Friday, March 4, 2016

New York City Elementary Schools: A Tale of Two Cities

New York Appleseed has released a new report New York City Elementary Schools: A Tale of Two Cities. The report finds that predominantly poor and minority elementary schools treated  far differently than predominantly middle-income white schools. "This is particularly true when comparing the level of teacher experience and qualifications in each location." Cassie Schwerner, a member of the board of directors for New York Appleseed,  says the report "completes a devastating body of evidence condemning our failure to prioritize reducing school segregation in New York City.”  The report's major findings are as follows:

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March 4, 2016 in Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Thursday, March 3, 2016

Washington Finally Responds to Court Order to Remedy Inadequate School Fund; State Superintendent Believes It Is Window-dressing

Earlier this week, the state of Washington finally took its first step to implement the school funding remedy first mandated in McCleary v. Washington in 2012.  According to local news:

[t]he measure would establish a task force to find the state dollars needed to replace some local levy spending and instructs the 2017 Legislature to finish the work. It also instructs the task force to make recommendations on teacher pay and asks for clarification on how local levies are being used today. The measure directs the task force to determine whether more legislation is needed to ensure all-day kindergarten and lower K-3 class sizes are possible in every elementary school in the state.

As discussed here over the past couple of years, the Washington Supreme Court has been steadfast in demanding that the state develop a concrete and long term plan to address inadequate funding in schools, but the legislature has repeatedly ignored the court.  This past summer, the court, growing tired of having its orders ignored, issued a new one holding the state in contempt and fining it $100,000 a day until it acted.

Governor Jay Inslee believes that this new legislation will satisfy the court for the time being, as it shows "a significant recognition by the Legislature that they need to act and have a full intention to act."  He added, "This wasn't easy. The Legislators worked hard on this for months. . .The next step before us is arguably the most complex and I'm confident the Legislature is up to the task."

Others, including the state superintendent of education Rand Dorn, are far more skeptical.  He says the bill is just an attempt to "punt" the issue further down the road.  On its face, the bill suggests the legislature is doing something, but in reality, it really does no more than say the next legislature should do something.  In the meantime, it does nothing to help currently underfunded and unequal schools--the very problem that generated the litigation to begin with.  Dorn says he does not "think the court will buy it."


March 3, 2016 in School Funding | Permalink | Comments (0)

Wednesday, March 2, 2016

Pennsylvania Appellate Court Affirms School Districts' Authority to Raise Revenue by Reassessing Property Values

In 2014, plaintiffs sued Upper Merion Area School District in Pennsylvania, alleging that the district's petition to have certain properties' values reassessed violated the state constitution's uniformity clause.  The uniformity clause provides that “All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Pa. Const. art. VIII, § 1. State statutes, interestingly, permit school districts to appeal property value assessments in the same way that a homeowner does.  Relying on that statutory provision, Upper Merion Area School District had challenged the value of a few apartment complexities and succeeded.
In Valley Forge Towers Apartments N, LP v. Upper Merion Area Sch. Dist., 124 A.3d 363 (2015), the Pennsylvania Commonwealth Court--Pennyslvania's intermediate appellate court--held that the school district had  a rational basis for appealing these particular assessments: "'sufficient increased revenue to justify the costs of appeals. Judicious use of resources to legally increase revenue is a legitimate governmental purpose.'”  Thus, the individual appeals were not discriminatory and did not violate the uniformity clause.
The decision is of relatively little precedential value outside of this narrow context, but does clear indicate the authority of school districts to raise additional revenues by ensuring that the local real estate tax assessor is not giving unwarranted breaks to new residential developers.

March 2, 2016 in School Funding | Permalink | Comments (0)

Monday, February 22, 2016

Mississippi's Education Chair Introduces Bill That Appears to Limit Teachers' Free Speech; Why?

Mississippi's chairman of the House Committee on Education, John Moore, has renewed his bill to place limits on teacher's activities while at school.  Some call the bill a directive for teachers to "shut up" or to "muzzle teachers." Given the larger context of education budget battles over the past year or two in the state and teachers' role in it, the bill may be aimed at tamping down political activity among teachers while at school. A local reporter offers this summary of the bill:

[The bill levels] $10,000 fines and revok[es] teacher licenses. But without any provision for who can file a complaint, or to whom, it appears the education chairman's bill is reactionary and not well thought out. Snowden's bill, while similar, is not as toxic and is more measured. It only has fines of $100 for the first offense and $250 for each further offense, to be investigated by the secretary of state's office. Complaints can be filed by "any state or federal oversight, enforcement or regulatory governmental entity," which includes those poor, harassed legislators.

