Thursday, September 24, 2015
Last week, the federal district court in Jindal v. U.S. Department of Education denied Jindal's motion for a preliminary injunction. Jindal had sought to enjoin the Department's Race to the Top Program and its No Child Left Behind waivers. Jindal argued that the Department's support for the Common Core Curriculum through these programs violated the 1oth Amendment and a federal statute that prohibits the Department from dictating curriculum. The district court rejected both arguments.
Before going into my analysis, I must, in full disclosure, state that Jindal retained me as an expert in the case. It was just two months before the case went to trial and long after I had completed my article, Federalizing Education by Waiver?. In fact, I completed my article before Jindal filed his case, which I only learned about in the news. My testimony was little more than a recitation of my article. Regardless, I clearly have an opinion on this case. With that disclosure, I offer the following.
Tuesday, August 18, 2015
The New York State Education Department has released the data from the standardized tests administered to elementary students at the end of this past academic year. The opt-out movement scored a much bigger victory (if victory was its goal) than I ever would have imagined. Some students opted out for valid health and other reasons, but a whopping twenty percent of students refused to take the tests without any valid excuse. Presumably they objected based on principle.
A five or so percent opt out would have done little to upset the status quo, but one of this size has enormous ramifications. First, as a condition of receiving federal education money, the Elementary and Secondary Education Act (No Child Left Behind) mandates that 95% of students take the test. The Secretary of Education has the power to waive a number of requirements, but the Secretary cannot waive this requirement. Congress wanted this one to stick. As analyzed in an earlier post, this poses a real quandary. The purpose of the provision was to make sure that schools did not conveniently exempt their weakest students from the test to push up their pass rate. But when students simply refuse to take the test, holding the school accountable seems unfair and contrary to the purpose of the Act. The Secretary could take a page from the reasoning of King v. Burwell (the recent Affordable Care Act decision offering a creative reading of the Act to save individual tax credits) and ignore the statutory language and violation. But absent creative reasoning, New York is in violation it cannot escape.
Monday, August 3, 2015
Lauren Camera of Edweek reports that the conference process to reconcile the House and Senate bills to reauthorize the Elementary and Secondary Education Act began this past Thursday. There are four people at the table: Senator Lamar Alexander (R), Senator Patty Murray (D), Rep. John Kline (R), and Rep. Bobby Scott (D). Alexander and Kline have the votes in their respective branches to largely gut the federal role in education and eliminate serious accountability. Murray and Scott have the President's veto threat, which they are hoping will help them maintain some federal accountability, particularly in the nation's lowest performing schools. I have no idea of what the final result will be, but it is clear that the number of opinions that count on ESEA reauthorization have shrunk to one hand's worth. And I am relatively sure that whatever three of them can agree on will become the new Elementary and Secondary Education Act.
Friday, July 17, 2015
Senate Passes Bill to Reauthorize the Elementary and Secondary Education Act and Roll Back the Policies of No Child Left Behind
Yesterday afternoon, by a vote of 81-17, the Senate passed a bill to reauthorize the Elementary and Secondary Education Act. The bill would substantially change the state-federal relationship in education, shifting much more control back to the states. As discussed in recent days, the Senate bill substantially differs from the House bill. The White House has decried the House bill, but both the White House and Secretary Duncan have indicated that the Senate bill, while not great, is within the realm of reason. Thus, if Congress wants to reauthorize ESEA--and it seems pretty clear it does--one would expect that negotiations between the White House, the House, and the Senate will lead toward final legislation built on the framework in the current Senate Bill.
