Fordham Urban Law Journal Volume 30 | Number 4 Article 1 2003 Edison Schools and the Privatization of K-12 Public Education: A Legal and Policy Analysis Lewis D. Solomon Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Education Law Commons Recommended Citation Lewis D. Solomon, Edison Schools and the Privatization of K-12 Public Education: A Legal and Policy Analysis, 30 Fordham Urb. L.J. 1281 (2003). Available at: https://ir.lawnet.fordham.edu/ulj/vol30/iss4/1 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. Edison Schools and the Privatization of K-12 Public Education: A Legal and Policy Analysis Cover Page Footnote Danielle Rynczak, J.D., Florida State University College of Law, 2002, and Matthew C. Franker, second year law student at the George Washington University Law School, assisted in researching and writing this Article. Without the extraordinary efforts of Matthew A. Mantel, Reference Librarian, the Jacob Burns Law Library, the George Washington University Law School, this Article could not have come to fruition. This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol30/iss4/1 EDISON SCHOOLS AND THE PRIVATIZATION OF K-12 PUBLIC EDUCATION: A LEGAL AND POLICY ANALYSIS Lewis D. Solomon* If you were asked to advise today's leaders, what do you think is the greatest single problem facing the United States today? I don't have any doubt: The greatest problem facing our country is the breaking down into two classes, those who have and those who have not. The growing differences between the incomes of the skilled and the less skilled, the educated and the unedu- cated, pose a very real danger. If that widening rift continues, we're going to be in terrible trouble. The idea of having a class of people who never communicate with their neighbors-those very neighbors who assume the responsibility for providing their basic needs-is extremely unpleasant and discouraging. And it cannot last. We'll have a civil war. We really cannot remain a democratic, open society that is divided into two classes. In the long run, that's the greatest single danger. And the only way I see to resolve that problem is to improve the quality of education.1 INTRODUCTION Over the fifteen years following the 1983 publication of the landmark study, A Nation at Risk,2 more than six million Ameri- cans dropped out of high school. Of those who remained in school, ten million students reached the twelfth grade unable to read at a basic level, more than twenty million were unable to do basic math, and nearly twenty-five million were unfamiliar with the essentials * Lewis D. Solomon is the Theodore Rinehart Professor of Business Law at the George Washington University Law School. Danielle Rynczak, J.D., Florida State University College of Law, 2002, and Matthew C. Franker, second year law student at the George Washington University Law School, assisted in researching and writing this Article. Without the extraordinary efforts of Matthew A. Mantel, Reference Li- brarian, the Jacob Burns Law Library, the George Washington University Law School, this Article could not have come to fruition. 1. Mardell Jefferson Raney, Interview with Milton Friedman, 5 TECHNOS: Q. FOR EDU. & TECH., Spring 1996, at 4, 11. 2. The National Commission on Excellence in Education, A Nation at Risk: The Imperative for Education (Apr. 1983), at http://www.ed.gov/pubs/NatAtRisk/risk.html (last visited May 15, 2003). 1281 1282 FORDHAM URBAN LAW JOURNAL [Vol. XXX of American history.3 In the most recent Third InternationalMath- ematics and Science Study, which compared half a million students in over forty-one countries at three grade levels, American twelfth graders were so inadequate on their math and science exams, that only students from Cyprus and South Africa scored lower.4 In short, many American high school graduates are barely able to communicate, orally or in writing, they are deficient in mathemat- ics, ill-informed about United States history, and lack good work habits. The numbers are even more astonishing in urban areas where minority students drop out or slip through the cracks of an educa- tional system on the brink of its demise. As America's inner cities deteriorate, the parents of children living in poor neighborhoods are further disadvantaged in the kind of education their offspring receive. Inner city public schools are shamefully deficient and are marked by low academic performance, increased violence, high dropout rates, and demoralized students and teachers.' Poor phys- ical conditions, inadequate supplies, non-existent technology, tran- sient students, poorly qualified teachers who quickly burn out, and highly qualified instructors who move on,6 also characterize many