Thursday, April 7, 2016
University of Georgia College of Education Professor Elizabeth DeBary and University of Southern Mississippi College of Education and Psychology Assistant Professor Ann E. Blankenship have published Volume 3 of the Education Law & Policy Review, serving as Guest-Co-Editors-in-Chief for this special double issue. The Education Law & Policy Review is a publication of the Education Law Consortium (ELC) in cooperation with the Education Law Association (ELA), the premier international education law professional association founded in 1954. It is a peer-reviewed law and policy journal providing scholarly reviews and commentary on national and international issues in education law and policy in K-12 and Higher Education, publishing leading law and policy research and analysis for use by scholars, policymakers, judges, lawyers, and educators.
This special double-issue of the journal is dedicated to the 50th Anniversary of the Elementary and Secondary Education Act of 1965 and the passage of the Every Student Succeeds Act in 2015. As scholars with backgrounds in policy and law, DeBray and Blankenship challenged both the education policy and law fields to generate fresh proposals for the ESEA reauthorization − to make recommendations for legislative changes that were grounded in research that could lead to improved educational practice. Preeminent scholars in education law and policy responded with thoughtful responses to the dramatic changes in ESSA and provocative ideas for improving education through incentivizing equity, strengthening mandates, and building capacity. All of these are viable strategies for attempting to leverage improved educational outcomes for students.
The issue is available electronically here and in print through Amazon. This issue features scholarship by Gary Orfield (UCLA and The Civil Rights Project), Jack Jennings (founder and former CEO of the Center on Education Policy), Megan Hopkins (University of Illinois-Chicago), Christine Malsbary (Vassar College), P. Zitali Morales (University of Illinois-Chicago), Emily Hodge (Montclair State University), Erica Frankenberg (Pennsylvania State University), Christopher Suarez (Williams & Connolly, LLP), Tina Trujillo (UC Berkley), Kara Finnigan (University of Rochester), Jennifer Jellison Holme (University of Texas at Austin), Nicholas Triplett et al. (University of North Carolina, Charlotte), and Benjamin Superfine (University of Illinois-Chicago).
Wednesday, April 6, 2016
The National Center for Mental Health in Schools in the Department of Psychology at UCLA has released its new report analyzing the Every Student Succeeds Act (ESSA) and how it does or does not address the barriers to learning and re-engaging disconnected students. It offers this summary:
The Every Student Succeeds Act (ESSA) recognizes that significant numbers of students require supports to successfully meet challenging state academic standards. This brief (1) analyzes the act to assess how it addresses the nature and scope of supports to address barriers to learning and re-engage disconnected students and (2) presents frameworks and prototypes for improving how schools provide student and learning supports.
The analysis finds the legislation clearly underscores that student and learning supports permeate efforts to enable every student to succeed. At the same time, the act muddies the nature and scope of such supports by scattering references to them throughout the various Titles, Parts, Subparts, and Sections. That is, by addressing barriers to learning in a piecemeal and mostly indirect manner, ESSA conveys a fragmented picture and a lack of coherence with respect to essential supports.
The shift to more local control is discussed as an opportunity for state and local stakeholders to escape the limitations of the federal act and move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success. As aids for systemic change, the brief highlights frameworks and prototypes for developing a unified and comprehensive system for addressing barriers to learning and teaching – with an emphasis on enhancing equity of opportunity for success at school and beyond. *This report is from the national Center for Mental Health in Schools
Its conclusions include:
• The legislation clearly underscores that barriers to learning need to be addressed so that many more students will be able to meet challenging state academic standards.
• At the same time, the act addresses such barriers in a piecemeal and mostly indirect manner.
• As a result, ESSA conveys a fragmented picture and a lack of coherence with respect to essential student and learning supports.
• Student and learning supports need to be unified and developed into comprehensive system if they are to significantly enhance equity of opportunity as an essential component in enabling every student to succeed.
• If states and LEAs are to move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success, they will need to use the transition to local control as a time to plan beyond the limitations of federal formulations.
It then proposes that policymakers begin "thinking out of the box" to produce "transformative system change. From this perspective, the report also highlights frameworks and prototypes that can be used as planning aids and guides in developing a unified, comprehensive, equitable, and systemic approach for addressing barriers to learning and re-engaging disconnected students."
