Monday, March 11, 2019
Ensuring Racial Equality – from Classrooms to Bathrooms – Depends on Federal Regulations Trump Wants to Roll Back
When the government runs or funds programs, those programs are obligated to ensure that everyone gets equal access and treatment. This duty comes from something called “disparate impact regulations.” These regulations require the programs to pay careful attention to whether their policies cause racial disparities.
From my perspective as a scholar of discrimination law, abandoning these regulations would be a major departure from the federal government’s mission since the 1960s of ensuring racial equality.
Friday, March 8, 2019
For the second time this school year, Betsy DeVos got a judicial smack down for attempting to eliminate regulations from the prior administration. In September, it was over protections for student loan borrowers. Yesterday, it was over racial disparities in special education.
In both cases, DeVos’s justifications for reversing Obama-era regulations amounted to little more than "I'm in power now and I don’t like Obama’s regulations.” The dressed up justification has been that the Department needs to pause the regulations so that it can “study” the issues more.
The problem, the federal courts have told the Department, is that it cannot just scrap regulations because it doesn’t like them, particularly when those regulations have already gone through a rigorous process of notice, comment, study, and justification. Reversing existing regulations requires a showing that the existing regulations are wrong. That requires evidence and logic—something that does not seem to interest the current administration.
Wednesday, September 26, 2018
The Far Broader Implications of the Court Opinion That Struck Down DeVos's Approach to Student Loans
In case you missed it, Betsy DeVos recently got a judicial smack down in the battle over student protections in loan repayment. I won't rehash the merits of the competing student loan policies here. You can find that elsewhere. But it is worth emphasizing exactly why DeVos lost and its implications for other administrative actions. Those two things are extremely important in thinking about the future of the broader landscape of education policy.
The short story is that when an agency seeks to reverse or block an existing or pending regulation, it needs to either go through the normal process of passing new regulations (which takes a while) or, in the case of stopping pending regulations, offer a legitimate explanation. DeVos's action on student loan regulations failed because the Department did not explain itself in any rational way. Rather, it seemed to use a lawsuit by a group of colleges as an excuse to simply do what it wanted to do--exercise raw power in favor of a particular policy agenda. That, the court demonstrated, you cannot do.
Second, the court offered an interesting analysis of how a 180 degree reversal of policy requires a little something extra. The court's analysis was compelling. It is fine for an agency to enforce the law within the bounds of its discretion. But when it completely reverses a policy position, it begs the question of whether one of the two agency interpretation is simply wrong. The public deserves a reasoned explanation of why the prior one was wrong. Again, it is not enough to simply say: "I'm in power now." This analysis, in particular, strikes me as being important to other policy fights to come, particularly since this Administration says it wants to entirely remake or end the federal role in education.
Okay, so enough on the commentary, what exactly did the court say? To appreciate the conversation, a little background is in order.
Thursday, August 23, 2018
DeVos Effort to Use Federal Education Dollars for Guns Shows Just How Insignificant Her Administration Is
So Betsy DeVos wants to spend federal education dollars on guns. Hats off to Erica Green at the New York Times for a detailed explanation of how federal education dollars can and can’t be spent and the focus of a relatively obscure piece of the federal education funding pie. She interestingly points out something I did not know—that most federal education grants specifically prohibit schools from spending them on guns.
But there is a larger point to be made here and it is not about federal funding restrictions on gun purchases or the wisdom of guns in school itself. The larger point is about how small this administration has become.
Think about the big issues of the past year: education protests, long term trends in school funding and teacher salaries, state accountability plans under the Every Student Succeeds Act, school segregation, affirmative action, declarations that state school systems are constitutionally inadequate, and DeVos’s favorite—school choice. School safety, of course, was among these issues. That debate, however, was about what strategies could make schools safer. More counselors? More school resource officers? Armed teachers?
There was talk of more funding to cover the substantial expenses of additional counselors and school resource officers, and more services for students. But I don’t recall schools saying “we really want to arm our teachers but just can’t afford it.”
