Tuesday, May 10, 2016
The Office for Civil Rights has released its annual report to Congress. Like last year, it is very well written and informative--a break from past traditions. The biggest numbers OCR wanted to emphasize is that it processed over 10,000 complaints--a new record high--with only 540 staff members--a new record low. Doing more with less will certainly make many in Washington happy, but it may also raise questions as to whether OCR is doing the job as well as it could or should. The numbers won't really tell us that. On the other hand, it is possible that OCR has wrenched out this efficiency without sacrificing quality by being very clear about its own standards. If OCR is clear with itself and school districts as to exactly what a violation of Title IX is, for instance, then it might move more quickly to reach a resolution of complaints in that area. Toward that end, this current administration has done an excellent job of updating and issuing various different policy guidance documents. In just this past year, OCR released nine separate policy guidance documents. This is on top of several key ones from the prior year in areas like school discipline and resource equity. None of this, however, should undercut OCR's request for more resources. The demand for OCR's services is clearly high and the current stewards of those resources are allocating them well. Sounds like an agency to support, not undermine.
The report offers this executive summary:
In In FY 2015, the quality and pace of OCR’s enforcement work remained high. OCR received a record-high 10,392 complaints, initiated 19 compliance reviews and directed inquiries, and resolved 9,250 cases overall, including 1,044 resolutions that secured changes protective of students’ civil rights in schools around the nation. (See the Appendix for the total number of resolution agreements in FY 2015 by jurisdiction, state, and type of investigation.) Over several years, the number of complaints OCR received generally rose in several areas, including restraint or seclusion of students with disabilities; accessibility of curriculum through technology for students with disabilities; harassment based on race, color, or national origin; appropriate support for English Learner (EL) students; and sexual violence.
OCR developed and released nine policy guidance documents and hosted policy-related listening sessions with stakeholders on the following issue areas:
• resource equity and resource comparability and discrimination based on race and national origin;
• obligations of elementary and secondary schools to respond to the bullying of students with disabilities that denies a free appropriate public education (FAPE) and disability-based harassment of students with disabilities;
• schools’ obligations surrounding effective communication for students with disabilities;
• questions and answers regarding singlesex elementary and secondary classes and extracurricular activities;
• applicability of federal civil rights laws to juvenile justice residential facilities; • implementing the Centers for Disease Control and Prevention’s (CDC) Ebola guidance for schools;
• schools’ obligations to ensure that EL students can participate meaningfully and equally in school and to communicate information to limited English proficient (LEP) parents in a language they can understand;
• addressing the risk of measles in schools and school obligations to students with disabilities medically unable to obtain vaccinations; and
• the importance and role of Title IX coordinators in fostering compliance with Title IX of the Education Amendments of 1972.
OCR provided more than 250 technical assistance sessions to a wide range of stakeholders – including schools and districts, state education agencies, colleges and universities, parent groups, nonprofit organizations, advocacy organizations, and other federal agencies – and conducted other outreach to galvanize action on important civil rights topics. Notable outreach efforts include a convening at the White House on school discipline (with the Supportive School Discipline Initiative), a celebration of the 25th Anniversary of the Americans with Disabilities Act, and continued leadership in the White House Task Force to Protect Students from Sexual Assault.
OCR administered and collected data for the 2013-14 school year Civil Rights Data Collection (CRDC) from approximately 97,000 public schools serving about 49 million students nationwide. OCR improved the data collection process for thousands of school districts by instituting customized data submission checks that provided them with realtime technical assistance while significantly cutting back on the possibility of submission errors. OCR also launched a pilot program with eight states to pre-populate local CRDC data, thereby dramatically reducing the reporting burden on districts in those states.
Thursday, April 7, 2016
University of Georgia College of Education Professor Elizabeth DeBary and University of Southern Mississippi College of Education and Psychology Assistant Professor Ann E. Blankenship have published Volume 3 of the Education Law & Policy Review, serving as Guest-Co-Editors-in-Chief for this special double issue. The Education Law & Policy Review is a publication of the Education Law Consortium (ELC) in cooperation with the Education Law Association (ELA), the premier international education law professional association founded in 1954. It is a peer-reviewed law and policy journal providing scholarly reviews and commentary on national and international issues in education law and policy in K-12 and Higher Education, publishing leading law and policy research and analysis for use by scholars, policymakers, judges, lawyers, and educators.
This special double-issue of the journal is dedicated to the 50th Anniversary of the Elementary and Secondary Education Act of 1965 and the passage of the Every Student Succeeds Act in 2015. As scholars with backgrounds in policy and law, DeBray and Blankenship challenged both the education policy and law fields to generate fresh proposals for the ESEA reauthorization − to make recommendations for legislative changes that were grounded in research that could lead to improved educational practice. Preeminent scholars in education law and policy responded with thoughtful responses to the dramatic changes in ESSA and provocative ideas for improving education through incentivizing equity, strengthening mandates, and building capacity. All of these are viable strategies for attempting to leverage improved educational outcomes for students.
