Thursday, January 5, 2017
Secretary of Education John King is set to give his final reflections on the work that the U.S. Department of Education has accomplished over the past eight years. The Atlantic reports that he will release a 14 page exit memo titled "Giving Every Student a Fair Shot: Progress Under the Obama Administration’s Education Agenda.” I would expect that it is largely a summary of the 60 page document the White House released back in May under the exact same title. Get that report here.
The most notable accomplishments it will tout are Race to the Top, changes to the teaching profession, expansion of pre-kindergarten education, the Every Student Succeeds Act, and civil rights enforcement. With the new administration that lies ahead, many on both sides of the aisle will soon enough long for the one that just left and, thus, I hesitate to be critical. Nonetheless, I cannot count many of this administrations accomplishments as positives.
An overarching theme of this administration is what I would call the econometrics and corporatization of education. I use econometrics to refer to the notion that we could precisely measure student growth and teacher effectiveness. These notions became the basis for using extremely complicated mathematical analysis to compare one teacher to another, one school to another, and to take action against them when officials did not think the results were good enough.
Intuitively, the approach made perfect sense--far more than No Child Left Behind's nonsensical assumption that it could force schools to make 100 percent of students proficient by 2014. The problem is that the Obama administration's policies rested on the same fundamental flaw as No Child Left Behind. They both assumed that standardized tests are an accurate measure of learning. In many ways, the Obama administration made things worse because it upped the ante. Not only would it rely on the test results, it would attempt to draw far more information and conclusions from them. As I detail here, this approach is inherently unfair in a number of ways and produces random and unreliable results. What the Department should have done is the opposite. Keep the tests but use them only for what they are good for: rough global measures of a slice of student learning that can serve as a trigger for further inquiry into a school (and maybe a teacher).
Corporatization is somewhat of a rough characterization, but I use it as a proxy for the notion that schools can run like businesses and on the whole operate like markets. This notion led the Department to demand that states lift caps on the number of charter schools and resulted in an enormous expansion. Charter school enrollments roughly doubled during the Obama administration. While it is true that there are scores of very high performing and beat-the-odds charter schools across this nation, they are the exception, not the norm. There is no evidence to show that a school, simply by virtue of being a charter, is likely to perform any better than a traditional public school. Rather, the evidence shows quite the contrary.
And even putting achievement results aside, the profit motives, potential corruption, lack of transparency, and lack of legal protection are, in fact, inherent risk in charters as currently structured. Thus, these past several years saw a sharp spike in these problems. What charter schools require and neither the federal nor state governments have been willing to impose are serious oversight and standards that align them with the core values of public education. As I detail here, without that oversight and alignment, they can undermine public education itself.
Finally, the Department is quite proud of the fact that it got rid of No Child Left Behind. I concede that is an accomplishment. The problem is that the Department overreached so much through Race to the Top and the waivers of No Child Left Behind, that the final legislation that replaced No Child Left Behind was more about eliminating the federal role in education than it was improving it. In that respect, the Every Student Succeeds Act is a major step backward for the students who need federal leadership the most. That is no accomplishment at all. For a full explanation, see here.
Those critiques, however, do not mean that the Department was without success. To be absolutely clear and reiterate what I wrote a few weeks ago, the Office for Civil Rights in the Department of Education has done an outstanding job, particularly in the past four years. For the first time in a very long time, the Office for Civil Rights once again became an institution that families believed would take their claims of discrimination seriously. The Office once again became an institution that would insist that districts comply with anti-discrimination law, regardless of the politics that surrounded doing so. Thus, it is no surprise that the cases filed with the Department grew, so much so that the Department requested additional resources to do the work that the law demanded of it.
As we turn to the next administration, signals indicate that we will miss the Office for Civil Rights more than most appreciate now. Whether we will miss the general Department of Education's substantive policies remains to be seen, but things can certainly get a lot worse.
Wednesday, January 4, 2017
Identifying students with a disability is not an exact science. Scholars have long-since documented both the over- and under-identification of certain demographic groups with certain disabilities. As Theresa Glennon argued in Race, Education and the Construction of a Disabled Class, educational disabilities can be a proxy for the perception that a student diverges from the cultural norm. Thus, year-to-year variances in the number of students identified as having a disability that affects educational opportunity are to be expect. Minor upward and downward shifts are not necessarily an indicator of negligence or ulterior motives.
