Thursday, April 27, 2017

Oversight of the Federal Role in Higher Education Finance Appears to Be in Flux by Jonathan D. Glater  

Earlier this month, the new secretary of education, Betsy DeVos, issued a memorandum withdrawing two Obama-era memoranda that, among other things, had directed the attention of the Education Department to attend to the quality of student loan servicing.  It is not entirely clear yet what the effect of the policy change will be.

But the Department is not the only player.  The deadline expired on Monday for comments requested by the Consumer Financial Protection Bureau on the need for the agency to gather information from student loan servicers, the businesses that manage loans made through the Education Department’s Direct Loan program. 

The independent CFPB, created by legislation passed in the wake of the financial crisis, proposed that it collect information including data on loan volume, types of loans serviced, repayment plans used by borrowers, loan status (for example, in school, in repayment, in deferment, in forbearance), and borrower defaults.  (In the interest of disclosure, your author signed onto a letter supporting the CFPB in its effort.)

Perhaps to bolster the argument for additional data collection, the CFPB today released a supervisory report describing unfair and deceptive practices identified in an investigation of student loan servicers.

The CFPB’s authority to gather information is not unlimited and sailing has not been smooth.  A three-judge panel of the Court of Appeals for the District of Columbia Circuit dealt the agency a setback last week by ruling that it did not properly support a demand for information from the Accrediting Council for Independent Colleges and Schools, which accredits for-profit colleges.  

The CFPB’s “civil investigative demand,” which is unrelated to the proposed data collection from servicers, had asked for information related to “unlawful acts and practices in connection with accrediting for-profit colleges.” In the view of the judges, this was just too broad; the agency did not “state adequately the unlawful conduct under investigation or the applicable law.”

The full opinion, which is narrower than the lower court decision that it affirmed, is here.  The appellate panel left open the possibility that the CFPB could revise its demand for information and try again.

These are potentially difficult times for would-be aggressive regulators of business conduct, as Gary Rivlin of The New York Times recently warned.  The CFPB may not get much support from the Trump Administration. 

The combination of changes in policy at the Education Department, investigative initiatives at the CFPB, and resistance from businesses, suggests that student loans, and specifically student loan servicing, will continue to be a hot topic.

April 27, 2017 in Higher education | Permalink | Comments (0)

Wednesday, April 26, 2017

New Jersey School District Forced to Spend $39 Million to Support Private Education While District Runs $15 Million Deficit in Its Own Schools

Lakewood School District in New Jersey has a budget crisis on its hands--a deficit of $15 million for the coming year.  The district is forced to spend about $39 million on non-publication education.  Regardless, to make up the shortfall in the public schools, the district plans to lay off over a 100 teachers and staff, eliminate sports programs, and drastically increase class size.  In a state where the constitution guarantees students a "thorough and efficient" education and its courts have rigorously enforced this right, these cuts are troubling indeed--so much so that the state department of education has said it will not certify the district's budget as being in compliance with that constitutional mandate.  In his recent essay in Asbury Park Press, David Sciarra writes:

Lakewood’s budget crisis is nothing new. The district lurches from year to year, making cuts in essential teachers, support staff, programs and services.

The victims of this tragedy are the 6,000 Lakewood public school children. Virtually all are poor and 95 percent are Latino or black. Twenty-seven percent are limited English proficient and 15 percent require special education.

The cause of Lakewood’s budget crisis is no secret. The district must not only support its public schools but it must pay to transport 30,000 students to private schools and pay for the cost of special education for many of those same private school students.

The drain on Lakewood’s budget from non-public expenditures is enormous. The district is forced to divert nearly $13 million in funds earmarked for public school students to pay for non-public transportation. It also must shoulder $26 million in non-public special education costs.

The state has the power to fix Lakewood’s budget crisis now. It doesn’t need new laws or changes to the school funding formula.

Acting Commissioner Kimberly Harrington has the authority to restructure the budget so it provides Lakewood students a thorough and efficient education. And Lakewood’s state fiscal monitor, Michael Azzara, is empowered to override the board of education if necessary to eliminate the budget deficit.

These state officials must act. First, they must halt the transfer of $13 million in public school funds to subsidize non-public transportation. Keeping those funds in Lakewood’s budget — where they belong — will stop the bleeding and allow the district to maintain essential services to its students.

Second, they must take the operation and cost of special education to non-public school students out of the district’s hands. The state must assume full responsibility to approve and pay for special education in private schools. This would relieve Lakewood of a fiscal and managerial burden it simply can no longer handle.

Let’s face it. The Lakewood budget has become nothing more than a vehicle for funneling vast sums of public school funds to pay for private and religious schools. This must end. Private school students are not constitutionally entitled to a thorough and efficient education. Only Lakewood public school children are.

April 26, 2017 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Tuesday, April 25, 2017

Voucher Mania Spreads to New Hampshire: Is This a Sign That Public Education Advocates in Other States Should Brace Themselves?

