Monday, October 8, 2018
In my last article, The Constitutional Compromise to Guarantee Education, I examined the period immediately leading up to and following the Fourteenth Amendment and found that the ratification of the 14th Amendment and southern state's education clauses in the constitutions were inextricably intertwined. Quite simply, rewriting their constitutions and providing for public education was a condition of readmission to the Union, as was the ratification of the 14th Amendment. In other words, without constitutional guarantees of education, southern states never reenter the Union. And without southern votes for the 14th Amendment, the amendment never becomes part of the constitution. Thus, I argue that one cannot understand the rights of state citizenship that the 14th Amendment secured, nor the meaning of a republican form of government, without examining those state constitutions.
Thursday, October 4, 2018
Connecticut Federal District Court Rejects a Fundamental Right to Education, But Offers Interesting Analysis for Future Claims
This summer, a federal district court decision in Michigan dealing with the fundamental right to education and literacy grabbed national news for more than a week. Onlookers were seemingly shocked at how bad educational opportunities are in places like Detroit and that a federal district court would hold that there is no right to literacy.
A somewhat related case in Connecticut has gone almost entirely unnoticed. Last week, a federal judge reached almost the same exact conclusions as the judge in Michigan. The Connecticut judge held there was no federal fundamental right to education. The Supreme Court had foreclosed such a right in San Antonio v. Rodriguez, reasoned the judge. But plaintiffs had argued that San Antonio had left open the possibility of a right to a minimally adequate education. The district court responded:
In Rodriguez, the Supreme Court did not leave the door open for federal courts to recognize a fundamental right to a minimally adequate education. To the contrary, the Court rejected the idea of a fundamental right to education, without parsing how effective or adequate the education might be, because such a right is not guaranteed in the Constitution. Moreover, in Plyler, the Court cited Rodriguez’s holding for that proposition.
On that score, I think the court is wrong and conflating the distinction between a fundamental right to education and a fundamental right to a minimally adequate education. A minimally adequate education raises a host of different questions and rationales. The district court did not address them. Scholars, however, have, and no Supreme Court cases has rejected those possibilities. To the contrary, it has left them open. My recent work, in painstaking detail, lays out the historical basis for recognizing such a right or something similar to it. But I warned that if the best argument plaintiffs had in these cases was "Rodriguez leaves open the issue," they would be in trouble. They need an affirmative explanation for courts to go out on a limb. I believe I offer that affirmative explanation. But that is another story.
Tuesday, October 2, 2018
After years of stalled progress, underway in North Carolina aimed at moving the State to fulfill its constitutional duty to adequately fund public education. In response to a joint request by the parties in the landmark Leandro v. State litigation, Superior Court Judge David Lee has ordered WestEd, an independent consultant, to conduct an in-depth study and make recommendations to remedy the constitutional violations found in the Leandro case through the provision of constitutionally adequate resources for all North Carolina public schools.
In 1994, parents, students and school districts in low-wealth rural counties filed Leandro v. State, alleging students in these counties were being denied their right to an adequate education under the North Carolina constitution. In 1997, the North Carolina Supreme Court permitted the case to proceed to trial, declaring that all students in the state are entitled to "the opportunity to receive a sound basic education." After trial, the lower court found in 2002 a violation of the students' right to a sound basic education and ordered the State to remedy the violation by providing:
Monday, October 1, 2018
A dispute over the pledge of allegiance in a Texas High School is shaping up to be very interesting, mainly because of the strange position the state's Attorney General is taking in support of the school district. A slip opinion from the federal district court offers this summary of the facts:
India Landry is an African American student who attended Windfern High School (“Windfern”) in the Cypress Fairbanks Independent School District (“Cy Fair ISD”). . . . Windfern is a “Campus of Choice,” which Cy Fair ISD students may attend upon application and the recommendation of the home campus assistant principal and counselor. At other schools in Cy Fair ISD, India had sat for the Pledge of Allegiance (the “Pledge”) “around 200 times.”
During the spring of 2017, India’s English teacher, Jamie Johnson, told her to leave the classroom on five separate occasions because she sat for the Pledge. Also that spring, India’s Street Law teacher, Mary James, told India that it was disrespectful to this country to sit for the Pledge. The day after Ms. James admonished India for sitting for the Pledge, Ms. James sent India and another African American student to Principal Martha Strother’s office because they were sitting for the Pledge. Principal Strother is the designated authority to handle student behavior at Windfern. Principal Strother told the two students they had to stand for the Pledge.
On October 2, 2017, India was in Principal Strother’s office when the Pledge was recited. India remained seated. In response, Principal Strother “immediately expelled India from school” by saying, “Well you’re kicked outta here.” Assistant Principal Penny Irwin-Fitt called India’s mother, Kizzy Landry, and gave her five minutes to pick up India or the police would escort India from school. While India waited, administrators made hostile remarks to her. Ms. Fitt said India would stand for the Pledge like the other African American student in her class. The secretary, Karen Walters, said, “This is not the NFL.”
. . . .
On October 5, 2017, India and Kizzy Landry met with Principal Strother. Principal Strother stated that sitting was disrespectful and would not be allowed, and that India must stand for the Pledge to be permitted to return to Windfern. Principal Strother suggested that, instead of sitting, India could write about justice and African Americans being killed.
. . . .
Regarding the Pledge, the Cy Fair ISD handbook states: "Pledge of Allegiance and a Minute of Silence Texas law requires (Texas Education Law Section 25.082) students to recite the Pledge of Allegiance to the United States flag and the Pledge of Allegiance to the Texas flag each day. Parents may submit a written request to the principal to excuse their child from reciting a pledge."
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.
