Monday, January 9, 2017
Are Pence and DeVos a One-Two Knock Out for Education Policy? Recent Reports Out of Indiana Suggest Yes
My recent posts have focused on DeVos and the problems she presents for public education, although I emphasize that without new legislation she does not have power to do too much. Some new information out of Indiana regarding the education system Governor Pence has overseen suggests more trouble on the horizon and give me pause about assuming an incompetent education administration. Pence actually has a track record of getting things done in Indiana and what he has accomplished should raise red flags for those invested in improving public education.
Most notably is the state's teacher bonus system. By law, the state mandated that $40 million in bonuses be handed out to the state's teachers. I am all in favor of increasing teacher pay in ways that make the profession more attractive to new teachers and encourage others to stay. Indiana's incentive pay, however, has two major problems. First, it is having a very inequitable effect on teachers and driving most of the money to school systems that need it the least. Cory Doctorow offers this summary:
[The state gives] bonuses for teachers who preside over high-achieving classes. This year, the biggest payouts will go to schools teaching the richest kids in the state, while schools for poor kids will get little-to-none of the payouts.
The biggest winner in the giveaway are the Carmel Clay Schools, where 9% of kids qualify for free or subsidized lunches, where the teachers will get $2422 each. The Indianapolis district -- the largest in the state -- will give each teacher a $128.40 bonus.
Emanuel Felton adds:
Carmel Clay Schools, where just 9 percent of their 16,000 students qualify for free or reduced-price lunch, will get the most— $2.4 million or roughly $2,422 per teacher. Another well-off Indianapolis suburban district, Zionsville Community Schools, where fewer than 5 percent of students qualify for the free and reduced-price lunch program, will receive about $2,240 per teacher. Meanwhile, Indianapolis, the state's largest district will receive just around $330,875, or $128.40 per educator. So teachers in those wealthy suburban districts will get bonuses nearly 20 times larger than effective and highly effective educators in Indianapolis.
Indiana State Teachers Association President Teresa Meredith calls it a "flawed" system.
"While educators at well-resourced schools performed well and received a much-deserved bonus, the educators teaching in some of the most challenging districts where socioeconomic factors can negatively impact student and school performance, were left out," she said in a statement. "We need high-quality educators to teach at our most-challenged schools, and this distribution of bonuses certainly won't compel them to do so."
Even if Indiana fixed this inequity, the performance pay has a second big problem: no evidence shows that these systems actually improve student performance. Instead, they tend to frustrate teachers because the metrics that determine whether teachers receive a bonus are ones over which teachers have little control. The distribution of bonuses appears random or keyed to who gets to teacher certain students. More on these problems here.
Of course, the more obvious problem in Indiana is a voucher system on steroids that increasingly drives public funding to middle and upper income families in private schools while funding for public schools falls short. Indiana was among the nation's worse offenders on that score in recent years. More on that here.
All of this spells trouble. While one could hope for an isolated and irrelevant Secretary of Education, this one, should she be confirmed, may have an ally in the White House who knows how to implement new education frameworks.
Thursday, January 5, 2017
Secretary of Education John King is set to give his final reflections on the work that the U.S. Department of Education has accomplished over the past eight years. The Atlantic reports that he will release a 14 page exit memo titled "Giving Every Student a Fair Shot: Progress Under the Obama Administration’s Education Agenda.” I would expect that it is largely a summary of the 60 page document the White House released back in May under the exact same title. Get that report here.
The most notable accomplishments it will tout are Race to the Top, changes to the teaching profession, expansion of pre-kindergarten education, the Every Student Succeeds Act, and civil rights enforcement. With the new administration that lies ahead, many on both sides of the aisle will soon enough long for the one that just left and, thus, I hesitate to be critical. Nonetheless, I cannot count many of this administrations accomplishments as positives.
An overarching theme of this administration is what I would call the econometrics and corporatization of education. I use econometrics to refer to the notion that we could precisely measure student growth and teacher effectiveness. These notions became the basis for using extremely complicated mathematical analysis to compare one teacher to another, one school to another, and to take action against them when officials did not think the results were good enough.
Intuitively, the approach made perfect sense--far more than No Child Left Behind's nonsensical assumption that it could force schools to make 100 percent of students proficient by 2014. The problem is that the Obama administration's policies rested on the same fundamental flaw as No Child Left Behind. They both assumed that standardized tests are an accurate measure of learning. In many ways, the Obama administration made things worse because it upped the ante. Not only would it rely on the test results, it would attempt to draw far more information and conclusions from them. As I detail here, this approach is inherently unfair in a number of ways and produces random and unreliable results. What the Department should have done is the opposite. Keep the tests but use them only for what they are good for: rough global measures of a slice of student learning that can serve as a trigger for further inquiry into a school (and maybe a teacher).
Corporatization is somewhat of a rough characterization, but I use it as a proxy for the notion that schools can run like businesses and on the whole operate like markets. This notion led the Department to demand that states lift caps on the number of charter schools and resulted in an enormous expansion. Charter school enrollments roughly doubled during the Obama administration. While it is true that there are scores of very high performing and beat-the-odds charter schools across this nation, they are the exception, not the norm. There is no evidence to show that a school, simply by virtue of being a charter, is likely to perform any better than a traditional public school. Rather, the evidence shows quite the contrary.
