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.
Monday, June 9, 2014
For the most part, I have avoided posting on the common core because the controversy has practically involved a 24 hour news cycle over the past several months, and most of it was politics and activism, not law. Now it is becoming law. Over the past two week, Oklahoma and South Carolina's governors signed laws pulling their states out of the Common Core State Standards initiative. They joined Indiana, which had officially withdrew from the common core earlier. Florida is reportedly considering pulling out as well.
For educators, the Common Core is a matter of pedagogy and curricular content. But these pull-outs also have potentially serious legal consequences, meaning the issues is equally important for bureaucrats and lawyers. The No Child Left Behind waivers granted last year were conditioned on states adopting academic standards that were benchmarked across states, rather than just within states. Adopting the Common Core met that condition. States pulling out must find an alternative. To my knowledge, there is not one readily available, meaning their waivers may be in jeopardy in the future.
Tuesday, April 29, 2014
As previously forecast, the Department of Education announced last week that it was withdrawing the State of Washington’s No Child Left Behind waiver. Washington state’s NCLB renewal has been on high-risk status since last August. Teacher evaluation assessments were the sticking point between Education Secretary Arne Duncan and Washington officials. While Washington State’s teacher evaluations use students' scores as measures of effectiveness in district-level assessments, the ED wanted the state legislature to mandate using student performances on statewide tests for teacher accountability. When Washington’s legislature failed to pass a bill to incorporate students’ statewide test scores in teacher evaluations, the state could not hold on to its NCLB waiver. Since efforts to pass such a law failed, Washington will have to set aside 20 percent of its Title I funds (an estimated $38 million) for “public school choice and supplemental educational services rather than having the flexibility to use those funds for other activities to improve student achievement in low-achieving schools,” Secretary Duncan said in his letter to Washington. The implications for school district budgets after Washington’s loss of flexibility to use the Title I funds are uncertain. School districts under the waiver had more flexibility to simply add Title I funds to their overall budgets, but without the NCLB waiver, that spending will be directed where the federal government says the money must go. As for Washington state’s response, a spokesperson for Governor Jay Inslee says “[t]here is no Plan B.”
Monday, March 24, 2014
Running out of time to hold on its No Child Left Behind waiver, Washington State may face sanctions—but the question is what will the Obama administration want to do about a state that actually is making substantial efforts to turn around low-performing schools—just not in the way that federal policy mandates. For Washington State, loss of its NCLB waiver could mean that $38 million in Title I funds in the 2014-2015 school year could be diverted to school choice, voucher programs, and private tutoring efforts. Losing the waiver would also place many of the state’s public schools into the failing-to-make-adequate-yearly-progress category, the Tacoma News Tribune reported last month. Washington’s NCLB renewal has been on high-risk status since last August, joining Arizona, Kansas, and Oregon in the ED’s NCLB waiver doghouse. Earlier this year, Washington State officials met with Education Secretary Arne Duncan who insisted that teachers and principals’ evaluations include statewide assessments, not just local or regional ones, before the ED would renew the state’s NCLB waiver. Washington State’s teacher evaluations already include students' scores on district-level assessments, but the ED wants the state legislature to mandate the use of statewide tests for teacher accountability. Washington Governor Jay Inslee tried to get a bill passed this February to require that students' statewide test scores be used to measure teacher effectiveness, but those attempts failed. While EdWeek points out that the ED has given some states an extension, those extensions applied to how student assessment scores factor in teacher hiring and firing, not whether a state uses statewide or local standardized tests as the accountability measure.
Wednesday, February 19, 2014
The state of Washington is now in danger of losing its No Child Left Behind Waiver. The Department of Education has granted waivers on a one year basis, requiring that states reapply in subsequent years to show progress on the conditions in their previous year's waiver. For Washington, that meant using statewide tests in evaluating teacher's and principal's effectiveness. The Washington state senate just voted down a bill that would have implemented that requirement. The no vote came from the Democrats in the Senate and seven Republicans. Democrats charged that the evaluation metrics are just a means to bash teachers. As a result of the state's legislative timing rules, there appears to be no obvious way to come up with an alternative solution before the Department of Education makes its decision on the waiver.
The Olympian reports that
Losing the waiver would mean school districts throughout the state would have to redirect an estimated $38 to $44 million in federal education funding toward private tutoring efforts, rather than spending the money on district programs for poor and disadvantaged students.
It also would mean nearly every school in the state would be labeled as failing, and school administrators would have to send letters home to parents notifying them of their schools' failing status.
It is possible that the Deparment of Education might still extend the waiver based on compliance in other respects, but to do so would also send a negative message to other states regarding their need to comply.
Monday, December 9, 2013
Notwithstanding my railings on the current use of the NCLB waiver process and my suggestion that some waiver conditions are outside the scope of legislative authority, the issue remains complex and the opposing view worth considering. Earlier this year, David Barron and Todd Rakoff published In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013), which focuses on the constitutionality and virtues of the administrative waivers available under No Child Left Behind and the Affordable Care Act. The main thrust of the article is that, given the complexity of today's statutory and administrative state, the administrative waiver is nearly a necessity and something that works to both Congress and the Executive's advantage. Among other things, it helps Congress adapt laws to unforeseen circumstances and improves the political accountability of the executive branch. The abstract explains:
This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime--even one it knows may be waived--big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies' subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
The key question, however, is not whether the waiver is good policy (I believe I agree that it is), but whether it is constitutional. On this point, the tail seems to wag the dog in the article; good policy and practicalities motivate a favorable constitutional analysis. With that said, the article does give me serious pause in my initial conclusions about the constitutional issues. In this respect, the article is a success both in itself and for the administration.
A block quote of the conditional waiver analysis follows the jump.
Thursday, November 21, 2013
Last week, the Department of Education indicated that it is backing away from the requirement it announced just 2 months ago that low income and minority students have equal access to high quality teachers. This move and the timing of it are troubling. Civil rights leaders and scholars, including myself, had praised the Department for making equal access part of the NCLB waiver requirements. And although I had previously posited that Arne Duncan was inappropriately acting as a de facto superintendent of the United States of America School System in the conditions he was placing on school systems, equal access to teachers was one area that did not raise the same concerns because it was within the scope of existing statutory language of NCLB. The Department just had not been enforcing it and now seemed ready to do so. Backing away now only reignites concerns about the statutory authority under which Duncan is acting. His ability to change course reinforces the notion that he is not acting under statutory standards, but based on his judgement of how best to run "his" national school system.
Legalities aside, this retreat is also problematic on a policy level. In just the past week, two major studies identifying the gains associated with this access have been released. One was a Department of Education funded study showing the efficacy of encouraging top teachers to transfer to needy schools. The second was a Fordham Institute study showing the efficacy of giving the best teachers larger class enrollments. Both studies showed impressive results and only added to the mountain of research that preceded them. Why the Department would back away from existing teacher requirements in the midst of increasingly persuasive evidence on the topic is beyond me.