Wednesday, March 21, 2018
Before the Trump Administration Starts Undermining School Discipline Reform, It Might Just Read the Law
Last night, I was reading the actual text of the Every Student Succeeds Act to prepare for today's class. While I was not immediately excited about the prospect, my mind began to light up as I remembered a few remarkable lines about school discipline that I had since paid relatively little attention. When the law was written, the Administration was already making progress on school discipline and the lines could have been read as nothing more than a nod toward what had already been done. Two and a half years later and in a different administration, the lines are powerful.
I won't try to summarize the entire 443 page bill here, but a little context is helpful for the non-policy wonks. The most important and lengthy part of the bill is its requirement that states submit a plan for how they will achieve certain goals. Once a state sets its goals and implementation strategy and the Secretary approves it, the state is locked into that program. This is the basic standards, testing, and accountability framework of the law. While the Act is very deferential to states, it does require that states take certain steps and speak to particular issues like testing, English language proficiency and graduation rates.
For what I believe was the first time in history, the federal government also took a global stance on school discipline. Nestled into the final subsections of the details on state plans was the requirement that states explain how they "will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—(i) incidences of bullying and harassment; (ii) the overuse of discipline practices that remove students from the classroom; and (iii) the use of aversive behavioral interventions that compromise student health and safety."
And there it is ladies and gentleman, a federal law passed by both houses of Congress and signed by the President that says states should undertake the exact type of reforms that the Obama Administration had urged a few years earlier through policy guidance. This section of the statute, however, is even stronger than the prior policy guidance. The prior policy guidance only applied when districts' suspension and expulsion practices resulted in racial disparities. The Every Student Succeeds Act takes the position that "aversive behavioral interventions"--otherwise know as punitive suspensions and expulsions--"compromise student health and safety" and requires that all states do something about it for all students.
While the Senate passed the Act by a vote of 81-17, Senator Marco Rubio wasn't there to vote. Had he been, maybe he would have had the foresight to not write a letter to the Department's of Education and Justice after the Parkland shooting, suggesting there was something wrong with their approach to school discipline and urging them to change it.
My constitutional law professor always emphasized that before we start arguing about some abstract issue of law or policy we should read the constitution first. It is amazing how the precise language of the constitution or a statute can entirely change how we look at an issue. Rather than arguing about what we think the law requires or should require, we might just acknowledge what the law actually says. While I disagreed with him on a litany of issues, I always appreciated Justice Scalia's willingness to think about the actual words of the constitution and law.
I and others have been caught up in the policy implications of the Trump Administration's attempt to connect the Parkland school shooting with the Obama-era discipline reforms. And even before that, I and others have been pushing back against those who claim the Obama administration's policy guidance on school discipline is flawed and a federal overreach. Last week, I wrote this essay explaining that a return to zero tolerance discipline policies won't fix school shootings.
The most powerful response to the Trump Administration and its supporters, however, is the law itself.
This from the Education Law Center:
A conference hosted and sponsored by ETS on March 14 celebrated the success of New Jersey’s groundbreaking Abbott Preschool program 20 years after a ruling in the landmark Abbott v. Burke lawsuit ordered the Commissioner of Education to provide “well-planned, high quality” early education to all three- and four-year-olds residing in the state’s urban school districts.
Along with ETS, the conference was co-sponsored by Advocates for Children of New Jersey, the National Institute for Early Education and Education Law Center.
David Sciarra, ELC Executive Director and counsel to the plaintiff school children in Abbott v. Burke, delivered the following remarks to open the conference:
May 21, 1998. What happened on that date twenty years ago is why we are gathered here today.
On that day, the New Jersey Supreme Court issued its fifth ruling in the Abbott v. Burke school funding lawsuit.
A year earlier, in Abbott IV, the Court ordered the State to increase K-12 aid in the 31 urban or “Abbott” districts to the level spent in successful affluent districts, establishing “parity” in general education funding.
The next year – 1998 -- in Abbott V, the Court, based on evidence developed in a special trial, directed the State to fund and implement a package of K-12 “supplemental” programs to address the impact of concentrated poverty in the Abbott districts. The Court also directed the State to fund repairs and replacement of dilapidated school buildings.
These judicial orders standing alone were unprecedented. But the Court went even further.
The road to today’s celebration of Abbott Preschool began with these words from the Justices:
"This Court is convinced that pre-school for three- and four-year-olds will have a significant and substantial positive impact on academic achievement in both early and later school years."
The Court then issued a directive that reverberated in Trenton and across the nation: the Commissioner of Education must require all urban districts to provide “well planned, high quality” preschool for all three- and four-year-olds as expeditiously as possible, or by the start of the 1999-2000 school year.
As lawyers know, the Abbott V order represents a watershed legal ruling – the first in the nation to require preschool as an essential element of a child’s right to education guaranteed in every state constitution.
But it also set in motion a profound sea-change in every aspect of early childhood education policy and practice – from quality standards to classroom instruction, from coordination of private and public programs to integration and alignment with K-12 curriculum and funding.
And the Abbott V preschool order has brought together, in the 20 years since, so many talented and committed teachers, administrators, advocates, lawmakers, parents and experts from diverse sectors – child care, head start, public school, higher education and advocacy. Fighting through long-held differences and distrust, this powerful coalition collaborated over many years to build a preschool system that is not only the crown jewel of early education in the United States, but, most importantly, is improving the lives of thousands of children all across our state every day.
We’re here to recognize this amazing accomplishment and to honor those who worked so tirelessly to make it happen, so many of whom are with us today.
But we will also reflect on our extraordinary achievement and reaffirm our commitment to not stop until every New Jersey child has the opportunity for school readiness by attending an Abbott preschool.
And with Governor Phil Murphy’s historic announcement yesterday of an additional $57 million to strengthen and expand Abbott preschool, now is not the time to rest. Let’s get back to work.
More information about Abbott preschool is available on the ELC website.
View a short video about Abbott preschool created by Advocates for Children of NJ
Policy and Outreach Director
973-624-1815, x 24
Tuesday, March 20, 2018
A new policy brief, authored by researchers at Rutgers University and released by Education Law Center, shows that most U.S. states fund their public schools at a level far below what is necessary for students in high-poverty districts to achieve at even average levels in English and math.
The full report, entitled "The Real Shame of the Nation: The Causes and Consequences of Interstate Inequity in Public School Investments," is the first of its kind to examine the relationship between school funding, student achievement, and poverty levels across all states and the District of Columbia in the United States. The report builds on the comparisons in state school funding systems in the "National Report Card, Is School Funding Fair?"