With that said, the Houston Chronicle has made the case that the state of Texas has systematically reduced its special education population for no legitimate reason. This chart shows that the state's special education population has shrunk by more than 25% in the past decade. The numbers are even more drastic when the state is broken down by region. A number have seen their special education population shrink by a third. See here.
The reason, cites the Chronicle, is clear: the state mandated a cap on the number of students in special education.
Over a decade ago, the officials arbitrarily decided what percentage of students should get special education services — 8.5 percent — and since then they have forced school districts to comply by strictly auditing those serving too many kids.
Their efforts, which started in 2004 but have never been publicly announced or explained, have saved the Texas Education Agency billions of dollars but denied vital supports to children with autism, attention deficit hyperactivity disorder, dyslexia, epilepsy, mental illnesses, speech impediments, traumatic brain injuries, even blindness and deafness, a Houston Chronicle investigation has found.
Once the message went out to districts, things moved quickly.
The Texas Education Agency had determined that they had too many students in special education, the administrators announced, and they had come up with a plan: Remove as many kids as possible.
The staffers did as they were told, and during that school year, the Laredo Independent School District purged its rolls, discharging nearly a third of its special education students, according to district data. More than 700 children were forced out of special education and moved back into regular education. Only 78 new students entered services.
"We basically just picked kids and weeded them out," said Maricela Gonzalez, an elementary school speech therapist. "We thought it was unfair, but we did it."
Gonzalez's account, confirmed by two coworkers and district documents, illustrates how some schools across Texas have ousted children with disabilities from needed services in order to comply with an agency decree that no more than 8.5 percent of students should get specialized education.
The Chronicle did a multiple series and data collection. See here.
Given the costs of special education, I suppose it does not entirely surprise me that the state might give such a ploy a shot. What does surprise me is that it was allowed to happen under the watch of the U.S. Department of Education or courts, if they were alerted. Yet, given the individual nature of special education determinations, courts and agencies can often demand a showing that each individual student has been denied their rights. As a result, larger trends can go unchecked until a number of individual cases are substantiated. In any event, the Department announced this past fall that it was sending officials to the state to investigate the matter.
Monday, December 19, 2016
President Obama has appointed Catherine E. Lhamon to the U.S. Commission on Civil Rights. Commissioners' terms do not end with the president who appointed them. Thus, Lhamon would remain on the Commission during the Trump administration. I am heartened by the opportunity for her legacy continue. In my opinion, Lhamon has been the most effective head of the Office for Civil Rights of my adulthood by a good measure. She has overseen and defended a much more aggressive approach to equality in school discipline, anti-bullying and harassment, and equality in access to school resources and facilities for all students regardless of race, ethnicity, language status, disability, or gender--and I do mean in each of these areas and for each of these groups. Thanks goes out to her and all those at the Office for Civil Rights that have worked with her.
President Obama appointed her to the Commission along with Debo P. Adegbile, former Acting President and Directing Counsel of the NAACP LDF.
The full announcement is here.
Appellate Court Denies School District's Claim That It Would Suffer Irreparable Harm by Granting Equal Restroom Access to Transgender Student
The Sixth Circuit Court of Appeals has ruled in favor of a transgender student's access to facilities consistent with her gender identity, bring the number of favorable circuit courts to two. In Dodds v. U.S. Department of Education, the court refused to read too much into the Supreme Court's recent stay in Grimm v. Gloucester:
The crux of this case is whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth. To demonstrate a likelihood of success on the merits, the movant must show, “at a minimum, serious questions going to the merits.” Mich. Coal., 945 F.2d at 153 (internal citation omitted). “It is not enough that the chance of success on the merits be better than negligible.” Nken, 556 U.S. at 435 (citation omitted). “[M]ore than a possibility of relief is required.” Id. While the Supreme Court has stayed a similar case from another Circuit, see G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 136 S. Ct. 2442 (Mem), that fact does not satisfy the test required of us here, and does nothing more than show a possibility of relief, which is not enough to grant a stay.
To be clear, however, this court did not rule on the merits of the issue of whether Title IX requires admission to the restroom. As an appeal of a preliminary junction, the court focused, appropriately so, on the irreparable harm the district would purported suffer, as well as that of the girl. It wrote:
the record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.