And even putting achievement results aside, the profit motives, potential corruption, lack of transparency, and lack of legal protection are, in fact, inherent risk in charters as currently structured. Thus, these past several years saw a sharp spike in these problems. What charter schools require and neither the federal nor state governments have been willing to impose are serious oversight and standards that align them with the core values of public education. As I detail here, without that oversight and alignment, they can undermine public education itself.
Finally, the Department is quite proud of the fact that it got rid of No Child Left Behind. I concede that is an accomplishment. The problem is that the Department overreached so much through Race to the Top and the waivers of No Child Left Behind, that the final legislation that replaced No Child Left Behind was more about eliminating the federal role in education than it was improving it. In that respect, the Every Student Succeeds Act is a major step backward for the students who need federal leadership the most. That is no accomplishment at all. For a full explanation, see here.
Those critiques, however, do not mean that the Department was without success. To be absolutely clear and reiterate what I wrote a few weeks ago, the Office for Civil Rights in the Department of Education has done an outstanding job, particularly in the past four years. For the first time in a very long time, the Office for Civil Rights once again became an institution that families believed would take their claims of discrimination seriously. The Office once again became an institution that would insist that districts comply with anti-discrimination law, regardless of the politics that surrounded doing so. Thus, it is no surprise that the cases filed with the Department grew, so much so that the Department requested additional resources to do the work that the law demanded of it.
As we turn to the next administration, signals indicate that we will miss the Office for Civil Rights more than most appreciate now. Whether we will miss the general Department of Education's substantive policies remains to be seen, but things can certainly get a lot worse.
Thursday, December 8, 2016
Moody's Finds Overall Credit Quality of Charters Ranges from Investment Grade to Speculative, But Expects Sector Growth
For those who missed it, Moody's released a financial risk assessment of charter schools this fall. The four passages jumped out at me:
- The median rating of Moody’s-rated charter schools is Baa3, but the median credit quality of the broader charter school universe is decidedly lower.
- [C]harter schools across the nation face unique credit challenges. Those challenges have translated into an above average incidence of defaults relative to other tax-exempt credits. The overall credit quality of this sector ranges from low investment-grade into low speculative-grade categories.
- [W]e expect that the appetite for the education alternatives that this sector offers will continue to expand. Over time, we also expect that charter school credit quality will likely improve, with strengthening in several key areas including: academic performance reporting; the stability and predictability of per-pupil funding for operational and capital needs; available liquidity and reserve levels; transparent and timely disclosure; and leadership and management quality.
Moody's defines a Baa rating as " medium-grade and subject to moderate credit risk and as such may possess certain speculative characteristics." The additional modifier of 3 "indicates a ranking in the lower end of that generic rating category." The next step down from that would be a Ba rating which is defined as "speculative and are subject to substantial credit risk."
Read the full report here,
Wednesday, December 7, 2016
Yesterday, Alyson Klein, pointed out that Betsy DeVos, the nominee for Secretary of Education,
would be the first person to head the department in its more than 35-year history who hasn't either attended public schools or sent her own children to them. . . . And DeVos, a school choice and voucher advocate, sent each of her own children to private schools as well, Truscott said. . . . "She believes all parents should have access to the same choices her children had," said Matt Frendewey, a spokesman for the American Federation for Children, a school choice advocacy organization that DeVos chaired until recently. . . . She'd also be one of only a few secretaries entering the job without experience teaching in a K-12 school, or college; running a university, school system or state education agency, or overseeing public education as a governor, or governor's education aide.
As a counter, some have pointed out that President Obama is primarily a product of private schools and has sent his daughters to private schools. From my perspective, this counter does not help DeVos much. First, Obama's two Secretary of Education appointment did have significant experience in public schools, which shaped their views tremendously. Second, there are plenty of critiques of Obama's education policy to go around. Obama's first term may have fractured support for traditional public schools more than any before, although I do not believe that was necessarily the intent.
Regardless, DeVos vision for education and her general operating principle of expanding choice are private market ideas. These ideas, if not properly tailored to public values, are antithetical to public education itself. As I argue here, these private ideas undermine the very justification for public education itself if pursued to their logical conclusions. Public education is not a private commodity and it serves ends well beyond the interests of individual parents or students. Public education, of course, would be of little good if it did not also produce significant benefits for individuals, but it also produces benefits for overall communities, states, and societies. Hence, we all pay taxes and all have a voice in the ends and values it should pursue. If that balance shifts too far to individuals, it ceases to be public education and worthy of the same level of public support. It begins to look more like housing, transportation, and other aspects of society. In these areas, government support and regulation is more limited. Public policy supporting them comes from a confluence of interests between the public and private, not from a public interest per se.
DeVos' ideas threaten to move us in this direction. Her lack of public school experience may, moreover, lead her to discount the distinction between private and public education, not out of malevolence but ignorance or naivete. Because private choice has worked for her and those who can afford to carry its burdens, she may incorrectly assume that it will work just as well for those who are poorly positioned to carry its burdens. Then again, maybe she is right and it is my own experience in public schools that breeds my skepticism. I do, however, know one thing. The educational opportunities that I received in public school and a few key decisions that made later educational success possible for me were not made by me or by my parents. They were made by a few public school teachers who believed I could make something better of myself. They never told me or my parents this. They simply and quietly put me in an advanced placement class that gave me a shot and asked me to make the most of it. In fact, on the first day of class, I raised my hand and said "I don't think I am supposed to be in here." In this and several other ways, I credit public school for entirely altering the course of my life. Due to my experience, I have to believe this is the ethos of public schools, when they are properly supported and structured.