The report presents a new "National Education Cost Model" that uses a unique dataset of school spending, student achievement, student and family income levels, and other factors to construct estimates of how much states and school districts would need to spend for their students to reach the national average in English and math.
Among the key findings in the report:
- In numerous states - including Arizona, Tennessee, Alabama, Michigan, and Georgia - only the lowest-poverty districts have sufficient funding to reach national average student achievement outcomes.
- Mississippi, New Mexico, West Virginia, Nevada, and Louisiana spend so little that even their lowest-poverty districts can't reach national average student achievement outcomes.
- Only a few states - including New Jersey and Massachusetts - have higher levels of funding across all districts and have near-average outcomes, even in the highest-poverty districts.
- The cost of achieving national average outcomes in very high-poverty districts is three times higher - or $20,000 to $30,000 per pupil - than in low-poverty districts.
The report also debunks the common misconception of a nationwide "failure" in U.S. public education based on international outcome comparisons. When viewed from a state-by-state or district-by-district lens, there is wide variation in spending and student achievement outcomes, with strong performance in a few high-investment states and in low-poverty districts - even those in under-performing states - that rivals that of other high-performing nations.
"The extreme variations in funding and student achievement across the states strike at the heart of the national interest in preparing our students for post-secondary education, the workforce and citizenship," said Bruce D. Baker, lead author of the report.
"Some states need to increase school funding across the board to ensure equitable outcomes for their students. Others need to target increases to higher-poverty districts. And the federal government should find new avenues to support states with comparatively less ability to boost school funding on their own," Dr. Baker added.
New Report Blisters North Carolina for Its School Segregation, Pointing to School Assignments and Charter School Growth As Problems
The North Carolina Justice Center has released a study of school segregation trends in the state over the last decade. Its highest level findings include:
● The number of racially and economically isolated schools has increased
● Districts’ racial distribution is mixed, but economic segregation is on the rise
● Large school districts could be doing much more to integrate their schools
● School district boundaries are still used to maintain segregated school systems
● Charter schools tend to exacerbate segregation
The Center warns that things could get worse soon: "[I]n 2017, the General Assembly has created the Joint Legislative Study Committee on the Division of Local School Administrative Units, which many advocates fear is an attempt to begin the process of re-segregating urban school districts."
This chart shows the increase in the number and percentage of racially and socio-economically isolated schools in the state. The increase in poverty concentration is the most staggering, nearly doubling. While some of this increase is attributable to the fact that the percentage of poor students in the state increased by 23 percent, the increase in high poverty schools dwarfs that number. In other words, school assignment and charter school policies are exacerbating the problem.
The role of charter schools, however, may be the hardest to swallow. First of all, North Carolina law originally required that charters reasonably reflect the overall demographics of the district in which they reside. Even the watered down new version of the law requires that charters make "reasonable efforts" to maintain a study body that matches the district. Second, charter schools don't even come close. They appear to do the opposite. More specifically, as I have pointed out several times, North Carolina's charter system seems to create incentives for "white flight" in districts that are otherwise relatively racially balanced. This chart furthers my concern.
On a global level, the Center's report found that "[i]n 72 percent of the counties with at least one charter school, charter schools increase the degree of racial segregation in the district, as measured by the racial dissimilarity index."
Monday, March 19, 2018
Those who pushed the new federal tax law never stopped to seriously consider how it might affect key services at the state and local level. The cap on deductions for state and local taxes was about far more than whether the deduction favors rich or poor states. The intent of the cap may have been to fairly rebalance the interests of these states, but tax policy is never so simple. A cap on state and local tax deductions may have unintended consequences across the nation. One of the most significant loosers will be public education.
The largest chunk of state and local taxes go to support public schools. That money matters. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low- income students completing nearly a year of additional education, wiping out roughly half of the graduation gap between low- and middle-income students. As to student achievement, a Kansas study conclusively showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.” The debate over school funding is not whether money matters, but how to spend it on things that matter the most.
When federal law caps the deduction for state and local taxes, what it is really doing is creating a disincentive to fully fund educational needs. New Jersey, for instance, does not collect high tax revenues just so that it can buy newer and fancier police cars. New Jersey collects more tax dollars because the cost of education is higher there than most anywhere else in the nation. When people in New Jersey lose their federal deduction for state and local taxes, it will, as a practical matter, cost them more to fund education next year than it did last year. It will cost more because they will pay federal taxes on their state taxes.
Average and poor states will similarly find it hard to meet the needs of their most disadvantaged students under the new tax bill. Most people in these states won’t notice the cap on state and local deductions. But an important chunk of people will and those people are crucial to those states’ ability to fairly fund education. Because the cap on state and local deductions is a flat cap of $10,000 per taxpayer, it can hit high earners and land owners in any state. And those are the exact people who make what we call progressive school funding possible.
As outrage over the Parkland school shooting persists, lawmakers are looking for actual policy solutions. Unfortunately, they sometimes misunderstand or misuse the facts that should drive policy.
The Trump administration and its supporters are latching onto school discipline reform as the solution. But by reform, they do not mean improving school climate, ensuring fairness or getting students the mental and social services they need. They mean doing away with the school discipline reform the Obama administration helped spur. They mean doubling down on zero tolerance. Last week, Florida’s Republican Sen. Marco Rubio went so far as to write that “federal guidance may have contributed to systemic failures to report Nikolas Cruz’s dangerous behaviors to local law enforcement.” Cruz is accused of carrying out the Feb. 14 school shooting in Parkland, Florida.
Rubio is referencing a 2014 memo by the Department of Education and Department of Justice under President Barack Obama. The memo placed some limits on zero tolerance and encouraged school districts to adopt proactive research-based approaches to student misbehavior. It took over a decade, but social scientists and educators began convincing policymakers that the country had made a mistake with its zero tolerance discipline policies.
Trump officials and supporters think — or would have people believe — that the new push to improve school discipline had something to do with the Parkland shooting. It didn’t. And getting rid of research-based approaches to discipline is, in my opinion as a professor of law and education policy, an even worse idea than arming school teachers.
What really works and doesn’t
But powerful stories drive perception and policy. The stories that get told and retold eventually come to matter just as much as research. So here’s a story that runs counter to the Trump adminstration’s current narrative that stronger discipline is the answer. On Sept. 28, 2016, a 14-year-old boy in Ashland City, Tennessee, entered his school with a gun. His plan was to kill teachers and a police officer. But he stopped by his guidance counselor’s office first. After 45 minutes, the guidance counselor, Molly Hudgens, talked him into giving her the gun. She said her training in de-escalation allowed her to persuade him. The local sheriff said: “She did something even the most experienced law enforcement officer might not do. Had she not been there, it could have been very different.”
