To ESSA and beyond:

Arc of education policy bends toward local authorities & holistic approaches

Abstract This article presents a mixed-methods, interdisciplinary study on educational policy

and practice, with the aim of offering solutions to fossilized problems extant across the United

States’ elementary and secondary schools. Analysis of historical Supreme Court decisions and

statutes show trends over the latter-half of the twentieth century. Linguistic comparisons of two

milestone revisions of 1965 Elementary and Secondary Education Act – No Child Left Behind

(NCLB) and Every Student Succeeds Act (ESSA) – show Congress granted more flexibility and

authority to local districts and states under ESSA, which reflected trends in Supreme Court

opinions over several decades. Comparative statistical analysis of state ESSA plans discovered

zero states met interim or long-term academic achievement targets. Concurrently, sources show

American education law intersects with civil and human rights, but public policy and practice

have yet to demonstrate consistent adherence to such emergent and enduring principles. In

response to failures and shortcomings, policy recommendations include student and teacher Bills

of Rights, cross-curricular assessment systems, redefining “proficiency”, and enhanced

collaboration among stakeholders in education.

Keywords ESEA, ESSA, NCLB, primary and secondary education, local government

Educational systems are ubiquitous, their inputs and outputs flow continuously through

populations. Schools disseminate vital knowledge to individuals who build upon prior works and

add value to economies at scale. Economic productivity is made possible, more efficient and

powerful through effective deployment of education and training programs, such that residents
and citizens may put their skills into a job market and thereby procure ends necessary to survival

and, ideally, increase quality of life for both those working individuals and the nation as a whole.

Education cuts across axes of race, socioeconomic or immigration status, political affiliation,

sexual identity, or other demographic criteria. Schools, universities, and academic institutions are

infinitely interconnected with other private and public sector establishments. Legal, political,

economic, business, social, cultural, linguistic, psychological or other disciplines may seem

“irrelevant” to the study of education — indeed their respective impacts vary and may be

negligible in any instant moment — but under stricter formal scrutiny, observers can

independently verify presence of multiple endogenous and exogenous factors exerting influence

on systems as large, wide-reaching, and comprehensive as educational institutions. Given those

inseparable bonds between education and all other industries; considering symbiotic

relationships among elements of functional political economies; mindful of a complex interplay

of nodes sending and receiving packets of information within neural networks, stakeholder

citizens are best advised to remain conscious of macro-environmental factors as they tend to

management of microcosmic districts or schools.

This article presents original, mixed-methods, interdisciplinary research of education policy and

practice with a balanced purposive-textualist approach to the law. Legal and literary references

provided guidance in discovery of themes and direction of policy and practice over time. Review

of Supreme Court decisions discovered boundaries and trajectories for evolving legislation.

Linguistic analysis of the 1965 Elementary and Secondary Education Act (ESEA)1 and

recertifications paid special attention to the 2001 No Child Left Behind Act2 (NCLB) and 2015

1
United States. Elementary and Secondary Education Act of 1965, Pub. L. No. 85–10, (1965).
2
No Child Left Behind (NCLB) Act of 2001, Pub. L. No. 107-110, § 101, Stat. 1425 (2002).
Every Student Succeeds Act (ESSA)3. NCLB and ESSA analysis examined frequency of use of

terms relating to overarching objectives, permissiveness/restrictiveness in may/shall regimes, and

flexibility/rigidity within a matrix of state/local/federal policy and accountability. A comparison

of current and prior federal education law found emergent and constant themes; that is, ESEA

(1965) launched rights and duties protected and enforced at the federal level, but the trend

through revisions of ESEA directed more authority to states and local districts. Discussion of

state ESSA plans includes scalable mathematical models of growth toward proficiency.

Recommendations point toward mixed-methods, qualitative-quantitative, interdisciplinary,

holistic approaches to complex problems inherent to large groups of people which public

education shall always include. A survey of socioeconomic and organizational circumstances

implies higher federal funding is required to provide states with sufficient incentive, and to

adequately serve students in their home communities. Our best response to dynamic threats is to

adapt, and since there has hitherto been no singular solution nor set thereof, exploratory research

and experimentation are rational undertakings in our continual pursuit of remedy.

Broader Context

Considering historical and current legislation alongside Supreme Court decisions that have set

boundaries and guided practice over time, the research identifies elements in a rights-regime that

have been extant in policy and jurisprudence since the U.S. Constitution and Marbury v.

Madison4. Whereas only recently has education become so essential for survival of individuals in

a functional society that the government recognizes its duty to provide basic education as a civil

right (see Gary B. et al. v. Whitmer5), equality before the law has been textually explicated since
3
Every Student Succeeds Act, 20 U.S.C. § 6301 (2015).
4
Marbury v. Madison, 5 U.S. 137, 138 (1803).
5
Gary B. v. Whitmer, No. 18-1855 (6th Cir. 2020).
the Fourteenth Amendment and 1866 Civil Rights Act6. Unfortunately, state practice and judicial

opinion diverged entirely from literal interpretation and construction of “Equal Protection” for

more than a century thereafter, thus necessitating further reauthorizations of Civil Rights Acts

(i.e. 1871 Ku Klux Klan Act7, 1875 Civil Rights Act8, 1957 Civil Rights Act9, 1960 Civil Rights

Act10, 1964 Civil Rights Act11, 1968 Civil Rights Act12, 1987 Civil Rights Restoration Act13, and

1991 Civil Rights Act14). The Congress could not have authored the Amendments 14–15 nor any

of the latter related Acts with the intent that state agents would so significantly derogate from the

language of the Acts that Congress would be compelled to revisit the exact same topics multiple

times again throughout the following two hundred years. In other words, states have consistently

failed to implement federal legislation and carry out their responsibilities in good faith, which

compelled Congress to reissue legislation with revisions in hopes that states would change

practices they should have changed under prior iterations of Acts. Education law from ESEA to

present follows a similar pattern.

6
Act of April 9, 1866 (Civil Rights Act), Public Law 39-26, 14 STAT 27 (1866).
7
Ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. §§ 1983, 1985–1986).
8
March 1, 1875, 18 Stat. 335.
9
Sept. 9, 1957, Pub.L. 85-315, 71 Stat. 634 (See 5 § 5315 (19); 28 §§ 1343, 1861.
10
May 6, 1960, Pub.L. 86-449, 74 Stat. 86 (18 §§ 837, 1074, 1509; 20 §§ 241, 40; 42 §§ 1971,
1974, 1974a to 1974e, 1975d).
11
July 2, 1964, Pub.L. 88-352, 78 Stat. 241 (28 § 1447; 42 §§ 1971, 1975a to 1975d, 2000a to
2000h-6).
12
Apr. 11, 1968, Pub.L. 90-284, 82 Stat. 73 (18 §§ 231 to 233, 241, 242, 245,1153, 2101, 2102;
25 §§ 1301 to 1303, 1311, 1312, 1321 to 1326, 1331, 1341; 28 § 1360 note; 42 §§ 1973j, 3533,
3535, 3601 to 3619, 3631).
13
Pub. L. No. 100-259, S.557.
14
Nov. 21, 1991, Pub.L. 102-166, 105 Stat. 1071 (2 §§ 60l, 1201 to 1224, 16 § 1a-5 note; 29 §
626; 42 §§ 1981, 1981 notes, 1981a, 2000e, 2000e note, 2000e-1, 2000e-2, 2000e-4, 2000e-4
note, 2000e-5, 2000e-16, 12111, 12112, 12209).
That the Supreme Court did an about-face from Plessy v. Ferguson15 to Brown v. Board of

Education of Topeka16 tells of divisions and disagreements embedded within a system where the

majority decides what is the order for the day. In his lone dissent in Plessy, Justice Harlan wrote

“[he was] of the opinion that the statute of Louisiana [was] inconsistent with the personal

liberties of citizens, white and black, in that State, and hostile to both the spirit and the letter of

the Constitution of the United States.” Less than three-score years later, the Court reversed

Plessy with a unanimous opinion in Brown, in which Chief Justice Warren wrote:

“Today, education is perhaps the most important function of state and local governments.

Compulsory school attendance laws and the great expenditures for education both

demonstrate our recognition of the importance of education to our democratic society. It

is required in the performance of our most basic public responsibilities, even service in

the armed forces. It is the very foundation of good citizenship. Today it is a principal

instrument in awakening the child to cultural values, in preparing him for later

professional training, and in helping him to adjust normally to his environment. In these

days, it is doubtful that any child may reasonably be expected to succeed in life if he is

denied the opportunity of an education. Such an opportunity, where the state has

undertaken to provide it, is a right which must be made available to all on equal terms.”