Wednesday, December 14, 2016
New Study Finds That Money Has a Large Effect on Student Achievement, But It Is Not News--It Is a Sad Reminder of What We Must Do
The New York Times took note of a new school funding study Monday, titling the article It Turns Out Spending More Probably Does Improve Education. The study by Julien Lafortune, Jesse Rothstein, and Diane Whitmore Schanzenbach found that school funding "reforms lead to sharp, immediate, and sustained increases in spending in low-income school districts. Using representative samples from the National Assessment of Educational Progress, we find that reforms cause increases in the achievement of students in these districts, phasing in gradually over the years following the reform. The implied effect of school resources on educational achievement is large." To put it in perspective, they write "After desegregation, school finance reform is perhaps the most important education policy change in the United States in the last half century."
Our results thus show that money can and does matter in education . . . School finance reforms are blunt tools, and some critics have argued that they will be offset by changes in district or voter choices over tax rates or that funds will be spent so inefficiently as to be wasted. Our results do not support these claims. Courts and legislatures can evidently force improvements in school quality for students in low-income districts. But there is an important caveat to this conclusion. As we discuss in Section VI, the average low-income student does not live in a particularly low-income district, so is not well targeted by a transfer of resources to the latter. Thus, we find that finance reforms reduced achievement gaps between high- and low-income school districts but did not have detectable effects on resource or achievement gaps between high- and low-income (or white and black) students. Attacking these gaps via school finance policies would require changing the allocation of resources within school districts, something that was not attempted by the reforms that we study.
To be clear, I will be citing and relying on this study in my own work. It is a good one, but those who have studied school funding for years will be a little miffed with the New York Times' framing of the study. This new study, while high in quality and nuance, does not reveal something particular new. It is incorrect to suggest the study's findings are a surprise-- that it "turn[s] out" that money improves education. This has been the consensus of social science for decades. See my discussion of the literature here.
The problem is that the issue has been so poorly reported and debated that the study seems like news to most. Then again, maybe we have just conveniently ignored it. Either way, education budgets have been decimated over the past decade with little more than a whimper from most national and local media. During the Recession, every state cut education. Most cut it with a hatchet, with cuts of twenty percent or more in several states and over ten percent in the largest chunk. Equally disturbing is that most states have still yet to fully replace those funds. The most recent report by the Center on Budget and Policy Priorities indicates that, in real dollar terms, thirty states are still funding education below their pre-recession level.
Things have been so bad that people simply stopped pursuing careers in education, so much so that when states finally began rehiring teachers last year, there were literally no applicants to fill those jobs. School districts actually began using billboards on the highway to beg people to apply. California told prospective applicants they jump right into the classroom if they would just enroll in a teacher preparation program--they could finish their degrees on the weekends. It was only this tailing effect of school funding cuts that finally caught widespread attention.
The overall trend calls for intervention and a new approach by legislatures and courts. For more, see Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education.
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
The Children’s Legal Rights Journal invites articles submitted by January 15, 2017 that address issues that impact children. The call for papers is below:
Submission Details. We invite you to submit articles that address any of the prominent and current issues that impact children. Articles should be received by January 15, 2017. Submissions should be previously unpublished pieces based on original work. All submissions should be between 15 and 60 pages (doublespaced) and in Bluebook format.
About the CLRJ. The Children’s Legal Rights Journal is a national journal sponsored by Loyola University Chicago School of Law in cooperation with the National Association of Counsel for Children. We publish articles on a variety of children’s legal issues and we are the only journal in the country specifically addressing legal needs of children.
Contact Information. All submissions and questions can be sent directly to CHILDLRJ@LUC.EDU. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:
Erika C. Weaver
25 E. Pearson, 11th Floor
Chicago, IL 60611
The CLRJ will publish one additional issue by the end of the academic year and we will be soliciting articles for that publication early next year.
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.
Thursday, December 8, 2016
Moody's Finds Overall Credit Quality of Charters Ranges from Investment Grade to Speculative, But Expects Sector Growth
For those who missed it, Moody's released a financial risk assessment of charter schools this fall. The four passages jumped out at me:
- The median rating of Moody’s-rated charter schools is Baa3, but the median credit quality of the broader charter school universe is decidedly lower.
- [C]harter schools across the nation face unique credit challenges. Those challenges have translated into an above average incidence of defaults relative to other tax-exempt credits. The overall credit quality of this sector ranges from low investment-grade into low speculative-grade categories.
