Monday, February 19, 2018

Appellate Court Finds Alabama School District Succession Was Racially Motivated, But Don't Overlook the Importance of the Lower Court

The Eleventh Circuit has straightened out the school segregation mess in Birmingham, Alabama (or at least part of it).  As many recall from last year, a district court found that Gardendale had acted with racially discriminatory intent when it succeeded from its parent school district.  Yet, the court allowed the succession to proceed, reasoning that stopping it would do more harm than good.  The Eleventh Circuit affirmed the district court’s finding as to discriminatory intent, but found that the lower court erred as a matter of law in allowing the succession to occur.

As to the discriminatory intent, the Eleventh Circuit recounted much of the most troubling evidence.  For instance, it wrote:

While Harvey was performing the feasibility study, the secession leaders formed a nonprofit entity called Future of Our Community Utilizing Schools (FOCUS) Gardendale. FOCUS Gardendale existed to raise funds and to lobby for higher property taxes to support the proposed school system. FOCUS Gardendale circulated a flyer that depicted a white elementary-school student and asked, “Which path will Gardendale choose?” It then listed several well-integrated or predominantly black cities that had not formed municipal systems followed by a list of predominantly white cities that had. The flyer described the predominantly white communities as “some of the best places to live in the country.”

The most explicit evidence of discriminatory intent was from the statements and online posts of community members.  Gardendale argued that those private motivations could not be attributed to the district.  The Eleventh Circuit disagreed, explaining:

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February 19, 2018 in Racial Integration and Diversity | Permalink | Comments (0)

Wednesday, February 14, 2018

Feds Needs to Get Their Facts Straight and Stop Misleading the Public About Education Funding

In its summary of the White House's proposed budget, the Office of Management and Budget explained why the White House was making cuts to public education programs.  It wrote:

Quality education exists when parents have a voice in choosing their child’s K-12 schools and students have the tools they need to succeed. Decades of investments and billions of dollars in spending have shown that an increase in funding does not guarantee high-quality education. While the Budget reduces the overall Federal role in education, the Budget makes strategic investments to support and empower families and improve access to postsecondary education, ensuring a future of prosperity for all Americans.

On one level, misleading and inaccurate characterizations of this sort are to be expected of political actors with an agenda.  OMB works for the President, so one might argue this is fair game.  On the other hand, I, probably naively, have understood the OMB to be a professional institution or to play a professional role.  One of its jobs is to help prepare the budget for the President.  The other job is the harder one of assessing the effectiveness of programs.  Even if the first job--preparing the budget--is political rather than just an execution function, the second job is empirical and should be apolitical.  Are programs effective?  Are they financially and administratively efficient, achieving their goals, etc.?  Most of the reports from OMB are snoozers, even for the well-educated.  They get into the nuts and bolts of bureaucracy, regulations, and minute statutory provisions to assess whether they are working.

This second professional role is what makes the OMB's statement on education funding so outrageous.  To be fair, one can defend it as technically accurate if one rips it out of context and its plain implications.  It only says that money does not "guarantee high-quality education."  If that is all that it means to imply, it is accurate, but it has simply said the obvious and is wasting ink and internet bandwidth. 

Nothing guarantees high quality education--not new buildings, not the best teachers, not the most integrated schools.  In education, the question is whether, on average, a particular input strongly correlates with high quality education or improved student outcomes.  Quality teachers, for instance, matter a lot.  Would the OMB ever say that "quality teachers do not guarantee high quality education?"  While that statement might be technically correct in some respect, it is an outrageous statement because the implication of the statement is not really that teachers don't guarantee quality; the implication is that teachers don't matter.

The point of OMB's statement regarding school funding is to say that money does not matter in education.  This implication becomes even clearer in the context of the sentences that precede and follow it.  The first sentence is telling us the White House wants to spend money on choice because choice matters most.  The last sentence is telling us that it is cutting money from public education because, again, money does not matter in public education.

Both of these claims are outrageous and demonstrably false.  The research on the effect of funding increases and decreases on student outcomes is growing stronger by the day.  As I have repeatedly hammered in prior posts:

  • A research team lead by Kirabo Jackson published Do School Spending Cuts Matter? Evidence from the Great Recession.  They found "districts that faced large revenue cuts disproportionately reduced spending on non-core operations. However, they still reduced core operational spending to some extent. A 10 percent school spending cut reduced test scores by about 7.8 percent of a standard deviation. Moreover, a 10 percent spending reduction during all four high-school years was associated with 2.6 percentage points lower graduation rates.
  • A prior study by Kirabo Jackson, Rucker Johnson, and Claudia Persico looked at thirty years of data and found that a 20 percent increase in per-pupil spending each year for all 12 years of public school for children from poor families leads to about 0.9 more completed years of education, 25 percent higher earnings, and a 20 percentage-point reduction in the annual incidence of adult poverty; we find no effects for children from non-poor families. The magnitudes of these effects are sufficiently large to eliminate between two-thirds and all of the gaps in these adult outcomes between those raised in poor families and those raised in non-poor families. 
  • A Kansas legislative study found, with a 99% confidence level, "that the relationship between student performance and district spending was positive, i.e., that a 1% increase in student performance was associated with a .83% increase in spending. . . . 'Kansas students have made great academic strides ... largely due to the infusion of school funding.'”
  • Bruce Baker's review of all the prior studies on point reveals that "On average, aggregate measures of per-pupil spending are positively associated with improved or higher student outcomes. The size of this effect is larger in some studies than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that may moderate the influence of funding on student outcomes, such as how that money is spent. In other words, money must be spent wisely to yield benefits. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters."

Thus, it is misleading, at best, to even suggest that money does not affect the quality of education. 

Even if you focus on the word "guarantee" in OMB's statement and concede that money does not guarantee high quality education, we have to be fair and then apply the same reading to the statements about choice.  The implication is that while money does not guarantee high quality education, choice does or choice is more likely to lead to high quality education.  Or we might say that funding does not guarantee quality education, but choice does.  This latter version is impossible to swallow.

If we are talking about the vouchers and charters that the White House wants to spend money on, the answer is that vouchers have not proven to be effective at all and charters have only proven effective in a relatively small percentage of schools.  Most charters perform no better or worse than their traditional public school counter parts. See herehere; here; and here.

This type of statements are to be expected from the current Secretary of Education, but it is troubling when an organization with OMB's mission a) wades into substantive matters it may know very little about and b) makes misleading, if not false statements, about facts that it should be objectively evaluating.


February 14, 2018 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Tuesday, February 13, 2018

Eighty Percent of Southern Voters Want Improvements in School Funding: Why Won't Their States Act?

A group of non-profits conducted a research based poll of voters in the South.  The sample was geographically, demographically, and politically representative of those who actually vote.  The key results were:

  • 74% of voters see differences in quality of education across their states
  • 85% of voters say states should fix differences in education
  • 84% of voters say states should adjust funding to address differences

There were not even significant variations across party lines.  Seventy-five percent of republican men recognized the difference in the quality of education in their state and eight-five percent of that same group said the state should take action.

On one level, these numbers should not come as a surprise.  All but two of the surveyed states have regressive funding systems.  Georgia and  Louisiana are the only two states that actually send additional resources to districts that need it more.  Those efforts in Georgia and Louisiana, however, are offset by relatively low fiscal effort in general.  Louisiana, for instance, earns a "D" on the school funding fairness report card for effort.  Thus, while it may distribute its funds fairly, it doesn't distribute many funds.  Everyone is just equally poorly funded.

Also, if one looks nationwide, seven of the twelve states that have enacted the biggest cuts in education are southern states.  Florida and Alabama, for instance, rank second and third in the nation in terms of the biggest cuts to education.

