Thursday, October 25, 2018

International Body Confirms It: Our School Segregation Problem Is Dragging Student Achievement Down

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).

In other words, the school that a disadvantage students attends, not just that student's individual characteristics, correlate a year and a half worth of learning.  Assign those students to predominantly middle income school, their scores and graduation rates jump substantially.  Assign them to predominantly low-income schools, their chances drop precipitously. And because we don't do anything to deal with this reality, the gap between disadvantaged and non-disadvantaged students widens each year that they remain in our schools.

There is nothing really new on this point in the report.  I and other scholars and advocates have been making this point for decades.  But it is reassuring to have an international body, with no real stake in the particulars of our domestic education policy, to make the point so bluntly based on data.

Zooming out even further, the report's findings suggest that our education system is nowhere close to making the American dream possible for disadvantaged students.  In terms of upward mobility, the United States ranks 29 out of 33 countries.


October 25, 2018 in Racial Integration and Diversity | Permalink | Comments (0)

All Signs Point Toward a Constitutional Problem in Virginia's Education System

VirginiaEducation 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.

Some experts believe that now is the time to revisit the constitutionality of school funding in the state.  David Sciarra, of the Education Law Center, tees up the issue perfectly.  He explains that people pay too much attention to what the Court dismissed in Scott and not enough attention to what it left open.  The Roanoke Times offers this summary of its recent conversation with Sciarra:

Sciarra says he’s surprised that so few people have actually read that decision, because he thinks while it closes one door, it opens another one, or at least points the way toward it. Put another way, Sciarra thinks the plaintiffs in Scott v. Commonwealth of Virginia made the wrong argument. They made a strictly financial argument that there was a “great disparity” in funding. There still is. More than twice as much is spent on students in Arlington than in Norton, although that’s largely because affluent Arlington spends far more of its own money. It’s hard to tell Arlington it can’t spend its own money on its schools, and it’s hard to say that Virginia taxpayers should be on the hook to automatically match Arlington’s level of funding across the state. “Nowhere does the Constitution require equal, or substantially equal, funding or programs among and within the Commonwealth’s school divisions,” the Virginia Supreme Court ruled in 1994.

Sciarra, though, points to something else the court said, not just once but twice. The court pointed out that the plaintiffs “do not contend that the manner of funding prevents their schools from meeting the standards of quality.” That, he says, is the key phrase no one has picked up on — because, while the Virginia Constitution doesn’t mandate equal funding, it does appear to mandate that schools meet certain standards of quality.

If a school system were to show that its funding is so low that it cannot meet those standards, Sciarra says, then the General Assembly is compelled to do something about that. “The problem in Scott is they didn’t go to court over that; they went to court over money and only money,” Sciarra says. “The court doesn’t say anything about equalized dollars.” But twice the court pointed out that the plaintiffs didn’t complain that their schools weren’t meeting the constitutional requirement of “standards of quality.”

The Board of Education — whose nine members are appointed by the governor — could at any time set standards for Virginia’s school buildings. That, Sciarra says, would either force the General Assembly to act, or open the door for a lawsuit that some of these buildings are so old that they are unable to deliver a quality education.

“Scott is a very powerful case,” he says. “Scott is extraordinarily relevant.” He’s just surprised no one else has read it the way he has. Is Virginia’s Board of Education content with the condition of some of Virginia’s schools? If not, it has the power to do something about them.

I would go even further than that.  There are two key facts that suggest that the General Assembly has already violated the constitution and does not have near the discretion that some might assume.

First, in recent years, the General Assembly has manipulated its education budget to reduce education expenditures in contradiction to the education standards established by the State Board of Education.  For instance, following the recession, Virginia, for no defensible reason, capped the number of support personnel positions it would fund in schools—something it had not previously done.  Its purpose was obvious.   By excluding these personnel from the statewide funding formula, the state drove down its estimate of base education costs.  In a single year, this exclusion allowed the state to cut $378 million dollars from base education funding, but still act like it was funding the cost of education. 

This constitutional problem should be apparent on the face of the facts.  These personnel and other costs are part of the State Board’s constitutionally required proscription of the standards of education and the resources necessary to meet those standards.  With these and other cuts, the General Assembly’s education appropriations fell $339 million short of the Board’s estimated cost of meeting the standards in 2016.  The state simply continually flouts these standards.  In doing so, it is not acting in good faith in carrying out its constitutional duty. 

Similarly, Sciarra later added in a discussion with me that, as to facilities, "the cost of maintaining a program based on the Standards of Quality must include ensuring buildings that are safe, not overcrowded and adequate to deliver the Standards of Quality."  This measure is so minimal and obvious that the General Assembly is obligated to provide these funds "even in the absence of building standards in the Standards of Quality."

Second, Virginia, along with two other states, was in the last group of confederate states to be readmitted to the Union in 1870.  Congress mandated that all states comply with the U.S. Constitution’s requirement that states provide a republican form of government.  Virginia and the two other states had dragged their feet and refused to comply with Congress’s demands.  When Virginia finally amended its constitution and came into compliance, Congress remained worried that Virginia would back track.  Some other states had done so on some issues. Thus, Congress placed a specific statutory condition on Virginia’s readmission.  The statute—still on the books today—provides that “the constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.”

This precise phrasing is absolutely crucial because it construes Virginia’s commitment to public education in 1870 as a “right” and says that the state can never take that “right” away.  The enforceability of this statute in federal court raises a host of complicated issues that don’t matter here (For more on them, see Williams v. Bryant, a case seeking to enforce the same condition on Mississippi).  The important question here is whether Virginia’s constitution creates actual education rights and duties that the legislature is bound to carry out.  The answer ought to be yes just based on reading the Virginia Constitution.  But the back story further confirms the fact that the answer is yes.  As I detail in the Constitutional Compromise to Guarantee Education, 70 Stanford Law Review 735 (2018), the right to public education is vested in various state constitutions, but it is a right that the federal constitution requires that states provide.  Virginia simply cannot back out of its education duties, nor should any Virginia court allow it to do so as a practically matter.

In sum, as Sciarra points out, the Virginia Supreme Court left a huge door open for alternative school funding claims in Scott.  The most important claim is whether the state is providing the resources necessary to meet the state standards for high quality education.  On this question, the facts are pretty clear the state has not been living up to this constitutional obligation.  Moreover, on this claim, the state should not be able to avoid its responsibility, as it did in Scott, on a theory of legislative discretion.  The constitutional history of the state and the condition of readmitting Virginia to the Union demonstrate that students’ rights are at stake and those are rights that Congress requires Virginia to afford its students.

October 25, 2018 | Permalink | Comments (0)

Tuesday, October 23, 2018

The Days of Charter Schools and Vouchers Are Numbered

SunsetIf 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.

So what then binds them together?  Their opponents would say they are radicals or self-interested.  But these teachers weren’t that either.  As I sat down across the table and listened, I was struck by just how “every day” many of these teachers were.  They had hopped on planes and come from across the country, but they were not any different from my kids’ teachers back in South Carolina--who had not even hinted at the possibility of a strike.

These movement “leaders” in Indianapolis were reluctant leaders.  Like my kids’ teachers, these teachers struck me as the type who put their heads down, follow the rules, teach what the state asks, and care most of all about their students.  And while these teachers were obviously disappointed in their states and concerned about the future of public education, I wouldn’t even call them mad.  They stepped out on a ledge because they felt they had to. 

One teacher, whom I recognized from this past spring's newspapers but won’t name, actually had a lot of good things to say about her teaching experience and school.  She said her principal lets her teach how and what she wants and that her school is good place.  If I did not know who she was, you could not have convinced me that she led thousands of teachers this past spring.

There is one stereotype, however, that fits these teachers well: studiousness.  They read—a lot.  They research—a lot.  As a result, they know and keep track of stuff that normally only policy wonks and professors know.  Details matter in education policy and these teachers were on top of them.  If I were governor and starting a new watchdog agency—whether in education or some other area—these teachers are some of the first people I would hire.

Over time, I have come to realize that clients matter more than attorneys.  Groups of committed individuals standing behind movement leaders are, as often as not, more important than leaders.  Attorneys and leaders tend to be just vessels for something larger than themselves. 

What makes this teacher movement special is that the leaders are also the followers.  The leaders come from within the ranks, not urged on by outsiders, elites, or money.  They are urged on by their own sense of right and wrong, by their heartfelt care for public education and the kids its serves.  For those reasons, they won’t be going away, bought off, or fatigued any time soon.

Polling in several states suggests these teachers are going to take their legislatures by storm in a few weeks.  But as important as those elections are, they will not decide the final fate of public education.  Whether it is this year, next year, or several years from now, this otherwise complacent cadre of teachers will reach their goal.  They have been awakened by states that overreached and pushed them too far.  Now that they are awake, they won’t stop fighting for public education no matter what happens this fall.  That, more than anything, tells me that the days of privatizing public education are numbered.

--image by Alvesgaspar, courtesy of Wiki Commons

October 23, 2018 | Permalink | Comments (2)

Dream Job for the Education Law Attorney

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:


Education Law Center (ELC) seeks a full-time attorney to join ELC’s legal, research and communications team working across the country to enforce the education rights of public school students under state and federal law. Specific areas of focus include:

• Vouchers: ELC is building a docket of litigation and policy reform to oppose the proliferation of voucher programs and protect against the diversion of public funds to private education uses. The attorney will work to advance ELC’s litigation and advocacy, in partnership with other civil rights organizations, to challenge proposed and enacted voucher laws and implementation of voucher programs.
• School Funding, Education Equity and Special Education: ELC has an active docket of litigation and provides legal and research support to litigators on systemic issues related to school funding, education equity and special education in the states. ELC works with local and state advocates to develop proposals, then engages private law firms to undertake litigation in these areas pro bono. Using this model, ELC has brought litigation to challenge inadequate school funding in New York; to enforce the right to special education for Flint, Michigan children; and to enjoin the diversion of public funds to private schools in Nevada. The attorney will assist in the coordination of these efforts and provide technical assistance to firms engaged in pro bono work.

