Thursday, February 26, 2015
Earlier this year, I posted on the strong shift in approach to reauthorization of the Elementary and Secondary Education Act and how it was placing the federal role in education in jeopardy. Such a shift would have undone much of the work of the past two decades to increase the federal role in education (putting aside whether that work was substantively good or bad). Secretary Duncan's comments at the time demonstrated strong objections to that approach, from which one might have inferred that the President would veto legislation that sought that end. Since then, Republicans have pressed on in their intent to change the federal role. Yesterday, President Obama explicitly indicated that he would veto the current bill that is under consideration. See more here. Now that the veto question seems to be answered, will the parties go back to the drawing board or move forward for the sake of posturing? If the latter, it seems we will not see a reauthorization of ESEA any time soon after all.
Wednesday, February 25, 2015
My Dynarksi's recent essay summarizes new studies on teacher mobility, particular the mobility of high quality teachers. A North Carolina study and federal pilot program demonstrate the capacity of public policy to incentivize some teachers to move where they are most needed. From these findings, he proposes that the Elementary and Secondary Education Act require schools to monitor teacher effectiveness and reassign them based on effectiveness.
The Institute of Education Sciences tested something like this approach on a small scale. As part of its study, high-performing teachers were offered financial incentives to move to low-performing schools. Only one or two teachers were moved to any one school. The study found that high performers resulted in an improvement of an entire grade level’s test scores. If the high performer were a fifth grade teacher, for example, the entire fifth grade improved its test scores from fourth to fifth grade. The high performer’s class generally improved the most, but that improvement was so large it was enough to move the whole grade level up.
This fix is about as low-risk as one can get to improve performance of a whole school, like ensuring the U.S. wins an Olympic gold medal in basketball by putting ten NBA all-stars on its team.
Wednesday, February 18, 2015
Richard Kahlenberg thinks so. In a new essay in the Atlantic, Saving School Choice Without Undermining Poor Communities, he discusses the Republican insistence on increasing school choice and making Title I funds portable in the proposed reauthorization of the Elementary and Secondary Education Act. Democrats are resisting portability. Moving money to private schools would undermine public education itself, while moving money within public schools could lead the the rich schools becoming richer while the neediest become poorer.
Kahlenberg points out that socio-economic integration has proven to be a more effective and cheaper means of improving educational outcomes than increasing funding in high poverty schools. The "principle of portability, in fact, has in it the seeds of a solution to reduce economic segregation through public-school choice—if, and only if, portability is properly structured. In order to accomplish this, portable federal Title I funding, as well as state and local funding, would need to be weighted heavily enough to give poor kids sufficient money in their 'backpacks' that middle-class public schools would want to recruit them to attend."
Current proposals offer too little in the way of financial incentives to fundamentally alter student enrollment trends. "But," Kahlenberg remarks, "every school has his price. What is the magical amount of extra money low-income students should have in their backpacks to be attractive to middle-class schools? That’s an empirical question that surveys of school administrators could answer definitively. Meanwhile, past experience shows that financial arrangements can be made to assuage middle-class schools."
An important piece of the puzzle that no one other than Kahlenberg is hitting upon is the need to hold the original school harmless. If the program actually grew to the point where it was leading to substantial transfers, the remaining students in the high poverty schools would be harmed through no fault of their own, as Democrats fear. The easy--albeit costly solution--is to expand the financial pot and allow the high poverty schools to retain, at least, a portion of their funding. Kahlenberg notes that the political and practical success of the St. Louis, Missouri, interdistrict transfer program was due the fact that it both incentivized suburban districts to take urban students while also protecting the urban schools left behind. "The state also set aside some financial aid for St. Louis schools to offset the loss of funding to its urban campuses."
Of course, the devil is in detail. For a more detailed discussion of how Congress might use Title I funds to both integrate schools and meet existing need in high poverty schools, see pages 366-371 of this article. The question is not whether we can do this, but whether a critical mass in Congress is willing to acknowledge the solution and entertain a meaningful compromise between the competing positions.
Monday, February 9, 2015
Like or dislike him, Lamar Alexander is one of the more informed politicians in Washington, D.C. on questions of education. He has served as the U.S. Secretary of Education and as president of the University of Tennessee. Thus, it is hard to write his education comments off as ignorant. Speaking at a school choice event at the Brookings Institute last week, he said “There are some private charter schools, are there not?” The Washington Post reported on some other awkward exchanges occurred along the way.
