May 17 marks the 70th anniversary of the U.S. Supreme Court’s landmark school desegregation decision in Brown v. Board of Education. There is ample reason to celebrate Brown: not only did it mark the beginning of the end of the racial caste system in the South, but also it reinvigorated the Equal Protection Clause of the Fourteenth Amendment. Its implications reach far beyond race and education, as important as those matters remain.

At the same time, it is remarkable how many of the legal and policy questions raised by Brown remain unresolved. Consider some of the issues many school systems now confront:

• To what extent can school districts take students’ race into account in order to produce diverse schools and classrooms? In recent years the Supreme Court has limited the use of race-based assignments but has also allowed ample wiggle room.
• To what extent can school districts change the admissions requirements of exam schools to increase the number of Black and Hispanic students if the readily predictable result (and perhaps a secondary purpose) is to reduce the number of Asian American students?
• A number of public schools offer voluntary “affinity” groups or courses limited to Black students and led by Black teachers. Does this practice violate federal law?

These questions remain the subject of intense debate and litigation seven decades after Brown because the Supreme Court has never spelled out exactly why segregation violates the U.S. Constitution, what “desegregation” means, and what schools must do to comply with Brown’s mandate. Chief Justice Earl Warren’s constitutional argument in Brown was perfunctory, resting more on flawed social science evidence than on a convincing interpretation of the Fourteenth Amendment. Neither in his 1954 opinion nor in his brief follow-up opinion in Brown II the next year did Warren specify what schools had to do to comply. One tragic consequence of this silence was that virtually no desegregation occurred in the South for a decade and a half. Just as important, when the Supreme Court did start to issue rulings on desegregation in the late 1960s, its opinions were ambiguous, contradictory, and meandering. For decades, the high court left lower federal courts and school officials without clear guidance on how to proceed.

As I explain in my 2023 book, The Crucible of Desegregation, the justices have oscillated between two interpretations that I label the “colorblind/limited intervention” approach and the “racial isolation/equal opportunity” approach. The first establishes a relatively clear legal rule: in all but the most extraordinary circumstances, government cannot use race to classify or categorize its citizens. The central goal is to take a particularly pernicious weapon out of the hands of government officials. Prohibiting the use of racial classifications struck at the heart of the racial caste system in the South without requiring courts to get deeply involved in education questions—thus the “limited intervention” half of the label.

According to the alternative interpretation, Brown held out the broader promise of equal educational opportunity. Providing equal opportunity to minority students requires not just ending legal segregation but also eliminating “racial isolation,” whatever its cause. Indeed, federal judges bear responsibility for examining all features of public education to ensure schools provide adequate instruction and fair treatment to minority students.

Supporters of both interpretations can find language in Brown to support their claims. Each approach has an Achilles’ heel: the former is too easy to evade; the latter too difficult to put into effect. Not until 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, did the high court spell out these competing positions, and even then, neither received support from a majority of the justices.

What Brown Didn’t Say

Writing for the Supreme Court in 1954, Warren was chiefly concerned with maintaining the court’s tenuous unanimity (which was seriously in doubt in the months leading up to the desegregation decisions), writing an opinion simple enough to appeal to the average citizen, and striking a tone that might ease the South into compliance. Although the court would soon strike down every form of state-sponsored segregation, Warren was understandably reluctant to announce such a controversial break with precedent in 1954. Therefore, he did not invoke the famous words of Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But in Bolling v. Sharpe, the companion case to Brown that struck down school segregation in the District of Columbia, Warren seemed to endorse this understanding: “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.” And Brown II required school districts “to achieve a system of determining admission to the public schools on a nonracial basis” (emphasis added here and below).

In Brown I, though, Warren hedged, writing, “In the field of public education the doctrine of ‘separate but equal’ has no place.” He looked “instead to the effect of segregation itself on public education.” Segregation retards “the educational and mental development of negro children” and “deprive[s] them of some of the benefits they would receive in a racial[ly] integrated school system.” When a state undertakes to provide public education, it becomes “a right which must be made available to all on equal terms.” Thus, on top of Brown’s apparent ban on racial classifications was layered a vague commitment to “equal opportunity,” to be judged in part by the effect of education practices on minority children.

In 1954–55, the court gave no indication of just what school districts had to do to comply with the ruling. Warren’s even shorter opinion in Brown II merely told school officials to desegregate “with all deliberate speed.” The standard established by the court for evaluating schools’ desegregation efforts was as vague as the schedule for achieving it was amorphous.

Colorblindness, Then and Now

In the 1950s, state-mandated separation of the races was viewed by almost all advocates of desegregation as the central problem, and prohibition of racial classifications as the obvious solution. This was definitely true of Thurgood Marshall and the other NAACP leaders who had long dedicated themselves to the cause. Their initial brief insisted that “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race or color alone.” In oral argument, the NAACP’s Robert Carter explained that the “one fundamental contention which we will seek to develop” is that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunity among its citizens.”

Members of the court and the NAACP litigation team recognized they would face intense opposition in the South, but they assumed the desegregation process itself would be relatively straightforward. Heading up the team, Thurgood Marshall assured the court that “the only thing that we are asking for is that the state-imposed racial segregation be taken off,” leaving local officials “to work out their solutions of the problem to assign children on any reasonable basis they want to assign them on.” That, he suggested, could be achieved in the summer. Almost everyone envisioned a return to neighborhood schools in the South—after decades of busing students past the nearest school to attend a segregated one. In the border states, de jure segregation did quickly disappear.

But in the Deep South the court’s decision was greeted with the “massive resistance” U.S. Senator Harry Flood Byrd of Virginia called for in 1954. Within two years, Byrd had amassed a coalition of nearly 100 southern politicians committed to blocking Brown’s implementation. By the late 1950s and early 1960s, southern school districts were using “freedom of choice” plans to avoid anything more than token desegregation. Almost all federal judges conceded that these plans were constitutional as long as the choices students and their parents made were in fact free, and not tainted by the presumption that students would attend their previously segregated schools. But in most cases, “freedom of choice” was little more than a transparent fraud, corrupted both by administrative manipulation and by informal intimidation. This created a major practical challenge to those who supported a colorblind interpretation of Brown.

By the second half of the 1960s, the Civil Rights Act was the law of the land, yet virtually no Black students were going to school with white students in the Deep South. Federal judges on the Fifth Circuit Court of Appeals decided that time for stalling had finally run out. Working with the Department of Health, Education, and Welfare (HEW), they demanded data to prove that formerly segregated districts had taken “affirmative action” to achieve “the conversion of a de jure segregated dual system into a unitary, nonracial (nondiscriminatory) system—lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities.” Initially, the demands of the Fifth Circuit and HEW were relatively mild: nearly two decades after Brown, they required only 10 to 20 percent of Black children be enrolled in formerly all-white schools. Without such a numerical standard, it is doubtful any significant change in school enrollments would ever have been achieved. But a Rubicon had been crossed. Now racial classifications were being used to promote desegregation, not enforce segregation.

Was the use of racial assignments a temporary measure designed to wring stigmatizing racial identification out of school districts guilty of unconstitutional segregation, or was it an appropriate—even constitutionally mandated—measure for achieving racial balance in perpetuity in the North and West as well as the South? If the Supreme Court seemed to suggest the latter in the 1970s, by the 1990s it had begun to suggest the former.

Several of the justices appointed by Presidents Reagan and Bush reintroduced the colorblind interpretation of the Fourteenth Amendment that the NAACP had previously favored but long since abandoned. In 1995 Justice Clarence Thomas wrote that the “simple, yet fundamental, truth” announced in Brown is “the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” According to Justice Anthony M. Kennedy, “Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake.” Justice Sandra Day O’Connor argued that the use of so-called “benign racial classifications” implies “confidence in [courts’] ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.” According to Chief Justice John G. Roberts, “It is a sordid business, this divvying us up by race.”

In the 2007 Seattle case, the high court sharply limited school districts’ ability to use race-based student assignments to achieve what by then was widely known as “diversity” rather than “racial balance.” Four members of the court adopted a colorblind interpretation of the 14th Amendment, but the pivotal fifth vote was cast by Kennedy, who, in his concurring opinion, offered schools significantly more flexibility in using race-based assignment. The court’s 2023 decision in the Harvard affirmative action case suggests that it is inclined to further restrict school districts’ authority. But given how long the court has gone without issuing desegregation opinions, we should not expect a definitive decision soon.

From Racial Segregation to Racial Isolation

Soon after the Fifth Circuit and HEW used numerical targets to jumpstart what UCLA professor Gary Orfield has aptly described as the “reconstruction of southern education,” the Supreme Court finally broke its silence and handed down the first of a flurry of desegregation decisions. In 1968, a unanimous court announced that each school board in formerly segregated districts must “come forward with a plan that promises realistically to work, and promises realistically to work now” (emphasis in original). The demand for immediate action was certainly in order. But what does it mean “to work”? School districts, Justice William J. Brennan explained, have an “affirmative duty” to “convert to a unitary school system in which racial discrimination will be eliminated root and branch.” What, then, is a “unitary school system”? Apparently, one that entirely eliminates the “racial identification” of previously segregated schools. In Brennan’s felicitous phrase, school boards must “fashion steps which promise realistically to convert to a system without ‘white’ schools and ‘Negro’ schools, but just schools.”

Trying to guess what the justices meant, the lower courts held that for a formerly “dual” school system to eliminate “racially identifiable” schools, the racial composition of the student body in each school in the district must approximate that of the district’s overall student population. In other words, white and Black students must be distributed proportionally among all the district’s schools.

Was this a judicial remedy designed to undo the effects of decades of segregation and noncompliance? Or was it a constitutional requirement for all schools, whether or not they had engaged in intentional racial discrimination? On this crucial matter the Supreme Court remained noncommittal. But lower courts repeatedly asserted that racial imbalance by itself reduces the educational opportunities of minority students and is therefore unconstitutional.

This understanding was first enunciated in a 1967 report of the U.S. Commission on Civil Rights entitled Racial Isolation in the Public Schools. Its conclusion summarized what soon became the conventional wisdom. The “central truth” announced in the report was that:

Negro children suffer serious harm when their education takes place in public schools which are racially segregated, whatever the source of such segregation may be. Negro children who attend predominantly Negro schools do not achieve as well as other children, Negro and white. Their aspirations are more restricted than those of other children and they do not have as much confidence that they can influence their own futures. When they become adults, they are less likely to participate in the mainstream of American society, and more likely to fear, dislike, and avoid white Americans.

The commission recommended that Congress enact legislation specifying that in no public school should minority enrollment exceed 50 percent.

This “central truth” was conveyed to federal judges by a cadre of expert witnesses who testified in the trial phase of desegregation cases. For example, during the first round of litigation in Keyes v. School District No. 1, Denver, Judge William Doyle stated, “We cannot ignore the overwhelming evidence to the effect that isolation or segregation per se is a substantial factor in producing unequal educational outcomes.” Consequently, “we must conclude that segregation, regardless of its cause, is a major factor in producing inferior schools and unequal educational opportunity.” Reflecting on the testimony he had heard about the harm done by racial isolation, the trial judge in the Detroit case found it “unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it as de jure or de facto.” The court’s goal was simply “to remedy a condition which we believe needs correction.”