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February 22, 2016 in First Amendment, School Funding, Teachers | Permalink | Comments (0)

School Funding Lawsuit in Tennessee Moves Forward, But Efforts to Enlarge Coalition Slow

In the past year, two different school funding lawsuits have been filed against the state of Tennessee--one out of Memphis and another in Nashville.  Last week, the trial court in the Nashville denied the state's motion to dismiss, permitting the lawsuit to move forward. Interestingly, the judge denied plaintiffs' class-certification request.  Without an opinion, it is hard to infer what exactly is going on.  But the denial highlights several important issues.

Given the relatively small number of districts in the state, class-certification is not necessary as a general matter. From that perspective, the denial is not remarkable.  In most school funding lawsuits, cases proceed with interested districts affirmatively agreeing to join a coalition to bring the suit.  In Georgia, for instance, a consortium spent a year or two simply organizing school districts to come together to bring a lawsuit.  By the time they filed suit, they had garnered a substantial portion of Georgia's districts as coalition members.  In Tennessee, however, only five districts--all located in Nashville's metropolitan area--joined together to bring this instant suit in Hamilton County.  Yet, there is no reason to believe that the issues they raise are related solely to their region.  Thus, the narrow coalition is somewhat aberrational.  Perhaps, plaintiffs thought class certification could do the heavily lifting of organization for them.  With a "forced" or de facto coalition through certification, actively recruiting others will be crucial.  

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February 22, 2016 in School Funding | Permalink | Comments (0)

Wednesday, February 17, 2016

Vouchers Won't Solve Nevada's Severely Underfunded Schools, Nor Its Teacher Shortage Crisis

The national shortage of teachers reported by the New York Times last fall has only gotten worse.  Based on recent news reports, Clark County, Nevada--the nation's fifth largest district--may be suffering the worst.  Ironically, at the same time that the schools are suffering for money and teachers, the state is dumping money into vouchers. David Sciarra offers this critique in the Las Vegas Review-Journal:

Aggressive [teacher] recruitment has had some success. Yet low pay, poor working conditions and rising enrollments make it difficult to attract and retain effective teachers. Thousands of students are in classrooms lacking a properly licensed teacher.

The teacher shortage is just one of the challenges the district faces as it struggles to provide quality education to 320,000 students.

It's no secret that many Clark County schools are over-capacity. Buildings need repair and system upgrades. Bilingual and special education services are lacking. Quality preschool, extended learning time and help for at-risk students are in short supply.

It's also no secret that the way Nevada funds public education is outmoded and inadequate. In the Education Law Center's "National Report Card, Is School Funding Fair?" Nevada consistently ranks in the bottom 10 states on funding level and receives an F for failing to fund the needs of poor children. Nevada also gets an F on investing in education, despite an improving economy.

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February 17, 2016 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Tuesday, February 16, 2016

Education Inequality Is the Key to It All, According to Harvard Professors

Harvard brought together various professors from its different colleges and departments to talk about their research on social and economic inequality.  The conclusion spanning the various disciplines was that educational inequality is at the center of the problem of inequality in general.  Ronald Ferguson, for instance, explained:

Education may be the key to solving broader American inequality, but we have to solve educational inequality first. Ferguson says there is progress being made, there are encouraging examples to emulate, that an early start is critical, and that a lot of hard work lies ahead. But he also says, "There's nothing more important we can do."

"The position of U.S. black students is truly alarming," wrote Fryer, the Henry Lee Professor of Economics, who used the OECD rankings as a metaphor for minority standing educationally. "If they were to be considered a country, they would rank just below Mexico in last place."

He and others point out that enormous strides in closing education gaps occurred between 1970 and 1990, but then the nation hit a plateau and has been stuck ever since.  The effects of this plateau reverberate in various life opportunities.  The explanation for the plateau is, in large part, the nation's backtracking on segregation and inequality.  The trend, however, can be reversed. Roland Fryer, an economist at Harvard, 

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February 16, 2016 in Equity in education, Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Friday, February 12, 2016

Kansas Supreme Court Distinguishes Itself by Once Again Declaring the State's Funding System Unconstitutional

Yesterday, the Kansas Supreme Court in Gannon v. Kansas once again struck down the state's school funding practices.  The Kansas Supreme Court has declared the state's various permutations of a school funding formulas unconstitutional so many times in the past five or six years that I am not even going to attempt to count them up here.  It suffices to say that the Kansas Supreme Court has held strong in the face of a recalcitrant legislature and outright hostile government, even during the darkest hours of the recession.  The legislative branch, however, dismayed by orders to comply with the constitution, has gone so far as to threaten the judiciary itself, indicating that it would reduce its budget and change the appointment process for judges.  Many, including the Education Law Center and the New York Times, saw those as direct attempts to scare the Supreme Court away from school funding issues and to threaten the most basic principles of separation of powers.  The legislature's gamble, moreover, stood a good chance of success.  School funding historians remember all to well the removal by popular vote of supreme court justices in Alabama and Ohio after they ruled in favor of plaintiffs in their respective states.

