances, it would be difficult for a charter school established to serve at-risk
students to provide consumers with evidence justifying their approach,48 because they
would be measured against external standardized tests that do not necessarily align with
the charters objectives. For this reason, it seems clear that we need a new approach to
standardization. One proposal is particularly appealing that schools be judged based
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46

Huffman, supra note 11, at 1318.

Lubienski, supra note 3, at 420.
48
Id. at 421.
47

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on their adherence to their stated charter goals. Therefore, schools that serve
disadvantaged groups will be measured based on improvements of their students, not
against an external standard.49 This seems especially promising, and creates a paradox
with great potential namely, the customization of standardization. If the goal of the
charter model is to allow schools autonomy in writing their own charter then the
provision of information should rely on their adherence to their stated charter goals. In
order to do this, schools would need to create internal controls that measure standards
within that particular school. Perhaps more promising would be to evaluate students on a
case-by-case basis before aggregating statistics for purposes of reporting information. In
other words, improvement-based standardization would test students on the same
material when they enter, and when they exit a specific curriculum (whether it is
monthly, annually, or otherwise). This would be a more accurate reflection of whether
school objectives and student expectations are being met. Once this information is
aggregated, there is sufficient information for a parent to make a decision upon. A parent
can look at the goals and pedagogical style of a school, decide on what fits their child
best, and then evaluate how successful that school has been in implementing and
executing that pedagogy. For example: Some schools release information about
students progress every year while others are examined closely only when applying for a
charter renewal.50 It would seem intuitive that the releasing information about student
progress more frequently would lead to more informed school choice decisions.
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49
50

Huffman, supra note 11, at n213.

Id. at 1295.

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Unfortunately for now, almost no states provide standards for information

dissemination.51 This is viewed as a serious flaw in charter reform legislation. As one
expert explains:
One flaw in the state charter school legislation is the lack
of standards and funding for dissemination of information
to public school students and families. Lack of adequate
information may prevent some parents from placing their
children in charter schools Some states mention the
importance of providing information. For example,
Minnesotas enabling act says: The sponsor, the operators,
and the department of children, families and learning must
disseminate information to the public on how to form and
operate a charter school and how to utilize the offerings of
a charter school. Particular groups to be targeted include
low-income families and communities, and students of
color.52
However, :
Concrete standards for information disbursement are
almost nonexistent in state legislation. States typically
leave student recruitment to local districts and to individual
charter schools. Unlike intradistrict choice programs,
charter schools are frequently new schools run out of
nonschool building including community centers and
churches. Their existence may be entirely unknown to
many parents in the district. Charter schools beginning in
low-income neighborhoods often have to distribute
information door-to-door. While schools vigilant in
pursuing at-risk students may succeed this way, schools
have the power to recruit students with a higher chance of
success.53
So what is holding back the more extensive dissemination of information? The
likely answer is a usual one: funding. However, [w]hile state legislators may wish to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51

Huffman, supra note 11, at 1295.

Id.
53
Id. at 1317.
52

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avoid spending state money in this way, if they are serious about school reform,
information systems must be explicitly created and funded.54 Indeed:
[S]tates should require extensive disbursement of
information. All parents should know which charter
schools are available to their children. This could be
accomplished either by requiring new schools to
demonstrate district wide recruitment efforts, or preferably
by requiring local school districts to disseminate
information prior to opening charter schools One method
of increasing the participation of the least wealthy is to ask
all parents to fill out a form choosing a school. Thus,
when charter schools open in a district, all students would
submit a form indicating whether the student wishes to
transfer to a charter school or return to a neighborhood
school. Inevitably, some parents would choose through
abstention. Some commentators, however, have suggested
that such a policy would increase the percentage of
choosers.55
ii. Transportation
Another obstacle to the success of the charter model involves public
transportation. This is especially relevant to equal protection issues and the achievement
gap, because underlying the general discussion of busing is the more general concept of
funding. Where the state cannot provide public transportation, the wealthy will be able to
provide it for their children. The disadvantaged however, have nowhere to turn. Below
is an excerpt, which articulates the situation with the utmost clarity:
Since most charter schools are open to children from the
entire school district, the availability of transportation can
determine student and parent choice. When no
transportation is provided by the district, students again
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54
55

Huffman, supra note 11, at 1326.

Id.