With these results, one can understand why the vast majority of southern voters see a problem and want a change.  On the other hand, I do wonder if the questions in the poll were too leading.  How many voters would actually say that we should not fix inequality in education?  Yet, a lot of people would surely say that "money does not matter" or that the primary problem is not money (although they would be wrong based on numerous studies).  Thus, the fact that the respondents did not balk at changing the funding formula means that maybe there is some validity to the poll.  

Assuming these numbers are valid, it begs the question of why state legislatures are not doing a better job.  One answer lies in the information deficit.  The Education Law Center and the Center on Budget and Policy Priorities have done fantastic work over the last several years in providing national snapshots.  But more than national snapshots is necessary to hold state accountable and move policy.  Most southern states lack institutions that can transparently and consistently shine a spotlight on what the state is or is not doing in terms of education funding.  As a result, the states can mismanage education funding without the general public fully understanding it.  And, thus, there is no accountability.

This network of organizations that sponsored this poll, however, may be the institutions that can help the South take a step in the right direction.  In a separate document, the group also issued a set of policy proposals.  They proposed a set of teacher recruitment, preparation, and retention strategies; giving students the support they need (rigorous, meaningful classes; help with family and emotional issues; better school climates and fairer discipline); strengthening the bridge to college and work; and matching funding to student needs.

They, of course, offer details beyond these broad outlines.  But what struck me was how simple the proposals were and that I basically agreed with them entirely.  Their proposals show how straightforward quality and equity can be.  It is time for legislatures to give it to them.



February 13, 2018 in School Funding | Permalink | Comments (0)

Monday, February 12, 2018

Education Under Siege or Transformation? Don't Let the Rhetoric Fool You

Two weeks ago, the Koch brothers hosted a retreat in Palm Springs to discuss their upcoming agenda.  Their Institute includes about 700 other groups and individuals who donate at least $100,000 per year to support their agenda.  They were also joined by the Governor of Arizona.  Public education appears to be their primary target for reform.  According to the Washington Post,

Changing the education system as we know it was a central focus of a three-day donor seminar. . . . “We’ve made more progress in the last five years than I had in the last 50,” Koch told donors during a cocktail reception. “The capabilities we have now can take us to a whole new level. … We want to increase the effectiveness of the network … by an order of magnitude. If we do that, we can change the trajectory of the country.”  . . . “The lowest hanging fruit for policy change in the United States today is K-12,” said Stacy Hock, a major Koch donor who has co-founded a group called Texans for Educational Opportunity. “I think this is the area that is most glaringly obvious.”

They plan to make their largest offensive in Arizona.  What would have been the largest voucher program in the nation recently failed there.  The legislature settled for a scaled down voucher program rather than one that had the capacity to voucherize the entire education system of the state.  In theory, the public education system could have disappeared over night.  In practice, many parents would probably forego the opportunity of a voucher, and the private system lacks the capacity to absorb everyone anyway, but the legislation would have laid the groundwork to change both.

Now, the Koch Institute is attempting to get a proposal on the November ballot and take the issue to the voters.  They believe they can convince them to voucherize education.  They have the Governor's support.  He said “This is a very real fight in my state. I didn’t run for governor to play small ball. I think this is an important idea.”

"Transformation" is an appealing concept in education, particularly in Arizona.  I would venture to guess that a strong majority in Arizona would like to see the education system transformed.  By most objective accounts, it is in shambles.  Arizona's per pupil funding for public schools currently ranks 47 out of 50 states.  It also ranks at the bottom of the nation in terms of equality between districts.  The Education Law Center's 2017 School Funding Fairness Report grades Arizona's funding distribution as an "F."  Arizona spends the least on students who need the most.  That same report also shows that Arizona is doing almost nothing to fix its low funding levels or unequal distribution.  Arizona ranks 49th in the nation in terms of the level of fiscal effort it exerts to fund its schools.  

The most mind-boggling data, however, comes from the Center on Budget and Policy Priorities (CBPP).  This past fall, it released a report showing that, after adjusting for inflation, school funding in Arizona is down 33.6 percent since 2008.  No one else is close.  The next largest cuts are in Florida.  Funding is down 22 percent there.  As I demonstrate here, the funding is down, in large part, because states like these made no attempt to assess what level of cuts education could sustain during the recession.  They simply hacked away at education, arguably using the Recession as an excuse to target education.  This thesis is only further strengthened by the fact that when tax revenues came back to Pre-Recession levels in 2012, they refused to replenish education funding.  They kept it at low levels, hence troubling numbers like those revealed by the CBPP.  Moreover, vouchers (and charters) did not see these types of cuts.  To the contrary, voucher and charter funding doubled, quadrupled, quintupled, and octupled in several states.

So does education need transformation in places like Arizona?  Absolutely.  But for the Koch Institute, transformation means preferencing choice, not improving public education.  

As I detail here, those who want to preference vouchers and charters have been able to capture public policy debates by focusing on the problems of public schools without offering any solutions.  When they do so, state constitutions may be the average students last line of defense.

February 12, 2018 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Friday, February 9, 2018

School Integration Versus the Insinuation of Black Inferiority

On Wednesday, The Century Foundation hosted a lively debate on school integration between Professor Sheryll Cashin (Georgetown University) and Dr. Howard Fuller (Marquette University).  Former Secretary of Education John B. King, Jr. moderated the debate.  Both participants were sympathetic to the other's position at times.  Fuller conceded the value of integration and Cashin conceded the indirect negative consequences that can occur when integration is not implemented properly.  But sharp disagreements emerged as well. 

Fuller charged that African American children need better educational opportunities now, not in some pie-in-the-sky integrated world that does not appear to be on his way.  Thus, he expressed outrage and disbelief that integrationists attack the work of charter schools that are coming into minority communities to expand opportunity.  If those are good schools, he said we should not care that they are segregated.  Critiques of those schools, he argued, are premised on black inferiority.

Cashin responded that no one is seriously attempting to address resource inequity either.  Our schools are segregated and unequal.  She emphasized, however, that there is a well-educated white middle class constituency that supports and seeks out integrated environments because it understands the value.  And fostering those movements and implementing the programs they call for does not require huge expenditures of money.  In other words, integration may be far more plausible and cheaper than most assume.


John King also did a great job interjecting sharp questions to both participants.  You can watch the whole debate here.  


February 9, 2018 in Racial Integration and Diversity | Permalink | Comments (0)

Thursday, February 8, 2018

North Carolina Battle over Education Powers Raises Fundamental Concern about Manipulations of Opportunity

This week, the North Carolina Supreme Court will take up the legality of a statute that transferred certain education powers from the State Board of Education to the State Superintendent.   According to local reports, the statute was passed by the republican controlled legislature as a way of retaining the party's control over education.  A democrat had just been elected governor and would have the power to begin appointing new members to the state board.  The Superintendent, however, was republican.

The drama of the situation has generated a relatively high level of interest in a case that might otherwise look like a bureaucratic battle with low stakes.  The News and Observer frames it as a question of who will be "in charge of North Carolina's schools."  At the micro-level, that is correct.  

The general education provisions of the North Carolina Constitution provide:

Section 1. Education encouraged.

Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.

Sec. 2. Uniform system of schools.

(1) General and uniform system: term. The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.

The more specific and directly relevant provisions provide:

Sec. 4. State Board of Education.

(1) Board. The State Board of Education shall consist of the Lieutenant Governor, the Treasurer, and eleven members appointed by the Governor, subject to confirmation by the General Assembly in joint session. The General Assembly shall divide the State into eight educational districts. Of the appointive members of the Board, one shall be appointed from each of the eight educational districts and three shall be appointed from the State at large. Appointments shall be for overlapping terms of eight years. Appointments to fill vacancies shall be made by the Governor for the unexpired terms and shall not be subject to confirmation.

(2) Superintendent of Public Instruction. The Superintendent of Public Instruction shall be the secretary and chief administrative officer of the State Board of Education.

Sec. 5. Powers and duties of Board.