Monday, September 24, 2018
A month ago, I tried to show how school quality and school discipline are intertwined. I talked about my prior research, put up a fancy color-coded map of school funding and achievement gaps from Bruce Baker and another fancy color-coded map of school suspensions by the ACLU and UCLA Civil Rights project. A rough mashing together of these two maps showed that the funding and achievement gaps had substantial overlap with school suspensions. But of course, it would take a much more sophisticated analysis to make any firm conclusions. And the average reader or parent might very well start to feel their eyes glaze over with all the numbers if we did that.
For a lot of people and policymakers, simple examples rather than sophisticated data are better. That's what makes this new story out of Nashville Public Schools so helpful (and disheartening). The Nashville Public Schools have been operating under a grant from the state that funds trauma informed services in 10 of the district's schools. That grant is up and local advocates are worried about what comes next. They are asking the school district to replace those funds out of their own budget and increase them.
The Tennessean reports that "[t]he increased support for students has helped almost every school see a reduction in office discipline referrals, helping keep kids in the classroom." The first school to implement the trauma informed practices saw "the most promising results, with a 97-percent reduction in discipline referrals." All but one of the other schools also saw impressive reductions:
- Fall-Hamilton Elementary — 97 percent reduction in year one and a 53 percent reduction in year two over the previous year.
- Eakin Elementary — 73 percent reduction.
- Waverly Belmont Elementary — 29 percent reduction.
- Napier Elementary — 15 percent reduction.
- Hermitage Elementary — 60 percent reduction.
- Inglewood Elementary — One percent reduction.
- Tulip Grove Elementary — 52 percent reduction.
- Meigs Magnet Middle Prep — 37 percent reduction.
So if someone asks what money buys, it buys district and school coordinators for the program, reduced suspensions, and more time in the classroom.
And for those keeping score, it doesn't look like Tennessee schools have enough money as a general principle. The national School Funding Fairness report card shows that Tennessee ranks 43 in terms of school funding levels (even after making regional and cost based adjustments). The level of effort it exerts to fund its schools (based on available resources in the state) similar ranks in the bottom, earning it an "F" on the report card. And Bruce Baker's study of what it would cost to achieve average outcomes shows that even the wealthiest districts are underfunding education in Tennessee. The poorest districts are short about $3,500 per pupil.
But when you understand the connection between school quality and student achievement, this might very well be an investment that Nashville needs to make no matter where the money comes from.
Friday, September 21, 2018
My recent post on California's new charter school bill may have been too quick to lavish praise on the state for banning for-profit groups from managing charters. For-profit charter operators are definitely a problem. Allowing them is the equivalent of laying out a welcome sign to exploitation and legalized corruption. For-profit operators can, for instance, entering into self-serving lease and contract agreements. They can do things that would land public school officials in jail, but which are relatively common among charter school operators. Barring open corruption is a big deal, at least, symbolically. And California does have some for-profit operators that will have to change their status and practices in the future for those charters to move forward.
But whether this new ban on for-profit charter operators changes the fundamental reality of what is occurring in most charter schools in California is a different question. And, if it does not change the industry overall, the symbolic victory of this new law may make it harder to actually go after less obvious problems in the future. The public might simply think the state has cleaned the sector cleaned up and, thus, be more forgiving of other questionable charter expansions in the future.
Reducing Suspensions and Expulsions of Students with Disabilities: Linking Research, Law, Policy and Practice
This from Loyola University Chicago on its upcoming conference and call for papers:
Loyola University Chicago School of Law and School of Education will be hosting an interdisciplinary working conference entitled “Reducing Suspensions and Expulsions of Students with Disabilities: Linking Research, Law, Policy and Practice”. We seek papers that explore current knowledge on the causes of disproportionate discipline of students with disabilities; discuss evidence-supported practices to reduce disproportionality; and identify areas for legal and policy reforms. The papers will be presented at the conference which will occur June 19 to June 21, 2019 at Loyola University Chicago’s Water Tower Campus (Chicago, IL). The conference is made possible through funding from the Spencer Foundation.
This working conference will bring together a small interdisciplinary group of experts in the fields of disability and school discipline. We seek participants from multiple disciplines, including law, public policy, psychology, sociology, education and critical race theory and with research expertise from a broad range of methodologies (e.g., quantitative, qualitative and mixed methodologies).
A stipend of $400 per paper will be awarded following submission and presentation of the selected conference papers. Reasonable travel expenses for the primary author will be reimbursed upon submission of receipts. Following the conference, up to 10 authors will be invited to submit a conference paper for publication in an edited journal volume or a proposed edited book, and each will receive a $400 stipend following submission of the finalized paper and completion of the review and editing process.
Please see the document Discipline Disparities and Disability Conference 2019 for full submission requirements. Send your completed submission materials (cover page, abstract, and paper summary) to: email@example.com (CC firstname.lastname@example.org) by September 30, 2018 (midnight, CST). Please also write “Discipline Disparities 2019 Conference Proposal” in the subject line.
Please consider forwarding this email and attached submission guidelines to interested colleagues. If you have any questions, please feel free to get in touch with either Pamela Fenning (email@example.com) or Miranda Johnson (firstname.lastname@example.org).
Thursday, September 20, 2018
The Education Law Association is hosting its 64th annual conference in Cleveland this year on Nov. 7-10. It promises to be one of the best in years, covering a range of immediately pressing topics and recognizing historic anniversaries as well. This year, Mary Beth Tinker, from the seminal Tinker v. Des Moines, will deliver the keynote. In fact, the conference will host her in what is, to the week, the 50th anniversary of the oral arguments in the case. Having been with Mary Beth recently at another event, I can tell you that her presentation will be incredibly refreshing and tell both her personal story and the longer story of how student activism around various different issues--desegregation, war, and guns--has shaped the nation.
Ken Trump, a frequent witness before Congress on school safety issues, will also deliver a featured talk. And, per custom, Mark Walsh, author of Ed Week's school law blog, will offer his annual update on the Supreme Court.