Surely, the Kansas Supreme Court knows these and other stories and did not take its own legislature's threat as idle.  That is what makes this decision so uniquely important, not just to Kansas, but to the future of school finance.  The Kansas Supreme Court's willingness to stand up, time and time again, for the constitution under such extreme circumstances may only be matched by the New Jersey Supreme Court, which  for more than three decades has called its legislature to action.  Yet, Kansas Supreme Court may be even more courageous, as New Jersey's politics are far more favorable.  In a few weeks, I will be posting a law review article that digs deeper into the troubling national trends in school finance litigation over the past decade.  For now, an excerpt from the Kansas Supreme Court is in order:


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February 12, 2016 in School Funding | Permalink | Comments (0)

Wednesday, February 10, 2016

Valuing Public Education: 50 State Report Card

The Network for Public Education (NPE) has published a report called Valuing Public Education: 50 State Report Card. From the introduction:

The Report Card looks at whether a state's current policies and laws---in six key areas---make public schools stronger or undermine them. This approach stands in opposition to reports released by conservative political organizations like the American Legislative Exchange Council (ALEC), which generally applaud states for privatizing public education.

The Report Card measures the policies of each State and the District of Columbia on:

  • School Finance 
  • Spending Taxpayer Resources Wisely 
  • Professionalization of Teaching 
  • No High Stakes Testing 
  • Resistance to Privatization 
  • Student Chance of Success 

The school finance portion of the report relies on information in "Is School Funding Fair? A National Report Card," by Bruce Baker, David Sciarra, and Danielle Farrie. 

February 10, 2016 in School Funding, Studies and Reports | Permalink | Comments (0)

Tuesday, February 2, 2016

The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement

Michele Aronson's student note, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393, 394-96 (2015), is available on westlaw.  She situations Vergara within the historical context of courts as a vehicle for carrying out social reform.  Her introduction offers this summary:
In the recent case of Vergara v. State, commonly referred to as Vergara v. California, Judge Treu of the Los Angeles County Superior Court used the court's power to effect a new type of social reform: he became the first judge in any court in the United States to strike down a state's teacher tenure and dismissal laws. He reasoned that California's laws made it impossible to remove ineffective teachers from the classroom. Judge Treu concluded that California's teacher tenure and dismissal statutes “impose a real and appreciable impact on students' fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.” Vergara is a potentially landmark case, although its ruling is stayed pending appeal. Plaintiffs in New York have filed a similar lawsuit, and commentators expect to see more teacher tenure lawsuits in other states and cities.

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February 2, 2016 in School Funding, Teachers | Permalink | Comments (0)

Monday, January 25, 2016

New York Plaintiffs Bring Novel Claim, Alleging State Must Step in to Stop a School Board's Abuses

Plaintiffs in East Ramapo, New York, have brought a unique claim against New York's Education Department.  They allege that it is liable for the local school board's mismanagement of the school district.  They argue that the school board is being driven by board members who send their children to private schools and do not have the public schools' interests at heart.  Plaintiffs rely on a number of recent third-party investigations and reports that document the school board's "fiscal mismanagement, misuse of funding and resources, and favoritism toward private school students," which have caused an inadequate and unqualified supply of teachers, denials of basic services for special needs students and English Language Learners, denials of access to music and art, and a shortage of equipment and supplies.  This mismanagement, they argue, deprives students' of the constitutional right to a sound basic education in the state.

This claim is analogous to a theory I forwarded here, arguing that local student assignment practices deprived students of their constitutional education rights and warranted legal action again the district.  The point was that many of the legal duties imposed on the state in school finance litigation also extend to the local district, assuming that the local district's actions are the cause of an educational deprivation.  The twist this new lawsuit includes is that, because the ultimate duty to ensure a constitutional education rests with the state, it is still the state that is obligated to step in and rectify local violations.  Thus, rather than asking a court to force the local board to rectify the violations, it asks that the court order to the state to intervene in the district.  This is a case to watch.  It is being litigated by the Education Law Center and O’Melveny & Myers, so it is sure to be well-handled.

January 25, 2016 in School Funding | Permalink | Comments (0)

Friday, January 22, 2016

Creating New Pathways to Equal Educational Opportunity

For those who missed it, Charles J. Ogletree and Kimberly Jenkins Robinson's edited volume, The Enduring Legacy of Rodriguez Creating New Pathways to Equal Educational Opportunity, is now out.   The book examines the long-term impacts of the Supreme Court's refusal to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, detailing the extent of today's inequalities and connecting them to funding and segregation.  It also poses important questions like whether funding equality alone would have been enough to ensure equal educational opportunity and whether state based reforms have filled the gap created by Rodriguez.  The book closes with four chapters theorizing how the federal role in education today might be leveraged to address many of the lingering problems of Rodriguez.

