Welner, Kevin (2001). Legal Rights, Local Wrongs: When Community Control Collides with Educational Equity. Albany, NY: State University of New York Press
315 pp.
$81.50 (hardback) ISBN 0-7914-5127-5
$27.95 (paperback) ISBN 0-7914-5128-3
Reviewed by Eric Haas
Arizona State University
October 7, 2002
In Legal Rights, Local Wrongs: When Community Control Collides with Educational Equity (2001), Kevin Welner, a lawyer with a Ph.D. in education policy, explores the role of legal decisions in propelling equity-minded school reform. Specifically, Welner examines court-ordered detracking, the requirement that all classes within a school be mixed ability. Welner sets out to examine how school reform is defined, how it is measured, and the role of top-down legal mandates in moving a reform forward. Welner hopes that Legal Rights, Local Wrongs will explain the need for all members of the school community—from parents to policymakers—to rededicate themselves to pushing forward equity-minded school reforms while also providing the means for doing so more effectively.
Overview
Welner uses a combination of statistical analyses and case-study comparisons to examine the impact of equity-minded reform, specifically desegregation and anti-tracking cases, in four school districts. Welner defines “equity-minded reform” as reform that seeks to change the fundamental norms and beliefs of a community in order to re-distribute resources to underserved members of the population. Welner determines that legal action was a positive and necessary component of the desegregation and anti-tracking reforms of the districts he studied because such changes, at least initially, require that the politically powerful be compelled to change their practices.
Welner divides the book into three sections. Part I, “Courting the Courts” (chapters 1-5), is a dense section of the text. Here, Welner lays the legal and statistical foundations for the book. He defines the terms of the book, reviews the literature on tracking, reviews the legal and community histories of four school districts wrestling with desegregation and detracking, explains the court’s role in education policy and administration generally and desegregation legislation specifically, and presents various statistical analyses concerning the state and effects of tracking in the four school districts. Because of the detail and complexity of the cases, it was difficult to absorb all the information in the initial reading. The reader may need to return to this section on occasion to refresh his or her memory on specific dates and conclusions.
Part II, “Romancing the Zone” (chapters 6-12), was the most compelling section of the book. Welner sets forth his argument for how equity-minded reform occurs, introduces the reader to his concept of the “zone of mediation,” and describes the amount of detracking that occurred in the school districts both with and without a detracking mandate from the courts. He briefly and clearly explains the terms and context of reform, sets these within the existing literature, and then guides the reader through the various forces that acted on the reform efforts with a wealth of quotes that demonstrate both the practical and emotional conflicts present.
If Part I was dense and Part II compelling, Part III, “Making Mandates Matter” (chapters 13-15), was mixed. In this section, Welner presents his evidence for the extent of change that occurred in the school districts and makes his case for a new vision of equity-minded reform and the role of the courts therein. Welner’s evidence of court effected change was thin, while his argument for the necessity of an expanded vision of school reform and the court’s central role in education reform was quite convincing.
It may be that Welner would have a stronger book if he had stopped at a conceptual study of the role of law in school reform rather than combining it with an empirical study. The next sections will examine in more detail Welner’s conceptual and empirical arguments for his conclusion that law is a necessary component of equitable school reform. Interestingly, the strengths and weaknesses of these arguments as presented in Legal Rights, Local Wrongs parallel the trends and tensions of this debate on legal advocacy for social change that span the many disciplines that contribute to socio-legal studies.