Founded in 1973, ELC serves as the leading voice for New Jersey’s public school children and has become one of the most effective advocates for equal educational opportunity and education justice in the United States. Widely recognized for groundbreaking court rulings on behalf of at-risk students, ELC also promotes educational equity through coalition building, litigation support, policy development, communications, and action-focused research in states nationwide and at the federal level.
ELC’s legal and policy advocacy has advanced the cause of fair school funding, high quality early education, safe and adequate school facilities, and protection of students’ civil rights, especially for low-income and at-risk students and students with disabilities and other special needs.

Job Responsibilities
The specific duties include but are not limited to:

• tracking and reviewing legislation and proposed rules and regulations for legal and equity impacts;
• monitoring relevant litigation, providing technical legal assistance, and preparing amicus briefs;
• assisting in civil trial and appellate litigation in state and federal courts;
• coordinating attorneys at ELC and other organizations on litigation and other advocacy activities;
• drafting tools for legislative advocacy;
• producing news articles, policy briefs and reports;
• outreach and network building with those engaged in related work;
• providing technical assistance and information to other advocacy organizations;
• supervising law fellows and students; and
• assisting in the preparation of grant reports.


• at least four years of legal practice experience beyond law school;
• experience in civil rights, education law and/or policy;
• excellent legal research and analytical skills;
• excellent written and verbal communications skills, including social and other media;
• licensed in New Jersey preferred;
• excellent organizational, networking, and relationship-building skills;
• demonstrated ability to work in collaboration across organizational boundaries to achieve
agreed-upon goals; and
• commitment to the mission of ELC.

Salary and Benefits
Salary will be commensurate with experience. Paid vacation and sick leave will be provided.
ELC’s benefit package includes medical, life, and dental insurance, as well as a retirement
savings program.

How to apply

To apply, send a resume, cover letter and two writing samples by email to:
Theresa Luhm, Esq.
Education Law Center
60 Park Place, #300
Newark, NJ 07102

The position will be open until filled.
ELC is an equal opportunity employer and strongly encourages persons with disabilities,
persons of color, women, and LGBTQI persons to apply.

October 23, 2018 | Permalink | Comments (0)

Tuesday, October 16, 2018

Someone Is Doing the Department of Education's Job for It, Thank Goodness

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.  

Well, at the time, it wasn't doing that, so I thought my little center could help.  We did a fair amount of work tackling just two aspects of the public knowledge deficit.  We focused on student rights in discipline and special education.  That work eventually migrated to the Lawyers' Committee for Civil Rights and its parental empowerment program.  We also started on the data, but given the limitations of my skills and the available support personnel, I could not get the project to a point where I was comfortable going live on the internet.

That backstory is what makes today such an important day in my mind.  I woke up to find that ProPublica just took a huge bite out of the problem.  It released a web project called Miseducation: Is There Racial Inequality at Your School?

The website is a beautiful and user friendly one-stop shop to some important inequalities.  You don't need to be an expert.  You don't have to run yourself around in circles trying to figure out which weblink to follow.  All you have to do is look at the map and click on your school district and then your school if you want.  It then opens up to incredibly helpful information on the school's demographics, graduation rate, access to gifted and talented and various other courses, student-teacher ratios, teacher credentials, teacher absenteeism, suspensions, expulsions, law enforcement referrals, and alternative school referrals.

There is still important information that parents need to know that they won't find here, like special education rates, English Language Learner data, school funding, and segregation.  But that is not a critique of ProPublica.  This website is, quite frankly, the most important one I have seen.  It is far better than what I had envisioned for myself.  And that other information is slowing becoming available elsewhere.  Vox, for instance, created a great website on school segregation that works in ways very similar to ProPublica's.  Edweek, Bruce Baker, and the Education Law Center have been doing tremendous work on the school funding front.

But everyday people shouldn't have to be experts, go to five different websites, or rely on the good graces of researchers or the media.  And they should not have to trust that private individuals are getting it right.  The Department of Education should do that work for them.  Fortunately, ProPublica is showing that there are others out there who can do the Department's work for it, if it won't (although I cannot vouch for its methods).

I would be remiss, however, if I did not offer one caveat and acknowledge the hard work that a lot of people have been doing at the Department over the past decade.  The Department of Education made a huge step forward with its Civil Rights Data collection during the Obama administration, and, under the leadership of Catherine Lhamon, the Office for Civil Rights started putting out some great reports that were useful to advocates.  Without that work and that of a lot of unnamed staff at the Department, the work of ProPublica would not be possible. 

October 16, 2018 | Permalink | Comments (0)

Monday, October 8, 2018

The Fundamental Right to Education

In my last article, The Constitutional Compromise to Guarantee Education, I examined the period immediately leading up to and following the Fourteenth Amendment and found that the ratification of the 14th Amendment and southern state's education clauses in the constitutions were inextricably intertwined.  Quite simply, rewriting their constitutions and providing for public education was a condition of readmission to the Union, as was the ratification of the 14th Amendment.  In other words, without constitutional guarantees of education, southern states never reenter the Union.  And without southern votes for the 14th Amendment, the amendment never becomes part of the constitution.  Thus,  I argue that one cannot understand the rights of state citizenship that the 14th Amendment secured, nor the meaning of a republican form of government, without examining those state constitutions. 

Our legal lexicon, at least as far as I know it, does not have a word to capture what occurred.  For lack of a better term, I call these events a constitutional compromise.  None of the major constitutional exercises of power, nor the constitutional revisions that emerge, would have occurred without the others.  My conclusion is that, whatever we call it, the federal constitution did, as a matter of fact, guarantee access to public education.  The article then moves on to the arguably tougher question of figuring out what, if any limits, the constitutional compromise places on states in their delivery of education.

After finishing that research and having time to further reflect on it, I began to question how exactly a modern court would deal with this history.  There is no constitutional compromise doctrine, no republic form of government standard, no development of the rights of state citizenship.  So I began to dig further and came upon yet additional problems and concerns.  The foremost is that those who enacted the 14th Amendment thought about rights far differently than us.  Their thoughts on how best to protect those rights was also far different.  The main effect and purpose of the 14th Amendment was not to grant courts authority, but to give Congress authority.  With the 14th Amendment, Congress's prior civil rights legislation would be on strong footing and Congress could pass far more.  In short, the primary protection for life, liberty, property, due process, equal protection, and privileges and communities would come from Congress.  This is not to say courts were not important too, but to emphasize that Congress power was more important.

This frame of reference is all but lost in modern doctrine.  The Court has declared itself the final arbiter of 14th Amendment protections and will override Congress when it deems it appropriate.  The Court has also all but read privileges and immunities out of the Constitution.  On the other hand, the Court has read substantive due process into the Constitution.  The reading in of that concept, ironically, operates as tool to fix the Court's other doctrinal errors.  It allows the Court, albeit awkwardly at times, to bridge the gap between our modern way of thinking about rights and what the nation actually did and expected when it ratified the 14th Amendment.

With that in mind, I said "to heck with Constitutional Compromises."  What would substantive due process do with the historical events I unearthed in my prior research and what additional questions might substantive due process ask?  What emerged was a second article, The Fundamental Right to Education.  I saw a lot of other historical events in a new light by asking those questions.  I also discovered legislative action that had previously eluded my attention.  My abstract offers this summary:

 New litigation has revived one of the most important questions of constitutional law: is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.

To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our constitution protects education, particularly since the word education does not even appear in the constitution. Second, the right to education implicates complex questions regarding its scope. Those questions would require the Court to determine the quality of education the constitution requires. Neither litigants nor scholars have seriously grappled with these problems, which explains why the Court has yet to recognize a right to education. This Article cures both problems.

Not only does this Article offer a compelling originalist argument for a fundamental right to education, it demonstrates that the right falls squarely within the Court’s existing precedent. It traces the fundamental importance of education from the nation’s founding principles through the years immediately following the Fourteenth Amendment. Most important, it details how, in the years surrounding the final ratification of the Fourteenth Amendment, Congress demanded that states guarantee access to public education in their state constitutions and linked these demands to the Fourteenth Amendment itself. In fact, after the Fourteenth Amendment, no state would ever again enter the Union without an education clause in its constitution. This history, due to its complexity, has quite simply been overlooked.

This Article also defines the scope of a right to education with historical evidence. It demonstrates that the original purpose of public education was to prepare citizens to participate actively in self-government. In the mid-nineteenth century, this required an education that prepares citizens to comprehend, evaluate, and act thoughtfully on the functions and policies of government.

This picture of the Northwest Ordinance of 1787, which predates the US Constitution, is worth a 1,000 words, even though it only includes less than 100.  The Northwest Ordinance, moreover, is one of just a couple of foundation documents printed as the preface to the official version of the Unite States Code. It stands alongside the Declaration of Independence and the Constitution


NW ordinance 2

My article is forthcoming in the Notre Dame Law Review.  Get the current draft here.


October 8, 2018 | Permalink | Comments (0)

Thursday, October 4, 2018

Connecticut Federal District Court Rejects a Fundamental Right to Education, But Offers Interesting Analysis for Future Claims

This summer, a federal district court decision in Michigan dealing with the fundamental right to education and literacy grabbed national news for more than a week.  Onlookers were seemingly shocked at how bad educational opportunities are in places like Detroit and that a federal district court would hold that there is no right to literacy.

A somewhat related case in Connecticut has gone almost entirely unnoticed.  Last week, a federal judge reached almost the same exact conclusions as the judge in Michigan.  The Connecticut judge held there was no federal fundamental right to education.  The Supreme Court had foreclosed such a right in San Antonio v. Rodriguez, reasoned the judge.  But plaintiffs had argued that San Antonio had left open the possibility of a right to a minimally adequate education.  The district court responded:

In Rodriguez, the Supreme Court did not leave the door open for federal courts to recognize a fundamental right to a minimally adequate education. To the contrary, the Court rejected the idea of a fundamental right to education, without parsing how effective or adequate the education might be, because such a right is not guaranteed in the Constitution. Moreover, in Plyler, the Court cited Rodriguez’s holding for that proposition.

