Tuesday, November 28, 2017
Three Years After Demanding Reform, South Carolina Supreme Court Retreats from the Constitutional Right to Education
The following essay first appeared in The State.
In 1999, the S.C. Supreme Court issued a monumental decision in Abbeville v. South Carolina. It held that “the South Carolina Constitution’s education clause requires the General Assembly to provide the opportunity for each child to receive a minimally adequate education.” The trial that followed made national headlines. After reviewing the trial record in 2014, the Supreme Court found that the state had “failed in (its) constitutional duty to ensure that students … receive the requisite educational opportunity” and ordered it to remedy its failures.
By a vote of 3-2 this month, the court terminated this landmark case without even bothering to offer a reasoned explanation.
The majority’s driving motivation appears to be the belief that the court should never have been involved in the first place because it lacks authority to require the state to improve our public schools. This very same argument was rejected by the court in 2014. The only difference now: The justices on the court have changed. The majority also pointed to numerous “good faith efforts” by the state to comply with the 2014 order.
These explanations are inconsistent and flat wrong. If the court lacks authority to rule on the education rights of S.C. school children, the state’s efforts are irrelevant. Either the court can adjudicate the case or it cannot. The court cannot have it both ways, justifying its refusal to further entertain the case with the notion that it does not matter anyway because the state has made what the majority characterizes as “good faith” efforts.
Inconsistencies aside, the belief that an earlier decision in the case was wrong is not enough to justify dismissing the case later. The 2014 Abbeville decision is the settled constitutional law of this state and specifically controls this case.
In our court system, the scales are heavily weighted toward respecting settled law and outcomes in prior proceedings. Any divergence from this presumption requires compelling new evidence and fully explained justifications. In ending the Abbeville litigation, the court offers no such evidence or justification.
Our Supreme Court now stands as an outlier. The brief dismissal reads as though courts do not generally get involved in cases regarding inadequate resources and outcomes for public school children. Yet a majority of state courts have affirmed their role in ensuring that states fulfill their education duties under the constitution. Our own court said the same thing twice in the past.
Just a few weeks ago, the Pennsylvania Supreme Court, in stirring language, explained that cases implicating the education rights of children are at the heart of an independent judiciary: “It is fair neither to the people of the Commonwealth nor to the General Assembly itself to expect that body to police its own fulfillment of its constitutional mandate (in education). This is especially so in light of the many competing and not infrequently incompatible demands our legislators face to satisfy non-constitutional needs, appease dissatisfied constituents, and balance a limited budget in a way that will placate a majority of members in both chambers despite innumerable differences regarding policy and priority.”
The only evidence before our Supreme Court since its 2014 order for the state to fix our broken education system was the state’s own progress reports. Those reports have yet to be subjected to rigorous scrutiny. Simply filing a report — any report — appears enough for this Court.
Were these reports tested, the state would have to account for evidence that school funding remains far below prerecession levels, even though tax revenues have rebounded and produced substantial surpluses in recent years. It would also have to explain how little it has done to expand access to high-quality teachers and preschool education.
But this evidence will never see the light of day. Our court has left students’ right to a quality education solely in the hands of the Legislature. As the Pennsylvania Supreme Court makes clear, legislative self-policing is a far more dangerous proposition to our children and South Carolina’s future than the possibility of judicial overreach.
Tuesday, November 21, 2017
This past Friday was on of the saddest days in a long time for education rights in the state of South Carolina. In a short five-paragraph order, the state supreme court dismissed Abbeville v. State, a school adequacy and funding case first filed in the late 1990s. The case includes two prior victories before the Supreme Court--one in 1999 allowing the case to proceed to trial and another in 2014 order the state to remedy the inadequacies demonstrated in the case. Those two highlights, however, belie a curious history of judicial enforcement, with the court proceeding at a snail's pace in most instances, but all the while proceeding nonetheless. As I describe in Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education--an analysis of national trends in school litigation--
The [South Carolina Supreme Court’s] 2014 decision ordering the state to act came more than two decades after plaintiffs first filed their case. This delay, in large part, was due to the court’s refusal to decide the case. The court took more than two years to decide whether plaintiffs could proceed to trial in 1999. When the case returned to the court in 2008, the court waited nearly six years to issue an opinion on the merits of a potential remedy—so long that at one point it scheduled rehearing to update itself on the case.