The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support, except the funds mentioned in Section 7 of this Article, and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.

The provisions do not provide a crystal clear answer in the case because they do not include any specificity regarding the Superintendent and Board's power.  Both are, in large part, carrying out the laws enacted by the General Assembly.  Yet, the language would appear to treat the Board as superior to the Superintendent.  The Superintendent is the "secretary and chief administrative officer of" the Board.  "Of" could suggest that he does the work of the Board for it.  Moreover, even if one emphasized that he is "chief" of the board, that would only suggest that he is first among equals on the board, but he is still a member of the board, not its superior.

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February 8, 2018 in State law developments | Permalink | Comments (0)

Wednesday, February 7, 2018

The Backlash to School Discipline Reform Is Ignoring Two Major Points

Yesterday, Bloomberg published an editorial that summed up the views of those who want the U.S. Department of Education to rescind its guidance on racial disparities in school discipline.  The editorial argued:

When students misbehave in the classroom -- and, so long as the prefrontal cortex continues to be the last part of the human brain to develop, they will -- they should have to answer to their teachers. The federal government need not get involved.

Yet federal policies currently discourage schools from suspending chronically disruptive kids, harming the vast majority of students who actually want to learn. In 2014, the federal government warned school districts that they could be investigated for civil rights violations if their disciplinary policies were found to have a disparate impact on students based on race.

The most remarkable lines of the editorial admit that "black students are suspended at nearly four times the rate as white students, and that African-American students are more likely to receive heavier punishments for the same offenses."  I cannot fathom how this is not the business of the federal government. 

Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in all programs receiving federal funds.  Department of Education regulations further prohibit policies whose effect is to discriminate based on racial.  As a practical matter, these regulations are say that if a school's policies produce large racial disparities, the school should have a good explanation for those disparities.  If it does, fine.  If not, the district should change.

When districts suspend African Americans at four times the rate of whites, they should have to explain the disparity.  If the answer is that African Americans are misbehaving more and the districts need to suspend them, fine, they can continue as is.  But if African Americans are receiving heavier punishments for the same offenses--which the editorial admits--the district must change because the district is discriminating.

I cannot imagine a theory under which the federal government would say, "that's okay.  You guys figure out a solution that suits you."  We certainly would not say that the very people who are engaging in discrimination--whether it is conscious or subconscious bias--are the ones best suited to devise a solution.  Yet, that is exactly what the Bloomberg editorial says: "Student discipline should be handled at the local level -- and as much as possible, left to the discretion of individual principals and teachers."

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February 7, 2018 in Discipline | Permalink | Comments (0)

Tuesday, February 6, 2018

Racist Speech, Student Protest, and Institutional Responses

When students first began protesting the fact that names like Woodrow Wilson appear on a building at Princeton and William Saunders on a building at UNC, I had my misgivings.  Yes, the students were correct about the history--these individuals have racist legacies--but the details of the buildings matter.  Was the name placed there to honor the racist legacy?  Was it put there because the family actually donated the money for the building?  Was it because of the alum's political fame?  Is there even a continuing message being sent if no one knows who the person is?

These building names cannot be conflated with confederate memorials, at least not on a wholesale level.  The confederate memorials raise far clearer problems.  The motivation for them has most often been racist and their continuing symbolism can be harmful. Thus, removing them implicates a different analysis.

Nonetheless, I eventually recognized that I am probably too old to have an opinion on what young people do or do not protest about.  I will probably get it wrong.  It is the youth who push us to see the world anew--more clearly--not purported wise elders.  "Wise elders" should offer perspective, but forceful direction is probably more a hindrance than help. 

In retrospect, we should now see that those protesting students elevated a conversation that would have been missed without them.  They have forced a reevaluation of numerous assumptions on main campus.  We owe them thanks.  And we probably owe them deference in the future.

I offer that as backdrop to a student protest at Lake Oswego.  Local news reports that:

Lake Oswego Junior High students staged a walkout at 9 a.m. Monday in response to racist behavior at the school. An estimated 200 students took part in the walkout that lasted a little over and hour. Students could be heard cheering at speeches mode over a megaphone.

More than a week ago, three white students handed a note to another student who is African-American. The note had the N-word on it. The Lake Oswego School District told the boy's mother that two of the three students received "in-school suspensions," but she said not enough is being done.

The mother, Jennifer Cook, said her son has heard the N-word at the school before. She said she was proud of the students for doing the walkout.

"I think it’s incredible, I think it’s great to see the support that the children have for him and their response to this is going to be way better than the school’s response," said Jennifer Cook just prior to the walkout.

The school sent an email message to parents saying they are aware of student plans to walk out Monday. They said they support the students' right to express their opinions and hope to provide a safe environment.

"There will be additional adults including our counseling team on hand, and outside groups will not be allowed on campus," the message said.

According to the Lake Oswego Review, a Facebook post on their site that in part outlined what the mother described as the punishment to the students was shared over 1,800 times.

Sources have told that newspaper that the student who actually passed the note received a one day suspenstion. Two other students were given detentions on campus.

According to the paper, the school and the district office was peppered with angry emails and phone calls. Many were angry over the punishment and or demanded a "zero-tolerance" policy.

The district has issued the following statement on what it intends to do next.

I imagine there a lot of proud parents in Oswego.  I know I would be, but the call for "zero-tolerance" toward the offending students gives me far more concern than the call to take names off of buildings two years ago.  Zero tolerance can be defined in many ways.  It can mean not tolerating a particular type of behavior under any circumstances, but that definition can leave upon the question of what the particular punishment will be.   It could be minor or serious punishment.  Or zero tolerance can mean not tolerating the behavior at all and mandating a severe punishment, such as suspension or expulsion, when it occurs. 

It seems the angry emails to the district in Oswego are calling for the later.  In-school-suspension, to them, is not harsh enough.  

That is a hard position to countenance.  Save situations when a student has intentionally brought a gun to school with a bad purpose in mind or is selling drugs, zero tolerance policies that automatically exclude students from school are a bad idea, if not unconstitutional.  First, they do not actually stop the misbehavior in the long run.  They often make it worse. Second, they impose an enormous harm on the student.  Third, they ignore circumstances that are really important--the age of the child, the seriousness of the behavior, culpability, intent, etc.  When schools ignore those things, they act irrationally and do not do anyone any good.

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February 6, 2018 in Bullying and Harassment, Discrimination, First Amendment | Permalink | Comments (1)

Monday, February 5, 2018

Measuring Segregation in Your Local School District

Vox has published an incredibly powerful new tool for measuring segregation in your local schools.  For those teaching in the area (or engaging in local advocacy), it allows you to make the issue far more personal and tangible than it otherwise would be.

Just select your local district and the tool will pull up a color-coded picture of the school attendance boundaries in your district.  One version of the map will tell you the current racial demographics of each school.  The other will show you what the demographics would be if students were assigned to the school nearest where they live.  It then indicates whether the current zoning is making school segregation better or worse.  In other words, if we accept current housing segregation patterns as a given, does school zoning make schools even more segregated?  

As Vox chart below indicates, most districts do not make things substantially better or worse, yet there are many that do.  It is, of course, more complex than that and I advise against just looking at the highest level data.  The chart reduces each district to a single category--makes segregation better or worse.  If you look at individual districts, however, you can see that a district might make things better or worse in particular pockets of the district.  This gets lost when reducing the district to an average. 

In Richland One School District in Columbia, SC, for instance, the overall district basically tracks the segregation of the city.  But that is not the case in all pockets of the city.  The district appears to assign students who live in predominantly minority neighborhoods to predominantly minority schools.  Conversely, schools located in predominantly wealthy white neighborhoods tend to pull in an additional percentage of minority students from surrounding areas. In other words, the district does not touch racial isolation in minority neighborhoods, but it whittles at it in white neighborhoods. A district might also whittle out minority students in neighborhoods that are at the tipping point of becoming majority-minority.  This would, presumably, make whites more likely to remain in their local school.  You can assess the merits of this yourself, but it surely raises a host of questions you would miss if only looking at the high level data.