Conceptual Argument: Re-defining Education Reform
Welner contends that equity-minded reform involves four stages “initiation, implementation, continuation and outcome” (p. 236), but that too many reform initiatives begin their focus on the implementation phase. As such, these reform efforts attempt to change the technical aspects of schooling—structure and resource allocation—while often viewing schools and district organizations as neutral, well-intentioned learning organizations who only need better management to provide more equitable education. In reality, Welner argues, schools and districts can be filled with resistant, prejudiced players who work not for the American ideal of equal opportunity, but the American practice of stratification and protecting privilege. In these situations, equity-minded reform must focus on socio-political change that emphasizes changes in normative beliefs about race, intelligence and an equitable society. With this focus, equity-minded reform must be measured from the point of initiation, for even beginning reform can be a tremendous accomplishment. Welner writes:
[I]n order to evaluate the overall, global efficacy of different approaches to reforming schools, the analysis should begin before the school, district, state, or federal government has already inaugurated the reform. An initial decision to embark upon a reform is, after all, a major hurdle, and bottom-up change arises neither in a random fashion nor necessarily in line with best practices. By focusing only on how much of what was originally initiated or adopted is ultimately implemented, the analyst overlooks the issue of the likelihood of the reform actually being adopted in the first place. This omission can be remedied by broadening the analysis to include the universal (i.e., societal or nationwide) change likely to result from the reform proposal. (p. 237, emphasis in original)
Thus, one must begin an analysis of reform success by determining the extent to which reform would occur voluntarily. If a reform proposal were likely to meet widespread acceptance and voluntary implementation, then the importance of the initiation aspect of the reform would be secondary to successful implementation. This type of reform analysis, starting at the implementation phase, appears to be the standard view of education reform. If, however, a reform proposal were likely to meet considerable resistance, then Welner contends that a new approach is necessary. In this case, the success of the reformers at simply creating the context for change (initiation phase) should be given equal or greater consideration than what occurs at the implementation phase when determining the level of success achieved.
Welner uses a concept he calls the “zone of mediation.” (2001, p. 94) to explain the importance of initiating the process of change involved in equity-minded reforms. The zone of mediation is “the boundaries of debate for a given issue” formed from all the “larger cultural norms, rules, incentives, power relations and values” of a particular context. (2001, p. 95) Welner concludes that equity-minded school reforms, like detracking, seek to redefine fundamental aspects of the zone of mediation and thus activate the power of entrenched interest groups from teachers to parents to district personnel who will attempt to maintain the unequal status quo. This type of change is “third-order change” because it goes beyond changing the technical aspects of current teaching practice (first-order change) and the basic ways that schools function as organizations (second-order change) to change “educators’ and community members’ core normative beliefs about such matters as race, class, intelligence, and educability.” (2001, p. 239)
In third-order change situations, Welner contends that success should be measured from initiation because merely creating a receptive zone of mediation is difficult. Minority populations, by definition, will need top-down mandates, like court orders, to overcome the majority’s core beliefs that support the current inequitable structures. Thus, he concludes, school reformers should embrace top-down mandates for equity-minded reforms for they provide some essential tools for change and they should recognize this as an important step in the reform effort. Nevertheless, Welner reminds the reader that top-down mandates while necessary, are not sufficient to effect substantive, lasting change, and must be combined with additional forces to alter the political, normative, structural and technical aspects of the social context.
Welner makes a forceful case. His reform model is in keeping with the role of the courts in U.S. democracy. The Supreme Court in Marburyv. Madison, 2 L. Ed. 60 (1803), recognized that minority groups must be protected from the tyranny of the majority in certain fundamental areas, like segregation. As such, the courts have and should dictate social policy (Heubert, 1999; Feeley & Rubin, 1998) in order to enable members of minority groups to assert their rights sufficiently to create a zone of mediation that is receptive to equitable reform.
Empirical Study: Measuring reform
Welner gets bogged down, however, in his attempts to measure the extent of reform that results from the court mandates to detrack. The data were difficult to follow and, at times, unconvincing. Welner sets out to do a comparative analysis of change processes in four school districts “struggling with racial equality and school reform” (2001, p. 4), but focused his attention on one school district, Woodland Hills, Pennsylvania. The data was collected by a team of researchers over several years, though it is not clear from the text exactly how many. Welner participated in the data collection process in three of the four districts, including Woodland Hills. Welner conducted his specific research on the Woodland Hills district during “four, week-long visits during the 1996-1997 school year.” (2001, p. 270, note 8) During these four weeks, Welner collected documents, observed classes, and “completed more than 90 interviews.” (Ibid)
In reading this, it becomes hard to imagine that any observations or interviews of depth could be uncovered by conducting so many in so short a period of time. This amount of time did not seem sufficient to create the “thick descriptions” that mark the foundation of this type of qualitative research (van Manen, 1990). As such, it was difficult to conclude that Welner was uncovering the subtle, underlying aspects of school life in Woodland Hills, aspects that were outside the conscious awareness or unconscious deception (Erickson, 1986) of the participants he interviewed or observed.