I admit that I know little of most private schools. I do, however, place significant stock in Chris and Sarah Lubenski's nationwide study that found when comparing apples to apples, public schools actually outperform private schools. This is not to deny the high average SAT scores in many private schools, but to recognize those high averages are a result of the high concentration of demographically advantaged students who attend those schools, not something special the private school is doing. Students with those demographics do just as well in public schools. They are just not as heavily concentrated there.
Thursday, November 10, 2016
The issue of charter expansion in Massachusetts has raised cutting edge issues over the past year and a half. Initially, plaintiffs filed suit, seeking to use the state education clause to argue that the state was obligated to provide more charters in light of its failure to provide an adequate education in its regular schools. That theory built on much of the flawed thinking in California, where a trial court had struck down teacher tenure as a violation of students fundamental right to education. More recently, the higher courts in California rejected that tenure theory. In Massachusetts, however, the theory regarding charters migrated into the political domain and was offered as leverage against legislators who opposed charter expansion. With no victory there, the issue moved to the voters.
On November 8, 2016, Massachusetts voters roundly rejected the expansion of charters. Initially number showed a large margin of 62-38. The New York Times reported that those favoring expansion had spent $26 million to promote the measure. Opponents spent $15 million. The president of the Massachusetts Teacher Association said it was a victory for public education in general: “We held the line. . . . Money can’t buy our public schools.”
Given the flaws in the litigation claims, one would expect the same result there, although it may be slower coming. These types of suits, however, are becoming more and more prevalent.
Wednesday, November 2, 2016
New Charter School Controversy Calls Into Question Democratic Accountability and What It Means to Be a Public School
One of Dallas’ oldest and biggest charter schools, A.W. Brown-Fellowship Leadership Academy, is in turmoil. It started out with an enrollment of 200 students more than a decade ago and now has 2,400, with growth each year. Some parents are rethinking the school and its governance. New claims of abuse and/or mistreatment of students have been levied against the school. Parents claim the school is being non-responsive to concerns. The problem appears that even if the parents are correct there is nothing they can do about because of the differences between a charter school and a traditional public school.
Parents also complain of nepotism — namely, that board president Lorenzo Brown and his son serve together. But that’s legal for charter schools in Texas. After all, A.W. Brown school was started by a husband and wife. At one point, both Armond and Paula Brown served on the board and worked as employees, records show. Other family members also worked for the school.
. . . .
If the school were part of a traditional district, parents could elect their board members. But as a public charter school, A.W. Brown’s board appoints its members.
So some parents say they’re voting with their feet. LaTrondra King said her son is on the waiting list at another charter school. “I just want the best for him,” she said.
In Charter Schools, Vouchers, and the Public Good, I raised similar issues in the context of asking what makes a school "public." Does a statute that calls a charter school a public school make it so or are there substantive qualities and characteristics that make a school public? I won't recount that entire discussion here, but I argue that constitutional and democratic accountability, among other things, are a central aspect of what makes a school public.
Public schools’ mission also extends to fostering [particular] values once students are enrolled, including democracy, equality, and tolerance. Public schools pursue these ends not only because they are public values but also because the Constitution mandates as much. This is no small distinction. As state actors, public schools are bound to treat students (and teachers) fairly, which entails, among other things, equality, rationality, and viewpoint neutrality. Moreover, these obligations extend not only to individual students but to groups of students, schools, and districts. Equality offers a touchstone example. From its decision of whether to assign a student to special education classes to its decision of how to fund schools and districts, the state and all its subsidiary public schools must ensure equal treatment of and opportunity for all students.
Any number of private schools might hold these same values, as they are not inherently unique to public schools. But private schools are free to bend, ignore, and modify these values. Likewise, statutes might impose equality obligations on nonpublic schools that receive federal funds or fall within some other statutory classification, but private schools are free to decline federal money or alter their status to avoid falling within the ambit of other statutes. For that matter, legislators can exempt private schools from statutory prohibitions at any time and, in fact, have done so on occasion. In short, those values that make schools public create inviolable rights in public schools, in contrast to nonpublic schools, where those values are gratuitous, to the extent they even exist.
Constitutions and statutes, however, are but one piece of the public schools’ accountability structure. Perhaps more important than legal accountability is their political accountability. From the governor and department of education officials to the school board, superintendent, and principals, public education is democratically accountable. To state it another way, people collectively set the rules for public schools.
Nonpublic schools, in contrast, lack democratic accountability. Many argue that consumer accountability is more effective than democratic accountability, and often they are correct. For instance, consumers of education, as a practical matter, are more likely to affect immediate change in nonpublic schools. But there are important limits and caveats to consumer influence. First, the larger community has little influence on nonpublic schools, whereas everyone has the capacity to influence public schools. Second, even those consumers who can exert influence on private schools may find that it is only as to microlevel issues or those issues that the school is willing to negotiate. The educational direction of nonpublic schools ultimately rests solely in the hands of the private school’s leadership and is not subject to formal checks. Unlike in public schools, consumers cannot unelect the boss or bosses in private schools. Their only option is to go elsewhere.
