Professors Liebman and Sabel have written a landmark piece of legal, political, and institutional analysis about the landscape of school reform over the past thirty or so years. It is in the best tradition of scholarly legal analysis, focusing on the implications of judicial and legislative decisions in the context of complex social and institutional forces. I find few points of disagreement on the specifics of the argument Liebman and Sabel present, but I am skeptical about the overall tone of the analysis. If we accept their view of school reform, writ large, it is a highly teleological process-moving toward a higher, better end-or, at the very least, a Hegelian process-moving through alternate stages of opposition and synthesis toward a higher, better end. As a student of the implementation of public policy over the last thirty years, I subscribe to the “anything that can go wrong, will” school of thought, and, on my better days, to the “devil is in the details” school. So while generally affirming Liebman and Sabel’s conclusions, I take friendly exception to their optimistic tone.
For the past several years, my colleagues and I have been doing research on schools’ responses to accountability systems and on the processes of improvement that schools and school systems go through when they increase student performance. Some of this work is summarized-accurately, I might add-in the Liebman and Sabel article. Some is not. In general, my conclusions about the “new accountability” in public education are parallel with those of Liebman and Sabel. Performance-based accountability systems seem to be associated with aggregate increases in student performance. The stronger and tighter the accountability requirements, the greater the improvements, and the more those improvements seem to be associated with traditionally low-performing student populations. Secondary schools have huge systemic problems of student retention and dropping out, but our work suggests that the introduction of so-called “high stakes accountability” has not aggravated these problems, and, in fact, may have raised their visibility. In addition, we find, as Liebman and Sabel suggest, that internal accountability is an important predictor and determinant of how effectively schools respond to the demands of external accountability systems. That is, schools that manifest clarity of mission and purpose, agreement on high quality instructional practice, and acceptance of responsibility for student performance, individually and collectively, seem to be able to make decisions consistent with success under new accountability systems. Likewise, schools with low internal accountability seem not to be able to work effectively in accountability systems.
With these findings as background, let me suggest some reasons why I do not fully share the teleological optimism of the Liebman and Sabel piece.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.