The aftermath of Columbine also offers its own lessons. In the panic that followed, the nation ratcheted up its school punishments. Not only would students be expelled for bringing guns and drugs to school, they would be expelled for things like “habitual disruption” and disrespect. Some schools went so far as to suspend students for chewing Pop-Tarts into the shape of guns and for playing games like cops and robbers when they include imaginary guns.
As I detail in my book, “Ending Zero Tolerance,” the results of harsh discipline policies have been disappointing to say the least. If zero tolerance was an effective deterrent, it would have eventually caused suspensions to decline, while safety and achievement increased. But suspension rates steadily increased across time. By 2011, schools were suspending and expelling 3.5 million students a year. For African-American students, the rate of suspension increased by 60 percent. Most of these suspensions and expulsions were for relatively minor misbehavior. For instance, fewer than 10 percent of those suspensions and expulsions involved guns or drugs. And the incidental effects were equally disturbing.
How suspensions impact schools
Research has shown that high suspension rates are related to lower academic achievement, including for the well-behaved students that suspensions purportedly protect. One of the reasons is that when schools regularly suspend students for minor misbehavior, they alter the overall student body’s perception of school. Students no longer see school officials making the learning environment safe or orderly. They see school officials acting punitively toward their friends, family and peers.
And when students see a school’s discipline approach as overly strict or harsh, they see school authority as arbitrary and unfair. When student bystanders see schools suspend friends who are struggling due to factors beyond their control – such as homelessness, poverty, abuse or a disability — students come to see suspension and expulsion as downright perverse. These perceptions produce more chaos, not less.
Parkland, to its credit, had been providing students with services and support, rather than jumping straight to suspensions and expulsions. It had recognized the shooter’s struggles well before the tragedy and attempted to connect him with social supports, before finally expelling him last year. Regardless, students from Parkland aren’t claiming that the school’s discipline philosophy was related to this tragedy. It is politicians, who do not know what they are talking about, who make this claim. These voices would have us repeat the zero tolerance craze that followed Columbine.
Progressive versus punitive
As I warned in my book, “No matter how much progress is made at the federal, state, and local levels in the coming years, harsh discipline and zero tolerance will almost certainly persist.” So discipline reformers should not assume they had secured victory simply because the Obama administration had adopted a progressive school discipline memo. Now the fight for sane discipline has returned to their doorsteps.
Training and supportive approaches to discipline cannot guarantee school shootings won’t happen, but research says the best chance of reducing violence, and also improving the overall academic achievement and environment of schools, rests in rejecting punitive school discipline and replacing it with supportive systems. If we abandon the progressive steps that schools are taking, we will consign students to a darker world, not a safer one.
Thursday, March 15, 2018
A video of law enforcement officer pulling a student out of her chair by the neck and dragging her across the floor when viral in October 2015. It led to a lot of serious questions about the authority under which an officer could take such aggressive action against a student, particularly one just sitting in her seat. The answer in South Carolina, where the incident took place, is the state's Disturbing Schools Law. The law states that:
It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
The state also tacks a disorderly conduct law on top of this one. In fact, Niya Kenny, who was present during the incident above, was arrested and taken to a detention center. By her account, she simply spoke up against the officer’s actions. “I was in disbelief and I started praying out loud. I said, ‘Isn’t anyone going to help her?’”
The ACLU sued the state on behalf of Kenny and several others, asking that the state be barred from enforcing the law in the future. The district court dismissed the case, reasoning that "fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact."
In a major victory, the Fourth Circuit Court of Appeals just reversed the district court, saying the case can move forward. The state was already considering changing the statute, but this new ruling will only add pressure for the state to act.
Read the full opinion here: Download 2018-03-15 Written order 4th Circuit
I almost had to stop the car this morning when I heard the interview with a student in Great Neck, New York. She helped organize the student walkout to protest gun violence in schools. MSNBC's Ron Allen asked her: "Can you make this continue? Can you keep the momentum going on? In other words, is this going to be a one-day protest?" The organizer's initial comments included many of the same feelings we here from other students. They are energized. They don't want to be afraid. They want to be safe. They demand change. But then she offered a single line that has the power to change how people think: "We can’t be hunted.”
That idea is the most poignant framing I have heard. The gun lobby has wrapped so many of its arguments in the idealism of self-defense and hunting. This young woman's use of words sucks the wind out of both. Her phrase says this issue is not just about someone else's right to self-defense; it is about students' right to not be hunted. But the deeper meaning of her words is that students are being "hunted." If that idea sticks, it is hard to see how the gun lobby can win this fight.
Whether a phrase sticks depends on its accuracy and drama. Her's has both. While we dare not think or state it that way, our children have been hunted. They are huddled into a confined space each day. Attackers know exactly where they are. And when the attacker arrives, he literally hunts them. From Columbine to Parkland, shooters have entered buildings and hunted children, going room to room, picking them off one at a time.
The difference is not far removed from actual hunting ranges and lodges. There are places scattered across the country that set up a perfect hunting scene for the sportsmen and sportswomen. Pay your fee, bring your weapon, and the range masters will bring the animals to the hunter or the hunter to the animals. Putting aside traditional forms of hunting, this type of hunting has always struck me as extremely strange. Yet, there is something eerily similar about our school shootings, at least, from the perspective of the hunter.
The other powerful idea in the organizer's words is the fact that it begs the question of what we do to regulate hunting. Not all hunting is legal. For instance, there are times in the year when individuals can't hunt deer. There are other seasons when you can only use a particular weapon to hunt deer. There is a gun-season for deer and a bow-season. And during bow season, you can't just use any bow. Cross-bows are typically banned, unless the hunter has a disability and a special permit. There are also rules against "baiting" animals. The point is that we won't let hunters feed animals so that they eventually come right up to the shooter to be killed. And, of course, there are some animals that cannot be hunted or trapped under any conditions.
If states are willing to heavily regulate the hunting of deer and other animals, why won't they regulate the hunting of children?
Now, they will say they do. It is, of course, already illegal to kill people. But can't they look more closely at how children, in particular, are hunted? Can't they outlaw the entry points into the hunting of children? Are there weapons of choice for this type of hunting?
Don't give us the Rubio response. I know hunters can kill deer without a cross-bow. That doesn't mean it is pointless to ban cross-bows. States know there is a meaningful difference between a regular bow and a cross-bow and they take steps to limit the hunting of deer with cross-bows.
Children have far more rights to not be hunted than bambi. As the students are saying, no more BS.
The idea that "government can't force us to eat broccoli" completely undermined the Affordable Heath Care Act. The idea that "voters should pick their legislators; legislators should not pick their voters" will bring down political gerrymandering soon enough. If kids can make the hunting metaphor stick, they will change the whole playing field. And there won't be many in the gun lobby who can win on that field.