Behind this “racial isolation” argument lay two assumptions: that Brown promised not just the elimination of racial discrimination, but a broader “equal educational opportunity,” and that changing the racial composition of schools would substantially improve educational opportunities for minority students. For example, the district court judge who ordered the desegregation of San Francisco’s schools in 1970 cited the Coleman Report and the Civil Rights Commission’s study to conclude that “Black students in identifiably black schools do not perform as well as they would perform in an integrated school. . . . While integration of schools would improve the academic performance of black children, it would have little or no adverse effect on the academic performance of white children.” Similarly, the judge in the Charlotte, North Carolina case confidently asserted that “the experts all agree” not only that “a racial mix in which black students heavily predominate tends to retard the progress of the whole group” but also that “if students are mingled with a clear white majority such as a 70/30 ratio . . . the better students can hold their pace, with substantial improvement for the poorer students.” Over three decades later, Justice Stephen G. Breyer claimed that social science research indicates “that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting.”

Especially in the North, where school districts are much smaller than in the South, coming close to a 70/30 ratio proved nearly impossible. The long-term trend of suburbanization coupled with the white flight that often accompanied desegregation orders meant that ending “racial isolation” would require massive inter-district busing. This proved extraordinarily unpopular. Endorsing such measures would have required the Supreme Court both to explicitly acknowledge the “racial isolation” rationale and to endure a major political backlash—including a possible constitutional amendment prohibiting busing to achieve racial balance. In 1974 it temporarily backed away from the “racial isolation” argument, insisting that judges could impose cross-district busing only if there was evidence that the state government or the affected suburbs had engaged in discriminatory behavior.

Over the past half century, demographic change has made eliminating “racial isolation” even harder. Today, fewer than half of all public school students are non-Hispanic white. Over the next decade, the proportion of Anglos in public schools is expected to decline to 45 percent, while the share of Hispanics grows to 29 percent. In the West, Hispanics already outnumber Anglos 42 percent to 38 percent. During the first decade of the 21st century, the student bodies of the 20 largest school systems in the country were, on average, 20 percent Anglo, 38 percent Hispanic, 32 percent African American, and 9 percent Asian. In 2017 the percentage of white students was 7 percent in Los Angeles and Miami-Dade County; 5 percent in Dallas; 8 percent in Houston; 2 percent in Detroit; 12 percent in Chicago; 14 percent in San Francisco and Philadelphia; 15 percent in Boston; and 16 percent in New York City. Further complicating these calculations is the fact that a growing share of students—today about 6 percent—label themselves “interracial.” In the 1960s and 1970s, the implicit goal of desegregation plans was to make virtually all schools majority white. But today that is out of the question in many parts of the country.

From Racial Balance to Education Quality

Recognizing the futility of trying to end “racial isolation,” many judges refocused on other techniques for improving educational opportunity. For example, Judge Arthur Garrity concluded that Boston’s entire public school system was inadequate. He rejected the NAACP’s proposed plan because it failed to address the system’s many flaws. The special master he appointed to formulate a remedial plan asked, “What the hell is the point in desegregation if there are no good schools?” During the remedial phase of litigation in Reed vs. Rhodes, the Cleveland case, Judge Frank Battisti became alarmed at the “inferior education being meted out to those who were the victims of discrimination.” He devised remedies to address “educational testing, reading programs, counseling, extracurricular activities, and relations with universities, businesses and cultural institutions.” In 1977 the Supreme Court upheld an order requiring Detroit to establish new magnet and vocational schools as well as “in-service training for teachers and administrators, guidance and counseling programs, and revised testing procedures.” Such reforms, the court claimed, would “restore the victims of discriminatory conduct to the position they would have enjoyed” had public officials not acted unconstitutionally.

The most extensive effort to improve the quality of education in schools deemed “dual” by federal judges came in Kansas City, Missouri. Judge Russell Clark explained that the “long term goal of this court’s remedial order is to make available to all [Kansas City] students educational opportunity equal to or greater than those available” to the average student in suburban schools. To accomplish this, Clark overhauled the entire school system, turning each city high school into a magnet school with a special theme, ranging from science and math to classic Greek and agribusiness. By 1995 Kansas City was spending more than any comparable school system in the country. The cost of these court-ordered reforms was about $2 billion, most of which came from the state of Missouri and the rest from tax increases mandated by the court. Unfortunately, as Joshua Dunn shows in Complex Justice: The Case of Missouri v. Jenkins, the court’s plan never came close to working. Both the number of white students in city schools and the test scores of Kansas City students continued to decline. Eventually, Black parents revolted against the court’s plan, reinstituting more traditional neighborhood schools.

By the late 1970s, preliminary evidence from school districts undergoing desegregation had begun to trickle in. Reviews of these studies, including a major assessment conducted by the National Institute of Education (NIE), found small improvements in reading by Black students in districts undergoing desegregation, but no change in mathematics. The director of the NIE project found “the variability in effect sizes more striking and less well understood than any measure of central tendencies”—not surprising, given the wide variety of desegregation plans. Thirty years later Stanford professor Sean Reardon and his co-authors wrote, “It remains unclear if, and to what extent, school racial segregation affects student achievement.”

What Works?

Over 50 years ago the Supreme Court demanded that school districts that had engaged in unconstitutional discrimination “come forward with a plan that promises realistically to work.” But it never explained what it means for a plan “to work.” In 2006, 553 social scientists signed an amicus brief in support of Seattle’s effort to use racial assignments to promote diversity in its schools. “Racially desegregated schools,” they warned, “are not an educational or social panacea and the extent of benefits will depend on how desegregation is structured and implemented.” As readers of Education Next realize, in school reform, the devil is always in the details.

In his 2019 book Children of the Dream: Why School Integration Works, economist Rucker C. Johnson analyzed longitudinal studies extending back to the 1960s and found a strong, positive long-term relationship between the number of years Black students spend in a desegregated school and their total years of educational attainment, adult wages, and health status. Similarly, he found an inverse relationship between number of years spent in a desegregated school and future incarceration and poverty rates. He attributes these beneficial outcomes to two shifts accompanying desegregation: “sharp increases in per-pupil spending” and “significant reductions in the average class sizes experienced by black children.” These changes were particularly important in the South, where for years Black schools were notoriously underfunded. Johnson found that money mattered much more than Black-white student exposure. That is, where resources increased significantly but exposure did not, students did well. Conversely, “in court-ordered desegregation districts in which school spending for black children did not appreciably change, however, although the children experienced greater classroom exposure to their white peers, they did not make a comparable improvement in their educational and socioeconomic trajectories.”

In 2022 Garrett Anstreicher, Jason Fletcher, and Owen Thompson used a similar analytic technique to analyze a larger sample of students experiencing desegregation. They found “qualitatively quite large” positive effects in the South but “no substantive effects outside of the South.” They suggested that the “impactful legacy” of desegregation efforts “lies in their systematic dismantling of the overtly segregated educational systems that prevailed in the Jim Crow South.” The “distinct paucity of effects outside the South,” in contrast, indicates “the limitations to the efficacy of legally imposed integration initiatives in certain settings.” These findings are not surprising, but they highlight the hazards of equating the legal segregation of the Jim Crow South with the “racial isolation” one finds in virtually every big city today.

In the 1960s and 1970s, judges and educational “experts” could be forgiven for believing that adjusting the racial balance of schools by itself would produce substantial education benefits. Almost no one believes that today. Over the past half century, we have substantially reduced fiscal inequities between rich and poor school districts; we have improved the quality of education provided to English learners and students with disabilities; we have created programs to improve nutrition and health care for students from poor families; we have taken a variety of steps to identify and improve substandard schools. Yet “equal educational opportunity” continues to elude us. And Covid shutdowns seem to have wiped out several decades of progress.

As school officials continue to wrestle with these difficult issues, the Supreme Court is likely to further limit the explicit use of race in assigning students to schools and to classrooms. On the one hand, it is hard to see how race-based “affinity” classes can long survive judicial scrutiny. On the other hand, the ease with which southern school officials delayed desegregation in the 1950s and 1960s indicates how difficult it will be for Asian American parents and students to invoke the colorblind argument to challenge changes in exam-school criteria. Manipulating admissions and assignment rules to get the right racial result is usually easy; proving invidious intent is usually hard. Moreover, the court’s colorblind interpretation of the Equal Protection Clause and the Civil Rights Act does not place any restrictions on the use of socioeconomic criteria to promote diversity in schools at any level.

The history of Brown shows that, under the right circumstances, court-based reform can bring about substantial change in education, both directly through court orders and indirectly by spurring other government institutions into action. But the federal judiciary’s inability to specify what “desegregation” means, why we want it, and what school districts must do to achieve it led us down many dead ends. The best way to honor Brown is to forsake heated, ideological arguments about what the decision “really means” and to focus instead on the concrete steps that evidence has shown to improve the quality of education we provide to minority students.

R. Shep Melnick is Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

For decades, the Democrats were “the party of education,” ringing up double-digit leads in polls asking Americans which major party they trusted most to handle education. During parts of the Clinton and Obama presidencies, that lead topped 30 points. Now, though, the Dems’ edge has shrunk to just a few points, with the occasional poll showing Republicans nosing ahead. Even so, an increasing share of voters have confidence in neither party when it comes to education.

What’s going on, and how should the parties respond? As we enter a hotly-contested election cycle, Education Next asked a few prominent thinkers to examine the dynamics behind the Democrats’ fall from grace and offer advice to the two parties on how they should shape their education agenda. On the left, Ruy Teixeira, author of The Emerging Democratic Majority and last year’s Where Have All the Democrats Gone?, sketches a path forward for Democrats. And on the right, Frederick Hess and Michael McShane, co-authors of the new book Getting Education Right: A Conservative Vision for Improving Early Childhood, K–12, and College, explain what it’ll take for Republicans to seize the opportunity before them.

Republicans Have a Chance to Unite the Party on Education

By Frederick M. Hess and Michael Q. McShane

Voter trust in Democrats on education has plunged to the lowest level in memory, after years of school closures, critical race theory, gender radicalism, student-loan forgiveness, and campus craziness. Yet, in the face of brewing discontent—as the party of government, spending, teachers unions, and the faculty lounge—they find themselves mostly promising to subsidize an unhappy status quo. This gives the Right—unburdened by ties with unions, public bureaucracies, and the academy—a historic opportunity to defend shared values, empower students and families, and rethink outdated arrangements.

When push comes to shove, though, Republicans have struggled to offer practical solutions. Especially over the past decade, their agenda has mostly been a drumbeat of platitudes: school choice, free speech on campus, resisting wokeism, and keeping Washington out. More choice, less Washington is a sensible mantra, but a mantra isn’t enough.

The fact that the go-to promise for GOP presidential candidates is “abolishing the Department of Education”—a 44-year-old, detail-free pledge that’s proven an exercise in empty posturing—underscores how much more is needed. (Practically speaking, the department is a holding tank for tens of billions in Congressionally mandated federal programs. “Abolishing” it wouldn’t accomplish much unless those programs were also addressed.) The real question is how Republicans plan to approach student lending, early childhood, culture clashes, credentialing, and other concerns. More on all that in a moment.

First, though, let’s confront the elephant in the room: former president Donald Trump, who seems likely to head the GOP ticket in 2024. It’s no great revelation to note that Trump approaches policy as performance art—with views an inch deep and inconstant. Education policy under a second Trump administration would depend on appointees and on which side of the bed Trump woke up that morning. Moreover, even if Trump returns to the White House, his prior tenure made clear that his attention to education is likely to be sporadic and fleeting. This all makes it less useful to focus on the standard-bearer than on the standard.

