Tuesday, December 18, 2018
This from the Education Law Center:
Students in Flint, Michigan, are beginning to receive high quality screenings and evaluations through the Flint Registry and Genesee Health System/Hurley Children’s Hospital Neurodevelopmental Center of Excellence (NCE) to identify disabilities that may entitle them to special education services. The screening and evaluation program is the key component of an April 2018 settlement agreement reached in D.R. v. Michigan Department of Education, a class action lawsuit to enforce the rights of Flint children impacted by the lead crisis under federal and state special education law.
The Flint students are represented by Education Law Center, the ACLU of Michigan and White & Case LLP. The defendants in the lawsuit are the Michigan Department of Education, the Genesee Intermediate School District and the Flint Community Schools (FCS).
The partial settlement agreement resolved the lawsuit’s “child find” claims challenging the defendants’ failure to appropriately identify and evaluate Flint students with disabilities. Key commitments contained in the settlement agreement included over $4 million provided by the State of Michigan to get the screening and evaluation program up and running.
The Flint Registry, which had hundreds of children pre-enrolled, is now fully operational. Through the Registry, children will be screened to determine the need for further evaluation. The settlement commits the defendants to continuing efforts to encourage and assist families to participate in the Registry.
The NCE has begun receiving referrals for in-depth evaluations by its highly-trained staff, including a full-time pediatric neuropsychologist and related specialists. Neuropsychological testing is a key component of properly evaluating children who have been exposed to lead, because it is uniquely able to pinpoint impairments of cognitive functioning that may be caused by lead exposure. Schools can then target educational interventions and supports to the student’s specific needs.
“We are committed to ensuring that Flint students receive the full benefits of the Registry screening and evaluation program led by Dr. Mona Hanna-Attisha and her team of highly-skilled professionals dedicated to the care of Flint children,” said Greg Little, ELC’s Chief Trial Counsel and lead attorney in the case. “We are carefully monitoring the progress on implementing the Registry program and, most importantly, defendants’ compliance with the mandate to evaluate students with suspected disabilities and properly determine their eligibility for special education services.”
The legal team representing the Flint students continues to press forward on the claims remaining in the lawsuit. These include the failure to provide appropriate special education programs and services to children with disabilities and to provide essential procedural safeguards to students with disabilities in the school discipline process. A major issue in the case is the lack of qualified, well-trained teachers, support staff, related services professionals and other essential interventions and resources in the Flint Community Schools resulting from inadequate support and special education funding from the State Education Department and County Intermediate School District defendants.
Protecting the rights of Flint children with disabilities is critically important as over twenty percent of FCS students are currently classified to receive special education and related services. It is anticipated that additional students will be identified as in need of special education, and current students with disabilities will have their special education plans revised through the Registry’s screening and evaluation program.
Thursday, December 13, 2018
In a short one-pager, the New Jersey Supreme Court just ended the litigation war on teachers tenure in the state. By my count, this marks at least the fourth major loss for those using the courts to pursue their anti-teacher tenure agenda. And they have still yet to win a single case before a high court. What started as a big splash in California in Vergara--and rippled into places like Minnesota, New York, and New Jersey--has turned into a frivolous theory that is now sinking like a rock to the bottom of the ocean, likely to never be seen again. As I pointed out more than three years ago in The Constitutional Challenge to Teacher Tenure, the evidence simply did not support their claims.
Here's the Education Law Center's take on the New Jersey decision:
The New Jersey Supreme Court has declined to review an appeals court ruling dismissing a lawsuit seeking invalidation of tenure and due process rules for the state's teachers.
The plaintiffs in the case, H.G. v. Harrington, are several Newark Public Schools (NPS) students and parents. The plaintiffs were supported by the Partnership for Educational Justice, a group formed by former television news anchor Campbell Brown, who is behind similar lawsuits about teacher tenure laws in Minnesota and New York.
The plaintiffs challenged the statutory rule mandating that "reduction in force" (RIF) decisions be based exclusively on seniority, claiming that the rule deprives students of a "thorough and efficient" education by reducing teacher quality. The plaintiffs filed the case despite admitting there was no evidence that the seniority rule actually resulted in the retention of ineffective tenured teachers at the expense of losing effective tenured teachers.
