School districts are also to reserve a portion of those funds to ensure equitable services for any low-income students who may attend private schools. That’s in keeping with a practice in place since Congress passed the Elementary and Secondary Education Act of 1965.
The department’s new guidance calls for a different method. Public school systems are being told to share these new federal funds based on the total number of students who attend private schools – rather than the much smaller number of low-income students in these schools. In other words, public school districts are being told to reserve funds for roughly 6 million total private school students, of which only an estimated 300,000 are low-income children.
By contrast, 52.3% of the nation’s 50 million public school students are low-income.
Moreover, private schools, unlike public schools, are already eligible for federal payroll protection funding under the CARES Act because they are considered small businesses.
Shortchanging the poor
Only about 10% of the nation’s students attend private schools. This is something Education Secretary Betsy DeVos has long aimed to change. She has consistently supported policies that would increase public funding for private school enrollment in the form of vouchers and tax credits. From this perspective, the current policy – while inconsistent with the law, equity and history – makes sense. But this time, DeVos’ private school policy would directly shortchange poor students.
The accounting method will require public schools – which are only receiving new federal money based on their poor students – to reserve multiple times more money for private schools than the CARES Act requires.
In Passaic, New Jersey, where the majority of public school students are poor, the district will need to reserve $1.4 million instead of $300,000 for private school students, according to an education advocacy group in that state. Montana estimates it will need to reserve $1.5 million for private schools rather than $206,469 it believes the law requires, The New York Times reports.
This will only increase the challenges that the highest poverty schools face. Before the pandemic even hit, public schools serving the highest-poverty communities had $1,000 less per student than those educating affluent students. These shortfalls are likely to expand based on current economic conditions.
One solution to the current problem is for Congress to reiterate its original intent even more clearly. The $3 trillion relief bill passed by the House includes a provision that would do that.
The quicker option is for Congress to use its oversight powers to force the Education Department to concede that it made an error. That happened earlier this year when it reversed course on its plan to change the method for allocating funds to rural schools.
The law is on McCormick’s side. Her action offered a clear path forward for state and local officials across the nation who don’t believe that waiting for the political process to correct itself is fair to the country’s children who need help now.
Join over 400 people from across the country to discuss and strengthen strategies for promoting racial and socioeconomic integration in elementary and secondary schools at our fifth national conference:
National Conference on School Integration March 26-27th, 2020 JW Marriott Washington, DC
NCSD’s national conference provides a space for parents, students, educators, researchers, advocates, activists, policymakers (from federal, state and local levels), and other supporters to coalesce around a shared commitment to integrated education. Attendees exchange best practices; discuss and generate tools and ideas aimed to introduce, enhance, or protect school diversity initiatives in their communities across the country; and build supportive relationships. It is the largest cross-sector school integration convening in the nation.
Based on feedback from our members and partners, our 2020 conference will continue to center youth voices and leadership; describe and embody the relationship between local, state, and national efforts; and provide space for collaboration and skill-building.
With few exceptions, the various Democratic plans for public education share a common theme: more funding, less privatizing.
Candidates Joe Biden, Kamala Harris and Bernie Sanders have promised to dramatically increase or triple current federal funding for low-income students and curtail charter school growth. Elizabeth Warren recently went even further, promising to quadruple federal funding for low-income students and end federal funding for charter expansion.
These proposals have provoked a deluge of harsh responses from commentators. Increasing public education funding and limiting charters, critics say, is nothing more than pandering to teacher unions and demonizing charter schools. While this critique may resonate on the surface, it ignores a decade of gross underfunding and privatization of public education. As my research shows, addressing these problems is key to improving student achievement.
Shrinking government by shrinking education
The way taxpayers do or do not fund public schools goes to the core question of the role of government in democracy. Public schools have long consumed the lion’s share of state and local tax dollars. No other single program comes close.
Many of the earliest statewide tax systems came into existence for the express purpose of funding schools. And later major expansions of state taxes, like the state income tax in New Jersey, were solutions to unequal funding across school districts. Education holds this special status because state constitutions specifically require legislatures to fund uniform and adequate systems of public schools.
Powerful politicians and advocates, however, object to the demands public education places on government. The Koch brothers, for instance, have claimed that government illegitimately coerces excessive taxes from the wealthy and redistributes them to the masses through social programs. Public education is one of the forms of redistribution that most concerns them.
