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.
Thursday, July 17, 2014
The Oklahoma Board of Education brought suit claiming that the legislative repeal of Common Core in the state violated the Board's constitutional authority over the "supervision of instruction in the public schools." On Tuesday, the state supreme court heard oral arguments in the case. Four hours later, they issued their decision, Pack v. State, remarkable in its brevity. It stated the issue in one sentence, declared jurisdiction over the case in two sentences, and reached its holding in one sentence: "HB 3399 does not violate art. 13, §5 or art. 4, §1 of the Oklahoma Constitution."
Tuesday, July 15, 2014
Per my early posts, opting out of Common Core and keeping a No Child Left Behind waiver is no easy chore. As a new Edweek article details, those states that opted out are working with a very short deadline for coming up with an alternative to the Common Core. Given the complexity of developing academic standards, they cannot really do that within their current time frame. The easy option for some is to adopt the Common Core, with slight revisions, under a different name. This allows politicians or state departments of education to create the illusion that they rejected the Common Core. South Carolina's legislature, however, claims to even reject that illusion. Their legislation indicates that if the state department of education adopts any curriculum that was not created locally--"home grown"--the legislature itself must approve the curriculum.
Posturing aside, the practically reality appears to be that the "opt-out" states will operate under a curriculum that mirrors the Common Core in the immediate future and reserve major changes for a future multi-year process. Even then, they are likely to only make those changes necessary to be able to claim that their curriculum is not the common core.
Monday, July 7, 2014
The U.S. Department of Education announced its Excellent Educators for All Initiative today. The purpose is to help ensure equitable distribution of quality teachers.
“All children are entitled to a high-quality education regardless of their race, zip code or family income. It is critically important that we provide teachers and principals the support they need to help students reach their full potential,” U.S. Secretary of Education Arne Duncan said. “Despite the excellent work and deep commitment of our nation's teachers and principals, systemic inequities exist that shortchange students in high-poverty, high-minority schools across our country. We have to do better. Local leaders and educators will develop their own innovative solutions, but we must work together to enhance and invigorate our focus on how to better recruit, support and retain effective teachers and principals for all students, especially the kids who need them most.”
The three-part Excellent Educators for All Initiative includes:
- Comprehensive Educator Equity Plans
- The Department is asking states to analyze their data and consult with teachers, principals, districts, parents and community organizations to create new, comprehensive educator equity plans that put in place locally-developed solutions to ensure every student has effective educators.
- Chief State School Officers will receive a letter today from Secretary Duncan asking them to submit their new plans by April 2015. These plans were first created in 2006 and are required by Title I of the Elementary and Secondary Education Act.
- Educator Equity Support Network
- The Department is investing $4.2 million to launch a new technical assistance network to support states and districts in developing and implementing their plans to ensure all students have access to great educators.
- The network will work to develop model plans, share promising practices, provide communities of practice for educators to discuss challenges and share lessons learned with each other, and create a network of support for educators working in high-need schools.
- Educator Equity Profiles
- To empower communities and help states enhance their equity plans, the Department will publish Educator Equity profiles this fall. The profiles will help states identify gaps in access to quality teaching for low-income and minority students, as well as shine a spotlight on places where high-need schools are beating the odds and successfully recruiting and retaining effective educators.
- In addition to the profiles, the states will receive their complete data file from the Civil Rights Data Collection (CRDC). States will be able to conduct detailed analyses of the data to inform their discussions about local inequities and design strategies for improving those inequities.
For more information, see here.
Wednesday, July 2, 2014
Washington state lost its No Child Left Behind Act waiver earlier this year for failure to meet the conditions initially imposed on it by the Department of Education. Without a waiver, Washington remains subject to the original provisions of NCLB, under which most Washington schools are in violation for failure to make Adequate Yearly Progress (AYP) on standardized exams. Various sanctions kick in for these schools. One of the initial steps is simply to notify parents that the school failed to may AYP. This notification, however, would also inform them of their right to transfer to another school.
The state superintendent of public instruction is asking the U.S. Department of Education to waive that requirement. He says sending out the letters would be pointless because nearly every school in the state will fail to make AYP and the letters would do nothing more than undermine "public support for education."
The Department's response is going to be interesting. On one hand, waiving this requirement looks like a no-brainer. On the other, Washington has already failed to meet the terms of its prior waiver. If the Secretary gives an inch on a second waiver, it may create precedent for Washington and other states to ask for slightly larger waivers next time. As a practical matter, slightly larger waivers may also make sense, but they rund counter to the Department's national effort and success in imposing stringent policy conditions in exchange for big waivers. In the instant case, Washington is asking for a small waiver, but offering nothing in exchange.
Friday, June 27, 2014
In its June 26 newsletter update, the Poverty and Race Research Action Council offered the following in regard to the Department of Education consideration of diversity in competitive grant programs:
In 2010, the Department of Education approved a series of funding priorities that could be included as incentives or threshold requirements in Department competitive grant programs - including a priority for promoting racial and ethnic diversity in schools. However, since the priority was approved, it has not appeared in most competitive grant funding notices, with the exception of the charter school notices, where it has been a fairly weak incentive, as compared to program incentives to maximize the number of low income children. This week in the Federal Register, the Department has proposed a set of revised funding priorities, including a revision to the diversity priority that includes socioeconomic diversity (in addition to race/ethnicity). We welcome this development insofar as it signals that the Department will now begin utilizing the diversity priority in all of its K-12 grant programs. However, we are concerned that it could represent a retreat from the Department's stated commitment to racial diversity - and we will be watching how this plays out in the next round of funding notices. Economic diversity is related to and complementary to racial integration in schools, but the two goals are not interchangeable.