Finally, schools are public because they represent the democratic will of the people. Schools that represent something other than the will of the people are not public in a substantive sense. While these points might seem obvious, they bear noting because, as suggested previously, they mark the outer limits of the role that dissent can play in public schools. Because public schools operate based on democratic consensus, both the dissenter and consenter must abide by the consensus rules. While nonpublic schools can tolerate relatively high levels of individual action and dissent—as individuals can sort themselves into varying nonpublic schools—a system of public schools risks falling apart because it is predicated on collective action. Thus, a hallmark of public schools, for better or worse, is to compel conformity and limit dissenters’ capacity to overrule the majority.
That article also posits that charter schools, as currently structured, present serious tensions that call into question whether they are, in fact, public schools.
With these broad outlines, the question is whether charter schools are substantively public schools and, if not, what steps are necessary to make them public. Of course, state statutes label them as such, but if labels do not confer substantive status, something more must be said of charters. Implicitly recognizing the distinction between labels and substance, commentators and scholars have struggled with how to characterize charter schools. Although some assert charters are public with no explanation beyond the fact that statutes label them as such, more often scholars characterize them as “quasi-public” or hybrid-public schools. These latter characterizations implicitly acknowledge that important aspects of charter schools distinguish them from public schools. Yet, the fact that they are publicly funded and offer free education cautions against eschewing the public characterization altogether.
At some point, however, variations between charter schools and the essential meaning of a public schools are too significant, and a school is either public or not. If the label quasi-public is accurate, a strong case can be made that charters are not public schools. To call a school quasi-public may be to say it looks and acts like a public school in various respects, but it is not really a public school. For instance, courts label some agreements or understandings between people as “quasi-contracts” and, in doing so, impose contractual responsibilities on the parties, but a “quasi-contract” is a quasicontract and not an actual contract because it lacks some crucial element of a contract.
In practice, charter schools, like quasi-contracts, lack crucial elements of the label to which they aspire. In particular, charters diverge from the public school concept in terms of their student enrollment, oversight, and potentially insular missions. This divergence, in all fairness, is not likely true of all charters, as charters operate in diverse ways, but few states sufficiently regulate charters in the manner necessary to ensure that they, as a group, adhere to key public school characteristics. In effect, those charters that act consistent with public values are effectively doing so on a voluntary basis, just as a private school could.
Read the full article here.
Monday, October 31, 2016
Over 20 percent of all California charter schools have enrollment policies that violate state and federal law, according to the report "Unequal Access," released in August by the ACLU of Southern California (ACLU SoCal) and Public Advocates of San Francisco. Charter schools in other states use some of the same enrollment policies.
Among the violations cited in "Unequal Access" are admission requirements that violate the California Charter Schools Act, which requires charters to "admit all pupils who wish to attend," regardless of academic performance, English proficiency, immigration status or other factors.
"We hope this report brings to light practices that prevent charter schools from fulfilling their obligations to all students who seek access," said Victor Leung, a staff attorney with the ACLU SoCal. "The report should make it clear to all California charter school authorizers and operators that they cannot cherry pick the students they enroll."
The study examined policies at most charter schools across the state and found that at least 253 violated students' rights by:
- Denying enrollment to students who do not have strong grades or test scores;
- Expelling students who do not maintain strong grades;
- Denying enrollment to students who fail to meet a minimum level of English proficiency;
- Selecting students based on onerous, pre-enrollment requirements, such as essays or interviews;
- Discouraging or precluding immigrant students from attending by requiring information about pupils' or parents' immigration status;
- Requiring parents to volunteer or donate money to the school.
"The idea behind charters was never to create private academies with public funds," said John Affeldt, managing attorney at Public Advocates. "Charter schools, like regular public schools, need to be open to all students. Admission requirements and processes that limit access or discourage certain kinds of students have no place in the public school system."
While the report is the first of its kind to be based on a broad survey of charter admission policies, concerns about these illegal policies surfaced earlier. In 2013, Public Safety Academy in San Bernardino ran into trouble after the school sent letters to 23 students whose grade-point averages had fallen below a 2.0 in one semester. The letter advised them to enroll in another school. Officials at the charter school changed their policy after being contacted by the ACLU SoCal.
In 2014, Public Advocates released a report documenting the charter practice of requiring parents to volunteer "service hours." The report led to new guidance from the California Department of Education, explaining that requirements for volunteer hours are illegal. But the "Unequal Access" report shows the practice still continues in some schools.
In addition to the survey, the report provides recommendations to charter schools, charter-authorizing bodies and the California Department of Education to address the violations.
Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Friday, September 30, 2016
The Education Law Center offered this summary yesterday:
Education Law Center welcomes the Nevada Supreme Court decision in Lopez v. Schwartz firmly declaring the state's Education Savings Account (ESA) voucher program unconstitutional and permanently blocking its implementation.
The Court's ruling makes clear that the Nevada Legislature violated a constitutional prohibition against the use of public education funding for any purpose other than the operation of the public schools. The ESA voucher program would have diverted funds from the public schools for private education expenditures.
This decision strikes at the heart of the ESA voucher program, which was designed to remove significant amounts of funding from public school budgets to pay for private school tuition and other expenses, even for the wealthy. The court's sweeping ruling permanently blocks the program from being implemented in the future.