Now, we’re not political prognosticators. As we write, there’s still a long-shot chance that former United Nations ambassador Nikki Haley might somehow claim the nomination. But whatever happens in the primaries, Republicans need a more coherent, robust, and winning agenda. What does that agenda look like?

It starts with broadly shared values and translates those into actions that address kitchen-table concerns. The intriguing opportunity here is that education may be one of the few areas where the fierce split between Trump’s populists and Reaganite conservatives can be most readily bridged. Both camps are skeptical of teachers unions, the college cartel, and calls to supersize Washington’s role in education. Both support empowering parents, want schools to embrace notions like merit and hard work, and believe borrowers should repay federal student loans.

The familiar narrative of our culture clashes can be misleading: while the legacy media does its best to dance around the fact, the broad public tends to lean right on hot-button value debates.

According to a recent Gallup poll, two-thirds of Americans are “extremely” or “very” proud to be American. The call for schools to embrace the jaundiced, “America the ‘Slavocracy’” view of history sketched by far-left icons such as Ibram X. Kendi and Nikole Hannah-Jones resonates with only a small (if vocal) community of academic elites and blue-state agitators. More than 90 percent of Democrats and Republicans alike agree that “all students should learn about how the Declaration of Independence and the Constitution advanced freedom and equality” and that “throughout our history, Americans have made incredible achievements and ugly errors.” And, as University of Alabama political scientist George Hawley, author of Conservatism in a Divided America, has documented, Republican voters have grown steadily more supportive of racial and religious minorities since 2000.

While the media made hay over Florida’s “Don’t Say Gay” law (a moniker they created themselves), Florida voters supported it by a margin of 61 percent to 26 percent when polled on the actual substance of the bill (which barred discussion of gender and sexuality in a non-age-appropriate manner in K–3 classrooms). In addition, more than two-thirds of Americans think that student-athletes should play on the team that matches their biological sex. Republicans are on principled, popular ground when they fight to allow students to play on sports teams, use locker rooms, and sleep in dormitories that reflect their biological sex.

This broad agreement carries over to another area that Republicans should lean into: promoting excellence, rigor, and merit.

Talk about an easy sell. More than 80 percent of Americans say standardized tests such as the SAT and the ACT should factor into college admissions, and 94 percent think that hard work is important. Republicans should defend advanced instruction, gifted programs, hard work, and the importance of earned success. California recently approved new math standards that recommend postponing advanced math classes until high school, and Oregon has paused its requirement that students demonstrate literacy and numeracy to graduate. As these trends continue in blue states and cities, red state leaders should be highlighting the achievements of students in magnet schools and working to help more students access advanced coursework in high school.

Of course, Republicans struggled in 2022 and 2023 despite favorable conditions, especially in purple and blue states. They alienated suburban centrist voters with lousy candidates, a refusal to denounce Trump’s offenses and conspiracy-mongering, and a stance on abortion at odds with post-Dobbs public sentiment. In short, Republicans have shown themselves prone to fumbling away opportunities. Doing better will require shrugging off slogan-driven groupthink in favor of workable solutions to practical concerns.

There’s a world of difference, for instance, between arguing that pornographic books on gender identity don’t belong in middle school libraries and trying to bar high school seniors from reading Beloved. If Republicans don’t firmly draw that line, they’ll be successfully (and perhaps justifiably) tagged as “book banners.” The same distinction holds for critical race theory: it must be made clear that stopping schools from imposing race-based affinity groups or promoting DEI-inspired racial caricatures via worksheets on “white privilege” is not intended to stymie history teachers from delving into hard questions about race relations in America. Republicans must do a better job of appreciating and making these distinctions.

What to Do?

The reason we’ve focused first on “culture war” issues is that education is deeply entangled with questions of core values. (A reluctance to confront this, we think, helped undermine well-meaning reform efforts in recent decades.) But Republicans must translate shared values into appealing principles. We’d start with four principles that span the schism between populists and Reaganite conservatives and that have allowed Republican governors as ideologically and temperamentally diverse as Ohio’s Mike DeWine, Arkansas’s Sarah Huckabee Sanders, Virginia’s Glenn Youngkin, Iowa’s Kim Reynolds, and Florida’s Ron DeSantis to rack up big, popular successes:

Extend choice in K–12 education. The political case for parental choice has never been stronger. Especially after the pandemic, broad majorities of voters support an array of choice options. Yet the traditional case for school choice is limited by the fact that the lion’s share of parents like their own child’s school. The way to square this circle is by recognizing that even “satisfied” parents want more options, ranging from phonics-based reading instruction to a blend of home-based and in-school learning. Focus on maximizing options for all families (via education savings accounts, course access, charter schooling, and more), not on soundbites about blowing up “failing” local public-school systems.

Promote transparency. Parental empowerment requires equipping parents with choices—but these choices mean little without transparency. State reading and math tests are crucial, especially in an era of grade inflation and “grading for equity” that can make it hard to know how students are faring. Transparency also requires helping parents know what their child is being taught and by what name teachers are addressing them. (Today, simply trying to ascertain such things can subject parents to harassment and vilification.) Republicans should support policies that require parental notification and consent before schools administer intrusive surveys or transition a student’s gender identification in class.

Be the party of reading and math. After decades during which junk science and education-school ideologues shaped the nation’s approach to reading, support for research-based reading instruction is surging—with happy results. This has been driven by policymakers willing to take on education schools and their progressive dogma. A similar effort is needed in math, where the devotees of the newest “new math” argue that kids don’t need to know computation (see “California’s New Math Framework Doesn’t Add Up,” features, Fall 2023), correct answers don’t matter, and advanced math is racist. GOP governors should lean into these fights, demanding that schools, teacher training programs, and curriculum designers heed the science on reading and the fundamentals of math. In Washington, Republicans should make clear that federal funds will be directed to programs that actually work.

Broaden pathways to employment. There’s widespread enthusiasm for better, more useful career and technical education. This is fueled both by concerns about the cost of college and by the sense that college today is, for too many, less a source of opportunity than an expensive hurdle to employment. Today, even for jobs like manning a rental-car counter, employers routinely treat college degrees as an all-purpose hiring credential. This can be addressed by improving career and technical education and by reforming the legal and policy conditions that lead employers to put more weight on paper credentials than on knowledge, experience, and skills. While there are well-established legal perils when relying on other more-precise hiring tests, the courts have turned a blind eye when employers use degrees in that same fashion. This asymmetry has turned higher education from a potentially useful avenue to acquire valuable skills into a mandatory exercise in ticket-punching. Across the land, Republican governors and mayors should join the growing list of their peers who have removed degree requirements for many or most state jobs. In Washington, it’s worth revisiting statutes and regulations regarding the use of degrees and working with employer organizations to develop and validate hiring tests that will pass judicial muster.

Parents are profoundly practical people. They’re not interested in abstractions when it comes to their own kids. That’s why school choice took off in the wake of the pandemic; it was no longer a theoretical exercise but a response to maddening, overwhelming frustration. As noted earlier, education is an area where there are straightforward, principled ways to appeal to populists and traditionalists alike. We think that’s very much a consequence of practicality. For instance, the focus on excellence and transparency can address both populist frustration with politicization and traditionalist concerns about academic achievement. Expanding pathways to employment appeals both to traditionalists worried about workforce needs and populists eager to shrink the footprint of colleges they view as indoctrination factories.

Opportunity Knocks

This is only a start, of course. Republicans have been mostly playing defense on several issues where it’s time for them to get off their heels and take the lead.

Student-loan forgiveness was a bit of progressive dogma that candidate Joe Biden did not embrace during the campaign, but as president he promoted an illegal half-trillion-dollar giveaway to the advantaged and the affluent. Republicans have done well to call out this “solution” for what it is: an expensive way to fuel college price hikes, encourage students to take on more debt, and treat taxpayers like suckers.

At the same time, the underlying problem of college costs is real and absolutely needs to be addressed. State officials who fund and oversee public universities should step up. They should champion efforts to reduce staff, boost teaching loads, and accelerate time-to-degree (such as by exploring three-year bachelor’s degrees). They should tackle a stifling accreditation system that protects mediocre incumbents and imposes prohibitive costs on potential new alternatives. They should demand good data on the costs and student outcomes of various institutions and degree programs. Federal officials should insist that colleges tapping federal student loans have “skin in the game,” repaying taxpayers when their former students default.

During his much-admired tenure as president of Purdue University, former Indiana governor Mitch Daniels managed to freeze tuition for over a decade. It can be done.

In early childhood education, President Biden tried to spend $400 billion to promote universal pre-K in his Build Back Better push, and Republicans successfully blocked the effort. They were right to do so, as it was going to be a giveaway to the unions and early-education advocates. It would have driven up the cost of care, needlessly bureaucratized early education, and ultimately dropped kids into impersonal centers—in other words, it would have created a de facto additional grade of elementary school.

That said, parents are frustrated with their early-childhood options. Childcare is expensive. It can be of suspect quality. It can be hard to find providers that align with parental schedules. Working parents who’d like to be home with their young children find themselves compelled to put their kids into center-based care.

In a party looking to attract parents, one would think that Republicans would muster a meaningful counterproposal. They did not. But that doesn’t mean that they cannot.

Republicans can embrace choice-based policies such as education savings accounts in early childhood education; nurture a rich array of community and work-based arrangements; reduce regulatory burdens that stymie faith-based and low-cost providers; and ensure that funding doesn’t penalize families that choose “family, friend, or neighbor” care.

Then there’s the fraught relationship between the GOP and the individuals whom Americans look to for guidance on schooling: the nation’s teachers. It’s remarkable, if you think about it, that conservatives—who tend to energetically support front-line public employees such as cops and who have a natural antipathy for bureaucrats and red tape—have had so much trouble connecting with teachers. Like police officers, teachers are well-liked local public servants frustrated by bureaucracy and paperwork.

Republicans who have stood up for parents troubled by bureaucratic malaise, cultural adventurism, and unsafe schools should extend those same intuitions to the nation’s teachers. They should champion discipline policies that keep teachers safe and classrooms manageable. They should fight to downsize bloated bureaucracy and shift those dollars into classrooms and teacher pay. They should challenge expensive and onerous licensing regimes that keep qualified and talented teachers out of the classroom. And they should make clear that with parental rights come parental responsibilities, which means parents partnering with teachers to ensure that their kids are in school, respecting their teachers, getting a good night’s sleep, and doing their homework.

This is an opportunity for a divided Republican party to reassure Americans that it is the steward of shared values. As it becomes more of a working-class party, the GOP has ever less reason to defer to the cultural pieties of education elites and ever more cause to insist that early childhood and higher education be accessible, affordable, cost-effective, and attuned to workforce realities. Education is the path to economic opportunity and moral fulfillment, and it’s an issue with deep symbolic resonance in American life. The GOP can win over new constituencies while signaling that the party is serious about inclusion and opportunity.

Republicans should work to empower families, defend broadly shared values, emphasize achievement, and challenge self-serving cartels. They should also strive to ensure that early childhood education is accessible, affordable, and anchored in communities. If Republicans do so, we predict that their efforts will become a case study in doing well by doing good.

Frederick Hess is director of education policy studies at the American Enterprise Institute and an executive editor of Education Next. Michael Q. McShane is the director of national research at EdChoice. Their latest book is Getting Education Right: A Conservative Vision for Improving Early Childhood, K–12, and College.