That expansive voucher programs found a receptive audience in Nevada and Arizona's legislatures is not altogether surprising. When similar programs gain steam in places like New Hampshire, it is worth taking serious notice.  The AP reports that a sweeping voucher bill breezed through the state's senate.  "The legislation would allow any public school student to use roughly $3,500 in tax dollars to attend a private or religious school or use the money on homeschooling, tutoring or other expenses. It would be one of the nation's broadest school choice bills, similar to programs that have passed in Arizona and Nevada."  Fortunately, the bill has slowed up in the state house.  "The Republican-controlled House Education Committee is likely to retain the bill Tuesday, meaning it won't get a vote until next year."  The governor has also expressed reservations.

Even if this bill ultimately goes nowhere, making it this far is evidence that I underestimated the Trump administration's impact on education policy.  Given the current legislative structure at the federal level, the Secretary of Education has virtually no power to push an affirmative policy agenda.  The Every Student Succeeds Act returns the lion's share of power back to states.  Thus, my working assumption was that the Trump choice agenda would not have a perceptible effect on state policy. States disinterested in choice would ignore the administration.  States that were interested would act, but not because of anything Trump or DeVos said.
The quick spread of particularly expansive voucher programs, however, does not appear coincidental.  The Trump administration did not give states the idea of expanding choice, but it appears to have emboldened them to do things they otherwise would have considered not possible or worth the effort.  If New Hampshire can move a bill through its Senate, I am afraid there is a long list of other states that can go even further.
Stopping that agenda will require local advocates to be prepared to defend the values that justify public education and not get caught off guard by what would normally be long-shot voucher bills.

April 25, 2017 in Charters and Vouchers | Permalink | Comments (0)

Friday, April 21, 2017

School District Loses Appeal of Tax Increase Injunction After Over-projecting Deficits

A Pennsylvania school district lost its appeal yesterday of an injunction to prevent the district from increasing property taxes after a state court found that the district misled taxpayers about its finances. The Lower Merion School District lost the appeal after it failed to file post-trial motions against the 2016 permanent injunction. That injunction ordered the Lower Merion School District to revoke a property tax hike because the district had amassed a $42.5 million surplus during ten fiscal years in which it projected deficits. Instead of adjusting its budgets or crediting taxpayers for the surplus, the district instead sought and received a a tax increase of 4.4 percent for the 2016-2017 school year. To do that, Lower Merion invoked a special exemption under the state's Taxpayer Relief Act, which allowed the district to raise taxes above the statutory maximum of 2.4 percent. Since 2006, the school district reportedly raised property taxes by approximately 53.3 percent. Lower Merion's schools are among Pennsylvania's most highly rated districts; Lower Merion High School was named in U.S. News and World Report's list of the nation's best high schools. The case is Wolk v. School District of Lower Merion (Pa. Commw. Ct., Apr. 20, 2017).


April 21, 2017 in Cases | Permalink | Comments (0)

Thursday, April 20, 2017

Nevada Pushing Work Around for the Voucher Program Declared Unconstitutional Last Year; David Sciarra Calls It a Trojan Horse

Last year, advocates for public education in Nevada secured a majority victory.  The Nevada Supreme Court found that the state's voucher program violated the state constitution's provisions for supporting public education.  The program funded vouchers with money that the constitution mandates to go to public education.  The Governor has now cooked up a new plan that he thinks solves the problem, but as David Sciarra points out, the new one, as a practical matter, is not really any different.  And if it passes, it threatens to lead the state down the same path as Arizona, which I argued has placed the viability of public education in danger.  Here is David Sciarra's essay, first published in the Las Vegas Sun:

Arizona offers glimpse into threat ESA bill poses to Nevada schools

Gov. Brian Sandoval is pressing lawmakers to revive the private school voucher program blocked last September by the Nevada Supreme Court. The court ruled the program was unconstitutional because it would deplete funds earmarked by the Legislature to operate Nevada’s public schools.

The governor’s bill, SB506, carries forward most features of the prior law. Sandoval wants the per-pupil amount spent on public school students, roughly $5,700, to be deposited into education savings accounts to subsidize private and religious school tuition and pay for other private education expenses. The governor also wants vouchers for any household, even the wealthy. And like the prior law, 100 days of public school enrollment is the only eligibility requirement.

To get around the Supreme Court ruling, SB506 changes the way vouchers are funded.

The funding will not come directly out of public school budgets. Instead, Sandoval proposes a separate appropriation of $60 million over the biennium.

At that level, approximately 2,500 vouchers can be awarded each year, not enough for everyone who signed up under the prior law. So the vouchers will be given out on a first-come, first-served basis.

Lawmakers should flatly reject the governor’s bill. And they need look no further than to Arizona for the reasons why.

In 2011, Arizona enacted an ESA voucher program limited to students with disabilities. Once it got rolling, vouchers were expanded to include students in low-performing public schools.