At the very least, the case represents a court reluctant to enforce education rights until well after the recession had passed. If justice delayed is justice denied, the decision is surely a loss. Moreover, the long delayed final decision was ambiguous in its mandate, indicating that “the Defendants and the Plaintiff Districts must identify the problems facing students in the Plaintiff Districts, and can solve those problems through cooperatively designing a strategy to address critical concerns and cure the constitutional deficiency . . . .” The court then allowed almost another full year to pass before issuing a timetable for the parties to devise a remedy, which it inexplicably withdrew just weeks later. In September 2016, notwithstanding its original demand that the state “design a strategy to address critical concerns and cure the constitutional deficiency evident in this case,” the court in September 2016 found the state had complied with its order by simply issued an order indicating that the legislature’s efforts to studying educational deficiencies in the state and approving recent minor increases in resources were sufficient to comply with the court’s expectations.
Friday's opinion may ironically be the most definitive in the long running case. In a 3-2 opinion, the Court wrote that "[f]or the following reasons, we vacate the Court's continuing jurisdiction over this matter." The very next sentence explained: "we are convinced Abbeville II was wrongly decided as violative of separation of powers." This, particularly as the first explanation, is troubling as it suggests the case is dictated by a change in court composition rather than reasoned analysis under the controlling law of the cast. The following paragraph offers additional factual justifications, finding that the state had acted in good faith to comply with the Court's prior order.
Monday, November 20, 2017
Under state law, the answer is apparently yes in some places. A Time.com story reports that "Iowa is one of only five states that allow seclusion or restraints when there’s no physical threat, according to the ACLU. Twenty-nine states have banned the use of seclusion or restraints to discipline or punish a child." Apparently, Iowa City Schools had made more than an infrequent practice of it. It had sent "students to seclusion rooms for having a bad attitude, using foul language or being out of instructional control, among other reasons. The [state education] department reviewed more than 450 incidents involving more than 60 students were sent to these rooms over a one-year period starting in December 2015." The district now says it will discontinue the practice.
A handful of seclusion room stories have broken in other schools over the past year or two and districts have similarly been quick to change their practices once the stories came to light. Part of the pressure comes from the fact that many of the students subjected to this treatment have or many have disabilities, which brings federal law and limits into play.
Unfortunately, a corrective response is rarely quick or forthcoming at all for regular education students subjected to harsh school discipline. Writing of school exclusion (rather than seclusion) in Ending Zero Tolerance, I wrote:
Over the past two decades, school discipline has grown increasingly harsh and impersonal. Many schools and states are willing to exclude—temporarily and permanently—students for almost any type of behavior. Even when students’ behavior poses no real danger to school and involves the type of immature mischief parents expect of normally developing kids, schools dig in their heels and insist that they must banish students. Local communities and policy advocates have pushed back and managed some important successes in recent years, but the seriousness and scope of the problem demands a systematic long-term check.
I argue that courts are the check of last resort. "[C]ourts must reengage on issues of discipline and enforce students’ rights. Courts cannot simply abandon students to school boards and the political process. Too often, both schools and politicians have shown themselves to be irrational and willing to sacrifice students in the expedient pursuit of other goals."
But even when courts engage, some schools cannot imagine another way of handling kids. Zero tolerance, seclusion rooms, corporal punishment and the like are examples of schools, at best, throwing their hands up in despair or, at worst, believing courts are the niavely meddling.