Monday, February 8, 2016
Louisiana to Drop Lawsuit Against U.S. Department of Education over Common Core, But Major Issues Remain over Secretarial Authority
Last week, Louisiana Governor John Bel Edwards indicated that he intends to end the state's legal challenges against the U.S. Department of Education regarding Common Core education standards. Former Governor Bobby Jindal had brought the original suit in 2014, arguing that the Department had unconstitutionally coerced states to adopt Common Core standards and tests through the Race to the Top Program. He later included the conditions the Department imposed on states to receive a No Child Left Behind waiver in his claims. This past fall, the federal district court rejected those claims, reasoning that there was no evidence to indicate that Louisiana had been coerced to adopt Common Core standards or tests. In full disclosure, I was a witness for the state in that case.
The immediate stakes of that litigation dropped precipitously when Congress reauthorized the Elementary and Secondary Education Act a little over a month ago in the form of the Every Student Succeeds Act. The practical result was to void the NCLB waivers. The Act also specifically prohibited the Secretary from imposing similar requirements on states in the future. As to curriculum and academic standards, states no longer even have to submit them to the Department and the Department cannot deny state applications based on the content of their standards. In numerous different provisions, the Act severely restricts the Secretary from doing much of anything that is not specifically enumerated by the statute. In other words, the new Act gives Louisiana much of what it had sought through the litigation. Given this reality, Governor Edwards indicated it was better to spend the money on education than litigation.
Thursday, January 28, 2016
As Derek reported earlier this month, the Every Student Succeeds Act addressed the growing movement for parents to opt out of standardized testing for their children, some because they believe the tests are being used improperly and others because of perceived poor design. Today, the Washington Post's Answer Sheet reports on the Education Department's recent letter warning states that if more than 5% of their students opt-out of state-chosen accountability testing, a portion of those states' Title I grant funding could be withheld. The Post article is here.
Thursday, January 14, 2016
The Every Student Succeeds Act's Random Additions: Charter Schools, Data Collection, Testing Limits, and Discipline
My prior post detailed the Act’s new approaches toward academic standards and accountability, teachers, funding, and the federal role in education. The Act also included some other important changes and additions that do not fit into those categories. These changes are one-offs that look like bones thrown to various different and competing constituencies (which is probably true of a few of the progressive changes I noted last time). In other words, they are pet projects that helped the bill get passed. These changes include for charter schools, data, test validity, test opt outs, and school discipline
The act includes new competitive priorities for charter school grants. For those unfamiliar with the term competitive priority, it means that states or districts that include certain policies in their competitive charter school grant application will receive extra points in the assessment of their plan. As a practical matter, it makes it far more likely that they will receive a grant. It also makes it highly unlikely that states and districts that do not include those policies will receive a grant. In short, they are implicit mandates for those who want money.
So what are these special charter school policies? They are exactly what charter advocates have been lobbying states to do, often with little success. The priorities are for states that increase the number of entities in the state that can authorize new charters, states that give charters per pupil funding equivalent to that in traditional public schools, and states that give more robust support for charters in need of facilities.
Nothing really changed for magnet schools, and that is the point. Magnet school financial support and policy has been stuck in neutral for nearly two decades. By comparison, this means magnet schools are moving backward while charters rush forward. There is, however, one potentially explicit retrogressive addition for magnets. The Act seemingly requires or strongly prefers socio-economic integration over any other form of integration. Socio-economic integration is, of course, immensely important. The point here is the attempt to take race off the board—a position that the Bush Administration took, that the Obama Administration eventually retracted, and that has now resurfaced.
The Act requires states to collect and submit far more detailed data, and the new data it seeks is important: funding and teachers. This will be a boon to researchers attempting to drill deeper into problems of resource inequity.
Valid Tests (Potential Bombshell)
A provision of Title I indicates that states can only use the mandated tests for purposes for which they are valid. To most, this may read as no more than technical jargon, but it is potentially the single most powerful provision in the bill for those who would seek to block the misuse of tests. As I detail here, the tests on which states rely to run their teacher evaluation systems (value added models and student growth percentiles) are not valid for those purposes. Others have also long raised validity problems with certain states use of high stakes tests for student graduation and promotion as well. Who knows whether this was Congress’s intent, but the Act certainly would appear to have the effect of preventing states from using standardized tests for illegitimate purposes. The question that remains is whether individual teachers or students could rely on this provision in litigation or whether it is up to the Secretary to enforce this provision through the administrative process.