Because plaintiffs presented no evidence of any actual impact of the seniority rule on the teaching force in Newark, a trial court dismissed the case in May 2017, holding that the case was not ripe for review. The appellate court affirmed that decision in June 2018. The appellate court noted that not only did the plaintiffs concede there was no evidence of any negative impact of the seniority rule, they also admitted NPS had significantly reduced the number of tenured teachers rated ineffective or partially effective.
Despite these decisive rulings, the plaintiffs sought certification to appeal to the New Jersey Supreme Court. On December 3, the Supreme Court denied the request and ruled that the plaintiffs must pay for the cost of filing the appeal request.
This decision is another court defeat for so called "education reform" groups seeking to attack due process for teachers. Courts in California and Minnesota also rejected legal attacks on teacher tenure in those states.
Tuesday, December 11, 2018
A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.
In 1973, plaintiffs in San Antonio Independent School District v. Rodriguez argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.
The boldest claim was filed on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal research and expertise as a scholar of education law.
When plaintiffs filed the first two cases in Detroit and Connecticut in 2016, the Supreme Court was set to shift significantly to the left. Hillary Clinton was a strong favorite to win the presidency and fill the vacancy created by the death of Justice Antonin Scalia. What looked like perfect timing for plaintiffs in mid-2016 turned awful a few months later when Clinton lost. The questions now are why plaintiffs, including new ones, continue to press forward and whether they have any chance of winning. The answers lie in a strange and tangled confluence of events that include school funding shifts, new legal theories and evolving cultural challenges.
Steep declines in school funding
Schools’ real-world problems are first and foremost driving the litigation. Detroit’s schools, for instance, are among the most segregated, lowest performing and most financially strapped in the country. The net result, plaintiffs allege, are schools where “illiteracy is the norm.” Detroit’s problems, while severe, are not entirely unique. Public schools nationwide are suffering from increasing segregation and a decade of steep funding cuts.
State tax revenues have been up since 2012, but most states continue to fund education at a lower level than they did before the 2008 recession.
While many state supreme courts allow students to challenge educational inequality and inadequacy, about 20 do not. The courts that bar such challenges say that educational opportunity involves issues beyond their authority to tackle. So children’s right to challenge educational deprivations sadly depends on where they live. Michigan, Mississippi and Rhode Island are three of the states where kids have no recourse in state court. This explains why three of the four new lawsuits are in these states.
A novel approach
Whether these cases succeed, however, depends far more on the legal theories behind them than egregious facts. The Rodriguez ruling rejected the fundamental right to “equal” education. Plaintiffs in Michigan and Connecticut assert a fundamental right to “adequate” education, not equal education. More specifically, the plaintiffs call it minimally adequate education in Connecticut and literacy in Michigan. Earlier this year, the lower courts in those cases rejected the notion that this nuance was significant and held that kids do not have a federal right to those things either.
The case just filed in Rhode Island seeks to avoid that trap by doing something completely new. It focuses on the civics knowledge and skills that our democratic form of government demands of citizens – a topic with deep historical roots. My recent research demonstrated that our founders intended public education to be a core aspect of the “republican form of government” that our federal Constitution demands.
Our republican form of government began as an experiment in the idea that everyday citizens could govern themselves. But our founders – people like George Washington, John Adams and Thomas Jefferson – emphasized that public education was necessary for those governments to work. In legislation that would dictate how the western territory would be divided up and later become states, Congress in the Northwest Ordinances of 1785 and 1787 mandated that each township reserve a central lot for public schools and that the states use their public resources to “forever encourage” those schools.
The most explicit evidence of education’s necessity comes from Southern states’ readmission to the Union following the Civil War. Congress forced all the Southern states to provide for education in their state constitutions and explicitly conditioned the readmission of the last three states’ on those states never depriving students of the education rights they had just extended to citizens.
Congress was not acting arbitrarily. The Constitution requires Congress to “guarantee” a republican form of government in the states. The South’s criminalization of literacy among blacks, refusal to create school systems for middle-class whites, and general failure to operate a government that looked anything like democracy only reinforced the wisdom of the nation’s founding ideas. Following the war, Congress took decisive steps to correct the South’s failures in education and give full meaning to the constitutional idea of a republican form of government.