In addition to chapters by the book's editors, it includes chapters by today's leading education and education law scholars: David Hinojosa, Camille Walsh, Michael Rebell, Amy Stuart Wells, David Sciarra, William Koski, Mildred Robinson, Genevieve Siegel-Hawley, Derek Black, and Erwin Chemerinsky.  The book is a must read for those looking for a holistic update and overview of the status of school funding and the federal role in education.  It could also easily serve as a major text for classes dealing with educational inequality.  While focusing on one overall subject, it approaches a diverse array of issues from different perspectives that could easily carry a couple weeks of class.

January 22, 2016 in Federal policy, School Funding | Permalink | Comments (0)

Thursday, January 21, 2016

What Does $300 Million in New Funds Mean for South Carolina's Schools? Not Enough

In 2014, South Carolina spent roughly $3.77 billion on elementary and secondary education. This figure also includes federal funding.  The governor's proposal to add $300 million to education a comes out to roughly an 8% increase in education spending.  As noted yesterday, that is still about $520 million below fully funding the state's existing finance formula.  The funding formula critique, however, offers little frame of reference to most.  The Center for Budget and Policy Priorities, however, has been doing a great job of tracking education expenditures over the past decade.  Their most recent report shows that education spending in South Carolina is still 10.4% below its pre-recession levels in 2008.  Based on that number, the current proposed increase would not even get the state back to where it was before the recession.  And to be absolutely clear, it was the underfunded and inadequate system prior to the recession that generated this litigation in the first instance.  In other words, the current budget increase, while important, would not appear to even get us back to our prior level of inadequacy.

To be fair, South Carolina, unlike most states, is exerting a relatively decent amount of effort to fund education.  Bruce Baker et al.'s most recent Funding Fairness Report Card indicates that South Carolina ranks 7th in terms of funding effort, which the report concludes is an "A" in normative terms.  Also, to South Carolina's credit, it does not have a regressive funding system that funds wealthy districts more than needy districts.  Its funding formula is roughly flat across districts.  The problem is that the districts that brought Abbeville v. State need far more than flat funding.  They need weighted funding that provides disadvantaged students 30% or more per pupil than the average student.  Thus, in normative terms, Baker's report rates South Carolina's funding distribution as a "C."  While Governor Haley does propose setting aside new funds for these needy districts, it is not a reworking of the formula itself, nor does it appear to be enough to give these students the boost they need.  My guess is that, even with these funds, South Carolina will come in at a "C" next year or narrowly make it into the "B-" range.

January 21, 2016 in School Funding | Permalink | Comments (0)

Wednesday, January 20, 2016

South Carolina's Plan to Remedy Educational Inadequacy

Late last month, the South Carolina legislature's task force on education reform released its recommendations.  The task force was formed by the Speaker of the House in response to the Supreme Court's finding that the state had failed to deliver a minimally adequate education as required by the state constitution.  The task force's job was to identify the causes of the state's educational inadequacies and propose solutions.  Its findings and proposals included:

  • creating a teacher, principal, and superintendent pipeline before the current shortage becomes critical.
  • setting goals for school leaders and metrics for measuring progress toward those goals, which includes all students reading at grade level by 3rd grade, individualized graduation plans for all 9th graders, and college and career readiness by the end of the 12th grade
  • intensive, immediate, and differentiated assistance for school districts labeled as "at-risk" or "below average"
  • efficiency and effectiveness studies of "at-risk" or "below average" districts
  • developing more expertise in Department of Education to assist local districts
  • increasing funding for districts with extreme poverty (a .30 growth in the current poverty weighting), with increased accountability for that funding
  • creating an infrastructure bank
  • in districts where students spend long periods on the bus, instituting technology on the buses to allow students to use that time productively.

This year the state is projected to bring in over a billion dollars in additional tax revenues. Last week, Governor Haley proposed allocating $300 million of those new revenues to education.  Over half of those education funds would go toward increasing the "base student cost" by $80.  Unfortunately, that amount would still leave the state well short of fully funding its 1977 formula adjusted annually for inflation. According to SCnow, fully funding the formula would cost $520 million more than Haley is proposing.  The rest of her education proposal includes $20 million for leasing or buying new school buses, $13.5 million for attracting and retaining teachers in impoverished districts, $29 million for technology, and $11 million in targeted technology spending in poor schools.

 Get the House's full report here.

January 20, 2016 in School Funding | Permalink | Comments (0)

Friday, January 15, 2016

Reconstituting the Right to Education

Joshua Weishart's forthcoming article, Reconstituting the Right to Education, is now available on ssrn here.  Consistent with his first article, it is very thoughtful.  I have already found it useful in three of my forthcoming projects.  His abstract indicates:

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical function to protect children’s liberty and equality interests.