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become classified on the basis of parental time and wealth.

Students with access to cars or with money to ride the bus
can attend charter schools while others lose this choice.
Losing the opportunity to attend charter schools may be
significant, depending on one's view of the movement
Classification based on parental ability to provide
transportation creates serious equal protection questions,
since students may be segregated by ability to access the
choice schools."56
In essence, there are obstacles to the charter system that would not be foreseen at
first glance. However, if we are to have both an effective charter system with
pedagogical experimentation and evolution, and a charter system that assists in closing
the achievement gap, rather than widening it, we must take these obstacles into account.
Transportation is just one obstacle others are surely to arise as we further develop the
charter system. One thing is clear however: without substantive equal protection, the
charter system will cause more harm than it does good.
iii. Admissions
Granting school autonomy includes autonomy with regards to admissions. While
a private actor performing a public service would usually be required to provide equal
access to all interested, the quasi-privatization of the education system create a unique
and problematic situation.
Charter schools may be designed with specific academic goals in mind.57 As
such, the schools must make important admissions decisions including whether to

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
56
57

Huffman, supra note 11, at 1326.

Id. at 1322.

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grant or deny student admission based on past academic performance or past behavior.58
However, this goes completely against the purpose of the public education system, and
especially against ideals that separate is not equal. This places charter schools between a
rock and a hard place attempting to balance the dilemma discussed at the outset of this
paper. How do we allow the high-achievers to soar while taking the low-achievers under
our wings? This is an especially difficult undertaking without inadvertent discriminatory
effects. This is because charter schools have additional accountability, since their
charters will be revoked or renewed based on their success in meeting their stated
goals.59
Additionally, there may be external pressures to admit students with a greater
likelihood of long term success.60 For example, some schools only accept students with
a satisfactory behavior record at previous public schools.61 Unfortunately, this has
major consequences for the achievement gap:
Allowing schools to exclude students with prior behavior
problems essentially sets up a choice system that only
serves students who already have achieved at least a
modicum of success in school. This raises policy questions
about the purpose of charter schools. If these schools are
effective in raising the performance of at-risk students, why
exclude students with prior difficulties in public
schools?62
Under this line of reasoning, we are taking at-risk students because they are a
blank slate that can be molded toward achievement thus avoiding their inherent risk.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
58

Huffman, supra note 11, at 1323.

Chester Finn, Jr. et. al., Charter Schools in Action: What Have We Learned?, 71 (1996).
60
Huffman, supra note 11, at 1323.
61
Id. at 1328.
62
Id.
59

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On the other hand, we are giving up on students that missed the boat because they are
already too far along, and too far behind. This is another obstacle to be addressed in the
charter debate but not in this current discussion. In short however, lacking standards
for information distribution and charter school admissions creates potential equal
protection issues under both the federal and state constitutions.63
Lottery systems are not very helpful in eliminating this problem. While they
certainly help diversify students within charter schools, lotteries are largely flawed. As
one expert notes, [c]urrent lottery regulations only create lotteries when schools are over
capacity.64 Thus, [b]ecause first-come-first-served policies allow well-informed
parents to act before lotteries are necessary, they should be changed.65 However, a
solution is also offered:
By combining a lottery for admission with a mandatory
choice system, all parents would select a school at the same
time. Parents would fill out a form choosing a school (or
ranking some or all schools in order of preference), and all
forms would be submitted by the same date. District
officials would then conduct a lottery for all school where
demand exceeds capacity. This approach would truly
combine equal opportunity with free market policies.66
Overall, it is clear that while the foundation of the charter movement relies on the
deregulation of public education, the success of the movement relies on the reregulation
of the admissions process from the distribution of information, to the physical access to
the school.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
63

Huffman, supra note 11, at 1323.