Democrats Should Focus on Education Issues that Matter to Voters

By Ruy Teixeira

Why are Democrats fumbling the issue of education, which they have dominated for many years? There are multiple reasons: they mishandled the Covid-related school closures, they are letting the culture wars distract from the core mission of schools, and they are downplaying the importance of merit and academic achievement. Before I discuss how the Dems could effect a turnaround, let’s dig deeper into these missteps and unfortunate trends.

The school closures went on way too long. Democrats, far more than Republicans, worked to keep public schools closed during the Covid pandemic—longer than in other advanced countries and far longer than was justified by emerging scientific understanding of the virus and its effects. Pushed by their allies in the teachers unions, Democrats ignored the justified warnings that extended school closures would severely harm student learning and social development, especially for poorer children. The returns are now in, and it is clear that the warnings Democrats ignored were, if anything, too mild.

This was no minor error made by Democratic officials in the fog of pandemic confusion but a profound tragedy for millions of children that could have been avoided or at least substantially mitigated. To add to the shameful episode, parents in many communities around the country who wanted the schools reopened faster were frequently demonized by progressives as heartless, anti-science right-wingers who didn’t care about public health. The wounds from this still fester today.

Privileging politics over pedagogy. The culture wars rage on in the schools. Democrats argue that it is all the fault of the Right, who they say wishes to “ban books,” prevent children from learning about slavery, and subject gay and transgender-identifying children to bullying and worse. Progressive educators and school systems, on the other hand, simply stand for a modern, inclusive education that no decent, unprejudiced person should oppose.

This is disingenuous in the extreme. Over the last decade, and especially after the George Floyd summer of 2020, there has been a concerted effort by many school systems and educators to promote “anti-racist” education that goes way beyond benign pedagogical practices such as teaching about slavery, Jim Crow, the Tulsa Race Massacre, redlining, and so on. Instead, pedagogy itself is to be infused, from top to bottom and in every subject, with concepts drawn from the anti-racist playbook. As noted by sociologist Ilana Redstone, these concepts include the assertion that “[a]n unwillingness to recognize the full force of systemic racism as determining disparities between groups is a denial of the reality of racism today (and evidence of ignorance at best and racism at worst).” An army of diversity, equity, and inclusion consultants have stood at the ready to assist school systems in training their staff and teachers to implement this creed and incorporate it into their curricula.

This is politics, not pedagogy as traditionally and properly understood. It has little to do with what most parents want schools to do: develop their children’s academic skills and knowledge base so they can succeed in the world. Democrats have been hurt by their increasing identification with this ideological project rather than the traditional goals of public education.

Downgrading merit and educational achievement. Consistent with this ongoing politicization of educational practices, there has been a concomitant downgrading of academic merit and standard measures of educational achievement, especially standardized tests. In the name of fairness and “equity,” school systems in Democratic-controlled states and counties have taken steps to de-emphasize such measures as a means of evaluating students and controlling admissions to advanced courses, programs, and elite schools.

It hasn’t quite reached the “all shall have prizes” stage, but the message to aspiring students and parents who see educational achievement as their route to upward mobility and success in life is clear: students can no longer rely on hard work and objectively good academic performance to attain their goals (see “Your Neighborhood School Is a National Security Risk,” features, Winter 2024). Other priorities of the school system may take precedence, reducing the payoff from their performance. This does not sit well with most parents, who see it as public schools’ responsibility to encourage and reward their children’s talent and hard work. Democrats have been hurt by their diminishing association with what parents care about the most.

Getting Their Groove Back

In light of all this, is it possible for Democrats to regain their mojo on education during the 2024 election cycle? I think it is, though it will require changing their approach considerably from current practices. And it’s worth doing so. Even if education is not a central issue in the presidential contest, it is sure to loom large in many congressional, gubernatorial, and state legislative races.

Here’s how Democrats can decisively change their current image on education and rebuild their advantage on the issue.

Get ideology, whether from the Left or Right, out of schools. Voters are sick of the culture wars around schools. Overwhelmingly, they just want children to get a good education based on standard academic competencies, not instruction in a politically inflected worldview. Democrats must assure voters that the former is their number-one priority. Just as they oppose attempts from the Right to inject their ideology into schools by restricting critical discussion of American history and society, so they must also oppose efforts by those on the Left to impose their views on curricula and analysis of social issues. Neither is appropriate. The job of schools is to give students the tools to make informed judgments, not tell them what those judgments should be.

Articulating this point would signal to voters that Democratic politicians understand what the real priorities of schools should be. But they shouldn’t leave it at that. They should advocate the addition of something positive to schools—that is, to “teach kids what it means to be an American,” in the words of Albert Shanker, the pathbreaking president of the American Federation of Teachers in the late 20th century.

By doing so, Democrats could dissociate themselves from the jaundiced and divisive attitudes of many progressive activists and embrace instead an approach emphasizing what students have in common as Americans. As education scholar Richard Kahlenberg writes, civics instruction in public schools should embrace (or get back to) teaching

the core of the American Creed: the veneration of liberty and equality promised by the Declaration of Independence and the U.S. Constitution. . . . The Declaration and Constitution provide, as the Fordham Institute notes, “a common framework for resolving our differences even as we respect them.” . . . In emphasizing America’s distinctive system of governance, students can appreciate a shared American identity focused on shared values that counters both right-wing white identity politics that sees only white Christians as “real Americans” and left-wing race essentialism that sees a person’s race, ethnicity, gender, and religion as far more important than what citizens have in common as Americans.

Maintain high achievement standards for all groups, even while seeking to close racial disparities. The Democrats have a merit problem, and that has infected their approach to schools and schooling. The traditional Democratic theory of the case ran like this: discrimination should be opposed and dismantled and resources provided to the disadvantaged so that everyone can fairly compete and achieve. Those who were meritorious would be rewarded; those who weren’t would not be.

Democrats have lost interest in the last part of their case, and that abandonment undermines their whole theory. Merit and objective measures of achievement are now viewed with suspicion as the outcomes of a hopelessly corrupt system, so rewards should instead be allocated on the basis of various criteria allegedly related to social justice. Instead of dismantling discrimination and providing assistance so that more people have the opportunity to acquire merit, the real solution is to worry less about merit and more about equal outcomes—“equity” in the parlance of our times.

But here’s what ordinary voters believe: “Racial achievement gaps are bad and we should seek to close them. However, they are not due just to racism, and standards of high achievement should be maintained for people of all races.” This statement was tested in a nationwide poll of more than 18,000 registered voters by RMG Research and elicited 74 percent agreement versus a mere 16 percent disagreement. In Wisconsin, the statement generated agreement by 91 percent of Republicans and 64 percent of Democrats.

Democratic politicians should fearlessly endorse this statement and assure voters that they are all about high standards, high achievement, and how they go together in successful schooling. Democrats should forthrightly oppose the watering down of academic standards in the name of equity and defend elite programs based on academic merit and rigorous tests. The latter is particularly important for reaching Asian voters and stopping the ongoing decline in their support for Democrats.

Provide more choice within the public school system. Public schools have been losing students lately to private schools and homeschooling, as misplaced priorities and academic failures in many public schools have some parents heading for the exits. That typically means they aren’t happy with the public school their child is assigned to. An obvious way to mitigate this problem is simply to give parents more choice of where they can send their child to school, through both more options within the local school system and a wider array of charter schools.

More choice is especially important for low-income parents whose children generally do not fare well when attending schools that lack a middle-class presence. This calls for a concerted effort to widen public school choice so that all low-income children have access to theme-based non-selective magnet schools, diverse-by-design charter schools, and other high-quality options that attract students across economic levels.

Democrats ignore parents’ interest in choice to their peril. Polling by Education Next shows support for choice options such as charter schools, universal vouchers, and vouchers for low-income families going up in recent years (see “Partisan Rifts Widen, Perceptions of School Quality Decline,” features, Winter 2023). This support is particularly strong among Hispanics, low-income households, and especially Blacks, who are the demographic group most interested in vouchers. If Democrats wish to counter GOP appeals to their most loyal constituency, they must convince these voters that their strong interest in more choice can be met within a reformed public school system.

Promote affirmative action by class, not race. In the wake of the June 2023 U.S. Supreme Court decision striking down race-conscious college admissions, Democratic National Committee Chair Jaime Harrison declared, “This is a devastating blow for racial justice and equality. . . . We condemn the Supreme Court’s decision to end these affirmative action policies and make it even more difficult for Americans to access higher education. While this decision is a setback . . . it is not the final word.”

This is exactly the wrong approach for Democrats to take. Rather than implicitly or explicitly pledging to resist the law of the land, they would be far wiser to use the decision as an opportunity to rebrand themselves as the party of America’s working class—the entire working class.

Start with the brutal fact that racial preferences are very unpopular. For instance, the spring 2023 SCOTUSPoll, sponsored by Harvard, Stanford, and the University of Texas, found 69 percent of the public agreeing that private colleges and universities should not be able to use race as a factor in admissions, compared to 31 percent who favored the practice. The same question about public colleges and universities elicited at 74–26 split. Pretty definitive.

Why is this? It’s very simple. Most voters, especially working-class voters, think racial preferences are not fair, and fairness is a fundamental part of their world outlook. They actually believe in Martin Luther King Jr.’s credo that people should “not be judged by the color of their skin but by the content of their character.” In a recent University of California Dornsife survey, this classic statement of colorblind equality was posed to respondents: “Our goal as a society should be to treat all people the same without regard to the color of their skin.” The sentiment elicited sky-high (92 percent) agreement from the public, despite the assaults on this idea from critical race theory and the likes of Ibram X. Kendi and large segments of the Democratic Left.

The way for Democrats to get back in touch with voters on this issue is clear: advocate replacing race-based affirmative action with class-based affirmative action, instead of overtly or covertly trying to preserve the former. Class-based affirmative action would boost proportionately more Black and Hispanic students than white ones, thereby making up at least part of the losses in Black and Hispanic representation that follow from eliminating race-based consideration.

But it would also boost some disadvantaged white students, and that would be a good thing, both substantively and politically. As President Barack Obama memorably put it in 2008: “I think that my daughters should probably be treated by any admissions officer as folks who are pretty advantaged. . . . I think that we should take into account [in admissions] white kids who have been disadvantaged and have grown up in poverty.” In other words, a Black kid who grew up in a poor neighborhood in Baltimore and a white kid who grew up in a shattered working class neighborhood in Ohio are both more deserving of a boost than upper-middle-class kids of whatever race.

That would strike most working-class voters as eminently fair. It is especially fair in light of the breathtaking lack of economic diversity at elite schools. That’s why it’s important to think of class-based affirmative action as not just a substitute for a race-based system that would accomplish some of the same goals. It would be in and of itself a step toward pushing back against the incredible class bias of elite education. As David Leonhardt put it in his New York Times column:

Economic diversity matters for its own sake: The dearth of lower-income students at many elite colleges is a sign that educational opportunity has been constrained for Americans of all races. To put it another way, economic factors such as household wealth are not valuable merely because they are a potential proxy for race; they are also a telling measure of disadvantage in their own right.

This approach could turn affirmative action from an issue that divides the working class into one that potentially unites it. Given how Democrats have been hemorrhaging working-class voters, this change of focus seems like a wise course of action.

Restoring Strength

Taken together, the four steps outlined here could decisively change the current Democratic brand on education, which is steadily losing altitude, into one that would restore their historic strength on the issue. To be sure, taking these steps would require some political courage, risking the wrath of the progressive activists who have helped power their success in recent low turnout, off-year elections. But 2024 will be a far different electoral environment where the views of activists will be less important and those of ordinary voters more so. Democrats would be wise to place their bets on the latter by taking these steps and charting a new course.