Those looking for other excuses to attend can visit the Rock ‘n Roll Hall of Fame, which is just a few blocks away from the conference, or attend the various mixers and meals, where a huge chunk of the leaders in our field will be mingling about. Just glancing at the program (and surely leaving people off whom I shouldn't), I am seeing, in no particular order, Rob Garda, Julie Mead, Preston Green, Regina Umpstead, TK Daniel, Justin Bathon, William Thro, Suzanne Eckes, and Perry Zirkel. I have always found it to be an incredibly inviting group of people.
For more information on the conference and registration, see here.
Tuesday, September 18, 2018
School funding formulas are one of the most arcane and obscure elements of public policy one can imagine. The only thing that comes close in my mind is the federal tax code. The federal tax code does, however, have some rhyme or reason to it. In those years in which I make more money, I pay more taxes. In those years in which I make less, I pay less. Yes, there are tax loopholes for certain capital gains, home depreciation, and the like, but the general rule remains the same.
School funding formulas can work in the opposite direction. Just because more money comes in does not mean that schools will get more. This is due largely to the way state government offsets its contribution to public education based on how much local districts raise in property taxes. In some states, the more the local district raises, the less the state spends. This might make some modicum of sense if we assume that the district has, and has had, the total amount of money it needs to meet the needs of students. But it is a brutally harsh system if that assumption is incorrect. It is like telling a malnourished kid that he will only get half a free school lunch today because the principal noticed that one of his friends gave him a biscuit for breakfast.
Well, this would seem to be exactly what the state of Texas plans to do--take money from needy school districts because their local property tax revenues are projected to increase without ever asking whether those districts have what they really need.
So lets start with the question of whether Texas schoolkids already have the resources they need. Bruce Baker and his colleagues' recent study of how much it costs for children to achieve "average" outcomes (which is probably lower than "adequate" outcomes) found that Texas is in pretty bad shape. In many states, twenty to forty percent of school districts have enough--and maybe more than enough--for students to achieve average outcomes. This is true in even relatively poor states like South Carolina and Oklahoma. It is the students in the bottom 60 to 80% of districts who are getting shortchanged.
But in Texas, everyone seems to be short on cash. According to the study, Texas districts that spend in the top 20% are still short $348 per pupil--not a huge number but a striking one given that these are the wealthy districts. At the other end of the spectrum, the study finds that the poorest districts are short $12,682 per pupil. That is the 5th largest deficit in the country. Only Arizona, Alabama, California, and the District of Columbia have larger gaps.
A few years ago, a Texas trial court examined whether funding levels in Texas were "adequate" to meet constitutional requirements. Its conclusions all but predicted the results of the foregoing study. The evidence in that case demonstrated that Texas schools were underfunded by $3.6 billion in 2010 and, after budget cuts, would be $6.1 billion underfunded in subsequent years. Prior state supreme courts had on several occasions ordered the state to fix gross underfunding, but in a surprising turn of events in 2016, the Texas Supreme Court decided that separation of powers concerns and new concerns about whether money matters dictated that it leave school funding to the legislature. The decision is extremely hard to square with all the increasingly precise and compelling evidence regarding how much money really does matter, but that is another story.
With no check on school funding levels, what is Texas planning to do now? A new story by the Texas Tribune offers this summary:
In its preliminary budget request ahead of next year's legislative session, the Texas Education Agency projected a drop in the state's general revenue for public education by more than $3.5 billion over the next couple of years, in part because the revenue from local property taxes is expected to skyrocket. General revenue only makes up part of the state's education funding.
Texas Education Commissioner Mike Morath confirmed this projection in front of a state budget panel Wednesday morning as he laid out the state agency's budget request through 2021.
The Foundation School Program, the main way of distributing state funds to Texas public schools, includes both state general revenue and local property tax revenue. Local property values are expected to grow by about 6.8 percent each year, and existing statute requires the state to use that money first before factoring in state funding.
Of course, advocates who understand school needs are none too happy about this.
[They] have pushed state officials to put more money into public schools, instead of absorbing local tax revenue into the system.
"The state needs to kick in their fair share," said special education advocate and parent Heather Sheffield to the panel Wednesday. "Property taxpayers are fed up with the fact that the state is not funding public education."
Texas, unfortunately, is not an outlier. As emphasized during teacher protests this past spring, most states continue to fund education at a lower level in real dollar terms today than they did a decade ago, which is strange given that their tax revenues are up. And this heat map from Baker's study shows where the underfunded districts in the country are. Anything not in green or light green is underfunded. Unfortunately, there is a a lot of non-green on the map.
But what this new story on Texas does clearly reveal is how states minimize education spending and the seeming irrationality of it. This suggests another problem: states don't appear to be willing to act in good faith toward education. Putting precise funding levels aside, the mindset with which states approach education is as important as where they ultimately land, as the two questions are inextricably linked. And so I warned this spring against thinking that state concessions to teacher protests represented a major change in policy. Yes, some new funds would flow to teachers, but the mindset toward education had not changed. A handful of state leaders were showing that they remained dead-set on carrying out their agenda, regardless of the bumps in the road they confronted.
Unfortunately, it is too often only courts that can trigger a fundamental shift, but Texas's court system seems to have abandoned its students.
Wednesday, September 12, 2018
Network for Public Education Conference to Feature Groundbreaking Report on the Privatization of Education
This summer, the Network for Public Education and the Schott Foundation released on new report on the privatization of public education titled, Grading the States: A Report Card on Our Nation’s Commitment to Public Schools. The report was the one I had been waiting for. It filled in key facts that have been missing from the public debate and will help move it in a more positive direction. The Network's national conference on October 20 to 21 will feature a panel on the report. John Jackson, President of Schott, and Tanya Clay House, a long time civil rights advocate and former Obama appointee, will be on the panel along with myself. Registration for the event is still open here.