The main objective in using a purposive-textualist methodological framework is to discover

enduring consistencies and throughlines in education law and practice. Similar to how there are

constants over generations in the disciplines of study at schools (e.g. physics, chemistry, biology,

15
163 U.S. 537 (1896).
16
347 U.S. 483 (1954).
computer programming, mathematics), even as the world changes and develops, there are likely

immutable characteristics in law that keen observers may recognize. While few could muster a

persuasive argument against the fact that the world in the 2020s is remarkably different from

what it was in the 1970s, there are concurrently bits that were present before and shall be present

into the future. The seeds for today’s world were sown some time ago, and likewise, tomorrow’s

harvest has been and is sown in the present. Similarly, equal access to free appropriate public

education (FAPE) began with Brown v. Board, wherein Warren clearly defined schools fall

within the domain of state and local governments, but the groundwork was laid decades prior in

civil rights law which gave effect to natural rights that had always existed. Legal review and

analysis in the following section show current educational policy emerges from those

mid-twentieth century milestone Civil Rights achievements. Also, the 60s–70s period in

American legal history had likewise been the culmination of a century or two of work toward

equality before the law and universal access to exercisable rights within the United States of

America. Change came gradually and imperfectly, but the germ of the idea is an immutable

characteristic of the human population whether encoded into law or not.

Federal case law and statute point state and local governments in a general direction, but the

daily work at schools with students, teachers, administrators, parents and other stakeholders in

the communities must occur at the ground level. Indeed, federal directives exert some top-down

influence, but there must be bottom-up action to carry out specific requirements or expectations.

Supreme Court cases had been delivering educational powers back to local and state

governments for decades prior to ESSA, which further decentralized control of schools upon

replacing the NCLB. As American primary and secondary education continue to develop,
evolve, and re-emerge after bouts with COVID-19, political turmoil (e.g. Anti-CRT laws17 &

transgenderism), qualitative data and quantitative data become more symbiotic – each helping to

reveal and explain the other. Qualitative data in this research comes from academic literature,

case law, and statutes; quantitative data comes from test scores, graduation rates, and state ESSA

plan academic targets. Discussion of primary and secondary data leads to recommendations

including coordinated multi-agency interdisciplinary research, data sharing, and increased

advocacy for educational expenditures.

Literature and Legal Analyses

American education pivoted in the mid-20th century in response to overwhelming democratic

support for equal rights and justice. Technically, the U.S. Constitution’s Article IV, 14th and 15th

Amendments, and the 1866 Civil Rights Act were lex scripta mandating equal treatment of all

citizens, but peculiar legal interpretations and constructions repeatedly denied fundamental rights

to significant portions of the population. Bona fide, literal readings of the Declaration of

Independence, Constitution, and burgeoning body of legislation in the fledgling American

political entity could have resulted in prohibition of slavery, segregation, and their varied tertiary

harms, but from early stages in the life of American government, there had been malefactors who

applied illegitimate semantics and pragmatics in legal analyses, leading to egregious abuses in

application and synthesis at law. In retrospect, methodologies at play in American jurisprudence

through the latter-half of the 20th century are easily identifiable as incoherent, incohesive, and

unhelpful at best. In those historical moments, however, a complex matrix of public opinion, soft

and hard power, economics, tradition and other factors compelled legal professionals to deny

17
e.g. MS SB2113, Critical Race Theory; prohibit (2022).
individuals rights if those individuals belonged to specific groups, identifiable by immutable

physical or behavioral characteristics.

What is the Law of the Land?

Over several generations, from the late-1700s through the present, the American legal system has

managed to solidify individual rights both in law and practice. Improvements have come slowly

and in spite of hostile legislatures, executives, and judiciaries. Statutes, regulations, executive

actions, and Court decisions have stalled and turned progress backward at numerous instances.

The Marshall Court established a process for judicial review of potentially unconstitutional

legislation in Marbury v. Madison18, but the Court undermined the reach of such authority in

Murray v. Charming Betsy19 (1804) when it declared,

“An act of Congress ought never to be construed to violate the law of nations if any other

possible construction remains, and consequently can never be construed to violate neutral

rights or to affect neutral commerce further than is warranted by the law of nations as

understood in this country.”

The “law of nations”20 is the system which after World War Two became known as “international

law”. International law is not directly enforceable in any country per se; rather, jurisdictional

considerations require enactment and performance of implementing domestic statutes before any

official action may occur with regard to treaty provisions that each sovereign states interprets and

applies. Treaties frame the basis for most exercisable international law, and treaties are only
18
supra note 4.
19
6 U.S. (2 Cranch) 64 (1804).
20
U.S. Const. art. VI, para. 2
enforceable upon their members. The United States is not a member of such treaties as the 1966

International Covenant on Economic, Social, and Cultural Rights21 (ICESCR), nor is the U.S. a

party to the 1989 Convention on the Rights of the Child22 (CRC). As such, the United States is

not bound by CRC or ICESCR provisions urging or requiring governments to recognize

education as a fundamental right. However, nothing precludes non-party states from enacting

municipal legislation accomplishing the same or greater objectives as a treaty to which the

government withheld signature. For example, the Sixth Circuit held that the Constitution

guarantees only a “basic minimum education” in Gary B., et al. v. Whitmer23, but only political

willpower constrains governments from raising the floor such that practices in the United States

may more resemble those in other similarly-situated countries.

There is continuous development in the area of norms among leading nations which may

convoke a new multilateral agreement at any time. There are also certain norms and customs

which are binding and obligatory upon all states regardless of consent: customary international

law, which is a living consensus normative ethic as observed in state practice (usus) and

jurisprudence (opinio juris sive necessitatis)24. As states evolve via their constituent civilians and

public governing bodies, so too do norms and customs evolve, adapt, blend, emerge and refine

themselves among a community of nations. Universal state recognition of individual rights

emerged in the 20th century, but civil and human rights were elements of natural rights since the

origins of the human species. Peonage, slavery, serfdom, and assorted exploitative practices were

21
Dec. 16, 1966. 993 U.N.T.S. 3.
22
Nov. 20, 1989. 1577 U.N.T.S. 3.
23
supra note 5.
24
e.g. Fault lines and need for new approaches, (Merkouris, P., Kammerhofer, J., and Arajärvi,
N. eds., 2022).
commonly accepted private and state practice through the First Industrial Revolution. At the top

of the 19th century, European nations elected a paradigm shift when they banned slavery and

trafficking in persons for slavery. American law lagged, and that foundational ignorance of

emergent theory in European legal science cost lives and property as the Civil War precipitated

essential restructuring of American legal ethics. While American lawyers were following

Charming Betsy and inferring their laws were consistent with the laws of nations, the actual

international legal environment had changed, thus exposing Charming Betsy’s latent threats to

civility at home if American state practice (usus) and jurisprudence (opinio juris sive

necessitatis) were at odds with those among other similarly civilized nations.

Emergence of Rights

Tyranny and disorder were implicit during earlier time periods when scholars, litigators, judges,

congressmen, and advisors manipulated language for the purpose of excluding others, or for

creating advantages for preferred individuals or groups. Horrifying abuses of human and civil

rights were normal state practice throughout history. Private sectors were rife with tortfeasors to

the extent that capital and power could be leveraged to interfere with and otherwise abuse public

rights of other individuals. Positive law had domain over peasants and serfs, but those same laws

only applied occasionally to leadership classes; in other words, “rule of law” is a fairly new

concept that has only recently emerged. Whereas for thousands of years, governmental and legal

paradigm changes occurred at a glacial pace, the pace began to change during the Third

Industrial Revolution. The League of Nations dissolved following World War II, and a new order

was created upon ratification of the United Nations Charter25 which at Chapter One declared

overarching principles of peace, pacific settlement of disputes, international cooperation and

25
1 U.N.T.S. XVI, (1945).
harmonization regardless of frontiers or demographic characteristics of members. With the

inauguration of the United Nations, every country in the world recognized a legitimate

international system where nations are sovereign equals, and individual citizens within each

country are naturally entitled to specific human rights which include education (FAPE).

Just as scientific and technological innovation, development, and evolution impacted economic

and trade systems, so too did abstract philosophical transformations significantly influence legal

adaptations in an ever-changing world. In the 250 years following its genocidal startup, the

United States has come nearly full circle on matters of race, privilege, immunity, equality, and

universal rights. Once a persistent violator of the laws of nations in its unequal treatment of

citizens on the basis of race and gender, the United States has demonstrated that a government

can transform itself from a colonial-era evildoer to a 21st century voice of moral stability and

authority. Luckily for Americans, their legal system offered means and processes through which

democratic representatives could make substantive changes in the administration of a

Constitutional Rights regime even if none had previously existed in practice.

Semantic Stagnation

Every law is limited by its language to the extent that readers may arrive at different conclusions

as to the meaning or application of a specific provision. Legal professionals consistently disagree

about the purpose of a law. Endicott26 discussed how lawyers disagree about semantics and

pragmatics, and that those disagreements have material impacts on individuals and communities.

According to Noam Chomsky, American legal scholars, advocates, and adjudicators often read

26
Law and language, Stanford Encyclopedia of Philosophy (2021).
meaning into or out of American laws27. Over the course of his long, successful career as a

public intellectual, Chomsky has applied linguistic knowledge and skill to parse and discern

meaning from English-language policies. In his writing and speeches, Chomsky has long held

the view that members of the American Bench and Bar intentionally misinterpret and improperly

construct otherwise clear, plain English language in statutory provisions, in order to achieve

some desired ends. Statutory and regulatory language can be contorted, and alternative meanings

may be constructed ad hoc to rationalize or validate actions or inactions of interested parties who

fabricate connotations or applications of statutory provisions.

