Friday, December 8, 2017
The Strange Ideas Found in Voucher Schools' Textbooks Are a Problem Reaching Well Beyond Just the Students Learning Them
Huffington Post's study of the curriculum offerings in private schools that participate in state run voucher and tax credit programs has set the internet ablaze. Huffington Post identified all of the private schools that receive voucher or tax credit funding--no small task. It then collected information on the textbooks those schools use. The results were startling in many respects. The study turned up books that promote some pretty sensational ideals:
- In the 1800s, Satan hatched “the ideas of evolution, socialism, Marxist-socialism (Communism), progressive education, and modern psychology” to counter America’s increased religiosity.
- Women's right to vote and increased participation in the workforce coincided with women acting in increasingly anti-Christian ways, such was disobedience "to their own husbands.”
- The books sympathize with the South in regard to the Civil War or “war between the states," as they phrase it, and while the acknowledge that slavery was likely a factor in the war, they emphasize other explanations.
These types of ideas were promoted in three particular textbooks/curriculums. The charts below reveal the frequency with which voucher and tax credit schools use these textbooks.
The implications of the ideas that these books promote cannot be contained simply to the schools in which they are taught. As I emphasized in 2013 in Charter Schools, Vouchers, and the Public Good,
Increasingly forgotten in these conversations [about school choice] is that the purpose of receiving an education, at least a public education, goes far beyond the teaching of information and skills and the interests of individual students. Public education includes the transmission of social values that lead to social cohesion and the overall betterment of society. Test scores tell us nothing of these values, and private markets are ill suited to deliver them. Whereas private markets respond to consumer preferences, public education seeks to create public preferences. Additionally, given the nature of the democratic values our public education seeks to promote, individually responsive education makes little sense. Public education entails the provision of common experiences under conditions consistent with equal protection, due process, free speech, and religious neutrality. A consumer-based system allows for too much educational variation and opens the door to individual biases that are contrary to public education.
Based on their track record thus far, charters and vouchers, on the whole, are not operating in furtherance of the public good. Rather than promote the public good, they tend to promote the individual good and operate in ways that actively undermine the public good.
I further explain:
Consider, for instance, an individual-orientated education system that includes elements of school choice. Such a system potentially caters to antisocial behaviors by permitting students with shared antisocial values to choose to coalesce in particular schools or programs. Over the long term, this type of system would undermine social cohesion and counteract the effect of social pressures that might otherwise produce common values.
In contrast, many of the specific values a collective-based concept of education seeks to facilitate are those that mitigate and limit individuals' tendency to adopt antisocial or group mindsets and act on them. For instance, collective-based education promotes the individual's commitment to enhancing the public sphere and common good. Because individuals tend toward self-interest, collective-based education seeks to counteract the tendency toward self-serving interests and affirmatively promote the opposite. Unsurprisingly, collective-based education can generate significant controversy in promoting these values, as doing so only highlights the tension between competing concepts of the public good. Some theorists define the common good not as a society with an expansive public sphere but one with unfettered individual liberty. Collective-based education generally agrees that a core set of individual liberties must be protected, but collective education limits individualism at the point that it seriously threatens group interests.
This is not to say that collective-based education would deny individuals the freedom to adopt antisocial values. If our First Amendment jurisprudence teaches anything, it is that arriving at collective wisdom requires us to protect all individual's ideas, regardless of how repugnant we might find those ideas. And the Court has held that the same principles extend to public schools. Protecting individual freedom, however, is far different from requiring the state to adopt policies and structures that might facilitate and support antisocial values and behavior. At most, the state is obligated to allow individuals to opt out of the public system when their individual values are at odds with public values, but, even then, the state can place limits on the private pursuit of individual values when the private pursuits pose a significant threat to societal well being.
Thus, the irony in Huffington Post's findings is not only are these schools teaching ideas that are at odds with the justifications for providing public education, the public is actually funding these ideas. Moreover, in doing so, these programs have the potential to undermine public education itself. I argued in 2013 that these programs could not just further individual choice, but give private individuals the ability to dissent and, as a practical matter, veto larger public policy agendas. For more, see the full article.