This year, 3,200 vouchers were funded by Arizona taxpayers, totaling $49 million. The vast majority of the voucher funds are used to subsidize tuition, fees and other expenses charged by religious and private schools.

But Arizona voucher proponents weren’t satisfied. Cheered on by U.S. Secretary of Education Betsy DeVos, Gov. Doug Ducey recently signed legislation expanding vouchers again, this time making all 1.1 million public school students eligible. To pass the bill, proponents accepted a cap of 5,500 new students per year and 30,000 students over the next five years. The cost to taxpayers and the public schools could quickly swell to over $100 million or more.

But make no mistake: Voucher proponents are already aiming to lift the caps and throw the program open to everyone.

As in other states, Arizona’s voucher law lacks accountability. Private schools don’t have to administer the same tests as public schools, so there is no way to know if student outcomes are better.

Oversight of voucher accounts is lax. A recent audit uncovered payments for groceries, games and gift cards using voucher funds.

Like those who signed up for Nevada’s vouchers, most Arizona voucher recipients are from affluent neighborhoods, according to an investigation by the Arizona Republic. As a state senator who opposes vouchers noted, the expansion of vouchers will only spur the exodus of affluent white parents from the public schools, leaving those schools to educate students of color, poor students and English language learners with less money.

And public school funding in Arizona, like Nevada, is among the lowest and most inadequate in the country.

So Nevada legislators beware. Gov. Sandoval’s voucher bill is a Trojan horse. His $60 million for vouchers is just the start.

Once voucher proponents get their foot in the door, they will follow the Arizona playbook, demanding expansion in the next biennium session. And, led by DeVos, they will not stop until they achieve their goal of taking down our public schools, without regard to the educational damage inflicted on the children left behind.

April 20, 2017 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Tuesday, April 18, 2017

New Head of Office for Civil Rights Signals Entirely Newly Direction

The past four years of the U.S. Department of Education' Office for Civil Rights may have been its strongest in decades.  Under Catherine Lhamon, the Office's work expanded substantially.  The Office published a number of new guidance documents that made it clear that it would enforce the law, including disparate impact.  The symbolism of these documents, along with growing faith in the Office, likely explains increases in complaints to the Department.  Unfortunately, the new Acting Assistant Secretary for the Department, Candice Jackson, signals that the coming years may look far different.  Jackson was formally named the Deputy Assistant Secretary, which does not require Senate confirmation, and will serve as acting Assistant Secretary until the administration formally nominates someone to that position and the person is confirmed by the Senate.

Pro Publica has published an article on Jackson's background.  It appears that the administration is following the game plan we saw with DeVos, appointing someone with limited experience, but strong ideological leanings.  Pro Publica describes her background this way:

Although her limited background in civil rights law makes it difficult to infer her positions on specific issues, Jackson’s writings during and after college suggest she’s likely to steer one of the Education Department’s most important — and controversial — branches in a different direction than her predecessors. A longtime anti-Clinton activist and an outspoken conservative-turned-libertarian, she has denounced feminism and race-based preferences. She’s also written favorably about, and helped edit a book by, an economist who decried both compulsory education and the landmark Civil Rights Act of 1964.

Jackson’s inexperience, along with speculation that Secretary of Education Betsy DeVos will roll back civil rights enforcement, lead some observers to wonder whether Jackson, like several other Trump administration appointees, lacks sympathy for the traditional mission of the office she’s been chosen to lead.

Her appointment “doesn’t leave me with a feeling of confidence with where the administration might be going,” said Theodore Shaw, director of the Center for Civil Rights at the University of North Carolina School of Law, who led Barack Obama’s transition team for civil rights at the Department of Justice.

“I hope that she’s not going to be an adversary to the civil rights community and I hope that the administration is going to enforce civil rights laws and represent the best interests of those who are affected by civil rights issues.”



April 18, 2017 in Discrimination, Federal policy | Permalink | Comments (0)

Monday, April 17, 2017

Ninth Circuit Finds School District Must Pay Attorney Costs For Student Formerly In Juvenile Detention

The Ninth Circuit held last week that a school district must pay attorney fees in a suit resolving which state agency bears the  responsibility to pay for special education services for students in juvenile detention. In 2013, the Ninth Circuit held in the case that a school district had to pay for education services under under the Individuals with Disabilities Education Act (“IDEA”) for student K.G., who was formerly in juvenile detention. K.G. then sought attorney's fees to recover the costs of the suit. The district court below denied K.G.'s request for attorneys’ fees, finding that he was not a “prevailing party” under the IDEA because his victory—determining which agency would fund the free appropriate public education (FAPE) required by the IDEA—was “technical or de minimis.” The district court further found that K.G.'s argument was the same as the school district's--that the State was responsible for K.G.'s education rather than the school district. The Ninth Circuit rejected both grounds. The circuit court noted that K.G. had to prove that some state agency was responsible for his education, and his presence in the litigation was necessary even though he and the school district shared similar positions. However, the Ninth Circuit remanded part of the case for the district court to determine whether K.G. was entitled to any attorney fees for litigation after his graduation--that was presumably after he had gotten the education due him. The case is Irvine Unified Sch. Dist. v. Cal., No. 14-56457 (9th Cir. Apr. 13, 2017).