Prospects for federal right to education
Whether this history will serve as the key to unlock the right to education for today’s generation is uncertain. Regardless of the merits of these cases, Donald Trump’s nominations have made the Supreme Court more conservative. Yet, recent political cycles have also exposed weaknesses in America’s democracy and the need for a better-informed electorate, as everyday citizens struggle to make sense of highly polarized political debates, fake news and conflicting media accounts.
Public education cannot solve democracy’s challenges by itself, much less do so in a short period of time. The challenges are far too large. But if the nation is to secure a meaningful long-term solution, it will be through the same strategy as the founders.
They long ago warned in letters, presidential addresses to Congress and other official acts that the strength of our democracy would depend on public education cultivating the skills of citizenship. Public education was to be the fuel that makes democracy work and the only sure guarantee that those controlling government will preserve rights and liberties, rather than trample on them. Put that way, the federal right to education may be a moonshot, but it is one the plaintiffs in these cases cannot afford to miss.
Monday, December 10, 2018
In October, I had the privilege of participating in a Tedx event sponsored by the University of South Carolina. The subject of my talk was the danger our democracy faces when we fail to ensure equal and adequate public education. I offered warnings and lessons from both the perspective of our nation’s founders and those who rebuilt our nation in the period following the Civil War. The number of parallels between the post-Civil War period and today are striking, particularly the advent of new technology—the penny press newspapers then and the 24-hour news cycle and blogs today. The challenge today is use yesterday’s lessons to solve today’s problems in school funding, critical literacy, and democratic participation. The following is a couple of highlights from the talk:
Democracy is a double edged sword. It places political power in the hands of the people, but to succeed, those people need to be informed well enough to make smart decisions. An educated citizenry cannot be easily manipulated. Not easily oppressed. And educated citizenry will guard its freedom jealously. And when these citizens get it wrong—and they will—they will disagree with one another. And this slows down any major moves in the wrong direction.
So the inherent tension of democracy revolves around the need to place power in the hands of people who may or may not be well-informed. Our founders—the people who wrote the federal and state constitutions we live under—firmly believed the only solution was the only solution was to make sure we have public education system that cultivates the skills that citizens need to participate in democracy.
In today’s world, civics knowledge and critical literacy are, well, critical. By civics I mean how our government works. A large chunck of the public has next to no idea. . . . [But] we also need critical literacy to evaluate what we learn about government and its policies. About one in three Americans are either illiterate or rudimentary readers. Half can’t read a book written at an eighth-grade level and comprehend it. And the sad thing is, that most of us who can do better, don’t. 59 percent of the time, we don’t even read stories behind the links we post, share, and retweet on social media.
If our democracy rests on a literate and well-informed citizenry, we should be scared.
. . . .
This is nothing new.
The US started as an experiment in democracy. Our founding fathers were familiar with the monarchs of Europe and taxation without representation here at home. They wanted people to rule themselves rather than be ruled over by a king.
Some of our most notable founding fathers weren’t entirely sure it would work. They knew democracy’s risks. They knew democracy could turn into mob rule. They knew the masses might decide to take property away from the wealthy and redistribute it. But what they seemed to fear most was that the uneducated masses would be misled by unscrupulous politicians or defrauded at the ballot box. . . .
. . . .[Later,] the Civil War brought the tension between reality and our democratic ideas to a head. The South, and many other states, were not real democracies.
The hurdles that the nation faced in making that transition were in many ways no different than the challenges we face today. . . .
Everything revolved around the flow of information and it was interesting a very chaotic flow of information, just like today.
They had the penny presses. They were in many respects like the blogs of today. Everyone had their own press and paper. And they were just as polarized. National, state, and local political parties had their own papers. From the tip of main to the edges of the western frontier, every little town and hamlet had its own newspaper had its own newspaper. And so did a lot of other people. Some focused on politics. Others focused on scandal and intrigue.
. . . .
The nation was primarily rural and largely disconnected, save but one thing—the newspaper. If a citizen wanted to know what his representative was doing in Washington DC or in the state capital for that matter, he had only one way of knowing. That was by reading the papers. And the average person had to sort through a lot of differing accounts and opinions in the penny presses to get to the bottom of things. They couldn’t just take someone’s word for it.
At the close of the Civil War, Congress sought a solution that would bring millions of new people into our democracy and rebuild it. The solution was public education.
