….any powers that are not specifically given to the federal government, nor withheld from the states, are reserved to those respective states, or to the people at large. [10^th Amendment]

Education is not mentioned in the Constitution, and therefore is a power “reserved” for the states and segregated schools were commonplace under laws passed across the nation.

In 1896 the Supreme Court sustained a Louisiana law requiring segregated facilities on public transportation,

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it… The argument also assumes that social prejudice may be overcome by legislation, and that equal rights cannot be secured except by an enforced commingling of the two races… If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

In the lone dissent Justice John Marshall Harlen wrote,

I am of the opinion that the statute of Louisiana is 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. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the blessings of freedom; to regulate civil rights common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens,

For the next sixty years “separate but equal” was the constitutional standard.

In 1955, in a unanimous decision, the Court rejected the separate but equal standard writing,

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

A decade later President Johnson proposed a major reform of federal education policy in the aftermath of his landslide victory in the 1964 United States presidential election, and his proposal quickly led to the passage of the Elementary and Secondary Education Act.

The act provides federal funding to primary and secondary education, with funds authorized for professional development, instructional materials, resources to support educational programs, and parental involvement promotion. The act emphasizes equal access to education, aiming to shorten the achievement gaps between students by providing federal funding to support schools with children from impoverished families.

Among his first acts President Bush passed the bipartisan reauthorization of ESSA, retitled “No Child Left Behind, arguing the law “confronts the soft bigotry of low expectations.”  The law required testing of all children in grades 3-8, the public disagregation of test results and the requirement of states to intervene in persistently low achieving schools (Read here)

The annual testing requirements of the law became controversial with increasing conflicts, civil rights organizations supporting the testing requirements, arguing the testing results highlighted inadequate funding in high poverty districts and the opponents opposing “highstakestesting,” as unnecessary, both stressful and creating a test “test prep heavy” curriculum.

In 2015, under the Obama administration, ESSA was once again reauthorized, renamed the Every Student Succeeds Act (ESSA) and generally applauded for granting to states far more authority. (Read detailed summary here). The law did initially encourage alternative avenues.

• Establishes a pilot program in up to seven states (or consortia of states) that allows for the complete revamping of their assessment system, meaning that it’s possible that summative state tests as we know them will be eliminated, replaced by competency-based assessments, performance-based assessments, interim assessments, or something else entirely

Unfortunately ESSA did not provide funding for what were called Innovative Pilots and few states applied. NYS did not apply, without funding the pilot was not possible. 

Randi Weingarten, leader of the AFT, argued for sampling rather than testing all students as per NAEP and alternate year testing, Wade Henderson, the CEO of the Leadership Coalition on Civil and Human Rights, representing over 200 Civil Right organizations opposed and prevailed.

The emphasis on testing, “test and punish” attitudes infected most states, and the criticism mounted

Representative Jamaal Bowman (D-NY) introduced the “More Teaching, Less Testing bill,

 “We need a revolution in our public schools that unlocks the brilliance of all our kids and cultivates a generation equipped to take on 21st century challenges,” said Congressman Jamaal Bowman Ed.D. (NY-16). “This means valuing diverse intelligence and fostering school cultures grounded in joyful, rigorous learning across a wide range of subjects and skills. We must end the over use, abuse, and misuse of standardized testing in our schools, and trade a broken metric for a system that empowers educators and communities to excite, inspire, and challenge their students. Our already underfunded schools should not be forced to spend valuable time and resources teaching to the test. Kids deserve experiential learning opportunities, and the time and space to play, discover, and create. These pursuits cannot be bubbled in on a multiple choice scan sheet.”

See details of the bill here .

In a bid to get more states to develop “innovative” assessments, the U.S. Education Department has lifted the cap on its innovative assessment pilot so any state may apply.

The announcement came at the department’s State Assessment Conference Sept. 26-27 in Arlington, Va. (See breakout session topics here)  Until now, the Innovative Assessment Demonstration Authority (IADA) has been open to a maximum of seven states (or consortia of states), but only a handful have participated, and none have applied since 2020. To jump-start interest, USED officials lifted the cap on the number of states that may apply.

As you probably remember, the IADA allows states to use competency-based and other models in the assessments they use for federal accountability in exchange for two types of flexibility in their testing programs:

• States can run their new and previous assessment systems at the same time without requiring students to take both tests, and
• They can try out new models with a subset of districts before deciding whether to scale them statewide by the end of the program.

Scott Marion, the leader of the Center for Assessment asks the crucial question,

Most people agree that the factory model of education doesn’t work. If we don’t want students learning the same knowledge and skills at the same time, as if they’re on one big conveyor belt, why would we require all the adults in K-12 education to use essentially the same accountability (or assessment) system?

We are moving towards significant changes in the assessment and accountability process and continue to ask:  how can the process help teachers to improve their practice? We must be part of the process, including teacher unions at the table.

The Board of Regents “suggests” watching a presentation of another approach to assessment, watch here.

I’m hopeful.