That is what makes DeVos’s musings so remarkable. Regardless of the wisdom of arming teachers, this particular policy item is an enormous overreach of power on an insignificant matter. She could be working on finding solutions to things that students in poor schools really need, but instead she is devising strategies to get around Congressional restrictions so she can reallocate federal dollars in ways that no serious and substantial constituency cares about. Why? For a headline. To please constituents who only care about headlines and narrative. To be able to say she did something, when really she did nothing.
I would venture to guess that even if DeVos manages to sneak this through, it won’t amount to a hill of beans. From what I know of the poor schools that receive these federal dollars that she would free up, they need new books, more teachers, better qualified teachers, more well-maintained facilities, and technology. It is hard for me to imagine that more than an insignificant spattering of them will say, “you know, we were going to hire a part-time reading specialist this year or our first new computers in eight years, but now that Betsy DeVos has freed us, let’s buy guns instead.”
And the fact that this is what DeVos is spending her time on shows just how small and insignificant this administration is to the quality of educational opportunity in the country.
--image by Gage Skidmore
Wednesday, May 16, 2018
When Betsy DeVos first sought the Secretary’s office at the Department of Education, I was disappointed, but not all that worried. The Every Student Succeeds Act (ESSA) had already gutted most of the Department’s power. Only the most skilled and knowledgeable education leader could make a discernible difference one way or the other.
DeVos simply wasn’t up to the task. She showed herself to be ignorant and relatively disinterested in things that mattered. For her, the job would be more akin to a disappointing vacation of a niave traveler.
For the rest of us, we need not worry. How much damage can naive travelers do? Yes, they may stand in the middle of the sidewalk. Yes, they may be rude to service workers. But in the end, they are, at worst, annoyances. They don’t have any meaningful effect on city policy.
DeVos, however, is showing she isn’t content to fit this mold and I may have been wrong all along. She may be ignorant and full of bad ideas, but she is not naive. Nor is she content to serve out her role as an irrelevant itinerant. She is deadset on wreaking havoc and using every ounce of power she has to do it.
While I have long explained that the Secretary of Education now lacks the power to tell states how to comply with the Every Student Succeeds Act, DeVos doesn’t care. She has found some “play in the joints” of the Act and is leveraging it for everything its worth. And in doing so, she is doing the exact opposite of what she promised.
When auditioning for the job, she said: “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.”
Wednesday, May 2, 2018
Betsy DeVos sat down with the state teachers of the year on Monday. Based on Rebecca Klein's report at Huffington Post, several of them gave her a piece of their mind. One of the most poignant was from a self-described Trump voter from Oklahoma. He said school choice programs like charter schools and vouchers are draining money from the public schools. He says that DeVos responded that students enroll in those programs to get out of low-performing public schools. Then the teacher laid it on the line, saying choice programs are “creating the ‘bad’ schools by taking all the kids that can afford to get out and leaving the kids who can’t behind.”
This line of debate and reasoning has played out a thousand times, never with any satisfying resolution.
A public school advocate critiques choice programs. A choice advocate defends charters and vouchers by critiquing public schools. The latter is a classic “ends justify the means” claim. They implicitly concede that even if choice is hurting public schools, the harm is justifiable because the public schools are so bad. This rarely gets directly challenged. Instead the debate moves to the emotional level, particularly for families with children "trapped" in “bad” schools. It would seem unjust, if not imprudent in public discourse, to suggest they remain "trapped."
The pro-choice argument, however, sets up both a false dilemma and false attribution that needs to be called out. The false dilemma is to assume the only options are to stay in a “bad” public school or depart through a charter or voucher. Of course, the other option is to improve the public school itself. The Massachusetts Supreme Court pretty clearly cut through this faulty logic in its recent decision rejecting a challenge to the state’s charter school cap.
The false attribution is to assign causation to “bad” schools. These schools do not exist in a vacuum. They don’t just create themselves. They are creatures of the state. The state funds or underfunds them. Staffs or understaffs them. Segregates or integrates them. Supports their success or doesn’t. If, in fact, a school is “bad,” it is because of the policies that states have chosen to pursue in them. So the cause of parents desire to leave the public schools is not actually the public schools themselves, it is the state's actions. And it is, ironically, this exact same state actor that choice advocates let off the hook when they ask for school choice rather than school improvement.