The issue is available electronically here and in print through Amazon. This issue features scholarship by Gary Orfield (UCLA and The Civil Rights Project), Jack Jennings (founder and former CEO of the Center on Education Policy), Megan Hopkins (University of Illinois-Chicago), Christine Malsbary (Vassar College), P. Zitali Morales (University of Illinois-Chicago), Emily Hodge (Montclair State University), Erica Frankenberg (Pennsylvania State University), Christopher Suarez (Williams & Connolly, LLP), Tina Trujillo (UC Berkley), Kara Finnigan (University of Rochester), Jennifer Jellison Holme (University of Texas at Austin), Nicholas Triplett et al. (University of North Carolina, Charlotte), and Benjamin Superfine (University of Illinois-Chicago).
Wednesday, April 6, 2016
The National Center for Mental Health in Schools in the Department of Psychology at UCLA has released its new report analyzing the Every Student Succeeds Act (ESSA) and how it does or does not address the barriers to learning and re-engaging disconnected students. It offers this summary:
The Every Student Succeeds Act (ESSA) recognizes that significant numbers of students require supports to successfully meet challenging state academic standards. This brief (1) analyzes the act to assess how it addresses the nature and scope of supports to address barriers to learning and re-engage disconnected students and (2) presents frameworks and prototypes for improving how schools provide student and learning supports.
The analysis finds the legislation clearly underscores that student and learning supports permeate efforts to enable every student to succeed. At the same time, the act muddies the nature and scope of such supports by scattering references to them throughout the various Titles, Parts, Subparts, and Sections. That is, by addressing barriers to learning in a piecemeal and mostly indirect manner, ESSA conveys a fragmented picture and a lack of coherence with respect to essential supports.
The shift to more local control is discussed as an opportunity for state and local stakeholders to escape the limitations of the federal act and move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success. As aids for systemic change, the brief highlights frameworks and prototypes for developing a unified and comprehensive system for addressing barriers to learning and teaching – with an emphasis on enhancing equity of opportunity for success at school and beyond. *This report is from the national Center for Mental Health in Schools
Its conclusions include:
• The legislation clearly underscores that barriers to learning need to be addressed so that many more students will be able to meet challenging state academic standards.
• At the same time, the act addresses such barriers in a piecemeal and mostly indirect manner.
• As a result, ESSA conveys a fragmented picture and a lack of coherence with respect to essential student and learning supports.
• Student and learning supports need to be unified and developed into comprehensive system if they are to significantly enhance equity of opportunity as an essential component in enabling every student to succeed.
• If states and LEAs are to move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success, they will need to use the transition to local control as a time to plan beyond the limitations of federal formulations.
It then proposes that policymakers begin "thinking out of the box" to produce "transformative system change. From this perspective, the report also highlights frameworks and prototypes that can be used as planning aids and guides in developing a unified, comprehensive, equitable, and systemic approach for addressing barriers to learning and re-engaging disconnected students."
Thursday, February 18, 2016
Acting Secretary John King Apologizes to Teachers; Can He Take Federal Policy in an Entirely New Direction?
I was skeptical when President Obama first announced John King as the Acting Secretary of Education. In his previous job as New York's Secretary of Education, King had been the subject of significant criticism and controversy. He was effectively run out of one town hall meeting in which he was promoting the state's adopting of common core standards. Coming out of that meeting, he cancelled his next four public appearances. This was not enough to keep organizations in New York from calling for King's resignation. His rise to the U.S. Department of Education, however, made perfect sense. He seemed like a guy committed to the administration's vision for education regarding testing, teacher evaluations, and common core standards. But I have to admit that in his new position King is showing signs of an entirely different vision.
Yesterday, he offered a somewhat stunning apology for the Department's actions over the past several years. As one media outlet reported:
In his first major speech, the acting U.S. Secretary of Education John King apologized to the nation’s teachers.
Speaking to a small group of teachers, students and local politicians here last month, just three weeks after taking over the post, King admitted the USA’s education debate over the past few years has been “characterized by more heat than light,” and that despite reformers’ best intentions, “teachers and principals, at times, have felt attacked and unfairly blamed for the challenges our nation faces.”
Monday, February 15, 2016
What Does John King's Appointment As Secretary of Education Have to Do with Justice Scalia's Vacancy?