Even with this concern, Welner’s presentation of the current perceptions of the members of the Woodland Hills school district was quite strong. Welner ties together numerous quotes to bring to life how the various forces operated on the zone of mediation of detracking. A representative example quotes a veteran teacher’s view of the detracking reforms:
I’ve been teaching [for about 30 years, and I’m not going to] begin to start something brand new. . . .I’ve gone through all the different changes and have tried all the changes. You end up doing what you feel is best for you. (p. 111)
Other, openly racist remarks, are rarely spoken aloud, so they made quite an impression when presented in the text. Examples include teachers saying that the difficulties of teaching in heterogeneous classes makes them “‘hate’ the students” (p. 138) and that “it’s unbelievable. . . the [low] intelligence, the capabilities of the [Black] students now” (p. 175), while an administrator described the strategy of some White parents,
I will gut out the first 6 years of elementary school, where my child’s in a classroom with Black kids. I’ll gut that out because I know when I get to junior high and senior high my kid, through core scheduling or whatever, can get away from those kids. (p. 195)
These quotes provide a visceral quality to the emotional obstacles in equitable reform.
Despite the hard-hitting quotes demonstrating the racist resistance to reform, Welner never loses sight of its complexities. Welner quotes both White and Black parents who viewed the African-American culture as impeding the academic success of Black students. Welner also notes that teacher resistance to change was based not only on racism, but also anger at being the scapegoats for the inequities of U.S. society. In this sense, teachers appear both as victims and victimizers. As one teacher “angrily declared, ‘We resent when people come in and say, ‘if you can’t figure this out, you’re no good.’ Agreed another, ‘if you can’t do a good job of teaching this incredible spectrum, then inherently you’re a poor teacher.’” (p. 141) Overall, Welner’s quotations provide a vivid description of the reasoned intentions of people wrestling with and against the equitable reform of detracking.
Welner’s attempt to then measure the extent of reform presents several difficulties. Welner tries to assess change over time, but he does not compare like data. Initially, Welner uses a variety of statistical analyses to demonstrate the level and effect of tracking on the four specific school districts studied. From these, he determines that the tracking in all four school districts resulted in minority students being place disproportionately in low-tracked classes; that these tracks encompassed a wide range of measured abilities; that students who qualified for two more tracks were treated differently based on race—students of color were more often placed in the lower tracks while white students were more often placed in the higher tracks; that students had to overcome great odds to move up within the tracked structure; and that each year the low-tracked students fell farther behind their high-tracked counterparts. To this, Welner added the qualitative data—interviews, news articles, classroom observations and the non-statistical parts of district documents—to describe the change in the larger societal context over time. From all this, Welner determines that the three districts under court mandates made progress toward more equitable, detracked schooling. Focusing on Woodland Hills, he concludes that
[i]n the wake of the Woodland Hills court order, the district’s schools experienced substantial change in at least five areas: detracking and classroom desegregation, expectations for student achievement, instructional methods, the written curriculum, and supplemental and supportive programs. But the change in all these areas was less than that intended or desired by the court and by others pushing for reform. (p. 216)
In making these conclusions, Welner appears to be comparing the individual statements of persons from Woodland Hills with the results of the earlier statistical analyses, which is problematic in two ways. First, in Chapter 4, Welner presents a wealth of tables on the tracking placements and their potential impact in the four districts. Of the 25 tables and graphs, 11 concerned Woodland Hills. Of these 11, none appear to present the level of tracking and its effect on students achievement and opportunity prior to the court-supervised consent decree of 1988 or the detracking agreement of 1994. The first graph, figure 4.1 is undated and the remaining ten graphs and tables concern the years 1995-1997. Thus, it is unclear what Welner is using for his initial baseline against which he can measure improvement.