April 17, 2017 in Cases, Special Education | Permalink | Comments (0)

D.C. District Court Rules That Student Painting Of Ferguson Shooting Was Properly Removed From U.S. Capitol Display

The D.C. Circuit denied a congressman's and a high school student's request to restore the student's artwork protesting the police shooting of Michael Brown to an art display at the U.S. Capitol. The federal court concluded that although the student's painting was removed because of its political expression about the Ferguson, Missouri police shooting and subsequent protests, an art display in the Capitol could be deemed government speech over which Congress has editorial control. In 2016, student David Pulphus won a place in the Congressional Art Competition to represent Missouri’s First Congressional District with his painting about the Ferguson police shooting incident. Pulphus's painting was selected to represent Rep. William Clay's district (Clay was a co-plaintiff in this case). But several members of Congress unilaterally and repeatedly took the painting down from the wall, objecting that the painting was  “anti-police.” (In the painting, which has posted here, a police officer is depicted with a warthog head and is pointing a gun at a young man who has a wolf's head and a tail.) Eventually, the Architect of the Capitol (who oversees the student art competition), permanently removed the painting for failing to meet the competition’s content suitability guidelines, which bans artworks that depict a "contemporary political controversy," or is sensationalistic or gruesome. Pulphus claimed that removing his painting was viewpoint discrimination in violation of the First Amendment. The district court agreed that the painting was banned because of its stance, but that because Congress sponsored the competition and each artwork was labelled with the congressperson's name and district and displayed in the Capitol, the art's content would likely to be perceived by the public as government speech. Because Congress maintains editorial control over that speech through the House Office Building Commission (HOBC), which is composed of the Speaker and the majority and minority leaders of the House, the student had no First Amendment right at issue. The court also found that Pulphus could not show sufficient irreparable injury or public interest to warrant a preliminary injunction. The case is Pulphus v. Ayers, No. 2017-0310 (D.C. Apr. 14, 2017).

April 17, 2017 in Cases | Permalink | Comments (0)

Friday, April 14, 2017

New Report Paints California's Charter Schools As Economic Boondoggle That Has Little to Do with Student Need, Cost Efficiency, or Quality

A new report on California's charter schools may be one of the most scathing to date--in part because it does more than examine student achievement.  Achievement studies inevitably raise methodological and interpretation debates.  More simply, it is often unclear whether the studies are comparing apples to apples.  This new study, however, filters charter schools through other more straightforward data and factors: locality need, cost efficiency, and legal compliance.  On these measures, the report suggests that California's charter school expansion is a financial boondoggle.  To use a baseball analogy, the disappointing quality of many of these schools is really just the fourth strike against a policy that should have already been called out. The report's introduction states:

From less than 200 schools in 1998, the California charter school industry has grown by more than 600%, to over 1,200 schools serving nearly 600,000 children, or nearly 10% of the state’s students. One of the sources fueling this growth is an extensive network of government programs that provide public funding or tax subsidies for charter school buildings. Over the past 15 years, California charter schools have received over $2.5 billion in tax dollars or taxpayer subsidized funds to lease, build, or buy school buildings. This report finds that this funding is almost completely disconnected from educational policy objectives, and the results are, in turn, scattershot and haphazard. Hundreds of millions of dollars are being spent each year without any meaningful strategy. Far too much of this public funding is spent on schools built in neighborhoods that have no need for additional classroom space, and which offer no improvement over the quality of education already available in nearby public schools. In the worst cases, public facilities funding has gone to schools that were found to have discriminatory enrollment policies and others that have engaged in unethical or corrupt practices.  

The reports key findings include:

  • Over the past 15 years, California charter schools have received over $2.5 billion in tax dollars or taxpayer subsidized funds to lease, build, or buy school buildings.
  • Nearly 450 charter schools have opened in places that already had enough classroom space for all students—and this overproduction of schools was made possible by generous public support, including $111 million in rent, lease, or mortgage payments picked up by taxpayers, $135 million in general obligation bonds, and $425 million in private investments subsidized with tax credits or tax exemptions.
  • For three-quarters of California charter schools, the quality of education on offer is worse than that of a nearby traditional public school that serves a demographically similar population. Taxpayers have provided these schools with an estimated three-quarters of a billion dollars in direct funding and an additional $1.1 billion in taxpayer-subsidized financing.
  • Even the worst charter schools receive generous facility funding. The California Charter Schools Association identified 161 charter schools that ranked in the bottom 10% of schools serving comparable populations last year, but even these schools received over $200 million in tax dollars and tax-subsidized funding.
  • At least 30% of charter schools were both opened in places that had no need for additional seats and also failed to provide an education superior to that available in nearby public schools. This number is almost certainly underestimated, but even at this rate, Californians provided these schools combined facilities funding of over $750 million, at a net cost to taxpayers of nearly $400 million.
  • Public facilities funding has been disproportionately concentrated among the less than one-third of schools that are owned by Charter Management Organizations (CMOs) that operate chains of between three and 30 schools. An even more disproportionate share of funding has been taken by just four large CMO chains— Aspire, KIPP, Alliance, and Animo/Green Dot.
  • Since 2009, the 253 schools found by the American Civil Liberties Union of Southern California to maintain discriminatory enrollment policies have been awarded a collective $75 million under the SB740 program, $120 million in general obligation bonds, and $150 million in conduit bond financing.
  • CMOs have used public tax dollars to buy private property. The Alliance CollegeReady Public Schools network of charter schools, for instance, has benefited from over $110 million in federal and state taxpayer support for its facilities, which are not owned by the public, but are part of a growing empire of privately owned Los Angeles-area real estate now worth in excess of $200 million.

April 14, 2017 in Charters and Vouchers | Permalink | Comments (0)

Thursday, April 13, 2017

Fourth Circuit Vacates the Order Protecting Gavin Grimm, But Casts Him As a Modern Human Rights Leader

The Fourth Circuit has vacated the injunction that was securing Gavin Grimm's access to facilities consistent with his gender in Gloucester County Schools.  Less than a year ago, it seemed Grimm's case was set to open doors for others across the country.  He had the federal government and an appellate federal court on his side.  While Grimm's bravery and persistence has had positive impacts, the federal government and courts took two steps forward just to take two, if not three, steps backward.  At least two judges on the Fourth Circuit lamented this result, but cast Grimm as the victory in the broader scheme of things.  In a concurrence to the order vacating Grimm's injunction, Judges Davis and Floyd wrote:

G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.

Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.

Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male.
G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted —but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.

G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shehab Nye, in her extraordinary poem, Famous. Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”

April 13, 2017 in Gender | Permalink | Comments (0)

Wednesday, April 12, 2017

Kansas Supreme Court: Champions of Fair School Funding By David Sciarra

 The Kansas Supreme Court once again stood firmly on established precedent when, on March 2, the Justices declared Kansas school funding inadequate to support the actual cost of educating students to meet the state' s academic standards.

The ruling in Gannon v. State addresses head-on Governor Sam Brownback' s drastic reductions in public school funding, pushed through to pay for his massive tax cuts.

The Supreme Court has given the Legislature to June 30 to remedy the constitutional violation.

The latest Gannon ruling flows from the Kansas Legislature' s waffling on restoring Governor Brownback' s formula aid cuts. In 2014, the Legislature took steps to increase school aid, but reversed itself a year later.

The Gannon student and district plaintiffs, represented by Wichita attorney Alan Rupe and Newton attorney John Robb, turned again to the Supreme Court for relief. The Court bifurcated the issues in the case into equity and adequacy and sent the case to a lower court to develop an evidentiary record.

In February 2016, the Supreme Court ruled that the funding system was inequitable and ordered a remedy by June 30, 2016. The Legislature complied by the deadline.

In its March 2017 decision, the Supreme Court affirmed the lower court' s finding that Governor Brownback' s school aid cuts rendered the finance system constitutionally inadequate. The Court concluded that "every witness, including experts...confirmed that the costs of educating Kansas students and the demands on Kansas education had only increased since 2007...creating a gap between demands and resources in Kansas public education."

The Court relied on exhaustive evidence of severe deficits in essential resources in Kansas schools, including full-day kindergarten, extracurricular activities, and professional development. The resource deficits also included librarians, speech therapists, coaches, nurses, counselors and other staff, along with foreign language and art and music programs.

The Court also affirmed evidence of poor student outcomes, citing the unacceptable performance on state assessments of Kansas students overall, and students of color and low-income students in particular. The Court noted that, when the number of underperforming African American and Latino students is combined, the total equals all of the students "in every school district in every county with an eastern boundary beginning west of Salina-more than one-half of the state' s geographic area."

The Court also affirmed the lower court' s finding of a correlation between inadequate state funding and the decline in student achievement. The Court cited the "substantial evidence" that when funding increased after a previous school funding decision, student achievement also increased, and when funding was cut, student achievement also fell.

The Court concluded "the impact of the loss of funding" under the Brownback Administration was "endemic, systemic, and statewide."

The Gannon ruling follows the path taken by the New Jersey Supreme Court in Abbott v. Burke in 2011, when, based on a trial record of reductions in essential resources, the Court invalidated Governor Chris Christie' s $1.1 billion cut in formula aid and ordered the aid restored to urban districts.

