Tuesday, August 28, 2018

Constitutional Problems Aside, Is Mississippi's Charter School Law Flawed?

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.


August 28, 2018 in Charters and Vouchers | Permalink | Comments (0)

Monday, August 27, 2018

Are New Laws Requiring the Posting of "In God We Trust" in Public Schools Constitutional?

This fall, Florida public school students will go to school under a new banner.  Early this summer, the state passed a law requiring that

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.

Tennessee recently passed a similar law and several other states have been considering doing the same.  

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.

August 27, 2018 | Permalink | Comments (0)

Friday, August 24, 2018

Do New School Report Cards Reveal Something Worth Knowing or Are They Just Statistical Magic?

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%. Texas

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.

Continue reading

August 24, 2018 | Permalink | Comments (0)

Thursday, August 23, 2018

DeVos Effort to Use Federal Education Dollars for Guns Shows Just How Insignificant Her Administration Is

Devos2So 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

August 23, 2018 in Federal policy | Permalink | Comments (0)

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.

August 23, 2018 in Charters and Vouchers | Permalink | Comments (0)

Monday, August 20, 2018

False Assumptions about Private Schools Are Driving Public School Funding into a Ditch

This essay originally appeared in USA Today

Political leaders are asking the nation to double down on the bet that expanding school vouchers will improve educational outcomes. Arizona — ground zero in the Koch network's efforts to reshape education — is set to decide a voucher referendum this fall. A dozen other state legislatures have passed or are considering their own voucher expansions. And the Trump administration is cheering them on. It created a private school loophole in last year’s tax reform and is now asking Congress for new money to expand school choice further

These pushes rest on a false premise — that there is a private school advantage.

Private schools’ higher average test scores drive this myth. The problem is that average test scores alone do not tell us anything worth knowing. Comparing the average scores of private and public schools is comparing apples to oranges. Public and private schools enroll students from very different backgrounds. Most important, more than half of public school students are low-income. Only about one in four private school students is low-income.

Private schools don't add value

These numbers are all but destiny for a school’s overall achievement. Low-income students face a number of personal obstacles that depress their performance — from housing instability and hunger to a lack of academic support outside school. These challenges follow low-income children no matter what school they attend. An overall school’s achievement, then, is largely dictated by the percentage of low- and middle-income students it enrolls, not whether it is public or private. But simply enrolling a larger percentage of middle-income students doesn’t mean that one school is better than another.

The question to ask is whether the average poor student performs better in private school than in public school. That is what we call “value-added” and something worthy of public investment. But the data say there is not any value-added in private school.

University of Virginia researchers recently followed a cohort of children from birth to age 15, as they moved in and out of private and public schools. Once they compared apples to apples — “simply controlling for the sociodemographic characteristics” — the so-called private school advantage disappeared. They could not find any “evidence to suggest that low-income children or children enrolled in urban schools benefited more from private school enrollment.” 

Another team of researchers examined every public and private school in the nation. They found that after controlling for demographics, public schools actually slightly outperform private schools.


Federal and state leaders either have their heads in the sand or are trying to dupe the public. They have been pushing for more vouchers for private schools and slamming public schools for the past decade. Over that time, 29 states have significantly reduced public education spending — some by as much as 37 percent. Yet, during this same period, states like Florida and Indiana substantially increased the amount they would spend per voucher and quadrupled the size of their programs.

At the federal level, Education Secretary Betsy DeVos says the public school model is flawed and wants to radically expand charters and vouchers. The president’s proposed 2019 budget would cut or eliminate several public school programs, including a grant program for teachers. It would use that money for $1 billion in new grants for private and public school choice programs.

Public school funding makes a difference

The trouble is that public school funding levels actually matter a lot in how students perform. Examining decades of national data, a recent study found that a 20 percent increase in public school funding corresponds with low-income students completing nearly a year of additional education — enough to drastically reduce achievement gaps and adulthood poverty.

A follow-up study focused on the past decade of funding cuts and found that they depressed student achievement.

Spending money on vouchers rather than public schools is not based on facts or good faith efforts to improve outcomes for needy students. It is an ideological position about the role of government. The new pejorative term “government schools” and the fact that voucher programs are increasingly directed at middle-income students show that the current push isn’t about honest reform.