Id. at 1327.
65
Id. at 1328.
66
Id.
64

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C. Reformation and Transformation: Evolutionary Education

It is clear that diversification of options alone is not sufficient67 in order for the
charter model to succeed. Indeed, it is both diversification and access (which includes
access to information, and also physical access to the school) that creates innovation.
Innovation does not occur independently it is the result of an evolutionary process.
This process involves diversification, and then selection. A free market does not
necessarily ensure these two facets and if one is missing, the effects could be
counterintuitive and counterproductive. However, when both are present, one can
witness the evolution of a market in this case, the evolution of education. Indeed,
innovation does not have to emerge in the for of a singular or distinctly new invented
practice but may involve the combination or continuation of a coherent philosophy.68
From this perspective, charter schools themselves are an innovation in governance,69
and all newness is a matter of recombining attributed from preexisting models.70 In
this way, the tendency toward uniformity noted earlier is not problematic rather, it
enforces the accountability of the charter system. It ensures that diversity of options is
not the sole objective of the movement, but rather, that success is the goal and success
can only be achieved through accountability. For example, an invention is adapted for

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67

Little Hoover Commission, The Charter Movement: Education Reform, School by School (Report No.
138), Sacramento, CA (1996).
68
Lubienski, supra note 3, at 402.
69
Id.
70
Id.

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commercial application (innovation) before diffusion through the marketplace largely by

imitation.71
Consequently, most policy recommendations involve focusing on how to better
liberate choice and competition as catalysts for change, and considering some ways in
which the interactions of institutions within market dynamics may themselves cause
curricular and pedagogical conformity.72 However, we must be careful not to trend
toward standardization of practice rather than innovation.73 The system is especially
endangered by growing EMOs:
Whereas teachers were often cast in roles as innovators
developing new and exciting curricula, the reality is that
they often implement curricular decisions made by building
or corporate managers or EMOs.74
Either way, charter school legislation represents a step in the road to public
school choice.75 In sum:
If schools are forced to compete for students, students will
leave failing and ineffective schools. Schools will then be
forced to either improve or lose students, and schools that
fail to demonstrate success will close down, leaving only
those schools that have survived marketplace
accountability.76
III. Conclusion

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
71

Lubienski, supra note 3, at 404.

Id. at 419.
73
Id. at 417.
74
Id. at 418.
75
Jonathan Cleveland, School Choice: American Elementary and Secondary Education Enter the Adapt or
Die Environment of a Competitive Marketplace, 29 J. Marshall L. Rev. 75, 95 (1995).
76
Id.
72

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In a landmark case, Justice Brennan held that education was not merely a
governmental benefit but instead, played a fundamental role in maintaining the fabric
of our society.77 As such, it seems that a massive influx of funding would be an obvious
first step in ensuring that the fabric of our society remains strong. If that funding is
utilized to better regulate the flow of information about expectations and achievements of
particular schools, and to pay for necessary technological innovations, and to provide
public transportation for students who have none, then we have succeeded in our attempt
to provide the American dream: a land of equal opportunity. However, charter schools
can play a large role in advancing these aims. Indeed, they already have begun to do so:
Charter schools will play a prominent role in public
education during the coming decade. They suit the political
agendas of many and hold great promise for developing
innovative approaches to public education. Charter schools
have the potential to reinvigorate the public schools in
districts that desperately need a boost.78
However, we must be careful in implementing and executing this delicately
designed system:
[A]s states quickly move forward with charter school
legislation, they risk establishing a process that merely
provides further opportunities for well-informed families
while ghettoizing the poor and uninformed. The movement
toward deregulation allows schools to exclude the neediest
students, either through explicit policies or simply through
lack of adequate information. Most significantly, several
policy changes would allow states to mandate a strong,
autonomous charter school movement without depriving
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
77
78

Plyer v. Doe, 457 U.S. 202, 221 (1982).

Huffman, supra note 11, at 1327-8.

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access to the schools. Greater state oversight of admissions

policies and dissemination of information would close
potential avenues of litigation while maintaining the
legitimacy of charter schools.79
It is in this authors opinion that the charter school system will both improve
overall achievement through innovative pedagogy, remain flexible to keep up with the
times and assist in closing the achievement gap. However, on a final note, the charter
model reconciles one of the major tensions within the very notion of public education:
[T]he issue of innovation in charter schools moves into
problematic questions about the public nature of schools
and the value of the common school ideals or the
comprehensive model relative to other goals such as
effectiveness and innovation.80
On this note, we no longer need to reconcile the varying preferences and ideals
held by the diverse fabric of our society. Rather, we create a system of education that
reflects the one common ideal that we all hold dearly a meta-ideal that allows us to
choose the ideals we wish to follow freedom of choice, and, consequently, equal
opportunity as well.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
79
80

Huffman, supra note 11, at 1328.

Lubienski, supra note 3, at 407.

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