"The Court confirmed that the parent plaintiffs' claims were correct - the state constitution expressly directs that funds appropriated by the Legislature for public education be used for that purpose and that purpose alone," said David G. Sciarra, ELC Executive Director, and, along with ELC attorney Jessica Levin, a member of the pro bono legal team representing Nevada parents and children in the voucher lawsuit.
ELC is a partner in Educate Nevada Now (ENN), a Nevada campaign in support of public education founded by the Rogers Foundation. ENN and the Rogers Foundation provided crucial support in the voucher lawsuit. With implementation of the voucher program now blocked, ELC will continue to work with ENN and the Rogers Foundation to improve the educational experiences of the half million children in Nevada's public schools.
For more information about Lopez v. Schwartz, please visit these ELC web pages.
While these cases challenging the use and misuse of public education funds have been muddled over the years, I get the sense that recent courts have been slightly more willing to consider seriously the problem of using funds that state constitutional clauses commit to public schools for vouchers and charters. Recall last year that the Washington Supreme Court struck down a the state's charter statute because of the conflicts it created in regard to the states constitutional obligations in regard to traditional public schools. Unfortunately, courts have been less willing to seriously consider the constitutional problems that arise when states simply underfund public schools as a general principles. See here.
Get the recent Nevada Supreme Court decision here: Download 16-30306
Thursday, August 25, 2016
Lawsuit Revisits the Question of Education As a Fundamental Right Under the U.S. Constitution, But Is There More To It Than That?
Plaintiffs in Connecticut have filed a new lawsuit against the state challenging the "inexcusable educational inequity and inadequacy" in its school "that prevent inner-city students from
accessing even minimally acceptable public-school options." The complaint argues that these problems are a result of:
First, Connecticut has instituted a moratorium on new magnet schools (Conn.
Gen. Stat. § 10-264l(b)(1); Public Act No. 09-6, § 22 (Spec. Sess.); Public Act No. 15-177, § 1), despite the fact that a large majority of Connecticut’s magnet schools consistently outperform inner-city traditional district schools.
Second, Connecticut’s arcane and dysfunctional laws governing public charter
schools (Conn. Gen. Stat. §§ 10-66ee(c)-(d), 10-66bb(a), 10-66bb(g)) prevent high-performing charter schools from opening or expanding in the State, despite the fact that Connecticut’s few charter schools consistently outperform inner-city traditional district schools.
Third, Connecticut’s inter-district Open Choice enrollment program (Conn. Gen.
Stat. §§ 10-266aa(c), 10-266aa(e), 10-266aa(f), 10-266aa(g), 10-266aa(h)) penalizes school districts that accept students from inner-city school districts, thus dooming the viability of the very program ostensibly designed to provide Connecticut’s students with quality public-school options.
As a remedy, plaintiffs ask:
for a simple declaration that would have immeasurable benefits for many thousands of children: By forcing Plaintiffs and thousands of other students to attend public schools that it knows are failing, while impeding the availability of viable public educational alternatives through the Anti-Opportunity Laws, Connecticut is violating students’ federal due process and equal protection rights. Connecticut should be required to take any and all steps necessary to ensure that neither Plaintiffs nor any other students within its borders are forced to attend a failing public school.
The case is a hard one to pigeonhole. On the one hand, it attempts what I and others have long advocated for: a reconsideration and overturn of San Antonio v. Rodriguez. As the Connecticut Mirror reports,
Forty-three years have passed since the U.S. Supreme Court narrowly ruled in the landmark San Antonio v. Rodriguez school-funding case that education was not a constitutional right and that the disparate spending on education for students from low-income neighborhoods was not a violation of the equal protection clause of the U.S. Constitution.
"The time has come for the federal courts to recognize a federal constitutional right to some minimal, adequate level of education. We felt Connecticut was a very good place to bring it," said Theodore J. Boutrous, one of the attorneys representing the seven student plaintiffs from low-income families.
Boutrous told reporters during a Wednesday conference call that the Rodriguez decision "left open the possibility that a claim like ours could succeed" since that case focused on school funding disparities while this lawsuit focuses on the limited options students have to leave failing schools.
. . .
Experts observing this case say a lot is at stake.
On the other hand, the case takes a factual angle in making out this claim that sounds a lot like free market thinking in education. Moreover, Students Matter, the group that has lead the constitutional challenge to teacher tenure, is backing the case. As a factual matter, the case would appear to be about student choice. It holds up the interdistrict magnet schools created as a result of the Sheff v. O'Neill litigation, which are designed to further integration, as important models for improving educational opportunities for minority student, but argues those type of magnets are not the only viable option. More charter schools, it argues, could create similar options to escape currently unconstitutional traditional public schools. In this respect, the plaintiffs are trying to, in effect, piggy back off of the success of Sheff.
My initial response is that there is a big gaping hole in this use of Sheff magnets. Sheff magnets are an integrative cure to a segregative injury. It is not clear that charters are a proportional or analogous remedy to anything, nor did I notice any indication that these charters would follow the lead of Sheff magnets. With that said, the complaint follows up its charter school claim with the suggestion that the state expand inter-district magnet opportunities, which is consistent with Sheff.