Congress told Southern states that if they were going to reenter the Union, they had to get serious about democracy. This meant extending the vote to African Americans and radically expanding their public education systems. As a result, all of the southern states amended their state constitutions to mandate the provision of public education. Other Northern states would do the same in the coming years. And in fact, following the civil war, no state would ever again enter the Union without a provision in their state constitution mandating public education.
This period offers some important lessons. First is the general importance of public education to democracy. Second, the education system must be equally open and uniformly available to all. Third, that public education must prepare citizens for the demands of democratic participation.
What should we do today?
. . . . [As a country,] we cannot forget that the skills and outcomes we want students to obtain depend on state support----money. Recent studies show that twenty percent increases in school funding would cut the black-white graduation gap in half. They also show that funding cuts over the past decade depressed student achievement. Yet, most states continue to fund education, in real dollar terms, at a lower level than they did in 2008, ten years ago. And schools with the most disadvantaged students in the most disenfranchised communities tend to have the least resources. We simply cannot claim that our education system is leveling the playing field and securing democracy’s future if we won’t fund it adequately and equally.
[As individuals,] we face many of the same challenges as our children, but it is on us to make ourselves better consumers of information. No one is coming to re-school us. And we are for now, the ones in whose hands this democracy is entrusted.
We are in both a better position and worse position than we were back in the 1800s. Our position is worse because we have more to deal with: radio, television, print, social media and our cell phones.
But we are in better position to navigate the noise because we have access to real information. . . .
We should take these opportunities to be good stewards of information and to contribute to the civic conversation in a positive way. As a scholar, citizen, and just everyday reader, I have found that there are at least two ways to do that. . . .
Watch the full talk here.
Friday, December 7, 2018
This from the Education Law Center:
Education Law Center is urging the New Jersey Department of Education (NJDOE) to take immediate steps to reverse course from a decade of explosive and improper growth of charter school enrollment, targeted in the state’s high poverty, racially isolated school districts.
“In allowing charter schools, the Legislature wanted to encourage local stakeholders to pilot innovative practices on a school-by-school basis to improve education for all students in districts served by charter schools,” said David Sciarra, ELC Executive Director. “Over the last decade, the State has facilitated the rapid expansion of charter school networks designed to compete with, and replace, district public schools altogether, in direct violation of constitutional mandates and the Legislature’s intent.”
ELC’s recommendations to address the problems in New Jersey’s charter school program are detailed in written comments submitted to the NJDOE. Governor Phil Murphy’s administration is undertaking a thorough review of implementation of the 1995 charter school law.
Data submitted by ELC shows dramatic growth in charter school enrollments under the Christie administration. By 2018-19, charter enrollment had risen to 56,767 students from 18,792 students in 2008-09, an increase of 300%. This growth is concentrated in several high-poverty, urban districts, with Newark seeing the largest increase from 4,559 students in 2008-09, to 18,546 students in 2018-19, or a 307% increase. The share of Newark students attending charter schools has grown to 36%. Other districts, such as Camden, Asbury Park and Trenton, also saw large increases in the share of students attending charter schools.
The Christie administration rewrote the rules on charter school expansion, flouting the intention of the original charter school law, by allowing charter management networks to open new schools as “satellite campuses” and by approving dramatic enrollment increases through the five-year charter renewal process.
For example, the New York-based Uncommon organization now operates a network of charter schools in Newark, consisting of six elementary schools, five middle schools and two high schools. The Christie administration also allowed the KIPP organization to open and operate four elementary schools, three middle schools and one high school in Newark.
The rush to expand charters in the Christie era was so great that the NJDOE doesn’t even know exactly how many charter schools currently operate in the state.
In approving this charter growth, the NJDOE also shirked its constitutional responsibility to assess the fiscal impacts and segregative effects of charters on the public school districts in which they are located. Under several New Jersey Supreme Court rulings, the State Education Commissioner is obligated to evaluate and determine whether a proposed charter school would: 1) exacerbate patterns of student segregation in the district where it will operate, and/or 2) cause a loss of funding that deprives essential resources to students in district-run schools.
ELC has documented the negative fiscal impacts of charter expansion on Abbott districts. For example, payments from Newark Public Schools (NPS) to Newark charter schools rose dramatically to $225 million, or 27% of the total NPS budget, in 2015-16. These increasing charter payments, combined with flat state funding, forced Newark to make drastic reductions in spending on regular classroom instruction, guidance and other support services, and special education and bilingual education in district schools.