People send their kids to private school for a variety of reasons that make sense for them as individuals — religion, status, unique opportunities and personal flexibility. But when it comes to public policy, government can do nothing better right now for students than to fully fund public schools. 

August 20, 2018 | Permalink | Comments (0)

Thursday, August 2, 2018

Claim That Segregation Deprives Students of a Constitutionally Adequate Education Can Proceed, Holds Minnesota Supreme Court by Wendy Lecker

In a groundbreaking decision, the Minnesota Supreme Court has determined that claims of public school segregation brought under the State constitution's education clause are justiciable, that is, they may be adjudicated by the courts. The Court, in its July 25 ruling in Cruz-Guzman v. Minnesota, concluded that a constitutionally adequate education in Minnesota includes ensuring schools are free from segregation by race and socio-economic status.

The plaintiffs in Cruz-Guzman are parents and children enrolled in public schools in Minneapolis and St. Paul, Minnesota. They filed a class action complaint in 2015, contending that school segregation deprived children in these districts of an adequate education under Minnesota's constitution, as well as the guarantee of Equal Protection and Due Process. The plaintiffs are represented by a team led by Daniel Schulman of the Minneapolis law firm, Gray Plant Mooty.

Education Law Center, along with over twenty of the nation's leading education and constitutional law scholars, filed an amicus curae brief in the Minnesota Supreme Court in support of the plaintiffs in this case. Jones Day attorneys Todd Geremia and James Gross, as well as Christina Lindberg, represented ELC and the scholars pro bono.

The State moved to dismiss the case, and, in 2017, the district court denied that motion. However, the court of appeals reversed the decision, holding that claims of State violations of the Minnesota constitution's education guarantee were non-justiciable political questions to be determined solely by the Legislature.

On July 25, the Minnesota Supreme Court forcefully disagreed and reaffirmed the judiciary's role in ensuring the education rights of Minnesota children.

School Segregation in Minneapolis and St. Paul

In its ruling, the Court noted that the complaint set forth "copious data demonstrating a 'high degree of segregation based on race and socioeconomic status' in Minneapolis and Saint Paul public schools." The Court further acknowledged that these segregated schools "have significantly worse academic outcomes in comparison with neighboring schools and suburban school districts."

The plaintiffs identified State policies that cause this segregation, including:

  • boundary decisions for school districts and school attendance areas;
  • the formation of segregated charter schools;
  • the decision to exempt charter schools from desegregation plans;
  • the use of federal and state desegregation funds for other purposes;
  • the failure to implement effective desegregation remedies; and
  • the inequitable allocation of resources.


Minnesota's constitution provides that "it is the duty of the legislature to establish a general and uniform system of public schools." The State argued that because it is the legislature's duty to provide an adequate education, it would violate the separation of powers doctrine for the judiciary to rule on matters of educational adequacy. The State also argued that ruling on these claims would improperly embroil the judiciary in complex educational policy matters. The Supreme Court disagreed.

The Court noted that specific educational policy matters are the province of the legislature, but that fact does not bar courts from determining whether the legislature has fulfilled its obligation under the constitution.

To the contrary, the Court ruled, it would be an abdication of the judiciary's duty if the Court "unquestioningly accep[ted] that whatever the Legislature has chosen to do fulfills the Legislature's duty to provide an adequate education." As the Court noted, the education clause is a mandate to the Legislature, not a grant of power.

The Court further held that to rule that these claims are non-justiciable would be to leave claims under the education clause without a remedy, violating the long-held principle that where there is a right, there is a remedy.

The Court also rejected the notion that the judiciary cannot manage complex education claims. It noted the judicial branch role is to interpret the language of the constitution-and "[w]e will not shy away from our proper role to provide remedies for violations of fundamental rights merely because education is a complex area." The Court pointed out that the plaintiffs are merely asking the Court to declare that the State violated the constitution-they did not ask the Court to dictate to the State how to remedy this violation. Thus, thus the Court need not engage in any improper policy-making.

Definition of Adequacy

The State contended that judicial interpretation of the education article would involve an improper qualitative assessment by the Court of what constitutes an adequate education. The Court agreed that a qualitative assessment is required, but rejected the claim that a judicial definition of adequacy is improper, holding instead that this task is intrinsic to the court's role.

The Court pointed out that, in a previous case, it had ruled that education is a fundamental right under Minnesota's constitution. In this case, the Court elaborated, ruling that "an education that does not equip Minnesotans to discharge their duties as citizens intelligently cannot fulfill the Legislature's duty to provide an adequate education under the Education Clause."