The panel promises to be an important one. As I argue in Preferencing Educational Choice: The Constitutional Limits, the analysis of charter schools and vouchers needs to be reframed. Toward that end, I identify a handful of categorical ways in which states have actually created statutory preferences for charters and vouchers in relation to traditional public schools. I explain why a statutory preference for these choice programs contradicts states’ constitutional obligations in regard to education. I also explain how, even if there is no statewide statutory preference, choice programs can have the effect of undermining the delivery of adequate and equitable education opportunities in particular locations. When they do, the programs violate state education clauses. We just have to examine the facts on a case by case basis.
My research, however, analyzes the issues from a relatively high level of abstraction, highlighting problematic examples in particular states and districts and synthesizing constitutional principles from various states. The NPE/Schott report drills down into the facts deeper than anyone before. It offers a systematic examination of charter and voucher laws in each state. As a result, it clearly shows the extent to which each state’s laws represent a decommitment to public education.
The report is the “yin” to the National Alliance for Public Charter Schools’ “yang.” Each year, the National Alliance for Public Charter Schools (NAPCS) releases a report detailing charter school laws, with the frame of reference being the extent to which states have law that promote the expansion of charters. The report normatively assumes that charter schools are good and state laws that overly restrict them are bad. So the states that it labels as having excellent charter school laws will probably fair poorly on the Network for Public Education (NEP)/Schott Foundation report. For instance, NAPCS ranks Indiana as the top state for charters, but NEP and Schott rank Indiana in the 40s.
But that is what makes this report so important. Because there hasn’t been any systemic to response to NAPCS’s reports, it has been able to skew the conversation. This new report brings balance.
Here are some key paragraphs from the executive summary:
Public schools remain a source of pride and hope, helping to level the playing field for children from incredibly diverse racial, ethnic, religious and socioeconomic groups. Even amid concerns and often unsubstantiated criticism, Americans continue to view public schools as a defining hub for their communities. In the spring of 2001, a national poll found that Americans ranked public schools as “the most important public institution in the community” by at least a five-to-one margin over hospitals, churches and other institutions. Nonetheless, within the past two decades, there has been a fervent push by those interested in privatization who seek to de-prioritize the importance of public schools and effectively undermine their functionality. Ignoring these attacks, most parents and citizens understand that public schools provide a critical service to American society by educating the majority of students with a base level of accountability while protecting their civil rights in the classroom. Moreover, a recent poll conducted in October of 2017 found that among all registered voters, only 40 percent supported vouchers while 55 percent are opposed. This number further decreases to 23 percent with opposition at 70 percent when voters were asked to consider support if it meant less money for public schools.
With the ongoing debate on the relevance and benefit of public schools versus private schools, the historical context of this debate must be understood. The commitment to a free education for American children has its roots in the 17th century and has evolved along with the laws of the nation to include a free and appropriate public education (FAPE) for all children. Those of privilege have always understood that education is the cornerstone to success and inclusion in society. Yet the reality is that disadvantaged groups including African Americans, Latinos, Native Americans, women, the poor, those with disabilities and others have always had to fight for inclusion. For many generations, structural racism inherent in American society maintained a segregated system for African Americans and people of color. From passage of Massachusetts’s first compulsory education law to present day, historically disenfranchised communities have fought for the right to receive a free education.
. . . .
The public education system was developed to serve all children and can continue to do so with the appropriate support from the federal, state and local levels. Public schools offer a rich opportunity for all children to learn from their peers of other racial, ethnic, religious or other identities. Private schools, including charters, were not created to serve all children. Although parents always have a right to send their children to private schools at their own expense, they are not and never can be the model for educating of all this nation’s children, nor should they be supported by public dollars.
The report evaluated education privatization based on the following, assigning numerical values to each:
- Types and Extent of Privatization
- Civil Rights Protections
- Accountability, Regulations and Oversight
- Other Factors (charter schools)
It found that:
Overall grades were assigned based on the extent of privatized school choice in the form of vouchers, neo-vouchers and charter schools, as well as the quality of the state’s laws that promoted accountability, oversight, transparency and civil rights. States earned an. The states with the best overall grades for resisting school privatization are predominantly rural states with a strong commitment to community public schools and an aversion to public dollars leaving already cash-strapped rural schools[, although]... rural state support for public education is not a universal pattern.
There are 22 states with grades between a C and a B+. Six states and the District of Columbia received a grade of D or D+ and 17 received a grade of F.
In addition to giving each state an overall grade, we assigned grades for voucher and charter policies as well. There are 22 states that earned an A+ for resisting attempts to give public funds in the form of vouchers and/or neo-vouchers to their public schools.
The six states with an A+ for their charter laws are Montana, Nebraska, North Dakota, South Dakota, Vermont and West Virginia. However, there were also 37 states plus the District of Columbia that received a Grade of F based on their charter laws — states that embrace for-profit charter management, weak accountability and other factors that make their charter schools less accountable to the public.
For more detailed findings, see here.
Monday, September 10, 2018
One of the major critiques of charter schools, although not the only one, is that they allow private entities to profit off the education of children. Some say the possibility of profits is a good idea because it brings new players into the education "market," incentivizes efficiency, and creates competition that might drive down the cost of quality education. In theory, I suppose that is possible, but in reality, we have seen far more evidence to the contrary. And the possibility of profit taking without sufficient state oversight also opens the door to downright corruptions. Preston Green has done an excellent job of tracking scandal and corruption in the charter school sector. I argue here, however, that what we call "corruption" is often actually legal when charters do it. The self-serving contracts and leases are the type of behavior that would land public school officials in jail, but which are relatively common with some charter school operators.
That is what makes California's new statute barring for-profit charter school operators so significant. On their face, most charter schools are non-profit. Many states will not issue a charter to a for profit entity. If Big Box Stores, Inc., for instance, applies to operate a charter in Kentucky, they state will reject it. This, however, does relatively little to block for profit entities. All Big Box Stores, Inc. needs to do is form a non-profit. They can call it Big Box Academies. If Big Box Academies gets a charter, it can then simply enter into a contract with Big Box Store, Inc. to supply all the labor and supplies for the charter school. In fact, non-profit charters regularly turn over their entire budget to for-profit management companies. Those companies can then take as much profit as they can manage. As Tom Kelley has shown, they develop "sweeps" contracts that are so egregious that the charter schools are probably running afoul of non-profit rules.