On their face, they have very little to do with one another, but they intersect on one level. Given the fact that John King would serve less than a year as the official Secretary of Education, President Obama had indicated that he would not appoint King and put him through a confirmation process. Instead, King would just serve as the acting Secretary for the remainder of the President's term. But last week, prior to Justice Scalia's death, President Obama indicated he would nominate John B. King as Secretary of Education. The President's reversal was apparently spurred by Sen. Lamar Alexander (R-Tenn.), who chairs the Senate education committee. Senator Alexander urged the President to nomination King to the Senate, and apparently several other Senators committed to the President that King's nomination would receive speedy consideration.
Of course, appointing a Supreme Court Justice is entirely different, most notably lifetime appointment, but it may not take long for the two nominations to intersect. President Obama could use a quick confirmation process at this point in his presidency as a comparison if his appointment to the Court was being drug out. He could also point to the fact that Senate Republicans urged one nomination, but discouraged another without even knowing the nominee's name. This, however, may give opponents of the President's appointment to the Court reason to slow down King's nomination. If King slows down, a thousand different scenarios for King become possible. The only point here is that the Supreme Court is obviously the big prize, not King's nomination. This makes it possible that King's road to the Secretary may have become a little more complicated.
Monday, February 8, 2016
Louisiana to Drop Lawsuit Against U.S. Department of Education over Common Core, But Major Issues Remain over Secretarial Authority
Last week, Louisiana Governor John Bel Edwards indicated that he intends to end the state's legal challenges against the U.S. Department of Education regarding Common Core education standards. Former Governor Bobby Jindal had brought the original suit in 2014, arguing that the Department had unconstitutionally coerced states to adopt Common Core standards and tests through the Race to the Top Program. He later included the conditions the Department imposed on states to receive a No Child Left Behind waiver in his claims. This past fall, the federal district court rejected those claims, reasoning that there was no evidence to indicate that Louisiana had been coerced to adopt Common Core standards or tests. In full disclosure, I was a witness for the state in that case.
The immediate stakes of that litigation dropped precipitously when Congress reauthorized the Elementary and Secondary Education Act a little over a month ago in the form of the Every Student Succeeds Act. The practical result was to void the NCLB waivers. The Act also specifically prohibited the Secretary from imposing similar requirements on states in the future. As to curriculum and academic standards, states no longer even have to submit them to the Department and the Department cannot deny state applications based on the content of their standards. In numerous different provisions, the Act severely restricts the Secretary from doing much of anything that is not specifically enumerated by the statute. In other words, the new Act gives Louisiana much of what it had sought through the litigation. Given this reality, Governor Edwards indicated it was better to spend the money on education than litigation.
Friday, February 5, 2016
OCR Finds Melrose Schools Failed to Adequately Respond to Teacher's Statement That a Student Should Not Act Like He Is on the "Plantation"
The Office for Civil Rights has completed its investigation of racial harassment in Melrose Public Schools in Massachusetts and entered into a settlement agreement with the school system. The investigation arose out of allegations that a teacher at Melrose Veterans Memorial Middle School had reprimanded an African American student and made a reference to "the plantation" or needing to "come back to the plantation." When meeting with the administration later, the teacher indicated she could not remember exactly what she said, but it was something to the effect of "don't talk to me like you're on a plantation." Of special note is also the fact that the student was attending Melrose as part of Boston's METCO program. The program allows students from the city to attend suburban schools, with the purpose being to increase diversity.
OCR investigated the matter and confirmed the incident. It found that the administration did not document the incident, but the did arrange a meeting in which the teacher would apologize to the student. In the meeting, the teacher "apologized for any misunderstanding that may have upset the Student, and she also told the Student that he should not feel subservient to her or demean himself, and described the Student's 'coming [teacher]' comment as akin to a remark that a 'slave' would make to a 'master.'"
Thursday, January 28, 2016
As Derek reported earlier this month, the Every Student Succeeds Act addressed the growing movement for parents to opt out of standardized testing for their children, some because they believe the tests are being used improperly and others because of perceived poor design. Today, the Washington Post's Answer Sheet reports on the Education Department's recent letter warning states that if more than 5% of their students opt-out of state-chosen accountability testing, a portion of those states' Title I grant funding could be withheld. The Post article is here.
Friday, January 22, 2016
For those who missed it, Charles J. Ogletree and Kimberly Jenkins Robinson's edited volume, The Enduring Legacy of Rodriguez Creating New Pathways to Equal Educational Opportunity, is now out. The book examines the long-term impacts of the Supreme Court's refusal to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, detailing the extent of today's inequalities and connecting them to funding and segregation. It also poses important questions like whether funding equality alone would have been enough to ensure equal educational opportunity and whether state based reforms have filled the gap created by Rodriguez. The book closes with four chapters theorizing how the federal role in education today might be leveraged to address many of the lingering problems of Rodriguez.