The Act gives parents the right to opt their children out of standardized tests. Opt-outs were big news last year, as large percentages of students refused to take tests in New York and New Jersey and the states scrambled not knowing whether the Department would hold this against the states. The Act now specifically indicates that these opt-outs will not count against the state in determining the percentage of students who took the tests.
Discipline: Bullying and Suspensions
Finally, the Act gives a big boost to progressive discipline policy. Previously, there was no such thing as general federal authority in regard to discipline. The only foothold had been in regard to racial disparities in discipline (pursuant to Title VI). The Act now specifies that states’ plans should include policies to reduce bullying, suspensions, and averse responses to student misbehavior. The bullying provision is, likewise, significant because it is not limited gender or race based bullying--a big stumbling blocking in past enforcement efforts. To be clear, however, this discipline provision operates within the larger structure that offers states’ enormous autonomy in their plans and severely limits the Secretary’s ability to reject a state plan.
Tuesday, January 12, 2016
The Every Student Succeeds Act: Eliminating Accountability, Handcuffing the Department of Education, and a Few Good But Optional Ideas
After having finally digested the new version of the Elementary and Secondary Education Act—the Every Student Succeeds Act—my overall appraisal is that the Act represents two steps back and half a step forward. The steps backward are in regard to federal leadership, high expectations, and accountability. The half steps forward are on various points that civil rights and other advocates have pressed for a decade or more. But they are only half-steps because these civil rights “advances” are optional rather than mandatory. Thus, they are more accurately “ideas” for states to consider, not actual advances students can expect to see. Nonetheless, being ever the optimist, the very act of raising the ideas has the potential to prove important a decade for now when the Elementary and Secondary Education Act is again due for reauthorization. It was, after all, the soft version of testing in the 1994 reauthorization (Improving America’s School Act) that paved the way for the 2002 reauthorization’s (No Child Left Behind Act) aggressive testing and accountability systems.
The easiest way to digest the new Act is to think specifically about what has changed and what has stayed the same. A number of major things did remain the same:
- The federal financial stake in education remained relatively flat. The new bill included a $500 million bump for Title I, but in the larger scheme, the increase is minor. In 2002, NCLB included a major initial boost for Title I, which is what made the Act happen. That no significant new funding is in the current Act may be a sign of how little progressive actions it contemplates.
- The funding formulas through which Congress allocates Title I funds to states remained in place. Senator Burr had managed to get an amendment to the formulas into the final Senate bill, but it did not make it through reconciliation with the House. More on this later.
- The major aspects of the federal testing regime remain in place. States must test students in the same subjects (math, English Language Arts, and science) per the same schedule and frequency as was found in NCLB. States and districts must also stick to the same reporting and demographic disaggregation as before.
- The highest level articulation of the academic standards that students must meet remains the same: “challenging.” This was somewhat of a surprise given how maligned this phrase had been for its inability to ensure states adopted rigorous standards. As discussed later, the bill indirectly addresses this issue in a new subsection that pegs “challenging” to career and college readiness.
The Act changed far more than it left the same. Major changes were made to the substance and mechanisms for Accountability, the regulation of teachers, funding, and the Secretary and Department’s powers.
As to the substance and mechanisms for accountability, the shift is from federal command and control to nearly complete state autonomy:
- The metrics for whether states are offering quality education and ensuring sufficient student progress are now within the control of states. While the bill pegs “challenging” academic standards and assessment to college and career readiness, states do not have to actually submit the standards to the Department. They need only give the Department assurances that their standards are challenging. And as discussed later, the Secretary is extremely limited in objections he can raise to states’ education plans.
- In terms of assessing student progress on standards, states must still consider test results, but states can afford as little weight to test results as they want and they can include almost any other metrics of academic progress and educational quality as they want (student engagement, teacher engagement, attendance, etc).
- NCLB required that all students be proficient by 2014-15. That standard is go and is now replaced with anything, which is to say states can set their own progress goals.