- [W]e expect that the appetite for the education alternatives that this sector offers will continue to expand. Over time, we also expect that charter school credit quality will likely improve, with strengthening in several key areas including: academic performance reporting; the stability and predictability of per-pupil funding for operational and capital needs; available liquidity and reserve levels; transparent and timely disclosure; and leadership and management quality.
Moody's defines a Baa rating as " medium-grade and subject to moderate credit risk and as such may possess certain speculative characteristics." The additional modifier of 3 "indicates a ranking in the lower end of that generic rating category." The next step down from that would be a Ba rating which is defined as "speculative and are subject to substantial credit risk."
Read the full report here,
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.
Tuesday, December 6, 2016
Meditation Instead of Detention: Misbehavior As Learning Opportunity Rather Than a Punishment Trigger
Robert Coleman Elementary School's shift from detention to meditation has been creating a lot of buzz since the media covered the story early this fall. In late September, the school reported that it had yet to suspend a single student, attributing the fact to the increased mindfulness of students. James Gaines describes it this way:
Instead of punishing disruptive kids or sending them to the principal's office, the Baltimore school has something called the Mindful Moment Room instead. The room looks nothing like your standard windowless detention room. Instead, it's filled with lamps, decorations, and plush purple pillows. Misbehaving kids are encouraged to sit in the room and go through practices like breathing or meditation, helping them calm down and re-center. They are also asked to talk through what happened.
I have had a number of people approach me about the story with a glow in their eye and excitement in their voice. The results themselves are palpable, but I think the story also strikes a cord for different reasons: the approach is intuitive, humane, and strikes at the heart of the hopelessness that we so often feels in regard to the challenges our schools face. The notion that a low-cost and effective solution is at our fingertips is simply inspiring.
My interview with Patricia Raskin digs deeper into these issues, exploring why students misbehave, why programs like these work better than punishment, and proposes other policy approaches we should incorporate. At the heart of this conversation is the reality that students are still developing, still making honest mistakes as the navigate their changing environments, and still need the opportunity to learn from their mistakes. In short, discipline needs to be a learning opportunity first, not a basis for exclusion. Listen to the interview here. Also, read more about the meditation program here.
Monday, December 5, 2016
According to local reports and the parents, an eleven-year-old honor roll student in Pembroke Pines, Florida, was suspended for six days when she used a children's knife to cut a peach and share it with a classmates. According to the family, the knife was as dull as a butter knife and was part of a set that looked something like this:
The girl's mother said that the knife is safe even for babies: “This is a set of a spoon, fork, and knife [is] for toddlers— one-year-old[s]. It is made for children to learn how to eat properly. She's used it since she was baby.”
With the media attention and the parents pushing back, the school reduced the suspension to three days, but they maintain the initial suspension was valid and it will remain on her record.
Unfortunately, this story is like countless others I describe in Ending Zero Tolerance: The Crisis of Absolute School Discipline. It is yet another example of the intolerability of zero tolerance policies and school officials refusing to consider very basic facts. On their face, the facts reveal 1) no real weapon; 2) no intent to break a rule; 3) no threat or danger to anyone; and 4) everyday benign behavior by a preteen. Based on these facts, it is far from clear that there is any legitimate basis upon which to suspend the student. It would appear that the basis for suspension is nothing more than "those are the rules."
That justification should be absurd enough on its face, but let me make it a bit clearer. Suppose that a school adopted the following rule: "students are prohibited from bringing black ink pens to school." There might be a good reason for the rule, such as the machine that the school uses to grade exams cannot distinguish students' black ink from that of the printed language on handouts. When students use black ink, it throws the whole grading system off. Thus, I would allow that schools could even take away those black ink pens for the day or, to encourage students to remember to not bring them, impose some small penalty like writing "I will not bring black pens to school" a couple hundred times.
Suspension, however, is a far cry worse. It would be hard to justify, under any concept of due process, the suspension of a student from bringing a black ink pen to school. Yet, this equivalent to the position this Florida school is adopting in suspending the girl for her children's butter knife. For that matter, under this current school's rationale, it could expel the student for the children's knife. Its rationale would likewise support expulsion for the black ink pen. Of course, the school would disavow this logical conclusion, but it is, in fact, the logic conclusion.