Whereas, at least occasionally, policies may have been perfectly well written, the agency

problem in American law has consistently prevented, stalled, and limited universal acquisition

and performance of personal rights. Court cases highlight varied degrees and kinds of

interference with individual rights in education. Courts and private citizens have not infrequently

discussed negligence, apparent willful misconstruction of plain English statutory language,

government overreach, and assorted controversies relating to American children’s fundamental

right to FAPE. Like Newton’s Third Law, the more individuals and groups pushed against the

status quo in their attempts to remodel legal vector behavior, the more maladaptive systems and

their pundits pushed back against proposed alterations. Evidence is found in the deliberative

process and lifespan of each recertification of statutes that amend provisions, modify obligations,

clarify duties, repeal erroneous or anachronistic elements, reinforce principles, or otherwise

redirect human and capital resources. Like a steady stream of water erodes even granite over

27
e.g Polychroniou, C. Noam Chomsky: The Supreme Court is wielding illegitimate authority in
the US (2022).
time, gradual progress and improvement yield noticeable results over decades and centuries

although growth may not always be recognizable in the short and medium terms.

Checks and Balances

ESSA was a recertification and restructuring of NCLB which was a recertification and

restructuring of ESEA. Consistent rewriting and amendment of statutes ipso facto implies

objectives had not been satisfied; that is, necessity is the mother of invention even in matters of

legislative creativity. ESEA may be a Theseus’s Ship: each part of the original Act eventually

replaced with new patches and overwrites, yet the project retains its original identity across many

iterations as political will and legal direction reveal themselves more clearly. As social, cultural,

economic and other psychological trends rise, fall, and transform among the population, elected

leaders and appointed public servants have duties to discern the will of democratic majorities

while simultaneously holding firm to principles central to broader American civilization (e.g.

civil and political rights). Supreme Court cases define policy terms, boundaries, limitations, and

appropriate constructions; Congress may respond with adapted legislation as a workaround to

parameters interpreted at the Supreme Court which may or may not reflect the intent of

Congress; the Executive may independently develop regulations and standard operating

procedures. Over time, the ebbs and flows within and between branches of government

triangulate issues and guide policy and practice.

When the Supreme Court overturned Plessy v. Ferguson28 in Brown v. Board of Education of

Topeka29, it affirmed principles extant in law since time immemorial: that race is not a legitimate

28
Supra note 15.
29
Supra note 16.
determining characteristic in any legal consideration. Congress could have passed legislation

accomplishing the same objective, but inherent shortcomings and inefficiencies in Congress

pushed relevant issues into the Courts which offered a reasonable check and balance in response

to ineffective Executive and Legislative branches. Three years later, Strom Thurmond held the

Senate floor for the longest filibuster in history30, unsuccessfully attempting to prevent passage

of the 1957 Civil Rights Act31. Taking note of then-recent judicial opinions, the Kennedy

administration undertook to integrate public schools – famously unpopular in Southern states that

had vowed to never end de jure segregation. There was such stern opposition to a rule-of-law

environment where every natural person enjoyed equality before the law that another iteration of

the Civil Rights Act had to be promulgated. A decade after Court intervention in education,

Congress passed milestone legislation in the 1964 Civil Rights Act, and in the following year

ESEA launched a new era of American public education. Progress toward universal acquisition

of free, appropriate public education waxed and waned in the half-century following the

mid-20th century. Congress responded in 1971 with Title IX Educational Amendments32, in 1973

with Section 504 of the Rehabilitation Act33, and again in 1975 with the Individuals with

Disabilities Education Act34.

In the two decades after Brown, the Supreme Court repeatedly heard cases and controversies

relating to education. States stalled, compelling the Court to revisit issues in Brown with the aim

of promoting speedy implementation of the newly explicated constitutional principles regardless

of purported impediments to State or local performance. A few years later, public servants from
30
Grassley, C., Filibuster, Congressional Record, 167(48), S1512–S1515 (2021).
31
Supra note 9.
32
20 U.S.C. §1681–§1688.
33
29 U.S.C. § 701 et seq., 28 CFR 35.104.
34
Education for All Handicapped Children Act of 1975 Pub. L. 94-142.
former slave state Arkansas concocted deluded argumentation that intended to block the federal

law. Leaders and civilians in Southern states feigned terror, offense, fear, and pandemonium in

the face of federal mandates to desegregate, prompting the Supreme Court in Cooper v. Aaron35

to clarify that Arkansas was not somehow exempt from desegregation orders simply because its

people conjured up some paranoid imaginings of what might or could have happened after the

state complied.

Individualized Education in a Diverse Population

Following WWII, there was a period of sustained, rapid growth and development across

populations. The paradigm change affected private and public sectors. An emergent business

trend in the 1950s–70s was personalization of services. Mass marketing was going out of style

while individual customer relationship management was coming into fashion. Car companies and

investment firms offered options. Consumers could customize a pizza by choosing its size, crust,

sauce, and toppings. One hamburger might have onions and cheese while the other had bacon

and pickles. These trends continued across the culture where more individuals demanded

acquisition, maintenance, and unrestrained application of their rights, liberties, and freedoms.

The Eisenhower administration was lauded for its part in 1954’s addition of “one nation, under

god” to the Pledge of Allegiance36 and 1955’s printing of “In God We Trust” on newly minted

money37. Still, the Supreme Court soon thereafter found itself heading in another direction with

regard to the government’s view on religion.

35
358 U.S. 1 (1958).
36
Joint Resolution of June 14, 1954, Public Law 83-396, 68 STAT 249, to Amend the Pledge of
Allegiance to the Flag of the United States of America (1954).
37
Pub. L. 84–140.
Rifts, fractures, divisions, and fault lines across American culture were magnified in the 1960s as

the sexual revolution, Civil Rights movement, and Vietnam War counterculture competed for

airtime, political and legal support. Whereas significant parts of the population were decidedly

done with religion, other sects retained their traditional values. Supreme Court cases reflected

social dynamics of the era. Engel v. Vitale38 and Abington School District v. Schempp39 essentially

removed any potential that a specific religion would be endorsed over others in schools, or that

schools would in any way compel religious speech or behavior. In Lemon v. Kurtzman40, the

Court found two states violated the Establishment Clause by providing public funds to

church-related educational institutions. Unsurprisingly, with the Supreme Court restricting

religious activities in schools, Christian Americans pushed back, leading to Wisconsin v. Yoder41

when the Court allowed Amish parents to remove their children from public schools whose

values were in sharp contrast to those in Amish communities.

The Supreme Court’s docket in the early 1970s foreshadowed disproportionality arguments of

the 2020s. Desegregation cases abounded in State and Federal Courts. When groups of

individuals became beneficiaries of a new, more expansive, civil rights regime, there was

resistance and backlash from other individuals and groups who could not imagine a win-win

outcome following changes. As the situation evolved, a new approach to education and

socialization was emerging – one hinging upon individuals, personalization, and options. The

Court endorsed magnet schools in Swann v. Charlotte-Mecklenburg Board of Education42,

hearing facts relating to community bussing with the aim of reducing racial imbalances in
38
370 U.S. 421 (1962).
39
374 U.S. 203 (1963).
40
403 U. S. 602 (1971).
41
406 U.S. 205 (1972).
42
402 U.S. 1 (1971).
enrolment. Bussing was a contentious political issue in the 70s, and communities were divided

on both the pace and extent to which desegregation was to be pursued. Rodriguez v. San Antonio

Independent School District43 pared advances toward interracial equality in American education

with a decision holding the Equal Protection Clause44 does not require equal funding of schools

that serve primarily different races. By Milliken v. Bradley45, the Court had come to recognize

that the central government could not offer solutions to diverse locales, many of whom were

resistant to, or suspicious of, desegregation efforts. Several cases over nearly a half-century

would end race-based Affirmative Action; the first was Regents of the University of California v.

Bakke46, which outlawed quotas in admissions. Also in 1978, Hopwood v. Texas47 initiated the

slow sunset for racial preference in college admissions. Affirmative Action ended in California

in 1996 after voters approved Proposition 209. As a result of waning Federal controls, some

districts abandoned desegregation plans48.

At the end of the twentieth century, the arc of justice pointed toward continued commitment to

universal acquisition of civil rights, and against discrimination in education, while

simultaneously reducing Federal interference with schools which were, are, and shall always be

mainly local concerns and responsibilities. Riddick v. School Board of the City of Norfolk,

Virginia49 and Missouri v. Jenkins50 returned schools to local authorities. In New Jersey v.

T.L.O.51, the Court affirmed school workers are agents of the state, and that the Fourth
43
411 U.S. 1 (1973).
44
U.S. Const. art. XIV, § 1.
45
418 U.S. 717 (1974).
46
438 U.S. 265 (1978).
47
78 F.3d 932 (5th Cir. 1996).
48
Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991)
49
784 F.2d 521 (4th Cir. 1986).
50
515 U.S. 70 (1995).
51
469 U.S. 325 (1985).
Amendment applies to actions such agents make toward students, but the decision split students’

rights considering the special status of schools and their need to maintain an educational

environment. NJ v. TLO foreshadowed Vernonia School District v. Acton52 which held the rather

commonsensical view that a student’s constitutional rights are not violated by random mandatory

drug testing in the course of participation in extracurricular activities (i.e. urine testing in sports).