California's new charter law takes a big bite out of this problem. It makes it clear that only non-profits can receive a charter in the state. It also prohibits those non-profit charters from transferring responsibility and management to a for-profit entity. The law states:
On and after July 1, 2019, a petitioner that submits a charter petition or a charter school that submits a charter renewal or material revision application shall not operate as, or be operated by, a for-profit corporation, a for-profit educational management organization, or a for-profit charter management organization. For purposes of this section, a for-profit educational management organization and a for-profit charter management organization are entities that manage or operate a charter school.
Wednesday, September 5, 2018
Former Secretary of Education Arne Duncan spent the last few months trying to rehabilitate his work and distinguish it from DeVos. This spring he implored us to ignore current claims that education reforms of the past have failed. On his book tour, he has been arguing that “education lies” often drive education policy. Yet, Duncan was an extremely disappointing Secretary Education who too often fell victim to the education lies himself: money does not matter, ineffective teachers are ruining public schools, charter schools will outperform public schools, and federal leadership on rigorous standards will save us all.
To his credit, Duncan believes in public education and gets a lot right in his current critiques. He is a strong advocate of prekindergarten education and poignantly says that presidential elections show that Americans love their guns more than the love children. Yet, Duncan refuses to be candid about his own mistakes. So he feeds the idea that the current problem in education, like every other public policy problem, is the Trump Administration. Our education reform problems, unfortunately, are more endemic than the current administration. They need better solutions than rose-colored glasses.
The “education reforms” that Duncan says worked—desegregation and more equalized school funding—preceded his tenure as Secretary. He did nothing to further those reforms. Instead, he routinely pushed through reforms that didn’t work. An honest appraisal of the past decade reveals that Duncan caused more harm than good.
Secretary Duncan created the Race to the Top grant program and offered states money in exchange for major policy changes. In the aftermath of the recession, he could demand almost anything he wanted. He got states to do three things: adopt new teacher evaluation systems that they could use to hire, fire, and promote teachers largely based on statistics; expand charter schools; and adopt college and career ready standard, aka Common Core. Two years later, Duncan doubled down. He told states that he would waive their pending sanctions under No Child Left Behind if they got on board with the policies he had promoted in Race to the Top.
What Duncan didn’t do is also notable. He stood by while states implemented the biggest and most sustained education funding cuts in decades. And other than a 2011 letter to the editor, he largely stood by while our schools continued to resegregate to levels the nation hadn’t seen since the 1970s.
Duncan’s legacy lives on today. His teacher evaluation systems and his cozying up to the attacks on teacher tenure helped drive teacher moral to an all-time low. It was those policies that led to a national teacher shortage. This spring’s protests were simply the visual manifestation of a decade of neglect.
Duncan’s policies also unleashed charter growth that is proving extremely hard to control or unwind. Seeing how far charter school expansion had eaten into the basic ability of public education to do its job, groups like the NAACP finally felt the need to call for a moratorium on charter schools. Seeing how charters had helped fuel segregation, groups in Minnesota and New Jersey filed state constitutional claims. The Southern Poverty Law Center just filed a lawsuit arguing that charter school funding practices violate the state constitution.
Finally, Duncan’s willingness to overstep his bounds in pursuit of his brand of reform created the narrative that made Betsy DeVos possible. Senators, congresspersons, states, districts, and parents all railed against his aggressive approach. Then, Donald Trump campaigned heavily on the notion that Common Core was a disaster and that states should be making decisions, not the feds. DeVos accelerated that rhetoric to another level and further argued that parents have a “right” to school choice. Those who disagree are “flat-earthers.”
Since then, President Trump has issued an executive order to decrease the federal role in education and eliminate what he calls federal regulatory overreaches. DeVos took the directive and ran with it, repealing, for instance, policies that protect LGBTQ youth, promote school integration, and look for systemic problems when individuals file discrimination complaints. Trump has even proposed eliminating the Department of Education as a stand-alone agency—the ultimate response to federal overreaches in Education.
The one area in which the Trump administration doesn’t mind leveraging federal power, however, is school choice. The administration wants supercharge Duncan’s charter agenda and add vouchers to the mix. The Trump administration’s proposed 2019 budget would cut numerous public school programs, including one aimed at supporting teachers. It would use that money for $1 billion in new charter school and voucher grants.
The solution to our current education challenges is not to weigh the merits of DeVos’s brand of reform versus Duncan’s, but to recognize that neither has much merit. They both have fed a perpetual cycle of reform that ignores our real problems: inequality and segregation. Solving those problems doesn’t require fancy new reforms.
Schools to once again think seriously about how their student assignment policies affect segregation. States can foster this by including integration and diversity as measures of school quality in their accountability systems. And the federal government can provide technical assistance to help districts design new student assignment policies. Both the federal and state government need to stop funding charter schools and vouchers that increase segregation.
The solutions for funding inequality are simple. States need to replenish the funds that they have cut from education budgets over the past decade and direct larger shares of those new funds to the neediest districts. The federal government needs to increase funding for Title I schools, particularly those with the highest concentrations of poverty. Those may be radical solutions, but they aren’t new.
--Duncan picture courtesy of Dept. of Ed; DeVos picture courtesy of Gage Skidmore
Tuesday, September 4, 2018
Phi Delta Kappan just released its annual survey of public attitudes toward public schools. The survey focused on the two hot button issues of the past year--teacher pay and school safety. The results signal that those seeking reform in those areas have a strong constituency to support it.