The Kochs’ donor network heavily invests in campaigns to reduce public school expenditures, expand charter schools and subsidize private education through vouchers and tax credits. The theory behind these campaigns is getting government out of the business of education and elevating property and liberty rights above all else. These campaigns, in my opinion, have never been about improving educational outcomes for all students, but about changing how American democracy works.
A decade of harm
Public education has suffered steep funding declines over the past decade. Even once the Recession passed and tax revenues fully rebounded, states failed to replace those funds.
In Arizona, public school funding was down 35% in real dollar terms as of 2015. My work shows that this is in part due to efforts to privatize public education. Rather than cure the public school funding problem, the Koch network and state government officials have pushed for vast new private school voucher plans and charter school expansions across the nation.
Over the past decade, charter funding streams steadily grew and charter school enrollment tripled nationally. Vouchers in places like Florida quadrupled in just a few years, only to be surpassed by states like Indiana shortly thereafter. Now, the secretary of education – Betsy DeVos – is fighting to expand charter schools and vouchers even further.
Money matters for student outcomes
The longstanding research consensus shows that fairly funding public schools is key to boosting student achievement for low-income students – and the precise connection between funding and student outcomes grows stronger and more detailed with each passing year. A new study of four decades of the nation’s school finance data shows, for instance, that a 20% increase in school funding corresponds with low-income students learning almost an additional year’s worth of material over the course of their education – enough to bring their graduation rates up to par with wealthier students. Kansas’ own legislative study showed that “a 1% increase in student performance was associated with a .83% increase in spending.” New research also shows that recent funding cuts depressed student achievement.
Growing sense of outrage
The average person wants our leaders to reinvest in traditional public schools. Polling across the nation shows that 60% of adults think schools are underfunded. Those numbers run even higher in the Deep South, where three out of four voters are upset with how their states fund schools and want a fix. In fact, no more than a couple of points separate Republicans from Democrats on that issue there. And when teachers protested across the nation for two straight years over salaries and school resources, overwhelming majorities supported them.
Something new, not more of the same
Plans to substantially increase funding for low-income students have a deep substance and research base to them. Research and federal law has long indicated that low-income students need at least 40% more resources than their peers to achieve at comparable levels. But on average, schools serving the poorest students actually receive less than their peers. The poorest districts in the nation are a staggering US$14,000 to $16,000 per pupil short of what they need to achieve average outcomes.
The devil is always in the details with school funding, but these new Democratic proposals try to do something that the nation has never before attempted, much less achieved: fully funding the educational needs of every poor, disabled and English language learner student in the nation. One of the Democratic plans, for instance, proposes to cover half the cost of fully funding low-income students’ needs if states agree to cover the other half.
The candidates are surely looking to earn teacher unions’ support, but that does not mean their plans are flawed. In my view, eliminating public schools’ funding crisis is a good idea, both practically and constitutionally.
The Education Law Association will host its annual conference on November 13-16, 2019 in Norfolk, Virginia. As always, the conference is packed with numerous nuanced education law issues and topics. This year Justin Driver, author of the Schoolhouse Gate, will offer the keynote. Mark Walsh, as in the past, will offer the Supreme Court update.
Education is the bedrock of a nation’s development, yet more than sixty years after Brown v. Board of Education, America remains a country with significant barriers to equal education for all. This is true despite the fact that, according to the National Center for Education Statistics, U.S. per-student spending is 29% higher for elementary and secondary education and 81% higher for post-secondary education than the average for thirty-five developed countries. What are the best paths forward in achieving greater educational equality?
TheUniversity of Memphis Law Review invites manuscripts for publication in Volume 50, Number 4 and presentation at its March 2020 Symposium, “Closing the Gap: Solutions to Educational Inequality.”
The Symposium welcomes a wide array of scholarly views addressing current legal and policy issues, including but not limited to, school vouchers and school choice, ongoing racial, ethnic, and class segregation, school funding and its role in promoting equity or perpetuating inequity, the impact of school disciplinary policies, and access to public schools for immigrants and refugees.
If interested in participating, please submit a manuscript or abstract to Symposium Editor Colin Donoghue at firstname.lastname@example.org with “Closing the Gap: Solutions to Educational Inequality” in the subject line. The deadline for submission of a manuscript or abstract is October 1, 2019.
