Tuesday, December 13, 2016
Two big challenges will face advocates in dealing with the Department of Education in the coming years: 1) insisting that it enforces civil rights law and 2) stopping it from excesses of power. Advocates will have relatively few tools in their bag to force the Department to do its civil rights job, but they will have clear statutory language and powerful precedent on its side to stop the Department from going beyond its job. On this second point, one need look back no further than the recent controversies surrounding the No Child Left Behind Act (NCLB).
In the process of writing Federalizing Education by Waiver?, I spent a good deal of time worrying about whether I was being fair in my assessment that Secretary Duncan had exceeded his power in imposing various conditions on the statutory waivers he began granted under NCLB. To be honest, when he initially rolled the waiver process out in 2012, I paid almost no attention. The process was bureaucratic, something had to be done to avoid the sanctions that NCLB would have required, and almost anything seemed better than the decade of high stakes testing our schools had endured. I saw little need to crack open the statute and seriously consider the matter.
Common Core, as a matter of substance, did not pique my interest either. Lesson plans and what is actually taught in K-12 curriculum goes beyond my expertise. I found the new teacher evaluation systems curious primarily because they relied so heavily on the standardized tests everyone had railed against for years, but the systems were so complex that, again, I did not dig deeper. It was really only the growing power of the Secretary between 2012 and 2014 and the sense that he might just do anything he wanted in elementary and secondary education that finally gave me pause. And it was because I was generally neutral as to the substance of his policies that I reassured myself that my conclusions were sound and I was not simply crying foul because I disliked his policies.
My conclusions in Federalizing Education by Waiver? and proscriptions for the future seem all the more valid and important now. The point of the article was to take executive power seriously, even when your friends are the ones exercising it, because some day some one other than your friends may exercise it. And the best way to maintain credibility in calling out those with whom you disagree is to call out your friends for the same thing. So while the NCLB waiver process and the legal issues it raised seemed to fade into nothing last year when Congress replaced NCLB with the Every Student Succeeds Act, I am glad I wrote the article (and later testified against the department). And the importance of statutory text and the limits it places on executive power remain crucially important to those who may disagree with the privatization model that Trump administration intends to pursue.
As I wrote yesterday, it is not clear that Betsy DeVos really knows what her job is and what its limits will entail. Should she secure the job, I hope that her general counsel will read the Every Student Succeeds Act carefully and advise her as to what it makes abundantly clear: the Secretary now has very limited power and will serve more as a figure head and paper pusher than anything else. If she attempts more than this, Republicans should challenge her use of executive power as forcefully as they did that of the prior administration. Surely, Democrats will be right beside them.
This time around, I clearly disagree with the substance of the policies the administration is proposing. But if DeVos, or any one else, seeks to impose or cajole them through the Every Student Succeeds Act, I will oppose them because they are beyond the Department's power.
Monday, December 12, 2016
It is not clear whether Betsy DeVos really knows what her job will be as Secretary of Education or if she is just blowing smoke like the person who nominated her. She is telling news sources that she will put the brakes on the Common Core. “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.”
The truth is that Congress has already gutted the Common Core and shifted enormous control back to states and districts. The Every Student Succeeds Act bars the Department of Education from requiring or even suggesting that a state use the Common Core. The Act is so anti-Common Core and anti-federal standards that I could imagine DeVos and her staffers getting in trouble if they even brought the subject up. The Act prohibits the Department from engaging states on their academic standards altogether, allowing states to submit a self-attested letter to the Department that their standards are challenging. The point is to prevent the Secretary from monkeying with academic standards in any respect.
The limits on the Secretary and the Department, however, go much deeper than this. As I write in the introduction to Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (forthcoming),
On December 10, 2015, the [Elementary and Secondary Education Act (ESEA)] lost its historic way. Congress reauthorized the [ESEA] under the popularly titled bill the Every Student Succeeds Act (ESSA). To the delight of most, the ESSA eliminated the punitive testing and accountability measures previously dictated by the No Child Left Behind Act (NCLB). But in the fervor to end NCLB, few stopped to seriously consider the wisdom of what would replace it. The new Act, ESSA, moves education in a direction that would have been unthinkable just a few short years ago: no definite equity provisions, no demands for specific student achievement, and no enforcement mechanism to prompt states to consistently pursue equity or achievement themselves.