Second, in Chapter 13, he presents the final 1997 state of desegregation and detracking in Woodland Hills. Here, the data are short, qualified descriptions about the actual, not merely nominal, extent of the social studies, math and science detracking (all, some and none, respectively) followed by more extensive second-hand statements about teacher attitude and individual student performance in the detracked English classes. It is unclear whether these statements are intended to reflect the teachers’ perceptions about change that has occurred as a result of the court mandated reforms or are being used as a comparison to the quantitative data analyses presented earlier. Either way, neither appear to be sufficient to measure the extent of actual progress in program reform.
Similar empirical questions exist in Welner’s assessment regarding the changes in instructional methods. First, Welner does not provide any direct evidence of the pre-court mandate instructional methods. Second, Welner’s evidence of the final 1997 state of the instructional methods at Woodland Hills is largely second-hand and anecdotal. Most of the evidence consists of statements like “one principal observed” (p. 208) about certain teachers or “a junior high teacher English teacher explained” (p. 209) about herself. When Welner makes his own observations, they appear to demonstrate a lack of knowledge about progressive pedagogy. On page 208, for example, Welner, in describing teachers who “designed lessons intended to challenge all students” wrote about a teacher who “seemed constantly aware of each student’s needs.” She did this by asking the students to write a paragraph emphasizing “action verbs” and then asking a student who finished early, “Can I challenge you?” Yes, this may be progress in Woodland Hills, but it is hardly indicative of the current knowledge or practice of progressive teaching methods for either tracked or heterogeneous classes (e.g., Shor & Pari, 1999). Welner neither provides baseline data for the reader to make his or her own conclusion about the extent of change in instructional methods nor comments about his own awareness of the lack of innovation in the examples. This may leave the reader less convinced than Welner in the “substantial change” resulting from the court-mandated detracking.
In attempting to measure the effect of court mandated social reform, Welner is taking on a daunting task. Socio-legal scholars have been wrestling with this for decades. On one end of the spectrum, Michael McCann in Rights at Work (1994) uses qualitative methods and concludes that law is effective in creating equity minded reform. McCann’s findings parallel those of Welner. McCann finds law to be most significant during the movement building and transformation phases of social movement struggle. Commenting on the transformation phase, McCann found evidence that “perhaps the single most important achievement of the movements has been the transformations in many working women’s [and other workers’] understandings, commitments, and affiliations—i.e., in their hearts, minds, and social identities.” (1994, p. 230) In other words, the process itself educated and empowered those involved. The movement building and transformation phases are quite similar to Welner’s initiation phase and his emphasis on changing normative beliefs. In the end, McCann argues that “[l]aw works variably both as a resource and as a constraint in practical activity” (1994, p. 283); that legal victories, while neither necessary nor sufficient for change, can contribute; and that due to the “overwhelming systematic inequalities and scarcities in basic resources that oppress subordinate groups, even limited, contingent, uncertain resources such as our legal traditions offer should be appreciated.” (1994, p. 309) This again is consistent with Welner’s conclusions about the role of law in education reform.
At the other end of the spectrum, Gerald Rosenberg uses mostly quantitative methods and concludes that law does not promote socially equitable reform, except in concert with other political and economic forces. In Hollow Hope (1991), Rosenberg examines “liberal” decisions of the Supreme Court to study whether courts can and do produce social change. Using civil rights and Brown v. Board of Education, 347 U.S. 483 (1954) as an example, Rosenberg found no direct judicial effects, concluding that the courts were ineffective in producing significant changes in civil rights until the federal government supported the civil rights movement by providing financial incentives for compliance. “Courts can matter, but only sometimes, and only under limited conditions.” (1991, p. 106) In many ways, Rosenburg concludes that law and the courts “provide only an illusion of change.” (1991, p. 341) This contradicted Welner’s conclusions.
Rosenburg’s analysis focuses on the implementation phase of a social movement and mostly on quantifiable, statistical measures like the racial mix of a classroom and less on the change in perception of individual participants. Following Welner’s reconceptualization of reform movements, the implementation phase would be the least likely area of success in equity-minded reform and the use of statistics and quantitative analysis alone would not fully describe the extent of reform achieved. Perhaps, Rosenberg finds no change because he is trying to measure what statistics are not best suited to measure (McCann, 1996).