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February 5, 2018 in Racial Integration and Diversity | Permalink | Comments (0)

Saturday, February 3, 2018

California's Every Student Succeeds Plan Fails an Incredibly Low Standard: Are We Missing a Subversive Plot?

In full disclosure, I have not read California's state plan for complying with the Every Student Succeeds Act (ESSA).  But if we assume that the Department of Education and the peer reviewers of the plan are minimally competent and fair, California's plan is shocking.  It went out of its way to not comply with ESSA.  This is no small task. The Department is now rejecting California's plan.

Putting aside the merits of the ESSA in general, it asks very little of the states--far less than No Child Left Behind asked for the prior decade and a half.  As I explain in Abandoning the Federal Role in Education: The Every Student Succeeds Act

The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. . . . 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.

States were free to devise almost any plan they could conceive, as long as they came up with something--as long as they filled in the blanks.  Pick a word, any word.

The problem with California's plan is that it appears to not have filled in some important blanks.  In particular, it did not set achievement goals.  Those goals could have been high or low.  California apparently chose neither.  As I was railing on the ESSA and how much authority it devolved to the states in Abandoning the Federal Role, I could not imagine a state would go this far.  Instead, I thought states would use the flexibility to manipulate and cover up inequality.  A few of the early ESSA plans did just that.  And the law allows it.  

For some reason, California does not appear interested in manipulation.  

Almost all of the Department's comments go to the issue of picking achievement and graduation targets.  It makes no suggestion of what those targets should be because, of course, California can choose.  I found this comment most telling:

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February 3, 2018 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Friday, February 2, 2018

Study Finds Recession-Era Education Cuts Significantly Impacted Student Outcomes: How Many Constitutional Rights Were Violated?

A research team lead by Kirabo Jackson just released Do School Spending Cuts Matter? Evidence from the Great Recession.  They found:

districts that faced large revenue cuts disproportionately reduced spending on non-core operations. However, they still reduced core operational spending to some extent. A 10 percent school spending cut reduced test scores by about 7.8 percent of a standard deviation. Moreover, a 10 percent spending reduction during all four high-school years was associated with 2.6 percentage points lower graduation rates. While our estimates are smaller than some in the literature, spending cuts do matter.

These new findings are a follow-up to an equally important earlier study.  In 2014, C. Kirabo Jackson, Rucker Johnson, and Claudia Persico released a comprehensive analysis of the connection between school funding and student outcomes.  They "us[ed] a newly compiled database of school finance reforms and a recently available long panel of annual school district data on per-pupil spending that spans 1967–2010."  They then used "an event-study analysis of the effects of different types of school finance reforms on per-pupil spending in low- and high-income school districts."  They found that school finance reforms played a substantial role in equalizing school funding, or rather shrinking existing inequality.

The big question, however, was whether increases and equalization in school funding had a positive effect on students.  Using the same data set, they found

that a 20 percent increase in per-pupil spending each year for all 12 years of public school for children from poor families leads to about 0.9 more completed years of education, 25 percent higher earnings, and a 20 percentage-point reduction in the annual incidence of adult poverty; we find no effects for children from non-poor families. The magnitudes of these effects are sufficiently large to eliminate between two-thirds and all of the gaps in these adult outcomes between those raised in poor families and those raised in non-poor families. 

This was the most precise measure of the effect of school funding on student outcomes I had ever seen.  In Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, I used Jackson's work, along with two other analogous studies, to gauge the seriousness of the massive budget cuts that most states enacted following the Recession--much of which still remains in place today, a decade later.   Basic state constitutional law demands equal and adequate educational opportunities (in most states).  If Jackson and other's initial calculations were correct, there was a strong possibility that state legislature's were violating their state constitutions by imposing new educational harms.  The other problem has been that state supreme courts became less aggressive in enforcing education rights during the recession. Thus, violations were going up at the same time that remedies were going down, or disappearing all together.

Jackson’s new study of the Recession-era cuts confirms that my suspicions were correct, and all but a few courts did absolutely nothing about it.  The problem with the typical state supreme court school funding decision--even the positive ones--is that it only addresses education violations after the fact.  And the decisions almost never articulate standards to avert the next disaster.  They assume a world that just does not exist--one in which they explain the constitution to the legislature and it will act accordingly moving forward, even in the face of great challenges.  As a practical matter, this allows a vicious cycle of education violations to inevitably occur, and the students who suffer them are left to carry the full burden. 

February 2, 2018 in School Funding | Permalink | Comments (0)

Thursday, February 1, 2018

Data Is Building to Show That Charters Are Making North Carolina Schools More Segregated and More Unequal

Helen Ladd has followed her poignant charter school segregation study with a new one on the financial impacts of charters on the public school system.  Two years ago, she, Charles Clotfelter, and John Holbein released Growing Segmentation of the Charter School Sector in North Carolina.  They found that the state's charter schools were becoming increasingly white, while its charters were becoming increasing populated by students of color.  It was probably the most precise and impactful study on the topic of charter school segregation to date. 

I separately theorized that this particular demographic trend was occurring in North Carolina as a response to relatively high levels of integration in the public schools.  In other states, the typical charge is that charters are predominantly minority and more segregated than the traditional public schools.  While far from perfect, North Carolina's traditional public schools have tended to be some of the most integrated in the nation.  This is partly attributable to the fact that there are 100 counties in the state and only 102 or 103 school districts.  So those who object to integration cannot simply flee to a suburban district--at least not easily.

Charters schools potentially change that in North Carolina.  The so-to-speak dissenters can simply enroll in a local charter now.  This is not to say that all North Carolina charters play this role, but Ladd's work suggests that many do.

Her new study suggests that not only are these charters segregating education, they are draining funds from the regular public schools.  Her abstract states:

A significant criticism of the charter school movement is that funding for charter schools diverts money away from traditional public schools. As shown in prior work by Bifulco and Reback (2014) for two urban districts in New York, the magnitude of such adverse fiscal externalities depends in part on the nature of state and local funding policies. In this paper, we build on their approach to examine the fiscal effects of charter schools on both urban and non-urban school districts in North Carolina. We base our analysis on detailed balance sheet information for a sample of school districts that experienced significant charter entry since the statewide cap on charters was raised in 2011. This detailed budgetary information permits us to estimate a range of fiscal impacts using a variety of different assumptions. We find a large and negative fiscal impact from $500-$700 per pupil in our one urban school district and somewhat smaller, but still significant, fiscal externalities on the non-urban districts in our sample.

This study only adds fuel to theory I offer in Preferencing Choice: The Constitutional Limits.

February 1, 2018 in Charters and Vouchers, Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Wednesday, January 31, 2018

Has Denver Found the Magic Sauce for School Diversity and Equal Access for Low Income Students?

Social science has long demonstrated the various harms that students suffer as a result of attending high poverty schools.  Some of those are obvious ones regarding access to resources like teachers, but also include peer-to-peer effects.  Students learn a tremendous amount from one another, and students in low-income schools tend to be deprived of important peer-to-peer influences.  These resources and influences are so central to an adequate education that I have argued that denying students equal access to middle-income environments violates their constitutional right to education under state law. 

At the same time, all students, regardless of wealth, benefit academically and socially from exposure to diversity.  In other words, middle-income white students have a lot to learn from low-income minorities as well.  Thus, Rob Garda argues white parents must recognize and pursue these benefits.  Otherwise, they are disadvantaging their children as well.  He aptly points out that the way to ensure integration is to focus on the interest convergence between these communities.  