The ESSA reverses the federal role in education and returns nearly full discretion to states. Although state discretion in some contexts ensures an appropriate balance of state and federal power, state discretion on issues of educational equality for disadvantaged students has proven particularly corrosive in the past. Most prominently, states and local districts vigorously resisted school integration for two decades, and sometimes longer, following Brown v. Board of Education. In fact, it was this resistance that made passing the Elementary and Secondary Education Act necessary in 1965. State resistance to equality, however, is not limited to desegregation, nor a remnant of the past. Over the last decade, states have made large cuts to education funding and refused to reinstate funding even as their economies improved. The effects of these cuts have often hit low-income and minority school districts hardest. This regression marks a troubling new era in which states are willing to flaunt their state constitutional duties to deliver adequate and equal educational opportunities.
Although the ability for states to adapt solutions to local needs is important, complete discretion also opens the door to ignoring the Education Act’s historical mission of equal opportunity and supplemental resources for low-income students. The ESSA’s framework will, in effect, reduce equal educational opportunity to a random occurrence rather than a legal guarantee. First, the ESSA grants states near unfettered discretion in creating school performance systems and setting goals. States are free to assign almost any weight they see fit to test results, as well as consider any number of other soft variables to counterbalance the weight of tests. With this discretion, as many as fifty disparate state systems could follow. Second, even assuming states adopt reasonable performance systems, the ESSA does not specify the remedies or interventions that states must implement when districts and schools underperform. Third, the ESSA undermines several principles that have long stood at the center of the Act’s mission to ensure equal and adequate access to resources. In particular, the ESSA weakens two major equity standards and leaves a major loophole in a third one that, in effect, exempts 80 percent of school expenditures from equity analysis. To make matters worse, Congress left federal funding flat and afforded states more discretion in spending existing funds.
In other words, what DeVos and Trump claim they want to do in education has already been done. And because the Secretary is so weakened under the Every Student Succeeds Act, all the other stuff they want to do is beyond their power. Moreover, there with be no waiver process this time around that allows the Secretary to impose new conditions or policy items on states. Congress made sure of that when it revised the Act. So if DeVos and Trump want to push more charters and vouchers, they are going to have to get Congress to pay for it through new legislation. That means selling an idea that works, not exercising the existing power of the Department.
Get my full analysis of the Act here.
Friday, December 9, 2016
Office for Civil Rights Releases Annual Report and Reflections on Past Eight Years, Citing Accomplishments and Lingering Challenges
This from the Department:
Protecting our students’ civil rights is fundamental to ensuring they receive a high-quality education. Two reports released today spotlight the challenges and achievements of the U.S. Department of Education’s Office for Civil Rights (OCR).
According to OCR’s FY 2016 annual report, the number of complaints filed last fiscal year skyrocketed to a record 16,720 at a time when OCR’s staffing levels remained at a near all-time low. Still, OCR has resolved more than 66,000 civil rights cases during the Obama Administration, according to a second narrative describing progress made toward educational equity through strong civil rights enforcement from 2009-2016.
The Department released the new reports during an event with U.S. Secretary of Education John B. King Jr., former Education Secretary Arne Duncan and Assistant Secretary for Civil Rights Catherine E. Lhamon, as well as Marian Wright Edelman, founder and president of the Children’s Defense Fund.
“Much progress has been made in the past eight years, but much work remains to ensure all children enjoy equitable access to excellence in American education,” said U.S. Education Secretary John B. King Jr. “These two reports highlight the ongoing vital necessity of OCR’s work to eliminate discriminatory barriers to educational opportunity so our nation’s students may realize their full potential.”
Lhamon added, “We thank our school communities for palpable progress toward realizing the promises Congress has made decade after decade to our nation’s students that their educational experiences should be fundamentally equal. Our investigations confirm ongoing need to safeguard those rights, as well as daily commitment from educators across the country to our core democratic value of fairness. We celebrate student victories and continue to stand ready to safeguard rights of students who need us.”
Over the last eight years, one of the Obama Administration’s highest priorities has been to protect the access of all students to a world-class education. As a result, the Department and OCR have seen significant progress in increasing educational equity nationwide and reducing discriminatory barriers that students face.