Thursday, December 7, 2017
As I was checking to confirm that my colleague Colin Miller's Evidence Prof Blog deservedly made the ABA Journal's new Top 100 list just as it had for the last several years, I was shocked to see the Education Law Prof Blog right next to it. I assume that one of my friends or regular readers out there nominated the blog rather than the ABA coming up with it on its own. I am pretty confident in that assumption, so thank you to whoever made the nomination. And thanks to those who read the blog. It is only the idea that the blog is useful to others that motivates me to write posts. The idea that someone thinks it is useful enough to nominate to the ABA motivates me to try harder to post more regularly.
Wednesday, December 6, 2017
New Report on Racial Bias in School Discipline Offers Great Prelude for Confirmation Hearing for the Head of the Office for Civil Rights
The NAACP Legal Defense and Educational Fund, Inc. (LDF) released a new report last week on implicit bias in school discipline. It is a particularly efficient and straightforward report that should be easily accessible to the educators and the general public. They, more than attorneys and policy wonks, seem to be the intended audience. It also includes some clear "how to" steps, aimed at minimizing the effects of bias. LDF offered this in their press release:
The report not only explains the ways in which implicit bias – subtle, subconscious beliefs on race – held by teachers, administrators, and school resource officers (SROs) leads to the over-disciplining of students of color, but offers a range of recently developed interventions that have been effective in limiting the harmful effects of implicit bias.
“Addressing implicit bias in schools is essential to dismantling the school-to-prison pipeline, which wreaks havoc on students of color,” said Ajmel Quereshi, Senior Counsel at LDF and co-author of the report. “Instead of readily excluding students from the learning process, educators should heed our recommendations to create an environment that promotes social belonging for all students regardless of race.”
Civil rights advocates, as well as the general public, have long been aware of racial disparities in school discipline. As early as 1974, civil rights advocates highlighted that Black students were two to three times more likely to be suspended than white students. Sadly, little progress has been made in reducing these disparities. In 2012, for example, Black students made up only 17 percent of students in the United States but accounted for 40 percent of out-of-school suspensions and were three times more likely than white students to be suspended or expelled from school. While six percent of all K-12 students received one or more out-of-school suspensions during the 2013-14 school year, the percentage was 18 percent for black boys; 10 percent for black girls; five percent for white boys; and two percent for white girls. This wide racial disparity persists despite gender and age differences.
The disparate punishment for Black students in our nation’s schools can have dire consequences beyond their K-12 school experiences. Once a Black student is suspended, the chances that he or she will drop out of school, become unemployed, and enter the criminal justice system rises dramatically.
New interventions that put more attention on student-teacher relationships and the social and psychological factors contributing to these relationships have begun to lessen the extreme levels of discipline administered to Black children. The report discusses a number of these strategies, including the “wise feedback” intervention, which focuses on providing clear feedback in a manner that prevents students from believing that the teacher may harbor a negative bias against them. Another technique detailed in the report is the “empathic discipline” intervention, which exposes teachers to their kids’ personal stories so that they can gain insight into the experience of racially stigmatized students in school. This exposure encourages teachers to use discipline as a chance to build a relationship with the student and cultivate a learning opportunity.
“The over-disciplining of students of color presents a crisis for our young people, our schools, and our criminal justice system,” said Jason Okonofua, Assistant Professor of Psychology at the University of California, Berkeley and co-author of the report. “The interventions and recommendations offered in our report could significantly improve the fairness of school discipline, helping to ensure that every student has a meaningful opportunity to succeed.”
Beyond these interventions, the report also offers specific recommendations for school districts on how to better address implicit bias, and how to mitigate the harm caused by discretionary offenses and school resource officers. These recommendations have already shown promise in ameliorating the over-disciplining of students of color, and in creating a safer learning environment where all students feel inspired to succeed.
The report was published with the guidance of the Legal Strategies Collaborative, a group of 15 organizations that focus on limiting the school-to-prison pipeline, and was made possible by a grant from the Open Society Foundations.
Read the full report here.