That current framework revolves around:
- eliminating the current accountability system of No Child Left Behind
- Allowing states to create their own accountability systems rather than the one size fits all approach of "adequate yearly progress"
- continuing to test students ever year in math and reading in grades 3 through 8 and once in high school, along with some intermittent testing in science
- permitting states to develop alternative assessments
- continuing to disaggregate test results by student groups
- eliminating the punitive interventions from NCLB and allowing states to decide when and how to intervene
- prohibiting the Department of Education from imposing any academic standards or curriculum
- eliminating conditions from the current NCLB waivers, such as implementing teacher evaluation systems
- permitting states to use federal funds for pre-k education
- reworking the Title I funding formula
The following measures did not make it into the bill:
- protections for LGBTQ Youth
- vouchers and other types of funding portability
- strict accountability for low achievement
- funding targeted at pre-k education
Thursday, July 16, 2015
Sorry for the multiple posts, but ESEA reauthorization is moving in its furious last moments in the Senate with big news. I have commented over the past few days about the enormous political hurdles to changing Title I's funding formulas and the necessity to do so. Apparently, Senator Burr worked some magic an hour or so ago because his amendment to alter the formulas for the first time in decades passed. For those who do not know, Title I funds are the major source of federal funds in public schools and they are the teeth that force or carrots that encourage states to comply with all of the educational policies in the Elementary and Secondary Education Act.
I had assumed the likelihood of a formula change was so small that I had not dug into the details of the new formula. The full reauthorization bill must still pass the Senate, which will vote later today. If it passes, I will dig into the details tomorrow, although it is still highly possible that the formula change will not make it through a reconciliation process with the House.
There is, however, one huge caveat. The only way he got the amendment through was to indirectly delay the implementation of the change. It would only apply to Title I funds in excess of $17 billion. We currently set at $14 billion. So its effect would not be felt for years. But it is a clever solution to the underlying problem of the warring winners and losers.
More on why the funding formulas need reform here.
More on the current vote here.
Civil Rights Groups have issued an 11th hour letter opposing the Senate bill to reauthorize the Elementary and Secondary Education Act. Edweek reports that votes of amendments have ended and the final bill will go to a vote today.
Here is the text of the civil rights letter:
Yesterday, the Senate rejected an amendment to the Elementary and Secondary Education Act that would have specifically prohibited discrimination against lesbian, gay, bisexual, transgender, and queer (LGBTQ) students in school. Surely, the Supreme Court's recent decision upholding the right of same sex couples to marry was lurking in the minds of many. A vote against this amendment could be seen as ideologically in line with the opposition to same sex marriage. That, however, was not the major rationale for voting against the measure. Some senators argued that the amendment was unnecessary because Title IX of the Education Amendments of 1972 already protected LGBTQ youth.
This rationale should ring hollow to those who have followed Title IX precedent and politics over the past two decades. Conservatives are correct that Title IX affords protection. What they fail to mention, however, is that this has not always been the case and the protection is not necessarily all encompassing. The theory under which Title IX protections LGBTQ youth is that some discrimination against students arises because they are not conforming to stereotypes about how a boy or a girl should act, dress, etc. In other words, a young boy dressed or acted "effeminately" would not have been mistreated had he been a girl and dressed or acted the same way. Thus, the treatment is gender discrimination which Title IX prohibits.
The trouble with conservatives' rejection of the ESEA amendment to protect LGBTQ is threefold. First, that the Obama administration is the first to explicitly adopt the foregoing Title IX rationale. A subsequent administration could interpret Title IX differently or simply enforce it less vigorously. Second, conservatives have criticized the use of Title IX to protect LGBTQ youth. It is a bit disingenuous for a conservative to criticize progressive use of Title IX to protect LGBTQ youth and then turn around and argue ESEA need not be amended because the administration has already taken care of the LGBTQ issue through a purported misuse of power. Third, the foregoing Title IX theory is not all encompassing. Some courts have not adopted it. In addition, the theory only directly covers stereotyping. Some LGBTQ youth are discriminated solely based on who they are, not based on a failure to conform to a stereotype. Thus, there are some circumstances under which they may not be protected. An explicitly anti-discrimination measure to protect them would cure this problem.
The Senate's vote just eliminated that solution from the ESEA.
Wednesday, July 15, 2015
A little over a month ago, Sen. Tim Scott (R-S.C.), a member of the education subcommittee, had foregone his voucher amendment at the committee level so that the bill could move to the full Senate with a unanimous vote. He revived that amendment before the full Senate. The measure would have allowed low income students to opt out of public school and use $2100 in Title I dollars to pay for tuition at a private school. The amendment was defeated on a 45-to-51 vote yesterday. Democrats were unified in their opposition and a few Republicans joined them, including Senators from Missouri, Kansas, and Alaska. Senate rules required 60 votes for the amendment to pass.