With each opinion at the Court, and with updated policies and regulations, the rules and

boundaries of the American system found their footing, however impermanent they may be, and

regardless of constant opposition among political factions.

By 2002, Harvard Civil Rights Project researchers were lamenting increasing resegregation in

American public schools53. Since Black Lives Matter launched54 if not earlier, themes relating to

proportionality among races have become feature discussions in both academic literature and

broader mainstream media, but new millennium commentary of this variety discusses de facto

segregation and not de jure segregation since there is no longer in existence in the United States

of America, any written law, policy, regulation or other officially directed government action that

intends to create, sustain, or restore any racial imbalance. In 2007, the Court heard related issues

in Parents Involved in Community Schools v. Seattle55, after which it held that there is no

compelling state interest in overcoming racial disparities in public school admissions. Following

2022’s College Admissions Cases56, the Court declared the temporary equitable relief known as

“Affirmative Action” had reached the end of its lifespan, at least in college admissions. If equal
52
515 U.S. 646 (1995).
53
Frankenberg, E. & Lee, C., Race in American public schools: Rapidly resegregating school
districts, Cambridge, MA, USA: Harvard University Civil Rights Project (2002).
54
Garza, A., Cullors, P., and Tometi, O., Herstory, https://blacklivesmatter.com/herstory/ (2013).
55
551 US 701 (2007).
56
Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023); Students for Fair Admissions,
Inc. v. University of North Carolina, 21-707 (2023).
outcomes in education are achieved in the future, those objectives will have to be met without

explicit policy favoring one race over another, regardless of historical reasons for equitable

remedies or prior temporary programs like race-based admissions.

Long Road to ESSA

Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls57 seemed to

merely reaffirm the same conclusion held in Vernonia v. Acton58 which itself only further restated

the main idea from NJ v. TLO59. That Scalia delivered the Acton opinion and Thomas delivered

the Earls decision was telling in part, considering political conditions in the late-Clinton

administration leading to operating environments after Bush’s PATRIOT Act60. Earls61 came on

the heels of Bush’s landmark legislation – No Child Left Behind62 – whose Title IV was the Safe

and Drug-Free Schools and Communities Act. Section 4002 states the purpose:

“The purpose of this part is to support programs that prevent violence in and around

schools; that prevent the illegal use of alcohol, tobacco, and drugs; that involve parents

and communities; and that are coordinated with related Federal, State, school, and

community efforts and resources to foster a safe and drug-free learning environment that

supports student academic achievement, through the provision of Federal assistance.”

57
536 U.S. 822 (2002).
58
Supra note 52.
59
Supra note 47.
60
Pub. L. 107–56, (2001).
61
Supra note 56.
62
Supra note 2.
The Circuit Court should have denied the Earls appeal and confirmed the District Court’s

summary judgment in favor of the school, citing Vernonia, but there was divided judicial opinion

(opinio juris sive necessitatis) such that the Supreme Court had to rehear and recertify its own

precedent from seven years prior. In 2009, Safford Unified School District v. Redding63 dealt with

egregious state practice (usus64) in the strip search of a 13 year-old girl whose classmate accused

her of possessing ibuprofen in violation of her middle school’s policy. Recall the Charming Betsy

canon that no American law may be construed to violate the laws of nations. Earls and Vernonia

did not tread upon universal human rights or dignity, but the government certainly committed

such a breach in facts leading to the Redding65 case.

Justice Marshall authored the Charming Betsy opinion in the same year as Denmark set

precedent by banning the transatlantic slave trade, possibly staining the canon with irony in that

Marshall demanded no Acts of Congress may be construed as violating the laws of civilized

nations (i.e. broadly speaking, human rights, pacific settlements of disputes, sovereign equality).

Nonetheless, the Charming Betsy canon is still in effect66, meaning either State agents are

obliged to act in accordance with the letter and or spirit of the law which is in parity with norms

and customs of civilized nations, or that the letter and purpose or intent of the law must

reiterated, reworded, amended or otherwise explicated such that both state practice and judicial

opinion may adequately reflect laws of nations. Alternatively, theory and practice diverge in the

63
557 U.S. 364 (2009).
64
See Alcala, R., Opinio juris and the essential role of states, Articles of War, Lieber Institute at
West Point (2021). “States may engage in behaviors for a variety of non-legal reasons, including
political expedience. Because these non-legal reasons may influence their behavior, opinio juris
cannot simply be inferred from State practice.”
65
Supra note 62.
66
Hughes, J. (2021). The Charming Betsy canon, American legal doctrine, and the global rule of
law, Vanderbilt Journal of Transnational Law, 53(4).
“mad option” wherein American laws are interpreted within the Charming Betsy canon’s view,

but that interpretation is not bound to objective reality because state practice and jurisprudence

are decidedly inconsistent with civilized conduct.

Absent judicial intervention in Redding, one could have posited lucid argument that the

American government had gone mad via its agents in public schools, but thankfully the Supreme

Court identified out-of-bounds behavior in declaring unlawful the strip search of a pubescent girl

accused of carrying a common over-the-counter medication for menstrual cramps. Hence, if

Charming Betsy is not overturned, then an active system of checks and balances must ensure

accordance with generally accepted international principles at work in American law and

practice. Congress could not have been reasonably expected to predict that NCLB Title IV would

have resulted in a middle school girl having been violated in search of Motrin, but after the

picture became clear just how decontextualized and misconstrued NCLB’s language would

become in public schools, Congress had to issue a rewrite.

ESSA Scope and Purpose

Federal education policy accomplishes two main objectives: sets minimum standards and

provides funding contingent upon satisfying requirements. ESSA is an outgrowth of NCLB, and

both were amended reauthorizations of ESEA – the primary source of federal aid for primary and

secondary schools67. In 2023, ESSA is valid and enforceable, but it is important to understand the

law carries out the same work that began in the Johnson Administration with ESEA. At the

height of the Global Financial Crisis (GFC) in 2009–2010, federal contributions to primary and

67
Skinner, R., The Elementary and Secondary Education Act (ESEA), as amended by the Every
Student Succeeds Act (ESSA): A primer, Congressional Research Service, R45977 (2022).
secondary education reached an all time high at 12.7 percent of all school revenues, but for every

year following 2010, state and local governments increased their share of funding, leaving the

federal government responsible for less than eight percent of all funding in the most recent

academic year available for reference68. Between 2001–2020, education expenditures in the

United States of America grew at roughly three-fifths the rate of the gross domestic product69.

Federal funding peaked at just under $76 billion in 2009–11 during GFC, then fell to $61 billion

in 2011–12. By 2012–13, Federal contributions had fallen to $56 billion, less than 2008–09

levels. For the most recent year available for study (2019–2020), federal outlays had risen again

to just less than they were in 2011–1270. State and local governments raised contributions at a

rate greater than inflation from 2012–2020, but federal stagnation erased any gains state and

local sources made against rising costs prior to runaway inflation following COVID-19.

NCLB v. ESSA

Promulgating a law requires both a reason to issue new policy and the majority support in

Congress required to pass such policy upon voting. Significant revisions between NCLB

confirmed comments on how NCLB had become “controversial” among legislators in but a few

years after its certification71. The first problem Congress addressed in ESSA was the wordiness

of NCLB. Fewer words generally results in fewer disagreements over the meanings of those

words; as such, ESSA stands about half as lengthy as NCLB. Titles II and III NCLB were

streamlined and rewritten to highlight local powers. NCLB’s Title IV Drug-Free Schools and

Communities Act was essentially repealed. ESSA has a Title IV on 21st Century Schools, but

68
United States Department of Education, Digest of education statistics, Table 235.10, (2022).
69
World Bank, Government expenditure on education, total (% of GDP) (2022).
70
Supra note 67.
71
Rothstein, R., The prospects for No Child Left Behind, Policy Memorandum, No. 19 (2009).
ESSA’s Title IV more resembles NCLB §5001 et seq. Table 1 shows document statistics,

comparing frequency of word use in NCLB with that in ESSA.

Table 1 Linguistic statutory analysis, part one

Pages Total “drug” “shall” “shall “may” “may “require”

Words not” not”

NCLB 670 ~250,000 147 2799 190 1138 69 891

ESSA 392 ~125,000 24 1053 82 473 22 590

NCLB used more restrictive language, more often than ESSA, both in sum total instances of a

specified term and for each term in their respective ratios to total words per document. The 2015

ESEA reauthorization (ESSA) struck through major provisions of 2001’s ESEA reauthorization

(NCLB), such as all provisions under the purpose in §4002. As a result of shifting policy goals,

the word “drug” appears in ESSA 1/6th as much as in NCLB, meaning that at half the total word

count, ESSA references drugs 1/3rd as frequently as NCLB. Drug prevention is certainly a part

of ESSA’s overarching goals in primary and secondary education, but funding that had been sent

to anti-drug programs under NCLB were put back into other programs like magnet schools,

after-school programs, English language learners, and more educational activities.