This lead to yet another logical flaw—false hope. They falsely trust the state actor who is depriving children of equal educational opportunities to fix the problem by absolving itself of responsibility. The actual facts of how states are running their traditional public schools versus their charter schools and vouchers reveals that many states’ driving motivation has been to undermine public education not fix it. And state leaders are willing to do anything necessary behind the scenes to pursue their own partisan agenda.
Reminds me of the line from Usual Suspects: “The greatest trick the devil ever pulled was convincing the world he didn't exist.”
--on Twitter @DerekWBlack
Tuesday, March 6, 2018
Is DeVos Really Handing Out "Tough Love" or Finally Realizing How Little Power She Has? She's Confusing the Rest of Us
A year into her job, Betsy DeVos is finally getting some perspective on the Every Student Succeeds Act and her job. The problem is that is comes about a year too late and she does not like what she is discovering. And no amount of spin can fix it. She did make headlines with her supposed "tough love" talk, but when examined closely, it is mostly bluster and confusing.
Before get into that, let's back up a bit to see how far she has come. When she was riding high shortly after her nomination, I wrote that if she really understood the job she wouldn't want it. The job she said she was coming to DC to do had already been done. Well, its hard to admit ignorance and even harder to turn down a job as Secretary of Education, so she pressed on.
In December 2016, she said: “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.” What she didn't seem to know was that Congress had already gutted the Common Core and shifted enormous control back to states and districts. For instance, the Every Student Succeeds Act bars the Department of Education from requiring or even suggesting that a state use the Common Core. The Act is so anti-Common Core and anti-federal standards that DeVos and her staffers would get in trouble if they even brought the subject up. The state accountability requirements, likewise, leave little room for the Secretary to object. States have to include a few things like tests scores and graduation rates, but the scores they use, the amount of weight they assign those scores and the limitless number of other factors they consider is up to the states.
DeVos does not like what states produced under this system and now she is claiming to hand out "tough love." A better description is talking tough because no one is listening. Or making up boogeymen to see if anyone is scared.
Yesterday in her speech to State Education Chiefs, she said:
Just because a plan complies with the law doesn't mean it does what's best for students. Whatever the reasons, I see too many plans that only meet the bare minimum required by the law. Sure, they may pass muster around conference tables in Washington, but the bare minimum won't pass muster around kitchen tables. . . . Some of your own governors–"Republicans and Democrats -- didn't like your plans either and refused to sign off on them. … [One] warned his state's superintendent that ‘adding layers of bureaucratic paperwork does little to help low-performing schools." … [A]nother governor lamented that his state's plan ‘stymies any attempt to hold schools accountable for student performance and includes provisions aimed at preserving the status quo in failing schools. . . .
For too long, many of you have operated – and in many cases, been forced to operate -- as if your work was only accountable to folks in my office. As if all that mattered in education was a sign-off from Washington… My predecessors, from both parties, often fell into the trap of a top-down approach.
Let's put this into perspective and break it down. First, ESSA returned discretion to states and said the bar for federal accountability was very low. States, acting rationally, exercised that discretion and did as little as possible to comply with the law. This doesn't mean they lowered the quality of education, but they stopped worrying about Washington.
Second, this is exactly what DeVos claimed she wanted before she took (and understood) the job as Secretary.
Third, DeVos is now realizing she doesn't like her job and how little power she has. She cannot reject these state plans. She can't demand higher expectations, more equity, or more adequacy any more than she can demand more choice. So she signed off on them just like the law dictates she must.
Fourth, you know who does have plenty of power? The states. She said it herself: "some of your own governors . . . refused to sign off on" the plans. So ESSA worked just how it was intended. States make the decisions and the Secretary will rubber stamp them.
Fifth, the truth is that DeVos probably doesn't like being a powerless Secretary any more than any of those who preceded her. So she has to try something and she is doing the only things she can. She is complaining and begging states to do better. She is even trying to find a boogeyman to motivate them, since she lacks the power herself.
