Wanted: Smart feedback on smart regulation

Last spring, when we released our Catholic schools study just days before Pope Benedict XVI's visit to the United States, it was a case of good timing. Today, when we are releasing a pilot version of our Red Tape Report--whose underlying assumption is that the public schools in most states are overregulated--it might be considered a case of bad timing. Still, if we can learn anything from our current economic crisis it's that everyone benefits from smarter, shrewder, results-oriented regulation. That goes for schools as well as banks. But smarter regulation doesn't mean more regulation.

It's been clear to us for eons that if schools are to be held to account for their results, those leading them need operating authority in the areas that matter most-staffing, budget, and curriculum. First give principals targets, and then let them figure out how to hit them. We've said this more than once.

Of course, this is easier said than done, for as everyone knows, principals face a web of constraints on their actions, from federal laws and regulations, court decisions, collective bargaining agreements, and local board policies. (We've looked at many of these issues in recent years; see here, here, and here.) But there was one piece of the regulatory patchwork that remained mostly unstitched--until now: state statutes and administrative codes. It's obviously a critical piece; a recent NCTQ report, Invisible Ink in Collective Bargaining (2008), rightly notes that "state legislators and other state-level policymakers crafting state laws and regulation, not those bargaining at the local level, decide some of the most important rules governing the teaching profession." Our brand-new Red Tape Report helps unravel this issue by looking at key regulations coming directly from the state level.

This pilot study finds that among the five states examined--California, Florida, Missouri, New York, and Ohio--the most over-regulated public schools are in New York, followed closely by California and Florida. The state with the least regulation is Missouri. In all five jurisdictions, over-regulation occurs precisely in those management domains that are most important for school effectiveness. Principals' authority is particularly impeded in teacher selection and other staffing decisions (retention, compensation and evaluation, layoffs, transfers, etc.), the length of the school day and year, and core curricular decisions, especially in English and social studies.

Finding our way to those conclusions was rough going, fraught with methodological, analytic, and comparative (that is, state to state) challenges. Cumbersome state law books had to be waded through and detailed autonomy metrics devised. For this work, we commissioned three intrepid young analysts at the University of Arkansas: Matthew Carr, Marc Holley, and Nathan Gray. From the get-go, we, they, and our sage advisors sweated over the types of regulations to be included and how they should be scored. Should regulations be weighted to convey their relative impact on principal autonomy? How can we possibly isolate state statutes' impact on funding flexibility at the school level? When state statute recommends a "nonbinding" curriculum, is it limiting autonomy merely by suggestion? Do states overstep their authority when they prescribe programs of parental involvement--after all, we want parents to be involved, right?

To get our feet wet, our analysts ultimately delved into state legal codes in five states--in preparation for examining the remaining forty-five. They focused on staffing, budgeting, and academic/administrative regulations and constructed a series of 26 metrics to gauge states' regulatory interference against an agreed-upon standard and against one another.

The results are suggestive--and more than a little worrying. On the positive front, four out of the five states constrained themselves from setting class-size limits. Instead, principals and their staff are presumably allowed to decide the class load that particular subjects and teachers can handle. The remaining findings, however, are not so encouraging. In fact, all five states:  

  • Require teacher tenure; 
  • Impede differential pay;
  • Subject teacher evaluation to collective bargaining or prohibit evaluations from including student performance measures;
  • Constrain teacher licensure and alternative certification;
  • Subject layoff policies to collective bargaining or require that seniority be a factor in such decisions;
  • Require schools to devote time and/or resources to special holidays (i.e. holidays that are not federal holidays);
  • Prescribe professional development hours and/or content;
  • Set minimum hours, days, start/end times for school days, and/or calendar years; and
  • Specify particular curriculum in health/physical education and social studies classes.

This is revealing, but we know our work is nowhere near finished. The remaining forty-five state regulatory codes await us. The twenty-six discrete regulations we chose are no magic number. We're not sure what key statutory and regulatory stones remain unturned. We have plenty of methodological questions, such as: Are the scores the analysts assigned to regulations too loose, too taut, or just right? (Think of Goldilocks.) And fundamental to our musings all along: What's the optimal balance between state leaders' appropriate monitoring and oversight of schools and principals' proper authority to lead their schools to success? 

We invite you to help us define this balance and refine our technique for doing so. Read closely our Red Tape Report. We plan to distill and strengthen its methods and metrics and we expect readers will have plenty of constructive ideas about how best to approach this task. After we've had time to hear from you, we'll expand our examination of state statute to all 50 states. Please send your feedback and counsel to the authors by October 19th at RedTapeReport@gmail.com. 

Here are a few questions to get you started:

--What other sources of state policy would be relevant for an examination of this sort?
--Are the three broad areas we chose to examine (staffing, budgeting, and academic/administrative regulations) the right ones in terms of "autonomy applicability"?
--What other regulatory areas should we have a look at?
--Is our scoring scale on target? Is the level of specificity about right?
--Are there other ways to compare how states measure up on the various scales?
--Are there other ways to measure statute impact on budget autonomy?

Thanks for grappling with these issues alongside us.

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