ESSA realigned ESEA objectives to better suit a changing population in schools at that time. The

Supreme Court had for decades been deferring to state and local authorities in matters of

educational policy. The legislative branch followed with ESSA, solidifying a shift from the strict

federal oversight of the desegregation era, out of the panopticon NCLB institution, into more

shared responsibility and lex loci deference, meaning state and local control of schools bearing
local addresses and state flags. The Fed establishes the floor, but nothing restrains states from

exceeding minimum requirements. Table 2 further shows comparative statistics from NCLB and

ESSA, paying attention to increasing rate of usage for words “local” and “state”, and steady or

decreasing rate of usage for “federal”.

Table 2 Linguistic statutory analysis, part two72

“local” “local” : total “state” “state” : total “federal” “federal” : total

words words words

NCLB 2239 0.008956 3399 0.013596 520 0.00208

ESSA 1269 0.010152 2190 0.01752 250 0.002

In summary, ESSA language was less rigid and offered more options for local and state

authorities to develop plans that work for their unique situations and people. Proficiency targets

were mostly eliminated and replaced with growth. States must align math, language, and science

content to qualify for federal funding, but states have more latitude under ESSA to plan and

implement programs tailored to their distinct needs (ESSA §1111, Title VIII). Yearly or annual

progress was deprioritized in favor of holistic and flexible assessments of teachers, students, and

schools. Table 3 displays tallies showing decreased overall usage for the terms “proficient,

proficiency, annual, progress, and yearly”. As a percent of all words, rates for usage of these

terms in ESSA are also less than those in NCLB.

Table 3 Linguistic statutory analysis, part three

“proficient” “proficiency” “growth” “annual” “progress” “yearly”

72
Decimal ratios calculated with keyword as numerator and total word count as denominator.
 NCLB 258 113 5 235 228 99

ESSA 34 61 25 85 87 5

Significant Differences

NCLB’s Title II was 70 pages, compared to ESSA’s 40 pages. Like NCLB, ESSA provided

funding for teacher training in Title II, but ESSA changed the rules for receiving funding.

Teacher shortages are well-known, especially in STEM subjects, and prior to ESSA the result

was that schools were deprived of funding due to NCLB’s §9101 definition of a “highly qualified

teacher”. Schools and students clearly benefit from recruiting, training, and retaining in-field

teachers, but supply and demand are environmental factors schools cannot change. Schools,

districts, and states found themselves penalized under NCLB as a side effect of social, cultural,

and economic conditions. To ensure funds arrive at schools that are doing what they can with

what they have available, ESSA allows states to establish their own requirements for teacher

licensure, assessment, and professional development.

ESSA reauthorized and apportioned financial resources for ESEA programs including education

of migrant (Title III) and indigenous American children (Title VI), teacher recruitment and

training (Title II), second-language support for non-native English speakers (§3003),

well-rounded education (§4107), safe and healthy students (§4108), after school programs (Title

IV Part B), charter and schools of choice (Title IV Part C–D), inclusion (§1111(B)), and

innovative state programs (§1201–1204). ESSA (§1111) retained and modified accountability

standards that states must meet in order to receive federal funding which is especially crucial for

Title I-A schools.

The single biggest structural difference between NCLB and ESSA is ESSA’s deference to states.

ESSA’s §1005 (20 U.S.C. 6311) on State Plans grants full discretion to State Departments of

Education to design, implement, and maintain their own systems of academic standards,

assessments, and accountability. However, progress has not been entirely fruitful. In 2017,

Dynarski at the Brookings Institute had noticed that most of the state ESSA plans were

anachronistic, foreshadowing future amendments at the federal level to further direct states

whose autonomy is not absolute.

At subparagraph (a)(4)(ii)(I)(aa), ESSA positions parents before teachers, administrators or other

school officials as “members of multidisciplinary peer-review teams”. ESSA also delivered more

power to parents via engagement and cooperation in sections 1010 and 1116, which are written

to give parents a voice in their children’s education. ESSA empowered parents to help direct

local and state plans for instruction, assessment, accountability, and reporting. Correspondingly,

since 2015, a majority of states have proposed and most of them passed sui generis legislation

under the banner of parental Bills of Rights in education73. Less than a decade after ESSA, the

federal House passed an amendment entitled Parental Bill of Rights Act in 202374.

That Congress wrote §9202 into ESSA is not irrelevant. Perhaps a nod to Tinker v. Des Moines75,

the legislature stated its blanket endorsement of students’, teachers’, and administrators’ First

Amendment rights in elementary or secondary schools, or in the course of their work at such

schools. In 2023, section 9202 is probably a lifeline for a few students, teachers, and

73
Valley, J., 32 states and counting: Why parents bills of rights are sweeping US, Christian
Science Monitor (Mar 23, 2023).
74
H.R. 5, Parents Bill of Rights Act (2023).
75
393 U.S. 503 (1969).
administrators who hold minority viewpoints among an otherwise contentious faculty, staff,

administration, and student body. That ESSA implemented the First Amendment76 again implies

prior need established to do so, meaning Congress intended to reconfirm its support for free

thought, debate, and expression in early education, among minors and their caretaker-educators.

Indeed, progress often emerges from or after conflict, and there is a compelling government

interest in directing public conflict toward verbal, linguistic, deliberative, didactic, or other

intellectual means as opposed to visceral, physical conflict as a means of dispute resolution.

Schools must themselves become the places which develop and implement plans which work

best for their unique needs. People who occupy those classrooms and offices must speak openly,

candidly, and completely about issues in order to have a clear understanding of the whole

situation. Before a probabilistic model may be constructed regarding the likelihood of success or

failure of some plan, or of some event given conditions, a mathematician must have a reasonable

understanding of sample space: the limits of possibility, all knowns, known-unknowns,

confirmed interplay among known factors, etc. Qualitative focus groups, surveys, feedback

forms, and other language-based methodological constructions establish facts from which plans

may be formulated. If complex, millennia-old problems shall be solved to any meaningful

degree, then the very people involved in the problem-solving process (i.e. students, teachers,

administrators at school during the school day), must have latitude to discuss matters of instant

concern to their success. At the end of ESSA, §9202 seals a strong departure from both the

Vietnam-era ESEA and 9/11 NCLB.

76
U.S. Const. amend. I.
 Rate of cultural and political change increases alongside

speed and access to communication, and as such, another

ESEA reauthorization may depart further from ESSA if a

future Congress were so motivated to break tradition and

splice a jump discontinuity into the stepwise function of

policy progress over time. Figure 1 uses federal

expenditures as a substitute for “success” in graphical

representation of a stepwise function with jump

discontinuity, indicating a hypothetical major shift in

2020s education policy.

Figure 1: Stepwise function jump discontinuity

If ESSA retained flaws from prior versions of ESEA, those will likely be subjects of future

revisions. NCLB offered too few rewards for compliance to overcome penalties when schools

failed to meet standards. If the federal government will only contribute a paltry seven percent –

which is necessary albeit insufficient for Title I schools – then it is in no position to dictate terms.

A federal law must have some rewards and penalties, however, so then the challenge becomes

providing sufficient incentive without over penalizing laggards. Figure 1 introduces an

immediate doubling of federal contributions as an example of a radical policy shift that could

satisfy various stakeholders. Teachers, for example, could be paid a salary commensurate with

their education, experience, and objective value to the community but only with federal money to

supplement local and state expenditures.

State ESSA Plans

Congress clearly intended ESSA to be a departure from NCLB. Major statutory revisions

followed decades of Supreme Court cases and cultural shifts toward more individual rights, more

local freedoms, more state power over central authority. When Congress drafted ESSA, it may

have predicted a long future of multiple recertifications, modifications, amendments, repeals, and

other rewrites of the law. Whatever precise course the future of American educational policy

takes, the likeliest general direction is that states and local districts hold most of the power.

Growth v. Proficiency

ESSA section 1005 reauthorized and amended ESEA section 1111(c)(4), requiring states to

create plans including long term academic and graduation targets. Under ESSA, the United

States Department of Education (USDOE) became a source of guidance and hub for data

collection and retrieval whereas ESSA endowed states themselves with authority to design,

implement, monitor and update educational policies aimed toward achieving student success.

USDOE provides public access to every state plan77. A review of fifty state plans found every

state classified learners by race, socioeconomic status, English language learning status, and

disability as per ESEA §1111(c)(2). Every state observed differential outcomes between groups

for performance in math and English language arts (ELA), and for graduation rates. Every state

used historical data to develop interim and long-term objectives for student success, as qualified

by proficiency in high school math, English, and 4-year graduation rates. Some states included

proficiency goals for science, and 5-year or 6-year graduation rates. Eighteen of fifty states set

identical long-term proficiency goals for all students. Twenty-three of fifty set the same four-year

77
United States Department of Education, ESSA consolidated state plans (2021).
graduation rate goals for all students. Table 4 provides comparison of long-term proficiency and

graduation targets by state.