[He] describ[es] the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation and affirmative action jurisprudence. Multiracial schools will not be created or endure unless white parents believe it to be in their children’s best interests. [He] next describes the extreme racial segregation in schools today and how white children are the most racially isolated students. This isolation contributes to the unconscious and automatic racial bias that infects everyone and will impair white children’s ability to successfully navigate the multicultural marketplace. Integrated schools, however, can de-bias white children and teach them cross-cultural competence, a skill they will need to effectively participate in a market with increasingly multicultural customers, co-workers and global business partners. 

These benefits are so compelling that a group of the nation's leading education scholars recently filed an amicus brief before the Minnesota Supreme Court arguing that a diverse educational environment falls within the meaning of an adequate education.

Denver just announced a new school assignment policy that, on its face, seems to find the interest convergence Garda references.  Denver is responding to the calls of parents at high-performing schools for more diverse learning environments.  It seeks to achieve this goal by make socio-economic status an explicit priority in admission to these schools.  The devil is, of course, in the detail and it matters tremendously how many seats in these high performing schools Denver will open, but this is a crucially important step regardless.  The press release offers this explanation:

Denver Public Schools (DPS) Superintendent Tom Boasberg shared how the school district will help schools continue to increase diversity while still meeting the needs of their communities. DPS is now giving priority seating at select high-performing schools to students who qualify for free- and reduced-price lunch (FRL) during the district’s SchoolChoice process.

“Research shows that at whatever income level, all students benefit from being in diverse schools – that is true both academically and socially,” said Superintendent Tom Boasberg. “We hear from students and families about how much they value being members of a diverse community. They want to make sure their classrooms and their learning experiences are ones that they’re sharing and learning from students all across Denver who represent the racial, ethnic and economic diversity that is a strength of our city.”

In 2016, with the goal of providing more integrated schools, DPS began a pilot program at some high-performing, low-poverty schools to prioritize enrollment for students eligible for FRL, an indicator of poverty. In these schools, students living within the boundary still have priority; outside the boundary, the priority goes to low-income students. After receiving positive feedback from the community through DPS’ Strengthening Neighborhoods Initiative, more schools have expressed interest in participating in this pilot program.

“This is our first year as a school community, and we welcome the chance to offer seats in our school to students who need it the most,” said Inspire Elementary Principal Marisol Enriquez. “We have a commitment to equity and we believe it’s important for our students to grow surrounded by diversity.”

As the city continues to grow and housing prices increase, many parts of Denver are undergoing major shifts in demographics. This is resulting in significant changes in housing patterns and a major reduction in many neighborhoods of school-aged children. Diverse neighborhoods are struggling to balance the challenges of gentrification with the rich cultural histories of these communities. DPS’ priority seating effort maintains the school district’s enrollment priorities and promotes vibrant neighborhoods.

January 31, 2018 in Racial Integration and Diversity | Permalink | Comments (0)

Can Schools Display "In God We Trust" Posters in Every Classroom? South Carolina Lawmaker Says Yes

A bill is moving through the South Carolina legislature that would mandate the display of "In God We Trust" alongside the state motto--"While I breathe, I hope"--in every public school classroom in the state.  The bill directs the State Board of Education to develop a poster with these mottos that all schools would use.  In a bit of irony, this is one those unique aspects of the education code that would also apply to every charter school in the state.  Apparently, other states, like Georgia, Florida, and Arkansas, are contemplating similar bills.

According to local news reporting, Rep. Mike Burns, the bill's sponsor, says

it’s time to bring the word “God” back in the school system. . . . [But] Rep. Burns says his goal isn’t to push the agenda of a certain religion. “Just because somebody references the name God doesn't mean that you’re pouring religion over their head.”

My reading of the cases suggests this bill raises serious constitutional problems.  Courts typically look at three major issues in these types of cases: purpose, effect, and coercion.  A religious purpose alone makes this type of legislation unconstitutional.  If the goal is to put God back in schools, disclaimers to the contrary will not save the legislation. 

The effect of the poster is, likewise, problematic regardless of the intent.  The average person who sees a new poster in school that proclaims "In God We Trust" would almost certainly see it as an endorsement of religion.  Seeing that motto in every classroom in the school would send an even clearer message.  No other phrase or motto comes closes to holding that status.  Nor to my knowledge has anything ever held that status.  The only thing that comes close is the American flag, but of course, the flag is not a religious symbol.  Yet, even with it, the Court has held, on other grounds, that schools cannot force students to participate in the pledge, with the idea being that it is beyond the power of schools to force students to accept or submit to idea.  This applies to political as well as religious ideas.

Even more specific precedent bears on these posters. The Supreme Court and lower courts have struck down the moment of silence in schools (because the stated purpose in the state was to encourage prayer), and the display of the Ten Commandments in school because of the message it sends.  The "In God We Trust" bill includes both problems--a religious purpose and a religious effect. 

Although not directly on point, the Ninth Circuit also decided a case involving a teacher who had put up two large banners in his classroom that read "In God We Trust," "One Nation Under God," and "God Bless America."  The school ordered him to take them down and he claimed it violated his First Amendment rights.  The Ninth Circuit held that the school could order him to take them down without violating his rights.  It did not answer the question of whether the school could allow these banners if it wanted.  But it stands to reason that the school correctly perceived the banners to be violations of the establishment clause, which is why it could order them taken down.

To be clear, there is an important exception to the foregoing rules.  The state can display religious texts when there is a secular purpose and effect.  This means that, as part of teaching history or legal lessons, schools can potentially display the Ten Commandments, but only if the Commandments are surrounded other secular materials that make it clear that the overall purpose is secular not religious.  Placing the Ten Commandments aside just one other document is not enough to lead to this conclusion.  Thus, the South Carolina motto is unlikely to be enough by itself to make the overall display secular.  To the contrary, placing those two mottos together sends an arguably even strong message that the South Carolina trusts in God--a message stricty prohibited if it means that.  Neither the state nor its designee can endorse religion in any respect.




My suspicion is that lawmakers think there is a loophole because "In God We Trust" has been treated as what courts call a "ceremonial deism" in the context of U.S. currency and architectural fixtures.  This area of the law is extremely difficult to reconcile with the generally applicable First Amendment standards.  The simplest explanation is that the Court has said that the monetary and architectural references are not really religious statements.  They are just utterances and mottos with no real meaning, but which we have stuck with through history for tradition sake, not to make a religious statement.  Thus, they don't violate the First Amendment. 

New uses of those mottos would appear different, particular when used for the purpose of making a religious statement.  Using the motto as a backdoor way to try to make a new statement is unlikely to fit the narrow "ceremonial deism" exception.  Schools simply have not always had these posters in the past, which would indicate an effort to make a new affirmative statement.

About a decade ago, the former Attorney General of Georgia disagreed with the foregoing analysis.  He pointed out that the motto has been sanctioned in other contexts, so there is no reason to suspect it would be different in school.  He, however, does not take up all the factors and cases that make the classroom far different than the dollar bill and buildings that are a century old.  He did acknowledge that he could be wrong--as do I.




January 31, 2018 in First Amendment | Permalink | Comments (1)

Tuesday, January 30, 2018

If Students Have a Right to Preschool, Why Aren't Their Teachers Paid the Same as Others?

A decade ago, James Ryan, argued that state constitutional rights to education should include access to preschool.  Given what we know about brain development, access to high quality education opportunities at an early age is crucial.  He explained “Advances in neuroscience have made it clear that the first few years of life are crucial for cognitive development and that early experiences can influence the emerging architecture of the brain” and “[s]ocial science evidence, in turn, suggests that preschool produces definite and substantial gains in learning and development, at least over the short-run.”  While there are admittedly gaps in the research, “most of the evidence about preschool points in one direction and is not contradictory or intensely contested.”  It is so powerful that researchers began doing cost-benefit analyses of preschool, “concluding that in most cases preschool will more than pay for itself” due to the savings it will produce in other educational, social service, and juvenile justice programs. 