Thursday, March 8, 2018
The UCLA Civil Rights Project held a policy briefing at the U.S. Senate earlier this week on vouchers. The briefing was to assess claims that vouchers will expand and equalize educational opportunities for disadvantaged students. In addition to an empirical assessment of vouchers, the briefing "provide[d] guidelines for policy development that protect the rights of low-income students and students of color. Research findings will look at the civil rights implications of voucher programs and ask: do vouchers actually expand opportunity or undermine it?"
The briefing included presentations and papers by:
- Jongyeon Ee on "Private Schools in American Education: A Small Sector Still Lagging in Diversity"
- Mark Berends on "Lessons Learned from Indiana’s Choice Scholarship Program"
- Mary Levy on "Washington, D.C.’s Opportunity Scholarship Program: Civil Rights Implications"
- Preston Green on Private School Vouchers: Legal Challenges and Civil Rights Protections
Preston Green's paper (co-authored by Kevin Welner) offers some interesting insights. He offers this summary:
The past fifteen years have seen an explosion of private school voucher programs. Half of US states now have some type of program that spends or otherwise subsidies private schooling. Yet most civil rights protections that students enjoy when they attend public schools do not follow them to private schools. Some state voucher laws include no protections or only the most basic protections against discrimination. Even the most protective laws include no safeguards against LGBTQ discrimination and no requirement of addressing the needs of students not fluent in English. Further, these laws contain few or no requirements that private schools meet the needs of students with disabilities, and many explicitly state that students waive their services and protections under the Individuals with Disabilities Education Act (IDEA) when choosing to use a voucher.
At a time when the Trump administration and many state policy-makers are pushing for additional growth of voucher policies, it is useful to consider how the shifting schooling landscape impacts such civil rights protections. The basic tendency in the development of voucher law and policy is to initially justify the subsidies in terms of the severe educational needs of students of color and students in poverty attending inferior public schools. As the policies develop, they increasingly move toward general subsidies for private schooling, including support for higher income groups and students who have never attended public schools. Many of the state restrictions on funding nonpublic or religious institutions have been interpreted away by state courts. These trends call into question the ability of voucher programs to serve the vulnerable student populations for whom they were ostensibly created.
In this report, we first detail the evolution of voucher policies, from their roots in the Jim Crow Era to their modern-day applications, including the rise of “neovoucher” programs. Next, we examine past legal challenges to vouchers, concluding that both state and federal constitutional challenges have had very limited success but that there likely remain some future legal impediments to voucher expansion. We discuss factors that may influence the legal justifications of vouchers, including the quality of education for students of color in voucher programs. Following this, we delve into some key policy issues that arise from this shift toward greater public funding of private schools, with a particular focus on civil rights concerns. We conclude with a set of recommendations, again focused on civil rights protections.
These recommendations include:
-Ensuring that state voucher laws include straightforward anti-discrimination provisions that require voucher-accepting private schools to avoid engaging in discrimination on the basis of race, religion, color, national origin, sex, disability, or sexual orientation
-Providing stronger protections for disabled students by requiring voucher-accepting private schools to comply with Section 504 of the 1973 Rehabilitation Act and the IDEA
-Securing better services for ESL students by requiring voucher-accepting private schools to comply with the Equal Education Opportunity Act of 1974
-Addressing barriers that impede access for low-income students, including lack of transportation, additional tuition charges beyond the value of the voucher, and private schools’ option not to participate in subsidized meal programs
The various papers are available for download here.
Wednesday, March 7, 2018
Maryland's Remedy for Segregation in Higher Education Is "Woefully Inadequate," Says Legislative Black Caucus
A decade and a half into the litigation over Maryland's failure to integrate and treat its Historical Black Colleges and Universities (HBCU) fairly, plaintiffs have a new offer on the table. The state is offering $100 million over the next ten years in increased resources for its HBCUs, which is twice as much as it previously offered. For those new to the case, the Supreme Court in US v. Fordice considered segregation in the context of higher education and established standards for remedying the problem. Of course, the fact that enrollment in higher education is voluntary makes the desegregation of higher education different than k-12. But the simplest way to further integration in higher education is to avoid "program duplication." Rather than offer programs in agricultural science and hotel management at both an HBCU and a traditionally white institution (TWI), the state could offer agricultural science at the HBCU and hotel management at the TWI. It can also fund both schools fairly. If it does so, the thinking is that students will voluntary integrate schools over time.
In a nutshell, the trial court found that Maryland has done the opposite over the past couple of decades. It has opened new campuses and expanded others when it could have been expanding the HBCUs. To make matters worse, it offered new programs at other schools that duplicated the programs already being offered at HBCUs. It goes without saying that the politics of university funding run high. Add race and legacies to it and it only gets worse. It is not clear that the state has made any good faith effort to fix the problem, even after having it brought to the state's attention.
From afar and given the findings by the trial court, $100 million looks like a relatively small offer. The Maryland Legislative Black Caucus calls it "woefully inadequate." The Caucaus released this letter:
I write in response to your chief legal counsel’s Feb. 7, 2018, letter of information regarding the status of the case — Coalition for Equity and Excellence in Maryland Higher Education Inc. v. Maryland Higher Education Commission et al — and your administration’s goals.
The Maryland Legislative Black Caucus appreciates that correspondence and your desire to end litigation in a manner satisfactory to all parties and to all Marylanders. We share your desire and believe that justice in this matter is long overdue.
Respectfully, your “comprehensive settlement” offer of up to $100 million over ten years is woefully inadequate given the district court’s finding that, in the decades since Brown v. Board of Education, the state has violated the constitutional rights of students at Maryland’s Historically Black Institutions. We note that similar lawsuits in other states such as Mississippi and Alabama have been settled for over $500 million and still have proven inadequate to alleviate longstanding educational discrimination in those states. While supplemental appropriations are necessary and appropriate, any proposed settlement should include the establishment of programmatic niches, academic enhancements, and a reformed process for approving new academic programs, at each HBI. We believe the court’s remedial framework, which would be overseen by a special master, goes a long way towards a truly comprehensive solution.
In sum, the single greatest state-sponsored educational deprivation in Maryland’s history deserves more. Given the proven, multi-generational discrimination against Maryland HBIs and the enormous importance of these institutions to our state, we believe an Amazon HQ2-like commitment is warranted from your administration.
Del. Cheryl D. Glenn
Chair, Legislative Black Caucus of Maryland
Tuesday, March 6, 2018
Is DeVos Really Handing Out "Tough Love" or Finally Realizing How Little Power She Has? She's Confusing the Rest of Us
A year into her job, Betsy DeVos is finally getting some perspective on the Every Student Succeeds Act and her job. The problem is that is comes about a year too late and she does not like what she is discovering. And no amount of spin can fix it. She did make headlines with her supposed "tough love" talk, but when examined closely, it is mostly bluster and confusing.