The Iowa City School plans moving forward do not inspire confidence. "It’s unclear what method or practice will be used in place of the rooms. [Superintendent] Murley said in his email that 'the district recognizes the role of restraint and seclusion in providing a free and appropriate public education for all students in a least restrictive environment within our schools and is seeking ways to improve our practices.'"
Part of the answer lies in understanding that student misbehavior is not just misbehavior. It is often a warning cry for help in some other area of the child's life or education. As I write here:
Normal human development can explain a lot of misbehavior. Younger children, for instance, lack the capacity to always behave; no matter the rules, elementary school students occasionally talk out of turn, push each other and disrupt class. Older students sometimes push boundaries in other, more serious, ways. Making and learning from these mistakes is simply part of growing up.
Disabilities, academic struggles, poverty, homelessness and family crises can also affect behavior. For students in these situations, misbehavior is often a sign of unmet needs – not a character flaw.
Until school officials begin to understand misbehavior for what it is, our discipline problems will continue to plague us and stories of this sort shock us.
Wednesday, November 15, 2017
Can Tennessee Schools Replace Teachers with Computers? Not If the Constitution and Facts Have Anything to Say About It
The Tennessee Court of Appeals has taken up a fascinating issue regarding students' access to teachers. The problem could only arise in the brave new world of computers. In short, a student at a Tennessee high school had fallen behind in algebra and end-of-grade assessments were looming. The school pulled the student out of the class and placed the student in a computer based credit recovery program. Apparently, this occurred with several other students. The student claims that the school did this to help increase its standardized test scores.
The disputed issue in the case seems to be a narrower one: do students have the right to access a teacher? The plaintiff says yes. The school's attorney says no.
Melissa Roberge, a Metro lawyer, argued Tuesday that a student's right to education does not extend to the education's components, such as how classes are delivered or the specific classes themselves.
"Miss Jones does not have a property interest in the most appropriate education as determined by her," she argued. "Stated differently, there's no property interest in remaining in a specific class or being entitled to any particular test."
Roberge noted that Jones was not excluded from Metro Schools nor removed from all of her classes.
@RachelAnne Levy asked for my thoughts on Twitter. First, the case is fascinating on any number of practical and policy levels. Manipulating who shows up for tests is nothing new, but doing it this way and arguing that it is completely above the board, normal, and legitimate is different. Second, using recovery programs as a supplement to regular instruction or as an option for students who have no others is reasonable. Using it as a first option is really bad policy (unless the program is demonstrated to be of exceptional quality and help to the student) and creates obvious perverse incentives.
As to the law, the case is not nearly as interesting because I think the answer is easy. Unless they have some very specific evidence of which I am unaware, schools cannot just do this simply because no statute exist to specifically prohibit it.
While the district is correct that students typically do not have a property right in any particular class, this line of defense misses much larger and more important legal precedent and rights.
The Supreme Court in Tennessee Small School Systems v. McWherter, 851 SW2d 139 (1993), held that students have a constitutional right to "substantially equal educational opportunities." The underlying facts in the case involved disparities in teacher salaries across the state. Consistent with the overwhelming social science consensus, the court indicated that "teachers, obviously, are the most important component of any education plan or system." Because salary disparities resulted in students having unequal access to teachers, the Court ordered the state on more than one occasion to remedy is system of funding teacher salaries across the state.
So while state statutes may not create any specific property interest in access to a teacher, the state constitution creates a right to equal educational opportunities, which teachers are the most important part of. To be clear, however, underlying the discussion of teachers in McWherter and, now this new case, is educational opportunity itself. The basic right is to educational opportunity. Violations of that right occur when students are deprived of the resources and learning necessary to achieve that opportunity. This leads to the factual question of whether the offerings in one class or one school are substantially equal to others across the state.
Just because one district has higher credentialed teachers than another does not automatically mean the students' rights have been violated. The same is true of minor variations in class size. The same line of reasoning could theoretically extend to computer based learning versus human based teaching. If both were "substantial equal," a student would not necessarily have a claim.