Taking Welner, McCann and Rosenburg’s analysis together might explain the strengths and weaknesses not only of Legal Rights and Local Wrongs, but also the current state of socio-legal research on the role of law and courts in equitable social reform. There is no consensus yet on what should be studied or on what evidence should change be understood or measured (Rosenberg, 1996; McCann, 1996). When Welner, like McCann, uses qualitative methods to understand changes in normative beliefs, his work is compelling. When, in contrast to Rosenberg, he uses quantitative or mixed methods to demonstrate that positive changes in implementation have occurred, his work is unpersuasive; perhaps, in part, because he may be attempting to measure what is currently unmeasurable—direct judicial effects.
Conclusion
Overall, Legal Rights and Local Wrongs has much to offer educational reformers. Welner states early and often that legal means should be used for equitable social change, specifically equitable education reform. Welner reminds readers that the role of the courts in a constitutional democracy is to protect certain fundamental rights from the tyranny of majority rule. Commenting on how to understand the impact of law and legal actions on reform, Welner asserts convincingly that changes in the consciousness of the community should be given greater emphasis.
Welner’s work has one major drawback which is currently a tension in socio-legal studies. In using both quantitative and qualitative methods, he cannot seem to separate causation from resonant understanding. He must choose whether he wants to argue causation and then measure change over time with a quantitative, statistical analysis or argue resonant value of a case study and then use a descriptive analysis. This is the debate between McCann and Rosenberg and, in essence, all socio-legal studies that has yet to be resolved by researchers.
Welner tries to do both which is too much. His sections arguing for the use of the courts in spearheading equity-minded reform that should be measured from initiation and not just implementation are clear and well-reasoned, and his qualitative sections that focus on the perceptions of the various participants support his contentions. It is when Welner attempts to measure the direct extent to which the courts caused the implementation of detracking that his methods and evidence are less convincing.
Welner’s call to confront equity-minded reform as necessary for just educational opportunity and to do so openly is important in this time when the popular debate appears to be dominated by those promoting market-theories as a painless, profitable and neutral means to achieve public goods like quality education for every student. And, Welner’s conclusions that the courts should and must take an active role in this reform process is also important to hear at a time when court actions that defend minority rights are too often disparaged as judicial activism. I would recommend Legal Rights and Local Wrongs to reform-minded educators and socio-legal scholars with enough knowledge of education policy and the role of law in social reform to see both its empirical limitations and conceptual strengths.
References
Erickson, F. (1986). “Qualitative methods in research on teaching.” In Wittrock, M. (Ed.), Handbook of research on teaching, 3rd ed. (pp. 119-161). New York: Macmillan Publishing Company.
Feeley, M. & Rubin, E. (1998). Judicial policy making and the modern state: How the courts reformed America’s prisons. Cambridge, UK: Cambridge University Press.
Heubert, J. (1999). Law and school reform: Six strategies for promoting educational equity. New Haven, CN: Yale University Press.
McCann, M. (1994). Rights at work: Pay equity reform and the politics of legal mobilization. Chicago: University of Chicago Press.
McCann, M. (1996). “Causal versus constitutive explanations (or, on the difficulty of being so positive . . .).”Law and Social Inquiry, vol. 21 no. 2, pp. 457-482.
Rosenberg, G. (1991). The hollow hope: Can courts bring about social change. Chicago: University of Chicago Press.
Rosenberg, G. (1996). “Positivism, interpretivism, and the study of law.” Law and Social Inquiry, vol. 21 no. 2, pp. 435-455.
Shor, I. & Pari, C. (1999). Education is politics: Critical teaching across differences, K-12. Portsmouth, NH: Heinemann.
van Manen, M. (1990). Researching lived experience. Ontario: State University of New York Press.
About the Reviewer
Eric Haas
College of Education
Arizona State University
Tempe, AZ 85287-2411
Email: eric.haas@asu.edu
Eric Haas is a lawyer, former middle teacher, and doctoral student in education policy at Arizona State University. His research interests include education law and the media presentation of education issues.
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