On that score, I think the court is wrong and conflating the distinction between a fundamental right to education and a fundamental right to a minimally adequate education.  A minimally adequate education raises a host of different questions and rationales.  The district court did not address them.  Scholars, however, have, and no Supreme Court cases has rejected those possibilities. To the contrary, it has left them open.  My recent work, in painstaking detail, lays out the historical basis for recognizing such a right or something similar to it.  But I warned that if the best argument plaintiffs had in these cases was "Rodriguez leaves open the issue," they would be in trouble.  They need an affirmative explanation for courts to go out on a limb.  I believe I offer that affirmative explanation.  But that is another story.

The most interesting aspect of the Connecticut district court decision may be its discussion of potentially applying heightened scrutiny to educational inequalities, even though it had found education is not a fundamental right.  The court understands Plyler v. Doe to have applied intermediate scrutiny.  Scholars have long attempted to place the standard of review in Plyler in some box other than rational basis.  The Court in Plyler indicated it was applying rational basis, but its review looked tougher than that.  For that reason, scholars and lawyers have spent a good deal of time trying to construct the underlying theory of Plyler, so that it might be applied elsewhere.  Justin Driver, in his new book The Schoolhouse Gate, argues that Plyer was meant to be monumentally important, but has yet to fulfill its promise. 

The Connecticut district court explicitly writes that in Plyler “Given the importance of public education, the State’s complete deprivation of all educational opportunities, and the equal protection concerns raised by the State’s deliberate discrimination against an entire class of children, the Court determined that intermediate scrutiny was appropriate.”  The district court, however, then proceeds to explain why that intermediate scrutiny has not been applied in other cases and does not apply in the instant case.  It reasoned that Plyler rests on unique circumstances: a) “deliberately target[ing]” a group of students and b) denying them “all educational opportunities.”  Since the state has done neither in Connecticut, the district court dismissed the claim.

While this is of little help to the plaintiffs in this case, the basic acknowledgement of intermediate scrutiny and the factors under which it might be applied elsewhere offers a ray of hope.  To be of real use, plaintiffs would need to whittle away at the concept that intermediate scrutiny requires a complete denial of opportunity, but I think that is manageable.  The court is incorrect to read such a high barrier into the standard.  Yes, that fact existing in Plyler, but I don't think it was determinate.   Such a high barrier also makes the application of the standard somewhat circular.  Intermediate scrutiny is important in cases in which something less than complete denials occur, not when they do.  The key, as I see it, is the targeting of students and a substantial denial of opportunity.  Complete denials simply make it worse.

Finally, while the legal issues in this case are fascinating, the facts of the case are an incredibly poor vehicle for exploring them.  The case was brought by charter school advocates and the remedy they sought was not for the state to deliver minimally adequate educational opportunities in its public schools, but for the court to lift caps on charter schools.  This type of misuse or misappropriation of constitutional rights and interests in education suffers from all of the same problems in the constitutional attacks on teacher tenure.  I, won’t belabor hose critiques here, but simply point you to my prior work where I explore them in detail.  Hopefully, this case dissuades future attempts in which policy agendas masquerade as constitutional claims without also dissuading the recognition of legitimate constitutional theories.

October 4, 2018 | Permalink | Comments (0)

Tuesday, October 2, 2018

Court Process Underway to Remedy North Carolina's Inadequate School Funding by Wendy Lecker

After years of stalled progress, underway in North Carolina aimed at moving the State to fulfill its constitutional duty to adequately fund public education. In response to a joint request by the parties in the landmark Leandro v. State litigation, Superior Court Judge David Lee has ordered WestEd, an independent consultant, to conduct an in-depth study and make recommendations to remedy the constitutional violations found in the Leandro case through the provision of constitutionally adequate resources for all North Carolina public schools.

Leandro Background

In 1994, parents, students and school districts in low-wealth rural counties filed Leandro v. State, alleging students in these counties were being denied their right to an adequate education under the North Carolina constitution. In 1997, the North Carolina Supreme Court permitted the case to proceed to trial, declaring that all students in the state are entitled to "the opportunity to receive a sound basic education." After trial, the lower court found in 2002 a violation of the students' right to a sound basic education and ordered the State to remedy the violation by providing:

  • A "competent, certified, well-trained teacher who is teaching the standard course of study" in every classroom;
  • A "well-trained competent principal with the leadership skills and ability to hire and retain competent, certified and well-trained teachers" in every school; and
  • The "resources necessary to support the effective instructional program" in every school "so that the educational needs of all children, including at-risk children, to have an equal opportunity to obtain a sound basic education, can be met."

In 2004, the Supreme Court upheld the trial court ruling and retained jurisdiction to ensure the State complied with the decision. Since 2004, some efforts have been made to comply with the Supreme Court ruling - notably, by expanding access to high quality preschool for at-risk four-year olds. Plaintiffs, however, continue to maintain that the State has not achieved full compliance with the specific requirements for a constitutional sound basic education established by the Leandro rulings.

After years of annual hearings to review student performance and other education data, in July 2017, the Plaintiff parties, including the Plaintiff-Intervenor, Charlotte-Mecklenberg Branch of the NAACP, and the State jointly asked Judge Lee - who had recently been assigned the Leandro case - for an order to appoint an independent expert consultant to develop recommendations for the State to comply with the three Leandro elements for a sound basic education. Judge Lee agreed and issued an order on February 1, 2018, appointing WestEd, an education research non-profit based in San Francisco, to undertake a study to recommend a plan to remedy the continuing constitutional violation in Leandro.

The Plaintiff-Intervenors are represented by attorneys Mark Dorosin and Elizabeth Haddix at the Julius L. Chambers Center for Civil Rights.

Leandro Court's Remedial Process

In several orders, Judge Lee not only appointed WestEd to conduct a remedial study but also established a process and timeline for conducting and completing the study. Specifically, WestEd must provide monthly progress reports to the parties and the Court, must meet with the parties to inform them of progress, and must provide opportunities for the parties to give input on the plan.

Judge Lee specifically directed WestEd to address each of the three elements of the Leandro ruling - qualified teachers, experienced leaders and adequate resources - and make recommendations for action by the State to remedy deficiencies in each area. The Judge ordered WestEd to complete its study and submit final recommendations to the parties and the Court within twelve months, or by March 31, 2019.

In its final recommendations, WestEd must provide all of the facts and opinions that form the basis for its recommendations. The parties also have the opportunity to respond to WestEd's final recommendations. Finally, Judge Lee reserved the right to order further proceedings and/or discovery, including a hearing, regarding the final recommendations, should the Court deem these actions necessary.

The WestED Remedial Work Plan

WestEd has submitted a work plan to examine teaching, administration and the provision of resources necessary to support effective instruction. In particular, West Ed proposes to address the following issues:

  • Teachers: focusing on attracting and preparing teachers; developing and supporting teachers; and retaining teachers and extending their reach to influence more students.
  • Principals: focusing on best practices for effective leadership, particularly those practices used in schools serving students living in poverty.
  • Adequate Resources: reviewing and analyzing the current finance system to assess its adequacy and equity; convening "focus groups" drawn from education and other state leaders to understand needs, interests and options for improving the finance system; and developing a plan to address resource adequacy requirements. Of particular interest to WestEd is efficient resource allocation.

The Plaintiff parties are pressing to ensure WestEd analyzes the specific resources essential for an adequate education, particularly for students in high poverty schools and school districts. Specifically, Plaintiff-Intervenors have proposed WestED make findings regarding shortages of qualified teachers and principals and the connection between those shortages and inadequacies in North Carolina's school finance system. They are also pressing WestEd to identify the essential staff, services and programs for low-income students, English language learners, and students with disabilities, and gaps in those essential resources - including preschool programs - in high poverty schools and school districts across the state.

Governor's Leandro Commission

In a separate but related development, North Carolina Governor Roy Cooper has established an Executive Commission on Access to Sound, Basic Education. The Commission will also assist WestEd in the development of the Leandro plan for the State to meet its constitutional education obligations. Importantly, the Commission will also be engaged in ensuring implementation of the remedial plan.

The Governor's Commission includes prominent education experts in North Carolina, including Dr. Fouad Abd-El-Khalick, Dean of the School of Education at the University of North Carolina at Chapel Hill; Mark Jewell, President of the NC Association of Educators; Dr. Helen F. Ladd, Professor Emerita of Public Policy and Economics at Duke University's Sanford School of Public Policy; Leslie Winner, former Executive Director of the Z. Smith Reynolds Foundation and former General Counsel to the Charlotte-Mecklenburg Board of Education.

Moving Forward

In recent years, North Carolina public schools have experienced reductions in education funding, which, in turn, have triggered cuts in essential resources, including teachers, support staff and programs, especially in schools serving high concentrations of low-income students and students at risk of academic failure. Progress in expanding access to high quality preschool has also stalled. For nearly a decade, the constitutional violations in the Leandro rulings have continued without an effective remedy.

The judicial proceedings in Leandro, now underway to develop specific remedial measures to ensure all North Carolina school children their constitutional right to an adequate education, hold the promise of alleviating the chronic resource deficits and severe underfunding of the state's public schools. Judge Lee has established a clear process, with firm deadlines, for developing a concrete remedial plan for State action to guarantee that all schools have adequate resources to provide all children, no matter what their circumstances, the opportunity for a sound, basic education, as guaranteed by the North Carolina constitution.

Wendy Lecker is a Senior Attorney at Education Law Center

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

Monday, October 1, 2018

Suspensions for Students Who Don't Pledge of Allegiance, What Is Texas AG Thinking?