In addition to chapters by the book's editors, it includes chapters by today's leading education and education law scholars: David Hinojosa, Camille Walsh, Michael Rebell, Amy Stuart Wells, David Sciarra, William Koski, Mildred Robinson, Genevieve Siegel-Hawley, Derek Black, and Erwin Chemerinsky. The book is a must read for those looking for a holistic update and overview of the status of school funding and the federal role in education. It could also easily serve as a major text for classes dealing with educational inequality. While focusing on one overall subject, it approaches a diverse array of issues from different perspectives that could easily carry a couple weeks of class.
Thursday, January 14, 2016
The Every Student Succeeds Act's Random Additions: Charter Schools, Data Collection, Testing Limits, and Discipline
My prior post detailed the Act’s new approaches toward academic standards and accountability, teachers, funding, and the federal role in education. The Act also included some other important changes and additions that do not fit into those categories. These changes are one-offs that look like bones thrown to various different and competing constituencies (which is probably true of a few of the progressive changes I noted last time). In other words, they are pet projects that helped the bill get passed. These changes include for charter schools, data, test validity, test opt outs, and school discipline
The act includes new competitive priorities for charter school grants. For those unfamiliar with the term competitive priority, it means that states or districts that include certain policies in their competitive charter school grant application will receive extra points in the assessment of their plan. As a practical matter, it makes it far more likely that they will receive a grant. It also makes it highly unlikely that states and districts that do not include those policies will receive a grant. In short, they are implicit mandates for those who want money.
So what are these special charter school policies? They are exactly what charter advocates have been lobbying states to do, often with little success. The priorities are for states that increase the number of entities in the state that can authorize new charters, states that give charters per pupil funding equivalent to that in traditional public schools, and states that give more robust support for charters in need of facilities.
Nothing really changed for magnet schools, and that is the point. Magnet school financial support and policy has been stuck in neutral for nearly two decades. By comparison, this means magnet schools are moving backward while charters rush forward. There is, however, one potentially explicit retrogressive addition for magnets. The Act seemingly requires or strongly prefers socio-economic integration over any other form of integration. Socio-economic integration is, of course, immensely important. The point here is the attempt to take race off the board—a position that the Bush Administration took, that the Obama Administration eventually retracted, and that has now resurfaced.
The Act requires states to collect and submit far more detailed data, and the new data it seeks is important: funding and teachers. This will be a boon to researchers attempting to drill deeper into problems of resource inequity.
Valid Tests (Potential Bombshell)
A provision of Title I indicates that states can only use the mandated tests for purposes for which they are valid. To most, this may read as no more than technical jargon, but it is potentially the single most powerful provision in the bill for those who would seek to block the misuse of tests. As I detail here, the tests on which states rely to run their teacher evaluation systems (value added models and student growth percentiles) are not valid for those purposes. Others have also long raised validity problems with certain states use of high stakes tests for student graduation and promotion as well. Who knows whether this was Congress’s intent, but the Act certainly would appear to have the effect of preventing states from using standardized tests for illegitimate purposes. The question that remains is whether individual teachers or students could rely on this provision in litigation or whether it is up to the Secretary to enforce this provision through the administrative process.
The Act gives parents the right to opt their children out of standardized tests. Opt-outs were big news last year, as large percentages of students refused to take tests in New York and New Jersey and the states scrambled not knowing whether the Department would hold this against the states. The Act now specifically indicates that these opt-outs will not count against the state in determining the percentage of students who took the tests.
Discipline: Bullying and Suspensions
Finally, the Act gives a big boost to progressive discipline policy. Previously, there was no such thing as general federal authority in regard to discipline. The only foothold had been in regard to racial disparities in discipline (pursuant to Title VI). The Act now specifies that states’ plans should include policies to reduce bullying, suspensions, and averse responses to student misbehavior. The bullying provision is, likewise, significant because it is not limited gender or race based bullying--a big stumbling blocking in past enforcement efforts. To be clear, however, this discipline provision operates within the larger structure that offers states’ enormous autonomy in their plans and severely limits the Secretary’s ability to reject a state plan.
Tuesday, January 12, 2016
The Every Student Succeeds Act: Eliminating Accountability, Handcuffing the Department of Education, and a Few Good But Optional Ideas
After having finally digested the new version of the Elementary and Secondary Education Act—the Every Student Succeeds Act—my overall appraisal is that the Act represents two steps back and half a step forward. The steps backward are in regard to federal leadership, high expectations, and accountability. The half steps forward are on various points that civil rights and other advocates have pressed for a decade or more. But they are only half-steps because these civil rights “advances” are optional rather than mandatory. Thus, they are more accurately “ideas” for states to consider, not actual advances students can expect to see. Nonetheless, being ever the optimist, the very act of raising the ideas has the potential to prove important a decade for now when the Elementary and Secondary Education Act is again due for reauthorization. It was, after all, the soft version of testing in the 1994 reauthorization (Improving America’s School Act) that paved the way for the 2002 reauthorization’s (No Child Left Behind Act) aggressive testing and accountability systems.