And yet the right to education is ill-equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that it can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection. That union holds the potential to ameliorate the enforcement standards thereby reconstituting the right to education as a mainstay of reform.

January 15, 2016 in School Funding | Permalink | Comments (0)

Tuesday, January 12, 2016

The Every Student Succeeds Act: Eliminating Accountability, Handcuffing the Department of Education, and a Few Good But Optional Ideas

After having finally digested the new version of the Elementary and Secondary Education Act—the Every Student Succeeds Act—my overall appraisal is that the Act represents two steps back and half a step forward.  The steps backward are in regard to federal leadership, high expectations, and accountability.  The half steps forward are on various points that civil rights and other advocates have pressed for a decade or more.  But they are only half-steps because these civil rights “advances” are optional rather than mandatory.  Thus, they are more accurately “ideas” for states to consider, not actual advances students can expect to see.  Nonetheless, being ever the optimist, the very act of raising the ideas has the potential to prove important a decade for now when the Elementary and Secondary Education Act is again due for reauthorization.  It was, after all, the soft version of testing in the 1994 reauthorization (Improving America’s School Act) that paved the way for the 2002 reauthorization’s (No Child Left Behind Act) aggressive testing and accountability systems.

The easiest way to digest the new Act is to think specifically about what has changed and what has stayed the same.   A number of major things did remain the same:

  • The federal financial stake in education remained relatively flat. The new bill included a $500 million bump for Title I, but in the larger scheme, the increase is minor.  In 2002, NCLB included a major initial boost for Title I, which is what made the Act happen.  That no significant new funding is in the current Act may be a sign of how little progressive actions it contemplates.
  • The funding formulas through which Congress allocates Title I funds to states remained in place. Senator Burr had managed to get an amendment to the formulas into the final Senate bill, but it did not make it through reconciliation with the House.  More on this later.
  • The major aspects of the federal testing regime remain in place. States must test students in the same subjects (math, English Language Arts, and science) per the same schedule and frequency as was found in NCLB.  States and districts must also stick to the same reporting and demographic disaggregation as before.
  • The highest level articulation of the academic standards that students must meet remains the same: “challenging.” This was somewhat of a surprise given how maligned this phrase had been for its inability to ensure states adopted rigorous standards.  As discussed later, the bill indirectly addresses this issue in a new subsection that pegs “challenging” to career and college readiness.

The Act changed far more than it left the same.  Major changes were made to the substance and mechanisms for Accountability, the regulation of teachers, funding, and the Secretary and Department’s powers. 

Academic Accountability

As to the substance and mechanisms for accountability, the shift is from federal command and control to nearly complete state autonomy:

  • The metrics for whether states are offering quality education and ensuring sufficient student progress are now within the control of states. While the bill pegs “challenging” academic standards and assessment to college and career readiness, states do not have to actually submit the standards to the Department.  They need only give the Department assurances that their standards are challenging.  And as discussed later, the Secretary is extremely limited in objections he can raise to states’ education plans.
  • In terms of assessing student progress on standards, states must still consider test results, but states can afford as little weight to test results as they want and they can include almost any other metrics of academic progress and educational quality as they want (student engagement, teacher engagement, attendance, etc).
  • NCLB required that all students be proficient by 2014-15. That standard is go and is now replaced with anything, which is to say states can set their own progress goals.
  • NCLB also mandated particular interventions when schools failed to make adequate yearly progress toward full proficiency. By 2012, this meant that eighty percent of the nation’s schools were facing some sort of sanction.  Under the new bill, sanctions are few and far between.  Only those schools performing in the bottom 5% of the metrics that the state chooses will be subject to intervention and the particular interventions will be within the discretion of the state.  Equally notable is the fact that the portability of Title I funds for students attending a bottom 5% school did not make the bill.  In fact, the mandatory option of transfer (with or without funds) which was in NCLB is not in the current law.


Changes for teachers are simple because there is almost no regulation of teachers at all in the law.

  • The requirement that all teachers of core subjects be high quality is gone.
  • Now states need only ensure that teachers are certified, but this includes alternative certification, which I read as meaning that if the state is willing to give some a piece of paper to teach, the person is certified. This, of course, has been a huge problem with recent teacher shortages.
  • During the waiver process, Secretary Duncan had mandated “effective” teaching, which was largely measure by a teacher’s students’ test scores. No such requirements exist in the new law.

