Tuesday, November 25, 2014
Three months ago, the U.S. Department of Education revoked Oklahoma's No Child Left Behind waiver because the state was no longer in compliance with one of the conditions of receiving a waiver: adopting college and career ready academic standards. Oklahoma initially met that condition by adopting the Common Core standards, but the state repealed the standards this summer. The Department quickly revoked its waiver.
Since then, the state has scrambled to get the Oklahoma State Regents for Higher Education to review the state's old academic standards--Priority Academic Student Skills (PASS)--and deem them college and career ready. The Regents did so and the Department of Education agreed. This meant that Oklahoma was once again in compliance with the conditions of its waiver and the Department reinstated it. Thus, on its face, the simple answer to why Oklahoma got its waiver back is that it had adopted college and career ready standards, even if those standards were not the Common Core standards. But history suggests there may be much more to it than that.
Monday, November 24, 2014
President Obama's announcement that he would shield undocumented immigrants from deportation has only emboldened claims that his administration is grossly overstepping the bounds of permissible executive action. Detractors seek to lump immigration, environment, health care, and education policy all together as overarching evidence of an administration acting as a monarch.
Most of the claims, however, ignore a major distinction between the administration's No Child Left Behind waivers and all the other executive action that enervates them. In the other areas, the executive action is to not enforce some existing law. The administration is exercising the equivalent of prosecutorial discretion. The discretion to not enforce the law in some particular instances is well established and amounts to no more than an administrative decision of how to utilize scarce administrative resources (even though the practical policy ramifications are clearly high with immigration, for instance).
NCLB waivers are entirely distinct. The administration did not simply decide to waive or not enforcement NCLB requirements. It supplanted them with an entirely new set of conditions, found nowhere in NCLB. In this respect, the administration made new law, rather than just waiving old law. The distinction makes a world of difference constitutionally and under the relevant statutes. I flesh out these distinctions in detail here. While most conservative commentators entirely miss this point, Neal McClusky of the Cato Institute, to his credit, makes this distinction in his article, Illegal “No Child” Waivers Should Raise Much Louder Alarms.
As a side note, Edweek explains what Obama's immigration announcement means for education here.
Friday, November 14, 2014
The Department of Education released its guidance yesterday on the renewal of No Child Left Behind waivers. Three things strike me as extremely important in the guidance. First, the guidance adheres to the same four conditions for an NCLB waiver that the Department first announced in 2012. Thus, there is no change in policy direction. Second, while the Department maintains the same policy agenda, it has softened on how and when a state might meet the waiver conditions. In regard to all of the conditions, the guidance invites states to explain and justify their actions, and focus on progress toward meeting the conditions, as opposed to having already met them. Most notable is in regard to teacher evaluations. A states can delay implementing their system, if they can check these two boxes on the waiver renewal form:
Wednesday, November 12, 2014
With Republicans controlling both the House and Senate now, the chances of some form of reauthorization, even if just piecemeal, of the Elementary and Secondary Education Act go up. That is not to say that reauthorization is likely, but watered down reauthorization has been low-hanging fruit for several years. Only irrational acrimony stood in its way. Whether we see legislation is probably less dependent on whether there is some theoretical policy that is suitable to both the President and Congress than it is on whether they are interested in the idea of agreement.
Tuesday, November 11, 2014
Last week, Edweek reported on an Ohio bill that would repeal Common Core in the state. The bill has now made it through the state house committee by a vote of 7-2. Whether it is brought before the full house depends on whether its sponsors believe it will pass. Support for the bill before the full house is unclear.
Tuesday, October 28, 2014
LaJuana just posted on the Leadership Conference's letter to the Department of Education from yesterday. Today eleven more civil rights groups released recommendations to President Obama, Secretary of Education Arne Duncan, Congressional and State Educational Leaders urging increased educational opportunity and equity for students of color through improvements to local, state and federal accountability systems. The full recommendations and letter are here. The major thrust of the recommendation is that rather that the current approach of wide ranging and general education policy reforms, the administration should maintain NCLB's focus on achievement gaps and accountability for them. Moreover, the administration should insist that that states are delivering equal opportunities that would close those gaps. Thus, they recommend:
Tuesday, October 21, 2014
On August 14, 2014, the Department of Education denied Florida's request for flexibility in regard to English Language Learners. Friday, Florida Governor Rick Scott requested that the Department refer that denial over to a hearing before an administrative law judge. In his letter to the Department, Governor Scott's first discusses the merits of its ELL program. The letter then addresses the legal issues raised by the denial. First, he first raises the basic issue of process (and the right to a hearing now). Second, he questions whether the Secretary had the constitutional or statutory authority to condition waivers. On that score, he cites the analysis in my article, Federalizing Education by Waiver?, and a memorandum from the Congressional Research Service to the House Committee on Education and the Workforce Majority Staff, which I must admit I had previously missed, but found instructive and will include in my next draft of the paper.