Still up this week are amendments to the funding formula (discussed here yesterday) and an anti-discrimination measure to protect against harassment based on sexual orientation.
Tuesday, July 14, 2015
Last week, I closed with a post noting how close we are to the finish line of reauthorizing the Elementary and Secondary Education Act (ESEA), but reserved any substantive commentary on the potential legislation. It is hard to speculate on what a final bill passed by both Houses will look like. But right now, the House and Senate bills are substantially different. This weekend at a conference, I asked Congressman Bobby Scott what we might expect out of the reconciliation process between the House and Senate. He said that the President has made it clear that no bill is better than a bad bill, which Scott believes will offer Democrats more leverage during the reconciliation process.
From the President's perspective, no bill may even be better than a decent bill because his Secretary of Education has, in effect, already rewritten the ESEA. In 2012, he began waiving states' requirements under the existing version of the ESEA and replacing those requirements with a new set of policies. He did this through a conditional waiver process, which 45 states are currently operating under. In other words, there is the existing ESEA as written into law and the de facto ESEA as imposed through the administrative process. Those two things are entirely different in substance. Any legislative amendment to the written ESEA will also wipe out the de facto administrative ESEA. Knowing that there is policy upside to leaving the existing ESEA in place for the President means there may be even more leverage than Congressman Scott suggested.
The waiver issue also takes us to the substance of current bills in the House and Senate. The Senate Bill, in particular, is dead set on limiting the Secretary's waiver authority. Secretary Duncan was able to impose conditions on waivers because the statutory language on waivers was so sparse in the current statute. It simply said that states can apply for waivers and the Secretary can grant them so long as the waiver applications set goals that will improve education. As I demonstrate here in Federalizing Education by Waiver?, the Secretary exceeded his statutory authority in conditioning those waivers and probably violated the constitutional as well. This point is now the subject of litigation in the federal district court in Louisiana.
The solution in the current Senate bill is to take the opposite approach to waiver power. Rather than a general waiver power, the current bill has various small waiver powers. Some sections of the bill do not include a power to waive the relevant provisions. In other words, the provisions cannot be waived. Other areas of the bill do have waiver provisions, but they only apply to that section and have their own particular standards. Also, while there is no general waiver authority, there is a general waiver restriction that prohibits the Secretary from imposing things such as the Common Core and its associated tests. Whether shrinking the Secretary's power is a good thing is not clear yet. My analysis in Federalizing Education By Waiver? was not a judgment as the substantive merit of the policies embodied in the Secretary's waiver conditions, but simply an analysis of whether he had such authority and whether granting wide waiver authority is permissible or wise.
Without attempting to identify the optimum level of waiver power the Secretary should have, the current reaction in the Senate bill is probably an over-reaction. The Secretary should not have the authority to effectively rewrite the ESEA. Even if granted to the Secretary, such a power would most likely be an unconstitutional delegation of authority. But it also a mistake to tie the Secretary's hands at all turns. The entire point of a waiver power is to deal with unexpected events, including catastrophes and innovations. The current Senate bill may not allow the next Secretary to sufficiently deal with either.
The most significant potential alteration to ESEA, however, may be the funding formula. As I demonstrate here, the funding formulas in ESEA are entirely irrational. The formulas allocate funds to states and districts based on factors that do not reflect student need, local costs, and equitable funding goals. As many others have remarked, the primary effect--if there is one--of the formulas is to reward rich states for being rich and punish the poor for being poor. This is not Congress's intent. It is just how things have shaken out.
The problem is that any changes to the formulas, even if they make perfect sense, will produce winners and losers. Losers do not care about what makes sense. Illinois would be one of the losers. Senator Durbin has said he will vote against changes that produces cuts for Illinois, not because those cuts are irrational, but because he is against hurting his school districts. Such a change is not yet in the current bill. But Senator Burr from North Carolina is introducing such an amendment and is getting a lot of attention. The only way around the problem of winners and losers is to increase the federal financial stake in education so that we could rework the formula without reducing any state's raw dollar allocation. No one is seriously discussing that.