Funding and Fairness

The most interesting developments in the law may be in regard to school funding.  While funding itself remained flat and the formulas went unchanged, the law included a tremendous amout of flexibility in how states spend federal dollars.  It also included a lot of progressive ideas about funding, although the adoption of the best of these ideas is entirely discretionary.  The bureaucratic and technical changes in funding include:

  • The law consolidates a lot of federal funds, issues more in the form of block grants, and lets states determine exactly how much they will devote to particular programs, activities, and schools.
  • The option to be treated as a “whole school,” meaning that Title I funds can be spent on activities that benefit the whole school not just low-income students, became a lot easier. Any school with 40% or more low income students can be a “whole school,” but even those falling below that threshold can apply for a waiver under a relatively lenient standard.
  • The federal requirements that states maintain their financial effort from the prior year and that federal dollars supplement, not supplant, local dollars have long been criticized as ineffective. The new law changes both standards, looking at a 2 year period on maintenance of effort rather than a 1 year period, and requiring states to affirmatively establish they have not supplanted local funds.  Whether either of these will be effective is unclear.  The language reads more specific than prior versions, but is still permissive in its general approach.

The eye-popping changes (for me) in funding include:

  • A requirement that states assess and address resource inequity in those bottom 5% schools it identifies. This also includes the ability to use school improvement grants (which is now a bigger pot of money) to address those resource inequities.  Ideologically this is huge line for the federal government to cross and provides a potential stepping stone for later expansions. Unfortunately, it only applies to intra-district resources and only to a small fraction of schools.  In other words, it leaves untouched the much bigger issues that get litigated in school finance cases.  Nonetheless, it does address an important loophole on comparability of resources that I have long criticized.  See here.
  • The law also includes a pilot program to support districts that want to adopt weighted student funding. This would help districts account for the varying costs of different demographic student groups and their needs.  Again, this is what school finance litigation demands.  The problem, however, is also the same: it applies only intra-district and to a small group of districts.  Even more problematic, the program relies on voluntary applications by districts.
  • The law responded to a decade of criticisms of the irrationality of the Title I funding formulas. See my criticisms here.  It does not mandate a change to the formulas, but if funds a professional evidence-based study of the formulas to determine who they advantage and disadvantage.  The study will propose changes to the formula if necessary. Whether those proposals are adopted are anyone’s guess.  Normally I would guess no, but much to my surprise, Senator Burr did manage to get a change to the formulas approved in the Senate bill (although it did not make the reconciliation bill).  Plus, the formulas are so irrational that they do not favor red or blue states, which makes change at least plausible.
  • The law maintained President Obama’s commitment of $250 million for pre-k. Our schools, of course, need far more than that, but it is important that this was not cut out of the bill.
  • Finally, the bill included a teacher pay-for-performance grant. I had thought this issue was going away, but maybe keeping it was part of the deal struck for doing away with teacher evaluation systems.

Secretarial Powers

Finally, the Secretary of Education was reduced to a line worker.  I argued here that Secretary Duncan lacked the statutory authority to impose the various conditions he attached to NCLB waivers and that to give a Secretary the ability to impose those sort of open-ended policy objectives would have been unconstitutional.  Someone must have agreed with me because no such powers exist in the current law.  The problem, however, is that this law overreacts to NCLB waivers, making this as much about Arne Duncan as it is about the proper role of the Secretary.  To say the Secretary should not act beyond his or her statutory and constitutional power is not to say the Secretary should have no power at all.  Yet, that is what this law does.  Under the law now:

  • The statutory bases upon which the Secretary can reject a state plan are very narrow.
  • If the Secretary plans to reject a state plan, the Secretary must specifically articulate the statutory basis and justify it.
  • After this, the state will get an opportunity to respond and resubmit. If the Secretary rejects the plan a second time, the state is entitled to a hearing.
  • In some instances, if the Secretary does not specifically reject a state plan within the required time frame, the law will treat the Secretary as having accepted the plan.
  • The Secretary cannot review or request changes to state’s academic standards. In other words, the whole common core standards/curriculum mess that came from the NCLB waiver is prohibited.
  • The Secretary cannot place conditions on state applications or consider criteria in making decisions that are not within the scope of the conditions and considerations of the Act itself. As I argued here, this was the fatal flaw in the NCLB waivers that render the conditions Duncan imposed beyond his statutory authority.
  • Nor can the Secretary attempt to indirectly achieve any of the forgoing prohibited objectives through policy guidance.

In short, the law sets up a system in which the presumption is that the states will get exactly what they want they want in their state plans and grants.  If somehow the Secretary manages to find a way to say now, a state will get multiple additional bites at the apple.

Size of the Department of Education

In conjunction with implementing the new provisions, the law directs the Secretary to specifically look at the work done and not done, needed and not needed, report on those findings, and reduce the size of the Department accordingly.  A smart Secretary can likely work around this, but this is clearly an attempt by Congress to shrink not just the power but the size of the Department, which presumably would further shrink its power.