On the whole, however, these limited opportunities are evidence that the plaintiffs say shows that the state is failing to offer even a minimally adequate education, which Rodriguez indicated might be protected. The big question for me is what the plaintiffs really want. Is it to right the wrong of Rodriguez or to dress up a charter school plea in language that sounds appealing to a lot of civil rights advocates that might otherwise be adverse? I do not know enough about the key players in the case to have a firm opinion, but the prior constitutional challenge to teacher tenure offers some hints. What I am confident of, however, is that danger lurks if issues as weighty as Rodriguez are in the wrong hands.
Monday, August 22, 2016
What Does the New Public Advertising Battle over Charter Schools Tell Us about Overall Education Debates?
Last week, the story was the potential rift between local minority communities and their national and state leaders. This week, the story may be the amount of money being spent to counteract those those national and state level leaders who oppose charter school expansion. The Boston Globe reports:
A new $2.3 million ad boosting the expansion of charter schools in Massachusetts lists the campaign’s top five donors on screen, in accordance with state law. But the singularly bland names, including Strong Economy for Growth and Education Reform Now Advocacy, give no hint of who is writing the checks.
Four of the five donors to the procharter committee are nonprofit groups that do not, under state law, have to disclose their funders, allowing the individuals backing the effort to remain anonymous.
The cloak of secrecy surrounding the financing of what could be the most expensive ballot campaign in state history has frustrated election officials and underscored the proliferation of untraceable money in political races across the country.
. . . .
The ballot campaign known as Question 2 — which would allow for the creation or expansion of up to 12 charter schools per year in low-performing districts — is expected to smash the $15.5 million that was spent, mostly by gambling interests, to defeat a 2014 ballot question that would have repealed the state’s casino law.
This influx of money could be coincidental, but one has to wonder whether it is a response to the charter lobby's sense that things are slipping away.
Friday, August 19, 2016
Massachusetts Locked Over Charter School Expansion, Offering a Glimpse of the Politics Playing Out at the National Level
The national opposition to charters from the NAACP and Black Lives Matter is strengthening the position of those at the local levels who might otherwise fold under pressures to expand charters. At least, that appears to be the case in Massachusetts. As some may recall, an advocacy group filed a novel claim in Massachusetts last year arguing that the state's limitations on the number of and funding for charters violated the state constitution's mandate of a quality education. The theory, in many respects, copied that of the constitutional attack on teacher tenure in California: if there is an education policy you do not like and you think your policy would produce better results, challenge the policy you do not like as an unconstitutional impediment to a quality education. In fact, it worked at the trial level in California. But as I demonstrate here, constitutional education claims require a lot more than this. The challenge to tenure was riddle with factual holes and the Court of Appeals eventually saw through them. But the charter claim in Massachusetts is not even theoretically valid.
The state's obligation is to provide a quality education in its traditional public school system, not create an alternative system of charters for those who want to exit broken schools. To be clear, broken traditional public schools are a constitutional violation, but the notion that courts could mandate charters as the remedy is an enormous stretch. Nonetheless, the threat this litigation posed and, more important, the rhetoric and attention it brought to the issue of charters appeared to turn the political tide. Numerous leaders in the state, including the governor, were voicing support for a change to charter laws in the state shortly after the lawsuit. Quite honestly, I thought a new charter law was a foregone conclusion a earlier this year.
The current story out of Boston suggests the pendulum is already swinging back. Democratic leaders are standing stronger against charter expansion. And given that this particular change being debated will disproportionately fall on minority schools and communities, their views at both the local and national level are sure to loom large. But as my posts the past two days show, the differences in opinion between local and national opinions can run deep. The interesting question in Massachusetts is the possibility that differences in opinion between state leaders and local communities may also run deep.
Wednesday, August 17, 2016
Making Sense of African American Support for Charters: Affirmative Support or a Rational Response to Derelict States?
I rarely come back to a subject on consecutive days, but the headline of story this morning and the fact that so much was left unsaid in my post yesterday offers a compelling occasion. This morning, Keli Goff penned an article titled "NAACP Calls for Charter School Ban, Leaves Black Parents and Children Behind." The story led with the statement that "Groups that want to be the voice of people of color have to listen to all people of color, not just those reciting one party’s platform and talking points." Later she cites data that "that 65 percent or more of black parents in Louisiana, New Jersey, and Tennessee support charter schools—and that 70 percent of black voters believe in some from of educational choice for parents."
I cannot quibble with her basic factual points. They were at the thrust of my article yesterday and my conclusion that the "charter school gig" was far from up. What bears more discussion, however, is why so many families and communities want them. Is it the intrinsic merit of charter schools? Is it distrust of the traditional system? Or is it that existing opportunities are so deficient that they feel forced to accept consolation prizes like charter schools or vouchers?
No one motivation or answer fits all situations. No doubt, there are many excellent charter schools out there and the hope that one can secure a seat in one of those schools can be enough to drive politics. On top of that, the charter industry has a lot of incentive to oversell those success stories. The large majority of charters, however, do not fall in the success story category and a large chunk of families are not motivated by a lottery ticket mentality when it comes to their own children, although some surely succumb to it.
Tuesday, August 16, 2016
At its recent national convention, the NAACP passed a resolution calling for a moratorium on charter schools. At roughly the same time, Black Lives Matter issued its policy agenda for the nation, which also included a moratorium on charter schools. The NAACP offered this justification for its position:
- “Charter schools have contributed to the increased segregation rather than diverse integration of our public school system.”