Before get into that, let's back up a bit to see how far she has come. When she was riding high shortly after her nomination, I wrote that if she really understood the job she wouldn't want it. The job she said she was coming to DC to do had already been done. Well, its hard to admit ignorance and even harder to turn down a job as Secretary of Education, so she pressed on.
In December 2016, she said: “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.” What she didn't seem to know was that Congress had already gutted the Common Core and shifted enormous control back to states and districts. For instance, the Every Student Succeeds Act bars the Department of Education from requiring or even suggesting that a state use the Common Core. The Act is so anti-Common Core and anti-federal standards that DeVos and her staffers would get in trouble if they even brought the subject up. The state accountability requirements, likewise, leave little room for the Secretary to object. States have to include a few things like tests scores and graduation rates, but the scores they use, the amount of weight they assign those scores and the limitless number of other factors they consider is up to the states.
DeVos does not like what states produced under this system and now she is claiming to hand out "tough love." A better description is talking tough because no one is listening. Or making up boogeymen to see if anyone is scared.
Yesterday in her speech to State Education Chiefs, she said:
Just because a plan complies with the law doesn't mean it does what's best for students. Whatever the reasons, I see too many plans that only meet the bare minimum required by the law. Sure, they may pass muster around conference tables in Washington, but the bare minimum won't pass muster around kitchen tables. . . . Some of your own governors–"Republicans and Democrats -- didn't like your plans either and refused to sign off on them. … [One] warned his state's superintendent that ‘adding layers of bureaucratic paperwork does little to help low-performing schools." … [A]nother governor lamented that his state's plan ‘stymies any attempt to hold schools accountable for student performance and includes provisions aimed at preserving the status quo in failing schools. . . .
For too long, many of you have operated – and in many cases, been forced to operate -- as if your work was only accountable to folks in my office. As if all that mattered in education was a sign-off from Washington… My predecessors, from both parties, often fell into the trap of a top-down approach.
Let's put this into perspective and break it down. First, ESSA returned discretion to states and said the bar for federal accountability was very low. States, acting rationally, exercised that discretion and did as little as possible to comply with the law. This doesn't mean they lowered the quality of education, but they stopped worrying about Washington.
Second, this is exactly what DeVos claimed she wanted before she took (and understood) the job as Secretary.
Third, DeVos is now realizing she doesn't like her job and how little power she has. She cannot reject these state plans. She can't demand higher expectations, more equity, or more adequacy any more than she can demand more choice. So she signed off on them just like the law dictates she must.
Fourth, you know who does have plenty of power? The states. She said it herself: "some of your own governors . . . refused to sign off on" the plans. So ESSA worked just how it was intended. States make the decisions and the Secretary will rubber stamp them.
Fifth, the truth is that DeVos probably doesn't like being a powerless Secretary any more than any of those who preceded her. So she has to try something and she is doing the only things she can. She is complaining and begging states to do better. She is even trying to find a boogeyman to motivate them, since she lacks the power herself.
But I can't figure out who the boogeyman is: is it accountability or non-accountability? On the one hand, she says the problem is that states have too long been accountable to the feds. That was a problem. Now that they aren't accountable anymore, she says that is problem too. It is a problem because they are not taking their freedom far enough. Wait, maybe they did exactly what they wanted to do--as little as possible--and now they have the Secretary of Education telling them to do more--or rather begging them. Seems a little contradictory and patronizing.
Monday, March 5, 2018
The West Virginia teachers' strike has been dominating the news as of late. I dare say no other local education news story of this genre has garnered this much attention in a few years. The only other comparisons that come to mind are the extreme teacher shortages in 2015, Pennsylvania's inability to pass an education budget between 2013 and 2015, and the Kansas courts' fight with the state over school funding since 2013.
What strikes me as different about West Virginia is how rapidly the story is developing and my expectation that the teachers will succeed. The news that the state appears to be on the verge of ceding to their demands sparked what should be an obvious point, but one worth making: teachers can accomplish more than courts.
I have spent the better part of my career focusing on education reform through the legal system--desegregation and funding equity in particular. The courts, however, always struggle to secure reform. Courts had to all but take over public schools to achieve desegregation in many jurisdictions and, even then, they needed school leaders to help.
School funding is arguably even more difficult. Courts cannot pass education budgets themselves and they cannot throw legislators in jail. The most they can do is order the shutdown of schools (a dangerous game of chicken) or fine the state (which it may or may not actually pay).
The most typical result in these fights, however, is a lot of foot-dragging by the state. In other words, no matter what, desegregation and funding litigation demonstrate that reform through the courts is a very slow process, even when it works.
West Virginia's teachers are showing how quickly they can make things happen when they put their mind to it. They have the leverage and courage of convictions that no others have.
The state, of course, resents this, which probably explains whey they are dragging this out for a few more days. Legislators probably assume that if they cave too easily they just invite similar efforts in the future.
There is probably truth and ignorance in such a notion. The ignorance lies in the notion that teachers would just do this on a whim. The vast majority of teachers care deeply about their students and don't just wake up and decide to shut down schools. It takes quite a bit of neglect to push teachers this far. Most just quit their job and move to another profession rather than take such bold moves.
And those that suffered the neglect in West Virginia thought deeply about their students before striking. They know that some students get their only meals at school. So before they went on strike, they made sure students had food, securing meals for students out of their own pockets.
Of course, this is nothing new. Teachers across the country spend hundreds of dollars a year to buy supplies for their students. Many go to extraordinary lengths to see that their students have clean clothes or maybe a gift over the holidays. And they do it quietly without complaint.
So I don't think West Virginia needs to worry about teachers being too self-serving. What West Virginia and other states need to worry about is teachers realizing the power they have to make a difference in public education policy. When states have attacked teacher tenure and other benefits in recent years, the response of teacher organizations has been to argue that what is good for teachers is good for students and that many of the most helpful reforms of the past two decades have come because teachers demanded it.
If teachers in the 26 or so states that have recognized a constitutional right to education fully appreciated what students are owed, they could achieve far more than any state supreme court. State legislators may threaten and ignore courts, but let's see them do that to teachers. State legislators only real leverage in a battle with teachers is the court of public opinion. I am guessing that when teachers act with righteous convictions on behalf of their students, they are going to win that one.