Ryan called on school funding litigators to include preschool claims in their cases and many have.  And many states have responded.  A recent New York Times Magazine article, however, suggests that states are not nearly as serious about preschool as they should be.  The title says it all-- Why Are Our Most Important Teachers Paid the Least?

The article reports that:

Even as investment in early-childhood education soars, teachers like Kelly continue to earn as little as $28,500 a year on average, a valuation that puts them on par with file clerks and switchboard operators, but well below K-12 teachers, who, according to the most recent national survey, earn roughly $53,100 a year. According to a recent briefing from the Economic Policy Institute, a majority of preschool teachers are low-income women of color with no more than a high-school diploma. Only 15 percent of them receive employer-sponsored health insurance, and depending on which state they are in, nearly half belong to families that rely on public assistance. “Teaching preschoolers is every bit as complicated and important as teaching any of the K-12 grades, if not more so,” says Marcy Whitebook, a director of the Center for the Study of Child Care Employment at the University of California, Berkeley. “But we still treat preschool teachers like babysitters. We want them to ameliorate poverty even as they live in it themselves.”

The article also includes good updates on the social science research since Ryan first wrote his article.

January 30, 2018 in Pre-K Education | Permalink | Comments (0)

Connecticut Supreme Court Applies Low Adequacy Standard, Drawing Charge That It Is "Heartless"

School funding litigation in Connecticut caught the nation's attention in late 2016 when a trial judge there issued and lengthy and scathing appraisal of the state's school funding practices.  The court found that many of the state's education policies were simply irrational. For instance, the court wrote: "the state spends billions of dollars on schools without any binding principle guaranteeing that education aid goes where it's needed. During the recent budget crisis, this left rich schools robbing millions of dollars from poor schools. ... Instead of the state honoring its promise of adequate schools, [it] has left rich school districts to flourish and poor school districts to flounder ... [and] the system cannot work unless the state sticks to an honest formula that delivers funding according to local need."  The judge gave the state 180 days to come up with a remedy.

Interestingly, however, the trial court applied a relatively low threshold of educational adequacy.  The case has now made it to the state supreme court, which affirmed that aspect of the case.  In short, plaintiffs won on certain counts, but the courts, in applying a low adequacy standard, have ignored other crucial educational failures.  Wendy Lecker, Education Law Center, offered this critique of the recent decision in the Stamford Advocate.

Heartless is the best way to describe the Connecticut Supreme Court’s 4-3 decision in the state’s long-running school funding case, CCJEF v. Rell.

The court’s majority acknowledged that at the 2016 trial, the plaintiffs proved that Connecticut’s poorest districts suffered severe deprivations in educational resources, especially those resources designed to help our neediest children. The court conceded that these districts lack reading interventionists, bilingual services, guidance counselors, social workers, psychologists, preschool and more.

 The court even admitted that “the lack of such support services makes it extremely difficult for many students in the state’s neediest school districts to take advantage of the state’s educational offerings.”
Yet Connecticut’s highest court ruled that these shocking deprivations do not amount to a constitutional violation. Rather, it ruled that the only things the state must provide under our constitution are: the bare minimum of teachers, facilities, curricula and instrumentalities of learning — such as books, computers and desks.

Our Supreme Court admitted that these four resources are inadequate to enable many of Connecticut’s children, our neediest, to access educational opportunities. Thus, in deciding that only these meager resources need be provided, the court essentially ruled that the state bears no constitutional responsibility to these children — only to those who do not need such support.

This decision represents a monumental step backward. Courts across the United States routinely recognize that since out-of-school factors can hinder some children’s ability to access educational opportunities, it is the state’s responsibility to provide support that mitigates those factors to guarantee the same educational opportunities to these children that others enjoy.

Almost 30 years, ago, the New Jersey Supreme Court understood that a state’s duty to guarantee a constitutionally adequate education addresses not only “reading, writing, and arithmetic” but also “the environment that shapes these students' lives and determines their educational needs.” Similarly, courts in Massachusetts, Wyoming, Kansas, Washington, New York, South Carolina, Tennessee and elsewhere mandate that, as part of the state’s obligation to ensure adequate educational opportunities to all children, it must provide additional services to at-risk children, such as those living in poverty, English Language Learners and students with disabilities.

Social workers, guidance counselors, psychologists, tutoring, bilingual education, special education programs and other supports have long been common features of every school system. To pretend that these supports are not essential components of education is to deny reality.

The court’s decision was not unanimous. Justice Richard Palmer wrote a strongly worded dissent, which is notable not only for its content. It is also striking because it was Justice Palmer’s opinion in CCJEF the last time it was before the Supreme Court, in 2010, that established the standard for determining what kind of education Connecticut owes its children.

In issuing its decision last week, the majority claimed it was merely applying Justice Palmer’s 2010 standard. However, Justice Palmer pointedly disagreed.

“Residents of our poorest communities, even those hungry to learn, may have to overcome a host of obstacles before they are able to attend to fractions and Fitzgerald,” Justice Palmer wrote. He concluded that the state cannot shirk its responsibility to attend to those obstacles.

Justice Palmer maintained that his 2010 decision mandated that the state not only provide teachers, facilities, curricula and instrumentalities, but that it also take into consideration the particular needs of a local school district, including the needs of children living in poverty, children learning English and children with disabilities.

Justice Palmer noted that the majority acknowledged that had the state provided only college level textbooks to elementary school students — well above a level they could comprehend — that would have been a violation of these children’s constitutional rights. He queried why the constitution is “not also offended if, for example, a school fails to provide instruction or instructional materials that are comprehensible to a substantial subpopulation of students whose primary language is not English?”

Connecticut has almost 200,000 students who are economically disadvantaged, more than 36,000 English Language Learners and over 77,000 students with disabilities. Many need additional support to access their opportunity to an education.

As Justice Palmer declared that “(i)t is not enough to seek success in some places, for some children ... the educational system must be reasonably designed to achieve results in every district and neighborhood. Our state constitution simply will not allow us to leave our neediest children behind.”

The court’s majority was willing to leave hundreds of thousands of Connecticut’s children behind. Will we allow Connecticut’s political leaders to do the same?


January 30, 2018 in School Funding | Permalink | Comments (1)

Friday, December 8, 2017

The Strange Ideas Found in Voucher Schools' Textbooks Are a Problem Reaching Well Beyond Just the Students Learning Them

Huffington Post's study of the curriculum offerings in private schools that participate in state run voucher and tax credit programs has set the internet ablaze.  Huffington Post identified all of the private schools that receive voucher or tax credit funding--no small task. It then collected information on the textbooks those schools use.  The results were startling in many respects.  The study turned up books that promote some pretty sensational ideals: 

  • In the 1800s, Satan hatched “the ideas of evolution, socialism, Marxist-socialism (Communism), progressive education, and modern psychology” to counter America’s increased religiosity.
  • Women's right to vote and increased participation in the workforce coincided with women acting in increasingly anti-Christian ways, such was disobedience "to their own husbands.”
  • The books sympathize with the South in regard to the Civil War or “war between the states," as they phrase it, and while the acknowledge that slavery was likely a factor in the war, they emphasize other explanations.

These types of ideas were promoted in three particular textbooks/curriculums.  The charts below reveal the frequency with which voucher and tax credit schools use these textbooks.


The implications of the ideas that these books promote cannot be contained simply to the schools in which they are taught.  As I emphasized in 2013 in Charter Schools, Vouchers, and the Public Good,

Increasingly forgotten in these conversations [about school choice] is that the purpose of receiving an education, at least a public education, goes far beyond the teaching of information and skills and the interests of individual students. Public education includes the transmission of social values that lead to social cohesion and the overall betterment of society. Test scores tell us nothing of these values, and private markets are ill suited to deliver them. Whereas private markets respond to consumer preferences, public education seeks to create public preferences. Additionally, given the nature of the democratic values our public education seeks to promote, individually responsive education makes little sense. Public education entails the provision of common experiences under conditions consistent with equal protection, due process, free speech, and religious neutrality. A consumer-based system allows for too much educational variation and opens the door to individual biases that are contrary to public education.