- NCLB also mandated particular interventions when schools failed to make adequate yearly progress toward full proficiency. By 2012, this meant that eighty percent of the nation’s schools were facing some sort of sanction. Under the new bill, sanctions are few and far between. Only those schools performing in the bottom 5% of the metrics that the state chooses will be subject to intervention and the particular interventions will be within the discretion of the state. Equally notable is the fact that the portability of Title I funds for students attending a bottom 5% school did not make the bill. In fact, the mandatory option of transfer (with or without funds) which was in NCLB is not in the current law.
Changes for teachers are simple because there is almost no regulation of teachers at all in the law.
- The requirement that all teachers of core subjects be high quality is gone.
- Now states need only ensure that teachers are certified, but this includes alternative certification, which I read as meaning that if the state is willing to give some a piece of paper to teach, the person is certified. This, of course, has been a huge problem with recent teacher shortages.
- During the waiver process, Secretary Duncan had mandated “effective” teaching, which was largely measure by a teacher’s students’ test scores. No such requirements exist in the new law.
Funding and Fairness
The most interesting developments in the law may be in regard to school funding. While funding itself remained flat and the formulas went unchanged, the law included a tremendous amout of flexibility in how states spend federal dollars. It also included a lot of progressive ideas about funding, although the adoption of the best of these ideas is entirely discretionary. The bureaucratic and technical changes in funding include:
- The law consolidates a lot of federal funds, issues more in the form of block grants, and lets states determine exactly how much they will devote to particular programs, activities, and schools.
- The option to be treated as a “whole school,” meaning that Title I funds can be spent on activities that benefit the whole school not just low-income students, became a lot easier. Any school with 40% or more low income students can be a “whole school,” but even those falling below that threshold can apply for a waiver under a relatively lenient standard.
- The federal requirements that states maintain their financial effort from the prior year and that federal dollars supplement, not supplant, local dollars have long been criticized as ineffective. The new law changes both standards, looking at a 2 year period on maintenance of effort rather than a 1 year period, and requiring states to affirmatively establish they have not supplanted local funds. Whether either of these will be effective is unclear. The language reads more specific than prior versions, but is still permissive in its general approach.
The eye-popping changes (for me) in funding include:
- A requirement that states assess and address resource inequity in those bottom 5% schools it identifies. This also includes the ability to use school improvement grants (which is now a bigger pot of money) to address those resource inequities. Ideologically this is huge line for the federal government to cross and provides a potential stepping stone for later expansions. Unfortunately, it only applies to intra-district resources and only to a small fraction of schools. In other words, it leaves untouched the much bigger issues that get litigated in school finance cases. Nonetheless, it does address an important loophole on comparability of resources that I have long criticized. See here.
- The law also includes a pilot program to support districts that want to adopt weighted student funding. This would help districts account for the varying costs of different demographic student groups and their needs. Again, this is what school finance litigation demands. The problem, however, is also the same: it applies only intra-district and to a small group of districts. Even more problematic, the program relies on voluntary applications by districts.
- The law responded to a decade of criticisms of the irrationality of the Title I funding formulas. See my criticisms here. It does not mandate a change to the formulas, but if funds a professional evidence-based study of the formulas to determine who they advantage and disadvantage. The study will propose changes to the formula if necessary. Whether those proposals are adopted are anyone’s guess. Normally I would guess no, but much to my surprise, Senator Burr did manage to get a change to the formulas approved in the Senate bill (although it did not make the reconciliation bill). Plus, the formulas are so irrational that they do not favor red or blue states, which makes change at least plausible.
- The law maintained President Obama’s commitment of $250 million for pre-k. Our schools, of course, need far more than that, but it is important that this was not cut out of the bill.
- Finally, the bill included a teacher pay-for-performance grant. I had thought this issue was going away, but maybe keeping it was part of the deal struck for doing away with teacher evaluation systems.
Finally, the Secretary of Education was reduced to a line worker. I argued here that Secretary Duncan lacked the statutory authority to impose the various conditions he attached to NCLB waivers and that to give a Secretary the ability to impose those sort of open-ended policy objectives would have been unconstitutional. Someone must have agreed with me because no such powers exist in the current law. The problem, however, is that this law overreacts to NCLB waivers, making this as much about Arne Duncan as it is about the proper role of the Secretary. To say the Secretary should not act beyond his or her statutory and constitutional power is not to say the Secretary should have no power at all. Yet, that is what this law does. Under the law now:
- The statutory bases upon which the Secretary can reject a state plan are very narrow.