But that is a preposterous theory when one considers the real world. I am not aware of any research (although I allow I may have missed it) that suggests that computers are equal to or can replace human instruction. If any research is on point, it would seem to be the research and practical push back against several technologies that undermine learning--particularly the most valuable types of learning that occur through personal interaction, motivation, and feedback. I don't doubt that artificial intelligence may drastically close this gap at some point, but for now it is hard to argue that computer based learning standing alone is equivalent to teacher based instruction. This is even more so for the struggling student who needs to be engaged.
Where does this leave us? The question of computer based learning is new territory and should not be dismissed out of hand. At some point, it may play an incredibly large and legitimate role. Thus, the law should not cut it off. But that is all speculation and remaining open to future possibilities. But in the here and now, we know how important teachers are and we know that students have a right to substantially equal educational opportunities in Tennessee. Thus, schools should carry a very heavy evidentiary burden with any sort of experimentation that would deprive students of substantially equal access to the key competent of education.
Tuesday, November 14, 2017
The Washington Post recently reported on a mass campus lock down at Worth County High School in Georgia. Over the course of four hours,
40 uniformed officers — the entire staff of the Worth County Sheriff’s Office — fanned through the school in Sylvester, ordering students against the walls of classrooms and hallways, demanding the students hand over their cellphones.
All 900 students were searched, part of a drug sweep ordered by Sheriff Jeff Hobby, according to court documents.
He did not have a warrant. He had a “target list” of 12 suspected drug users. Only three of the names were in school that day, April 14.
When all was said and done, no drugs were found. And when controversy later arose, the attorney for the Sheriff's Department argued that the searches were legal because they were carried out while school administrators were present. "In a statement released on April 18, Hobby elaborated that in 'the weeks leading up to April 14, the Sheriff’s Office received information and complaints from the citizens of Worth County regarding illegal drugs at the high school. The Sheriff contacted the Superintendent of the Worth County School District and the Principal of the high school to inform them of the situation and the Principal and the Sheriff agreed on the day of the pat down.'”
As crazy as that sounds, it was not a bad lob, as courts have vacillated on whether searches require reasonable suspicion or probably cause, depending on schools' involvement with these searches. Regardless, school officials have since pushed back on the idea that they were participants in the searches. And now a grand jury has indicted the sheriff and two deputies for their role in the searches.
Courts have recently begun recognizing limits on police and school practices in cases such as these, but such outcomes are never a given. Victims lose these cases more often than the win them. Yet, this mass search offers another confirmation in a long line of examples of my basic thesis in Ending Zero Tolerance: Courts must reengage on issues of school discipline and the school-to-prison pipeline. Courts have stood on the sideline for the past four decades. In their absence, students have been deprived of their last line of defense--the one that is supposed to stand strong and politics waiver--their constitutional rights.
Friday, November 3, 2017
According to Edweek, Congress's proposed tax plan would allow families to pull up to $10,000 a year out of their 529 college savings account and spend it on K-12 private school tuition (as well as other educational expenses). The proposal appears to be more an act of desperation than rationality in pursuing public support for private choice in K-12 education. The Trump administration's earlier proposal to take federal funding for public schools and drive it toward vouchers and charters never got any serious traction. If anything, DeVos's support for privatizing education made that proposal less popular with the public.
This new tax provision looks like a pointless attempt to save face or give a very small tax break to a subset of wealthy families. By design, College savings accounts/529s are a mechanism for saving money in advance to pay for something else later that might otherwise be affordable. The assumption is that families might not be able to afford college later, particularly since college costs are incurred during a balloon period of just a few years. Not even a regular savings plan is enough for most families. The 529 tries to close some of the college cost gap by allowing families to save over the course of their kids' entire pre-college lifetimes, invest that money, grow that money, and be exempt from taxes on that growth. Most states sweeten that pot a little bit by giving families a small deduction for their initial contributions, which typically caps out at a tax savings of a few hundred dollars each year.