Two-thirds say teacher salaries are too low and 73% say they would support their teachers if they went on strike. Only 6% say teachers salaries are too high. This would seem to be bad news for those states that want to keep education spending at current low levels. Over half continue to fund education at a lower level now, in real dollar terms, than they did a decade ago. Teacher salary increases would certainly require states to change their current education spending practices.
More disappointing was the shrinking percentage of adults who would like their kids to become teachers. That number has fallen to 46%, about 25 percentage points lower than it was a decade ago. This is a bad sign given that there is already a current nationwide teacher shortage and the long-term prospects of repairing the teacher pipeline don't look good. A close look at the dip, however, shows this dip in support of kids becoming teachers follows the dip in school funding. Replenishing school funding, thus, might help improve this number as well.
Attitudes about school safety were steadier than I expected. One in three parents fear for their kids safety at school, basically the same percentage as in 1998. That percentage, however, is triple the concern of five years ago. The wide short-term variation suggests either that the number isn't that reliable or that it is a pretty emotional number that can easily ebb and flow based on current events, but remains relatively steady over time. What was maybe most notable was how much safety attitudes differ based on family income. Only one in four middle to higher income families were afraid for their kids, but half of families earning less than $50,ooo a year were afraid.
The survey also did a great job of breaking down potential solutions for school safety. About three-quarters or more supported armed police in school, mental health screening, and metal detectors. Sixty-three percent were against allowing teachers to carry guns, although that position softens when the questions is whether they would support teachers carrying guns with certain conditions.
But, of course, funds are finite, so the poll asked parents to choose between armed guards and mental health services. A whopping 71% preferred mental health services. The preference for mental health services interestingly held across all political groups.
It would have been nice to have seen direct questions about charters and vouchers, particularly since Education Next polling shows that support for charters has bounced back after falling last year. Instead, this new polling asked a vague question: should we reform the current education system or find an alternative to it?
Those who support the public school system might be encouraged by the 78% who prefer reform over alternatives. The question, however, is sufficiently loaded and indirect that I am not sure what to take from it. The fact that the percentage preferring reform is up over time (plus about 8%) and the percentage preferring alternatives is slight down over time might suggest a little less general appetite for vouchers and charters than there was a decade or so ago, but again the changes are small.
Friday, August 31, 2018
School quality and school discipline are intertwined. As I explain in Reforming School Discipline, "[s]ocial science increasingly demonstrates that while student misbehavior is a function of individual choices that students make, individual student misbehavior is also a function of the school environment in which they learn and act. Quality schools and orderly environments consistently produce higher student achievement and less misbehavior. Low quality schools with disorderly, hostile, and punitive environments produce lower student achievement and higher rates of suspension and expulsion." And as Bruce Baker, Kirabo Jackson, and official government reports establish, there is a direct link between school funding and school quality and student outcomes.
If we take these two basic insights about money and school discipline and throw some basic data points together, a pretty stark image emerges. This week, the ACLU and UCLA Civil Rights Project issued a new report on race, discipline, and school safety that gave me the tools to do just that. They issued heat maps that show on a district-by-district basis how many students are suspended, whether there is a shortage of school counselors. And earlier this year, Bruce Baker and his colleagues issued a report that measured school spending levels against what it would take for students in each district to achieve at average levels.
Side by side these maps nearly look like mirror images, even though they are measuring two seemingly different things.
The bright spots in the image on the left show districts with high rates of school suspension. The yellow, orange and red spots in the image on the right show districts that are the most underfunded. The dark blue on the left image and the green on the right image show the other end of the spectrum--schools with low discipline rates and high funding levels. There are, of course, exceptions. Texas, for instance, has a serious school funding problem, but relatively low discipline rates. Although you can still see that within Texas, there are discipline problems in the southern and eastern part of the state, where underfunding is also a problem.
Trying to draw an even more vivid picture, this morning I decided to do it the new, old-fashioned way--cutting and pasting. My task was to put raw data from Baker's study into the ACLU's map. A perfect job would be a long term project, but I just wanted a snap shot. Baker's appendix breaks the raw data on spending gaps into five categories: highest spending districts, high spending districts, those in the middle, low spending districts, and the lowest spending districts (although his phraseology is different). I used the middle spending districts. The middle spending districts don't present a full picture in a lot of states, as the gap between the middle and bottom spending districts is enormous. Whereas, in other states, the gap is smaller. But the middle spending districts offer the snapshot I was looking for.
Here is what I found. Those states and districts with high suspension rates (the bright spots on the map) tend to underfund their public education system. Those with low suspension rates (states painted mostly blue) tend to fund their education system relatively well (which is still distinct from adequately). The boxes on the states represent Baker's estimate of the extent to which the median districts in the state fail to provide the resources necessary for students to achieve average outcomes.
Conclusive evidence? Absolutely not. Troubling enough that someone far more sophisticated than me should look at it more closely. Absolutely.
Tuesday, August 28, 2018
As discussed in a post last week, the constitutionality of Mississippi's charter school law is currently before the state supreme court. The issue is whether a statute requiring the transfer of district ad valorem taxes to charter schools violates the State Constitution. There is both a pure legal and pure empirical issue embedded in the case. First, regardless of its educational effects, is the formal transfer of funds unconstitutional? Second, even if the formal transfer is permissible in general, does the transfer have the practical effect of denying students access to their constitutionally guaranteed education? The Education Law Center argues that
the growing body of research from several states demonstrat[es] the negative fiscal impact of charter schools on local school districts. Districts have fixed costs that are not offset when a student moves to a charter school. Districts must continue to educate at-risk student populations requiring additional resources, including poor students, English language learners and students with disabilities. The transfer of per-pupil funds to charters schools leads to reductions in programs, staff, and services needed for the education of district students. Loss of revenue to charter schools, combined with existing underfunding - as is the case for JPS - creates significant deficits in education resources for district students.