Pledge_of_allegiance_to_the_flag _8th_Division_LCCN2001703605.tifA dispute over the pledge of allegiance in a Texas High School is shaping up to be very interesting, mainly because of the strange position the state's Attorney General is taking in support of the school district.  A slip opinion from the federal district court offers this summary of the facts:

India Landry is an African American student who attended Windfern High School (“Windfern”) in the Cypress Fairbanks Independent School District (“Cy Fair ISD”). . . .  Windfern is a “Campus of Choice,” which Cy Fair ISD students may attend upon application and the recommendation of the home campus assistant principal and counselor. At other schools in Cy Fair ISD, India had sat for the Pledge of Allegiance (the “Pledge”) “around 200 times.”

During the spring of 2017, India’s English teacher, Jamie Johnson, told her to leave the classroom on five separate occasions because she sat for the Pledge. Also that spring, India’s Street Law teacher, Mary James, told India that it was disrespectful to this country to sit for the Pledge. The day after Ms. James admonished India for sitting for the Pledge, Ms. James sent India and another African American student to Principal Martha Strother’s office because they were sitting for the Pledge. Principal Strother is the designated authority to handle student behavior at Windfern. Principal Strother told the two students they had to stand for the Pledge.

On October 2, 2017, India was in Principal Strother’s office when the Pledge was recited. India remained seated. In response, Principal Strother “immediately expelled India from school” by saying, “Well you’re kicked outta here.” Assistant Principal Penny Irwin-Fitt called India’s mother, Kizzy Landry, and gave her five minutes to pick up India or the police would escort India from school. While India waited, administrators made hostile remarks to her. Ms. Fitt said India would stand for the Pledge like the other African American student in her class. The secretary, Karen Walters, said, “This is not the NFL.”

. . . .

On October 5, 2017, India and Kizzy Landry met with Principal Strother. Principal Strother stated that sitting was disrespectful and would not be allowed, and that India must stand for the Pledge to be permitted to return to Windfern. Principal Strother suggested that, instead of sitting, India could write about justice and African Americans being killed.

. . . .

Regarding the Pledge, the Cy Fair ISD handbook states: "Pledge of Allegiance and a Minute of Silence Texas law requires (Texas Education Law Section 25.082) students to recite the Pledge of Allegiance to the United States flag and the Pledge of Allegiance to the Texas flag each day. Parents may submit a written request to the principal to excuse their child from reciting a pledge."

India sued the school district, claiming it had violated her First Amendment speech rights and discriminated against her based on race, along with several other claims.
Quite honestly, I am surprised this case is still on the court's docket.  The Supreme Court held in West Virginia v. Barnette that a school cannot compel a student to participate in the pledge of allegiance.  To do so violates the student's free speech rights because it forces a student to participate in a ceremony and recite ideas with which the student disagrees.  The Court wrote, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
The more unfathomable part of this cases is that Texas Attorney General Ken Paxton is siding with the school. According to the Houston Chronicle, he issued  this statement:

School children cannot unilaterally refuse to participate in the pledge. The U.S. Supreme Court has repeatedly held that parents have a fundamental interest in guiding the education and upbringing of their children, which is a critical aspect of liberty guaranteed by the Constitution.

For the life of me, I do not understand this argument.  The Supreme Court said the exact opposite. It said schoolchildren can refuse to participate in the pledge of allegiance in Barnette.  References to parental rights are not much help. They just cloud an issue that is otherwise crystal clear.

Yes, the Court has recognized a right on behalf of the parents, but that right comes up when parents are objecting to something that the state is forcing on their children, most notably compulsory attendance in a public school.  Parents have asserted the right to establish that they are free to attend private school, or potentially home school, instead of going to public school.  Courts agree.

But the fact that parents have some rights to resist school policies does not mean that students lack that power for themselves, which seems to be Paxton's logic.  To the contrary, the Court famously emphasized in Tinker v. Des Moines that students do not shed their First Amendment rights at the schoolhouse doors.  That case makes no mention of parental rights.

To Paxton's defense, the Eleventh Circuit, in Fraizer v. Winn, upheld a statute the required parent consent for a student to opt out of the pledge.  The case's logic, however, is substantively problematic and cursory.  It ignores the student's right and oddly focuses on whether the statute is overbroad.  It asks that question because it reasons the statute is neutral on its face.  In other words, it assumes that the law is generally constitutional and the only potential problem it raises is the possibility that it might incidentally burden speech.  But, of course, the big question is not the incidental effects of the law, but whether the right to opt out belongs to the student or the parent.  In fact, the court basically admits that it is skipping this analysis writing that "We see the statute before us now as largely a parental-rights statute."

Under similar facts, a longer and more well reasoned Third Circuit case, Circle Sch. v. Pappert, did not even bother with the parental rights issue because it found that the other claims in the case were precedent and dispositive.  The court wrote:

Pennsylvania's parental notification clause clearly discriminates among students based on the viewpoints they express; it is “only triggered when a student exercises his or her First Amendment right not to speak.” A student's decision to recite the Pledge of Allegiance or the national anthem, and thereby adopt the specific expressive messages symbolized by such an act, does not trigger parental notification. On the other hand, a student's refusal to engage in the required recitation leads to a written notice to his or her parents or guardian, and possibly parental sanctions. As the District Court correctly pointed out, given that the purpose of the bill is to support the recitation of the Pledge of Allegiance or the national anthem in schools, a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to “chill speech by providing a disincentive to opting out of Act.” The Supreme Court has repeatedly stated that “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” 

The Commonwealth, on the other hand, does not offer any convincing governmental interest which this parental notification scheme is designed to further. Its claims that “the parental notification system simply serves an administrative function, designed to efficiently inform all parents of an aspect of their children's education,” and that “[p]resumably, less administrative resources would be expended informing the parents of those who declined to participate than informing all parents,” are unpersuasive. The administrative convenience argument appears makeweight. It appears just as likely, if not more likely, that notification to all the school's parents at one time, possibly along with other notices sent at the beginning of the school year, would actually conserve administrative resources. Instead, under the Act, teachers must watch for students who refuse to recite the Pledge of Allegiance, record their names, report them to the school administration and notify their parents individually.

Of more fundamental importance, the Commonwealth's stated interest of parental notification is simply not “so compelling of an interest” as to justify the viewpoint discrimination that significantly infringes students' First Amendment rights. We agree with the District Court that the parental notification clause of Section 7–771(c)(1) unconstitutionally treads on students' First Amendment rights.

Local reporting suggests something more sinister than faulty legal logic is at play in the Texas Attorney General's decision to engage this issue--an attempt to leverage civil rights and patriotism in advance of midterm elections.  To this, the Supreme Court also offered a stern warning and an explanation worth remembering as our nation confront's debates about how we show our patriotism:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism  and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.


October 1, 2018 in First Amendment | Permalink | Comments (0)

Wednesday, September 26, 2018

The Far Broader Implications of the Court Opinion That Struck Down DeVos's Approach to Student Loans

Student debtIn case you missed it, Betsy DeVos recently got a judicial smack down in the battle over student protections in loan repayment.  I won't rehash the merits of the competing student loan policies here.  You can find that elsewhere.  But it is worth emphasizing exactly why DeVos lost and its implications for other administrative actions.  Those two things are extremely important in thinking about the future of the broader landscape of education policy.

The short story is that when an agency seeks to reverse or block an existing or pending regulation, it needs to either go through the normal process of passing new regulations (which takes a while) or, in the case of stopping pending regulations, offer a legitimate explanation. DeVos's action on student loan regulations failed because the Department did not explain itself in any rational way.  Rather, it seemed to use a lawsuit by a group of colleges as an excuse to simply do what it wanted to do--exercise raw power in favor of a particular policy agenda.  That, the court demonstrated, you cannot do.

Second, the court offered an interesting analysis of how a 180 degree reversal of policy requires a little something extra.  The court's analysis was compelling.  It is fine for an agency to enforce the law within the bounds of its discretion.  But when it completely reverses a policy position, it begs the question of whether one of the two agency interpretation is simply wrong.  The public deserves a reasoned explanation of why the prior one was wrong.  Again, it is not enough to simply say: "I'm in power now."  This analysis, in particular, strikes me as being important to other policy fights to come, particularly since this Administration says it wants to entirely remake or end the federal role in education.

Okay, so enough on the commentary, what exactly did the court say?  To appreciate the conversation, a little background is in order.

The Higher Education Act of 1965 (“HEA”) empowers the Secretary of Education make financial aid available to college students.  It also requires institutions of higher education that seek to participate in the loan program to “enter into an agreement with the Secretary of Education, which may include any provisions ‘the Secretary determines are necessary to protect the interests of the United States and to promote the purposes of’ the Direct Loan Program.”  The law also gives the Secretary the authority “to make, promulgate, issue, rescind, and amend rules and regulations governing the” loan program. Finally, the Secretary is required to enact regulations that identify problematic behavior by colleges and universities that students may use a “defense to repayment of a loan.”

In 1994, the Secretary passed regulations identifying the behaviors and circumstances that would give rise to a student’s defense.  On defense was if the college or universities behavior amounted to a violation of state law, so fraud and misrepresentation, for instance, might be a defense.  If the student succeeds in the claim, it would shift the obligation to repay a student loan from the student to the school.

The collapse of Corinthian Colleges in 2015, however, exposed potential weaknesses in these regulations and the Department took action to revise its regulations.  The new regulations, as the court explains,revised the procedures for student borrowers seeking to discharge their federal loans as a result of school misconduct; (2) revised the processes for students seeking other forms of debt relief; (3) required “financially risky institutions [to be] prepared to take responsibility for the losses to the government for discharges of and repayments for [f]ederal student loans;” (4) expanded the disclosure obligations of institutions “at which the median borrower has not repaid in full, or made loan payments sufficient to reduce by at the least one dollar the outstanding balance of the borrower's loans received at the institution;” (5) altered the standard for students asserting a “borrower defense” to collection actions; (6) expanded the situations in which the Department could proactively forgive loans in groups, rather than upon individual applications; and (7) prohibited schools “participating in the Direct Loan Program from obtaining” or relying upon a borrower's “waive[r] [of] his or her right to initiate or participate in a class action lawsuit,” or “from requiring students to engage in internal dispute processes before contacting accrediting or government agencies.”