- “Weak oversight of charter schools puts students and communities at risk of harm, public funds at risk of being wasted, and further erodes local control of public education.”
- " [R]esearchers have warned that charter school expansions in low-income communities mirror predatory lending practices that led to the sub-prime mortgage disaster, putting schools and communities impacted by these practices at great risk of loss and harm…”
This turn of events is worth special note because the African American community's initial support for charters was a driving force for their adoption. Without state level support and the local demand of African American communities, I would imagine that charter school expansion and enrollment would be only a fraction of its current levels. But now that we have so many charters, I wonder if these new positions really have the capacity to reverse the tide.
Wednesday, August 10, 2016
Unequal Access Report: Twenty Percent of California's Charter Schools Have Exclusionary Admissions Policies
The ACLU Foundation of Southern California and the Public Advocates have released Unequal Access: How Some California Charter Schools Illegally Restrict Enrollment. Unequal Access reports that over 20% of California’s charter schools (about 253), have exclusionary admissions policies. At least 22 of those schools have policies that expressly exclude low academic performers, the very set of students who are often cited to justify charter creation. Cribbed from the report’s summary:
Although charter schools may be privately controlled and receive non-government funding, they are part of California’s public education system. The California Constitution requires all students to have equal access to educational opportunity, and the state legislature made this principle clear in the California Charter Schools Act, which plainly requires charter schools to “admit all pupils who wish to attend.” Except for limitations due to space, charter schools may not enact admissions requirements or other barriers to enrollment and must admit all students who apply, just as traditional public schools cannot turn away students.
Our review of California charter schools’ reveal that over 20% have written policies reveals that illegally prevent students from enrolling or remaining at their schools because the policies:
- Deny enrollment to students who do not have strong grades or test scores.
- Expel students who do not maintain strong grades or test scores.
- Deny enrollment to students who do not meet a minimum level of English proficiency.
- Discourage or preclude immigrant students from attending by requiring parents/guardians or
- students to provide Social Security numbers or other citizenship information before enrollment.
- Select students based on onerous pre-enrollment requirements such as student or
- parent/guardian essays or interviews.
- Refuse to enroll students unless their parents/guardians volunteer or donate money to the school.
The report recommends that charter school operators eliminate all exclusionary admission requirements that restrict student enrollment on the above grounds.
Thursday, July 28, 2016
On July 11, the Southern Poverty Law Center (SPLC) filed a lawsuit alleging that the school funding provisions of the state charter school law passed by the Mississippi Legislature are unconstitutional.
The complaint, in Araujo v Bryant, points out that the Mississippi Constitution requires schools to be under the supervision of the State and local boards of education in order to receive public funding. However, under the Charter School Act (CSA), charter schools receive public funding even though they are exempt from the oversight of the State Board of Education, the Mississippi Department of Education, and local boards of education.
The lawsuit calls for the Court to strike down the funding provisions of the CSA.
"A school operating outside the authority of the state board of education and the local school board cannot expect to receive public taxpayer money," said Jody Owens, managing attorney for SPLC's Mississippi office. "The state constitution is clear on this matter."
Charter schools in Mississippi are accountable to the Mississippi Charter School Authorizer Board, a body appointed by the governor and lieutenant governor, which receives three percent of the public tax dollars going to the charters it authorizes.
The complaint explains that two charter schools are currently operating in Mississippi, both within the boundaries of the Jackson Public School District (JPS). In one school year, more than $1.85 million was diverted from the local district to fund these schools. That amount could have paid the salaries of 42 public school teachers, according to the complaint. Given that a third charter school is set to open within JPS's geographic boundaries, the complaint notes that the local schools stand to lose more than $4 million in the 2016-17 school year.
The lawsuit warns that the opening of more charter schools will compound the financial harm. There are currently applications pending for four more charter schools. Each charter school would be located within the Jackson Public School District, drawing more funding away from the schools that are under the local school board.
"I sent my children to a public school because I believe in our public schools," said Cassandra Overton-Welchlin, a plaintiff in the case and the mother of two children enrolled in the Jackson Public School District. "I'm outraged that state and local tax dollars are funding charter schools in a way that threatens the existence of important services, including services for those with special needs, at my children's school. As a taxpayer, I expect my property tax dollars will be used to support local public schools, which educate the vast majority of students in Jackson."
The lawsuit was filed in the First Judicial District of the Chancery Court of Hinds County, which includes Jackson, the state capital.
Wednesday, July 13, 2016
The State of Mississippi is being sued by parents who contend that a recent law unconstitutionally district public tax dollars from public school districts revenues to charter schools. Under the Mississippi Charter School Act of 2013 (CSA), charter schools in a public school district are entitled to a share of that district's state ad valorem tax revenue. The lawsuit's plaintiffs contend that a provision of the Mississippi Constitution forbids funding any school that is not a "free" school under the control of either the State Department of Education or district officials. (Mississippi's charters are instead supervised by an independent governing board.) The plaintiffs allege that the Jackson school district has already given $1.8 million of its funding to the two currently operating charter schools. A third charter is set to open in the coming school year,and the Jackson district school could be required to give up to $4 million to charter schools, resulting in shortfalls in personnel and education quality. The plaintiffs are represented by the Southern Poverty Law Center, and the complaint in Arujo v. Bryant may be viewed on scribd here.