But Gannon also stands in stark contrast to recent decisions by the Texas and Colorado Supreme Courts. Those Courts overturned trial court rulings of inadequate and unconstitutional school funding, ignoring both the overwhelming weight of the trial evidence and their own prior court precedents.

Unlike the Texas and Colorado Supreme Courts, the Kansas high court has stood steadfast in applying its precedent to vindicate the constitutional rights of the state' s school children to the resources needed to achieve Kansas's academic standards. The Kansas Supreme Court, in the face of deep recalcitrance by the Executive and Legislature, has demonstrated the institutional integrity that is the hallmark of an independent judiciary. And, by doing so, the Kansas Court has once again proved to be a true champion of equity.

April 12, 2017 in School Funding | Permalink | Comments (0)

Monday, April 10, 2017

Whither – Wither? - Public Service Loan Forgiveness By Jonathan D. Glater


It comes as no surprise that some of the most important jobs public-spirited graduates want to pursue do not offer high salaries.  To make these careers feasible for indebted students, Congress in 2007 approved the Public Service Loan Forgiveness program, or PSLF, which provides for forgiveness of student debts of those who make payments on their loans for ten years and work for a qualifying public interest employer.

The trouble is, according to a lawsuit filed in December, the Education Department may be tinkering with the definition of qualifying employer.

The ten-year period will end this fall for early adopters, and now some of those student borrowers who counted on forgiveness say they have been told that they are no longer eligible after all.  Last week, The New York Times ran a disheartening story about disavowals of forgiveness by the Department.

The subject started to get coverage after the American Bar Association filed a lawsuit against the Department in December on behalf of the students who were first told they could benefit from forgiveness, then were told later that they could not. 

The lawsuit, filed in federal court in Washington, D.C., is worth watching.  Changes to PSLF, codified at 20 U.S.C. §1087e(m), could have an impact on the lives of millions of students who rely on its availability when they make hard decisions about all aspects of their lives.  Consider how the possibility of loan forgiveness influences choices about careers to pursue, retirement saving, major personal investments, marriage, children, and where to live. 

No wonder the apparent decision by the Department to move the goalposts resulted in litigation.

According to the complaint filed by the American Bar Association (“ABA”) challenging the Department’s apparent decision that some student borrowers’ employment did not qualify them for forgiveness, some borrowers’ loan balances actually grew while they worked in what they thought were eligible public interest jobs.  They used an income-dependent repayment plan and their payments did not make a dent in the principal.

The student borrowers believed that they would benefit from loan forgiveness because they filed “employment certification forms” and received confirmation that their employment qualified. 

Then, after years of making payments, they received notice that their employment did not qualify – and that this finding applied retroactively, such that payments they had already made would not count toward the ten-year requirement.  The law does not specify an appeals process, the ABA notes.

Why is the ABA suing the Department?  Well, “high caliber employees” will leave or may not work for the organization if such employment does not qualify for loan forgiveness, according to the complaint. 

The Department’s answer asserted that the Department had “ultimate authority to review” actions taken by the company that serviced the loans, suggesting that the Department considered no prior finding of eligibility for forgiveness to be binding.  The Department’s response suggests also that perhaps the servicing entity did not have authority to make the eligibility findings that it had.

Further, the Department “does not make a final decision on whether a borrower has been employed by a qualified organization until the borrower submits an application for loan forgiveness,” suggesting that any interim confirmation of eligibility for PSLF is meaningless.

While the outcome matters greatly to students, the battle is also significant because it implicates the larger question of the extent to which the federal government will subsidize accessibility of higher education.  Loan forgiveness to students in repayment reduces the cost of college, it just does so ex post rather than ex ante as a scholarship would. 

Critics of PSLF warn of the program’s potential cost, at least implying that this subsidy is dangerous because of its expense.  And perhaps a debate over national willingness to put higher education within reach of students ready to work in the public interest is one we should have.

In such a debate, we should take note of the distributive effects of PSLF:  students with higher debts, often students who had less in the way of financial resources to begin with, are the ones who will be most affected by restrictions on the availability of forgiveness.  The forgiveness program constituted a legislative effort to turn indebtedness into an incentive to go into fields that otherwise students might view as unaffordable.

But regardless, those students who have acted in reliance on PSLF deserve to have the promise of the 2007 legislation honored.  They are, after all, working in the public interest.

April 10, 2017 in Higher education | Permalink | Comments (0)

Article: Applying A More Protective Fourth Amendment Standard To School Restraint Claims

Amanda McGinn makes a case for courts to establish a clear constitutional standard for excessive-force claims against school resource officers in her recent article, School Discipline Practices That Will Shock You, Literally: A Reevaluation of the Legal Standard for Excessive Force Against Students, 54 Am. Crim. L. Rev. 627, 629 (2017). In her note, McGinn writes that courts should apply the Fourth Amendment's objective-reasonableness test to school discipline and take into account a school's interest in developing citizens, not just in maintaining control and safety. Not only does the use of force and restraint result in physical and psychological harm, but research shows that physical punishment makes it more, not less, likely that children will be defiant and aggressive in the future. Ultimately, McGinn calls for most forms of  restraint, such as stun guns, pepper spray, and handcuffs, would be found to be objectively unreasonable.