urban schools in low income areas. We have re-created a dual school system, separate and unequal. A widening chasm exists be- tween good and bad schools, between those students who receive an adequate education and those who emerge from school barely able to read and write.7 Low income, minority children go to worse schools, have less expected of them, and are taught by less moti- vated and less knowledgeable teachers. As a result, an enormous achievement gap exists between white and Asian-Americans on one hand, and African-Americans and Latinos on the other. These gaps are reflective of those that have developed between high per- forming schools and low achieving schools; between those people who are educated and those who are not; and between those stu- dents who complete high school and those who drop out. This crisis in American K-12 public education, marked by dissat- isfaction with student outcomes and perennially underperforming 3. William J. Bennett, A Nation Still at Risk, 90 POL'Y REV. 23, 23 (1998). 4. Diane Ravitch, Our School Problem and Its Solutions, 9 CITY J. 33, 34 (1999). 5. See, e.g., Walter C. Farrell, Jr. et al., Will Privatizing Schools Really Help Inner- City Students of Color?, 52 EDUC. LEADERSHIP 72, 72 (1994). 6. See, e.g., Jay Mathews, Top Teachers Rare in Poor Schools, WASH. POST, Sept. 10, 2002, at A5. 7. See, e.g., William C. Symonds et al., For-ProfitSchools, Bus. WK., Feb. 7, 2000, at 72. :2003] EDISON SCHOOLS 1283 schools, led, in part, to increased focus on accountability and the passage of the No Child Left Behind Act of 2001.8 This Act, the most extensive reform of the Elementary and Secondary Educa- tion Act of 1965, increases federal K-12 funding, mandates student testing in math and reading every year in grades three through eight, and allows parents to transfer children from failing public schools to other public schools run by their present systems or to charter schools within the same district. It also led to an increased willingness to explore other alternatives, including solutions previ- ously considered radical, such as the privatization of K-12 education. Most generally, privatization involves the transfer of public funds to the private sector, and the provision of services by private enterprises that were once provided by the public sector. It con- notes a shift in the control of public resources and an alteration in the structures through which public funds are spent. 9 Privatization through outsourcing in K-12 public education is not new. For-profit firms have long supplied books, crayons, com- puters, tutoring, and counseling services. School districts have long contracted out transportation, custodial, and food services to achieve greater cost efficiencies. What is new is the use of business firms to manage a school, a group of schools, or even an entire school system. In the 1990s, school boards began contracting out instructional services. For-profit educational management organizations ("EMOs") began to compete directly with public school bureau- cracies. At the same time, many states allowed the formation of publicly-funded charter schools that operate with more flexibility than traditional public schools. This Essay examines the private takeover of the management of K-12 publicly funded schools. Under this management model, pri- vate enterprises replace the administrators who had previously 8. Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified at 20 U.S.C. § 6301 et seq. (2003)). See generally Adam Clymer & Lizette Alvarez, Congress Reaches Compro- mise on Education Bill, N.Y. TIMES, Dec. 12, 2001, at Al; Helen Dewar, Landmark Education Legislation Gets FinalApproval in Congress, WASH. POST, Dec. 19, 2001, at A8. Parents' caution and the lack of capacity at "good" schools to handle additional students, however, limit the school act's "choice" aspects. See Chester E. Finn, Jr., Leaving Many Children Behind, WKLY. STANDARD, Aug. 26/Sept. 2, 2002, at 15; Di- ana Schemo, Few Exercise New Right to Leave Failing School, N.Y. TIMES, Aug. 28, 2002, at Al. 9. See generally DAVID OSBORNE & TED GAEBLER, REINVENTING GOVERN- MENT: How THE ENTREPRENEURIAL SPIRIT Is TRANSFORMING THE PUBLIC SECTOR (1992); E.S. SAVAS, PRIVATIZATION: THE KEY To BErTER GOVERNMENT (1987). 1284 FORDHAM URBAN LAW JOURNAL [Vol. XXX been appointed by local school boards. These private firms con- tract with charter boards or districts to operate one or more schools. Public sources provide funding for the delivery of services under a specific set of guidelines. EMOs receive authority to man- age a school, set the curriculum, sponsor professional development, and, sometimes, staff the school and set performance incentives.