Tuesday, June 14, 2016
Federal Court Refuses to Expand School Voucher Program That Was Declared Unconstitutional By Colorado Supreme Court A Year Ago
Almost a year after the Colorado Supreme Court declared that a district's school voucher program violated the state constitution's separation of church and state doctrine (which Derek discussed here), a federal district court in Colorado denied a renewed attempt last week to force the Douglas County (CO) School District School Choice Grant Program to include religious schools, according to the Denver Post. The federal court questioned whether the plaintiffs, represented by the religious-freedom organization Institute for Justice, were in a truly adversarial position with the defendant, the Douglas County School District. The federal court also questioned whether the plaintiffs could show a likelihood of success to warrant an emergency injunction. The court also stated that the Douglas County families seeking the voucher expansion could not show irreparable harm because only a few students had even shown interest in the program and no schools have yet agreed to participate in the School Choice Grant Program. The ACLU of Colorado and law firm Arnold & Porter have moved to intervene in the case, arguing that the plaintiffs’ motion for preliminary injunction is essentially a collateral attack on the Colorado Supreme Court's judgment.
Monday, June 13, 2016
Susan DeJarnatt, Kerrin C. Wolf, and Mary Kate Kalinich have posted their new paper, Charting School Discipline, on ssrn. It focuses on discipline in charter schools and their potentially distinct approaches. As recent civil rights complaints in New Orleans and due process litigation in California have shown, charter school discipline is of growing importance to the overall conversation regarding necessary reforms to school discipline. DeJarnatt and her colleagues offers this abstract:
Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.
We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.
We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.
Wednesday, May 25, 2016
New Jersey's Failure to Assess Effects of Charter School Expansion on Already Underresourced Newark Schools Moves to Court of Appeals
This from the Education Law Center:
Acting on behalf of Newark school children, Education Law Center has filed an appeal of NJ Commissioner of Education David Hespe’s February 2016 approval of a massive enrollment increase in seven Newark charter schools over the next five years.
At issue in the appeal is the data and research evidence presented by ELC to the Commissioner demonstrating that expanding charter enrollments at this time would exacerbate the budget crisis in the State-operated Newark public schools (NPS) and trigger even deeper cuts to teachers, support staff and programs in already under-resourced NPS schools. ELC also presented evidence to show that expanding charters would further concentrate at-risk students in district schools, especially students with disabilities and English language learners (ELLs). These students require additional programs and interventions that have been reduced and cut in NPS schools over the last several years.
“This appeal is not about the merits of charter schools or district schools, but rather about the State’s overarching obligation to ensure a thorough and efficient education for all public school students in Newark,” said David G. Sciarra, ELC Executive Director. “This appeal raises the abject failure of the Commissioner to perform his mandated constitutional duty to make certain that before charter schools can expand, all Newark children have the resources they need to succeed in school, whether they attend a district or charter school.”
“The Commissioner simply ignored the overwhelming evidence in the record that a further increase in charter enrollment at this time will harm children and schools throughout the city,” Mr. Sciarra added.
In their applications for renewal, seven Newark charter schools submitted requests to Commissioner Hespe that, taken together, would greatly increase overall charter enrollments over the next five years. The Commissioner approved these requests without explanation and without providing reasons. The approved charter increase totals nearly 9,000 additional students over five years, from just under 10,000 to almost 19,000 students.
Several of the charters sought substantial increases. For example, Team charter school, operated by the New York-based KIPP network, secured the green light to increase enrollment from 3196 to almost 8000 students and to add up to six new charter schools. The Commissioner’s approvals will almost double the current enrollment in these seven charters by the 2020-21 school year.
The approved expansion will also increase the seven charters’ share of Newark’s total charter population from 20% to approximately 37%. If enrollment in the district and in the fourteen other charters remains stable, the Commissioner’s decision will mean that by 2020-21, nearly half of all Newark’s school children will be enrolled in the charter sector.
Before the Commissioner, ELC submitted extensive comments on the charters’ requests for expansion, including detailed research documenting how the State’s decision to rapidly expand charter enrollments from 2009 through 2015 has put the NPS budget in crisis. The data shows charter enrollments nearly tripled to 12,885 students during that period, while the percentage of students with disabilities and English language learners (ELLs) in NPS schools increased significantly.
Further, while the NPS budget has been flat since 2011 as a result of the State’s failure to fund New Jersey’s school funding formula, payments from the budget to charter schools have risen dramatically to $225 million, representing 27% of the total NPS budget. ELC also documented that the combination of flat budgets and rising charter payments has triggered severe reductions in spending on regular classroom instruction, guidance and other support services, and special education and bilingual education in NPS schools.
The NJ Supreme Court, in several rulings, has imposed upon the Commissioner an affirmative constitutional obligation to carefully evaluate the impact that opening or expanding charter schools will have on the loss of funding and the segregation of students in districts served by the charters.
“The Commissioner must meet his constitutional obligation to assess and determine the impact that the loss of funding from increased charter payments will have on the ability of the Newark district to provide a thorough and efficient education to all public school children,” said Michael Stein of Pashman Stein in Hackensack, the firm representing ELC on this appeal. “The Commissioner did not evaluate the impact of charter expansion on the NPS budget, even though ELC presented a compelling record that the expansion would mean less funding, more cuts to essential staff and programs, and the further concentration of students based on disability and English language proficiency in NPS schools.”