The easiest way to digest the new Act is to think specifically about what has changed and what has stayed the same. A number of major things did remain the same:
- The federal financial stake in education remained relatively flat. The new bill included a $500 million bump for Title I, but in the larger scheme, the increase is minor. In 2002, NCLB included a major initial boost for Title I, which is what made the Act happen. That no significant new funding is in the current Act may be a sign of how little progressive actions it contemplates.
- The funding formulas through which Congress allocates Title I funds to states remained in place. Senator Burr had managed to get an amendment to the formulas into the final Senate bill, but it did not make it through reconciliation with the House. More on this later.
- The major aspects of the federal testing regime remain in place. States must test students in the same subjects (math, English Language Arts, and science) per the same schedule and frequency as was found in NCLB. States and districts must also stick to the same reporting and demographic disaggregation as before.
- The highest level articulation of the academic standards that students must meet remains the same: “challenging.” This was somewhat of a surprise given how maligned this phrase had been for its inability to ensure states adopted rigorous standards. As discussed later, the bill indirectly addresses this issue in a new subsection that pegs “challenging” to career and college readiness.
The Act changed far more than it left the same. Major changes were made to the substance and mechanisms for Accountability, the regulation of teachers, funding, and the Secretary and Department’s powers.
As to the substance and mechanisms for accountability, the shift is from federal command and control to nearly complete state autonomy:
- The metrics for whether states are offering quality education and ensuring sufficient student progress are now within the control of states. While the bill pegs “challenging” academic standards and assessment to college and career readiness, states do not have to actually submit the standards to the Department. They need only give the Department assurances that their standards are challenging. And as discussed later, the Secretary is extremely limited in objections he can raise to states’ education plans.
- In terms of assessing student progress on standards, states must still consider test results, but states can afford as little weight to test results as they want and they can include almost any other metrics of academic progress and educational quality as they want (student engagement, teacher engagement, attendance, etc).
- NCLB required that all students be proficient by 2014-15. That standard is go and is now replaced with anything, which is to say states can set their own progress goals.
- NCLB also mandated particular interventions when schools failed to make adequate yearly progress toward full proficiency. By 2012, this meant that eighty percent of the nation’s schools were facing some sort of sanction. Under the new bill, sanctions are few and far between. Only those schools performing in the bottom 5% of the metrics that the state chooses will be subject to intervention and the particular interventions will be within the discretion of the state. Equally notable is the fact that the portability of Title I funds for students attending a bottom 5% school did not make the bill. In fact, the mandatory option of transfer (with or without funds) which was in NCLB is not in the current law.
Changes for teachers are simple because there is almost no regulation of teachers at all in the law.
- The requirement that all teachers of core subjects be high quality is gone.
- Now states need only ensure that teachers are certified, but this includes alternative certification, which I read as meaning that if the state is willing to give some a piece of paper to teach, the person is certified. This, of course, has been a huge problem with recent teacher shortages.
- During the waiver process, Secretary Duncan had mandated “effective” teaching, which was largely measure by a teacher’s students’ test scores. No such requirements exist in the new law.
Funding and Fairness
The most interesting developments in the law may be in regard to school funding. While funding itself remained flat and the formulas went unchanged, the law included a tremendous amout of flexibility in how states spend federal dollars. It also included a lot of progressive ideas about funding, although the adoption of the best of these ideas is entirely discretionary. The bureaucratic and technical changes in funding include:
- The law consolidates a lot of federal funds, issues more in the form of block grants, and lets states determine exactly how much they will devote to particular programs, activities, and schools.
- The option to be treated as a “whole school,” meaning that Title I funds can be spent on activities that benefit the whole school not just low-income students, became a lot easier. Any school with 40% or more low income students can be a “whole school,” but even those falling below that threshold can apply for a waiver under a relatively lenient standard.
- The federal requirements that states maintain their financial effort from the prior year and that federal dollars supplement, not supplant, local dollars have long been criticized as ineffective. The new law changes both standards, looking at a 2 year period on maintenance of effort rather than a 1 year period, and requiring states to affirmatively establish they have not supplanted local funds. Whether either of these will be effective is unclear. The language reads more specific than prior versions, but is still permissive in its general approach.
The eye-popping changes (for me) in funding include:
- A requirement that states assess and address resource inequity in those bottom 5% schools it identifies. This also includes the ability to use school improvement grants (which is now a bigger pot of money) to address those resource inequities. Ideologically this is huge line for the federal government to cross and provides a potential stepping stone for later expansions. Unfortunately, it only applies to intra-district resources and only to a small fraction of schools. In other words, it leaves untouched the much bigger issues that get litigated in school finance cases. Nonetheless, it does address an important loophole on comparability of resources that I have long criticized. See here.