In Ending Zero Tolerance, I demonstrate why the constitution cannot permit this type of punishment and, instead, demands a more nuanced consideration of student misbehavior when school exclusion is at stake.
This story also offers another nuance to school discipline that I emphasize in the book: the physic harm that this type of irrational discipline imposes on the student. The girl's mother indicates that that her daughter is struggling to make sense of this experience and is afraid of making another mistake in school. Studies show that placing students in situations of fear and anxiety is not the way to make them behavior better. In fact, irrational discipline will make some rebel and misbehave more. Equally important, other studies show that fear and anxiety tends to spread to the "innocent bystanders" who have done nothing wrong and, when it does, it depresses their academic achievement--the exact opposite of what a school should want to do.
Friday, December 2, 2016
School Suspends a Student Who Was the Victim of Violence, Highlighting the Fundamental Flaws in Today's School Discipline
Just before Thanksgiving, a student in Mobile, Alabama, was violently attacked and harassed at school. He was corned and pummeled by a group of students. The school immediately suspended him for being in a fight. After he was suspended, a video of the incident surfaced on social media, showing he was actually just a victim and appeared to be doing nothing other than trying to get away. The video went viral, garnering millions of downloads and even a responsive video of support for the boy from Roy Jones, Jr.
Once the facts of the incident came to light and the media storm took hold, the district reversed course. The superintendent placed the principal who suspended the student on leave and is investigating the incident. The superintendent and others also came out on the day the boy returned to school to welcome him back, show him support, and assure him and others that bullying in the school was going to be addressed.
Kudos to the district for not digging its feet in the sand and showing signs of change, although I am not sure how it could have done otherwise. Regardless, like countless other stories, this one confirms the troubling lessons I offer in Ending Zero Tolerance: The Crisis of Absolute School Discipline. First, facts matter and zero tolerance is irrational. Blanket rules that mandate or authorize suspension for any student involved in a fight are indefensible. The same is true of various drug, weapon, disrespect and disruption rules. Courts should say so and begin forcing schools to use judgment and look at circumstances. Schools' refrain that they must "draw lines in the sand" just won't cut it.
Second, as it currently stands, due process protections in school discipline are not protections at all. For privacy reasons, we will probably never know exactly what steps the principal took prior to suspending this victim of violence in Mobile, but I find it hard to imagine that the principal asked many questions or paid much attention to the victim's story. In other words, the constitutional right to due process prior to suspension and expulsion is not worth much in our nation's schools any more. It has become a sham that allow schools to do whatever they want behind the window-dressing. I detail the data and events in my book that make this point clear.
Third, it was not the constitution that saved this boy, but a happenstance set of facts. So we should not delude ourselves into thinking the system worked here. I detail another story in the book, which is far more troubling from a procedural point. It involved a principal and the rest of the school administration effectively colluding against a young boy and it was only the happenstance revelation of that collusion that reversed the suspension, not any reliable constitutional protection that others who follow might rely on. In other words, as currently applied, our constitution hangs students out to dry.
Ending Zero Tolerance proposes a more nuanced approach to school discipline that accounts for individual circumstances, the natural development of children, and the quality of the educational environment itself. In short, it proposes that school discipline begin to make sense.
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, November 29, 2016
For those who have taught or taken education law in recent years, you have probably touched on the seesaw history of bilingual education in our schools. The trend of the last two decades has included the banning or limiting of bilingual education and the move toward immersion programs. That shift came to a head in Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002)--a rather complicated case to teach. More than sixty percent of Californian's had voted to ban bilingual instruction. This prompted a legal challenge, alleging that the ban was discriminatory and motivated by ethnic animus. The court rejected the challenge, reasoning that the motivation behind the legislation was to improve education. The case involved the same political inequality theory that was recently taken up by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action--the case challenging Michigan's ban on affirmative action.
While Valeria and Schuette turned out poorly for civil rights advocates, they have now secured a win in the court of public opinion. California, by a vote of 73-27 percent, just reversed course again and ended the era of English-only instruction in its public schools. Nuance and problems, however, still loom. First, as NPR explains,
[I]t'll be up to school districts to decide locally whether they want to offer bilingual education or not, based on parents' demand for it. Under the new measure, if at least 20-30 parents want bilingual instruction for their children, their school will have to provide it. Even if only a few parents want it — less than 20 — that could put pressure on schools to make and force school district officials to intervene and come up with an accommodation.