Random Developments

Finally, the law includes lots of interesting and important additions that I would term as random rather than structural.  Those changes address charter schools, data, parents, and school discipline.  I will, however, leave those issues for later in the week.

January 12, 2016 in ESEA/NCLB, Federal policy, School Funding | Permalink | Comments (0)

Friday, December 11, 2015

Congress Again Fails to Tackle Equity in Revised Federal Education Law by David Sciarra and Molly Hunter

On December 9, 2016, Congress passed a bill reauthorizing the Elementary and Secondary Education Act (ESEA), and President Obama signed it today. The new "Every Student Succeeds Act" (ESSA) retreats somewhat from excessive high-stakes testing, and eases up on sanctions and labels for schools, teachers and students. Overall, the law moves away from narrow federal mandates on testing and accountability, leaving states to their historic and central role in educating our nation's public school children.

But once again, Congress has failed to confront the central problems that plague most of our 50 separate state school systems.

The new law, like the "No Child Left Behind" Act (NCLB) it replaces, gives the States free reign to continue the vast and debilitating inequities and disparities in their school systems. For our nation's most vulnerable children, ESSA is "same as it ever was."

Most states are shortchanging schools the funding and programs needed to give all children the chance to succeed, especially the growing numbers of children in poverty in districts and states across the country. Millions of children in our state systems attend schools deprived of the teachers, support staff and other resources essential to learning. Only a handful of states have made the effort to overhaul their finance systems to deliver those resources to schools and students most in need.

Congress could have required the states move away from funding schools based on dollars and politics to providing students and schools the resources necessary to achieve academically. Congress could have required states to build capacity to deliver high quality supports to,font help high risk schools and districts to improve. And Congress could have taken bold action to press states to dramatically expand access to high quality early education to give at-risk youngsters the opportunity for school readiness. Congress received these recommendations from the federal Equity Commission in 2013 but chose to ignore them.

Parents and advocates deserve credit for pushing Congress to retreat from NCLB's extreme test and punish provisions. But with the states now firmly in the education driver's seat, parents and advocates must turn their attention to their statehouses. Parents and advocates must now build strong campaigns for education equity in every state, demanding governors and legislators provide fair funding, support high poverty schools, and offer high quality preschool to every vulnerable three- and four-year old.

ESSA, like its NCLB predecessor, will do little to help every student succeed. But every student matters. It's time to let the state lawmakers responsible for our public schools know.

David G. Sciarra is the Executive Director of Education Law Center (ELC). Molly A. Hunter is Director of Education Justice at ELC.

December 11, 2015 in ESEA/NCLB, Federal policy, School Funding | Permalink | Comments (0)

Wednesday, December 9, 2015

Wisconsin Governor Asks Supreme Court to Bring the Superintendent of Education Under His Control

The Wisconsin Supreme Court has taken up an interesting case that questions the powers of the state superintendent of education.  In dispute is a 2011 law that requires all administrative rules to be approved by the governor.  Under that law, the governor is asserting power over the state superintendent.  But a state supreme court case from two decades ago, Thompson v. Craney, 546 N.W.2d 123, 134 (1996), held that the state superintendent is an independent head of the Department of Public Instruction.  The relevant constitution text was amended in 1902 to read:

The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties, and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold his office for four years from the succeeding first Monday in July. The state superintendent chosen at the general election in November, 1902, shall hold and continue in his office until the first Monday in July, 1905, and his successor shall be chosen at the time of the judicial election in April, 1905. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law.

The court concluded:

Our review of these sources demonstrates beyond a reasonable doubt that the office of state Superintendent of Public Instruction was intended by the framers of the constitution to be a supervisory position, and that the “other officers” mentioned in the provision were intended to be subordinate to the state Superintendent of Public Instruction. Because the education provisions of 1995 Wis.Act 27 give the former powers of the elected state Superintendent of Public Instruction to appointed “other officers” at the state level who are not subordinate to the superintendent, they are unconstitutional beyond a reasonable doubt. If changes such as those proposed in 1995 Wis.Act 27 are to be made in the structure of educational administration—and we express no judgment on the possible merits of the changes—they would require a constitutional amendment.

That the current state law is in direct contradiction of this precedent.  The state attorney general is asking the court to reverse Thompson and, thereby, bring the state superintendent under the control of the governor.  I am guessing the the odds on this are long.  The lower court, in a straightforward decision, has already ruled against the state.  As it remarked in closing,

We reject th[e governor's] argument for reasons that should be obvious by now. The argument's premise, that the Governor's new power conferred by Act 21 gives the Governor “no power to fashion the text of a proposed rule,” is a premise Walker and Huebsch do not attempt to explain or defend. So far as we can tell, it is a premise that ignores reality. It seems beyond reasonable dispute that a Governor at loggerheads with an SPI over the content of a proposed rule, or proposed rule change, could use the threat to withhold approval as a means of affecting the rule content. Moreover, the analogy to the Governor's power to veto legislation is unpersuasive. As here, the threat of a Governor's veto can shape proposed legislation toward the Governor's preference. And, by constitutional design, a Governor's veto can be overridden by the legislature. Here, the Governor's approval authority is not similarly limited.