From FY 2009 to 2016, OCR:
- Received 76,022 complaints, with each year breaking the previous year’s record of complaint receipts;
- Resolved 66,102 cases;
- Proactively initiated 204 investigations known as compliance reviews;
- Issued 34 policy guidance documents;
- Monitored, on average, about 2,000 resolved cases per year to ensure compliance with resolution agreements; and,
- Conducted three major national, state, school- and district-level Civil Rights Data Collection (CRDC) surveys.
The FY 2016 annual report details the work of OCR over the past year to secure equal educational opportunity by conducting investigations, monitoring schools under resolution agreements, providing technical assistance and administering the CRDC. In FY 2016, complaint volume increased to a record-high 16,720 complaints – a jump of more than 10,000 over the 6,364 complaints in FY 2009. During this same period, OCR resolved 8,625 cases overall - including 1,116 resolutions that secured changes protective of students’ civil rights in schools around the nation – and initiated 13 proactive compliance reviews, despite a near record-low of 563 full-time employees. By contrast, OCR had about 1,100 staff in 1981.
OCR also developed and released five policy guidance documents in FY 2016 and hosted 72 policy-related listening sessions with stakeholders on a variety of topics. Notable cases and their resolutions are described in both reports, including cases related to equitable access to courses and educational opportunities, racial harassment, equal opportunity for English learners, bullying and harassment, accessible technology for students with disabilities, and sexual harassment and violence.
For more information on the work of OCR, please visit the office’s home page or its Reading Room which features policy documents, case resolutions, manuals, reports, religious exemptions and other materials.
EDITOR'S NOTE: A video, "Office for Civil Rights: Eight Years of Accomplishments," is available here: https://youtu.be/baftPNOhuBA.
Congressman Bobby Scott also added these thoughts:
The Office for Civil Rights reports released today shows much progress has been made during the Obama Administration to expand educational opportunity across the nation for all students. However, challenges do remain. The Department of Education’s Office for Civil Rights (OCR) received a record number of complaints last year – yet it is at its lowest staffing level ever. I commend the staff at OCR for enforcing civil rights laws that eliminate discriminatory barriers for students, even when Congress has failed to provide the Office with adequate funding and resources. The Department of Education is tasked with a unique role in protecting and promoting the civil rights of students, a role bigger than any elected official or Administration. As we look ahead, I will continue to fight to ensure Congress provides the OCR with all the resources it needs to ensure every student has equal access to a quality education.
Wednesday, December 7, 2016
Yesterday, Alyson Klein, pointed out that Betsy DeVos, the nominee for Secretary of Education,
would be the first person to head the department in its more than 35-year history who hasn't either attended public schools or sent her own children to them. . . . And DeVos, a school choice and voucher advocate, sent each of her own children to private schools as well, Truscott said. . . . "She believes all parents should have access to the same choices her children had," said Matt Frendewey, a spokesman for the American Federation for Children, a school choice advocacy organization that DeVos chaired until recently. . . . She'd also be one of only a few secretaries entering the job without experience teaching in a K-12 school, or college; running a university, school system or state education agency, or overseeing public education as a governor, or governor's education aide.
As a counter, some have pointed out that President Obama is primarily a product of private schools and has sent his daughters to private schools. From my perspective, this counter does not help DeVos much. First, Obama's two Secretary of Education appointment did have significant experience in public schools, which shaped their views tremendously. Second, there are plenty of critiques of Obama's education policy to go around. Obama's first term may have fractured support for traditional public schools more than any before, although I do not believe that was necessarily the intent.
Regardless, DeVos vision for education and her general operating principle of expanding choice are private market ideas. These ideas, if not properly tailored to public values, are antithetical to public education itself. As I argue here, these private ideas undermine the very justification for public education itself if pursued to their logical conclusions. Public education is not a private commodity and it serves ends well beyond the interests of individual parents or students. Public education, of course, would be of little good if it did not also produce significant benefits for individuals, but it also produces benefits for overall communities, states, and societies. Hence, we all pay taxes and all have a voice in the ends and values it should pursue. If that balance shifts too far to individuals, it ceases to be public education and worthy of the same level of public support. It begins to look more like housing, transportation, and other aspects of society. In these areas, government support and regulation is more limited. Public policy supporting them comes from a confluence of interests between the public and private, not from a public interest per se.