The report could not be more timely given that Kenneth Marcus, the nominee for Assistant Secretary in the Office for Civil Rights at the U.S. Department of Education, had his confirmation hearing yesterday. Edweek reports that he was thoroughly grilled on school discipline issues. The Office issued guidance a few years ago that spelled out a clear framework for evaluating racial disparities in school discipline. Pursuant to that guidance, the Office forced corrective change in a number of school districts. The question now is whether Marcus would continue that policy. Here are a few exchanges from the hearing.
"If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?" asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.
"In general, the answer is yes," Marcus said.
Murphy said he "would argue that we have a school discipline crisis in this country." He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. "If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?" he asked.
"Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern," Marcus responded. "Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions."
"I will just share my view with you," Murphy responded. "I don't believe there's any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn't find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?"
Marcus said his "experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are." He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.
"I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences," said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.
His answers were relatively moderate all things considered. He was not hostile to the guidance at all, which sets him apart from many others on the right. And the fact that DeVos did not rescind the guidance during her recent hatchet job on education regulations is somewhat comforting.
With that said, Marcus is extremely sophisticated and previously served in the Office during the Bush administration. I would not expect him to make a fool of himself during a hearing or even invite confrontations that he could avoid. Unlike so many other nominees, he actually understands government and what this Office is supposed to do. Marcus clearly understands the law and it is not his mission to undermine it or the Office.
He and I have debated before and we, of course, disagree on the substance of any number of important issues. Once we get past basic threshold questions or the application of the law, we begin to diverge. And the way he dealt with anti-Israel protests on college campuses a decade ago raises major red flags and has drawn a lot of letters in opposition to him, including from professors. To be fair, however, the legal rationale that he relied on with the anti-Israel protests was the same rationale that he and the Office used to protect Sikh and other religious minorities from harassment in school following the 9/11 attacks, although the harassment of Sikh's was far more direct and clear. This leads many to believe that while Marcus won't undermine the Office, he will, from time to time, use it for his own ends.
Am I happy that he will lead the Office? Absolutely not. Do his pet projects bother me? Absolutely yes. Is he competent, generally reasonable, and better than a host of other people I might have expected Trump to nominate? Absolutely yes. In short, he is a mixed bag.
Tuesday, December 5, 2017
Public school funding has shrunk over the past decade. School discipline rates reached historic highs. Large achievement gaps persist. And the overall performance of our nation’s students falls well below our international peers.
These bleak numbers beg the question: Don’t students have a constitutional right to something better? Many Americans assume that federal law protects the right to education. Why wouldn’t it? All 50 state constitutions provide for education. The same is true in 170 other countries. Yet, the word “education” does not appear in the United States Constitution, and federal courts have rejected the idea that education is important enough that it should be protected anyway.
After two decades of failed lawsuits in the 1970s and ‘80s, advocates all but gave up on the federal courts. It seemed the only solution was to amend the Constitution itself. But that, of course, is no small undertaking. So in recent decades, the debate over the right to education has mostly been academic.
The summer of 2016 marked a surprising turning point. Two independent groups – Public Counsel and Students Matter – filed lawsuits in Michigan and Connecticut. They argue that federal law requires those states to provide better educational opportunities for students. In May 2017, the Southern Poverty Law Center filed a similar suit in Mississippi.
At first glance, the cases looked like long shots. However, my research shows that these lawsuits, particularly in Mississippi, may be onto something remarkable. I found that the events leading up to the 14th Amendment – which explicitly created rights of citizenship, equal protection and due process – reveal an intent to make education a guarantee of citizenship. Without extending education to former slaves and poor whites, the nation could not become a true democracy.
Why a federal right to education matters
Even today, a federal constitutional right to education remains necessary to ensure all children get a fair shot in life. While students have a state constitutional right to education and it has made a real difference in many states, too many state courts have been ineffective in protecting those rights. Some courts claim they lack the authority to demand reform. Others simply struggle to cajole legislative compliance with court orders.
Without a federal check, education policy tends to reflect politics more than an effort to deliver quality education. In many instances, states have done more to cut taxes than to support needy students.