Based on their track record thus far, charters and vouchers, on the whole, are not operating in furtherance of the public good. Rather than promote the public good, they tend to promote the individual good and operate in ways that actively undermine the public good. 

I further explain:

Consider, for instance, an individual-orientated education system that includes elements of school choice. Such a system potentially caters to antisocial behaviors by permitting students with shared antisocial values to choose to coalesce in particular schools or programs. Over the long term, this type of system would undermine social cohesion and counteract the effect of social pressures that might otherwise produce common values.

In contrast, many of the specific values a collective-based concept of education seeks to facilitate are those that mitigate and limit individuals' tendency to adopt antisocial or group mindsets and act on them. For instance, collective-based education promotes the individual's commitment to enhancing the public sphere and common good. Because individuals tend toward self-interest, collective-based education seeks to counteract the tendency toward self-serving interests and affirmatively promote the opposite. Unsurprisingly, collective-based education can generate significant controversy in promoting these values, as doing so only highlights the tension between competing concepts of the public good. Some theorists define the common good not as a society with an expansive public sphere but one with unfettered individual liberty. Collective-based education generally agrees that a core set of individual liberties must be protected, but collective education limits individualism at the point that it seriously threatens group interests.

This is not to say that collective-based education would deny individuals the freedom to adopt antisocial values. If our First Amendment jurisprudence teaches anything, it is that arriving at collective wisdom requires us to protect all individual's ideas, regardless of how repugnant we might find those ideas. And the Court has held that the same principles extend to public schools. Protecting individual freedom, however, is far different from requiring the state to adopt policies and structures that might facilitate and support antisocial values and behavior. At most, the state is obligated to allow individuals to opt out of the public system when their individual values are at odds with public values, but, even then, the state can place limits on the private pursuit of individual values when the private pursuits pose a significant threat to societal well being.

Thus, the irony in Huffington Post's findings is not only are these schools teaching ideas that are at odds with the justifications for providing public education, the public is actually funding these ideas.  Moreover, in doing so, these programs have the potential to undermine public education itself.  I argued in 2013 that these programs could not just further individual choice, but give private individuals the ability to dissent and, as a practical matter, veto larger public policy agendas.  For more, see the full article.

December 8, 2017 in Charters and Vouchers | Permalink | Comments (0)

Thursday, December 7, 2017

Education Law Prof Blog Makes ABA's Top 100

ABA Journal Web 100 banner.

As I was checking to confirm that my colleague Colin Miller's Evidence Prof Blog deservedly made the ABA Journal's new Top 100 list just as it had for the last several years, I was shocked to see the Education Law Prof Blog right next to it.  I assume that one of my friends or regular readers out there nominated the blog rather than the ABA coming up with it on its own.  I am pretty confident in that assumption, so thank you to whoever made the nomination. And thanks to those who read the blog.  It is only the idea that the blog is useful to others that motivates me to write posts.  The idea that someone thinks it is useful enough to nominate to the ABA motivates me to try harder to post more regularly.


December 7, 2017 | Permalink | Comments (1)

Wednesday, December 6, 2017

New Report on Racial Bias in School Discipline Offers Great Prelude for Confirmation Hearing for the Head of the Office for Civil Rights

The NAACP Legal Defense and Educational Fund, Inc. (LDF) released a new report last week on implicit bias in school discipline.  It is a particularly efficient and straightforward report that should be easily accessible to the educators and the general public.  They, more than attorneys and policy wonks, seem to be the intended audience.  It also includes some clear "how to" steps, aimed at minimizing the effects of bias.  LDF offered this in their press release:

The report not only explains the ways in which implicit bias – subtle, subconscious beliefs on race – held by teachers, administrators, and school resource officers (SROs) leads to the over-disciplining of students of color, but offers a range of recently developed interventions that have been effective in limiting the harmful effects of implicit bias.

“Addressing implicit bias in schools is essential to dismantling the school-to-prison pipeline, which wreaks havoc on students of color,” said Ajmel Quereshi, Senior Counsel at LDF and co-author of the report. “Instead of readily excluding students from the learning process, educators should heed our recommendations to create an environment that promotes social belonging for all students regardless of race.”

Civil rights advocates, as well as the general public, have long been aware of racial disparities in school discipline.  As early as 1974, civil rights advocates highlighted that Black students were two to three times more likely to be suspended than white students.  Sadly, little progress has been made in reducing these disparities.  In 2012, for example, Black students made up only 17 percent of students in the United States but accounted for 40 percent of out-of-school suspensions and were three times more likely than white students to be suspended or expelled from school. While six percent of all K-12 students received one or more out-of-school suspensions during the 2013-14 school year, the percentage was 18 percent for black boys; 10 percent for black girls; five percent for white boys; and two percent for white girls. This wide racial disparity persists despite gender and age differences.

The disparate punishment for Black students in our nation’s schools can have dire consequences beyond their K-12 school experiences. Once a Black student is suspended, the chances that he or she will drop out of school, become unemployed, and enter the criminal justice system rises dramatically.

New interventions that put more attention on student-teacher relationships and the social and psychological factors contributing to these relationships have begun to lessen the extreme levels of discipline administered to Black children. The report discusses a number of these strategies, including the “wise feedback” intervention, which focuses on providing clear feedback in a manner that prevents students from believing that the teacher may harbor a negative bias against them. Another technique detailed in the report is the “empathic discipline” intervention, which exposes teachers to their kids’ personal stories so that they can gain insight into the experience of racially stigmatized students in school. This exposure encourages teachers to use discipline as a chance to build a relationship with the student and cultivate a learning opportunity.

“The over-disciplining of students of color presents a crisis for our young people, our schools, and our criminal justice system,” said Jason Okonofua, Assistant Professor of Psychology at the University of California, Berkeley and co-author of the report. “The interventions and recommendations offered in our report could significantly improve the fairness of school discipline, helping to ensure that every student has a meaningful opportunity to succeed.”

Beyond these interventions, the report also offers specific recommendations for school districts on how to better address implicit bias, and how to mitigate the harm caused by discretionary offenses and school resource officers. These recommendations have already shown promise in ameliorating the over-disciplining of students of color, and in creating a safer learning environment where all students feel inspired to succeed.

The report was published with the guidance of the Legal Strategies Collaborative, a group of 15 organizations that focus on limiting the school-to-prison pipeline, and was made possible by a grant from the Open Society Foundations.

Read the full report here.

The report could not be more timely given that Kenneth Marcus, the nominee for Assistant Secretary in the Office for Civil Rights at the U.S. Department of Education, had his confirmation hearing yesterday. Edweek reports that he was thoroughly grilled on school discipline issues.  The Office issued guidance a few years ago that spelled out a clear framework for evaluating racial disparities in school discipline.  Pursuant to that guidance, the Office forced corrective change in a number of school districts.  The question now is whether Marcus would continue that policy.  Here are a few exchanges from the hearing.


"If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?" asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.

"In general, the answer is yes," Marcus said.

Murphy said he "would argue that we have a school discipline crisis in this country." He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. "If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?" he asked.

"Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern," Marcus responded. "Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions."

 "I will just share my view with you," Murphy responded. "I don't believe there's any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn't find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?"

Marcus said his "experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are." He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.

"I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences," said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.

His answers were relatively moderate all things considered. He was not hostile to the guidance at all, which sets him apart from many others on the right.  And the fact that DeVos did not rescind the guidance during her recent hatchet job on education regulations is somewhat comforting. 