DeVos' ideas threaten to move us in this direction. Her lack of public school experience may, moreover, lead her to discount the distinction between private and public education, not out of malevolence but ignorance or naivete. Because private choice has worked for her and those who can afford to carry its burdens, she may incorrectly assume that it will work just as well for those who are poorly positioned to carry its burdens. Then again, maybe she is right and it is my own experience in public schools that breeds my skepticism. I do, however, know one thing. The educational opportunities that I received in public school and a few key decisions that made later educational success possible for me were not made by me or by my parents. They were made by a few public school teachers who believed I could make something better of myself. They never told me or my parents this. They simply and quietly put me in an advanced placement class that gave me a shot and asked me to make the most of it. In fact, on the first day of class, I raised my hand and said "I don't think I am supposed to be in here." In this and several other ways, I credit public school for entirely altering the course of my life. Due to my experience, I have to believe this is the ethos of public schools, when they are properly supported and structured.
I admit that I know little of most private schools. I do, however, place significant stock in Chris and Sarah Lubenski's nationwide study that found when comparing apples to apples, public schools actually outperform private schools. This is not to deny the high average SAT scores in many private schools, but to recognize those high averages are a result of the high concentration of demographically advantaged students who attend those schools, not something special the private school is doing. Students with those demographics do just as well in public schools. They are just not as heavily concentrated there.
Thursday, December 1, 2016
The South Poverty Law Center’s Teaching Tolerance project conducted a survey in the days following the election and got responses from over 10,000 teachers, counselors, administrators and others who work in schools. SPLC described the responses as "indicat[ing] that the results of the election are having a profoundly negative impact on schools and students. Ninety percent of educators report that school climate has been negatively affected, and most of them believe it will have a long-lasting impact. A full 80 percent describe heightened anxiety and concern on the part of students worried about the impact of the election on themselves and their families. Also on the upswing: verbal harassment, the use of slurs and derogatory language, and disturbing incidents involving swastikas, Nazi salutes and Confederate flags." The survey used the results from its earlier survey in March as its baseline to determine if things had gotten worse. One of the most troubling lines in the report is: "The increase in targeting and harassment that began in the spring has, according to the teachers we surveyed, skyrocketed. It was most frequently reported by educators in schools with a majority of white students."
Its summary findings include:
Nine out of 10 educators who responded have seen a negative impact on students’ mood and behavior following the election; most of them worry about the continuing impact for the remainder of the school year.
Eight in 10 report heightened anxiety on the part of marginalized students, including immigrants, Muslims, African Americans and LGBT students.
Four in 10 have heard derogatory language directed at students of color, Muslims, immigrants and people based on gender or sexual orientation.
Half said that students were targeting each other based on which candidate they’d supported.
Although two-thirds report that administrators have been “responsive,” four out of 10 don’t think their schools have action plans to respond to incidents of hate and bias.
Over 2,500 educators described specific incidents of bigotry and harassment that can be directly traced to election rhetoric. These incidents include graffiti (including swastikas), assaults on students and teachers, property damage, fights and threats of violence.
Because of the heightened emotion, half are hesitant to discuss the election in class. Some principals have told teachers to refrain from discussing or addressing the election in any way.
The title of the report hangs this problematic upswing on the President-elect: The Trump Effect: The Impact of The 2016 Presidential Election on Our Nation's Schools. While the upswing in problems seems clear enough, the cause of the problem is far more complex. Trump no more created racism than did Obama eliminate it. The election of both may have ironically unleashed new strains of it in their own time. Likewise, as bitterly contested as the election was among their parents, it is no surprise that tensions filtered into schools. In schools, thing can often get worse because schools offer a captive audience populated by immature (which is not meant pejoratively) and developing young persons. Some might recall students proudly donning Obama T-Shirts following his elections, which predictably led to incidents.
With that said, this time it does appear to be more serious. The important point, however, is not Trump, Obama, or the election. The important point is that, thus far, the climate in many schools and for many children has not been good. When that climate produces a negative environment aimed at students based on race, ethnicity, gender, disability, or language status, federal law obligates schools to act to address the situation. If they do not, it will be the job of the Office for Civil Rights at the Department of Education to step in, both now and under the next administration. And federal law aside, when the climate negatively effects student learning, it is the job of school leaders to constructively address it.
Get SPLC's full report here.
