Wednesday, December 10, 2014
Should the Education Department withhold federal funds from states and school districts that are failing to comply with the conditions on the funds? As the Supreme Court noted in NFIB v. Sebelius, the 2012 case about the Affordable Care Act, federal funding for education is second only to federal funding for Medicaid. It's therefore critical to understand this important enforcement mechanism. Although funding cut-offs are a powerful tool -- think desegregating southern schools in the 1960s through the combination of Title VI and the Elementary and Secondary Education Act -- they are a controversial one. In my forthcoming article in Yale Law Journal, Agency Enforcement of Spending Clause Statutes: A Defense of the Funding Cut-Off , I unpack the controversy, focusing on federal grants more generally, not just education grants, but I use a lot of education examples throughout, given the importance of federal funding to federal education law.
The abstract explains:
[F]ederal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain — and often to justify — agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, that political dynamics among state governments, Congress, the White House, and the agencies themselves make funding cut-offs difficult to achieve. This article argues that these critiques are deeply flawed. Among other problems, the critiques fail to account for the variety of types of grants, grant conditions, and rationales for grantee noncompliance; reflect lack of a nuanced understanding of the ways in which distinct federalism concerns play different roles at different times in the development and implementation of grant programs; and unrealistically assume static and unified agency incentives and political relationships. After debunking these critiques, the Article offers a new conception of the potential benefit of funding cut-offs in the enforcement of federal grant programs: the threat of a funding cut-off may be appropriate when it can promote change by the noncompliant grantee and when it can signal to other grantees that the agency is serious about enforcement, thereby increasing grantees’ compliance. The article concludes by assessing the implications of this argument for administrative regime design and judicial review. This work opens up new avenues for research in administrative law on the distinct features of the federal grants regime.
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.
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.
Thursday, November 6, 2014
Michael Petrilli, of the Fordham Institute, has offered his post-election prognostication for education reform. He points out that, following the gains by Republicans in the 2010 midterm elections, we saw increases in teacher evaluation systems, the lifting of charter school caps, the expansion of voucher programs, and limitations on "last-in-first-out" teacher retention policies. He labels these changes positive education reform and predicts that this week's election results will spell more good news on these issues.
While I would contest the notion that these are all "good" reforms, I have little doubt that we will see more movement on these fronts. It, however, may not be as robust as 2010. Several important trends have developed since 2010 that may create more roadblocks or speed-bumps for these reforms. First, teachers have fired back with lawsuits in several states, challenging the constitutionality of certain teacher evaluation systems. In North Carolina, teachers won. In Florida, they stand a good chance of winning before the 11th Circuit. Teacher, of course, have lost in other places like Colorado. Overall, the results of the lawsuits will likely be mixed, but the represent an important concerted counter-force and demonstrate that some of these measures may be unconstitutional. Second, charter schools remain popular, but the increase in their number has also brought an increase in scandals and implosions. This has generated more conversation about the appropriate level of oversight state officials should exercise over charters. In some locations, it has led to moratoriums on the riskiest charters--online charters. Third, the aggressiveness with which the Department of Education has pushed these policies has eased considerably, particularly in regard to teacher evaluation systems, due to serious questions as to their validity. States like Utah and Florida have also pushed back and questioned the legal authority of the Department to compel reforms of this sort, absent new legislation at the federal level.
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:
Wednesday, October 22, 2014
In 1982 in Plyer v. Doe, the Supreme Court struck down a Texas statute that prohibited school districts from enrolling undocumented immigrant students. The Court held that the statute was discriminatory and unconstitutionally irrational. States have enacted statutes similarly aimed at discouraging immigrant students from enrolling on a few occassions since then. None, however, have gone into practical effect, as all have been deemed unconstitutional in short order. In some instances, legislators allowed that they knew the legislation was unconstitutional, but wanted the Court to revisit the rationale of Plyer v. Doe. The Court, of course, has not done so.
Statutes and policies of this sort remain unconstitutional and fervor for them has died down in the past few years. This year, however, has brought a new, but related problem, particularly in those localities that have seen an influx of unaccompanied minors escaping violence, kidnapping threats, and the like in their home countries. Some school districts say they are overwhelmed by the influx of students, and lacking in the space and resources necessary to serve them. Those excuses, however, would earn the districts no quarter in refusals to enroll the students. Instead, the districts admit the students are eligible to enroll, but have excluded them based on inadequate paperwork and documentation. Yesterday's New York Times tells the story of students in Long Island waiting months to be enrolled in the schools, and points out that the problem is not unique to Long Island:
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.
That the fervor against standardized testing is bubbling over may be best evidenced by the fact that Arne Duncan found it necessary to address the use of standardized tests in a Washington Post op-ed last week. His op-ed walks a very fine line, sympathizing and agreeing with critiques of standardized testing, on the one hand, and defending the tests as a necessary tool for benchmarking students and teachers on the other. His most poignant statement may have been:
To be clear: I strongly believe in using high-quality assessments, including annual tests, as one (but only one) part of how adults improve instruction and hold themselves responsible for students’ progress. With my own kids, I know parent-teacher conferences, grades and other feedback round out the picture of whether they’re on track.