And a federal right is necessary to prevent random variances between states. For instance, New York spends US$18,100 per pupil, while Idaho spends $5,800. New York is wealthier than Idaho, and its costs are of course higher, but New York still spends a larger percentage on education than Idaho. Tennessee and Kentucky make the point even clearer. Kentucky is a little poorer than Tennessee, but spends far more on education—$8500 per pupil compared to Tennessee’s $7300. In other words, geography and wealth are important factors in school funding, but so is the effort a state is willing to make to support education.
And many states are exerting less and less effort. Recent data show that 31 states spend less on education now than before the recession – as much as 23 percent less.
States often makes things worse by dividing their funds unequally among school districts. In Pennsylvania, the poorest districts have 33 percent less per pupil than wealthy districts. Half of the states follow a similar, although less extreme, pattern.
Studies indicate these inequities deprive students of the basic resources they need, particularly quality teachers. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low-income students completing nearly a year of additional education. This additional education wipes out the graduation gap between low- and middle-income students. A Kansas legislative study showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.”
These findings are just detailed examples of the scholarly consensus: Money matters for educational outcomes.
The new lawsuits
While normally the refuge for civil rights claims, federal courts have refused to address these educational inequalities. In 1973, the Supreme Court explicitly rejected education as a fundamental right. Later cases asked the court to recognize some narrower right in education, but the court again refused.
After a long hiatus, new lawsuits are now offering new theories in federal court. In Michigan, plaintiffs argue that if schools do not ensure students’ literacy, students will be consigned to a permanent underclass. In Connecticut, plaintiffs emphasize that a right to a “minimally adequate education” is strongly suggested in the Supreme Court’s past decisions. In Mississippi, plaintiffs argue that Congress required Mississippi to guarantee education as a condition of its readmission to the Union after the Civil War.
While none of the lawsuits explicitly state it, all three hinge on the notion that education is a basic right of citizenship in a democratic society. Convincing a court, however, requires more than general appeals to the value of education in a democratic society. It requires hard evidence. Key parts of that evidence can be found in the history of the 14th Amendment itself.
The original intent to ensure education
Immediately after the Civil War, Congress needed to transform the slave-holding South into a working democracy and ensure that both freedmen and poor whites could fully participate in it. High illiteracy rates posed a serious barrier. This led Congress to demand that all states guarantee a right to education.
In 1868, two of our nation’s most significant events were occurring: the readmission of southern states to the Union and the ratification of the 14th Amendment. While numerous scholars have examined this history, few, if any, have closely examined the role of public education. The most startling thing is how much persuasive evidence is in plain view. Scholars just haven’t asked the right questions: Did Congress demand that southern states provide public education, and, if so, did that have any effect on the rights guaranteed by the 14th Amendment? The answers are yes.
As I describe in the Constitutional Compromise to Guarantee Education, Congress placed two major conditions on southern states’ readmission to the Union: Southern states had to adopt the 14th Amendment and rewrite their state constitutions to conform to a republican form of government. In rewriting their constitutions, Congress expected states to guarantee education. Anything short was unacceptable.
Southern states got the message. By 1868, nine of 10 southern states seeking admission had guaranteed education in their constitutions. Those that were slow or reluctant were the last to be readmitted. The last three states – Virginia, Mississippi and Texas – saw Congress explicitly condition their readmission on providing education.
The intersection of southern readmissions, rewriting state constitutions and the ratification of the 14th Amendment helps to define the meaning of the 14th Amendment itself. By the time the 14th Amendment was ratified in 1868, state constitutional law and congressional demands had cemented education as a central pillar of citizenship. In other words, for those who passed the 14th Amendment, the explicit right of citizenship in the 14th Amendment included an implicit right to education.
The reasoning of both Congress and the state conventions was clear: “Education is the surest guarantee of the … preservation of the great principles of republican liberty.”
The rest is history. Our country went from one in which fewer than half of states guaranteed education prior to the war to one in which all 50 state constitutions guarantee education today.
The new cases before the federal courts offer an opportunity to finish the work first started during Reconstruction – to ensure that all citizens receive an education that equips them to participate in democracy. The nation has made important progress toward that goal, but I would argue so much more work remains. The time is now for federal courts to finally confirm that the United States Constitution does, in fact, guarantee students the right to quality education.