Wednesday, November 30, 2016
With the selection of Betsy DeVos as Education Secretary, Donald Trump has made good on his promise to do everything possible to undermine and weaken America's public education system. President-Elect Trump made few promises about his education agenda during the campaign, but what he did promise - $20 billion in federal funding taken from public schools to be used for private and religious school vouchers - foreshadowed his pick of a conservative billionaire who has donated considerable sums to promote charters and vouchers at the expense of the public schools and the children they serve. Ms. DeVos's track record in Michigan provides a clear picture of her priorities as Education Secretary. She and her husband have funded campaigns to increase the number of charter schools, including for-profit charters, especially in high poverty communities such as Detroit and Flint. They have funded this effort despite the fact that Michigan's expansive charter sector is among the least accountable and worst performing in the nation. Ms. DeVos also bankrolled an attempt to bring vouchers to Michigan, but those efforts were stymied due to a constitutional amendment passed in 1971 prohibiting public funding for private schools.
The bottom line is this: the Trump Administration will do nothing to support public education across the country. Instead, federal funding will be used as a carrot, or perhaps a stick, to force states to accelerate the unregulated growth of charters and expand existing voucher programs or enact new ones to facilitate the flow of tax dollars from public schools to private and religious schools and other private providers.
What we can also expect is a wholesale retreat from federal enforcement of civil rights protections for vulnerable student populations, from LGBTQ to ELL students. In short, it is not an exaggeration to call the Trump-DeVos education agenda an all-out assault on our public schools, the centerpiece of which is the diversion of billions of dollars from public education to private spending.
What can the vast majority of Americans who care about public education do?
This is a good time to remind ourselves that public education has always been - and will continue to be - the obligation of the 50 states and the District of Columbia. This obligation is embedded in the guarantee of a public education in state constitutions. It is the states, not the federal government, that control access, quality, governance, student rights and the bulk of funding for their public education systems.
A storm of policy and public relations to promote educational inequity and disparity across the nation will emanate from Washington under the new administration. But if we turn our full attention to the states, we can - and must - energize existing coalitions and campaigns of parents, educators, students and community organizations to protect and defend the public schools. Let's start now to erect state and local firewalls to safeguard our schools.
Here are a few ways we can begin:
1) We must press our congressional delegations to oppose the Trump anti-public education agenda, starting with the DeVos appointment but continuing to block other proposals, from dismantling the Office of Civil Rights (OCR) to diverting Title I funding for vouchers under the guise of "portability."
2) If a state constitution prohibits the use of public funding for other purposes, it's time for advocates and activists to get ready to stand behind it. Some state constitutions contain such prohibitions or have been interpreted by courts to do so. If state law is unclear, it's time to propose a law to "lockbox" and protect public school funding. Most states already underfund their public schools, and what our children don't need is the federal government trying to divert any amount of that funding to private and religious schools.
3) This is the right time to start state-level conversations about rejecting offers of federal funding that come at the price of defunding public education and causing even more inequity and disparity of opportunity for students, especially low-income students, students with disabilities, English language learners and students of color.
4) Legislative campaigns for charter school reform must be reinvigorated. In many states, an overhaul of charter school laws is long overdue to ensure full accountability with regard to student access and school performance, as well as the use of public funds. Segregation of students based on disability, the need to learn English, academic risk or other factors must be fought in statehouses, including moratoriums to prevent funding loss and student segregation resulting from uncontrolled charter growth.
5) We must review state-level student and civil rights protections and develop an agenda to strengthen that critical framework. This must include enhancing anti-discrimination and anti-bullying laws; school discipline reform; open admissions for homeless children, youth in foster care, and un-documented students; and other measures to safeguard the rights of students.
On the one hand, a Trump Administration offers the opportunity to join the many advocates laboring to ensure equal and quality education for all children in their states, often in extremely challenging political environments. On the other hand, Trump's election is a wake-up call about a fundamental, enduring lesson: education equity advances or regresses primarily through state action on funding, essential resources and programs, and students rights. Actions taken by the federal government, even those intended to promote equity in the states, can only go so far. And sometimes those actions impede progress.
Let's not get distracted by "inside the beltway" prognostications or rarefied debates over how bad things may be. Those of us working in the states know what's coming. It's time to renew and redouble efforts to protect public education in our states and communities. Millions of children are depending on us.
David G. Sciarra is Executive Director of the Education Law Center, where he serves as lead counsel in the landmark Abbott v. Burke school funding litigation and directs ELC's advocacy on behalf of the nation's public school children.