April 10, 2017 in Discipline, Scholarship | Permalink | Comments (0)

Friday, April 7, 2017

Arizona's New Voucher Program Set to Become Largest in the Nation, But It Is Also the Biggest Farce

According to the AP, Arizona just passed a bill that will make every student in the state eligible for voucher.  It may become the biggest voucher program in the nation.  The "program allows parents to take between 90 percent and 100 percent of the state money a local public school would receive to pay for private or religious education. The average student who isn't disabled will get about $4,400 a year, but some get much more."  The funding mechanism and its expected cost to the state is murky.  "The original Arizona plan was estimated to cost the state general fund at least $24 million."  Now, a revised plan and estimate are supposed to save the state $3.4 million by 2022.

What is clear, however, is that Arizona's per pupil funding for public schools currently ranks 47 out of 50 states.  To make matters worse, it distributes those meager funds unequally.  The Education Law Center's 2017 School Funding Fairness Report grades Arizona's funding distribution as an "F."  Schools with moderate levels of student poverty receive only 88 cents on the dollar in comparison to schools with no student poverty.  The comparison is even worse between high poverty school districts and low poverty school districts.  In other words, Arizona spends the least on students who need the most.  

That same report also shows that Arizona is doing almost nothing to fix its low funding levels or unequal distribution.  Arizona ranks 49th in the nation in terms of the level of fiscal effort it exerts to fund its schools.  

These background facts place Arizona's new voucher program in a troubling light.  These cold hard facts show that the state is not really interested in supporting adequate and equal education for its students.  Thus, it is no surprise the state would double down and make matters worse.  If gross inequity and inadequacy in public schools does not bother the state as a general principle, why would robbing those schools of more money be a problem?  Why not just cap the state investment in a students' education, send that student to private school, and tell the family and or the private school that they need to make up the difference?  If things do not work out in the future, that is on the family and the private school.

These background facts also mean that the rhetoric of political leaders lacks credibility.  Speaking of the voucher program, the Governor tweeted: "When parents have more choices, kids win."  If one understands the facts, one understands that this voucher program is not about helping kids in Arizona "win."  It is about raw politics and continuing the longstanding trend of depriving public schools of the resources they need to succeed.  If parents in Arizona want vouchers (or charters), it is not because those policies are normatively appealing.  It is because the state has been robbing them of the public education they deserve.  Many families now surely believe they have no other realistic option.  In short, the state has created the factual predicate of failing public schools to create the justification for its own pet project of privatizing education.  The kids caught up in the mess simply do not matter.

April 7, 2017 in Charters and Vouchers | Permalink | Comments (2)

Thursday, April 6, 2017

Choice Advocates Not Only Want More Money for Vouchers, They Want It with No Strings Attached

Ever since the Betsy DeVos was nominated as Secretary of Education, school choice advocates have been salivating over the possibility that the privatization of education would enter a new expansive era.  Last week, the USA Today interviewed some of the nation's leading advocates of school choice and vouchers who are raising new concerns.  Mike Petrilli of the Thomas B. Fordham Institute  and Richard Hess of the American Enterprise Institute warn there is a downside to this expansion: the federal government will begin to regulate private schools more.  Hess remarked "when you get a Democratic administration, an Elizabeth Warren administration, and they decide that eligible schools ... need to have anti-bullying programs and other accommodations? We will very quickly wind up and wonder, ‘What were we thinking?’”  Petrilli said many private schools would forgo the funding if they have to abide by these types of regulations.  “They just won’t participate,” he said. “And then what’s the point? You don’t have a program.”

Is this a sign of an evolving school voucher position that not only should the public fund private education, it should fund it with no strings attached?  

That choice advocates could take such a position shows just how far the ground has shifted in a few short months.  This position is incredible on any number of levels.  

First, it assumes an entitlement to public funding for private choice.  The problem is that there is no such entitlement.  If the federal or state government is giving money to private schools or facilitating private choice, it goes without saying that it has the right to regulate that money.  In fact, conditioning federal money is the real reason for giving out federal money to begin with.  The federal government knows that its ability to regulate state and private actors is relatively small.  Thus, it achieves its policy objectives by exchanging money for conditions.  We do this in everything from health care to education.  

Second, state and federal government has funded public education for the past century and a half because it is public education.  The state and federal interest in funding private education is extremely small at best.  The only interest in funding private education is to offset certain costs that might otherwise fall on public education.  In other words, there is no independent reason to fund private education.  