“Charter schools are subject to the same tests as regular public schools,” Grover J. “Russ” Whitehurst, director of the Brown Center on Education Policy, said. “Public charter schools,” Alexander interrupted. “Well they’re all — charter schools are public schools,” Whitehurst said. “Charter schools, I guess as we define it, are public schools that operate under charters from the state rather than private, so they’re subject to the same tests.”
After the event, Senator Alexander indicated that he had misspoken and that all charter schools are public. His initial comments, nonetheless, suggest a perception that some charter schools, particularly privately run for-profit ones, do not operate like public schools. Of course, such a perception is problematic for the party line of both Democrats and Republicans, but consistent with the framework I suggested here. Broader politics will almost certainly dictate that Alexander keep his perceptions to himself as he works through the rewrite of the Elementary and Secondary Education Act, but it would be nice if he were brave enough to do otherwise.
Monday, February 2, 2015
Representative Joe Wilson (SC-02) introduced legislation in Congress last week to prohibit the Department of Education from imposing new conditions on waivers. His main target is Common Core. His press release states:
My bill would return control over education to the states by prohibiting the federal government from using grants or waivers to mandate, incentivize, or coerce states into adopting Common Core. For states that have already adopted Common Core, it would ensure that any previous requirements for waivers would be void, and the U.S. Secretary of Education would be prohibited from requiring states to agree to any new conditions in order to keep their existing waiver.
The bill has about 35 co-sponsors, and Senator David Vitter, from Louisiana, introduced companion legislation in the Senate. The legislation is unlikely to go far because it does not address the practical problem it would create: states keep their waivers for free. Presumably, this would mean that their non-compliance with NCLB would be completely waived. Beating up on NCLB is easy to do in the current climate, but offering states a free waiver, regardless of their past efforts, is problematic. It would undermine the capacity of the federal government to enforce conditions in future new legislation and it would also completely ignore the substantive failings of many states.
In my article, Federalizing Education by Waiver?, I argue that the conditions placed on NCLB waivers were beyond the scope of the Secretary's statutory power, if not unconstitutional. But this legal conclusion would have merely reset the negotiations over waivers and undercut some of the Secretary's compulsive power. It would not have given the states a free waiver.
Thursday, January 29, 2015
Coalition of Education and Civil Rights Groups Advocates for Maintaining Federal Role in ESEA Reauthorization
Related to Derek's post on moves in Congress during the reauthorization of the Elementary and Secondary Education Act (ESEA) to lessen the federal role in education, a coalition of more than twenty civil rights organizations recently called for maintaining the federal government's insistence on standardized statewide assessments. The group released a statement that "college and career-ready state standards, aligned statewide annual assessments, and a state accountability system to improve instruction and learning for students in low-performing schools" are essential to promoting "educational opportunity and protecting the rights and interests of disadvantaged [students]." The full text of the principles can be found here.
Wednesday, January 14, 2015
Cary Coglianese, Professor of Law and Director of Penn Law's Program on Regulation, has brought together a series of commentators on the Common Core. Over the next two weeks, a series of commentators will publish essays here. The topics and commentators include:
- Common Core Creates Professional Possibilities, Maddie Fennell
- The Common Core is a Remedy Worse than the Disease, Anthony Cody
- Stay the Course, or Turn the Page?, Michael J. Petrilli
- The Common Core is Passable in Theory but Problematic in Reality, Frederick Hess
- Common Misperceptions, Annice Brave
- The Good, the Bad, and the Ugly of the Common Core, Josh Stumpenhorst
- Testing is Destroying the Common Core, Anna Baldwin.
Tuesday, January 13, 2015
Since the start of the new year, discussions regarding the reauthorization of No Child Left Behind (NCLB) have become part of the daily news cycle. This much substantive discussion of reauthorization has not occurred since the presidential election of 2008. These signals are strengthening the possibility that Republicans can and will pass a reauthorization bill. At least, they are clearly indicating they will. Whether President Obama would veto the legislation is less clear, but based on yesterday's comments by Secretary Duncan, the likelihood of veto also seems likely, unless the two sides mediate their positions.
Republicans are discussing legislation that would significantly unravel the current role of the federal government in education and turn education leadership back to the states. While consistent with traditional Republican values, such a move is surprising on several levels. First, No Child Left Behind was one of President George W. Bush's signature pieces of legislation. John Beohner was also heavily involved in its drafting, and the bill passed with heavy bipartisan support. Second, while NCLB significantly expanded the federal role in education, the federal role had been growing steadily over the previous decades. Few seemed to mind. Many, of course, disliked the substance of No Child Left Behind and the recent waivers issued under it, but the federal role in education (and the money it brought) was not normatively problematic to the mainstream. As I pointed out in an article in 2012, NCLB was a smashing success in terms creating and cementing the accountability structures for federal leadership on education. In short, the federal role in education was no longer new or controversial.