For the second time in a week, plaintiffs have filed major school funding lawsuits. A few days ago, plaintiffs in Baltimore filed a lawsuit against the state, claiming that the state was way out of compliance with the terms of its previously agreed upon settlement and funding formula. Data indicates Baltimore schools are underfunded by about $300 million. Yesterday, plaintiffs in New Hampshire filed their own, claiming that the state's school funding formula grossly miscalculates the cost of providing an adequate education. The formula entirely excludes some costs and underestimates several core ones like teacher salaries and facilities.
These cases are also of particular interest not just because of their timing, but because they come in states with relatively high funding levels. Both rank around 11th or 12th in terms of their funding levels. New Hampshire also has relatively few low-income students, meaning that education needs and costs would presumably be lower than the average state. None of this is to suggest the claims lack merit. Baltimore city schools educate large percentages of low income students. Even if Maryland's statewide funding levels look impressive, they are largely irrelevant to Baltimore. And a school funding formula that is regressive in terms of district poverty levels will create huge disadvantages in Baltimore. Bruce Baker estimates that Maryland's highest poverty school districts require about $22,000 per pupil to achieve average academic outcomes, but only have about $15,000. Similar funding appears more than sufficient in the rest of the state's school districts. In other words, average funding in Maryland masks a huge problem in Baltimore.
Maryland was one of our school funding success stories, and an oddball of sorts. The first part of the story follows the script. In 1994, Baltimore City plaintiffs filed a lawsuit against the state of Maryland, alleging that state funding was insufficient for student to receive an adequate education. The trial judge held that the plaintiffs had stated a valid claim. But on the eve of trial, the story turned. Maryland did what almost no other state has. It settled and agreed to a consent decree under which it would develop a management and student achievement plan for the schools and substantially increase funding in the Baltimore City Schools: $30 million more in the first year and then $50 million more in each of the following four years.
In 2002, Maryland went one step further. Based on recommendations by the Commission on Education Finance, Equity, and Excellence ("Thornton Commission"), Maryland implemented an entirely new funding formula designed to ensure that schools and school systems have the resources necessary to provide every child with an adequate and equitable education. The formula paid special attention to meeting the needs of low-income, special education, and limited English proficiency students.
Plaintiffs are now alleging that the state has slipped back into its old habits and is failing to fund its education formula. In 2008, the state stopped funding inflation increases, creating a large funding gap over the last decade. Based on the existing funding formula, the gap is at least $1.6 billion statewide. A state sponsored study by Augenblick, Palaich and Associates found that the gap between current spending and what is necessary for adequate education outcomes is actually even larger. It recommended in 2016 that school funding increase by $2.9 billion – $1.9 billion from the state and $1 billion from local governments. Below is a chart from that report showing the gap for Baltimore schools and others.
When the government runs or funds programs, those programs are obligated to ensure that everyone gets equal access and treatment. This duty comes from something called “disparate impact regulations.” These regulations require the programs to pay careful attention to whether their policies cause racial disparities.
From my perspective as a scholar of discrimination law, abandoning these regulations would be a major departure from the federal government’s mission since the 1960s of ensuring racial equality.
For the second time this school year, Betsy DeVos got a judicial smack down for attempting to eliminate regulations from the prior administration. In September, it was over protections for student loan borrowers. Yesterday, it was over racial disparities in special education.
In both cases, DeVos’s justifications for reversing Obama-era regulations amounted to little more than "I'm in power now and I don’t like Obama’s regulations.” The dressed up justification has been that the Department needs to pause the regulations so that it can “study” the issues more.
The problem, the federal courts have told the Department, is that it cannot just scrap regulations because it doesn’t like them, particularly when those regulations have already gone through a rigorous process of notice, comment, study, and justification. Reversing existing regulations requires a showing that the existing regulations are wrong. That requires evidence and logic—something that does not seem to interest the current administration.
While critics charge that charter schools are siphoning money away from public schools, a more fundamental issue frequently flies under the radar: the questionable business practices that allow people who own and run charter schools to make large profits.