Friday, March 2, 2018
Joshua E. Weishart, Associate Professor of Law & Policy at West Virginia University College of Law and John D. Rockefeller IV School of Policy and Politics, offers this provocative analysis of the West Virginia teachers' strike:
Much was made over the past few days that the teacher strike has been unlawful. The attorney general was keen to remind state agencies repeatedly that his office stood ready to pursue legal action against the teachers. To be sure, during the last statewide teacher strike in 1990s, the West Virginia Supreme Court ruled that, because teachers enjoy no collective bargaining rights, they have no right to strike. Yes—they have no rights, because they have no rights. Traditionally, a strike by public employees was viewed as affront to the state’s sovereignty that could threaten public health, safety, and welfare by interrupting vital government services. That argument carries more force with, say, firefighters and law enforcement than teachers, who are not public safety officers, at least not yet. Of course, teachers do perform vital services, indeed, they perform constitutional services to nearly 300,000 children in our state. But that is the very reason why it was shortsighted to view this latest teacher strike as “illegal” in any true sense of the word.
From the moment the attorney general tweeted that the strike “is unlawful and should come to an end” (before it even began), the debate about the teacher strike has been focused on the wrong West Virginia Supreme Court decision. The consequential decision is not the one upholding the common law rule that teacher strikes are, strictly speaking, unlawful but the groundbreaking decision which held that children have a fundamental right to an equitable and adequate education under the West Virginia Constitution. Pauley v. Kelly was the first high court decision in the nation to define the right to education in substantive terms. Among other things, the court determined that the “thorough and efficient” education prescribed by the constitution requires good and competent teachers. Decades of empirical social science research, in fact, confirms that teacher quality is the most influential educational resource affecting student achievement that is entirely within a school’s control.
So, when noncompetitive salaries and benefits, teacher shortages, or the lack of professional development and support cause us to lose quality teachers, those unfavorable conditions, in turn, jeopardize our children’s fundamental right to education. Viewed from that perspective, the teacher strike was no more unlawful than the state’s dereliction of its own constitutional duty. To put things into further perspective, approximately 80% of public school expenditures are for personnel salaries and benefits. It’s not the school building or the textbooks that educate, it’s our teachers. And funding that education, Pauley held, is our state’s first constitutional priority, “ahead of every other State function.” In a footnote the court added, “The patriots of this State were never afflicted with an Appalachian mentality that finds nobility in ignorance.” In that spirit, the teachers who walked the line to provoke greater investment in our children’s education were not deviants engaged in “illegal conduct” but patriots who deserve our utmost respect and gratitude.
Thursday, March 1, 2018
Civics education is getting an unusually significant amount of attention. The Century Foundation, for instance, released a report last year and the Center for American Progress just release another. According to the report:
Civic knowledge and public engagement is at an all-time low. A 2016 survey by the Annenberg Public Policy Center found that only 26 percent of Americans can name all three branches of government, which was a significant decline from previous years. Not surprisingly, public trust in government is at only 18 percent and voter participation has reached its lowest point since 1996. Without an understanding of the structure of government; rights and responsibilities; and methods of public engagement, civic literacy and voter apathy will continue to plague American democracy. Educators and schools have a unique opportunity and responsibility to ensure that young people become engaged and knowledgeable citizens.
While the 2016 election brought a renewed interest in engagement among youth, only 23 percent of eighth-graders performed at or above the proficient level on the National Assessment of Educational Progress (NAEP) civics exam, and achievement levels have virtually stagnated since 1998. In addition, the increased focus on math and reading in K-12 education—while critical to prepare all students for success—has pushed out civics and other important subjects.
Michael Rebell has used these type of findings for the premise of his forthcoming book: Flunking Democracy: Schools, Courts, and Civic Participation. Rebell, however, goes a step further than these reports and explores how these deficiencies relate to the state constitutional right to education. It is an excellent read. I highly recommend grabbing a copy when it becomes available in about a month. The promotional materials offer this summary:
The 2016 presidential election campaign and its aftermath have underscored worrisome trends in the present state of our democracy: the extreme polarization of the electorate, the dismissal of people with opposing views, and the widespread acceptance and circulation of one-sided and factually erroneous information. Only a small proportion of those who are eligible actually vote, and a declining number of citizens actively participate in local community activities.
Wednesday, February 28, 2018
The past decade and a half has shown there is no limit to the number of education reforms that states and the federal government can churn out. I won't try to list them all. I will just note two of the most vicious: those aimed at public school funding and those aimed at teachers. States moved large sums of money out of the public school budget and into voucher and charter programs. On top of that, they just took a hatchet to bottom line for school funding. At the same time, they attacked teacher tenure, froze salaries, instituted high stakes evaluation systems, and sought to reduce the influence of teacher unions. The net result was to scare so many current and prospective teachers away that a nationwide teacher shortage developed in 2015.
In Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, I outlined the short and long-term threats of these trends. But because I was basically tracking the problem in real-time, I indicated things might get worse before they got better. On the other hand, maybe I was being alarmist. It will take after-the-fact analysis by statisticians to reach any systemic conclusions. A new story out of Detroit reveals, however, that many students and teachers can feel exactly what is happening while the education reform world experiments and then looks backwards.
The Detroit Free Press offers this account:
The kindergartners at Palmer Park Preparatory Academy were shouting out words written neatly on small cards — correctly recognizing words such as "after," "red" and "look" — when their teacher Vanessa Parnell noticed a telltale sign that it was time for a classroom potty break.
"I see some of you wiggling," said Parnell, whose University District neighborhood school is struggling with large class sizes because of teacher vacancies in the Detroit Public Schools Community District.
And when you have 38 wigglers, taking a bathroom break isn't simple. Parnell must first spend time getting her class into two lines, then the students must traipse down a long hall, up a few stairs and down another long hallway to reach the middle school bathrooms. They take this long trek because the middle school bathrooms have more stalls than the elementary bathrooms — and saving time is important when you have nearly 40 students to get through.
It's just one of the frustrations Parnell faces every day managing a crowded class at this crowded school. Here, enrollment is up more than 100 students from last year — good news after years of declines. But a combination of teacher vacancies and building problems — illustrated by the four large buckets that were collecting leaking water in the kindergarten classroom on a recent day — have made classes swell.
Parnell said she and other teachers work hard to help students thrive despite "the hurdles and outside things that impede learning," and she worries that dealing with large classes impacts that work.
"It's extremely stressful, because I don't get to spend the one-on-one time that's needed with young children," said Parnell, who doesn't have a paraprofessional to assist her.
Palmer Park isn't the only school with large classes. The teacher contract establishes class size limits. In grades K-3, the class size is supposed to range from 17-25 students. In grades 4-5, the maximum is 30. And in grades 6-12, the max is 35 students.