Wednesday, December 17, 2014
Alyson Klein, at Edweek, reports that Republicans intend to introduce a bill to reauthorize the No Child Left Behind Act early next year. This fast track is counter to the general consensus just three months ago, which predicted reauthorization would not occur until 2016 at the earliest.
The major idea in this reauthorization is to end the federal mandate of yearly standardized testing. Testing would fall within the discretion of states. Some would surely keep it. Others would drastically reduce it. This move might split portions of the Democratic party. Teacher Unions support the move, but civil rights advocates likely would not. After all, civil rights groups were initially big supporters of NCLB because it would shine a light on achievement gaps. But if Republicans are behind the bill and Democrats split, the bill stands to garner widespread support.
Ditching annual tests, however, would create a huge practical problem for both sides. Without those tests, the teacher accountability systems that have swept the nation, and are a signature piece of NCLB waivers, will not work. Republicans, education reformers, and anti-labor forces have been staunch supporters of these systems. The administration believes these systems can transform the teaching profession. Surely Secretary Duncan and the President recognize this. Do any of the bill's drafters? Probably so, which begs the question of whether passing this bill in the House and Senate is posturing, short-term thinking, an over-reaction to NCLB waivers, or well-intended policy.
Tuesday, December 16, 2014
In an Op-Ed the Philadelphia Inquirer, Secretary Duncan weighed in on funding inequity in Pennsylvania and the nation in general. He wrote, "until some glaring funding injustices are fixed, in Philadelphia and in many school systems around the country, we will never live up to our nation's aspirational promises of justice." He cited heavy reliance on local property taxes to fund education as the source of our problems. The result, he said, is to make the quality of education dependent on geography, which disparately impacts the highest need, lowest-income students. "The key to a fair funding formula is quite simple: Target aid to students who need it most, and adjust current levels of state aid to the districts that are already well supported," he wrote.
This is welcome commentary to school funding advocates and scholars. It mimics what they have said for decades. Duncan penned a similarly welcome Op-Ed on school segregation a year ago. Unfortunately, although there are exceptions, Duncan's activity on these issues has larger been confined to op-eds. In the last year, the Department has issued helpful policy guidance on both issues, but that guidance only came after several years of charters, curriculum, and teacher reform. Those latter agendas might be useful, but none of them touch fundamental inequalities in regard to funding and race. In other words, op-eds and stated intentions to begin tacking discrimination pale in comparison to what the Secretary has done in other areas.
One might excuse the Secretary on race (although I do not) because of the tight rope the Supreme Court requires him to walk, but the failure to address school funding inequity begs the question of what the Department's purpose is. Title I of the ESEA--probably the most important piece of legislation the Department oversees--was designed as a remedy to resource inequity and segregation in the 1960s and 1970s. Since then it has drifted far from its mission. Scholars and advocates have documented its numerous flaws and proposed reasonable solutions. Those solutions, nor anything approximating them, have been found in any of the Secretary's recommendations for reauthorizing Title I or his competitive grant programs.
Wednesday, December 3, 2014
Plaintiffs Secure First Victory in Nation Challenging Federal Role in Common Core, But Reasoning Is Unclear
The skepticism I expressed in September regarding a lawsuit challenging Missouri's funding of the consortium developing Common Core standards and assessments may have been misplaced, at least, for now. Plaintiffs claimed that the state funding of the consortium amounts to an "illegal interstate compact" that cedes state sovereignty over education to the consortium. They also charged that the U.S. Department of Education's funding of the consortium was not authorized by Congress. As I have noted several times, there are plenty of legal flaws to go around with how the federal government has rolled out teacher and Common Core policy, but an unauthorized funding of a consortium did not appear to be one of them.
Nonetheless, plaintiffs in the case have secured the first victory in the nation implicating the U.S. Department of Education. Prior cases all involved purely state law issues and contests of power between the state executive and legislative branch. This current case, however, is curious in that it claims the U.S. Department of Education's action was unconstitutional, but the complaint does not name the Department as a defendant. In that respect, it seeks to keep the case state based and the feds out of it, while still claiming their unconstitutional action is central to the case.
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.