Students in Flint, Michigan, are beginning to receive high quality screenings and evaluations through the Flint Registry and Genesee Health System/Hurley Children’s Hospital Neurodevelopmental Center of Excellence (NCE) to identify disabilities that may entitle them to special education services. The screening and evaluation program is the key component of an April 2018 settlement agreement reached in D.R. v. Michigan Department of Education, a class action lawsuit to enforce the rights of Flint children impacted by the lead crisis under federal and state special education law.
The Flint students are represented by Education Law Center, the ACLU of Michigan and White & Case LLP. The defendants in the lawsuit are the Michigan Department of Education, the Genesee Intermediate School District and the Flint Community Schools (FCS).
The partial settlement agreement resolved the lawsuit’s “child find” claims challenging the defendants’ failure to appropriately identify and evaluate Flint students with disabilities. Key commitments contained in the settlement agreement included over $4 million provided by the State of Michigan to get the screening and evaluation program up and running.
In a short one-pager, the New Jersey Supreme Court just ended the litigation war on teachers tenure in the state. By my count, this marks at least the fourth major loss for those using the courts to pursue their anti-teacher tenure agenda. And they have still yet to win a single case before a high court. What started as a big splash in California in Vergara--and rippled into places like Minnesota, New York, and New Jersey--has turned into a frivolous theory that is now sinking like a rock to the bottom of the ocean, likely to never be seen again. As I pointed out more than three years ago in The Constitutional Challenge to Teacher Tenure, the evidence simply did not support their claims.
Here's the Education Law Center's take on the New Jersey decision:
A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.
In 1973, plaintiffs in San Antonio Independent School District v. Rodriguez argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.
The boldest claim was filed on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal research and expertise as a scholar of education law.
In October, I had the privilege of participating in a Tedx event sponsored by the University of South Carolina. The subject of my talk was the danger our democracy faces when we fail to ensure equal and adequate public education. I offered warnings and lessons from both the perspective of our nation’s founders and those who rebuilt our nation in the period following the Civil War. The number of parallels between the post-Civil War period and today are striking, particularly the advent of new technology—the penny press newspapers then and the 24-hour news cycle and blogs today. The challenge today is use yesterday’s lessons to solve today’s problems in school funding, critical literacy, and democratic participation. The following is a couple of highlights from the talk:
Education Law Center is urging the New Jersey Department of Education (NJDOE) to take immediate steps to reverse course from a decade of explosive and improper growth of charter school enrollment, targeted in the state’s high poverty, racially isolated school districts.
“In allowing charter schools, the Legislature wanted to encourage local stakeholders to pilot innovative practices on a school-by-school basis to improve education for all students in districts served by charter schools,” said David Sciarra, ELC Executive Director. “Over the last decade, the State has facilitated the rapid expansion of charter school networks designed to compete with, and replace, district public schools altogether, in direct violation of constitutional mandates and the Legislature’s intent.”
ELC’s recommendations to address the problems in New Jersey’s charter school program are detailed in written comments submitted to the NJDOE. Governor Phil Murphy’s administration is undertaking a thorough review of implementation of the 1995 charter school law.
Organisation for Economic Co-operation and Development just released its report on education equity and mobility. The results for the United States aren’t pretty. For those unfamiliar, the report analyzes massive amount of data and makes international comparisons. The organization is comprised of representatives from 36 different member countries.
As to the United States, these two findings struck me as particularly poignant:
Some 51% of disadvantaged students in the United States attend disadvantaged schools, i.e. schools where other students tend to be disadvantaged as well (OECD: 48%; in Finland, only 40% of disadvantaged students attend such schools). However, where disadvantaged students attend advantaged schools, they score 41 points higher, or the equivalent of almost one-and-a-half years of school, than those attending disadvantaged schools (OECD average: 78 points higher; among OECD countries with above-average performance, no performance difference is observed between the two groups of students in Finland, Norway and Poland; Figure 1.1).
Disparities in student performance related to socio-economic status take root at an early age and widen throughout students’ lives. In the United States, the magnitude of the socioeconomic gap in mathematics achievement at age 10 (as measured by the Trends in International Mathematics and Science Study [TIMSS]) is about 74% as large as the gap observed among 15-year-olds (as measured by PISA), and about 73% as large as the gap in numeracy proficiency among 25-29 year-olds (as measured by the Survey of Adult Skills [PIAAC]; Figure 1.1).