Brand new analysis by Robert Garda suggests that there is a third question, which will rise in prominence, if this constitutional challenge fails. That question is simply whether Mississippi's charter law, when assessed within the universe of charter laws, is an effective one for managing charter schools in the state. In The Mississippi Charter School Act: Will it Produce Effective and Equitable Charter Schools?, 36 Miss. C. L. Rev. 265 (2018), he argues that the Act has flaws, even if it is constitutional. Among his chief concerns are the "quality surround the authorization standards, the automatic closure and nonrenewal provisions standards, and level of required academic performance" and the "governance structures surrounding special education.
His abstract offers this summary:
The Mississippi Charter School Act (CSA) is under constitutional and political attack. On the first front, litigation is underway challenging the funding provisions of the CSA under the Mississippi Constitution. The second front is a broader political attack against charter schools generally, which questions their effectiveness, viability and impact on traditional public schools. These critical issues have diverted attention from a third, and equally important, consideration: whether the CSA is an effective charter enabling statute. This article addresses this overlooked issue and analyzes the CSA to determine if it constructs a landscape that ensures the creation, governance and oversight of effective and equitable charter schools.
The current constitutional and political attacks seek to prevent charter schools from existing at-all in Mississippi. But if charter schools are deemed constitutionally permissible (almost all similar attacks have failed) and if they continue to grow in Mississippi (as is occurring nationwide), the CSA and the policies of the Charter School Authorizer Board of Mississippi (CSAB) stand as the primary mechanisms ensuring charter schools are effective and provide equitable access. This article provides a critique of the CSA and CSAB’s policies and suggests changes to ensure that Mississippi provides equitable access to high performing charter schools.
Hats off to Professor Garda for not jumping to one side or the other of the constitutional issue and, instead, focusing on real world questions that need answering once the dust settles, something scholars--including myself, do not always do. You can download the full article here.
Monday, August 27, 2018
Each district school board shall adopt rules to require, in all of the schools of the district and in each building used by the district school board, the display of the state motto, "In God We Trust," designated under s. 15.0301, in a conspicuous place.
On the one hand, the phrase was already on the Florida state flag, our national currency, and etched in various fora. Yet, my reading of the cases suggests these new laws raise serious constitutional problems because of the goal they seek and new message they send.
Courts typically look at three major issues in religion cases: purpose, effect, and coercion. A religious purpose alone would make these new law unconstitutional. If the goal is to "put God back in schools," disclaimers to the contrary will not save the legislation.
NPR reported that the sponsor of the bill in Florida said this:
[T]he bill is "so simple, just saying put a poster up to remind our children of the foundation of this country."
"It is not a secret that we have some gun issues that need to be addressed, but the real thing that needs to be addressed are issues of the heart," she said.
Daniels said she had a vision earlier in the week, "I believe it was God, and I heard a voice say, 'Do not politicize what has happened in Florida and do not make this a thing of division.' "
Daniels continued to speak about God: "He's not a Republican and he's not a Democrat. He's not black and he's not white. He is the light. And our schools need light in them like never before."
The new conspicuous posting of the phrase may also have problematic effects, regardless of the intent. The average person who sees a new posting in school that proclaims "In God We Trust" would almost certainly see it as an endorsement of religion. Seeing that motto displaying conspicuously in several locations in a school would send an even clearer message. No other phrase or motto comes closes to holding that status. Nor to my knowledge has anything ever held that status. The only thing that comes close is the American flag, but of course, the flag is not a religious symbol. Yet, even with it, the Court has held, on other grounds, that schools cannot force students to participate in the pledge, with the idea being that it is beyond the power of schools to force students to accept or submit to idea. This applies to political as well as religious ideas.
Even more specific precedent bears on these postings. The Supreme Court and lower courts have struck down the moment of silence in Louisiana schools not because the moment of silence is generally objectionable, but because when Louisiana passed the the law, its purpose was to encourage prayer under the auspices of a moment of silence. And the Court has struck down certain displays of the Ten Commandments in school because the particular way the school posted it sent a religious rather than secular message. The "In God We Trust" laws would seem to include both problems--a religious purpose and a religious effect.
Although not directly on point, the Ninth Circuit also decided a case involving a teacher who had put up two large banners in his classroom that read "In God We Trust," "One Nation Under God," and "God Bless America." The school ordered him to take them down and he claimed it violated his First Amendment rights. The Ninth Circuit held that the school could order him to take them down without violating his rights. It did not answer the question of whether the school could allow these banners if it wanted. But it stands to reason that the school correctly perceived the banners to be violations of the establishment clause, which is why it could order them taken down.
To be clear, there is an important exception to the case law. The state can display religious texts when there is a secular purpose and effect. This means that, as part of teaching history or legal lessons, schools can potentially display the Ten Commandments, but only if the Commandments are surrounded other secular materials that make it clear that the overall purpose is secular not religious. Placing the Ten Commandments aside just one other document is not enough to lead to this conclusion.
My suspicion is that lawmakers think there is a loophole because "In God We Trust" has been treated as what courts call a "ceremonial deism" in the context of U.S. currency and architectural fixtures. This area of the law is extremely difficult to reconcile with the generally applicable First Amendment standards. The simplest explanation is that the Court has said that the monetary and architectural references are not really religious statements. They are just utterances and mottos with no real meaning, but which we have stuck with through history for tradition sake, not to make a religious statement. Thus, they don't violate the First Amendment.
New uses of those mottos would appear different, particularly when used for the purpose of making a religious statement. Using the motto as a backdoor way to try to make a new statement is unlikely to fit the narrow "ceremonial deism" exception. Schools simply have not always had these postings in the past, which would indicate an effort to make a new affirmative statement.
About a decade ago, the former Attorney General of Georgia disagreed with the foregoing analysis. He pointed out that the motto has been sanctioned in other contexts, so there is no reason to suspect it would be different in school. He, however, does not take up all the factors and cases that make the classroom far different than the dollar bill and buildings that are a century old. He did acknowledge that he could be wrong--as do I.