But I can't figure out who the boogeyman is: is it accountability or non-accountability? On the one hand, she says the problem is that states have too long been accountable to the feds. That was a problem. Now that they aren't accountable anymore, she says that is problem too. It is a problem because they are not taking their freedom far enough. Wait, maybe they did exactly what they wanted to do--as little as possible--and now they have the Secretary of Education telling them to do more--or rather begging them. Seems a little contradictory and patronizing.
Saturday, February 3, 2018
California's Every Student Succeeds Plan Fails an Incredibly Low Standard: Are We Missing a Subversive Plot?
In full disclosure, I have not read California's state plan for complying with the Every Student Succeeds Act (ESSA). But if we assume that the Department of Education and the peer reviewers of the plan are minimally competent and fair, California's plan is shocking. It went out of its way to not comply with ESSA. This is no small task. The Department is now rejecting California's plan.
Putting aside the merits of the ESSA in general, it asks very little of the states--far less than No Child Left Behind asked for the prior decade and a half. As I explain in Abandoning the Federal Role in Education: The Every Student Succeeds Act
The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. . . . Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.
Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.
States were free to devise almost any plan they could conceive, as long as they came up with something--as long as they filled in the blanks. Pick a word, any word.
The problem with California's plan is that it appears to not have filled in some important blanks. In particular, it did not set achievement goals. Those goals could have been high or low. California apparently chose neither. As I was railing on the ESSA and how much authority it devolved to the states in Abandoning the Federal Role, I could not imagine a state would go this far. Instead, I thought states would use the flexibility to manipulate and cover up inequality. A few of the early ESSA plans did just that. And the law allows it.
For some reason, California does not appear interested in manipulation.
Almost all of the Department's comments go to the issue of picking achievement and graduation targets. It makes no suggestion of what those targets should be because, of course, California can choose. I found this comment most telling:
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.
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.
Tuesday, October 17, 2017
Michael Heise's forthcoming article in Columbia Law Review, From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism, is available on SSRN. He offers this abstract:
When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a federalism standpoint, the Every Student Succeeds Act may have reset education federalism boundaries to favor states, far exceeding their position prior to 2001.
While federal elementary and secondary education reform efforts since 2001 may intrigue legal scholars, a focus on educational federalism risks obscuring an even more fundamental development in educational policymaking power: its migration from governments to families, from regulation to markets. Amid a multidecade squabble between federal and state lawmakers over education policy authority, efforts to harness individual autonomy and market forces in the service of increasing children’s educational opportunity and equity have grown. Persistent demands for and increased availability of school voucher programs, charter schools, tax credits programs, and home schooling demonstrate families’ desire for greater agency over decisions about their children’s education. Parents’ calls for greater control over critical decisions concerning their children’s education and schooling options may eclipse state and federal lawmakers’ legislative squabbles over educational federalism.
Michael and I agree on a lot in this article. The title of my article, Abandoning the Federal Role in Education: The Every Student Succeeds Act, largely speaks for itself. That article traces the federal role in education from the 1960s until today, arguing that the Every Student Succeeds Act entirely reverses the expansion of the federal role in education, which had been building for decades.
Heise's article, however, goes beyond mine in certain respects, focusing on a factor absent from my analysis: the role of individual autonomy. In other words, from Heise's perspective, it is not just a fight between the feds and the states. It is a fight over family decisionmaking as well. Thus, the return of power to states is not just to serve the interests of state, but that of families.
Interestingly, more recent events add new wrinkles that may require updating of both Heise and my thoughts. Recent surveys and reports indicate that some family autonomy policies are unpopular, at least to the majority. The shift is abrupt in some instances. A new survey shows that charter support has plummeted by 12 percent in the last year. Other reports indicate strong opposition to the current administration's push for more vouchers and charters.
Disaggregating these shifts is difficult. It could be that the public dislikes the messenger but not necessarily the message. Or it may be that the public supports the expansion of choice, but not when it is perceived as being at the expense of traditional public education. The latter, however, presents an implementation challenge. To what extent can private choice expand without harming public education? Minimal to moderate expansions may pose little risk, but a tipping point likely exists, as I detail in a forthcoming article titled, Preferencing Private Choice.