Thursday, July 9, 2015
Late yesterday, the U.S. House of Representative passed a Bill to reauthorize the Elementary and Secondary Education Act. This reauthorization has been a long, wild, and bumpy ride. The Act should have been reauthorized seven years ago. Prior to the financial collapse and changes in Congress, many expected it would. After those events, the odds just grew longer and longer. In 2010, the administration made proposals for reauthorization and the Senate and House moved forward on some bills in 2011, but it was clear that an impasse existed and nothing would happen. Reauthorization was simply dead on arrival. The Secretary of Education used administrative action to deal with the mess that widespread violations of the existing Act was creating. At that point, no one even mentioned the word reauthorization and insiders thought it might be the next administration before anything happened.
Then early this year, the unthinkable happened: bipartisanship. Senators Alexander and Murray decided something must be done and went into closed door sessions to develop a plan. The result was a Bill that sailed through committee with a unanimous vote and is now before the full Senate. That prompted the second unthinkable to happen: the House got serious. The House revived its old bill, which the President had promised to veto, and made a few changes that moved it a little further away from extreme positions. It passed by the slimmest of margins: 218-213. Twenty-seven Republicans voted against it and no Democrats for it.
Wednesday, June 24, 2015
The U.S. Department of Education, responding to a complaint filed by the Education Law Center, has found that New Jersey failed to meet the conditions of its NCLB waiver. Interestingly, the Department does not indicate what if any sanctions will follow from this violation, but it does indicate that this violation will affect the Department's review of New Jersey's pending waiver renewal request. Reading between the lines, this means that New Jersey has placed itself at risk of loosing its waiver and becoming subject to the sanctions originally included in NCLB. Here is the Education Law Center's summary of the background and the Department's findings:
Responding to a complaint filed by Education Law Center (ELC), the U.S. Department of Education (USED) has found the New Jersey Department of Education (NJDOE) failed to comply with requirements of its Elementary and Secondary Education Act (ESEA) waiver by not intervening to improve 28 low performing schools in Newark.
By letter dated June 19, Acting Assistant Secretary Heather Reiman details USED’s investigation of ELC’s complaint that, in 2012, then-Commissioner of Education Chris Cerf improperly gave into a demand from Newark’s State-appointed Superintendent, Cami Anderson, to allow her to retain full control over 28 low-performing schools classified by NJDOE as “priority” and “focus” schools. Superintendent Anderson wanted to prevent qualified staff from the NJDOE’s Regional Achievement Center (RAC) for Hudson/Essex Counties from intervening to improve the schools, as is required for all priority and focus schools statewide under New Jersey’s ESEA waiver and State “school turnaround” regulations.
Friday, June 19, 2015
Yesterday, thirty six civil rights groups released a letter to the Senate on ESEA reauthorization. The signatories included all the major organizations, including the Leadership Conference on Civil and Human Rights, the NAACP, NAACP LDF, MALDEF, Lawyers' Committee for Civil Rights, National Urban League, and Ed Trust. This is not the first time civil rights organizations have weighed in on reauthorization in the past year or so, but it may be the most significant.
That they penned the letter yesterday is probably indicative of the growing sense that we could be on the verge of reauthorization. As noted earlier this week, the House has revived their earlier bill. The letter is also significant in the poignancy and substance of its recommendations. Overall, the letter reflects a fear of erosion of the federal role in education, which is the general effect in the current bills before the House and Senate.
The letter makes four points: keep accountability for all schools, keep disaggregated demographic data, ensure resource equity, and maintain the Secretary's authority to enforce the law. Keeping accountability and disaggregated data are really just requests that Congress not throw the baby out with the bathwater in reauthorization. Mend it, don't end it. The last two points, however, have a lot of depth to them.
When reauthorization was being seriously debated in 2007 to 2008--the time it should have been reauthorized to begin with--a tremendous amount of focus was on how irrationally Title I dollars are distributed and how little current standards do to actually ensure comparability in resources across schools. Most notable is the fact that teacher salaries are about 80% of schools' budgets, but are exempted from any real dollar comparability. It is an enormous loophole. While we can and will debate substantive theories about how to improve educational outcomes for decades to come, equity is reality simple and should not require debate. Racial and socioeconomic equity of resources was one of the founding pillars of the Elementary and Secondary Education Act. Yet, it has been increasingly lost in recent reauthorizations. The current conversation suggests it will happen again this time. See here for more on this point.