- If the Secretary plans to reject a state plan, the Secretary must specifically articulate the statutory basis and justify it.
- After this, the state will get an opportunity to respond and resubmit. If the Secretary rejects the plan a second time, the state is entitled to a hearing.
- In some instances, if the Secretary does not specifically reject a state plan within the required time frame, the law will treat the Secretary as having accepted the plan.
- The Secretary cannot review or request changes to state’s academic standards. In other words, the whole common core standards/curriculum mess that came from the NCLB waiver is prohibited.
- The Secretary cannot place conditions on state applications or consider criteria in making decisions that are not within the scope of the conditions and considerations of the Act itself. As I argued here, this was the fatal flaw in the NCLB waivers that render the conditions Duncan imposed beyond his statutory authority.
- Nor can the Secretary attempt to indirectly achieve any of the forgoing prohibited objectives through policy guidance.
In short, the law sets up a system in which the presumption is that the states will get exactly what they want they want in their state plans and grants. If somehow the Secretary manages to find a way to say now, a state will get multiple additional bites at the apple.
Size of the Department of Education
In conjunction with implementing the new provisions, the law directs the Secretary to specifically look at the work done and not done, needed and not needed, report on those findings, and reduce the size of the Department accordingly. A smart Secretary can likely work around this, but this is clearly an attempt by Congress to shrink not just the power but the size of the Department, which presumably would further shrink its power.
Finally, the law includes lots of interesting and important additions that I would term as random rather than structural. Those changes address charter schools, data, parents, and school discipline. I will, however, leave those issues for later in the week.
Friday, December 11, 2015
Congress Again Fails to Tackle Equity in Revised Federal Education Law by David Sciarra and Molly Hunter
On December 9, 2016, Congress passed a bill reauthorizing the Elementary and Secondary Education Act (ESEA), and President Obama signed it today. The new "Every Student Succeeds Act" (ESSA) retreats somewhat from excessive high-stakes testing, and eases up on sanctions and labels for schools, teachers and students. Overall, the law moves away from narrow federal mandates on testing and accountability, leaving states to their historic and central role in educating our nation's public school children.
But once again, Congress has failed to confront the central problems that plague most of our 50 separate state school systems.
The new law, like the "No Child Left Behind" Act (NCLB) it replaces, gives the States free reign to continue the vast and debilitating inequities and disparities in their school systems. For our nation's most vulnerable children, ESSA is "same as it ever was."
Most states are shortchanging schools the funding and programs needed to give all children the chance to succeed, especially the growing numbers of children in poverty in districts and states across the country. Millions of children in our state systems attend schools deprived of the teachers, support staff and other resources essential to learning. Only a handful of states have made the effort to overhaul their finance systems to deliver those resources to schools and students most in need.
Congress could have required the states move away from funding schools based on dollars and politics to providing students and schools the resources necessary to achieve academically. Congress could have required states to build capacity to deliver high quality supports to,font help high risk schools and districts to improve. And Congress could have taken bold action to press states to dramatically expand access to high quality early education to give at-risk youngsters the opportunity for school readiness. Congress received these recommendations from the federal Equity Commission in 2013 but chose to ignore them.
Parents and advocates deserve credit for pushing Congress to retreat from NCLB's extreme test and punish provisions. But with the states now firmly in the education driver's seat, parents and advocates must turn their attention to their statehouses. Parents and advocates must now build strong campaigns for education equity in every state, demanding governors and legislators provide fair funding, support high poverty schools, and offer high quality preschool to every vulnerable three- and four-year old.
ESSA, like its NCLB predecessor, will do little to help every student succeed. But every student matters. It's time to let the state lawmakers responsible for our public schools know.
David G. Sciarra is the Executive Director of Education Law Center (ELC). Molly A. Hunter is Director of Education Justice at ELC.