Thursday, September 14, 2017
When State Discretion Turns Against State Superintendents of Education; Another Flaw of the Every Student Succeeds Act
In Abandoning the Federal Role in Education: The Every Student Succeeds Act, I detail the numerous ways in which the Act eliminates federal leadership in education and leaves states to implement almost any sort of accountability system they can dream up. The shift in power is so significant that Act does not, as a practical matter, demand accountable. Instead, it demands the appearance of accountability. This, I argue, allows states to manipulate the system.
The article did not consider the possibility of in-fighting within state bureaucracies. The paper, for the most part, speaks of the "state" as a monolithic unit. It focuses on the worst case scenario in which the legislature, state department of education, and powerful school districts are all in favor of an accountability system that covers up their failures. Not all states, however, will fit this framework. Recent events in Alabama suggest that, once one moves beyond that framework, curious disagreements can happen at the state level.
Edweek reports that
[Michael] Sentance was hired by the [Alabama state] board in August of last year to replace longtime Superintendent Tommy Bice who retired after a years-long battle over the expansion of charter schools and a dispute between the state and local officials over how to rank the state's districts and schools.
. . . .
Sentance quickly ran into political turmoil as he traversed the mostly rural, economically deprived, ethnically diverse and politically conservative state to gather thoughts on what the components of the state's ESSA plan should be. Meanwhile, the state's department began to take over Montgomery Public Schools, one of the largest districts in the state, a process Sentance said would bring stability, autonomy and school choice, but which parents and school officials called unfair.
He sided with district superintendents in a debate over whether the state should keep or get rid of its A-F letter grades of schools' performance.
But in an evaluation sprung on him by the state board last month, district superintendents and board members took issue with his leadership style and policymaking.
"I do not take this situation lightly, and as President of the State Board of Education, I will ask the Board to accept his resignation," Ivey said in a statement. "Over the past two years, Alabama has experienced far too many changes in state government. As with previous changes in leadership positions, we will use the pending resignation of the state superintendent as an opportunity to move forward and begin a new chapter in public education.
The article also indicates that the national average tenure for state superintendents of education is barely two years. As a result, there is no continuity between the development, submission, and implementation of ESSA plans.
The lesson I take from this story is the possibility that the ESSA may have made some state superintendents' jobs a lot harder. Under NCLB, there was far less flexibility. Beneath the surface, a state superintendent was able to game the state's results, but the metrics and methods of the accountability system were set by federal law. Putting aside the question of whether NCLB was a normatively good law, it set clear parameters for state superintendents. They knew what their job was and had legal cover if legislators or other state political actors criticized them.
The ESSA, in contrast, offers states and their superintendents a universe of options. It is almost entirely up to them how they approach school improvement, ranking, accountability, and quality. As a result, there is very little cover for superintendents who might want to do what they think is best for schools and students, but in the process might make the state look "bad." If a state board or state legislature wants to manipulate its accountability system and a state superintendent does not, the superintendent can easily find herself as the odd person out.
If these respects, the ESSA accomplishes two distinct and problematic devolutions of power. First, it cedes power to states, which I demonstrate is highly problematic here. Second, even if state power is not inherently problematic, the ESSA incentivizes power struggles and instability at the state level.
The first was the specific intent of the Act. The second is likely an unintended negative consequence.
Monday, August 7, 2017
States' New Plans for Complying with the Every Student Succeeds Act Confirms Just How Little the Law Expects of States
Last fall, in Abandoning the Federal Role in Education, I wrote that the Every Student Succeeds Act "moves education in a direction that was unthinkable just a few short years ago: no definite equity provisions, no demands for specific student achievement, and no enforcement mechanism to prompt states to consistently pursue equity or achievement. The ESSA reverses the federal role in education and returns nearly full discretion to the states." As a result, I predicted the Act would lead to vague state plans, obfuscation, widening inequality, and downright confusion.