Importantly, the Court emphasized that "[i]t is self-evident that a segregated system of public schools is not 'general,' 'uniform,' 'thorough,' or 'efficient'" under Minnesota's Education Clause.

Districts and Charters Not "Necessary Parties"

The State argued that the case must be dismissed because the districts and charter schools were not joined as "necessary parties." The Court ruled that the mere fact that the districts and charters may be affected by any ruling in this case does not require their joinder. The plaintiffs are seeking relief solely from the State. The Court noted that "many non-parties are bound to be affected by a judicial ruling in an action regarding the constitutionality of state statutes or state action, but they cannot all be required to be a part of the suit."

Next Steps

This Supreme Court decision allows the Cruz-Guzman plaintiffs' claim to proceed to trial. It also provides guidance for the trial court to set qualitative standards against which to assess the evidence of student segregation in the Minneapolis and St. Paul schools. Finally, the Court makes abundantly clear that the courts are available for school children across Minnesota to seek redress of violations of their rights to a constitutionally adequate education which, according to this Court, includes an education that is free from segregation.

Wendy Lecker is a Senior Attorney at Education Law Center

August 2, 2018 in Racial Integration and Diversity | Permalink | Comments (1)

Thursday, July 26, 2018

New Mexico Decision Should Serve As a Wake-up Call on School Funding

File 20180724 194137 b8ohy6.jpg?ixlib=rb 1.1
A court has ruled that New Mexico isn’t ensuring that its students get an adequate education. Lisa F. Young /shutterstock.com
Derek W. Black, University of South Carolina

A New Mexico trial court recently found that the state has been failing in its constitutional duty to ensure that all students receive an adequate education. The court ordered the state to come up with a fix by next April. In practical terms, any fix will mean more money for poor school districts, more oversight to ensure uniform opportunities across the state and more education services for at-risk students.

On most facts, the decision seems obvious. New Mexico’s schools are among the lowest funded in the nation. And those relatively meager funds are not shared evenly among districts, either. Students in higher poverty schools in New Mexico often receive substantially less money than students in other schools. A school funding fairness report grades New Mexico’s system as a “D.” In other words, New Mexico needs to spend more money on all of its schools and a lot more money on its high poverty schools. This new court decision orders the state to do just that.

The problem is that New Mexico is not a wealthy state. Considering the state’s overall poverty, local government actually tries pretty hard to fund education with what it has. On this measure of education funding effort, New Mexico ranks in the top 15 in the nation. This led the state to defend its failures by arguing that it lacked the funding to deliver an adequate education.

The court wouldn’t hear it. It offered the textbook response: Fiscal constraints are not an excuse for depriving individuals of their constitutional rights. A “sufficient education is a right protected by the New Mexico Constitution” and it is the state’s “paramount duty” to provide it, the court’s decision states. states. This means education is “entitled to priority in funding” and all other competing state programs are “secondary” at best, the court ruled. In short, fully funding the constitutionally required level of education is non-negotiable.

New Mexico can do better. Other poor states like South Carolina, Arkansas, West Virginia and Mississippi choose to spend more of their overall wealth on education than New Mexico does. And they all, including New Mexico, could stand to spend more. After adjusting for inflation, New Mexico, for instance, spent 11.7 percent less per pupil in the 2015-16 school year than it did in 2008 before the Recession set in. Yet, the state is bringing in almost 50 percent more in total tax revenues now than it did in 2008. State and local government are simply choosing to spend those revenues elsewhere.

Shrinking federal oversight

This sad set of facts also ought to serve as a wake-up call to policymakers regarding the federal role in education. First, federal education appropriations have been relatively flat for the past decade. So poor states aren’t getting much help from the federal government. Second, federal oversight of state inequalities and failures is shrinking.

In 2015, Congress passed the Every Student Succeeds Act. The overarching premise of the act was that the federal government has been overreaching in education and its was time to return discretion to the states. In 2016, President Donald J. Trump campaigned on the notion that we should minimize the federal role in education even more. In 2017, he appointed a secretary of education who consistently argues we must shrink the federal footprint in education.

The sad story in New Mexico and other states is that many states can’t be trusted. Left to their own devices, state legislatures have shown a strong propensity to provide unequal and underfunded educational opportunities. It has traditionally only been the federal government that has tempered that instinct.