Monday, December 4, 2017
Every twenty years, a commission meets in Florida to consider changes to its constitution. The last time it met the commission proposed important improvements to the state constitution's education clause, specifically adding that the public school system should be "high quality." This language situated Florida's education clause as one of the most forceful in the country (even thought its courts have not seen fit to enforce the clause). This education clause, however, caused some problems for school choice advocates. In Bush v. Holmes in 2006, the state supreme court struck down the state's school voucher program, finding that the education clause prohibited the state from using public education dollars to fund private vouchers.
Now, the commission is proposing constitutional changes to eliminate that limitation. The old constitutional mandates are left in place, but the commission would add one important sentence: "Nothing herein may be construed to limit the legislature from making provision for other educational services that benefit the children and families of this state that are in addition to the system of free public schools."
This precise language is interesting and somewhat of an odd fit. Appreciating the oddness requires a little background on why Florida and a few other courts have struck down voucher programs. The reason is not that they or the constitutional language are anti-voucher. The reason is that the constitutions are so pro public education. As of today, all fifty state constitutions protect education. The specifics of each differ, but the general thrust is the same in all of them: the state has an absolute duty to provide an equal and/or adequate system of public education. In this respect, education holds a unique place in state constitutions. It is the singular thing that states must do. Unlike roads, health care, parks, and jobs programs, they have no choice in the matter with education. And as such, they cannot put other policy agendas before public education, nor can the rob Peter (with Peter being education) to pay Paul. There are, of course, caveats, but this general idea is rule through which all education conflicts must run. Thus, the Florida Supreme Court held that a voucher program that siphoned public education dollars out of the public education fund was unconstitutional.
At first blush, the Florida commission's new proposal would seemingly allow Florida to do what its Supreme Court previously indicated it could not. If so, it is a dangerous provision indeed. The public education system might loose its first order status. The state could enact any additional education systems it saw fit, so long as they were in addition to rather than in place of public education. Recent events in Florida would suggest that this is exactly what the power brokers in Florida want. But is this what the people of Florida want? I doubt it. They have a public education clause in their constitution for a reason.
A more technical read of this provision, however, might render it pointless unless the state of education in Florida changes substantially in the coming years. This technical reading appreciates that there is a relationship between the "addition" and "the system of free public schools." Logically speaking, an addition can only occur when the system of public education schools is in place. The question then becomes whether the appropriate system is in place. Not just any old system will do.
The constitution still provides that funding the system is "a paramount duty of the state." And the system has to be "uniform, efficient, safe, secure, and high quality."
It stands to reason that if the state is not providing sufficient funds for an efficient and high quality education, this new proposed constitutional language would not allow the state to fund voucher programs. It is not until the state meets its paramount public education duty that it can do something in addition to it.
Current data strongly suggests Florida is not anywhere close to meeting its obligation. Its funding levels are 41st in the nation and its funding mechanisms are regressive--meaning it gives more money to the students and districts who need it the least. Districts serving larger shares of low-income students actually have less money per pupil that their sister districts. And as I detail in Preferencing Choice (forthcoming Cornell Law Review), Florida has been running choice programs at the expense of the public education system for several years now. Its charter and neo-voucher tax credit system have rapidly expanded each of the last several years while the commitment to public education dwindles. At the statewide level, one might dismiss the trend as minor, but these programs do not really operate on a statewide level. They are heavily concentrated in a handful of districts like Broward County. These districts were already struggling and now the effects of choice are heavy concentrated there. The practical result is often to create new constitutional deprivations in educational opportunity, not cure old ones.
If Florida is sincerely interested in updating its constitution, it should save school choice for another day. Its prior commission specifically refrained from addressing the question of whether courts can enforce the education clause against the state legislature. It was, in short, agnostic. This agnosticism, however, has been treated as a negative and courts have refused to require the state to live up to its constitutional obligations. What is the point of a constitution if the state can breach it at will? Recognizing the problem, most state courts have enforced their education clauses. The best thing this commission could do is make clear that Florida's constitution gets with the times. It is twenty years overdue.