Ruy Teixeira is a nonresident senior fellow at the American Enterprise Institute.

This article appeared in the Spring 2024 issue of Education Next. Suggested citation format:

Hess, F.M., McShane, M.Q., and Teixeira, R. (2024). The Party of Education in 2024: Will it be the Democrats? The Republicans? Or neither? Education Next, 24(2), 58-65.

Questions surrounding the application of Title IX to transgender students have been roiling education politics for nearly 10 years. In 2016, the Obama administration tried to settle one aspect of the issue without public input by declaring in a Dear Colleague Letter that transgender students must be able to use bathrooms matching their gender identity. That effort only generated more conflict and was quickly rescinded under President Trump. The Biden administration not only essentially reinstated the Obama administration’s rule, which is being challenged in court, but also is trying to expand its reach via proposed guidelines on transgender participation in athletics. While its approach on the latter is more cautious and more open to public input, it is unlikely to be any more successful.

In April 2023, the U.S. Department of Education proposed a rule that seems designed to satisfy no one and is sure to generate litigation. Instead of announcing via a Dear Colleague Letter that it would impose its standards by fiat, as the agency has often done, it offered a brief opportunity of 30 days for members of the public to comment. And comment they did, with more than 132,000 statements pouring in. The agency is expected to release a revised rule soon, but the volume of comments and the shifting political landscape are likely slowing the process.

The proposed rule says that “policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity” but “that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.” In short, you cannot exclude transgender athletes except when you can.

So, when can you limit transgender students’ participation? The proposed rule says that “one-size-fits-all policies that categorically ban transgender students” violate Title IX but appears to offer a sliding scale: restrictions in elementary school “would be particularly difficult to justify” but may be permissible in high schools and colleges. Schools, the administration conceded, need “flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.” Beyond that it does not offer any real guidance. However, saying that fairness or safety could justify restricting access concedes that biological sex does in fact matter for athletic performance.

That concession has angered transgender advocates who say that excluding transgender athletes for any reason is unacceptable discrimination. Additionally, many have claimed that being biologically male does not confer any demonstrable athletic benefits. In the end, it is not surprising that the Biden administration did not accept that claim, since almost all conflicts about the fairness of transgender sports participation stem from biological males competing in female athletics.

Another often-raised concern is that women and girls playing contact sports face safety risks if they must compete against biological males who have transitioned. And questions about biological females competing in male sports seem to center around their safety rather than the safety of the other athletes.

Beyond safety, of course, there is the question of whether transgender participation deprives females of other opportunities. If transgender athletes consistently outperform other athletes, biological females could be denied the chance to win scholarships or succeed in athletic events. That is, in fact, the claim of four female high school athletes in Connecticut who have challenged their state’s policy of allowing transgender athletes to compete in the category matching their self-identified gender. After being dismissed for lack of standing, that case is now under review by the entire Second Circuit Court of Appeals.

The Biden administration proposed rule also skirts a whole host of other thorny issues, such as whether religious schools that participate in state athletic leagues could be excluded because they have religious objections to having their students play against transgender athletes. As the regulation is written, they would presumably have to compete against teams with transgender athletes or forfeit the opportunity to play in state-sanctioned leagues. The rule would also seem to compel females in all schools to share locker rooms with athletes with male reproductive anatomy.

The proposed rule drew a range of reactions, including complete disapproval from hardliners on both sides of the issue—those who want states to require students to compete based on their biological sex and those who want no restrictions on the ability of students to compete in the sex category they identify with.

Given the controversy surrounding the proposed rule—and Congressional disinterest in weighing in—it’s not hard to imagine the issue being decided by the U.S. Supreme Court. While one might expect the conservative majority to be unsympathetic to mandating transgender participation in female sports, Justice Neil Gorsuch did write the opinion in 2020’s Bostock v. Clayton County, which was joined by Chief Justice John Roberts, finding that the word “sex” in Title VII of the Civil Rights Act of 1964 also protected workers from discrimination based on sexual orientation and gender identity. Since Title IX was written in 1972, also long before anyone could have imagined its application to transgender students, the Bostock ruling would seem to imply that sex should be interpreted the same under both laws. But the court might also declare that gender identity in athletic competition raises entirely different questions than in employment.

In fact, the proposed rule provides a roadmap for the court to do this. By admitting that biology does in fact matter for safety and fairness, the rule gives school districts extraordinary latitude to create regulations that would exclude transgender athletes. That is why it is so vague about what should guide the schools. And if a school district decides that it wants transgender students to participate in the category matching their identity, parents who oppose such a policy would have a powerful tool to fight back politically and legally. They might point to evidence from studies, such as one published in the journal Sports Medicine, showing that “the muscular advantage enjoyed by transgender women is only minimally reduced when testosterone is suppressed.” Thus, transgender female athletes would almost inevitably have a competitive advantage in contact and non-contact sports relying on strength and speed, while in contact sports there would also be safety concerns. Those issues largely do not arise under Title VII.

However, the politics surrounding the issue are also changing. The fact that the Biden administration did not offer a categorical rule like Obama’s did and allowed public comments indicates more than a little uneasiness, which could presage a further retreat. A recent Gallup poll found that the percentage of Americans who think that students should play on teams that match their biological sex has risen to 69 percent today from 62 percent in 2021 and that only a minority of Democrats—47 percent—think that transgender students should be able to play on teams that match their gender identity. The looming presidential election could thus also be influencing the administration’s delay. Ultimately, the Supreme Court might decide the matter—that is, unless politics decides it first.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Howard H. Baker

This article appeared in the Winter 2024 issue of Education Next. Suggested citation format:

Dunn, J. (2024). Splitting the Baby Worked for Solomon, but It Won’t for Biden. Education Next, 24(1), 6-7.

As k-12 schools officials struggle to address a post-Covid surge of student misbehavior and violence, they must also navigate rapid swings in civil rights directives from the U.S. Department of Education. A decade ago, the Obama administration issued lengthy guidelines on bullying, sexual harassment, and racial disparities in school discipline. It also launched hundreds of protracted investigations to enforce these demands. The Trump administration withdrew many of these guidelines, and substantially reduced the number of systemic investigations. The Biden administration has promised to return to a more aggressive approach to civil rights rulemaking and enforcement. A year ago, the Department of Education proposed new rules on sexual harassment, and announced new guidelines on discipline for students with disabilities. In May 2023 the departments of Justice and Education took yet another step, releasing a policy statement with the enigmatic title, “Resources on Confronting Racial Discrimination in Student Discipline.”

Neither a formal regulation or even a standard guidance document, “Resources” describes 14 investigations of school discipline practices completed by the Department of Education between 2012 and 2022. It includes an account of an academy in Arizona that told a student with an Afro to get a haircut. It also include the case of a school district in Utah that referred a Black student to law enforcement while giving a white student a conference for the same offense. Oddly, the two departments insist upon the limited legal significance of their report: “It does not constitute final agency action, and it does not have an immediate and direct legal effect. It does not create any new rights or obligations, and it is not enforceable. Neither the Departments’ investigations nor the summaries included below constitute a binding precedent.” “This document,” they explain, “is for informational and technical purposes only.” What guidance, then, does this report offer? Largely a set of steps school districts can take to stay in the departments’ good graces.

To understand the ongoing controversy over school discipline mandates, it is important to recognize just how limited the federal government’s power is in this area. Outside of special education, the federal government only has authority to prohibit disciplinary practices that discriminate on the basis of race, national origin, or sex. (The Individuals with Disabilities Education Act, in contrast, creates specific rules for disciplining students with individualized education plans). In 2014 the Obama administration launched an aggressive effort to substantially curtail use of out-of-school disciplinary measures (that is, suspensions and expulsions), which many claim have no educational value and contribute to the “school-to-prison pipeline.” But the only way federal regulators could address the issue was by claiming that these punishments were being applied in a racially discriminatory manner.

There is no question that if school officials punish a Black student more harshly than a similarly situated white student, they have engaged in unlawful discrimination and violated Title VI of the 1964 Civil Rights Act. But what does “similarly situated” mean? Not only that the two students engaged in the same type and degree of misconduct, but also that they had a similar history of prior transgressions. Proving “different treatment” requires detailed investigation of individual cases. Given the subjective nature of many forms of misbehavior and the fact that most such behavior is viewed only by a few people, seldom are these easy calls. Consequently, the Obama administration’s 2014 Dear Colleague Letter announced that schools “also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating on the basis of race.” A school’s disciplinary policies and practices would be deemed to have an “adverse impact” on minority students if those students are “disproportionately” punished at higher rates or “subject to longer sanctions or more severe penalties.” Once that prima facie case has been made, the school bears the burden of demonstrating that its policy is “necessary to meet an important educational goal,” and that there exist no “comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group.” The Department of Education’s Office of Civil Rights explained that it would take a particularly hard look at policies that “impose mandatory suspension, expulsion or citations” for specified offenses, especially truancy. Such punishments, federal regulators strongly suggested, are seldom either “necessary” or “effective.”

Black students are subject to disciplinary action more frequently than white, Asian, or Hispanic students. This might be the result of discrimination, but it might also be a consequence of difference in socio-economic status, family structure, neighborhood influences, youth subcultures, and policies adopted by schools in high-crime areas. Although the 2014 Dear Colleague Letter acknowledged that racial disparities “may be caused by a range of factors,” its “disparate impact” analysis said little about them. Its primary goal was to curtail the use of out-of-school punishments. The Trump administration withdrew that Dear Colleague Letter in 2018. The Biden administration subsequently announced that the withdrawal was “under review.”

The 2014 Dear Colleague Letter was announced by the Assistant Secretary of Education for Civil Rights Catherine Lhamon. When she was nominated to regain that position in 2021, she told a Senate committee, “it’s crucial to reinstate guidance on the topic.” What is most notable about the 2023 document, though, is the extent to which it backs away both from the 2014 Dear Colleague Letter’s “disparate impact” analysis and from its blanket condemnation of out-of-school punishments. Helpful suggestions have replaced legally binding obligations. Although this shift does not preclude a return to the aggressive enforcement strategy of the Obama administration, it does seem to signal a more conciliatory federal approach to discipline issues as public schools struggle to respond to heightened levels of violence and misbehavior.

By focusing on case resolutions that span the Obama, Trump, and Biden administrations, the report seeks to downplay the obvious policy shifts of the past decade. Most of the policy changes recommended in the report are sensible and relatively uncontroversial. They include

• Collecting and regularly reviewing data on disciplinary actions to identify possible discrimination;
• Establishing clearer, less subjective rules on what constitutes misconduct and appropriate the punishments for various levels of misconduct;
• Making sure that school policies are consistent with state law;
• Reducing the role of School Resource Officials (i.e. law enforcement personnel with arrest power located within schools) in routine disciplinary matters;
• Improving communications with parents, especially those with limited English proficiency;
• Developing alternatives to out-of-school punishments;
• Providing better training to school personnel;
• Hiring more school counselors and mental health professionals; and
• Providing students with “tutoring, afterschool and summer learning, and enrichment programs to help students make meaningful academic and behavioral progress.”

Note that most of these items are worthy aspirations, not enforceable rules. Whether schools will have the resources and the commitment to put them into effect is one big question. How the Department of Education will try to nudge them in that direction is another.