Like David Barron and Todd Rakoff (in In Defense of Big Waiver) and myself, CRS concludes that the Department of Education has broad power to waive various provisions of No Child Left Behind. On the question of the Department of Education's authority to condition those waivers, CRS's analysis probably falls somewhere between myself and Barron and Rakoff. CRS concludes:
On the other hand, if the Secretary did, as a condition of granting a waiver, require a grantee to take another action not currently required under the ESEA, the likelihood of a successful legal challenge might increase, particularly if ED failed to sufficiently justify its rationale for imposing such conditions. Under such circumstances, a reviewing court could deem the conditional waiver to be arbitrary and capricious or in excess of the agency’s statutory authority. Ultimately, the resolution of such a question would probably depend on the facts of a given case.
Thursday, October 9, 2014
Utah's Attorney General Reasons That U.S. Department of Education Lacked Authority to Impose NCLB Conditions
Utah's Governor asked its Attorney General to issue an opinion on various issues surrounding common core. The Attorney General's opinion indicates that the state of Utah followed the appropriate state procedures for adopting the Common Core, but questions the legality of the U.S. Department of Education conditioning NCLB waivers on adopting college and career ready standards. He summarizes his reasoning as follows:
[A] recent law review article by . . Derek Black entitled "Federalizing Education by Waiver?" persuasively maintains that the U.S. Department of Education (USDOE) has effectively coerced states by imposing ESEA waiver conditions which require states to develop and implement "college and career-ready standards" like the Common Core standards. The article further asserts that the 2001 No Child Left Behind Act (NCLB), from which these waivers are derived, does not require these "college and career-ready standards." Thus, the USDOE, by imposing these waiver conditions, has infringed upon state and local authority over public education. States have consented to this infringement, through federal coercion, because they fear severe NCLB consequences to most Title I schools not meeting Adequate Yearly Progress (AYP) requirements.
On that basis, he indicates Utah has the authority to withdraw from the Common Core, although there will be AYP issues to sort through if it does.
Tuesday, October 7, 2014
New Legal Scholarship: The Business of Charter Schools, NCLB Waivers, Expanding Vouchers, and Transgendered Student Legislation
The new issue of BYU's Education and Law Journal is out and includes the following articles:
Patrick J. Gallo, Jr., Reforming the "Business" of Charter Schools in Pennsylvania, 2014 B.Y.U. Educ. & L.J. 207 (2014).
Gallo addresses the current state of the charter school system in Pennsylvania and the need for reform. Summarizing some of the serious issues facing the charter system in Pennsylvania, the author states:
There are now more than 175 charter schools in Pennsylvania with over 105,000 students and approximately 44,000 more students on waiting lists. In addition, roughly 25 percent of the student population in the Philadelphia School District attend public charter schools. Moreover, government financed charter schools present a significant opportunity for profiteers looking to cash in on this modern day "gold rush," and, with very little oversight, Pennsylvania public charter schools have become fraught with "chicanery and greed . . . [,] excessive executive salaries . . . [,] nepotism, and [dubious] financial and real-estate transactions.
Monday, September 29, 2014
Thomas Ahn and Jacob Vigdor have released a new study finding that No Child Left Behind, particularly its harshest sanctions, did have some positive impacts on outcomes, just not nearly as robust as the original proponents of the Act promised. The abstract summarizes the study as follows:
Comparisons of schools that barely meet or miss criteria for adequate yearly progress (AYP) reveal that some sanctions built into the No Child Left Behind accountability regime exert positive impacts on students. Estimates indicate that the strongest positive effects associate with the ultimate sanction: leadership and management changes associated with school restructuring. We find suggestive incentive effects in schools first entering the NCLB sanction regime, but no significant effects of intermediate sanctions, with the exception of gains from restructuring which are pervasive. We find no evidence that schools achieve gains among low-performing students by depriving high-performing students of resources.