Those new regulations were to go into effect on July 1, 2017.  In response to a lawsuit by the California Association of Private Postsecondary Schools asking that DeVos block those regulations, Betsy DeVos delayed their implementation to 2018 and then later delayed them again to 2019.  That pause then lead student to challenge the legality of DeVos’s action to unilaterally stop regulations that had already been duly enacted and set to take effect.

The Court found that DeVos exceeded her authority.  There is a lot that permits agencies to stay regulations like those above, but the agency can only do so under certain circumstances.  The court explained that the relevant statute, “Section 705,”

does not permit the Department to make its own untethered assessment of what is “just.” . . .  The administrative determination that “justice ... requires” issuance of a stay is the same type of determination that courts make when they decide whether to grant preliminary injunctive relief. The legislative history of § 705 makes just this point. It explains that “[t]he authority granted is equitable and should be used by both agencies and courts to prevent irreparable injury or afford parties an adequate judicial remedy.” . . . . This includes, but is not limited to, “balanc[ing] the competing claims of injury,” “consider[ing] the effect on each party of ... granting” the stay, and “pay[ing] particular regard for the public consequences.” At a minimum, an agency must provide a “reasoned explanation” that is sufficient to “enable ... court[s] to evaluate” whether a stay was “require[d]” to “afford parties an adequate judicial remedy,” S. Doc. No. 248, at 277—that is, to ensure that the prevailing party in the pending litigation would ultimately obtain meaningful relief.

. . ..

[T]o justify a stay under § 705, an agency must do more than pay “lip service” to the pending litigation , or merely assert, “without any specificity,” that the litigation raises “serious questions concerning the validity of certain provisions of the [r]ule.” Although the agency need not adhere to the specific contours of the four-factor preliminary injunction test, it must weigh the same kinds of equitable considerations that courts have long applied and must explain why, in light of the pending litigation, a stay is “require[d]” to ensure the parties will ultimately obtain an adequate and just judicial remedy.

So the simply answer to why DeVos just lost this blockbuster case is that she did not bother to offer those explanations and reasons.  She appears to simply have blocked the regulations because she was siding with the colleges over students.  The court wrote:

the Department's invocation of § 705 was arbitrary and capricious. The Department offered three rationales: the CAPPS litigation raised “serious questions” about the validity of the Borrower Defense Regulations; the delay would not cause the government any significant harm; and the Department was, in any event, reconsidering the regulations. Section 705 Stay, 82 Fed. Reg. at 27,621. None of these reasons withstands APA scrutiny. As explained further below, the first rationale is mere boilerplate; it is unsupported by any analysis, and it is at odds with the Department's prior conclusion to the contrary. The second and third rationales also lack any meaningful analysis and, more importantly, are unrelated to the pending CAPPS case and are thus beyond the scope of the relevant § 705 considerations.

One of the Department’s explanations for its policy change was that “if the final regulations are not postponed, institutions would be subject to financial responsibility trigger provisions that could impose substantial costs.”  But the court explained that this was illegitimate on its own:

The mere fact that parties would avoid the costs of complying with the existing regulations, however, is plainly insufficient to support a § 705 stay. As explained above, § 705 requires an agency to explain why, in light of the pending litigation, a stay is necessary to ensure that the parties ultimately obtain adequate and just relief.

. . . .

Although it covers twenty-two sections of the Borrower Defense Regulations, the Department never identifies whether a few, many, or all of these sections rest on legally questionable footing. The notion that the Department needed to stay the effective date of all twenty-two of these provisions—while exempting a handful of ministerial provisions—moreover, is difficult to square with the fact that CAPPS itself sought a preliminary injunction only with respect to the arbitration and class action provision. Although the Department was not required to apply the four-factor test that courts apply, it was required to apply something akin to it—some standard that ties the stay to ensuring that the outcome of the pending litigation affords the parties adequate and just relief and that balances the relevant equities. The Department, however, offers no explanation for why it was necessary to stay twenty-two sections of the final rule.

Moreover, the provisions of the Borrower Defense Regulations that the Department did identify are, at best, mentioned only in a perfunctory manner. The Department observed, in passing, that “if the final regulations are not postponed, institutions would be subject to financial responsibility trigger provisions that could impose substantial costs,” Section 705 Stay, 82 Fed. Reg. at 27,621, but it failed to tie that observation to the litigation in any way, and it failed to consider how the public interest or the interest of student borrowers would be affected by its decision. It offered slightly more detail regarding the arbitration and class action provision, but, again, the Department simply asserted, without analysis, that CAPPS had “raised serious questions concerning the validity of” the provision and that postponing the effective date would save institutions the cost of making changes to their contracts “while the regulation is subject to judicial review.” Id. The arbitrary and capricious standard of the APA, however, requires that agencies “provide an explanation that will enable the court to evaluate the agency's rationale at the time of decision.” To justify a § 705 stay, an agency must, in short, do more than simply assert—without elaboration—that the litigation raises unspecified “serious questions” for resolution and that a stay will save regulated parties the cost of compliance.

The real kicker, however, was that the Department offered no explanation as to why the prior administration’s regulations were wrong and its new ones are correct.  Only one of them can be right and new administrations cannot simply make up new rules that are the exact opposite of old ones without justifying itself.  Otherwise, agencies could not really claim to be enforcing the law.  Instead, they would just be making it up as they see fit as they go along.  The court explained:

The problem with the Department's serious-legal-questions rationale, however, runs deeper than this. As with the Final Delay Rule, the Department failed to acknowledge, much less to address, the inconsistency between its current view that those provisions stand on legally questionable footing, and its prior conclusion that they were legally sound.

An agency is entitled, of course, to change its position, and, to do so, it need not even demonstrate that its current view is “better than [its] old one.” But an unacknowledged and unexplained inconsistency is the hallmark of arbitrary and capricious decision-making.

These last lines strike me as extremely important not just to student loan borrowing, but to education regulations in general and those outside education.  If the Trump administration seeks to remake the regulatory world, it must explain itself and offer plausible reasons for the change--something that the current Department of Education has struggled to do.  This warning shot could potentially cool the trajectory of the Department.  

September 26, 2018 in Federal policy | Permalink | Comments (0)

Monday, September 24, 2018

What Does School Funding Buy? Lower Discipline Rates and More Learning

A month ago, I tried to show how school quality and school discipline are intertwined.  I talked about my prior research, put up a fancy color-coded map of school funding and achievement gaps from Bruce Baker and another fancy color-coded map of school suspensions by the ACLU and UCLA Civil Rights project.  A rough mashing together of these two maps showed that the funding and achievement gaps had substantial overlap with school suspensions.  But of course, it would take a much more sophisticated analysis to make any firm conclusions.  And the average reader or parent might very well start to feel their eyes glaze over with all the numbers if we did that.

For a lot of people and policymakers, simple examples rather than sophisticated data are better.  That's what makes this new story out of Nashville Public Schools so helpful (and disheartening).  The Nashville Public Schools have been operating under a grant from the state that funds trauma informed services in 10 of the district's schools.  That grant is up and local advocates are worried about what comes next.  They are asking the school district to replace those funds out of their own budget and increase them.

The Tennessean reports that "[t]he increased support for students has helped almost every school see a reduction in office discipline referrals, helping keep kids in the classroom."  The first school to implement the trauma informed practices saw "the most promising results, with a 97-percent reduction in discipline referrals."  All but one of the other schools also saw impressive reductions:

  • Fall-Hamilton Elementary — 97 percent reduction in year one and a 53 percent reduction in year two over the previous year.
  • Eakin Elementary — 73 percent reduction.
  • Waverly Belmont Elementary — 29 percent reduction.
  • Napier Elementary — 15 percent reduction.
  • Hermitage Elementary — 60 percent reduction.
  • Inglewood Elementary — One percent reduction.
  • Tulip Grove Elementary — 52 percent reduction.
  • Meigs Magnet Middle Prep — 37 percent reduction.

So if someone asks what money buys, it buys district and school coordinators for the program, reduced suspensions, and more time in the classroom. 

And for those keeping score, it doesn't look like Tennessee schools have enough money as a general principle.  The national School Funding Fairness report card shows that Tennessee ranks 43 in terms of school funding levels (even after making regional and cost based adjustments).  The level of effort it exerts to fund its schools (based on available resources in the state) similar ranks in the bottom, earning it an "F" on the report card.  And Bruce Baker's study of what it would cost to achieve average outcomes shows that even the wealthiest districts are underfunding education in Tennessee.  The poorest districts are short about $3,500 per pupil.

But when you understand the connection between school quality and student achievement, this might very well be an investment that Nashville needs to make no matter where the money comes from.



September 24, 2018 | Permalink | Comments (0)

Friday, September 21, 2018

Is California's New Ban on For-Profit Charters a Charade or a Step in the Right Direction?

My recent post on California's new charter school bill may have been too quick to lavish praise on the state for banning for-profit groups from managing charters.  For-profit charter operators are definitely a problem.  Allowing them is the equivalent of laying out a welcome sign to exploitation and legalized corruption.  For-profit operators can, for instance, entering into self-serving lease and contract agreements. They can do things that would land public school officials in jail, but which are relatively common  among  charter school operators.  Barring open corruption is a big deal, at least, symbolically.  And California does have some for-profit operators that will have to change their status and practices in the future for those charters to move forward.

But whether this new ban on for-profit charter operators changes the fundamental reality of what is occurring in most charter schools in California is a different question.  And, if it does not change the industry overall, the symbolic victory of this new law may make it harder to actually go after less obvious problems in the future.  The public might simply think the state has cleaned the sector cleaned up and, thus, be more forgiving of other questionable charter expansions in the future. 