Why has the department retreated from its hardline 2014 stance? Perhaps the White House has pressured the department to avoid hot-button educational issues prior to the 2024 election—as it seems to have done with the department’s recent proposal on transgender students’ assignment to sports teams. So far, though, we have little information on the nature of the debate within the administration. Nonetheless, it is possible to identify four factors that likely influenced its deliberations.

The first is growing alarm among school officials and parents about post-Covid disorder in our schools. According to a report by the Brookings Institution’s Brown Center, “Schools across the country are reporting increased levels of misbehavior, including fights and more serious acts of violence.” A survey conducted by Education Week’s Research Center found that “nearly half of all school and district leaders (44 percent) say they are receiving more threats of violence by students now than they did in the fall of 2019 . . . [T]wo out of three teachers, principals, and district leaders say that students are misbehaving more these days than they did in the fall of 2019.” In this context, restricting the availability of disciplinary measures would encounter strong resistance.

The second is concern among rank-and-file teachers about their own safety and the difficulty of maintaining order in classrooms and hallways. The department’s 2014 Dear Colleague Letter initially received support from the national leadership of teachers’ unions, but eventually drew angry opposition from teachers subject to lengthy investigations and restrictions on out-of-school punishments. With teachers facing greater threats of violence within the classroom, such opposition could not be ignored—especially since it comes from a key Democratic constituency.

Third, initial research on the main alternative to out-of-school punishments—restorative justice—found that this approach to dealing with misbehavior falls far short of its supporters’ expectations. Subsequent to the 2014 Dear Colleague Letter, the RAND Corporation sponsored two randomized control studies comparing schools that instituted restorative justice programs with those that employed traditional disciplinary practices. RAND’s study of several schools in Maine found that “the middle-school student who received Restorative Practices Intervention did not report more school connectedness, better school climate, more positive peer relationships and developmental outcomes or less victimization than students in control schools did.” A second, more extensive study of schools in Pittsburgh found that the number and length of suspensions declined in elementary schools instituting restorative justice programs. However,

Despite fewer suspensions, academic outcomes did not improve in PERC schools [those instituting restorative justice programs]. At the middle grade level (grades 6-8) academic outcomes actually worsened in the treatment schools. Neither did we find fewer suspensions in middle grades. . . . We did not see fewer suspensions for male students, for students with individual education plans, or for incidents of violence or weapons violation. Neither did we see a reduction in arrests.

According to a summary of the evidence in The Hechinger Report, “The biggest insight from the Maine study was how hard it is for schools to implement restorative justice even after days of teacher training, monthly consultations and visits by coaches.”

Finally, studies of the implementation of the Obama administration’s policies found a wide gap between the policies announced in formal agreements between school leaders and federal officials on the one hand, and the actual practices of teachers and principals on the other. Within a single school district, compliance and reporting differed substantially from one school to another. That experience suggests that without substantial support from teachers and principals on the front lines, directives on discipline from Washington are likely to be ignored.

The fact that federal regulators have addressed the school discipline issue by describing the results of past investigations rather than by issuing explicit rules emphasizes the central role that such investigations play in federal civil rights policy. Especially during the Obama administration, the Department of Education has used lengthy and intrusive investigations to pressure schools to sign detailed resolution agreements. The process was the punishment, and federal policy was in effect the sum of these individually negotiated agreements. The May 2023 report does little to constrain the Department of Education. But it seems to indicate that the department has adopted a more nuanced and pragmatic approach to the school discipline issue than it did a decade ago.

Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College and author, most recently, of The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

This article appeared in the Winter 2024 issue of Education Next. Suggested citation format:

Melnick, R.S. (2024). Behind Biden Administration’s Retreat on Race and School Discipline, Real Concern on Student Behavior: Even the teachers are alarmed about fights, violence. Education Next, 24(1), 50-55.

The 20th century witnessed an astonishing growth in presidential power, leading some to contend that the office had become “imperial,” dominating other branches of government. President Biden’s decision in 2022 to forgive more than $350 billion in student loan debt—an action taken on the basis of statutory authority that was, at best, unclear—gave critics of the imperial presidency another reason to worry.

During the 2020 presidential campaign, Biden promised to waive up to $10,000 in federal student-loan debt. When he did so in August of 2022, the amount increased to $20,000 for Pell Grant recipients but was limited to $10,000 for all others. To qualify, in either 2020 or 2021 the adjusted gross income for individuals had to be less than $125,000 and for married couples less than $250,000. The legal authority on which Biden relied to justify the action was the Higher Education Relief Opportunities for Students Act of 2003, also known as the HEROES Act. The Act, which was passed in the wake of the September 11, 2001, terrorist attacks, allows the Secretary of Education to “waive or modify any statutory or regulatory provision . . . as may be necessary to ensure that” borrowers affected by a national emergency “are not placed in a worse position financially.” It defined the individuals who could qualify for relief as those serving on active duty or in the national guard during a war or other military operation, those living or working or is employed in an area that is declared a disaster area by a federal, state or local government, or those who have “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.”

Previously, in response to the Covid-19 pandemic, the Trump administration had suspended student loan repayments, a policy Biden continued while unsuccessfully seeking Congressional passage of loan forgiveness. Indeed, prior to Biden’s action, it was difficult to find many people who thought the president had the authority to cancel debt unilaterally without a new act of Congress. For instance, in July of 2021, when asked about student loan forgiveness, Speaker of the House Nancy Pelosi said, “The president can’t do it. So that’s not even a discussion. Not everybody realizes that. But the president can only postpone, delay, but not forgive.” The “discussion” that nonetheless ensued ultimately led to oral argument before the Supreme Court February 28, 2023, in two cases, Biden v. Nebraska and Department of Education v. Brown, that challenged the Biden administration’s decision.

The first was brought by six Republican state attorneys general. They contended that Biden had exceeded his authority under the HEROES Act and that the plan was created in violation of rulemaking procedures that federal agencies are supposed to follow. A federal district court judge, Henry Autrey, initially dismissed the case, saying that states lacked standing to sue. But a three-judge appellate panel in the 8th Circuit overturned that decision and granted an emergency injunction pausing the program. The Supreme Court then accepted a Biden Administration request to hear the case on expedited schedule.

The second case was brought by two student-loan borrowers. Myra Brown did not qualify for relief under the program because her loans were held by commercial lenders. Alexander Taylor did not qualify for $20,000 of relief because he did not receive Pell Grants. Both argued that it was “irrational, arbitrary, and unfair” for their debt to not be forgiven too. A district court judge, Mark Pittman, ruled that the program was unlawful. When the 5th Circuit Court of Appeals refused to pause that ruling, the Supreme Court agreed to hear the case on an expedited schedule as well.

At oral argument, the justices spent significant time discussing whether the states or the students had standing. The best hope for the Biden Administration to prevail would be for some of the court’s conservatives to join with the liberal bloc to declare that none of the plaintiffs had a right to sue. For plaintiffs to have standing, they must show a “concrete harm” or “injury in fact.” Some of the conservative justices, such as Justice Barrett, appeared sympathetic to the claims that some of the plaintiffs could not meet that standard. But overall, the justices seemed skeptical about accepting the consequences of adopting that position. Chief Justice Roberts captured that skepticism when he said to Solicitor General Elizabeth Prelogar, who was defending the policy for the Biden Administration, that her view means “that the President can act unilaterally” and therefore “there was no role for Congress to play in this either, and at least in this case, given your view of standing, there’s no role for us to play in this — in this either.” This outcome seemed antithetical to principles of separation of powers and the ability of each branch of government to check abuses of power by the others to Roberts. As well, Prelogar acknowledged under questioning by Justice Alito that as long as the court finds that any party in either of the cases has standing that the court could decide both cases on the merits. Since standing doctrine is relatively flexible, it seems likely that the court will decide that at least one of the two students or one of the six states does in fact have standing.

If the court’s conservatives do reach the merits, enough of the justices appeared unconvinced that Biden had sufficient legal authority for his action to make betting on the program’s survival unwise. Most importantly, there seemed to be a consensus that at the least the policy should fall under the major questions doctrine. Just last term, the court used that doctrine to strike down the Environmental Protection Agency’s Clean Power Plan in West Virginia v. EPA. The doctrine says that if an agency wants to decide an issue of extraordinary economic or political significance, the agency must be able to point to Congressional authorization that is clear and specific rather than merely vague. Even Justice Sotomayor said that the significant sum involved in forgiving the loans “seems to favor the argument that this is a major question.” Prelogar tried to argue that the doctrine should only apply to exercises of regulatory authority by an agency while this was merely a “benefits program” which allegedly has a lower threshold of “liberty interests” for citizens. That distinction did not seem to gain any traction.

Justice Thomas pointed to another concern. Canceling the debt was “in effect . . . a grant of $400 billion,” he noted, which seemed to him to run “head long into Congress’s appropriations authority.” Other justices seemed skeptical that even if the program could be created that it could be done so outside of normal notice-and-comment rulemaking where the public has an opportunity to weigh in on the effects of the decision. Prelogar argued that Congress had exempted the HEROES Act from those requirements, but Justice Kavanaugh seemed to think that outside of ordinary rulemaking it would be impossible for the Secretary of Education to factor in all the “big winners and big losers” created by loan forgiveness.

Those “winners and losers” also troubled Chief Justice Roberts, who raised questions about the fairness of the program. Some people might have worked hard during college to avoid taking out loans while others did not, but only the latter would rewarded. Roberts also mentioned a hypothetical landscape-business owner who didn’t go to college but who borrowed money to start a business. His debt was not forgiven, and his tax dollars were spent to subsidize the college graduates. At one point, the chief referred to the loan forgiveness as a “half trillion” dollar action. To Roberts this reinforced that this kind of decision should be left to Congress, since “we like to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayers’ money, to the people in charge of the money, which is Congress.”

Overall, the broad concerns about executive power likely point to a loss for the Biden Administration. Justice Kavanaugh, for instance, said that “some of the biggest mistakes in the Court’s history were deferring to assertions of executive emergency power” while “some of the finest moments in the Court’s history were pushing back against presidential assertions of emergency power.” One could even imagine a majority agreeing that the policy was unlawful but not agreeing on the reasons why, which would still mean a defeat for the Biden Administration.

The administration tried to turn the focus back to the beneficiaries of the debt relief, with Secretary of Education Cardona issuing a post-argument statement about “the crushing burden of student debt for millions of working families.” The court may tell those families, essentially, that if they want loan forgiveness, they will need not only to elect a sympathetic president such as Biden, but also to install a Congress that is willing to authorize the expenditure in a more explicit way than was done by the HEROES Act of 2003. Those concerned about the imperial presidency would welcome that result.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Summer 2023 issue of Education Next. Suggested citation format:

Dunn, J. (2023). The Imperial Presidency Meets Student Debt: Supreme Court skeptical of Biden’s unilateral loan forgiveness. Education Next, 23(3), 6-7.

A great deal has changed since March 2020, when executive and Congressional action paused payments on most federal student loans. The national unemployment rate spiked at 14.7 percent in April 2020, but receded dramatically and has stayed below 4 percent since December of 2021. Meanwhile, inflation climbed from an average of 1.2 percent in 2020 to 9.1 percent in June 2022—the biggest jump in 40 years.