Tuesday, October 11, 2016
My forthcoming article Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (2017), is available on ssrn. I offer this summary in the abstract:
Congress recently passed the Every Student Succeeds Act (ESSA), redefining the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.
Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.
Although Congress is unlikely to repeal the ESSA just months after passing it, it is set to expire by its own terms after four years. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: 1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; and 2) meet the outstanding needs of low-income students.
Wednesday, September 7, 2016
A group of public school parents has filed a lawsuit against the New York Education Department and the Budget Division. The challenge relates to the loss of school improvement funds. Each year the state, per federal law, is required to identify schools in need of improvement and those that persistently fail over the course of years get access to supplemental funds for two years. The funds are intended to help those schools improve.
The irony, however, is that nine schools were put on the persistently failing list and received funds for one year and expected to receive them again the second year. But when the New York Education Department updated its list of failing schools this year, nine schools that were on the list last year were not on it any longer. As a result, they lost their supplemental funding. In other words, they improved enough or the money worked well enough that the state terminated the second year of funding.
According to this New York Times story, the state is sympathetic to these schools' plight, but the parties cannot come to an agreement as to how to fix the problem--hence the lawsuit. The plaintiffs are well represented by the Education Law Center, so this is certainly a case to watch.
On another note, this unfortunate story reminds me of some of the past perversities of federal desegregation funding. As long as school remained segregated and under court order to continue efforts to eliminate the vestiges of segregation, it remained eligible to receive federal desegregation funds. But once a district actually integrated or was deemed "unitary" by a court, it lost its funding. This lead to a number of ironic desegregation cases, whereby school districts in the later stages of desegregation would side with plaintiffs and argue that they had not eliminated the vestiges of discrimination. As I discuss here, Title I of the Elementary and Secondary Education Act, to this day, also includes some perverse incentives. If a state undertook interdistrict desegregation to deconcentrate student poverty, it might very well end up receiving a smaller Title I grant from the federal government.
Tuesday, September 6, 2016
William Mathis and Tina Trujillo new edited volume, Learning from the Federal Market-Based Reforms, is now available. The press release offers this summary:
With chapters written by a who’s who of the educational research world—a collection of authors that Larry Cuban describes as “a cast of all-star scholars” and Gloria Ladson-Billings calls “some of the nation’s best minds”—the National Education Policy Center released its latest book: “Learning from the Federal Market-Based Reforms: Lessons for ESSA.” Editors William Mathis and Tina Trujillo brought these researchers together to create a critique of recent reforms followed by a series of proven, research-based reform strategies.
With states now finalizing their improvement plans for the new federal “Every Student Succeeds Act” (ESSA), the book provides a timely guide for policymakers and practitioners.
Pointing to the need to move beyond the discredited test-based, discipline-and-punish mentality, David Kirp says the volume makes a clear and convincing case for a genuine reform agenda. “It’s a must-read for anyone concerned about the quality of American education.”
Pedro Noguera adds, “This book points to what we must do differently if we are to succeed in providing all children an education that will prepare them for life in the 21st Century.”
Throughout the book, scholars such as David Berliner, Gary Orfield, Mike Rose, Janelle Scott, Richard Rothstein, and Angela Valenzuela remind us that reform requires us to address the root causes of inequities within schools and beyond the school walls, closing opportunity gaps wherever they arise. We must address deprivation, poverty, racism and the inadequate and unequal distribution of resources.
Among the federally promoted reforms examined in the book are school choice, testing, teacher evaluation and school reconstitution. Other chapters look at the research around class size, early education, adequate and equitable funding, community involvement, and detracking.
In its foreword, Jeannie Oakes praises the book as a tool for closing the gap between research knowledge and education policy decisions: “We must marry the best empirical evidence with efforts to shift cultural norms and increase the political power of those who are seen as the beneficiaries of research-based reforms. We must convince our communities, large and small, of the relationship between having better facts and being better people. … [W]e have this book to help.”
The book is available from Information Age Publishing here and from major booksellers. EARLY ORDER SAVINGS – You can purchase the book on the IAP website at a substantially reduced price of $30 per paperback or $70 per hardcover plus s/h. The code to use at checkout is LFMBR30350.
The book will also be available as an eBook within the next 90 days from Google, Apple, and over 25 other online outlets.
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.