Across the district, 14 out of the district's 115 schools have oversize classes — many of them with multiple classes that are too large. According to fall class data provided by the district:
-Nearly every K-8 class at Palmer Park is teeming with students. A third-grade class has 40 students, a sixth-grade class has 44 and a second-grade class has 39. The school's overall numbers have increased even more since fall.
-An eighth-grade class at Noble Elementary-Middle School has 52 students.A third-grade class at Bow Elementary-Middle School has 48 students.
-An eighth-grade class has 47 students.
-A fourth-grade class at Dixon Elementary-Middle School has 49 students, while a fifth-grade class has 43 students.
-A fourth-grade class at Mason Elementary has 45 students.Meanwhile, a sweeping report on school funding in Michigan that was released last month suggested 20 as the optimal class size for children in grades K-3.
There are now 178 vacancies in the Detroit school district, down from 260 at this time last year. But it's still enough to cause problems.
Superintendent Nikolai Vitti said a large part of the problem is the district's difficulty attracting teachers, a problem exacerbated by the fact that experienced teachers often must take a pay cut in order to get hired by the district. That's because under the district's teachers' contract, teachers hired receive credit for only two years of teaching experience. That can mean a pay cut for many.
This is why I prefer equity and adequacy to experimentation.
Tuesday, February 27, 2018
Steven G. Calabresi and Lena M. Barsky have published an exciting new article in BYU Law Review titled An Originalist Defense of Plyler v. Doe. They offer this summary:
This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and Equal Protection Clauses and was protected at the time of the Fourteenth Amendment’s ratification. We thus conclude that the Fourteenth Amendment granted a free public school education to both citizens and immigrants from July 9, 1868, onward.
Calabresi also wrote another incredibly valuable article with Michael Perl a few years ago: Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429. That article begins as an originalist assessment of school segregation, but is equally important in terms of an originalist assessment of the constitutional right to education. I found it extremely helpful in my article The Constitutional Compromise to Guarantee Education. Like the article on Brown, this article on Plyler will trigger additional new insights about the constitutional right to education.
If one were keeping score, the last several years have produced a new and consistent interest in originalist analysis of the right to education. Goodwin Liu's article, Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006), certainly played a significant role in this line of scholarship. Barry Friedman and Sara Solow then published The Federal Right to an Adequate Education, 81 Geo. Wash. L. Rev. 92 (2013). Calabresi has, of course, been part of two articles. And I have written two more--the one noted above and a second that I will post in the coming days. While these article all forward slightly (and sometimes significantly) different doctrinal approaches, the fact that they are being written on the same subject is important. I do not know any of these scholars, nor had I seriously considered any of their work prior to already reaching my own initial conclusions about the history. I don't know if the other scholars would say the same, but I do know that they all come to the subject from different places. Liu focused on education as a scholar, but none of the others do. Friedman appears to be more of a general scholar of the Court, writing on a variety of topics, and most recently has written about policing. Calabresi is similar. He is the author of a constitutional law casebook, a book on the executive, and a variety of law review articles on subjects as diverse as marriage, rule of law, capitalism, and liberty. In short, group think does not seem plausible with this scholars.
In a forthcoming chapter in a book edited by Kimberly Robinson, I remarked (even before Calabresi's new article and before I had started my second article):
the most striking aspect of theories is how mutual reinforcing these . . . three independent articles are. . . . All of theories put forth a core set of facts that are largely beyond dispute. These facts establish a compelling originalism account of education: in the years leading up to and following the enactment of the Fourteenth Amendment, those who wrote, enacted, ratified, and enforced the Amendment—Congress and the states—placed an unmistakable emphasis on the governmental provision of public education. They sought to protect education, fund education, and enshrine it through constitutional protections. And as [The Constitutional Compromise to Guarantee Education] points out, this collective effort was never in any serious dispute. Rather, it was one of the few issues upon which all could easily agree.
The Court could deploy this history through a number of different constitutional doctrines, but the result of all should be that education does warrant federal constitutional protection. An originalist approach, regardless of the doctrinal vehicle, largely relieves the Court of developing rationales that others could more easily label as activist. By heavily relying on history, the Court need not reinterpret doctrine, rely on modern valuations of education, or amorphous inquiries of liberty. It need only focus on the facts as they were in the second half of the nineteenth century.
This scholarship is also complemented by three independent federal lawsuits, each raising a distinct claim for federal protection of the right to education. More on those lawsuits here: The Constitutional Right to Education Is Long Overdue.
With this growing list, I have now come to expect the list will only grow more in the next few years. Hopefully, it will be followed by helpful judicial analysis.
Monday, February 26, 2018
Joseph Oluwole and Preston Green just posted a proactive new paper to ssrn: Are California's Charter Schools the New Separate-But-Equal "Schools of Excellence," or Are They Worse Than Plessy?. "This article explains how charter schools provide California's black and Latino communities the opportunity to create modern separate-but-equal schools of excellence. However, they also pose a danger. Outside entities that prioritize financial gain are also seeking to offer charter schools to black and Latino communities. Unfettered charter school expansion spearheaded by these groups could further drain educational resources, thus creating a situation that would be even worse than Plessy v. Ferguson." They conclude with this:
California’s black and Latino children are being educated in public schools that are both segregated and unequal. In that respect, their experience is similar to the one received by black students in the aftermath of the Plessy case. If handled correctly, charter schools could provide a tool for the state’s black and Latino children to create schools of excellence in this setting– just like in the separate-but-equal era. However, their unregulated nature could enable outside entities such as EMOs to create schools that drain resources from the traditional public-school systems, thus creating a situation that would be even worse than Plessy.
Because of this analysis of California’s charter schools, the authors suggest that states enact the following safeguards to protect black and Latino communities. First, states should only permit school districts to be charter school authorizers. As the resource-center debacle shows, authorizers that are not under the control of black and Latino communities might be more interested in financial gain than in serving the educational needs of the students whom they are serving. Second, states should seriously consider banning EMOs from operating charter schools because of this same concern. Finally, states should allow school districts to base chartering decisions on their economic impact to serve all of their students. Communities that serve black and Latino communities already have limited resources. California’s experience with charter school construction financing shows that if districts do not have the power to accept or reject charter schools, they might proliferate in ways that will further financially compromise these districts.
Federal Data Confirms Earlier Suspicions About Increased Racial Harassment, Begging a Set of New Questions
A 2016 survey by the Southern Poverty Law Center of teachers found:
•More than two-thirds of the teachers reported that students—mainly immigrants, children of immigrants and Muslims—have expressed concerns or fears about what might happen to them or their families after the election.
•More than half have seen an increase in uncivil political discourse.
•More than one-third have observed an increase in anti-Muslim or anti-immigrant sentiment.