Table 4: State academic proficiency and graduation targets78

State: AL AK AZ AR CA CO CT DE FL GA
S S D S D
Academic D D 90 80 growth D 100 D growth D
proficiency: 2030 2027 2039 2029 n.d. n.d. 2030 2030 2020 n.d.
S S S D S D
D 90 90 94 growth D 94 D growth D
Graduation: 2030 2027 2030 2028 n.d. n.d. 2029 2030 2020 n.d.
State: HI ID IL IN IA KS KY LA ME MD
S S
Academic D D D D D 75 D 90 D D
proficiency: 2020 2022 2032 2023 2021 2030 2030 2025 2030 2020
S
S S 63.5E S
D D D D 95 95 D 56.5M 90 D
Graduation: 2020 2022 2032 2023 2021 2030 2030 2025 2030 2020
State: MA MI MN MS MO MT NE NV NH NJ
S
60E S S S
Academic D 45.5M 85 70 D D D D D 80
proficiency: 2022 2025 2020 2025 2026 2023 2026 2022 2025 2030
S S S
D 94.4 85 D D D D D D 95
Graduation: 2020 2025 2025 2025 2026 2022 2026 2022 2025 2030
State: NM NY NC ND OH OK OR PA RI SC
Academic D D D D D S S D S S
proficiency: 2022 2022 2027 2024 2026 50* 80 2030 75 70*

78
“D” indicates different targets per subgroup whereas “S” indicates the same targets for all
subgroups. For states that set the same targets for all students, the percent proficiency is in line
two of each cell, where “E” indicates ELA, and “M” indicates math proficiency for states that
created different targets per subject; an asterisk indicates a special consideration alongside
proficiency goals in Oklahoma and South Carolina. California, Florida, and Vermont developed
novel “growth” targets as opposed to nominal percent proficiency. The bottom line in each cell is
the year in which states intended to achieve long-term targets; “n.d.” indicates no specific date.
 2030 2025 2029 2035
S S S S S S
D D 95 90 D 90 90 D 95 90
Graduation: 2020 2022 2027 2024 2026 2025 2025 2030 2031 2035
State: SD TN TX UT VT VA WA WV WI WY
S S
S S 75E S 47M
Academic 100 D D D growth 70M 90 D D 53E
proficiency: 2033 2025 2032 2022 2025 2025 2027 2030 2023 2031
S S S S S S
100 D 94 D 90 84 90 D D 88
Graduation: 2033 2025 2032 2022 2025 2025 2027 2030 2023 2031
Every state plan presented historical data showing variance between groups in both academic

achievement and graduation rates. Though less frequently reported, there is also always variance

within groups as differential performance is implicit in large groups of individuals. Mississippi,

for example, made different graduation targets for different groups, presumably based on trends

in prior data. Mississippi also set a goal for all students of 70% proficiency in both ELA and

math by 2025. Oklahoma set its sights lower, at 50% for all students by 2030 with growth

continuing in every year following achievement of 50% proficiency for each subgroup. Baseline

proficiency in 2017 for Asian/Pacific Islander students in Oklahoma was 67% for ELA, 63% for

math, and so targets for that group maintained those percentages across tables in Oklahoma’s

ESSA plan document. Whereas growth is a stated objective for all students, to achieve long-term

goals and sustain improvement, different groups must still perform differently; some must grow

at higher rates than others to achieve targets, and as a group achieves higher rates of proficiency,

it will eventually be mathematically improbable in the short term and impossible in the long term

to continue the same annual growth trends. Thus, the situation is complicated.

In Oregon, 73 percent of Asian students were proficient in English in 2016, as compared to 32

percent for Black/African American, 36 percent for Hispanic/Latino, 37 percent for American
Indian/Alaska Native, 41 percent for Native Hawaiian/Pacific Islander, 58 percent for

Multi-racial, and 60 percent for White students. In the same year, 22 percent of Students with

Disabilities were proficient in English, as compared to 23 percent of English learners, and 42

percent of Economically Disadvantaged students. Oregon chose to set proficiency targets at 80

percent for all groups in 2025, meaning Asian students needed to grow less than 10 percent from

their baseline whereas Students with Disabilities would have had to improve their skills by more

than three and one-half times their baseline proficiency. Not only are such disproportionate

growth expectations unrealistic, but the targets imply the state implicitly accepts high-performing

groups must plateau. Figure 2 shows Oregon’s English Language Arts progress targets for years

2016–2025.

Figure 2: Oregon long-term ELA goals

The graph clearly shows Oregon expected groups with the lowest historical performances to

double, triple, or nearly quadruple their proficiency rates. Accommodations and modifications
could help adjust the scale of performance for English learners and students with disabilities such

that their target growth rates would not unreasonably exceed their abilities. However, equal

outcomes in the future are no more likely than in the present or past when it has never been

observed, so Oregon and other states with equal targets probably fail to satisfy the “achievable”

criteria for S.M.A.R.T. goals (Specific, Measurable, Achievable, Relevant, Time-bound79).

Michigan’s 45.5 percent targets for math, or Oklahoma’s 50 percent general target plus growth

might be more realistic objectives than Rhode Island’s 100 percent or Minnesota’s 85 percent

targets, but there is no guarantee given the complexity of policy and practice. Individual students

in each group may continue to grow year-on-year in spite of flat targets, but if high-achievers

continue to grow, they will eventually perform off the scale as compared to their peers in other

groups, all of which exposes flaws in state models. Figure 3 offers a potential solution to the

plateauing problem for individuals: stratified growth and proficiency which mathematically

resembles slope fields.

Figure 3: Slope field model for scalable, tiered measurement of growth and proficiency

Like 32 other states, Florida set different targets

for different categories of learners with the aim

of achieving growth in all groups, improving

performances in each of their respective

trajectories, and thereby closing gaps between

lower and higher performing groups or between

individuals in distinct groups. As NCLB

expired and political will fomented to draft

ESSA, Florida’s long-term proficiency and

79
e.g. Leonard, K. & Watts, R., The ultimate guide to S.M.A.R.T. goals, Forbes (May 4, 2022).
graduation goals emerged. Florida may have been ahead of the curve as its Department and

Boards of Education analyzed data from the country’s second-largest public school system with

the aim of developing a plan tailored for the state’s unique needs. Researchers and other

collaborators on earlier iterations of Florida’s ESSA plan found significant differences between

groups, and they generated regression models to extrapolate growth functions. Because different

groups had been performing at different levels, analysts found different slopes, growth rates, and

arcs toward upper bounds of proficiency. Notwithstanding the academic rigor employed in

drafting of their ESSA plan, the State of Florida’s Department and Boards of Education endured

contemptuous readings of statistical models under the headline “race-based education goals”80.

Despite relevant facts that have rightly propelled sociocultural and political movements in recent

years to attack racism with increasing vigor, schools must have rights and space to address

unequal average outcomes between and within groups.

To be sure, one student’s membership in a group does not imply that student demonstrates any

specific trait or tendency. Population or subgroup averages and trends are not robust or reliable

indicators of individual outcomes, but over time and across the entire sample those general

characteristics are quantifiable or qualifiable. Whereas no state found equal proficiency or

graduation rates between groups in historical data, some states still set equal future targets for all

groups, indicating that some groups must then grow and improve significantly more than other

groups if universal objectives can be approached. Several years into ESSA plans, states have

sufficient data to conclude equal outcomes are unlikely in any foreseeable future given the slope,

concavity, and skewness of the mathematical functions over time. In other words, states have
80
e.g. Alvarez, L., Florida officials defend racial and ethnic learning goals, New York Times
(Oct 17, 2012); Ricketts, G., Florida introduces race-based education goals, National
Association of Scholars (Oct 17, 2012).
witnessed gaps in secondary educational achievement and completion across their entire datasets,

but some states set long-term goals that would require either fictional near-vertical year-on-year

growth or magical jump discontinuities.

Somewhat unsurprisingly, states have failed to demonstrate consistent progress toward their

apparently unrealistic proficiency targets for high school math and ELA. National Assessment of

Educational Progress (NAEP)81 released its Nation’s Report Card statistics only for years 2009

and 2013 for high school whereas grade four and eight are available for years 2013, 2015, 2017,

2019, and 2022. States likewise reported high school proficiency rates less frequently than those

in lower grades. Publicly-accessible high school data is not robust, but researchers can still make

some inferences and deductions from available data. NAEP82 reported declining performance in

both ELA and math for 13 year-olds between 2012 and 2023, with an increasing rate of decline

post-pandemic. Grade eight performance is somewhat indicative of high school performance.

States that published recent high school data reflected general trends found in middle schools.

Table 5 shows recent proficiency measures from a sample of states that released interim results

compared against their ESSA plan targets.

Table 5: Observed and target ELA and math proficiency

State: HI ID IL IA MA MI MS OK OR WV
Observed 60E 65.1E 28.8E 69E 58E 52.2E 46.7E 38E 46.2E 50E
Proficiency 26M 34.7M 29.8M 67M 50M 29.9M 52.6M 19.5M 20.4M 21M
(year) 2022 2023 2022 2023 2023 2023 2023 2022 2023 2023
61E 68.7E 55.1E 80.4E 81E 57.6E 70E 43E 74E 59.6E
Target 54M 61.1M 47.4M 84.2M 75.9M 45.3M 70M 37M 72M 49.9M
(year) 2020 2022 2022 2022 2023 2023 2025 2022 2023 2023

81
National Assessment of Educational Progress, NAEP long-term trend assessment results:
Reading and mathematics (2023).
82
ibid
Under ESSA, states decide how to measure and report proficiency. For example, some states use

ninth or tenth grade Algebra 1 performance for math while other states use eleventh or twelfth

grade ACT or SAT. As a result, state data are not directly comparable against other states.