Education advocates have struggled to force Virginia to live up to its constitutional duties. And as a result, the state has had carte blanche to mistreat its public schools. It is little surprise that the most recent School Funding Fairness Report rates Virginia’s school funding as an “F” in terms of directing funds to needy students. And while it is a relatively wealthy state, its overall spending levels are relatively low. The tide may very well turn soon. But first, a little background is in order.
Virginia’s constitution includes one of the strongest endorsements of public education you can find. It provides that the “General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth.” In other words, the public education system is non-negotiable. There is a constitutional duty to provide it. In addition, that same section of the constitution provides that the “educational program of high quality [should be] established and continually maintained.” The constitution gets even more specific, stating that the State Board of Education “shall . . . prescribe[e]” the “standards of quality for the several school divisions.” Thus, the constitution says the precise definition is not to be left to chance. It is the Board’s duty to prescribe these high quality standards.
But some would argue there is a catch. That constitution says General Assembly “shall seek to ensure” the education program and “determine the manner” in which it will fund the schools, which leaves the General Assembly some discretion. In Scott v. Commonwealth, plaintiffs sought to test out these education clauses and challenge unequal funding in the state. The Virginia Supreme Court rejected the challenge, holding that the constitution does not guarantee “equal” or “substantially equal” school funding. That decision has scared advocates away ever since.
If you were trying to make a buck on the side and were pretty sure that some new or improved technology would drastically undercut the market for cell phones within five years, would you invest in Apple stock or look for other opportunities? Well, that is the type of information I have for the Koch Brothers and Devos families of the world. Invest your money elsewhere. Vacate the Secretary of Education’s office. The days of charter and voucher growth are numbered. And regulation is coming to those charters and vouchers already in place.
Why am I suddenly confident, rather than nervous, about charters and vouchers? I got the chance to meet and listen to teachers from across the country at the Network for Public Education’s annual conference in Indianapolis this past weekend. For the first time in my professional career, I had a firm sense of public education’s future. I have litigated and participated in several civil rights and school funding cases, dealt with lots of different advocates, and watched closely as the teacher protests unfolded this spring. In Indianapolis, I saw something special—something I had never seen before.
I saw a broad based education movement led not by elites, scholars, or politicians, but everyday people. Those everyday people were teachers who were not just from big cities, small cities, suburbs, or the countryside, but from all of those places and as diverse as America’s fifty states and ten thousand school districts. The teachers weren’t just young or old, white, black or brown, men or women, straight or gay. They were all of the above.
Education law job opportunities at places like the NAACP LDF, MALDEF, the Lawyers' Committee and the Southern Poverty Law Center don't come around that often. The same is true of the Education Law Center, the nation's premier education funding and quality organization. Yesterday, I received notice that the Education Law Center is hiring a staff attorney. Below is the posting:
A decade ago, I founded the Education Rights Center at Howard University School of Law. One of my driving motivations was the notion that everyday people needed basic information about their schools and rights. There was a plethora of data embedded in databases and spreadsheets, and there was a ton of great social science research out there reaching conclusions about that data. It seemed to me that the best entity to make sense of all of this was the U.S. Department of Education. After all, the vast majority of this data is compiled and managed by the Department. And a great deal of the research was either funded by the Department or housed in its clearinghouse website.
It was also my sense that the Department did next to nothing to be of help to everyday folks. Only sophisticated researchers could do anything with the data. For those who haven't waded into the Department's databases, it suffices to say that the data is "raw." Simply looking at that data tells you next to nothing, unless you are just wondering how many students go to a particular school, how many teachers the school has, how many minority students attend the school. That information, however, is practically meaningless. It only has meaning when you place it in context. For instance, you know elementary school X has 542 students, but what is the average size of an elementary school? The website won't tell you. So what do you really know about the school. Similarly, you know how many minority students attend the school, but what is the percentage of minority students in the school? It won't tell you that either. You have to calculate the percentage yourself by combining the raw data.
I could go on, but the point is that the Department wasn't telling parents and students things they might want or need to know, particularly if they thought something was wrong with their school or they were just curious. I quite simply thought it a disgrace that our Department of Education couldn't put its vast resources to work to make its data somewhat helpful for everyday people. If it did that, it might put folks in a better position to protect their own rights.