•More than 40 percent are hesitant to teach about the election.
Rebecca Klein, at Huffington Post, decided to dig a little deeper and asked those charged with resolving these issues for any data they had. She offered this summary of the response from the Office for Civil Rights at the Department Education:
The U.S. Department of Education’s civil rights division saw a significant increase in the number of complaints it received regarding racial harassment in schools, including post-secondary institutions, in 2017, according to data the department provided to HuffPost. The increase represents the biggest rise in this category since at least 2009, the earliest consecutive year for which we could find publicly reported numbers in this category.
The number of racial harassment discrimination complaints the department’s civil rights division receives has ebbed and flowed over the last nine years. It did not receive more than 600 complaints until fiscal year 2017, when the number climbed to 675, a nearly 25 percent increase from the previous year. Previously, the number had bounced between a low of 362 and a high of 577.
. . . .
In general, grievances regarding discrimination related to race and national origin appear to have mostly held steady between 2016 and 2017, per documents related to the department’s budget request released last week. But within that category, harassment complaints underwent a specific leap. Other types of complaints that involve race or national origin might cover disproportionate disciplining of minority students or segregation.
This data begs a few questions. First, does the Office for Civil Rights have the staff to properly investigate the claims? The prior Assistant Secretary, Catherine Lhamon, requested more staff in her last report to Congress. She did not receive them. The new administration, in contrast, has been shrinking the Office's footprint. Second, what is the Office learning from these harassment claims? The uptick in complaints does not necessarily translate into more violations of the law. But given this significant increase, the Office's next report to Congress (or another public report) should explain whether this increase in complaints involves any increase in the seriousness of the underlying harassment. Likewise, it should explain whether the percentage of valid complaints has remained steady.
Finally, to the extent those answers suggest a staffing problem or more serious harassment problems, the Office should at the very least consider issuing policy guidance to assist schools in addressing these problems. The complaints the Office receives are but a sliver of the incidents that occur in schools. Policy guidance is crucial in assisting schools in proactive steps that can prevent formal problems and complaints from escalating. Unfortunately, policy guidance has been an area in which the new administration has retreated. Whatever the merits of other shifts, racial harassment is one of the most problematic violations of Title VI. Its effect on the individual student and the overall school community cannot be underestimated.
Friday, February 23, 2018
James Liebman's new article, Perpetual Evolution: A Schools-Focused Public Law Litigation Model for Our Day, is now available. The article was part of a Columbia Law Review symposium in honor of Constance Baker Motley. He offers this summary:
In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form of governance of the day: bureaucracy. Today, however, bureaucracy’s penchant for uniformity disqualifies it as a model judges can use to engineer the change needed by millions of children of color and in poverty trapped in failing schools. Today’s advocates can best honor Motley, therefore, by identifying the most generative form of governance of our own day and developing a model of public law litigation in its image. In that vein, this Essay advocates a duty of “responsible administration” of the public schools designed in the image of a more modern and effective form of governance: evolutionary learning. Drawing upon multiple analogies in modern legal practice, this duty requires officials responsible for students’ egregiously deficient and suspiciously disparate levels of educational attainment to track results, develop and test solutions, and use successes to set a progressively rising constitutional minimum for similarly situated students.
Get the full article here.
Thursday, February 22, 2018
This from the Education Law Center:
The seventh edition of Is School Funding Fair? A National Report Card (NRC), released by Education Law Center today, again shows public school funding in most states is unfair and inequitable, depriving millions of U.S. students of the opportunity to succeed in school.
The nation's continuing failure to sufficiently invest in public schools stands in stark contrast to a growing body of research demonstrating that increased funding leads to better outcomes for students. Studies show that school finance reforms that increase spending in low-income districts result in improved student achievement in those districts and a narrowing of achievement gaps. In fact, these benefits have been shown to last into adulthood in the form of greater educational attainment, higher earnings, and lower rates of adult poverty.
The National Report Card (NRC) uses data from the 2015 Census fiscal survey, the most recent available. The NRC goes beyond raw per-pupil spending calculations by analyzing factors crucial to educational opportunity: whether states provide a sufficient level of school funding and then distribute that funding to address greater student need, as measured by student poverty.
The latest NRC results confirm a disturbing trend: almost no improvement since the end of the Great Recession in those states that do not provide additional funding to districts with high student poverty. There is also no change in the vast disparities in levels of funding for K-12 education across the states, even after adjusting for cost. The states with the highest funding levels (New York and Alaska) spend more than two and a half times what states with the lowest funding levels spend (Arizona and Idaho).
Key findings include:
- Funding levels show large disparities, ranging from a high of $18,719 per pupil in New York, to a low of $6,277 in Idaho.
- The ten states with the lowest funding levels - less than $8,000 per pupil -- include Florida, Mississippi, and Oklahoma. Three of those states, Arizona, Idaho, and North Carolina, provide less than $7,000 per pupil.
- Many low funding states invest a low percentage of their economic output to support public education. These "low effort" states include California, Utah, North Carolina, and Tennessee.
- Seventeen states, including Connecticut, Maryland, Maine, and Illinois, have "regressive" school funding. These states provide less funding to their higher poverty school districts, even though students in these districts require more resources to achieve.
- Students in the South and Southwest face a "double disadvantage" because their states provide low funding with no boost in funding for high poverty districts. States with flat or regressive funding include Alabama, Mississippi, and Florida in the Southeast, and, Arizona, Nevada, and New Mexico in the Southwest.
- Only a few states, including Massachusetts, New Jersey, and Wyoming, provide high levels of school funding and distribute more funding to their high poverty districts. Notably, New Jersey and Massachusetts are the top performing states on student outcomes.
- States with low or flat school funding have poor results on resource indicators crucial for students to succeed in school. In these states, access to early childhood education is limited; wages for teachers are not competitive with those of comparable professions; and teacher-to-pupil ratios in schools are unreasonably low.
"The NRC released today is a sobering reminder of why unfair school funding is the most significant obstacle to improving outcomes for our nation's public school students," said David Sciarra, ELC Executive Director and report co-author. "The stark reality is most states still fund their public schools based on pure politics, not on the cost of delivering quality education to all students."
"School finance reform is long overdue," said Bruce Baker, the Rutgers University Graduate School of Education Professor who developed the report's methodology. "It's long past time for states to develop, and then fund, finance formulas built on the costs of providing essential education resources, accounting for diverse student needs and local fiscal capacity."
Is School Funding Fair? A National Report Card is coauthored by Dr. Bruce D. Baker of the Rutgers Graduate School of Education; Dr. Danielle Farrie, Education Law Center Research Director; David Sciarra, Education Law Center Executive Director.