Friday, August 24, 2018
Texas has released its statewide grading of public schools, using a grading scale of A to F. The grades would appear to be a reflection of school poverty levels than anything else. The Texas Tribune’s analysis shows that “No school district with a rate of low-income students lower than 30 percent received an overall rating of C, D or F.” And as the level of poor students in the schools increase, the letter grades become more variable, but the clear trend is that letter grades substantially decline. Almost the entire cluster of Cs, Ds, and Fs is with schools with poverty rates in excess of 50%.
This data poses crucial questions and possibilities. First, is the variability in letter grades among high poverty schools an indication that the system really is distinguishing between higher and lower quality schools. Second, do schools have any way to predict, understand, and respond to their overall poor performance? If they don’t, this system is no better than the statically teacher evaluation systems that state leaders claimed would magically transform the teaching profession, but which were shown to be pretty much pointless, if not harmful, within just a few years.
Third, even if schools understand these results, do those at the bottom end actually have the resources they need to make change. As research increasingly shows, money does, in fact, matter to student outcomes and it matters a lot. Unfortunately, Texas schools are way short on it. Recent school finance litigation has shown how Texas has been dramatically underfunding its education system. The largest scale snapshot shows school funding is down roughly 16% in real dollar terms in Texas since 2008.
The whole system, however, might be nothing more than voodoo magic. States adopted their new rating systems pursuant to the Every Student Succeeds Act. And as I emphasize in Abandoning the Federal Role in Education,
under the ESSA, states have enormous flexibility in the amount of weight they assign to particular tests and to student achievement factors overall. Not only does this flexibility permit an individual state to minimize the weight it assigns, but it also allows every state to do something different. One state might make student proficiency tests the dominant measure of student achievement while another state uses student growth. And regardless of the approach a state takes, states can assign significantly different weights to tests and other student achievement measures. A state might, for instance, assign test results 95 percent in their accountability metric and any number of non-test factors 5 percent or less collectively. Another state might assign test results 60 percent in its accountability metric while assigning 40 percent to softer factors, such as student engagement, teacher engagement, and school climate. With a number of options, states will have the ability to manipulate their accountability systems so as to produce desired outcomes.
None of the foregoing means to suggest that testing is an effective means to promote equal education opportunity or that some optimum weight should be afforded to test results. The point here is that the ESSA maintains the NCLB’s notion that there is merit to testing and accountability, but undermines its own premise. If testing and accountability are plausible tools for achieving equality, leaving states’ testing regimes to random variability undermines equality. Rather than tracking a single proficiency standard as in the NCLB, the ESSA affords disadvantaged students educational opportunities that more closely track the approach of their home state rather than any mandate in statute. In this respect, the ESSA does little to continue the Elementary and Secondary Education Act’s historic mission to promote improvements in academic achievement for disadvantaged students."
It seems to me the overarching problem is that we don’t really know if the system is a statistical sleight of hand, a reflection of inadequate funding, or a reflection of socio-economic segregation (which is the biggest driver of student achievement). And if we don’t know that, then these report cards cannot really tell us anything worth knowing—even if the underlying data and method is right on target. In other words, transparency is worth its weight in gold. Letter grades in the hands of parents and administrators who don’t know how to interpret them are more dangerous than pure ignorance.
Get the full Texas Tribune analysis below.
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
Diversion of District Funds to Mississippi Charter Schools Is Unconstitutional by Education Law Center
Education Law Center has filed an amicus curiae, or "friend of the court," brief in Araujo v. Bryant, a case before the Mississippi Supreme Court challenging the unconstitutional diversion of school district funds to charter schools.
The Mississippi Constitution allows districts to levy ad valorem property taxes exclusively to maintain their own schools. But the State's charter school law forces districts to transfer the per-pupil amount of those locally raised funds to charter schools when students living in the district attend them. Under Mississippi's charter law, a state agency authorizes charter schools, and districts have no control over their operation.
The Araujo lawsuit challenging the charter transfer statute was brought by the Southern Poverty Law Center on behalf of parents and students in the Jackson Public Schools (JPS). ELC's amicus brief provides the Court with crucial information about the negative impact on public school districts, especially JPS, of this unconstitutional diversion of local funds.
ELC's amicus brief explains that JPS serves a high concentration of students who are at-risk due to household and community poverty and therefore require increased educational resources. This need for additional resources for low-income students is recognized by the State of Mississippi's school funding formula. Yet JPS receives less aid than the formula requires to provide students with an adequate education. Over the last decade, the State has consistently failed to provide the funding amounts prescribed by its own formula, robbing JPS of millions of dollars in State funding each year.
ELC's brief also details the increasing amounts of ad valorem taxes JPS has been forced to send to charter schools. Since the 2015-16 school year, JPS has transferred over $4.5 million to State-authorized charter schools, an amount that will continue to increase. Ad valorem tax revenue is a critical component of the JPS budget, and JPS residents have chosen to tax themselves far beyond the minimum rate set by the State in order to support their schools. As ELC explains, insufficient State funding for the district - compounded by the diversion of ad valorem tax revenues to charter schools - results in a lack of essential education resources for JPS students.
Finally, ELC's brief provides an overview of the growing body of research from several states demonstrating the negative fiscal impact of charter schools on local school districts. Districts have fixed costs that are not offset when a student moves to a charter school. Districts must continue to educate at-risk student populations requiring additional resources, including poor students, English language learners and students with disabilities. The transfer of per-pupil funds to charters schools leads to reductions in programs, staff, and services needed for the education of district students. Loss of revenue to charter schools, combined with existing underfunding - as is the case for JPS - creates significant deficits in education resources for district students.
ELC's brief asks the Mississippi Supreme Court to declare that the statute requiring the transfer of district ad valorem taxes to charter schools violates the State Constitution. The brief highlights that the unconstitutional diversion of local tax revenue to charter schools has a material, adverse effect on JPS students, who are being deprived of the funds required for an adequate public education and the opportunity to succeed in school.