ELC has also documented the negative impact charter expansion has had on student demographics in public school districts. In Newark, Camden, Red Bank, Hoboken and other districts, charters do not educate the same student populations as the district schools. The charter student population is less poor (fewer free-lunch-eligible students) and includes very few, if any, English language learners (ELL).
The net effect of the Christie administration’s policies toward charter expansion is that school districts, which now must educate higher concentrations of students with costlier needs, such as ELL students and students with disabilities, have fewer resources to serve these students.
ELC is urging the NJDOE to make significant changes to the Department’s implementation of the charter program to rein in unfettered charter expansion, protect impoverished communities and at-risk children, and realign New Jersey charter school policy with the express language and intent of the charter law and constitutional mandates.
Thursday, October 25, 2018
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.
Education advocates have struggled to force Virginia to live up to its constitutional duties. And as a result, the state has had carte blanche to mistreat its public schools. It is little surprise that the most recent School Funding Fairness Report rates Virginia’s school funding as an “F” in terms of directing funds to needy students. And while it is a relatively wealthy state, its overall spending levels are relatively low. The tide may very well turn soon. But first, a little background is in order.
Virginia’s constitution includes one of the strongest endorsements of public education you can find. It provides that the “General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth.” In other words, the public education system is non-negotiable. There is a constitutional duty to provide it. In addition, that same section of the constitution provides that the “educational program of high quality [should be] established and continually maintained.” The constitution gets even more specific, stating that the State Board of Education “shall . . . prescribe[e]” the “standards of quality for the several school divisions.” Thus, the constitution says the precise definition is not to be left to chance. It is the Board’s duty to prescribe these high quality standards.
But some would argue there is a catch. That constitution says General Assembly “shall seek to ensure” the education program and “determine the manner” in which it will fund the schools, which leaves the General Assembly some discretion. In Scott v. Commonwealth, plaintiffs sought to test out these education clauses and challenge unequal funding in the state. The Virginia Supreme Court rejected the challenge, holding that the constitution does not guarantee “equal” or “substantially equal” school funding. That decision has scared advocates away ever since.
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.
Tuesday, October 23, 2018
If you were trying to make a buck on the side and were pretty sure that some new or improved technology would drastically undercut the market for cell phones within five years, would you invest in Apple stock or look for other opportunities? Well, that is the type of information I have for the Koch Brothers and Devos families of the world. Invest your money elsewhere. Vacate the Secretary of Education’s office. The days of charter and voucher growth are numbered. And regulation is coming to those charters and vouchers already in place.
Why am I suddenly confident, rather than nervous, about charters and vouchers? I got the chance to meet and listen to teachers from across the country at the Network for Public Education’s annual conference in Indianapolis this past weekend. For the first time in my professional career, I had a firm sense of public education’s future. I have litigated and participated in several civil rights and school funding cases, dealt with lots of different advocates, and watched closely as the teacher protests unfolded this spring. In Indianapolis, I saw something special—something I had never seen before.
I saw a broad based education movement led not by elites, scholars, or politicians, but everyday people. Those everyday people were teachers who were not just from big cities, small cities, suburbs, or the countryside, but from all of those places and as diverse as America’s fifty states and ten thousand school districts. The teachers weren’t just young or old, white, black or brown, men or women, straight or gay. They were all of the above.
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
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
FULL-TIME ATTORNEY POSITION DESCRIPTION
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.
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
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.
Tuesday, October 16, 2018
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.
Monday, October 8, 2018
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
My article is forthcoming in the Notre Dame Law Review. Get the current draft here.
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.
Tuesday, October 2, 2018
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.
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.
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
Monday, October 1, 2018
A 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."
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.
Wednesday, September 26, 2018
The Far Broader Implications of the Court Opinion That Struck Down DeVos's Approach to Student Loans
In 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.
Monday, September 24, 2018
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.
Friday, September 21, 2018
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.
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: email@example.com (CC firstname.lastname@example.org) 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 (email@example.com) or Miranda Johnson (firstname.lastname@example.org).
Thursday, September 20, 2018
The 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.
Tuesday, September 18, 2018
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.