Thus far, most of these predictions have come true. Earlier this year, Secretary DeVos, expecting that Congress would repeal the Obama's administrations ESSA regulations, changed the deadline for states to submit their plans and suggested they would have flexibility in their plans. The problem is that states actually need federal leadership. As of today, less than a third of states have their ESSA compliance plans in. And those that have their plans in have done little to dispel my concerns. As a new report by Bellwether Education Partners and the Collaborative for Student Success reveals, the sixteen state plans submitted thus far do not ensure that all students' performance is counted in state accountability plans.
While there were promising elements, our peer reviewers found that most state plans failed to provide significant details about how their systems would work in practice. For example:
• How will schools be held accountable for the performance of all subgroups of students?
• How will schools be identified for improvement?
• What steps will schools identified for improvement need to take, and how will they demonstrate they’ve made sufficient progress to exit improvement status?
A new NPR story points out that this "should raise some red flags concerning kids with disabilities, English language learners and those from low-income families." States have thrown so many measures of school quality into their metrics that the public is unlikely to know what school quality actually means or what schools are required to do to address it.
In the end, these plans reveal the central flaw in the ESSA: its success rests on the extent to which states are willing to engage in good faith efforts to provide equal and adequate opportunities. As NPR writes, parents must simply trust their states. Unfortunately, recent history reveals there is almost no reason to place this faith in states. They have slashed public education budgets, manipulated test scores, and watched school segregation increase.
This is not to say that federal reform has been well-crafted. It has not. But the solution is better federal policy, not giving up.
Read a summary of the ESSA, its flaws, and proposed solutions here.
Wednesday, August 2, 2017
Nora Gordon and Eloise Pasachoff penned a new essay in Edweek. They implore the public to go back to the basics and engage the notice and comment process that dictates the development of federal policy. For all the objectionable things Secretary DeVos has done or promoted since taking the job, the public push back has primarily been in newspapers. While newspapers provide a means for political accountability, the administration is completely free to ignore them. What the administration must, however, address are the comments that individuals and groups make as part of the formal notice and comment period surrounding changes in federal regulations and guidance.
Gordon and Pasachoff remind us that in February, "President Donald Trump called on federal agencies to review their regulations and identify which to cut." DeVos is now digging into that work and has "issued a notice in the Federal Register asking the public to identify 'unduly costly or unnecessarily burdensome' regulations and guidance documents by submitting comments to the Education Department by Aug. 21." This process, however, can be used to do more than target those policies that need to be eliminated, it can be used to focus on things that must be kept (because others will certainly be calling for elimination).
Not only do the comments that the public makes require some response (if if only internal to the Department), they require a "cost-benefit analysis to make sure that rules are for the common good."
Gordon and Pasachoff offer these directions on engaging the process:
The more specific you can make your comments, the better. You can find the Education Department’s existing regulations at Title 34 of the electronic version of the Code of Federal Regulations, and the significant guidance documents are also available online. Explain what you like, referring to specific language. Offer language on desired changes, citing provisions by number. Alternative policy solutions are welcome. You can submit comments on both regulations and guidance online (at docket number ED-2017-OS-0074-0001) by the strict deadline of Aug. 21.
Read the full essay here.
Wednesday, May 24, 2017
The Trump administration has announced its plan to transform education funding as we know it. The new budget proposal takes aim at a host of elementary, secondary and higher education programs that serve needy students, redirecting those funds toward K-12 school choice in the form of vouchers, tax credits and charter schools.
Public schools that enroll a large percentage of low-income students stand to lose significant chunks of their budget, as well as a number of specialized federal programs for their students. At the same time, the Trump budget will incentivize families to leave not only these schools, but public schools in general.
As a scholar of education law and policy, I note that my recent research on state voucher and charter programs shows that the loss of both money and core constituents proposed by this new budget could throw public education into a downward spiral.
Tuesday, April 18, 2017
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.”
Wednesday, April 5, 2017
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.
Thursday, March 30, 2017
The Washington Post reports that the Department of Education has killed funding for one of its few voluntary integration programs. The rationale is pretty flimsy. According to the Post, an official said it was not a good use of money because the funds were for planning rather than implementation. What? Doesn't planning often lead to implementation? Aren't planning grants predicated on promises that districts will implement the plan? I hope this is just a poor excuse and not a guiding principle for future policy: act first, plan later. But if this is just a poor excuse, it begs the question of why the Department is killing this program. Is it anti-integration?