As I emphasized in my recent post, 
there is still more to be done to ensure that non-profit charters are acting like non-profits.  The California law stops charters from acting purely as shell companies for outside entities, but they don't stop non-profit charters from paying their upper level staff and management unreasonably high salaries while paying their teachers unreasonably low ones. They also don't stop non-profit charters from entering into unreasonable leases.  As Tom Kelley has shown, exorbitant leases appear to be one of the biggest profit-taking mechanisms.  No non-profit acting in its and its students' own best interests would every enter into some of these lease agreements.  California's new statute prohibits for-profit management, but it does not prohibit lease deals that are not on the up-and-up.  To be clear, the point of leasing out one's land is to make money.  So leases that send profits to landlords are not inherently problematic. but California should not think its job is done with this statute.  It still needs to exercise enough oversight to ferret out problematic contracts and leases and ensure that state money is spent on students.
Carol Burris's new essay in the Washington Post's Answer sheet digs deeper into the facts and shows that this new bill may not be that big of a deal at all.  First, "Only 34 of California’s approximately 1,200 charter schools are owned or managed by for-profit companies."  Second, the real target of this bill appears to be online for-profit charters. "Connections Academy, run by the for-profit Pearson Corporation, is connected with four California charter schools. Most of the affected schools are run by the for-profit, online schools of K12 Inc. using various corporation names. Online charter schools have a terrible record with average graduation rates of about 40 percent."  In other words, the bill was not about reforming charter school profiteering, but going after one problematic sector--online charters--which, by the way, some other states have already been working to ban or limit for a few years now (because of the corruption that had been exposed).  Third, "because the bill does not go into effect until July 1, 2019," the for-profit corporations have a year to come with plan B.  Apparently, the plan is simply to re-up their charter applications before that date, which would give them until 2024 to actually change their practices.
So the cost-benefit of this new law is not as clear as I initially thought. On the one hand, it bars the most egregious and problematic behavior out there.  And if this is just the first step toward more reform, we should welcome it.  On the other hand, this bill leaves an enormous number of problems untouched and, if the public is left thinking those problems no longer exist, California is in a worse position now than it was before the bill.

September 21, 2018 in Charters and Vouchers | Permalink | Comments (0)

Reducing Suspensions and Expulsions of Students with Disabilities: Linking Research, Law, Policy and Practice

This from Loyola University Chicago on its upcoming conference and call for papers:

Loyola University Chicago School of Law and School of Education will be hosting an interdisciplinary working conference entitled “Reducing Suspensions and Expulsions of Students with Disabilities: Linking Research, Law, Policy and Practice. We seek papers that explore current knowledge on the causes of disproportionate discipline of students with disabilities; discuss evidence-supported practices to reduce disproportionality; and identify areas for legal and policy reforms. The papers will be presented at the conference which will occur June 19 to June 21, 2019 at Loyola University Chicago’s Water Tower Campus (Chicago, IL).  The conference is made possible through funding from the Spencer Foundation.

This working conference will bring together a small interdisciplinary group of experts in the fields of disability and school discipline. We seek participants from multiple disciplines, including law, public policy, psychology, sociology, education and critical race theory and with research expertise from a broad range of methodologies (e.g., quantitative, qualitative and mixed methodologies).

A stipend of $400 per paper will be awarded following submission and presentation of the selected conference papers. Reasonable travel expenses for the primary author will be reimbursed upon submission of receipts. Following the conference, up to 10 authors will be invited to submit a conference paper for publication in an edited journal volume or a proposed edited book, and each will receive a $400 stipend following submission of the finalized paper and completion of the review and editing process.

Please see the document Discipline Disparities and Disability Conference 2019 for full submission requirements. Send your completed submission materials (cover page, abstract, and paper summary) to: (CC by September 30, 2018 (midnight, CST).  Please also write “Discipline Disparities 2019 Conference Proposal” in the subject line.  

Please consider forwarding this email and attached submission guidelines to interested colleagues.  If you have any questions, please feel free to get in touch with either Pamela Fenning ( or Miranda Johnson (

September 21, 2018 in Conferences | Permalink | Comments (0)

Thursday, September 20, 2018

Education Law Association Hosting a Stellar Lineup at Its Annual Conference

ElaThe Education Law Association is hosting its 64th annual conference in Cleveland this year on Nov. 7-10.  It promises to be one of the best in years, covering a range of immediately pressing topics and recognizing historic anniversaries as well.  This year, Mary Beth Tinker, from the seminal Tinker v. Des Moines, will deliver the keynote.  In fact, the conference will host her in what is, to the week, the 50th anniversary of the oral arguments in the case.  Having been with Mary Beth recently at another event, I can tell you that her presentation will be incredibly refreshing and tell both her personal story and the longer story of how student activism around various different issues--desegregation, war, and guns--has shaped the nation.

Ken Trump, a frequent witness before Congress on school safety issues, will also deliver a featured talk.  And, per custom, Mark Walsh, author of Ed Week's school law blog, will offer his annual update on the Supreme Court.

Those looking for other excuses to attend can visit the Rock ‘n Roll Hall of Fame, which is just a few blocks away from the conference, or attend the various mixers and meals, where a huge chunk of the leaders in our field will be mingling about.  Just glancing at the program (and surely leaving people off whom I shouldn't), I am seeing, in no particular order, Rob Garda, Julie Mead, Preston Green, Regina Umpstead, TK Daniel, Justin Bathon, William Thro, Suzanne Eckes, and Perry Zirkel.  I have always found it to be an incredibly inviting group of people.

For more information on the conference and registration, see here.




September 20, 2018 in Conferences | Permalink | Comments (0)

Tuesday, September 18, 2018

With Tax Revenues Rising, Texas Plans to Spend Less, Not More, on Public Schools

School funding formulas are one of the most arcane and obscure elements of public policy one can imagine.  The only thing that comes close in my mind is the federal tax code.  The federal tax code does, however, have some rhyme or reason to it.  In those years in which I make more money, I pay more taxes.  In those years in which I make less, I pay less.  Yes, there are tax loopholes for certain capital gains, home depreciation, and the like, but the general rule remains the same.

School funding formulas can work in the opposite direction.  Just because more money comes in does not mean that schools will get more.  This is due largely to the way state government offsets its contribution to public education based on how much local districts raise in property taxes.  In some states, the more the local district raises, the less the state spends.  This might make some modicum of sense if we assume that the district has, and has had, the total amount of money it needs to meet the needs of students.  But it is a brutally harsh system if that assumption is incorrect.  It is like telling a malnourished kid that he will only get half a free school lunch today because the principal noticed that one of his friends gave him a biscuit for breakfast.  

Well, this would seem to be exactly what the state of Texas plans to do--take money from needy school districts because their local property tax revenues are projected to increase without ever asking whether those districts have what they really need.  

So lets start with the question of whether Texas schoolkids already have the resources they need.  Bruce Baker and his colleagues' recent study of how much it costs for children to achieve "average" outcomes (which is probably lower than "adequate" outcomes) found that Texas is in pretty bad shape.  In many states, twenty to forty percent of school districts have enough--and maybe more than enough--for students to achieve average outcomes.  This is true in even relatively poor states like South Carolina and Oklahoma.  It is the students in the bottom 60 to 80% of districts who are getting shortchanged. 

But in Texas, everyone seems to be short on cash.  According to the study, Texas districts that spend in the top 20% are still short $348 per pupil--not a huge number but a striking one given that these are the wealthy districts.  At the other end of the spectrum, the study finds that the poorest districts are short $12,682 per pupil.  That is the 5th largest deficit in the country.  Only Arizona, Alabama, California, and the District of Columbia have larger gaps.  

A few years ago, a Texas trial court examined whether funding levels in Texas were "adequate" to meet constitutional requirements.  Its conclusions all but predicted the results of the foregoing study.  The evidence in that case demonstrated that Texas schools were underfunded by $3.6 billion in 2010 and, after budget cuts, would be $6.1 billion underfunded in subsequent years. Prior state supreme courts had on several occasions ordered the state to fix gross underfunding, but in a surprising turn of events in 2016, the Texas Supreme Court decided that separation of powers concerns and new concerns about whether money matters dictated that it leave school funding to the legislature.  The decision is extremely hard to square with all the increasingly precise and compelling evidence regarding how much money really does matter, but that is another story.

With no check on school funding levels, what is Texas planning to do now?  A new story by the Texas Tribune offers this summary:

In its preliminary budget request ahead of next year's legislative session, the Texas Education Agency projected a drop in the state's general revenue for public education by more than $3.5 billion over the next couple of years, in part because the revenue from local property taxes is expected to skyrocket. General revenue only makes up part of the state's education funding.

Texas Education Commissioner Mike Morath confirmed this projection in front of a state budget panel Wednesday morning as he laid out the state agency's budget request through 2021.

The Foundation School Program, the main way of distributing state funds to Texas public schools, includes both state general revenue and local property tax revenue. Local property values are expected to grow by about 6.8 percent each year, and existing statute requires the state to use that money first before factoring in state funding.

Of course, advocates who understand school needs are none too happy about this. 

[They] have pushed state officials to put more money into public schools, instead of absorbing local tax revenue into the system.

"The state needs to kick in their fair share," said special education advocate and parent Heather Sheffield to the panel Wednesday. "Property taxpayers are fed up with the fact that the state is not funding public education."

Texas, unfortunately, is not an outlier.  As emphasized during teacher protests this past spring, most states continue to fund education at a lower level in real dollar terms today than they did a decade ago, which is strange given that their tax revenues are up.  And this heat map from Baker's study shows where the underfunded districts in the country are.  Anything not in green or light green is underfunded.  Unfortunately, there is a a lot of non-green on the map.


But what this new story on Texas does clearly reveal is how states minimize education spending and the seeming irrationality of it.  This suggests another problem: states don't appear to be willing to act in good faith toward education.  Putting precise funding levels aside, the mindset with which states approach education is as important as where they ultimately land, as the two questions are inextricably linked.  And so I warned this spring against thinking that state concessions to teacher protests represented a major change in policy. Yes, some new funds would flow to teachers, but the mindset toward education had not changed.  A handful of state leaders were showing that they remained dead-set on carrying out their agenda, regardless of the bumps in the road they confronted. 