With that said, Marcus is extremely sophisticated and previously served in the Office during the Bush administration.  I would not expect him to make a fool of himself during a hearing or even invite confrontations that he could avoid.  Unlike so many other nominees, he actually understands government and what this Office is supposed to do. Marcus clearly understands the law and it is not his mission to undermine it or the Office.

He and I have debated before and we, of course, disagree on the substance of any number of important issues. Once we get past basic threshold questions or the application of the law, we begin to diverge.  And the way he dealt with anti-Israel protests on college campuses a decade ago raises major red flags and has drawn a lot of letters in opposition to him, including from professors.  To be fair, however, the  legal rationale that he relied on with the anti-Israel protests was the same rationale that he and the Office used to protect Sikh and other religious minorities from harassment in school following the 9/11 attacks, although the harassment of Sikh's was far more direct and clear.  This leads many to believe that while Marcus won't undermine the Office, he will, from time to time, use it for his own ends. 

Am I happy that he will lead the Office?  Absolutely not.  Do his pet projects bother me? Absolutely yes.  Is he competent, generally reasonable, and better than a host of other people I might have expected Trump to nominate?  Absolutely yes.  In short, he is a mixed bag.

December 6, 2017 in Discipline, Federal policy | Permalink | Comments (0)

Tuesday, December 5, 2017

The Constitutional Right to Education Is Long Overdue

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SCOTUS. J. Main /

Public school funding has shrunk over the past decade. School discipline rates reached historic highs. Large achievement gaps persist. And the overall performance of our nation’s students falls well below our international peers.

These bleak numbers beg the question: Don’t students have a constitutional right to something better? Many Americans assume that federal law protects the right to education. Why wouldn’t it? All 50 state constitutions provide for education. The same is true in 170 other countries. Yet, the word “education” does not appear in the United States Constitution, and federal courts have rejected the idea that education is important enough that it should be protected anyway.

After two decades of failed lawsuits in the 1970s and ‘80s, advocates all but gave up on the federal courts. It seemed the only solution was to amend the Constitution itself. But that, of course, is no small undertaking. So in recent decades, the debate over the right to education has mostly been academic.

The summer of 2016 marked a surprising turning point. Two independent groups – Public Counsel and Students Matter – filed lawsuits in Michigan and Connecticut. They argue that federal law requires those states to provide better educational opportunities for students. In May 2017, the Southern Poverty Law Center filed a similar suit in Mississippi.

At first glance, the cases looked like long shots. However, my research shows that these lawsuits, particularly in Mississippi, may be onto something remarkable. I found that the events leading up to the 14th Amendment – which explicitly created rights of citizenship, equal protection and due process – reveal an intent to make education a guarantee of citizenship. Without extending education to former slaves and poor whites, the nation could not become a true democracy.

Why a federal right to education matters

Even today, a federal constitutional right to education remains necessary to ensure all children get a fair shot in life. While students have a state constitutional right to education and it has made a real difference in many states, too many state courts have been ineffective in protecting those rights.  Some courts claim they lack the authority to demand reform.  Others simply struggle to cajole legislative compliance with court orders.

Without a federal check, education policy tends to reflect politics more than an effort to deliver quality education. In many instances, states have done more to cut taxes than to support needy students.

And a federal right is necessary to prevent random variances between states. For instance, New York spends US$18,100 per pupil, while Idaho spends $5,800. New York is wealthier than Idaho, and its costs are of course higher, but New York still spends a larger percentage on education than Idaho. Tennessee and Kentucky make the point even clearer.  Kentucky is a little poorer than Tennessee, but spends far more on education—$8500 per pupil compared to Tennessee’s $7300.  In other words, geography and wealth are important factors in school funding, but so is the effort a state is willing to make to support education.

And many states are exerting less and less effort. Recent data show that 31 states spend less on education now than before the recession – as much as 23 percent less.

States often makes things worse by dividing their funds unequally among school districts. In Pennsylvania, the poorest districts have 33 percent less per pupil than wealthy districts. Half of the states follow a similar, although less extreme, pattern.

Studies indicate these inequities deprive students of the basic resources they need, particularly quality teachers. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low-income students completing nearly a year of additional education. This additional education wipes out the graduation gap between low- and middle-income students. A Kansas legislative study showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.”

These findings are just detailed examples of the scholarly consensus: Money matters for educational outcomes.

The new lawsuits

While normally the refuge for civil rights claims, federal courts have refused to address these educational inequalities.  In 1973, the Supreme Court explicitly rejected education as a fundamental right. Later cases asked the court to recognize some narrower right in education, but the court again refused.

After a long hiatus, new lawsuits are now offering new theories in federal court. In Michigan, plaintiffs argue that if schools do not ensure students’ literacy, students will be consigned to a permanent underclass. In Connecticut, plaintiffs emphasize that a right to a “minimally adequate education” is strongly suggested in the Supreme Court’s past decisions. In Mississippi, plaintiffs argue that Congress required Mississippi to guarantee education as a condition of its readmission to the Union after the Civil War.

While none of the lawsuits explicitly state it, all three hinge on the notion that education is a basic right of citizenship in a democratic society. Convincing a court, however, requires more than general appeals to the value of education in a democratic society. It requires hard evidence. Key parts of that evidence can be found in the history of the 14th Amendment itself.

The original intent to ensure education

Immediately after the Civil War, Congress needed to transform the slave-holding South into a working democracy and ensure that both freedmen and poor whites could fully participate in it. High illiteracy rates posed a serious barrier. This led Congress to demand that all states guarantee a right to education.

In 1868, two of our nation’s most significant events were occurring: the readmission of southern states to the Union and the ratification of the 14th Amendment. While numerous scholars have examined this history, few, if any, have closely examined the role of public education. The most startling thing is how much persuasive evidence is in plain view. Scholars just haven’t asked the right questions: Did Congress demand that southern states provide public education, and, if so, did that have any effect on the rights guaranteed by the 14th Amendment? The answers are yes.

Poster with text from the reconstructed Constitution depicting African-American leaders in Louisiana. At center is a full-length portrait of Oscar J. Dunn, lieutenant governor of Louisiana, seated at a desk. Surrounding him are 29 portraits of African-American delegates to the Louisiana Constitutional Convention of 1868. Know Louisiana

As I describe in the Constitutional Compromise to Guarantee Education, Congress placed two major conditions on southern states’ readmission to the Union: Southern states had to adopt the 14th Amendment and rewrite their state constitutions to conform to a republican form of government. In rewriting their constitutions, Congress expected states to guarantee education. Anything short was unacceptable.

Southern states got the message. By 1868, nine of 10 southern states seeking admission had guaranteed education in their constitutions. Those that were slow or reluctant were the last to be readmitted. The last three states – Virginia, Mississippi and Texas – saw Congress explicitly condition their readmission on providing education.

The intersection of southern readmissions, rewriting state constitutions and the ratification of the 14th Amendment helps to define the meaning of the 14th Amendment itself. By the time the 14th Amendment was ratified in 1868, state constitutional law and congressional demands had cemented education as a central pillar of citizenship. In other words, for those who passed the 14th Amendment, the explicit right of citizenship in the 14th Amendment included an implicit right to education.

The reasoning of both Congress and the state conventions was clear: “Education is the surest guarantee of the … preservation of the great principles of republican liberty.”

The rest is history. Our country went from one in which fewer than half of states guaranteed education prior to the war to one in which all 50 state constitutions guarantee education today.

The ConversationThe new cases before the federal courts offer an opportunity to finish the work first started during Reconstruction – to ensure that all citizens receive an education that equips them to participate in democracy. The nation has made important progress toward that goal, but I would argue so much more work remains. The time is now for federal courts to finally confirm that the United States Constitution does, in fact, guarantee students the right to quality education.

Derek W. Black, Professor of Law, University of South Carolina

This article was originally published on The Conversation. Read the original article.

December 5, 2017 in School Funding | Permalink | Comments (0)