The main change under Proposition 58 is that parents no longer have to sign a waiver in order to enroll their children in a dual language or bilingual classroom. Under English-only policies, teachers were prohibited from making any recommendation on bilingual education, so that could change too.
Second, California has an enormous capacity problem. When it banned bilingual education two decades ago, it helped dry up the pipeline of teachers with the training and skills to offer bilingual instruction. That problem is only further amplified by the fact the general teacher pipeline was also decimated by the recession and state policy in response to it. As I detail in Taking Teacher Quality Seriously and Averting Educational Crises: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, California, along with a number of other states, have a very big hole to dig themselves out of. In other words, there are not enough qualified teachers to fill basic education spots, much less bilingual education.
Monday, November 28, 2016
Erika Wilson's new article, The New School Segregation, 102 Cornell L. Rev. 139 (2016), is now available on westlaw. She offers this abstract:
The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980s, schools in the South became among the most desegregated in the country. An important but often underappreciated tool that aided in the fight to desegregate schools in the South was the conventional and strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially and economically segregated municipal boundary lines.
Some affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law.
This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race-neutral proxy to create segregated school systems that are immune from legal challenge. It concludes *140 by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically and decentralized public education governance structures more broadly.
Monday, November 14, 2016
Students in Flint, Michigan, recently filed suit in U.S. District Court against the Michigan Department of Education, the Flint and Genesee school districts. They allege that exposure to lead in the school system can exacerbate learning disabilities and warrants a response under the IDEA. Those who followed older research may recall a study a couple of decades ago in Maryland showing that racially disparate lead exposure in the state contributed to long term racially disparate educational outcomes. Kudos to the Education Law Center and the ACLU of Michigan for recognizing the issue in Flint and coming to these students' aid. Gregory Little of the White & Case has also stepped up to provide pro bono services in the case. The press release offers this:
The lawsuit demands that the Michigan Department of Education, Flint Community Schools and the Genesee Intermediate School District take immediate action to ensure that all students who require special education services are identified and provided with the programs and supports they require.
“We know that Flint schools are not currently meeting the needs of special education students, and we know that exposure to lead in drinking water can be highly toxic for children, potentially leading to or exacerbating disabilities” said Jessica Levin, ELC Staff Attorney. “It is imperative that the local district and the State of Michigan make sure students are evaluated and provided with appropriate programs and services, especially now that the number of affected students could grow significantly.”
The lawsuit amply documents the systemic violations of federal law, including the Individuals with Disabilities Education Improvement Act (IDEA), in Flint’s public school system. To remedy this situation and prepare for an expected increase in students requiring services, the plaintiffs ask for screenings and evaluations to identify all students in need of special education services and the provision of those services by sufficient and qualified personnel.
“The lead crisis in Flint has put all children at risk, and the state and local education authorities must take action to ensure the public schools meet their legal mandate of addressing students’ educational needs,” said David G. Sciarra, ELC Executive Director. “It is our privilege and our obligation to represent the families of Flint. We will do all we can to come to a speedy and appropriate resolution of this case.”
For more information about the Flint lawsuit, please read this joint ELC-ACLU of Michigan press release.
Thursday, November 10, 2016
The issue of charter expansion in Massachusetts has raised cutting edge issues over the past year and a half. Initially, plaintiffs filed suit, seeking to use the state education clause to argue that the state was obligated to provide more charters in light of its failure to provide an adequate education in its regular schools. That theory built on much of the flawed thinking in California, where a trial court had struck down teacher tenure as a violation of students fundamental right to education. More recently, the higher courts in California rejected that tenure theory. In Massachusetts, however, the theory regarding charters migrated into the political domain and was offered as leverage against legislators who opposed charter expansion. With no victory there, the issue moved to the voters.
On November 8, 2016, Massachusetts voters roundly rejected the expansion of charters. Initially number showed a large margin of 62-38. The New York Times reported that those favoring expansion had spent $26 million to promote the measure. Opponents spent $15 million. The president of the Massachusetts Teacher Association said it was a victory for public education in general: “We held the line. . . . Money can’t buy our public schools.”
Given the flaws in the litigation claims, one would expect the same result there, although it may be slower coming. These types of suits, however, are becoming more and more prevalent.