In comparison to the shielded growth, this state tax benefit is small. Consider a family that contributed $10,000 a year for 18 years to a 529. Depending on the state, the family would save around $5000 to $10,000 in total taxes total over the collective period. No small sum, but spread across that many years, no life changer either--at least for families who can afford to contribute $10,000 a year.
That $180,000 investment, however, with compound growth, should rise to a value of somewhere between $320,000 to $500,000 (assuming a growth rate of 5 to 9 percent). That growth is tax-exempt.
So if 529s are such a good deal for college, why do they signal desperation in the context of k-12. First, for many people, using 529s for K-12 would be equivalent to robbing Peter to pay Paul. If a family is already contributing as much as it can to a 529, this new measure is not going to expand their financial capacity. Instead, it allows them to spend college money on K-12. That flexibility may be meaningful for some families, but on the averages makes very little sense, which leads to point two.
Second, if 529s are funding K-12 education, families are necessarily getting less financial benefit out of the 529s. Families will be putting money in one year (or one month) just to take it out the very next. The amount of growth they see will be small at best and there will be no compounded growth (the real benefit of the 529s). The only families that this new plan would likely benefit would be those who can contribute $20,000 a year to a 529 just as easily as they can contribute $10,000. And unless states raise their deduction caps, this additional investment in 529s would not produce a change in state tax liability.
These high wealth families do not sound like those the Administration has been talking so much about when it discusses choice--those who are trapped in failing public schools and need help exploring other options. So, at worst, this is just another measure to hand out tax breaks to those who need to the least, but done so under the guise of some noble object. At best, this is a face saving attempt to get any type of victory the Administration can. This just so happens to be one of the few school choice policies that can plausibly get through Congress.
Thursday, November 2, 2017
Politico just published an in-depth story on Betsy Devos, which includes several quotes from a candid interview with her. The part getting the most coverage is the possibility that she may step down soon. Thomas Toch, the director of think tank in DC, said “in Washington education circles, the conversation is already about the post-DeVos landscape, because the assumption is she won’t stay long. And for my money, I don’t think it would be a bad thing if she left. I think she’s been probably one of the most ineffective people to ever hold the job.”
Given my commentary/speculation on the Department, it was a fascinating read. But before I get carried away, I admit that a typical flaw in commentators is that they always focus on the things they get right, but ignore their errors. So I will offer a little of both, which will admittedly bring my power of projection down to something akin to the value of a coin flip. With that caveat, let's start with the reasons why I said DeVos never made sense as Secretary to begin with.
Before DeVos was confirmed as Secretary, I began writing a series of posts querying why she would even accept the job. In my first post, I wrote "It is not clear whether Betsy DeVos really knows what her job will be as Secretary of Education." If she did, she would have ran full-speed away from it.
Once she actually landed the job, I wrote "Even if Betsy DeVos understood her job, she could not have taken over the Department of Education at a worse time. The busiest and most complex process that any Secretary of Education will likely see over the next several years is beginning. States are set to submit their brand new implementation plans for the Every Student Succeeds Act."
The other big problem was that DeVos would not have anyone to help her close that knowledge gap. "These [ESSA] plans include lots of moving parts and policy choices within a much larger regulatory structure. The people who understand those parts just exited the Department of Education building." Competent people were not lining up to take their place.
The new Politico story, by Tim Alberta, would seem to confirm most of these projections. DeVos basically admits to not knowing what she was getting into, although she does not assign herself blame:
I think I was undercoached. The transition group was very circumspect about how much information they gave me about then-current policy and … it was in their view a balance between being prepared for a confirmation hearing and not having well-formed opinions on what should or shouldn’t change, so as not to get caught in a confirmation hearing making commitments that then I wouldn’t want to or be able to keep. And in hindsight, I wish I had a whole lot more information.