The ConversationWithout a strong federal role in education, state courts often stand as the final bulwark for student’s rights. New Mexico just added its name to the list of state court systems that continue to demand that states live up to their constitutional duty in education. The problem is that there are a lot of states still not on that list.

Derek W. Black, Professor of Law, University of South Carolina

This article was originally published on The Conversation. Read the original article.

July 26, 2018 in School Funding | Permalink | Comments (0)

Wednesday, July 25, 2018

Court Finds New Mexico's Funding System Deprives Students of Adequate Education, Particularly Disadvantaged Students by Wendy Lecker

In a major victory for New Mexico public school children, the district court, in a July 20 ruling, found that inadequate school funding violates the education article of New Mexico's constitution, as well as violating the constitutional equal protection and due process rights of economically disadvantaged students, English Language Learners and Native American students.

The Mexican American Legal Defense and Education Fund (MALDEF) filed Martinez v. State in 2014, on behalf of parents and students, to establish education as a fundamental right and ensure meaningful educational opportunities for all students, especially those who are economically disadvantaged, English language learners (ELL), Native American, and/or of Spanish-heritage. The New Mexico Center on Law and Poverty filed a similar case, Yazzie v. State, also in 2014, and the trial court consolidated these cases. The trial team also included pro bono counsel Martin Estrada and his colleagues from Munger, Tolles & Olson in Los Angeles. The two- month trial before District Court Judge Sarah Singleton concluded in August 2017.

Adequacy Defined

Judge Singleton held that the Legislature, through various statutes, has defined what a constitutionally adequate education is for New Mexico students and, accordingly, relied on those statutory provisions to determine whether the state met its constitutional obligations. The court also established the burden of proof in a school funding case in the state, holding that the plaintiffs must prove a constitutional violation by a preponderance of the evidence.

Inadequate Inputs

Judge Singleton found that there was sufficient proof presented at trial of inadequate essential educational resources in New Mexico's schools. The evidence demonstrated that schools across the state suffered from inadequate instructional materials, curricula and teachers. The court highlighted that insufficient instructional material for Native Americans violated statutory mandates and therefore the constitutional rights of those students.

Judge Singleton determined that the essential resources to deliver a reasonable curriculum must include resources to provide at-risk students the opportunity to compensate for any barriers they may face. Thus, the court found as essential such programs as quality full-day pre-K, summer school, after-school programs, small class size and research-based reading programs. The court credited expert testimony at trial that ELL students in particular benefited from smaller class size.

In finding inadequate funding for teachers and teacher training, the court addressed the trial evidence on the impact of New Mexico's test-based teacher evaluation system, noting that "punitive teacher evaluation systems that penalize teachers for working in high-need schools" exacerbated the quality-teacher supply deficits in these schools. The court also found that high-needs districts had more inexperienced teachers, noting that it "is well-recognized that inexperienced teachers are systematically less effective than experienced teachers."

Inadequate Student Outcomes

Judge Singleton found that the inadequate inputs in New Mexico's schools led to inadequate student outcomes. She found that New Mexico students rank at the bottom of the nation in English and Math proficiency and high school graduation. The numbers are even worse, she found, for low-income, Native American and ELL students.

The court rejected state claims that outputs are sufficient because at-risk students show growth in achievement. She held that growth is not sufficient, since vulnerable student groups, despite growth, are do not attain proficiency. The court also remarked that even the state is unhappy with the rate of growth among at-risk groups.

The court also credited the evidence demonstrating that of the New Mexico students attending college, a substantial number require remediation-proof that these students were not college-ready.

State Defenses Rejected

Judge Singleton rejected the State's contention that state intervention was adequate in compensating for any inadequacies, noting that these interventions have not altered the evidence demonstrating that "at-risk students are still not attaining proficiency at the rate of non at-risk students." The court found that the state Public Education Department assistance and oversight programs are piecemeal, and thus cannot replace adequate state school funding.

The court also dismissed the State's excuse that students' inadequate outcomes stem from socio-economic factors not attributable to the school system. Judge Singleton noted that while many of these factors exist outside schools, school programs, such as quality pre-K, K-3 Plus, extended school year, and quality teachers, have been proven to mitigate these factors and raise the achievement of at-risk students.