Wednesday, September 24, 2014
Litigants have filed another challenge to the Common Core, this time in Missouri. The theory there is particularly unique. They charge that state funding of the consortium that is developing Common Core standards and assessments amounts to an "illegal interstate compact" and cedes state sovereignty over education to the consortium. They also charge that the U.S. Department of Education has illegally funded the consortium: $360 million to Smarter Balanced and the Partnership for Assessment of Readiness for College and Careers (PARCC), which are developing the standards. The lawsuit alleges this funding was not authorized by Congress.
I have not investigated this latter claim, but am skeptical, given that the funds flowed through the American Recovery and Reinvestment Act, which gave the U.S. Department of Education significant discretion in awarding grants to promote education innovation. That level of funding to Common Core developers, however, would give added support to the argument that the college and career readiness requirements in Race to the Top and No Child Left Behind Waivers were de facto requirements that states adopt the Common Core. In other words, the Department funded a private group to develop standards and then required states to adopt standards that could be found in only one place: the place that the Department funded.
More on this argument here.
Monday, September 8, 2014
In the fall last year, I had first raised the question of whether the No Child Left Behind (NCLB) waiver process was being constitutionally and legally implemented. I was initially skeptical, but backed off a little based on the analysis laid out by David Barron and Todd Rakoff in their article, In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013). They make a compelling argument for "Big Waiver" and conditional waivers. Their argument, however, persuasively answers the question of whether conditional waivers can be constitutional, not whether the conditions placed on NCLB waivers are, in fact, constitutional. I have been analyzing and pondering this question for the past eight months. Based on spending clause, delegation, and statutory interpretation doctrines, the conditions that Arne Duncan imposed on states in exchange for waivers are beyond the scope of his statutory authority and unconstitutional. You can download my full analysis here.
Friday, August 29, 2014
Wednesday Gov. Bobby Jindal filed suit against the Department of Education over its requirement that states applying for Race to the Top Funds adopt the Common Core Curriculum. Yesterday, the Department of Education withdrew Oklahoma's No Child Left Behind Waiver because the state repealed the Common Core Curriculum. In short, a lot is happening very quickly in national education policy, and the courts are being called upon to get involved.
My initial read of Jindal's suit is that it is misplaced. First, Congress extended the Department enormous discretion in shaping the types of reforms and programs the Department could pursue through Race to the Top. A blank check describes it best. Second, no states were forced to apply for Race to the Top funds and many did not. Thus, those who did were acting completely voluntarily. The notion that Congress violated state's rights when these states jumped at the money is a hard narrative to make.
Jindal's only colorable claim is in regard to the general education provision statute that indicates that the Department shall not dictate curriculum to states. This provision, however, may be superceded by the discretion afforded in Race to the Top. Even if not, because the curriculum flowed through a competitive grants it does not easily fall in the category of a federal dictate.
Oklahoma, on the other hand, has far more to complain about. As I demonstrate in my new article here, the Secretary lacked the statutory authority to impose new conditions on states in exchange for NCLB waivers. Moreover, the unilateral imposition of new conditions amount to law making power that an agency cannot possess. Finally, the imposition of new waivers ten years into NCLB violates the clear notice rules required by the Constitution. In short, Jindal may not have much to complain about, but Oklahoma (and Washington) certainly do.
Friday, August 15, 2014
Whiteboard Advisors recently conducted a survey of education policy insiders. The insiders do not believe that a reauthorization of the Elementary and Secondary Education Act (ESEA) is anywhere on the horizon. A shocking 20 percent say the Act will never be reauthorized. I am not sure what that response implies: that the federal role in education will move toward competitive grants or that the Secretary will perpetually run federal policy by conditioning waivers of existing law. Neither of those seems plausible to me. 72 percent allow that the ESEA will be reauthorized, but not until 2016 at the earliest. Only 32 percent believe the Act with be reauthorized by the end of next year.
To put these delays in perspective, the Act was due for reauthorization in 2008. A 2016 reauthorization would mean that the Act doubled its normal lifespan. In other words, the law is very outdated. Moreover, the flaws were evident as early as 2004, when scholars, organizations, and policy makers began putting forward constructive proposals for legislative revisions.
The full results of the survey are here.
Friday, August 1, 2014
According to a new lawsuit filed yesterday, the Utah State School Board "violated [the] law by adopting the Common Core State Standards without substantive input from parents and educators." The lawsuit was brought by the Libertas Institute, along with six parents and teachers. The plaintiffs contend that "they were denied an opportunity to be consulted" before the standards were adopted and request that the court grant an injunction against any implementation of the Common Core.