Yet, following nine extensions, the payment pause on student loans remains in place at an approximate direct cost of $5 billion per month. The Biden Administration also has moved to end some repayments altogether, by forgiving hundreds of billions of dollars in federal student loans. Whether the forgiveness program is legal, and whether millions of Americans will have to repay their student loans back in full, is now before the U.S. Supreme Court. Justices will hear the case on February 28.

These two policies may be tethered to one another in court, but they have strikingly different distributional impacts. While the White House claims that nearly 90 percent of the relief provided under the forgiveness plan would go to families with incomes less than $75,000, the payment pause has provided more than 65 percent of the relief to families with incomes greater than $75,000. In fact, the top 20 percent of households receive nearly 30 percent of the benefit while only accounting for 16 percent of families with federal student debt.

We look at the household student loan balances, payments, as well as earnings, to determine the relative impacts of the payment pause program on lower- and higher-income Americans. Our analysis shows the across-the-board pause on federal student loan payments disproportionately benefits the most affluent borrowers. Continuing the payment pause without means-testing its benefits leads to ballooning costs for taxpayers.

Still, in the absence of some payment relief, approximately 12 percent of families, who disproportionately have low and moderate incomes, have payment-to-income ratios greater than conventional metrics for excessive student debt burden. If both the payment pause and promise of partial loan forgiveness end with an adverse Supreme Court ruling in early 2023, these borrowers are at risk of significant negative financial impacts.

The reliance on the payment pause may have made other avenues of relief, including relief under Income-Driven Repayment plans and the Fresh Start program, less salient for the most vulnerable borrowers. Yet these more stable avenues represent the best way to assist borrowers most in need of government support. Encouraging families to seek out these options now, while the pause is still in effect, is an important safeguard for borrowers’ longer-term financial health.

How Much does the Student Loan Payment Pause Cost?

Various government sources and independent policy organizations have provided cost estimates to the student loan payment pause. Reconciling these estimates requires articulation of the impact of the payment pause on the federal budget along with other economic indicators.

Available government measures have recorded the pause on financial statements as “loan modifications,” which is essentially the cost of forbearance with zero interest accrual. The U.S. Department of Education has calculated these costs at $41.9 billion for Fiscal Year 2020 and $53.1 billion for Fiscal Year 2021. The total indefinite appropriations provided in Fiscal Year 2020 and Fiscal Year 2021 for student loan payment deferrals was $98.4 billion. The Congressional Budget Office estimated the cost of the payment pause at $112.8 billion from March 2020 to May 2022. A subsequent letter from the office projected that the 4-month extension of relief from August 2022 to December 2022 would cost an additional $20 billion.

In July 2022, the Government Accountability Office analyzed data from the Department of Education and found that costs associated with the emergency relief between March 2020 and April 2022 totaled $102 billion. This analysis, which does not include extensions beyond August 2022, only measures costs associated with the Direct Loan program and likely underestimates the total cost of the payment pause.

Analysts in the private sector also have considered factors beyond the direct cost of lost interest payments. In August 2022, the Committee for a Responsible Federal Budget (CRFB), a private think tank focused on fiscal policy, estimated the total cost of the pause through the end of 2022 to be $155 billion. With the extension announced in November, the organization presented the cost of the extension of the payment pause until August 2023 as generating a cumulative policy cost of $195 billion. Broadly, the analysis asserts that the pause of collections on loans, interest, and defaults costs $5 billion per month, which is generally consistent with estimates from the Congressional Budget Office.

While government analyses focused more exclusively on the accounting costs of the policy, CFRB also identified the inflationary implications of the pause. First, inflation generates a cost in the erosion of the value of future payments to the government; for individual debt holders, this cost is a “benefit” in the form of reductions in the real value of future payments. Second, as borrowers have more cash-on-hand for consumption, it is likely that the student loan pause increases inflation, with the organization estimating an effect of about 20 basis points per year. Indeed, this inflation impact was acknowledged by the Biden White House, as Council of Economic Advisors member Jared Bernstein claimed that the restarting of student loan payments would offset any inflationary impact of debt forgiveness.

One final component of “cost” that most analyses do not consider is the payments that will be foregone for borrowers receiving Public Service Loan Forgiveness and Income-Driven Repayment forgiveness. For borrowers covered by these programs, the months of forbearance during the payment pause (34 to date) are included as part of the repayment count. Thus, a worker covered by the public service program, which forgives loan balances after 120 qualifying months of payments, would need only 86 additional qualifying payments to qualify for full loan relief. While it is difficult to provide a full accounting of the eventual “costs” of these forgone payments to the government, they are not distributionally neutral because those borrowers who forego relatively large payments or would have paid off their loans before forgiveness are the largest beneficiaries.

Distributional Evidence

The benefits of the payment pause tie directly to the balances, monthly payments, and the interest rates on the loans. Each of these components contributes to the net regressive impact of the payment pause continuation.

Interest rates on federal student loans vary based on the education level of the borrower and the type of loan, effectively representing the current benefit per dollar borrowed. To illustrate, for 2022, the interest rate for undergraduate borrowers is 4.99 percent, while graduate borrowers face a rate of 6.54 percent. Through the PLUS program, graduate and professional students who borrow beyond the basic limit and parents borrow at 7.54 percent interest. Thus, for each dollar borrowed, PLUS borrowers receive the greatest “benefit” from the pause.

Using data from the 2019 Survey of Consumer Finances, we organize households with federal student debt (our sample of ”borrowers”) by decile of family income to estimate the distribution of student loan payments and balances. While the incidence of borrowing is broadly concentrated in the middle of distribution (about 71 percent in the middle 60 percent of the distribution), both payments and balances are concentrated in the top part of the income distribution (see Figure 1). Borrowers in the top four deciles, with approximate family incomes greater than $80,000, account for about 47.4 percent of student loan balances and about 60 percent of student loan payments, but only 41.4 percent of households with federal student debt. The greater concentration of student loan payments (relative to balances) in the top deciles reflects the fact that borrowers at lower deciles are more likely to be in deferment or enrolled in income-based repayment.

We also see an upward march of mean loan payments across the income distribution, making clear that higher-income households see the largest increases in cash-on-hand and interest subsidies from the payment pause (see Figure 2). What is more, the erosion of the real value of future liabilities with high inflation (4.7 percent in 2021 and 8.0 percent in 2022) disproportionately benefits high-balance borrowers, who are likely to be found in the top deciles of the income distribution.

The payment-income patterns we observe also have been documented in administrative banking data linked to credit reports. Research published by the JPMorgan Chase Institute, for example, examines an extraordinarily rich dataset involving 301,000 people. It demonstrates that for borrowers making about $30,000 per year, the median monthly payment is about $134 and the 90th percentile payment about $419; for borrowers making about $130,000 per year, the median monthly payment is about $225 and the 90th percentile payment about $813.

Even as payments and loan balances, along with interest premiums, are skewed to the top part of the income distribution, the question of how the “burden” of student loans is measured relative to income merits investigation. We therefore also plot the means of student loan payment to income ratios by household earnings decile.

Mean payment-to-income ratios generally decline with income and range from approximately 1.8 percent in the top decile to 6.3 percent in the 2nd decile. However, there is notable variation in the degrees of burden both overall and within income deciles, even as these ratios tend to be higher at the bottom than at the top of the income distribution. In total, 12 percent of families have payment-to-income ratios greater than 8 percent, which is a conventional metric for excessive debt burden. Within deciles, the shares of families carrying an excessive debt burden range from 2.7 percent for the 10th to 27.3 percent for the 2nd. Again, this resembles the patterns observed in the banking data, which show that about one-quarter of borrowers have a scheduled student debt burden above 7.3 percent, while 10 percent is obligated to pay at least 13.3 percent of their take-home pay. The takeaway is that while the majority of borrowers have “manageable” student debt, there is a significant minority that is likely to struggle with repayment.

We also look at which types of degree holders have the highest payment levels. Our analysis shows that nearly 48 percent of payments are made by graduate degree recipients, even as this highly educated group constitutes about 29 percent of borrowers. Finally, we examine borrowing, debt levels, and payments by race. While Black Americans constitute roughly 20 percent of households with federal student loans and hold 23 percent of balances, they make approximately 15 percent of the aggregate loan payments. By contrast, white American households make up about 61 percent of borrowers and 70 percent of payments. Thus, the relief afforded by the payment pause is racially disparate in its absolute impact.

Policy Alternatives

Continuing to extend the student loan payment pause is expensive and regressive. It costs at least $5 billion per month and delivers the bulk of the benefits to upper-income families. In addition, these many extensions threaten the government’s future credibility to administer student loan programs or, indeed, any government lending initiative. With at least three announcements of a “final” pause, it seems unlikely that borrowers will take such announcements seriously and change their spending behavior to prepare for payments to restart. These individuals may face serious financial deficits if payments ever do resume—and the biggest risks are concentrated among families at the lower end of the income distribution. Looking farther in the future, the “normalization” of payment suspension may create an expectation that all forms of perturbations in the economy will be met with a payment pause. Such expectations would make a student lending policy fiscally unsound.

Still, there are plainly borrowers who are at risk of delinquency or default with a resumption of payments. Is extending the payment pause a lifeline for these struggling borrowers, or a diversion that may actually them?

The extension of the payment pause may encourage a false expectation for borrowers. The latest pause announcement claims: “The extension will alleviate uncertainty for borrowers as the Biden-Harris Administration asks the Supreme Court to review the lower-court orders that are preventing the Department from providing debt relief for tens of millions of Americans.” And U.S. Secretary of Education Miguel Cardona introduced the most recent extension of the payment pause by saying:

“Callous efforts to block student debt relief in the courts have caused tremendous financial uncertainty for millions of borrowers who cannot set their family budgets or even plan for the holidays without a clear picture of their student debt obligations…”

It would be difficult to deny that there is uncertainty surrounding the eventual likelihood of debt forgiveness. However, rhetoric from Secretary Cardona and the Department of Education that encourages a false sense of security about the likelihood of debt forgiveness may make at-risk borrowers worse off. Without taking on the role of legal odds-maker, debt forgiveness is far from certain, and a ruling from the Supreme Court against executive action could lead to a payment restart in the first half of 2023 rather than in August 2023. Rather than providing false assurances about the prospects for forgiveness, shouldn’t the Department of Education and the Biden administration be taking every possible step to ensure that borrowers have access to the safety net of resources designed to help those who may struggle with the restart of payments?

Public conversation about student loan forgiveness sometimes invokes a false dichotomy: endlessly continuing the payment pause as the sole alternative to financial ruin for borrowers who are struggling in the labor market or who have been victims of predatory institutions. However, these borrowers have clear options. Indeed, notable accomplishments of the Biden administration include progress to increase access to Income-Driven Repayment, Fresh Start to Repayment, Public Service Loan Forgiveness, and Borrower Defense to Repayment.

Most notably, existing income-based repayment programs are designed to provide relief for low- and moderate-income borrowers for whom standard repayments would cause financial hardship. These programs limit payments based on earnings and eventually forgive outstanding balances after 20 or 25 years. For example, current programs like Pay As You Earn and Revised Pay As You Earn generally cap payments at 10 percent discretionary income. Yet, since the pandemic began, the number of borrowers in income-based repayment programs has increased only slightly, even as it is widely recognized that there are many more borrowers who would benefit but are not enrolled.