- The law also includes a pilot program to support districts that want to adopt weighted student funding. This would help districts account for the varying costs of different demographic student groups and their needs. Again, this is what school finance litigation demands. The problem, however, is also the same: it applies only intra-district and to a small group of districts. Even more problematic, the program relies on voluntary applications by districts.
- The law responded to a decade of criticisms of the irrationality of the Title I funding formulas. See my criticisms here. It does not mandate a change to the formulas, but if funds a professional evidence-based study of the formulas to determine who they advantage and disadvantage. The study will propose changes to the formula if necessary. Whether those proposals are adopted are anyone’s guess. Normally I would guess no, but much to my surprise, Senator Burr did manage to get a change to the formulas approved in the Senate bill (although it did not make the reconciliation bill). Plus, the formulas are so irrational that they do not favor red or blue states, which makes change at least plausible.
- The law maintained President Obama’s commitment of $250 million for pre-k. Our schools, of course, need far more than that, but it is important that this was not cut out of the bill.
- Finally, the bill included a teacher pay-for-performance grant. I had thought this issue was going away, but maybe keeping it was part of the deal struck for doing away with teacher evaluation systems.
Finally, the Secretary of Education was reduced to a line worker. I argued here that Secretary Duncan lacked the statutory authority to impose the various conditions he attached to NCLB waivers and that to give a Secretary the ability to impose those sort of open-ended policy objectives would have been unconstitutional. Someone must have agreed with me because no such powers exist in the current law. The problem, however, is that this law overreacts to NCLB waivers, making this as much about Arne Duncan as it is about the proper role of the Secretary. To say the Secretary should not act beyond his or her statutory and constitutional power is not to say the Secretary should have no power at all. Yet, that is what this law does. Under the law now:
- The statutory bases upon which the Secretary can reject a state plan are very narrow.
- If the Secretary plans to reject a state plan, the Secretary must specifically articulate the statutory basis and justify it.
- After this, the state will get an opportunity to respond and resubmit. If the Secretary rejects the plan a second time, the state is entitled to a hearing.
- In some instances, if the Secretary does not specifically reject a state plan within the required time frame, the law will treat the Secretary as having accepted the plan.
- The Secretary cannot review or request changes to state’s academic standards. In other words, the whole common core standards/curriculum mess that came from the NCLB waiver is prohibited.
- The Secretary cannot place conditions on state applications or consider criteria in making decisions that are not within the scope of the conditions and considerations of the Act itself. As I argued here, this was the fatal flaw in the NCLB waivers that render the conditions Duncan imposed beyond his statutory authority.
- Nor can the Secretary attempt to indirectly achieve any of the forgoing prohibited objectives through policy guidance.
In short, the law sets up a system in which the presumption is that the states will get exactly what they want they want in their state plans and grants. If somehow the Secretary manages to find a way to say now, a state will get multiple additional bites at the apple.
Size of the Department of Education
In conjunction with implementing the new provisions, the law directs the Secretary to specifically look at the work done and not done, needed and not needed, report on those findings, and reduce the size of the Department accordingly. A smart Secretary can likely work around this, but this is clearly an attempt by Congress to shrink not just the power but the size of the Department, which presumably would further shrink its power.
Finally, the law includes lots of interesting and important additions that I would term as random rather than structural. Those changes address charter schools, data, parents, and school discipline. I will, however, leave those issues for later in the week.
Friday, December 11, 2015
Congress Again Fails to Tackle Equity in Revised Federal Education Law by David Sciarra and Molly Hunter
On December 9, 2016, Congress passed a bill reauthorizing the Elementary and Secondary Education Act (ESEA), and President Obama signed it today. The new "Every Student Succeeds Act" (ESSA) retreats somewhat from excessive high-stakes testing, and eases up on sanctions and labels for schools, teachers and students. Overall, the law moves away from narrow federal mandates on testing and accountability, leaving states to their historic and central role in educating our nation's public school children.
But once again, Congress has failed to confront the central problems that plague most of our 50 separate state school systems.
The new law, like the "No Child Left Behind" Act (NCLB) it replaces, gives the States free reign to continue the vast and debilitating inequities and disparities in their school systems. For our nation's most vulnerable children, ESSA is "same as it ever was."
Most states are shortchanging schools the funding and programs needed to give all children the chance to succeed, especially the growing numbers of children in poverty in districts and states across the country. Millions of children in our state systems attend schools deprived of the teachers, support staff and other resources essential to learning. Only a handful of states have made the effort to overhaul their finance systems to deliver those resources to schools and students most in need.