Third, federal funds for public schools come with a long list of conditions. Why we would condition funds in public schools but allow private schools to take them free of conditions? The only obvious rationale I see is a normative preference for private schools over public schools.  Few, however, are willing to publicly fess up to that rationale.  If they did, it would be contrary to the second point.  In effect, the justification for funding education at all would begin to collapse if we preferenced private education over public education.  

Finally, public education is premised on a set of cultural and constitutional norms--non-discrimination, fair process, equal opportunity, social cohesion, and freedom from religious coercion.  As a general principle, private education is neither premised on nor committed to any of these norms.  Without regulation, they would not accept them.  And if they did not accept them, the federal government could not in fairness give them public money.  One might even seriously question whether a new set of constitutional concerns would arise if the federal government did so.  

While the Supreme Court has upheld vouchers for private religious schools, the Supreme Court has also held that the federal government cannot achieve unconstitutional ends indirectly.  For instance, the federal government clearly cannot segregate schools itself.  Could it indirectly achieve segregation through its spending power and have private or state entities do it for the federal government?  The Court has said no.  

Of course, just because private individuals might use public money to segregate or pursue religious ends does not meant that is the federal government's design--hence the prior decision upholding vouchers.  But if we converted into a system dominated by private choice and entirely free of constitutional and cultural norms, the question of whether the government was pursuing a new impermissible design could rise to the fore.

More here.


April 6, 2017 in Charters and Vouchers | Permalink | Comments (0)

Wednesday, April 5, 2017

New State Accountability Systems Reveal the Federal Role in Education Has Faded

Last year, I wrote that the Every Student Succeeds Act “ESSA reverses the federal role in education and returns nearly full discretion to the states.”  I predicted that the flexibility afforded to states in devising their new ESSA accountable schemes would make “educational opportunity a random occurrence rather than a legal guarantee.”  States would manipulate their accountability schemes and rely on a convoluted set of factors that effectively make it impossible to get a sense of school performance. 

Early looks at these accountability systems suggest my prediction was correct.  A recent analysis of California’s new ESSA system found,

Nearly 80% of schools serving grades three through eight are ranked as medium- to high-performing in the new ratings, earning them positive colors on report cards sent to parents. Last year in state testing at those same schools, the majority of students failed to reach English and math standards. More than 50 of those schools whose average math scores fell below proficiency receive the dashboard’s highest rating for math.

At the same time, Maryland is also considering legislation that would severely restrict the weight the state board of education could place on student achievement.  The Washington Post reports, “Among the restrictions being advanced by lawmakers: limiting measures of actual school effectiveness (student achievement, student growth and graduation) to 55 percent of a school’s accountability rating, in favor of factors such as teacher satisfaction; . . . and barring the state from taking significant actions to reform the worst-performing schools, even after districts have had years to set them straight.”  

State flexibility is not, as Betsy DeVos claims, being use to unleash the creativity and good faith efforts.  It is being used to hide the fact that states are and have been doing a poor job providing equal and quality educational opportunities.  To be clear, this does not mean that the No Child Left Behind took the correct approach or that standardized tests should drive school quality. But a common and transparent yardstick for school accountability is important.  ESSA is allowing states to devolve into a system of apples, oranges, pears, watermelons, and lemons.  By doing so, it deprives us of the ability to compare schools in any meaningful respect.  For that reason, the new accountability systems are not simply hard to interpret, they are a complete waste of time.

Rather than devise a convoluted accountability system, Congress should have just fessed up to the fact that it was abandoning the federal role in education.  Instead, it sought to keep up the ruse by requiring states to waste a lot of time and effort on these new systems.

For my full analysis of how the Every Student Succeeds Act abandons the federal role in education and what else is likely to come, see here.

April 5, 2017 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Tuesday, April 4, 2017

Minnesota Court of Appeals Holds that Education Quality Suit Raises Nonjusticiable Political Question.

In a case of first impression in the Minnesota appellate courts, the state court of appeals recently reversed a trial court's refusal to dismiss to dismiss a class-action lawsuit that claimed that economic and racial segregation led to students being denied their state constitutional right to an adequate education. The Minnesota Court of Appeals found that the suit's claims required the court to define what was an adequate education, which in the court's view presented a nonjusticiable political question. The class action plaintiffs alleged that hyper-segregated schools” throughout Minnesota is a per se violation of the Minnesota State Constitution's Education Clause (article XIII, sec. 1) and that children of color and children in poorer districts receive an inadequate education by "any objective standards." The district court below refused to dismiss the plaintiffs' claims on the merits. In reversing that decision, the court of appeals wrote that the definition of adequate education is a standard specifically assigned to the state legislature and would require the court to make an initial policy decision in an area under legislative control. Citing precedent, the appellate court noted, "we deem[] judicial review of educational policy inappropriate." The case is Cruz-Guzman v. State, No. A16-1265, 2017 WL 957726 (Minn. Ct. App. Mar. 13, 2017).

April 4, 2017 in Cases, Equity in education | Permalink | Comments (0)