Tuesday, December 1, 2015
Well, I suppose that the day on which we are technically waiting is the day the President affixes his signature to a reauthorization of the Elementary and Secondary Education Act, but we have not even seen legislative language that had a chance of getting to the President's desk since No Child Left Behind was first passed in 2001. The Act has needed reauthorization since the beginning of the Obama administration. Were it not for a fights over health care and then a change in Congress, we would have gotten a reauthorization bill six or so years ago. After that, reauthorization became a pipe dream. Insiders had written off reauthorization until the next administration. But somehow, against all odds, the Senate's efforts to pass a reauthorization bill turned into the little train that could. Notwithstanding a House of Representatives at war with itself, the resignation of the Speaker of the House, and the resignation of the Secretary of Education, an unlikely bipartisan group in the Senate has trudged along to find a middle ground. The Senate and House reconciliation committee has now released what is a near final bill that will be introduced in both houses in about a week and should pass relatively easily.
None of this is to say the reauthorization bill is a good one. At first glance, it is a setback to a productive federal role in education. It may have made it this far for no reason other than the passage of time has lowered expectations so far that many would accept almost any bill that presses the reset button on NCLB and Secretary Duncan's waivers. Regardless, the long awaited bill is finally here. The full bill and a cheat sheet on what it does is available here.
Monday, November 16, 2015
After languishing for the entirety of the Obama presidency, Edweek reported late last week that the House and Senate have reached a preliminary agreement to reauthorize the Elementary and Secondary Education Act, replacing the defunct No Child Left Behind accountability system. Alyson Klein offers a nice summary of the big points, so I will not repeat them, but I would emphasize those big issues that were in doubt.
First, Title I funds are not going to turn into a voucher system whereby students can take those funds wherever they want. This was the holy grail for many Republicans (at least those that have sought national attention). Second, there were some changes to the funding formula. Title I formulas are so complex that it is hard to comment on what the new ones will do until we actually see them, but the old formulas are so irrational that I would venture to speculate that any change is likely to be a step forward. You may recall that a change to the formula was the very last amendment to slide into the Senate bill. Any change to the formula would necessarily create winners and losers (unless the overall financial pot was expanded), which made change highly unlikely. That we are getting some change, however modest, is a nod responsible lawmaking. Finally, the bill severely restricts the Secretary of Education's discretion--a smackdown reaction to Secretary Duncan's executive overreach through the NCLB waivers. While I have been highly critical of the waivers, this may very well be an overreaction. If the Secretary confronts unforeseen circumstances that demand a solution, dealing with it may require Congressional action. At that point, we can only hope a functional Congress will be in office.
Monday, October 26, 2015
On Friday, the Obama administration took a significant ideological step. After more than a decade and a half of increased standardized testing--what many call drill and kill--the administration has called for a cap on the amount of time public school students spend on taking tests. Students would spend no more than two percent of instruction time taking tests. The administration's goal is to for Congress to reduce "over-testing" in the reauthorization of the Elementary and Secondary Education Act.
On the other hand, it is pretty easy to be against "over-testing" and the administration is arguably late to the game. A national opt-out of testing movement has been growing in strength for the past few years. "Parents, students, educators, your voice matters and was heard,” said Randi Weingarten, the president of the American Federation of Teachers. As discussed here, so many opted out in New York that the state worried its federal funding would be in jeopardy.
What is far less clear, and probably more important, is how reduced testing will be coordinated with the administration's other policies on teacher evaluation and student progress. Regular and detailed tests are the fuel that makes those policies run. This announcement may be a concession that those policies are also flawed, but focusing on over-testing as the enemy may be the means by which to save face as policy moves in a different direction.
Wednesday, October 14, 2015
Texas and South Dakota's No Child Left Behind waivers are safe, at least, for one more year, but the U.S. Department of Education has put them both on high risk status. The problem for both states is their teacher evaluation systems, which are not measuring up the Department's demands. Interestingly, Texas indicates it has no intent of meeting the Department's demands. The state's education commissioner said:
Throughout the waiver application process, I have made it clear to federal officials that I do not have nor will I ever seek the authority to compel local school districts to use one uniform teacher and principal evaluation system statewide. . . . Our state believes strongly in local control of our schools. As a result, we will continue discussing this specific point with the U.S. Department of Education, but they should not expect any shift in Texas' position.
Whether either state will suffer consequences for the position is not entirely clear. When the waiver process first began in 2011-12, Arne Duncan was inflexible in the conditions he placed on states. Either comply with his conditions or face sanctions under NCLB. This worked terrifically in getting all the states that actually needed waivers in line very quickly. They all promised to do exactly what Duncan demanded. Since then, a lot has changed.
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.