Mississippi’s 52.6 percent proficiency in math could translate to higher or lower performance as

compared to Oregon’s 20.4 percent. Wisconsin Institute for Law & Liberty Research Director,

Flanders, criticized school system report cards, saying they “paint a relatively rosy picture…but

seem to be whistling past the graveyard of deep problems with student achievement”83. Indeed,

states can obscure some failures by shifting focus to grades 3–8, and by aggregating all student

data to publish mean average proficiency rates across the entire student population. States

compromise some external validity when they diverge significantly from other states, which may

not cause problems internally, but when students transfer across state lines, or apply to

out-of-state colleges, those receiving states and institutions may have difficulty validating

measures of academic achievement from outside sources.

Methodological concerns aside, available state data clearly show failures to achieve ESSA plan

targets in high school ELA and math, which are the most relevant measures to broader economic

and social conditions. Elementary school performance is important because it builds skills that

students take to high school, but high school performance is more directly related to workforce

participation. Whereas a student could fail eighth grade English, math, or science and still

recover in high school, then proceed to college and earn a high-value degree in a STEM field, if

that student fails to achieve in high school, they are unlikely to participate in highly-skilled

trades later in life, which has net negative impacts on the country’s economy. High school

83
Flanders, W., Wisconsin report cards mask troubling proficiency rates, Wisconsin Institute for
Law & Liberty (2023).
content is more rigorous and more aligned with adult work demands regardless of skill category

in a large, competitive, mature economy, and thus elementary achievement is less relevant to

national academic, economic, and financial wellbeing.

Figure 4: Slope field model for scalable, shifting normal curves

Like figure 3, Figure 4 shows another

potential adaptation that State Departments

of Education could apply as a workaround to

limited growth over time. Normal

distribution curves (figure 4) and logistic

growth models (figure 3) can be shifted and

raised repeatedly such that states may have a

scalable response supporting continuous improvement among student populations over several

generations. Within these slope-fields models, school officials may group students by

performance in addition to or instead of demographic criteria. Students falling into different skill

or performance groups can have different targets at their uppermost boundaries. Successive

generations of students could also then gain a sense of stability and permanence, which could

have positive benefits in communities as parents could then have a clearer understanding of

standards and methods in schools that have been using the same basic format for decades.

Innovative Assessment Program (IAP)

In writing No Child Left Behind, the Congress considered shortcomings of the Improving

America’s Schools Act84 – their then-current version of ESEA – and added provisions requiring

all states to deliver annual math and English assessments. Congress identified a problem in
84
Pub. L. 103–382 (1994).
American schools – lack of available data with which to compare students, schools, and states –

and developed a strategy to solve or reduce that problem. On the ground, however, the federal

government provided insufficient financial and human resources to remedy failing students and

schools but levied strong penalties for nonperformance or underperformance, in the form of

reduced funding to schools and professionals who were already famously short on money. The

result was a counterproductive pattern whereby schools that were already wealthier and

higher-performing received benefits while poorer, habitually lower-performing schools lost

funding. The NCLB strategy, ironically, willfully ignored decades of academic research

demonstrating strong, positive correlations between socioeconomic status and academic

achievement85. Although no single factor is guaranteed to influence a child’s academic

performance, and though correlations do not prove directional causality, researchers have

repeatedly found that students of lower socioeconomic status tend to perform worse than their

wealthier peers. As such, NCLB was an ineffective remedy to low and middling performance.

In response, Congress passed ESSA which allowed states to decide the best course of action

given their unique needs. At §1204, ESSA offered states options to develop more creative,

integrated, or non-traditional testing systems. In spite of this latitude, the Innovative Assessment

Development Authority (IADA) received relatively few applications. Seven states applied, and

the IADA approved five – Louisiana, New Hampshire, North Carolina, Georgia, and

Massachusetts. Hawaii’s and Indiana’s 2020 applications were not approved. Georgia withdrew

85
Reyes, L. & George, H., Race, sex, socioeconomic status, and math, Journal for Research in
Mathematics Education, 19(1) (1988); Walker, D., Greenwood, C., Hart, B., & Carta, J.,
Prediction of school outcomes based on early language production and socioeconomic factors,
Child Development, 65(2) (1994); Sirin, S., Socioeconomic status and academic achievement: A
meta-analytic review of research, Review of Educational Research, 75(3) (2005).
from the program in 202386. Georgia’s state superintendent said, “Innovation has been suffocated

by rigid federal requirements”87. Multiple sources also commented on shortcomings of the

Innovative Assessment Program (IAP)88. Low-participation rates alongside strong criticism of

IADA and IAP imply a need for further policy changes that deliver more flexibility and latitude

to states that should have power to develop more bespoke accountability systems.

Recommendations

NCLB expired in 2007, and Congress passed ESSA in 2015. Interim funding was secured

through temporary annual recertifications while members of Congress formed some reasonable

agreements on how to author a successful education Bill that would solve problems NCLB had

created89. As of the 2023–24 academic year, ESSA is in a similar situation as NCLB in 2009.

ESSA text includes fiscal outlays for years 2017–2020 with minor notes following for years

through 2022 but not beyond. Educational expenditures are included in the general budget, so

there is little practical effect of outdated statutory terms in this way, however, given the history of

NCLB it is conceivable that another reauthorization of ESEA could occur before 2030.

Many state plans have already expired – using their long term goals as an indication of the

intended life of the plan. Other states are grappling with achieving or readjusting goals into the

early-2030s. Given the facts, when policymakers approach the problem of how to ensure

universal FAPE and high achievement, they ought to consider revising their approach and

86
United States Department of Education, Innovative Assessment Development Authority (2023).
87
Timberlake, A., Building innovative assessments in an era of accountability (2023).
88
e.g. Badrinarayan, A., Darling-Hammond, L., DiNapoli, M., Kini, T., Miller, T., & Woods, J.,
Developing state assessment systems that support teaching and learning: What can the federal
government do? [Brief], Learning Policy Institute (2023).
89
Supra note 70.
strategy such that they can ensure continuity and stability over the life of a child’s twelve year

primary and secondary education. Considering abundant research linking disproportionate

educational outcomes with factors like family income and parent education90, there is little doubt

that different groups of students will continue to perform at different levels despite high-quality

classroom instruction and traditional test preparation. The federal government can address many

of these issues.

If the American law is to be in accordance with the laws of nations, and not merely interpreted as

such under the Charming Betsy canon, legislators must consider emergent and resurgent

international calls for more transparency, justice, and humane treatment of citizens in the United

States91. Given the course of events 2020–present, both at home in the United States and

elsewhere around the world with regard to social justice, anti-racism, and civil rights movements,

a conscious representative polity would be negligent if the next version of ESEA 3.0 omitted

sections detailing specific rights, privileges, and duties of educational shareholder professionals

and students, and stakeholder parents. A new version of ESEA might likely include a Bill of

Rights for parents, teachers, and students. In other words, ESEA 3.0 should address

contemporary issues in state practice (usus) and jurisprudence (opinio juris) that direct public

agencies and agents to provide more individual rights, and to protect those rights of natural

persons, especially children.

90
Ferguson, H., Bovaird, S., & Mueller, M., The impact of poverty on educational outcomes for
children, Paediatrics Child Health, 12(8), 701–706 (2007); Shores, K., Kim, H., and Still, M.,
Categorical inequality in black and white: Linking disproportionality across multiple education
outcomes, American Educational Research Journal (2019).
91
United Nations, UN rights experts criticize US failure to unequivocally reject racist violent
events (2017); White House, Factsheet: US efforts to combat systemic racism (2021); Human
Rights Watch, Racial discrimination in the United States (2022); Amnesty International, Racial
justice (2023); United Nations, UN rights experts slam ‘systemic racism’ in US police and courts
(2023).
Student & Teacher Bill of Rights

ESEA 3.0 should ban corporal punishment nationwide considering no peer-reviewed research

supports the practice92 while robust scientific and social research suggests corporal punishment is

related to “impaired cognitive and socio-emotional development, poor educational outcomes,

increased aggression and perpetration of violence”93 (World Health Organization, 2021). The

American Academy of Pediatrics released a policy statement which concluded, “The use of

corporal punishment in schools is not an effective or ethical method for management of behavior

concerns and causes harm to students”94. New Zealand’s Ministry of Social Development

promoted an article which found, “The extent of agreement in the research literature on this issue

is unusual in the social sciences”95. That PhD-holding principals, vice principals, superintendents

and School Board members would continue to endorse the debunked practice in school is more

than just a little hypocritical, considering those same educational professionals rely on

peer-reviewed academic research for guidance on virtually every other matter, yet ignore

consensus that corporal punishment should be banned from schools.