In a letter earlier this month, the National Coalition on School Diversity urged DeVos to retain the program. In the letter, it wrote:
[W]e write to express our support for the Opening Doors, Expanding Opportunities program (“Opening Doors”), and urge you to make the awards under this program as expeditiously as possible. As evidenced by the large number of districts from all over the country that expressed their intent to apply for the program, there is tremendous interest in this program and what it seeks to do—namely to use school choice to achieve diversity and increase equity in our nation’s public schools. This program gives parents more options, and will help to expand innovation and educational opportunity.
We were excited to hear your recent comments regarding the importance of diversity in American schools. During the Magnet Schools of America 2017 National Policy Training Conference, you eloquently spoke of the “the vital role [magnet schools] played to improve the lives of … students, combat segregation, and provide a quality option to parents and kids alike.” Opening Doors seeks to advance the same goal: combating segregation in our nation’s public schools, for the benefit of our children and future generations. Furthermore, during your confirmation process, you wrote in response to a question by Senator Murray (D-WA), stating: “I believe government policies should not be established to intentionally create racial isolation, especially in our elementary and secondary schools.”
Opening Doors will help combat the rising resegregation we are seeing take hold in many public schools across the country. As the Government Accountability Office noted last year, while schools serving primarily Black and/or Hispanic students represented only 16 percent of all K-12 public schools, they accounted for the majority (61 percent) of high-poverty schools in 2013-14. Diversity is beneficial to all students, regardless of socioeconomic background or race. As you likely know, research shows that students attending socioeconomically and racially diverse schools have better test scores and higher college attendance rates than peers in more economically and racially segregated settings.
For these reasons, we urge you to award the Opening Doors grants to qualified applicants as soon as possible. Doing so will provide school districts with locally-developed tools that will foster diversity, which will benefit all students and our society as a whole.
Thursday, March 16, 2017
President Trump has released his blueprint for the budget. It includes a number of cuts and program eliminations across various sectors. He would not spare the Department of Education. Here is the USA Today's summary of the cuts:
Supporting Effective Instruction State Grants program ($2.4 billion): The White House says the program is "poorly targeted and spread thinly across thousands of districts with scant evidence of impact."
21st Century Community Learning Centers program ($1.2 billion): The formula grants to states support before- and after-school and summer programs. "The programs lacks strong evidence of meeting its objectives, such as improving student achievement," the budget says.
Federal Supplemental Educational Opportunity Grant program ($732 million): This financial aid program, known as SEOG, help give up to $4,000 a year to college students based on financial need. The Trump administration says it's a "less well-targeted" program than Pell Grants.
Striving Readers Comprehensive Literacy Program ($190 million): The grants are targeted toward students with disabilities or limited English proficiency.
Teacher Quality Partnership ($43 million): A teacher training and recruitment grant program.
Impact Aid Support Payments for Federal Property ($67 million): Obama also proposed the elimination of this program, which reimburses schools for lost tax revenue from tax-exempt federal properties in their districts.
International Education programs ($7 million): This line item funds a variety of exchange programs, migrant schools and special education services abroad.
My knowledge is thin on most of these programs, but the biggest cuts strike me as the most curious. Funding for before and after school programs may or may not be improving student achievement. That, however, should be beside the point if those programs provide a safe place and child care for needy students. Cutting this out only places more pressure on the child care issues that Ivanka Trump has been raising. Likewise, the Federal Supplemental Educational Opportunity Grant helps needy students pay for college. Trump may be correct that it is not as targeted as it could be, but this begs the question of how it might be better targeted, not whether the funding should be cut.
Finally, the Impact Aid Support seems like a particularly odd target. Those funds have a significant impact in communities that serve our military families. Those families, for a variety of reasons, do not pay the same taxes as others in those communities. No one has any qualms with giving our service members those benefits. The downside, however, is that the schools their children attend do not have the same tax base as other schools with fewer military members. To offset this oddity, the federal government makes a direct payment bumps to those schools. This cut is a hard one to figure out.