Congress could have required the states move away from funding schools based on dollars and politics to providing students and schools the resources necessary to achieve academically. Congress could have required states to build capacity to deliver high quality supports to,font help high risk schools and districts to improve. And Congress could have taken bold action to press states to dramatically expand access to high quality early education to give at-risk youngsters the opportunity for school readiness. Congress received these recommendations from the federal Equity Commission in 2013 but chose to ignore them.
Parents and advocates deserve credit for pushing Congress to retreat from NCLB's extreme test and punish provisions. But with the states now firmly in the education driver's seat, parents and advocates must turn their attention to their statehouses. Parents and advocates must now build strong campaigns for education equity in every state, demanding governors and legislators provide fair funding, support high poverty schools, and offer high quality preschool to every vulnerable three- and four-year old.
ESSA, like its NCLB predecessor, will do little to help every student succeed. But every student matters. It's time to let the state lawmakers responsible for our public schools know.
David G. Sciarra is the Executive Director of Education Law Center (ELC). Molly A. Hunter is Director of Education Justice at ELC.
Thursday, December 10, 2015
I cannot recall any week, much less a single day, in education that carried two events as momentous as yesterday. The Senate passed the rewrite of the Elementary and Secondary Education Act (ESEA) by a vote of 85-12, which sends the bill to the President's desk, who will unquestionably sign it. At long last, No Child Left Behind will be no more. I will have far more to say on the substance of the bill in the coming weeks and months ahead. For now it suffices to say that if NCLB and the Secretary's waivers federalized education, this new bill has defederalized it. That is not to say that change was not in order. It is to say that this change significantly changes the federal role in education.
While Congress was signing off on the ESEA, the Supreme Court was arguing over the future of affirmative action in education, and I do mean the Supreme Court was arguing, not just the litigants. Apparently, the Chief Justice felt compelled to cut Justice Sotomayor's questioning off twice because she was not permitting Fisher's attorney to finish his response to questions. Given how Fisher I turned out, I will not attempt to read the tea leaves. I will only say that I thought the demise of affirmative action was greatly exaggerated in advance of that case. I have faith the same is true this time. That does not mean, however, the result in the case will be satisfactory. I doubt that even more. I would expect a compromise as tortured as the one we see in the ESEA rewrite. Read the oral argument transcripts here.
Monday, November 16, 2015
After languishing for the entirety of the Obama presidency, Edweek reported late last week that the House and Senate have reached a preliminary agreement to reauthorize the Elementary and Secondary Education Act, replacing the defunct No Child Left Behind accountability system. Alyson Klein offers a nice summary of the big points, so I will not repeat them, but I would emphasize those big issues that were in doubt.
First, Title I funds are not going to turn into a voucher system whereby students can take those funds wherever they want. This was the holy grail for many Republicans (at least those that have sought national attention). Second, there were some changes to the funding formula. Title I formulas are so complex that it is hard to comment on what the new ones will do until we actually see them, but the old formulas are so irrational that I would venture to speculate that any change is likely to be a step forward. You may recall that a change to the formula was the very last amendment to slide into the Senate bill. Any change to the formula would necessarily create winners and losers (unless the overall financial pot was expanded), which made change highly unlikely. That we are getting some change, however modest, is a nod responsible lawmaking. Finally, the bill severely restricts the Secretary of Education's discretion--a smackdown reaction to Secretary Duncan's executive overreach through the NCLB waivers. While I have been highly critical of the waivers, this may very well be an overreaction. If the Secretary confronts unforeseen circumstances that demand a solution, dealing with it may require Congressional action. At that point, we can only hope a functional Congress will be in office.
Monday, October 26, 2015
On Friday, the Obama administration took a significant ideological step. After more than a decade and a half of increased standardized testing--what many call drill and kill--the administration has called for a cap on the amount of time public school students spend on taking tests. Students would spend no more than two percent of instruction time taking tests. The administration's goal is to for Congress to reduce "over-testing" in the reauthorization of the Elementary and Secondary Education Act.
On the other hand, it is pretty easy to be against "over-testing" and the administration is arguably late to the game. A national opt-out of testing movement has been growing in strength for the past few years. "Parents, students, educators, your voice matters and was heard,” said Randi Weingarten, the president of the American Federation of Teachers. As discussed here, so many opted out in New York that the state worried its federal funding would be in jeopardy.
What is far less clear, and probably more important, is how reduced testing will be coordinated with the administration's other policies on teacher evaluation and student progress. Regular and detailed tests are the fuel that makes those policies run. This announcement may be a concession that those policies are also flawed, but focusing on over-testing as the enemy may be the means by which to save face as policy moves in a different direction.
