Legislating Accountability: Standards, Sanctions, and School District Reform
Saiger, Aaron J., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. ACCOUNTABILITY, DETERRENCE, AND SIGNALING A. School District Nonaccountability and the Disestablishment Incentive B. District Responsiveness to Incentive Systems C. State Incentives and Capacity D. A Two-Player Model of Deterrence II. OTHER ACTORS A. Courts B. Washington CONCLUSION: WHITHER THE EDUCATIONAL POLITY?
"Hold the public schools accountable!" This clarion cry, first heard in state capitals in the late 1980s, has since been repeated and amplified by many states, by the courts, and most recently, by the federal government. Only where school districts and schools are held to "account," the theory goes, ought one expect any program of school reform to be truly effective. Because unaccountable school districts lack incentives to succeed, waves of school reform have been able to wash over the nation's most troubled school districts for decades without substantially ameliorating their dismal and disgraceful performance. (1)
There can be no doubt that the programs grouped under the general rubric of the "New Accountability" mark an important shift in efforts to reform these troubled districts. (2) Accountability reforms operate in the public sphere, implicitly denying the claim that only markets can solve the problems of failing schools. They rely upon legislative and executive action, rather than locating the power to reform troubled schools in judges, who have limited control over schools' activities, no ongoing experience with education, and a constrained repertoire of remedies. And instead of regulating top-down, accountability reforms encourage flexibility at the local level where educational programs are implemented; they impose demands regarding outcomes and information sharing but leave local officials to find the best ways to reach the standards the programs impose.
This Article argues that accountability programs indeed offer a new and promising way to catalyze the reform of schools in crisis, but not by virtue of the features of the programs that have dominated public controversy. The most important innovation through which the New Accountability addresses the problems of distressed schools has to date been relegated to the sidelines. Public debate has focused on the wisdom and validity of testing students to measure their performance, the risks of regimenting education across a diversity of schools and modes of inquiry, the proper measurement of educational improvement, and the educational legitimacy of setting standards for schools in the first place. (3) The debate has come--implicitly in many cases and explicitly in some--largely to identify the New Accountability entirely with the practices of standard-setting, testing, and the dissemination of information about results. (4)
To make such an identification is to miss the reason that policymakers adopted a banner of "accountability" rather than simply one of "standards": American schools and school districts are peculiarly unaccountable institutions. They are insulated from the consequences of malfeasance by their natural monopoly over policy implementation, which ultimately must occur in classrooms widely dispersed and difficult to monitor; they are even more insulated by the peculiar intergovernmental structure of American education, which distributes responsibility for schools across two types of governments--states and school districts. (5) Although the state is the locus of constitutional authority over school policy, school districts enjoy virtually total power over policy implementation. This gives districts unusual freedom to pursue their own self-interest, which often diverges from the state's educational agenda. (6) District resistance to externally motivated policy change is the shoal upon which many previous education reform efforts have foundered. The fundamental task of accountability is to undermine district power to resist reform--not so much to define standards as to discover how to hold schools and school districts to whatever standards are established. …