Unfortunately, it is too often only courts that can trigger a fundamental shift, but Texas's court system seems to have abandoned its students.


September 18, 2018 in School Funding | Permalink | Comments (0)

Wednesday, September 12, 2018

Network for Public Education Conference to Feature Groundbreaking Report on the Privatization of Education

NPE_Schott PanelThis summer, the Network for Public Education and the Schott Foundation released on new report on the privatization of public education titled, Grading the States: A Report Card on Our Nation’s Commitment to Public Schools. The report was the one I had been waiting for. It filled in key facts that have been missing from the public debate and will help move it in a more positive direction. The Network's national conference on October 20 to 21 will feature a panel on the report.  John Jackson, President of Schott, and Tanya Clay House, a long time civil rights advocate and former Obama appointee, will be on the panel along with myself.  Registration for the event is still open here.

The panel promises to be an important one.  As I argue in Preferencing Educational Choice: The Constitutional Limits, the analysis of charter schools and vouchers needs to be reframed.  Toward that end, I identify a handful of categorical ways in which states have actually created statutory preferences for charters and vouchers in relation to traditional public schools.  I explain why a statutory preference for these choice programs contradicts states’ constitutional obligations in regard to education.  I also explain how, even if there is no statewide statutory preference, choice programs can have the effect of undermining the delivery of adequate and equitable education opportunities in particular locations.  When they do, the programs violate state education clauses. We just have to examine the facts on a case by case basis.

My research, however, analyzes the issues from a relatively high level of abstraction, highlighting problematic examples in particular states and districts and synthesizing constitutional principles from various states.  The NPE/Schott report drills down into the facts deeper than anyone before.  It offers a systematic examination of charter and voucher laws in each state.  As a result, it clearly shows the extent to which each state’s laws represent a decommitment to public education.

The report is the “yin” to the National Alliance for Public Charter Schools’ “yang.” Each year, the National Alliance for Public Charter Schools (NAPCS) releases a report detailing charter school laws, with the frame of reference being the extent to which states have law that promote the expansion of charters.  The report normatively assumes that charter schools are good and state laws that overly restrict them are bad.  So the states that it labels as having excellent charter school laws will probably fair poorly on the Network for Public Education (NEP)/Schott Foundation report.  For instance, NAPCS ranks Indiana as the top state for charters, but NEP and Schott rank Indiana in the 40s.

But that is what makes this report so important.  Because there hasn’t been any systemic to response to NAPCS’s reports, it has been able to skew the conversation. This new report brings balance.

Here are some key paragraphs from the executive summary:

Public schools remain a source of pride and hope, helping to level the playing field for children from incredibly diverse racial, ethnic, religious and socioeconomic groups. Even amid concerns and often unsubstantiated criticism, Americans continue to view public schools as a defining hub for their communities. In the spring of 2001, a national poll found that Americans ranked public schools as “the most important public institution in the community” by at least a five-to-one margin over hospitals, churches and other institutions. Nonetheless, within the past two decades, there has been a fervent push by those interested in privatization who seek to de-prioritize the importance of public schools and effectively undermine their functionality. Ignoring these attacks, most parents and citizens understand that public schools provide a critical service to American society by educating the majority of students with a base level of accountability while protecting their civil rights in the classroom. Moreover, a recent poll conducted in October of 2017 found that among all registered voters, only 40 percent supported vouchers while 55 percent are opposed. This number further decreases to 23 percent with opposition at 70 percent when voters were asked to consider support if it meant less money for public schools.

With the ongoing debate on the relevance and benefit of public schools versus private schools, the historical context of this debate must be understood. The commitment to a free education for American children has its roots in the 17th century and has evolved along with the laws of the nation to include a free and appropriate public education (FAPE) for all children. Those of privilege have always understood that education is the cornerstone to success and inclusion in society. Yet the reality is that disadvantaged groups including African Americans, Latinos, Native Americans, women, the poor, those with disabilities and others have always had to fight for inclusion. For many generations, structural racism inherent in American society maintained a segregated system for African Americans and people of color. From passage of Massachusetts’s first compulsory education law to present day, historically disenfranchised communities have fought for the right to receive a free education.

. . . .

The public education system was developed to serve all children and can continue to do so with the appropriate support from the federal, state and local levels. Public schools offer a rich opportunity for all children to learn from their peers of other racial, ethnic, religious or other identities. Private schools, including charters, were not created to serve all children. Although parents always have a right to send their children to private schools at their own expense, they are not and never can be the model for educating of all this nation’s children, nor should they be supported by public dollars.

The report evaluated education privatization based on the following, assigning numerical values to each:

  • Types and Extent of Privatization
  • Civil Rights Protections
  • Accountability, Regulations and Oversight
  • Transparency
  • Other Factors (charter schools)

It found that:

Overall grades were assigned based on the extent of privatized school choice in the form of vouchers, neo-vouchers and charter schools, as well as the quality of the state’s laws that promoted accountability, oversight, transparency and civil rights. States earned an. The states with the best overall grades for resisting school privatization are predominantly rural states with a strong commitment to community public schools and an aversion to public dollars leaving already cash-strapped rural schools[, although]... rural state support for public education is not a universal pattern.

There are 22 states with grades between a C and a B+. Six states and the District of Columbia received a grade of D or D+ and 17 received a grade of F.

In addition to giving each state an overall grade, we assigned grades for voucher and charter policies as well. There are 22 states that earned an A+ for resisting attempts to give public funds in the form of vouchers and/or neo-vouchers to their public schools.

The six states with an A+ for their charter laws are Montana, Nebraska, North Dakota, South Dakota, Vermont and West Virginia. However, there were also 37 states plus the District of Columbia that received a Grade of F based on their charter laws — states that embrace for-profit charter management, weak accountability and other factors that make their charter schools less accountable to the public.

For more detailed findings, see here.

September 12, 2018 in Conferences | Permalink | Comments (0)

Monday, September 10, 2018

California Strikes Major Blow to For-Profit Charter Schools

One of the major critiques of charter schools, although not the only one, is that they allow private entities to profit off the education of children.  Some say the possibility of profits is a good idea because it brings new players into the education "market," incentivizes efficiency, and creates competition that might drive down the cost of quality education.  In theory, I suppose that is possible, but in reality, we have seen far more evidence to the contrary.  And the possibility of profit taking without sufficient state oversight also opens the door to downright corruptions.  Preston Green has done an excellent job of tracking scandal and corruption in the charter school sector.  I argue here, however, that what we call "corruption" is often actually legal when charters do it.  The self-serving contracts and leases are the type of behavior that would land public school officials in jail, but which are relatively common with some charter school operators.

That is what makes California's new statute barring for-profit charter school operators so significant.  On their face, most charter schools are non-profit.  Many states will not issue a charter to a for profit entity.  If Big Box Stores, Inc., for instance, applies to operate a charter in Kentucky, they state will reject it.  This, however, does relatively little to block for profit entities.  All Big Box Stores, Inc. needs to do is form a non-profit.  They can call it Big Box Academies.  If Big Box Academies gets a charter, it can then simply enter into a contract with Big Box Store, Inc. to supply all the labor and supplies for the charter school.  In fact, non-profit charters regularly turn over their entire budget to for-profit management companies.  Those companies can then take as much profit as they can manage.  As Tom Kelley has shown, they develop "sweeps" contracts that are so egregious that the charter schools are probably running afoul of non-profit rules.

California's new charter law takes a big bite out of this problem.  It makes it clear that only non-profits can receive a charter in the state.  It also prohibits those non-profit charters from transferring responsibility and management to a for-profit entity.  The law states:

On and after July 1, 2019, a petitioner that submits a charter petition or a charter school that submits a charter renewal or material revision application shall not operate as, or be operated by, a for-profit corporation, a for-profit educational management organization, or a for-profit charter management organization. For purposes of this section, a for-profit educational management organization and a for-profit charter management organization are entities that manage or operate a charter school.

“Operate as, or be operated by,” as referenced in paragraph (1), means services provided by a for-profit corporation to a charter school that include any of the following:
(i) Nominating, appointing, or removing board members or officers of the charter school.
(ii) Employing, supervising, or dismissing employees of the charter school, including certificated and noncertificated school personnel.
(iii) Managing the charter school’s day-to-day operations as its administrative manager.
(iv) Approving, denying, or managing the budget or any expenditures of the charter school that are not authorized by the governing body of the charter school.
(v) Providing services to a charter school before the governing body of the charter school has approved the contract for those services at a publicly noticed meeting.
A charter school shall not enter into a subcontract to avoid the requirements of this paragraph.
This legislation is an even bigger deal because California has more charter school students than any other state--over 600,000.  The next highest number is 315,000 in Texas.  North Carolina, the state with the 10th most charter school students, only has 91,000.  So this new bill in California is a major blow to for-profit operators nationally.
With that said, there is still more to be done to ensure that non-profit charters are acting like non-profits.  The California law stops charters from acting purely as shell companies for outside entities, but they don't stop non-profit charters from paying their upper level staff and management unreasonably high salaries while paying their teachers unreasonably low ones. They also don't stop non-profit charters from entering into unreasonable leases.  As Tom Kelley has shown, exorbitant leases appear to be one of the biggest profit-taking mechanisms.  No non-profit acting in its and its students' own best interests would every enter into some of these lease agreements.  California's new statute prohibits for-profit management, but it does not prohibit lease deals that are not on the up-and-up.  To be clear, the point of leasing out one's land is to make money.  So leases that send profits to landlords are not inherently problematic.  But California should not think its job is done with this statute.  It still needs to exercise enough oversight to ferret out problematic contracts and leases and ensure that state money is spent on students.

September 10, 2018 in Charters and Vouchers | Permalink | Comments (0)

Wednesday, September 5, 2018

Duncan and DeVos Are Both Wrong, We Need Old-School Reform

Duncan v DevosFormer Secretary of Education Arne Duncan spent the last few months trying to rehabilitate his work and distinguish it from DeVos. This spring he implored us to ignore current claims that education reforms of the past have failed.  On his book tour, he has been arguing that “education lies” often drive education policy. Yet, Duncan was an extremely disappointing Secretary Education who too often fell victim to the education lies himself: money does not matter, ineffective teachers are ruining public schools, charter schools will outperform public schools, and federal leadership on rigorous standards will save us all.