That point, however, is not necessarily in serious contention. Most would allow that tests offer a benchmark for consideration. The new teacher evaluation systems in various states do far more than just "round out the picture." State statutes mandate their consideration in particular ways and with particular metrics that create an entirely new set of motivations for teachers and administrators, and raise an entirely new set of legal issues, hence the series of legal battles brewing in the states.
Monday, October 20, 2014
The U.S. Department of Education published the final regulations for the Violence Against Women Reauthorization Act of 2013 (VAWA) amendments to the Clery Act today. Below is the Clery Center's summary of college campuses' expanded obligations to report, investigate, and resolve incidents of sexual assault, domestic violence, dating violence, and stalking under the new regulations, which require colleges to:
- agree on the law enforcement agencies that will investigate alleged criminal offenses;
- include statements in campus written policies about sexual assault, domestic violence, dating violence, and stalking;
- provide prevention and awareness programs for incoming students and new employees and provide written information to victims;
- allow victims and accused persons to have an advisor, including an attorney, accompany them to meetings;
- establish procedures to follow when an incident of sexual assault, domestic violence, dating violence, or stalking is reported; and
- set procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking;
- disclose in their annual statistics the total number of crimes that were "unfounded”;
- include gender identity and national origin as two new categories of bias for a determination of a hate crime; and
- use updated sex offenses definitions that more closely align with the FBI’s updated definitions and terminology.
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.
Wednesday, October 1, 2014
The Office for Civil Rights released a lengthy Dear Colleague letter today that emphasizes the extent of resource inequalities in schools and its legal framework for evaluating whether those inequalities violate Title VI of the Civil Rights Act.
Many States, school districts, and schools across the Nation have faced shrinking budgets that
have made it increasingly difficult to provide the resources necessary to ensure a quality
education for every student. Chronic and widespread racial disparities in access to rigorous
courses, academic programs, and extracurricular activities; stable workforces of effective
teachers, leaders, and support staff; safe and appropriate school buildings and facilities; and
modern technology and high-quality instructional materials further hinder the education of
students of color today.
I would add middle income students to the list of "resources" to which students must have equal access. Half a century of research confirms that the most important school level determinate of an individual student's academic outcomes is the socio-economic status of the students with whom the student attends school. Middle income students and families bring social capital and other important resources to schools that heavily affect climate, motivation, and the other tangible resources that the Department references in its letter. In other words, student assignment policies cause resource inequalities. Thus, at the local level, student assignment cannot be separated from the conversation of resources, school quality, and academic outcomes.
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.
Thursday, July 31, 2014
Last week, the Obama administration announced an expansion of the My Brother's Keeper Initiative, which is aimed at improving educational and life opportunities for African American and Latino boys. Sixty of the nation's largest school districts, which educate about 40 percent of the nation's low income African American and Latino boys, agreed to join the President's initiative. They are committing to expand preschool education, expand positive interventions, increase the number of minority boys in advanced courses, reduce their suspension rates, and increase graduation rates.
More on the story here.
Tuesday, July 29, 2014
The Department of Education recently exempted three colleges from Title IX's provision prohibiting discrimination against transgender and gender-nonconforming students. George Fox University (Oregon), Simpson University (California), and Spring Arbor University (Michigan), The exemptions come just three months after the Department of Education's Office for Civil Rights issued a guidance letter to colleges on sexual violence that included transgender students as a protected group under Title IX. The colleges were controlled by a religious organization, a ED spokesperson told the Huffington Post yesterday, and Title IX exempts such organizations from compliance if admitting a student or allowing a student to remain at their institutions would be inconsistent with their religious tenets. While all three colleges requested exemptions from admissions and accomodations for transgender students, one of the schools, Spring Arbor, was also granted permission to discipline students for same-sex "activity," extramarital sex, single parent pregnancies, and having abortions. Professor Kristine E. Newhall (UMass Amherst) told the Huffington Post that the concern is not the statutory exemption, but Education Department's lack of clear criteria "about what a school must meet to show [that it is] controlled by a religious organization." Read more here.
Wednesday, July 23, 2014
Seventeen Louisiana legislators have filed suit, alleging that Louisiana State Board of Elementary and Secondary Education's adoption of the Common Core Curriculum did not comply with the necessary process required by the state's Administrative Procedures Act. This case is the inverse of the one dismissed last week by the Oklahoma Supreme Court. There, the legislature had repealed the Common Core and the state board argued that the legislation violated the board's constitutional authority to supervise education. In Louisiana, the legislature is claiming the board acted unlawfully in adopting the common core.
The Common Core, teacher assessment changes, and NCLB waivers--which prompted the first two reforms, are producing schizophrenic litigation. Almost every week has brought new litigation,
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.