The last point about the Secretary's authority is an outgrowth of the legal and political contests surrounding NCLB waivers. As I explain here, the conditions that the Secretary imposed on NCLB waivers were either beyond his statutory authority or unconstitutional. And legalities aside, the authority the Secretary exercised during the waiver process enraged many. The backlash has prompted a legislative move to strip the Secretary of much of his or her power. It has also prompted what I would call a minimization of the federal role in education, which appears to be more of an overreaction than a reasoned reaction.
One can only hope this messages do not fall on deaf ears.
Monday, June 15, 2015
The Brown Center on Education Policy at Brookings hosted a panel of experts last week to discuss the potential for reauthorization. They were generally optimistic. Watch the panel here. They would also seem to be prescient. On the same day of the panel, the House indicated it was bringing the Elementary and Secondary Education Act back to the floor. The bill had previously died when warring factions within the Republican Party sought to load the bill down with their own ideology for reform and were told that if they voted for a stripped down bill it would count against their on conservative scorecard rating. A new proposed procedural solution would allow them to save face.
A summary of the Brown panel follows the jump.
Wednesday, June 3, 2015
Quoted from ED.gov: The Department of Education announced in a press release Monday that the Miccosukee Indian School (MIS), the only school of the Miccosukee Indian Tribe, has received flexibility from the Elementary and Secondary Education Act/No Child Left Behind. The waiver allows the tribe to use a different definition of Adequate Yearly Progress than the State of Florida where it is located. The MIS is funded by the Department of Interior's Bureau of Indian Education and educates approximately 150 K-12 students. Secretary Arne Duncan says that the waiver allows the tribe to define its own academic and culturally-relevant strategies to reach students. Although the graduation rate increased four percent for Indian youth in recent years, the ED noted that the BIE school graduation rate is 53 percent, compared with 83 percent nationwide. The ED's efforts supports an initiative of the White House Council on Native American Affairs to restructure the BIE from a provider of education to an education service-provider to tribes.
Friday, May 22, 2015
The Education Law Center released this story earlier this week:
In a letter submitted May 18, Education Law Center calls on U.S. Secretary of Education Arne Duncan to "promptly reject" New Jersey's application to renew its waiver under the Elementary and Secondary Education Act (ESEA) until the State removes a proposed exemption from federally-mandated interventions for low performing schools in State-operated districts.
The ELC demand is triggered by NJ Education Commissioner David Hespe's proposal to eliminate State-led efforts to improve academic outcomes for students in low performing schools in Newark and other districts under the State's direct control. In NJ's application to renew the ESEA waiver for another three years, Commissioner Hespe proposes exempting low performing schools - called "priority" and "focus" schools - in State-run Newark, Camden, Paterson and Jersey City from intervention and assistance by the NJ Department of Education's (NJDOE) Regional Achievement Centers (RACs). Instead, the Commissioner would allow the State Superintendents in those districts to implement their own local "initiatives," without RAC oversight and support.
Friday, April 24, 2015
Yesterday, Nora Gordon focused on one of the more technical aspects of the pending Senate bill to reauthorize the Elementary and Secondary Education Act: the supplement not supplant standard. The standard requires that Title I funds for low income students only be used to supplement the resources that state and local entities were already providing those students, not supplant them. Gordon summarized the new revisions and her sense of their importance:
The larger legacy of the Every Child Achieves Act may well be how it cleans up supplement not supplant, a little discussed and often misunderstood fiscal rule with a big impact on how schools actually spend the $14 billion of NCLB Title I funds. The proposed legislation makes two important changes: (1) it requires districts to show they are distributing their state and local funds across schools without regard to the federal funds that each school receives; and (2) it increases local autonomy over how to spend Title I funds.