Friday, July 18, 2014
Utah Considering Foregoing NCLB Waiver Extension and Questioning Constitutionality of Current Process
The Utah State School Board has been mulling over its options (or rather the option) regarding the state's waiver from the No Child Left Behind Act (NCLB), and remains divided over what to do. The deadline for for waiver extensions is mid-August. Without a waiver extension, the state must comply with all provisions of the act, "including requirements to divert funds intended for the assistance of at-risk students, the hiring of third-party consultants, faculty and administrative shakeups, and potentially the closing of traditional public schools to be reopened as charters." According to a presentation by the vice chair of the board, if the state were to abandon its waiver, costs would rise $26.5 million and all 1,067 Utah schools would fail under the law in the coming year. Some in the state are also hashing through the issues I have been raising here and here regarding the constitutionality of the Department's actions under the waivers.
More on the Utah story here.
Tuesday, July 15, 2014
Per my early posts, opting out of Common Core and keeping a No Child Left Behind waiver is no easy chore. As a new Edweek article details, those states that opted out are working with a very short deadline for coming up with an alternative to the Common Core. Given the complexity of developing academic standards, they cannot really do that within their current time frame. The easy option for some is to adopt the Common Core, with slight revisions, under a different name. This allows politicians or state departments of education to create the illusion that they rejected the Common Core. South Carolina's legislature, however, claims to even reject that illusion. Their legislation indicates that if the state department of education adopts any curriculum that was not created locally--"home grown"--the legislature itself must approve the curriculum.
Posturing aside, the practically reality appears to be that the "opt-out" states will operate under a curriculum that mirrors the Common Core in the immediate future and reserve major changes for a future multi-year process. Even then, they are likely to only make those changes necessary to be able to claim that their curriculum is not the common core.
Wednesday, July 2, 2014
Washington state lost its No Child Left Behind Act waiver earlier this year for failure to meet the conditions initially imposed on it by the Department of Education. Without a waiver, Washington remains subject to the original provisions of NCLB, under which most Washington schools are in violation for failure to make Adequate Yearly Progress (AYP) on standardized exams. Various sanctions kick in for these schools. One of the initial steps is simply to notify parents that the school failed to may AYP. This notification, however, would also inform them of their right to transfer to another school.
The state superintendent of public instruction is asking the U.S. Department of Education to waive that requirement. He says sending out the letters would be pointless because nearly every school in the state will fail to make AYP and the letters would do nothing more than undermine "public support for education."
The Department's response is going to be interesting. On one hand, waiving this requirement looks like a no-brainer. On the other, Washington has already failed to meet the terms of its prior waiver. If the Secretary gives an inch on a second waiver, it may create precedent for Washington and other states to ask for slightly larger waivers next time. As a practical matter, slightly larger waivers may also make sense, but they rund counter to the Department's national effort and success in imposing stringent policy conditions in exchange for big waivers. In the instant case, Washington is asking for a small waiver, but offering nothing in exchange.
Friday, June 20, 2014
In my previous posts, I noted how pulling out of Common Core does not pose a per se threat to NCLB waivers. States do, however, have to replace Common Core with a functional equivalent to meet the conditions of their NCLB waivers. The problem is that coming up with a functional equivalent at this late stage in the process is nearly impossible. Thus, in practical terms pulling out of Common Core would poses a serious threat to a state's waiver. Are states really pulling out of Common Core? In South Carolina, the answer is no.
South Carolina appears to be playing a game of spin. One state senator states, "We’re getting out of Common Core and will write our own standards.” But another senator says, “The spin is that we did away with, abolished, Common Core. We didn’t do anything to it this year other than move up in time the cyclical review, probably to the detriment of the review.” The State newspaper reports "[t]he compromise law essentially steps up a review process that would have occurred anyway. It calls for the panel to review current math and reading standards, which are Common Core."
South Carolina's Education Oversight Committee Director explains that it takes two years to write new standards and there is no way that can be done now. Instead, Common Core will be tweaked. What we will see in South Carolina are standards that look very similar to the Common Core, but are called something else. I am guessing that will be good enough to keep both the Common Core detractors and the U.S. Department of Education happy.
Tuesday, June 10, 2014
Does Arne Duncan read my blog? Absolutely not (although hopefully at least one person in the Department does). But a few hours after my blog post yesterday, he did answer the question I posed in it. He indicated that Oklahoma (and by extension South Carolina) was not at risk of having its NCLB waiver or funding revoked as a result of pulling out of the common core. That does not, however, negate the next step. Per my comments yesterday, those states still must come up with an alternative to the common core or they will find themselves in trouble.