To his credit, Duncan believes in public education and gets a lot right in his current critiques.  He is a strong advocate of prekindergarten education and poignantly says that presidential elections show that Americans love their guns more than the love children.  Yet, Duncan refuses to be candid about his own mistakes. So he feeds the idea that the current problem in education, like every other public policy problem, is the Trump Administration. Our education reform problems, unfortunately, are more endemic than the current administration.  They need better solutions than rose-colored glasses.

The “education reforms” that Duncan says worked—desegregation and more equalized school funding—preceded his tenure as Secretary.  He did nothing to further those reforms.  Instead, he routinely pushed through reforms that didn’t work.  An honest appraisal of the past decade reveals that Duncan caused more harm than good. 

Secretary Duncan created the Race to the Top grant program and offered states money in exchange for major policy changes. In the aftermath of the recession, he could demand almost anything he wanted. He got states to do three things: adopt new teacher evaluation systems that they could use to hire, fire, and promote teachers largely based on statistics; expand charter schools; and adopt college and career ready standard, aka Common Core. Two years later, Duncan doubled down.  He told states that he would waive their pending sanctions under No Child Left Behind if they got on board with the policies he had promoted in Race to the Top.

What Duncan didn’t do is also notable.  He stood by while states implemented the biggest and most sustained education funding cuts in decades. And other than a 2011 letter to the editor, he largely stood by while our schools continued to resegregate to levels the nation hadn’t seen since the 1970s.

Duncan’s legacy lives on today.  His teacher evaluation systems and his cozying up to the attacks on teacher tenure helped drive teacher moral to an all-time low.  It was those policies that led to a national teacher shortage.  This spring’s protests were simply the visual manifestation of a decade of neglect.

Duncan’s policies also unleashed charter growth that is proving extremely hard to control or unwind.  Seeing how far charter school expansion had eaten into the basic ability of public education to do its job, groups like the NAACP finally felt the need to call for a moratorium on charter schools.  Seeing how charters had helped fuel segregation, groups in Minnesota and New Jersey filed state constitutional claims.  The Southern Poverty Law Center just filed a lawsuit arguing that charter school funding practices violate the state constitution.

Finally, Duncan’s willingness to overstep his bounds in pursuit of his brand of reform created the narrative that made Betsy DeVos possible.  Senators, congresspersons, states, districts, and parents all railed against his aggressive approach.  Then, Donald Trump campaigned heavily on the notion that Common Core was a disaster and that states should be making decisions, not the feds. DeVos accelerated that rhetoric to another level and further argued that parents have a “right” to school choice.  Those who disagree are “flat-earthers.”

Since then, President Trump has issued an executive order to decrease the federal role in education and eliminate what he calls federal regulatory overreaches.  DeVos took the directive and ran with it, repealing, for instance, policies that protect LGBTQ youth, promote school integration, and look for systemic problems when individuals file discrimination complaints.  Trump has even proposed eliminating the Department of Education as a stand-alone agency—the ultimate response to federal overreaches in Education.

The one area in which the Trump administration doesn’t mind leveraging federal power, however, is school choice.  The administration wants supercharge Duncan’s charter agenda and add vouchers to the mix. The Trump administration’s proposed 2019 budget would cut numerous public school programs, including one aimed at supporting teachers. It would use that money for $1 billion in new charter school and voucher grants.

The solution to our current education challenges is not to weigh the merits of DeVos’s brand of reform versus Duncan’s, but to recognize that neither has much merit.  They both have fed a perpetual cycle of reform that ignores our real problems: inequality and segregation.  Solving those problems doesn’t require fancy new reforms.

Schools to once again think seriously about how their student assignment policies affect segregation.  States can foster this by including integration and diversity as measures of school quality in their accountability systems.  And the federal government can provide technical assistance to help districts design new student assignment policies.  Both the federal and state government need to stop funding charter schools and vouchers that increase segregation.

The solutions for funding inequality are simple.  States need to replenish the funds that they have cut from education budgets over the past decade and direct larger shares of those new funds to the neediest districts.  The federal government needs to increase funding for Title I schools, particularly those with the highest concentrations of poverty.  Those may be radical solutions, but they aren’t new.

        --Duncan picture courtesy of Dept. of Ed; DeVos picture courtesy of Gage Skidmore  

September 5, 2018 | Permalink | Comments (1)

Tuesday, September 4, 2018

Polls Show Strong Support for Teachers and Mental Health Counselors over Cops

Phi Delta Kappan just released its annual survey of public attitudes toward public schools.  The survey focused on the two hot button issues of the past year--teacher pay and school safety.  The results signal that those seeking reform in those areas have a strong constituency to support it.

Two-thirds say teacher salaries are too low and 73% say they would support their teachers if they went on strike.  Only 6% say teachers salaries are too high.  This would seem to be bad news for those states that want to keep education spending at current low levels.  Over half continue to fund education at a lower level now, in real dollar terms, than they did a decade ago.  Teacher salary increases would certainly require states to change their current education spending practices. 

More disappointing was the shrinking percentage of adults who would like their kids to become teachers.  That number has fallen to 46%, about 25 percentage points lower than it was a decade ago.  This is a bad sign given that there is already a current nationwide teacher shortage and the long-term prospects of repairing the teacher pipeline don't look good.  A close look at the dip, however, shows this dip in support of kids becoming teachers follows the dip in school funding.  Replenishing school funding, thus, might help improve this number as well.   

Attitudes about school safety were steadier than I expected.  One in three parents fear for their kids safety at school, basically the same percentage as in 1998.  That percentage, however, is triple the concern of five years ago.  The wide short-term variation suggests either that the number isn't that reliable or that it is a pretty emotional number that can easily ebb and flow based on current events, but remains relatively steady over time.  What was maybe most notable was how much safety attitudes differ based on family income.  Only one in four middle to higher income families were afraid for their kids, but half of families earning less than $50,ooo a year were afraid.

The survey also did a great job of breaking down potential solutions for school safety.  About three-quarters or more supported armed police in school, mental health screening, and metal detectors.  Sixty-three percent were against allowing teachers to carry guns, although that position softens when the questions is whether they would support teachers carrying guns with certain conditions.

But, of course, funds are finite, so the poll asked parents to choose between armed guards and mental health services.  A whopping 71% preferred mental health services.  The preference for mental health services interestingly held across all political groups.

It would have been nice to have seen direct questions about charters and vouchers, particularly since Education Next polling shows that support for charters has bounced back after falling last year.  Instead, this new polling asked a vague question: should we reform the current education system or find an alternative to it?  

Those who support the public school system might be encouraged by the 78% who prefer reform over alternatives.  The question, however, is sufficiently loaded and indirect that I am not sure what to take from it.  The fact that the percentage preferring reform is up over time (plus about 8%)  and the percentage preferring alternatives is slight down over time might suggest a little less general appetite for vouchers and charters than there was a decade or so ago, but again the changes are small.  

September 4, 2018 | Permalink | Comments (0)

Friday, August 31, 2018

Connecting School Quality Dots: Money, Race, Suspension, and Safety

School quality and school discipline are intertwined.  As I explain in Reforming School Discipline, "[s]ocial science increasingly demonstrates that while student misbehavior is a function of individual choices that students make, individual student misbehavior is also a function of the school environment in which they learn and act. Quality schools and orderly environments consistently produce higher student achievement and less misbehavior. Low quality schools with disorderly, hostile, and punitive environments produce lower student achievement and higher rates of suspension and expulsion."  And as Bruce Baker, Kirabo Jackson, and official government reports establish, there is a direct link between school funding and school quality and student outcomes.

If we take these two basic insights about money and school discipline and throw some basic data points together, a pretty stark image emerges. This week, the ACLU and UCLA Civil Rights Project issued a new report on race, discipline, and school safety that gave me the tools to do just that.  They issued heat maps that show on a district-by-district basis how many students are suspended, whether there is a shortage of school counselors.  And earlier this year, Bruce Baker and his colleagues issued a report that measured school spending levels against what it would take for students in each district to achieve at average levels.

Side by side these maps nearly look like mirror images, even though they are measuring two seemingly different things.

Side by side


The bright spots in the image on the left show districts with high rates of school suspension.  The yellow, orange and red spots in the image on the right show districts that are the most underfunded.  The dark blue on the left image and the green on the right image show the other end of the spectrum--schools with low discipline rates and high funding levels.  There are, of course, exceptions.  Texas, for instance, has a serious school funding problem, but relatively low discipline rates.  Although you can still see that within Texas, there are discipline problems in the southern and eastern part of the state, where underfunding is also a problem.

Trying to draw an even more vivid picture, this morning I decided to do it the new, old-fashioned way--cutting and pasting.  My task was to put raw data from Baker's study into the ACLU's map.  A perfect job would be a long term project, but I just wanted a snap shot.  Baker's appendix breaks the raw data on spending gaps into five categories: highest spending districts, high spending districts, those in the middle, low spending districts, and the lowest spending districts (although his phraseology is different).  I used the middle spending districts.  The middle spending districts don't present a full picture in a lot of states, as the gap between the middle and bottom spending districts is enormous.  Whereas, in other states, the gap is smaller.  But the middle spending districts offer the snapshot I was looking for.

Here is what I found.  Those states and districts with high suspension rates (the bright spots on the map) tend to underfund their public education system.  Those with low suspension rates (states painted mostly blue) tend to fund their education system relatively well (which is still distinct from adequately).  The boxes on the states represent Baker's estimate of the extent to which the median districts in the state fail to provide the resources necessary for students to achieve average outcomes.  

Suspension and money

Conclusive evidence? Absolutely not.  Troubling enough that someone far more sophisticated than me should look at it more closely.  Absolutely.


August 31, 2018 | Permalink | Comments (0)