The problem she says is that:
Under current law, those Title I schools that do not operate schoolwide programs must demonstrate that every single thing they buy with Title I funds helps only the neediest students, and would not be purchased with other funds absent the federal aid. In my research, I’ve found this rule often has the unintended consequence of preventing districts from spending money on the things that might help those students most, pushing schools to work around the edges of their central instructional mission. They buy “interventionists” instead of teachers, or “supplemental” curricular materials rather than “core” ones, and are discouraged from investing Title I funds in technology.
Gordon is correct that the supplement not supplant has been a disaster. As I wrote in The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act, 90 B.U. L. Rev. 313 (2010),
Although well meaning, the prohibition on supplanting has not met its goal. In fact, in a recent report, the GAO recommended eliminating the supplement-not-supplant standard altogether. The GAO concluded that the standard has become almost impossible to enforce. Enforcing the standard requires too much speculation about what a school district would have spent on education and also requires extremely detailed tracking of spending in thousands of school districts. In short, the prohibition on supplanting funds relies on unreliable projections and unusually labor-intensive work. Possibly for these reasons, the Department of Education has effectively stopped attempting to enforce the standard, treating it as a non-priority. The standard, however, remains the law and a measure that well-intentioned schools may expend effort attempting to meet.
Tuesday, April 21, 2015
Replicating Inequality and Segregation through Test Scores: What the Opt-Out and Opt-In Movements Fail to Recognize
Initial reports indicate that 150,000 students or so refused to take New York's state standardized test, as part of the growing op-out movement. This, of course, incensed the state department of education. First, compliance with No Child Left Behind requires that 95% of students take the test. Second, "Test refusal is a mistake because it eliminates important information about how our kids are doing. Those who call for opting out really want New York to opt out of information that can help parents and teachers understand how well their students are doing. We can't go back to ignoring the needs of our children," said Jonathan Burman, a state education department spokesman. But the response of Nicole Brisbane, state director at Democrats for Education Reform, was most telling:
Friday, April 17, 2015
After languishing for the better part of a decade with no real prospects of forward movement, reauthorization of the Elementary and Secondary Education Act is starting to defy odds. After President Obama indicated he would veto the republican proposals moving forward in February, one would have expected the status quo of gridlock to quickly settle in. Then something unusual happened, party leaders stopped posturing and Senators Alexander and Murray went into to closed door sessions to hammer out a deal. They were also successful to preventing leaks. Last week, they released a bipartisan bill--an enormous accomplishment in and of itself.
The sniping, however, soon arose from both sides, and the strong possibility of countless partisan amendments suggested the bill might get sunk. Added to the mix was a division between the nation's two largest teacher unions as to whether they favored the bill.
Yesterday, reauthorization defied the odds again. Members of the Senate education committee put aside the personal interests in marking up (and bringing down the bill) and voted 22-to-0 to move the bill to the full Senate.
Wednesday, April 8, 2015
Who knows what the House of Representatives will hold, but the Senate took an enormous step toward reauthorizing the Elementary and Secondary Education Act yesterday. After the President made clear in February that he would veto legislation that gutted the federal role in education, Senators Alexander and Murray did something brave--at least brave by current standards. The eschewed grandstanding, went into closed door sessions, avoided leaks, and sought to hammer out a bi-partisan proposal. The ESEA has a tradition of wide bipartisan support. As controversial as NCLB was after its passage, it had broad bipartisan support when it was passed, ranging from Ted Kennedy to John Boehner. Uncharacteristic of the current Congress and Senate, Alexander and Murray went back to the drawing board to rekindle that tradition.
Thursday, February 26, 2015
Earlier this year, I posted on the strong shift in approach to reauthorization of the Elementary and Secondary Education Act and how it was placing the federal role in education in jeopardy. Such a shift would have undone much of the work of the past two decades to increase the federal role in education (putting aside whether that work was substantively good or bad). Secretary Duncan's comments at the time demonstrated strong objections to that approach, from which one might have inferred that the President would veto legislation that sought that end. Since then, Republicans have pressed on in their intent to change the federal role. Yesterday, President Obama explicitly indicated that he would veto the current bill that is under consideration. See more here. Now that the veto question seems to be answered, will the parties go back to the drawing board or move forward for the sake of posturing? If the latter, it seems we will not see a reauthorization of ESEA any time soon after all.