Wednesday, October 14, 2015
Texas and South Dakota's No Child Left Behind waivers are safe, at least, for one more year, but the U.S. Department of Education has put them both on high risk status. The problem for both states is their teacher evaluation systems, which are not measuring up the Department's demands. Interestingly, Texas indicates it has no intent of meeting the Department's demands. The state's education commissioner said:
Throughout the waiver application process, I have made it clear to federal officials that I do not have nor will I ever seek the authority to compel local school districts to use one uniform teacher and principal evaluation system statewide. . . . Our state believes strongly in local control of our schools. As a result, we will continue discussing this specific point with the U.S. Department of Education, but they should not expect any shift in Texas' position.
Whether either state will suffer consequences for the position is not entirely clear. When the waiver process first began in 2011-12, Arne Duncan was inflexible in the conditions he placed on states. Either comply with his conditions or face sanctions under NCLB. This worked terrifically in getting all the states that actually needed waivers in line very quickly. They all promised to do exactly what Duncan demanded. Since then, a lot has changed.
Friday, October 2, 2015
In case you missed it, Arne Duncan released this announcement today:
I'm writing to tell you two things. First, what is for me some bittersweet news: after several months of commuting between my family in Chicago and my job here in DC, I have made the decision to step down in December.
Second, and very happily, President Obama has asked our delegated Deputy Secretary John King Jr. to step into my role when I leave. An announcement to that effect went out from the White House a few minutes ago. President Obama will give a press conference on the transition at 3:30 this afternoon, and you’re invited to watch the live stream.
Serving the President in the work of expanding opportunity for students throughout this country has been the greatest honor of my life. Doing so alongside people of the brilliance, ability and moral conviction of the team here at ED has been nothing short of thrilling. We have been lucky to have an amazing team here from Day One, but I honestly believe our team today is the strongest it’s ever been. So it's with real sadness that I have come to recognize that being apart from my family has become too much of a strain, and it is time for me to step aside and give a new leader a chance. I haven’t talked with anyone about what I’ll do next, and probably won’t for a little while – I’m simply returning to Chicago to live with my family. I imagine my next steps will continue to involve the work of expanding opportunity for children, but I have no idea what that will look like yet.
Thursday, September 24, 2015
Last week, the federal district court in Jindal v. U.S. Department of Education denied Jindal's motion for a preliminary injunction. Jindal had sought to enjoin the Department's Race to the Top Program and its No Child Left Behind waivers. Jindal argued that the Department's support for the Common Core Curriculum through these programs violated the 1oth Amendment and a federal statute that prohibits the Department from dictating curriculum. The district court rejected both arguments.
Before going into my analysis, I must, in full disclosure, state that Jindal retained me as an expert in the case. It was just two months before the case went to trial and long after I had completed my article, Federalizing Education by Waiver?. In fact, I completed my article before Jindal filed his case, which I only learned about in the news. My testimony was little more than a recitation of my article. Regardless, I clearly have an opinion on this case. With that disclosure, I offer the following.
Thursday, September 17, 2015
The Huffington Post reports on an ED notice extending its information-gathering efforts about possible borrower's defenses for student loan debt from non-traditional or unaccredited post-secondary schools. With the recent troubles of some for-profit schools, including the massive Corinthian College network, the Obama administration has been looking for avenues of debt relief for students of those institutions. In its September 17 notice, the ED seeks continued collection of information from borrowers who believe they have cause to invoke the borrower defenses against repayment of a student loan as noted in regulation 34 CFR 685.206(c)(i) which states in part that “[i]n any proceeding to collect on a Direct Loan, the borrower may assert as a defense against repayment, an act or omission of the school attended by the student that would give rise to a cause of action against the school under applicable State law.” The ED notes that "[p]rior to 2015, the borrower defense identified above was rarely asserted by any borrowers and no specific methods of collecting information was defined or found necessary," prompting, Huffington Post writer Steve Rhode writes, "clever attorneys to show how the schools violated state unfair and deceptive practice laws and that could possibly lead to an elimination of the student loans in full." Read the story at the Huffington Post here and the ED's notice here.
Monday, September 14, 2015
Sixteen states received approval Thursday of their plans to improve access to high-quality teachers, as required under the No Child Left Behind law. The ED approved the first batch of states (all 50 states, the District of Columbia, and Puerto Rico submitted plans) as part of its "Excellent Educators for All Initiative." The ED approved locally-developed plans to improve access to effective educators from Arkansas, Connecticut, Delaware, Indiana, Kentucky, Massachusetts, Maine, Missouri, Minnesota, New York, Nevada, Oklahoma, Rhode Island, Pennsylvania, South Carolina, and Wisconsin. Recognizing that attracting and retaining effective teachers also requires effective leadership, the ED praised states' strategies to attract strong school leaders, stating its press release that "great teachers will follow great principals." The ED's release about the initiative is here.