And then she figured out the complexity of the Department a little too late, which again is an admission that she did not know the job and does not like what she found. Alberta writes:
When I ask what has surprised her most about the job, DeVos does not hesitate. “The bureaucracy is much more formidable and difficult than I had anticipated—and I expected it to be difficult,” she says. “It’s even worse. And you know, in talking to a lot of the great career staff, it’s like everybody nods their heads when you talk about this … yet it seems like everyone is powerless to do anything about it.”
And then, no one came to help her:
She has yet to fill senior staff positions, and it’s widely known that numerous prominent Republicans having turned down offers. She has struggled to acclimate to the proverbial big ship that turns slowly. Perhaps most significant, she failed to persuade the committees of jurisdiction in Congress to approve her and the department’s budget request, which would have slashed funding to other initiatives in the name of expanding DeVos’ pet cause, school choice. It amounted to an embarrassing repudiation of a president and a secretary in their first year, when there is traditionally the most political capital to spend—especially considering Republicans control both the House and Senate.
Does all of this mean that she is about to quit and I was correct that she would not want the actual job she was accepting? DC insiders say yes, although Alberta is not sure. He writes, "instead of planning her exit strategy, DeVos appears to be hunkering down and mapping out where she can maximize her impact." That impact, however, is relatively small and amounts to "a cheerleading campaign" for "rethinking school, innovation, creativity, entrepreneurial activity around education."
Again, I pointed out earlier that this was the most she could hope for as Secretary. Since then, I have also admitted that, in places like Arizona and Texas, her cheerleading may have emboldened some states to take action of their own volition. Whether this is enough for DeVos to stay on, time will only tell.
Okay, so what did I get wrong? I never really anticipated that instead of proactive steps, the Department might just focus on committing itself to doing less. After all, how could it do more on choice while doing less? Wouldn't it be a logically inconsistent view of the federal role in education to push states to do more for charters and vouchers while at the same time asking less of them on special education, discriminatory discipline, and integration?
With a change in administrations, there is always a change in the way regulations are enforced. For instance, that Rod Paige and Margaret Spellings did not actually enforce the Department's disparate impact regulations, as best as I can tell. Conversely, the Obama Administration did enforce disparate impact in certain important contexts. I did not expect the Trump administration to continue the Obama administration's approach, but I assumed the hard break would stop at relatively high level policies such as disparate impact and would only amount to under-enforcement, not changing the rules of the game itself. I was wrong and I should have seen it coming.
Trump issued an Executive Order for DeVos to scour the Department's regulations for signs of federal overreach. I said it was a fool's errand. The Every Student Succeeds Act was an explicit under-reach, so what would DeVos find? Not much, according to me. I incorrectly assumed that the only deregulation that would come from the search for federal overreach would be with actual federal overreaches. Oh, how naïve the professors are.
DeVos has used the Executive Order to target basic special education guidance, competitive grant preferences for diversity, and higher education regulation, to name just a few. At least my co-blogger, Jonathan Glater, was catching the higher education angle.
By deregulating, she is also establishing the predicate for shrinking the Department, at least in her own mind. Again, Alberta gets the story straight from DeVos:
DeVos tells me she will recommend a “significantly lighter footprint.” This hints at what some career employees fear: that the new secretary wants to eliminate entire offices within the department, which would both lighten her bureaucratic burden and free up resources for lawmakers to potentially redirect toward her ultimate objective: expanding school choice.
That second point about choice, however, leads me to wonder whether DeVos still does not understand the job of Secretary. She thinks that now that she has figured out a few things, she will make lemonade out of lemons she has found. The problem is that she thinks she is holding a bunch of over-sized lemons when she is really holding grapefuit.
There is a reason why you don't see much grapefruit on the shelf. There is also a reason why you see loads of orange juice. When Congress passed the Every Student Succeeds Act, it made sure that states got to keep all the oranges. DeVos cannot do anything about that.
I give up on projecting what this means for her tenure on the job.