The case also has implications on a related phenomenon in other states:  charter legislation that divests the state superintendent of educational authority.  The Washington Supreme Court struck down that legislation earlier this year.  What Washington and Wisconsin's legislature and governor fail to appreciate is that in those states where the superintendent of education is a constitutional officer, the state is not free to pass any education legislation that suits its fancy.

December 9, 2015 in Charters and Vouchers, School Funding, State law developments | Permalink | Comments (0)

Monday, November 23, 2015

Is the Deal to End Pennsylvania's Four-Month-Long Education Budget Stand Off Falling Apart?

Just when it seemed Pennsylvania schools would finally get a budget and avert the financial doomsday scenarios that many have been predicting since August, the details of the tax plan to cover the budget are threatening to derail the plan.  Here is the introduction to the AP story outlining the roadblocks:

The Pennsylvania Senate is juggling a long-simmering fight over who pays for public schools just as Gov. Tom Wolf and top lawmakers appear to be struggling to hold together the skeleton of a budget deal that's five months late.

There's head-scratching in the Capitol over why Senate Republican leaders chose this moment for the debate. For one thing, some privately worry it could further destabilize already wobbly efforts to negotiate and pass a package of budget-related legislation.

On Saturday night, top House Democrats informed rank-and-file members that Republicans had told Wolf, a Democrat, that there isn't enough GOP support for a state sales tax increase — from 6 percent to 7.25 percent — to generate $600 million to balance the budget and $1.4 billion in rebates for homeowners who pay school property taxes.

"We are assessing our options and examining whether there are any acceptable alternative revenue sources to balance the budget and provide property tax relief," they wrote in the email obtained by The Associated Press.

A spokesman for House Majority Leader Dave Reed, R-Indiana, said Sunday that Republicans had told Wolf nothing of the sort, and that the level of GOP support for the idea is contingent on how the property tax rebates are distributed.

In any case, Democratic lawmakers have had their own complaints with the proposed deal, and negotiators have acknowledged it has been difficult to develop a formula to distribute the property tax rebates that would placate lawmakers who might be willing to vote for the tax increase.

For some lawmakers, the complete elimination of school property taxes is the preferred option.

It is no small matter: It would require a $12-plus billion state takeover of public school funding from school boards and perhaps the biggest-ever change in state taxation.

A Monday vote is expected, and it is not yet clear whether it will pass.

Get the full story here.

November 23, 2015 in School Funding | Permalink | Comments (0)

Wednesday, November 18, 2015

Massachusetts Attorney General Debunks Plaintiffs' Constitutional Demand for More Charters

Earlier this year, I posted on a lawsuit in Massachusetts that challenges the state's cap on charter schools as violating the state's education clause.  I noted the connection between the charter theory and that in Vergara v. State (California challenge to tenure).  Both cases pick out single education policies as impeding their access to a constitutional education.  In that respect, they both ignore the larger education structures at play in their states.  The charter claim, however, is an even bigger stretch, as it is not asking for a fix to the public education system itself but the right to exit it and gain access to an alternative system.  In other words, since the state would give them what they are owed under the constitution, they want something else.

The state attorney general, Maura Healey, finally fired back this week in the state's responsive briefs.  Here's the Boston Globe's summary:

She contends that the argument advanced by the five plaintiffs that there is a direct link between the charter school cap and the poor education they claim to be receiving is “illogical, highly speculative, and remote.”

“Numerous other factors” other than the charter cap could be responsible for the poor performance of some schools, Healey writes. And simply opening more charter schools won’t necessarily help because there is no guarantee that they would be high-quality charters, she contends.


“Not all charter schools in Massachusetts are high-performing,” Healey writes. “In fact, it is not unusual for the department or the board to impose conditions on existing charter schools, or close them because they do not perform as required.”

Healey also asserts that Boston has not, as the plaintiffs argue, reached its limit on the number of charter schools because it still has seats available in so-called Commonwealth and in-district charter schools, which are given more flexibility than traditional public schools, though not as much as full-fledged charter schools.

Healey also argues that the court should not step in to lift the cap because the state Constitution “leaves the details of education policy making to the governor and the Legislature.”


That sounds about right.  For a similar critique of the constitutional challenge to tenure, see here.


November 18, 2015 in Charters and Vouchers, School Funding | Permalink | Comments (0)