Federal legislators should approach the next major education Bill with the aim of drafting a law

worded such that it could stand the test of time in a dynamic country like the United States of

America. ESEA 3.0 could remove racial categorization in response to changing face of the

92
Gershoff, E., More harm than good: A summary of scientific research on the intended and
unintended effects of corporal punishment on children, Law & Contemporary Problems, 73(2)
(2010); Durrant, J. & Ensom, R., Physical punishment of children: Lessons from 20 years of
research, Canadian Medical Association Journal, 184(12), 1373–1377 (2010).
93
World Health Organization, Corporal punishment and health (2021).
94
Peterson, J., Corporal punishment in schools, Pediatrics, 152(3) (2023).
95
Smith, A., The state of research on the effects of physical punishment, Social Policy Journal of
New Zealand, 27 (2006).
nation, where mixed race children are increasingly common and, moreover, the rigidity of

mid-20th century discrete categories of race fail to reflect the fluid, continuous nature of race

across multiple generations in large, diverse populations. An updated, upgraded ESSA could

promote First Amendment rights for students whose school dress could be a matter of personal

freedom of expression, so long as some minimum standards are met that schools would set to

maintain an educational environment (i.e. modest dress, some prohibited imagery and language

on clothing).

Legislators could offer teachers greater job security and competitive pay in a comprehensive

recertification of the nation’s foundational education law. The federal government could provide

significantly more funding so local districts could offer competitive salaries for degreed

professionals, particularly in high-demand fields like science, technology, engineering, and

mathematics. Teachers’ privacy rights could be protected in federal education law with the right

to disconnect96, right to hold and communicate political or other views publicly via social media,

and related privacy rights granted to other highly-skilled professionals in the United States.

Statutory prohibition of disciplinary action for otherwise protected speech would also reinforce

First Amendment rights for teachers who are often held to a higher standard than the

Constitutional floor which other community members and public officials enjoy. Disputes

relating to protected speech could be met with words; that is, teachers may not be disciplined, but

students, parents, or administrators may challenge ideas and debate on the merits of arguments.

In summary, new legislation could protect teachers’ tenure and job satisfaction, thereby

96
See European Parliament resolution of 21 January 2021 with recommendations to the
Commission on the right to disconnect (2019/2181(INL)).
increasing stability and quality in educational institutions which may reemerge as competitive

places of work.

Qualitative Data Collection & Analysis

If states presently applied scalable models of proficiency and growth as depicted in figures 3 and

4, there could be conflicts with §1111(c)(4)(A)(i)(III) obligations to ensure closure of

achievement gaps between groups. As previously mentioned, lower-performing groups are

unlikely to catch up to higher-performing groups, and a plateauing problem could emerge with

equal targets. In other words, the current framework has implicit flaws, and it is possible that any

future amendments will also have significant conflicts or limitations unless, that is, legislators

craft extraordinarily innovative policies. A potential workaround is to draft a revised §1111 and

implement scalable proficiency targets with slope field models like figures 3 and 4, and to

simultaneously establish assessment systems that include quantitative and qualitative measures.

Districts and schools are advised to include robust qualitative data, feedback, and analyses in

their reporting. Quantitative data (i.e. statistics) are sometimes confusing, and more importantly,

too easily manipulated or misunderstood97. Language communication is essential to forming

consensus, clarifying expectations, creating common shared visions and missions for

organizations. Qualitative reporting softens rough edges of numbers and graphs; words represent

concepts in a complementary form such that the spaces pure math leaves open may be filled with

linguistic motifs; quantitative data mutually reinforce lexical content. Mixed methods,

97
See Huff, D. (1954). How to lie with statistics. W.W. Norton & Company: New York, NY,
USA.
interdisciplinary reporting bridges gaps between departments, personnel, divisions, across spatial

and temporal boundaries.

The Education Trust in conjunction with eight other professional, rights and advocacy groups

published a joint comment addressed to the Office of Elementary and Secondary Education, in

which they recommended collecting qualitative data from diverse stakeholders98. The letter

called for more multi-tiered collaboration on developing assessments, including students and

teachers within a peer-review system for assessment and reporting. The federal government

should clarify terms such that more states may seize the opportunity to develop their own

innovative assessments which may redefine achievement standards. Considering universal failure

in all fifty states to meet or exceed interim or long-term proficiency targets, a major adjustment is

commonsensical. States should consider merging subject areas (e.g. English and history, math

and reading, math and technical career education, language arts and math for specific purposes).

States should also collect more robust interview, focus group, and survey data from students,

teachers, administrators, and stakeholder community members.

National harmonization

The Commerce Clause has yet not been applied to education, which is decidedly first a matter of

local and state concern, but the fifty states together have reason to recognize some federal

oversight and guidance is beneficial. Free movement of people and knowledge across borders

requires a modicum of standardization, or the process of moving records and students across

state lines becomes inefficient and potentially unreliable. Congress has power to regulate

98
Education Trust, Joint comment regarding the Innovative Assessment Demonstration Authority
(2023).
interstate commerce (i.e. the national economy), and educational systems are foundational

elements of a functional, growing, thriving, and sustainable economy at scale. Since NCLB, the

United States has endured economic crises, increasing wage gaps, a shrinking middle class, and

associated political turmoil. Given the gravity of these recent trends, events, and circumstances,

Congress may find it beneficial to establish a common framework for quantifying and qualifying

educational progress, especially in high schools from which colleges and businesses would

recruit the next generations of talent.

Every state either missed its ESSA proficiency long-term targets or is likely to fall short,

meaning states should either lower targets or redefine student success. IADA offered some

freedom but states still need more incentive to spend time and energy developing complex IAPs.

Conflicting interests exist since math and English performance in high school positively correlate

to long-term earnings and quality of life99, meaning rigor cannot be reduced if schools intend to

maximize benefits of public education, but they must simultaneously make content more

accessible and targets more realistic. Legislators deliberating ESEA 3.0 should, therefore,

consider including a mandatory, nationwide grade 11–12 exit exam that more reliably tracks

proficiency, using a singular rubric for subject areas like ELA, math, and science. States would

retain controls over their internal assessments, but for the purposes of ensuring comparability

99
Ackerman, D., Do the math: High school mathematics and lifelong earnings [Paper
presentation], Eastern Economics Association Conference 2003, New Jersey, USA (2003); Rose,
H. & Betts, J., The effect of high school courses on earnings, Review of Economics and
Statistics, 86(2) (2004); James, J., The surprising impacts of high school math on job market
outcomes, Federal Reserve Bank of Cleveland Economic Commentary (2013); French, M.,
Homer, J., Popovici, I., & Robins, P., What you do in high school matters: High school GPA,
educational attainment, and labor market earnings as a young adult, Eastern Economic Journal,
41(3) (2015).
between states, the federal government could require SAT, ACT, or an ad hoc assessment

developed at the U.S. Department of Education.

Conclusion

Considering prior congressional behavior with regard to ESEA over its first sixty years, one can

reasonably predict that the legislature will revisit issues, continuing to refine language, adapt to

changing environmental conditions, and otherwise certify further versions of the Act which is

meant to ensure rights to FAPE not only costs the government money but also produces

significant social, cultural, and economic impacts – that it produces return on investment. Recall

Chief Justice Warren’s Brown v. Board of Education opinion stated unequivocally that education

is perhaps the most important function of local and state government, then associated schooling

with national character:

“It is required in the performance of our most basic public responsibilities, even service

in the armed forces. It is the very foundation of good citizenship. Today it is a principal

instrument in awakening the child to cultural values, in preparing him for later

professional training, and in helping him to adjust normally to his environment.”

Public education should result in more productive, healthier, civil behavior among citizens; if it

does not, that failure represents suboptimal return on investment. Legislatures may then seek to

redirect funds or rewrite policies in order to adapt to changing populations, times, and

circumstances. As the situation in schools developed over the course of ESSA 2015–2023, there

were simultaneously macro-cultural changes leading to increasing focus on racial,

socioeconomic, and other issues relating to equality, equity, fairness, and discrimination.

Students in 2023–24 attend schools that have recommitted themselves to the mission of civil and

human rights. The evolving vocal disposition among educators toward inclusion and justice

reflects resurgent global trends decrying racism and inequality. In other words, Americans have

demanded their domestic policy aligns with emergent and extant elements of the “laws of

nations” – that Charming Betsy is not forced but rather that American laws legitimately reflect

norms and customs in the international community.

If there is a best way to run a school, district, state, or other educational system, then it must

include the entire organization, all its people, and peripheral stakeholders. If the public school

system in the United States of America shall live up to its inherent potential, then there must be

cooperation of nearly the whole community, and there must be active communication between

individuals, across and among groups. As education becomes more universal, and its institutions

collaborate across political boundaries, the laws of nations and norms of civilizations are not

irrelevant; in fact, those topics are taught or referenced in social studies classes because they

guide our American government, if only providing an abstract frame of reference. Past

Congresses and Departments of Education were caught off-guard, by surprise, or lagging when

relative consensus emerged among global leaders regarding slavery in the early 19th century and

then again with racial discrimination in the mid-twentieth century. Americans undoubtedly want

to retain their identity as innovators and leaders at scale, so educators are best advised to

advocate and enact creative, dynamic, forward thinking, innovative, divergent and convergent

solutions to fossilized problems in schools (i.e. discipline, productivity, absenteeism, middling

performance, etc.). With persistent effort, the nation-state and its people can find a
mutually-beneficial course of action regarding education law and practice which requires some

urgent attention at multiple levels.

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