The most constructive action from the White House and the Department of Education would be to use the remaining time of the pause to motivate enrollment in existing income-based repayment plans and other programs already “on the books” to help borrowers. Aggressive focus on the politically and judicially uncertain debt forgiveness makes other programs that could provide certain relief less salient to borrowers. Indeed, one hypothesis is that low take-up of the Public Service Loan Forgiveness waiver, which has been suspended as of October 31, 2022, was driven by many borrowers’ expectations that they would be able to get loan relief through forgiveness without having to complete the paperwork filings associated with the public service program.

The political and public relations efforts around the forgiveness plan would appear to crowd out more general outreach and troubleshooting to ensure that at-risk borrowers are protected when payments resume. While more than $100 million was budgeted for the rollout of the forgiveness application, there has been no comparable expenditure to increase take-up of existing loan relief programs for at-risk borrowers. And recent Congressional action, which can be seen as a partisan response to the forgiveness effort, denied additional funding to the Office of Federal Student Aid in the December 2022 omnibus spending bill, exacerbating the problems of antiquated processes and limited trouble-shooting tools. In addition, expending the limited bandwidth of the Department of Education and its Office of Federal Student Aid on an uncertain forgiveness effort or a new income-driven repayment plan with questionable distributional implications seems ill-advised.

Executive action combined with judicial intervention in the student loan space seems to yield short-term and unsustainable fixes. These may not only confuse borrowers, but also contribute to instability in the policy process and, ultimately, the higher education market. If only executive action and judicial decision-making prevail over the course of the next two years, there is no certainty in outcomes. Instead, borrowers are faced with a decision tree of various scenarios reflecting possible combinations of Supreme Court rulings and executive action. Regardless, plausible scenarios including extending the student loan payment pause indefinitely by executive action or ending it by judicial ruling would not address the structural problems of design and implementation that have long plagued federal student lending.

While the legislative process presents significant challenges with razor-thin majorities in both the Senate and House of Representative, looking over the longer term it’s clear that compromise is imperative to build a well-functioning student loan system. Americans need a student loan program that enables the kind of post-secondary investments that contribute to economic prosperity and innovation while also providing borrowers with insurance against weak economic outcomes and oversight to prevent abuse by predatory institutions. In the meantime, the tools exist to protect at-risk borrowers right away: it’s time to put them to use.

Diego Briones is a doctoral candidate in economics at the University of Virginia. Eileen Powell is a graduate student at the Batten School of Leadership & Public Policy at the University of Virginia. Sarah Turner is University Professor of Economics and Education and Souder Family Professor at the University of Virginia.

This article appeared in the Summer 2023 issue of Education Next. Suggested citation format:

Briones, D., Powell, E., and Turner, S. (2023). Student Loan Payment Pause Benefits High-Income Households the Most: With forgiveness uncertain, struggling borrowers are unprotected from risk. Education Next, 23(3), 40-47.

For more, please see “The Top 20 Education Next Articles of 2023.”

This article appeared in the Summer 2022 issue of Education Next. Suggested citation format:

Finn, C.F. (2022). “It Felt Like Guerilla Warfare” – Student achievement levels in the Nation’s Report Card: a brief history of “basic,” “proficient,” and “advanced.” Education Next, 22(3), 44-51.

Applying for a federal grant to support the creation of new charter schools is about to get a lot harder. That’s the upshot of draft regulations for the Charter Schools Program that the Biden administration released for public comment in March. It is an unfortunate proposal at a time when new research confirms that charter schools are an asset not only to their students but also to the broader communities in which they operate (see “The Bigger Picture of Charter School Results,” features, this issue).

For nearly three decades, Congress has provided funds to assist charter schools with start-up expenses such as staffing, professional development, facility improvements, and community engagement events. The bulk of the money goes first to state education departments who, in turn, award grants of up to $500,000 to charter schools preparing to open, replicate, or expand. When Congress last renewed the program in 2015, it permitted successful charter management organizations to apply directly to the U.S. Department of Education for comparable support.

The program is modest by federal budget standards—Congress authorized $440 million for it this year—but over time it has been a major driver of the charter sector’s expansion. What’s more, the states, none of which wants to leave federal money on the table, often design and implement their charter school programs according to the criteria Congress uses to select grant applicants.

That’s one reason the administration’s recent proposal is so troubling. Among other new requirements, the regulation would force applicants to submit a detailed “community impact analysis” demonstrating that the number of schools they propose to open or expand “does not exceed the number of public schools needed to accommodate the demand in the community.” The language says nothing about the quality of available schools. It would effectively prevent charter schools from opening with federal support in the growing number of areas with flat or declining enrollment—often places where high-quality options are scarcest.

The regulation would also require applicants to collaborate with a traditional public school or district on “an activity that would be beneficial to all partners in the collaboration”—a nice-sounding concept that would effectively give districts veto power over charter expansion. Applicants would even need to provide “a letter from each partnering traditional public school or school district demonstrating commitment to participate in the proposed charter-traditional collaboration.” Charter entrepreneurs unable to find a willing partner would be out of luck.

The entire proposal seems to reflect the view, heavily promoted by teachers unions and their political allies, that charter schools are a drain on school districts’ resources to be tolerated, if at all, as pockets of innovation within expanding systems. That same perspective has informed key revisions to state charter-school laws in recent years, including California’s 2019 move to allow districts to reject charter school applications based not on the proposal’s quality but on its impact on their finances. The result was a dramatic slowing of charter growth nationally in the years leading up to the pandemic—just as charter opponents intended.

Yet the research case for the charter sector’s expansion continues to strengthen. In this issue, Doug Harris and Feng Chen of Tulane University offer the most comprehensive analysis to date of how charter schools affect the combined outcomes of both charter and traditional public-school students in the school districts in which they are located. Looking nationwide and comparing districts with a substantial charter presence to those without charter schools, they find substantial gains in both test scores and high-school graduation rates. A January 2022 study by David Griffith for the Fordham Institute, “Still Rising: Charter School Enrollment and Student Achievement at the Metropolitan Level,” similarly found greater charter enrollment associated with increased math achievement by Black, Hispanic, and low-income students.

If Biden administration rule makers are not swayed by these findings, the reality underlying them is persuasive to many of the families who have chosen to enroll their children at charter schools. Despite an oddly short window for public comment, more than 25,800 members of the public, many of them charter parents, weighed in on the proposed rule before the April 18 deadline. A group of 17 Republican governors wrote to education secretary Miguel Cardona to register their objections to the proposed changes. When a similarly tone-deaf draft rule on civics-education grants prompted an uproar last year, the administration backed down and replaced the rule with something more sensible. Here’s hoping that pattern prevails again.

— Martin R. West

This article appeared in the Summer 2022 issue of Education Next. Suggested citation format:

West, M.R. (2022). New Biden Rules Would Slow Charter Growth: Parents, governors protest. Education Next, 22(3), 5.

The Community Eligibility Provision of the National School Lunch Program allows high-poverty schools to offer subsidized school lunches free of charge to all students, regardless of an individual family’s financial need. President Joe Biden has proposed expanding the provision by lowering the threshold for schools to adopt community eligibility. U.S. Senator Bernie Sanders and other legislators want to expand nutrition programs further, to provide a free breakfast, snack, lunch, and dinner to every student, regardless of family income. During the school closures wrought by the pandemic, public schools gave many families electronic benefits or checks to compensate for missed lunches and breakfasts, even through the summer, and in some cases provided boxed meals or bags of groceries for pickup. How far should the federal government go in expanding school-based nutrition programs beyond the free or reduced prices lunches for some that date back to the Richard B. Russell National School Lunch Act of 1946? Weighing in on this question are Amy Ellen Schwartz and Michah Rothbart of Syracuse University and Max Eden of the American Enterprise Institute.

Let More Schools Offer Free Lunch for All

by Amy Ellen Schwartz and Michah Weitzman Rothbart

There’s No Free Lunch

by Max Eden

This article appeared in the Spring 2022 issue of Education Next. Suggested citation format:

Schwartz, A.E., Rothbart, M.W., and Eden, M. (2022). Expand Access to Free School Food? Debating plans to increase federal support for child nutrition. Education Next, 22(2), 66-72.

The IRS recently sent $15 billion in Child Tax Credit payments to the families of 60 million children. Parents woke up to find the first monthly distributions (averaging $483 per family) had been directly deposited into their bank accounts. These dollars are part of the $110 billion in expanded child tax credits legislated by this spring’s $1.9 trillion American Rescue Plan Act. While these funds are not targeted at education, the program has opened a temporary window that could help vastly expand school choice.

The American Rescue Plan Act created an unrestricted, refundable child tax credit of $3,600 for children under 6 and $3,000 for children aged 6 to 17. The full credit applies to all families making less than $150,000, and the balance is paid as a cash transfer if the total exceeds their federal tax burden. After a year, unless Congress extends the increase, the credit will revert to $2,000 per child and become only partially refundable (see this issue’s forum, “Should Congress Make the Expanded Tax Credit Permanent?”).

To understand how the child tax credit might be made into something more educationally transformative, consider three things.

First, $3,000 may seem modest compared to the cost of schooling—the sum is less than a quarter of what public schools spend per child each year—yet it’s more than 60 percent of tuition at a typical Catholic elementary school. In fact, $3,000 isn’t much less than the average voucher awards (of $4,000 to $5,000) in states like Indiana, North Carolina, and Ohio.

Second, at this moment, governors and state legislators have exceptional financial flexibility to augment or supersize the child tax credit funds. State budget collections are coming in much higher than was anticipated last year, while the American Rescue Plan Act delivered state and local governments $350 billion in federal Covid aid—atop the $130 billion in K–12 aid.

Third, the child tax credit offers an opportunity to extend school choice to a broader swath of families. President Joe Biden and a Democratic Congress just opted to send child tax credit funds to the families of 80 percent of the nation’s children. If we were to stipulate that choice programs should serve the kids whom these officials deemed in need of these funds, that would vastly expand the ranks of the eligible. It would be awkward for Democrats to argue that middle-class parents need federal help paying their bills but are too well-off to merit state help in defraying the cost of schooling.

In short, state leaders have the opportunity to offer families expanded educational options at a time when support for school choice has exploded. The most promising tack is to augment the federal tax credit for any family that chooses to spend its funds on school tuition or another documented educational cost. A temporary 50-percent state match for families who use the funds to pay tuition could make the credit for many worth about as much as the voucher offered in leading school-choice states; a 100-percent match, funded with general Covid aid, could make it exceptionally large.

Such a move allows states to radically expand the ranks of the eligible while hewing to the eligibility criteria endorsed by Democratic leaders. (In our school life column for this issue, Robert Behning, the chair of the Indiana house education committee, makes precisely this argument.) The resulting program would only run as long as the expanded child tax credit, but it could spark a taste for choice among many.

State leaders should also explore ways to augment the credit with education savings accounts, and then help parents understand how to marry the two. Earlier this year, for instance, West Virginia enacted its first education savings account program, providing eligible families with $4,600 per child (See “School Choice Advances in the States,” features). Combined with the maximum child tax credit payment, that yields $7,600 per child—an amount that exceeds the cost of tuition in 9 out of 10 West Virginia private schools. Energetic use of the bully pulpit could encourage some families to think of child tax credit payments as education-choice funds.

The expanded child tax credit is a one-year program. If it goes away, children will have benefited and the constituency for choice will grow. And if it becomes permanent? Then state leaders will have the opportunity to do even more.

Frederick M. Hess
Executive Editor

This article appeared in the Fall 2021 issue of Education Next. Suggested citation format:

Hess, F. (2021). Tax Credit Could Boost Choice. Education Next, 21(4), 5.