The Department of Education's Federal Register notice is here.
Friday, June 20, 2014
In my previous posts, I noted how pulling out of Common Core does not pose a per se threat to NCLB waivers. States do, however, have to replace Common Core with a functional equivalent to meet the conditions of their NCLB waivers. The problem is that coming up with a functional equivalent at this late stage in the process is nearly impossible. Thus, in practical terms pulling out of Common Core would poses a serious threat to a state's waiver. Are states really pulling out of Common Core? In South Carolina, the answer is no.
South Carolina appears to be playing a game of spin. One state senator states, "We’re getting out of Common Core and will write our own standards.” But another senator says, “The spin is that we did away with, abolished, Common Core. We didn’t do anything to it this year other than move up in time the cyclical review, probably to the detriment of the review.” The State newspaper reports "[t]he compromise law essentially steps up a review process that would have occurred anyway. It calls for the panel to review current math and reading standards, which are Common Core."
South Carolina's Education Oversight Committee Director explains that it takes two years to write new standards and there is no way that can be done now. Instead, Common Core will be tweaked. What we will see in South Carolina are standards that look very similar to the Common Core, but are called something else. I am guessing that will be good enough to keep both the Common Core detractors and the U.S. Department of Education happy.
Tuesday, June 10, 2014
Does Arne Duncan read my blog? Absolutely not (although hopefully at least one person in the Department does). But a few hours after my blog post yesterday, he did answer the question I posed in it. He indicated that Oklahoma (and by extension South Carolina) was not at risk of having its NCLB waiver or funding revoked as a result of pulling out of the common core. That does not, however, negate the next step. Per my comments yesterday, those states still must come up with an alternative to the common core or they will find themselves in trouble.
Monday, June 9, 2014
For the most part, I have avoided posting on the common core because the controversy has practically involved a 24 hour news cycle over the past several months, and most of it was politics and activism, not law. Now it is becoming law. Over the past two week, Oklahoma and South Carolina's governors signed laws pulling their states out of the Common Core State Standards initiative. They joined Indiana, which had officially withdrew from the common core earlier. Florida is reportedly considering pulling out as well.
For educators, the Common Core is a matter of pedagogy and curricular content. But these pull-outs also have potentially serious legal consequences, meaning the issues is equally important for bureaucrats and lawyers. The No Child Left Behind waivers granted last year were conditioned on states adopting academic standards that were benchmarked across states, rather than just within states. Adopting the Common Core met that condition. States pulling out must find an alternative. To my knowledge, there is not one readily available, meaning their waivers may be in jeopardy in the future.
Tuesday, May 27, 2014
Last month, OCR reached two significant settlement agreements. The first was with New Hampshire’s Manchester School District, School Administrative Unit #37. The settlement agreement was in response to tracking and unequal access to college and career preparatory courses for black and Latino students. The most stark disparities were in the district’s AP courses. "Despite the enrollment of 381 black students and 596 Latino students at the high schools, only 17 seats in AP classes went to black students and only nine seats in AP classes went to Latino students, out of the total of 434 seats in AP courses. At two of the three high schools, there were no Latino students enrolled in the AP courses." OCR found a number of structural barriers in the district's policies that lead to these disparities. The district agreed to several steps to address the disparities, the most notable of which were:
- Identify and implement strategies subject to OCR review and approval to increase student participation in its higher-level learning opportunities, particularly for underrepresented groups such as black, Latino and ELL students.
- Consider increasing the numbers and types of courses, adding more teachers qualified to teacher higher-level courses and revising selection criteria for enrollment in higher level learning opportunities if these are barriers to increased participation.
- Specifically assess the impact of assigning students to academic “levels” upon arrival at the high schools on their participation in higher-level learning opportunities, and consider eliminating the system of student assignment to levels or altering the current criteria or method of implementation.
- Specifically consider eliminating the GPA and class rank penalties associated with withdrawing from higher-level courses.
- Provide increased support for students enrolled in higher level learning opportunities through counseling, peer support groups and tutoring.
The other settlement agreement was with the Hazleton, Pa., Area School District. OCR found that English Language Learner (ELL) students in the district did not have access to equal educational opportunities and that the district was not adequately notifying their parents of information made available to other parents in English. More than 10 percent of Hazleton's students are ELLs, which would suggest a scale that should have allowed the district to operate a more robust program, but OCR found that the district was inappropriately excusing students from the English language development program, not providing the required instructional time for over 240 elementary school ELL students, not evaluating the effectiveness of its program, and not using an effective system to identify and communication with limited English proficient parents. The district agreed to take the following steps:
- Ensuring that students whose primary home language is not English will be promptly assessed for English language proficiency to determine eligibility for placement in an English language development program and that students will not be improperly exempted from assessment;
- Assessing students who were improperly exempted from language proficiency assessment to determine whether they may be eligible to receive English language development services;
- Conducting a comprehensive evaluation of the English language development program at each school level to determine its effectiveness and making modifications to address areas where the program is not meeting the district’s goals;
- Developing and implementing policies and procedures to ensure that LEP parents are notified, in a language they understand, of school activities that are called to the attention of other parents; and
- Providing training to appropriate staff on procedures for identifying language-minority parents and on policies and procedures for serving language minority parents.