In fact, Judge Singleton noted the testimony of the State's experts, such as Eric Hanushek, who concluded that funding does make a difference in outcomes for at-risk students.

Judge Singleton also rejected claims made by New Mexico often made by states in other school funding cases. Notably, the court noted that the State could not escape its constitutional responsibility by contending that it cannot control district spending, since the state has supervisory responsibility over local districts.

The court also dismissed the contention that the State is constrained by the limited money in the State budget from doing more. The court declared that, "the remedy for lack of funds is not to deny public school children a sufficient education, but rather the answer is to find more funds."


In addition to finding the state in violation of the Education, Equal Protection and Due Process clauses of the state constitution, the court's declaratory judgment also found that the State:

  • violated the rights of at-risk students by failing to provide them with a uniform statewide system of free public schools sufficient for their education;
  • failed to provide at-risk students with programs and services necessary to make them college or career ready;
  • failed to provide sufficient funding for all districts to deliver the programs and services required by the Constitution; and
  • failed to supervise districts to assure that funding has been spent in the most efficient manner to meet the need to provide at-risk students with the programs and services necessary to obtain an adequate education.

To remedy the constitutional violation, Judge Singleton ordered the Legislature by April 15, 2019, to -take immediate steps to ensure that New Mexico schools have the resources necessary to give at-risk students the opportunity to obtain a uniform and sufficient education that prepares them for college and career.- The court also ordered the state to implement an accountability system to measure whether programs and services in place actually provide the opportunity for a sound basic education and to ensure that districts are spending funds in a way that efficiently and effectively meets the needs of at-risk students.

Judge Singleton has retained jurisdiction over the case in order to ensure state compliance with her orders.

Wendy Lecker is a Senior Attorney at Education Law Center

July 25, 2018 | Permalink | Comments (0)

Wednesday, July 11, 2018

Trump Administration's Reversal of Affirmative Action Guidance Aims to Scare Schools Away from Diversity and Integration

The following essay first appeared in USA Today.
The Trump administration’s decision to reverse federal guidance on the use of race in education is a scare tactic. It will scare universities away from doing exactly what they can and should do to enroll the most qualified and diverse students. It will scare public school districts away from taking steps to prevent resegregation that is harming all students. The use of race in both contexts is clearly constitutional under existing Supreme Court precedent. The only gray area involves the line between permissible and impermissible uses of race. 

Racial quotas, for instance, have long been unconstitutional, whereas the consideration of race as one among many factors in the pursuit of the educational benefits of diversity has been approved by the court for decades. Similarly, while school districts cannot reassign an individual student based on race alone, districts can consider race in redrawing school attendance zones to promote integration. 

Rather than acknowledge these lines and the fact that some uses of race are appropriate and necessary for improving educational opportunities, the administration will dissuade colleges, universities and school districts from doing anything to promote diversity and integration.

Compelling interest in diversity, or not?

The nation has been here before. When the University of Michigan’s admissions policies were before the Supreme Court in Grutter v. Bollinger in 2003, the Bush administration argued that colleges and universities should not be able to consider race. The court rejected that argument, saying race could be considered narrowly to achieve the educational benefits of a diverse student body.

In 2007 in Parents Involved in Community Schools v. Seattle, the Bush administration made the same argument regarding school districts’ voluntary efforts to integrate. And though it was a 4-1-4 decision, five justices agreed there is a compelling interest in avoiding racial isolation that school districts may pursue. 

Yet the Bush administration still discouraged schools from exercising the discretion the Supreme Court had just afforded them. Shortly after Parents Involved, the Office for Civil Rights at the U.S. Department of Education explicitly encouraged "the use of race-neutral methods for assigning students to elementary and secondary schools.” It never once articulated how a school that wished to pursue integration, but could not achieve it through race-neutral measures, could or should move forward. 

The silence was deafening but the message clear. The federal government would not support districts in the pursuit of integration. Even worse, it might impede their efforts.  Public school districts needed leadership and guidance in an area fraught with complicated politics and legal doctrine. Without it, all but a few districts were entirely scared away from integration even though the court had said they could pursue it. 

That is why civil rights advocates fought so hard for the Obama administration to simply take down the Bush administration guidance. Saying nothing at all was better than saying things that scared educators. The Obama administration went further and replaced the Bush-era policy with an evenly stated explanation of what the Constitution allows schools to do. It did the same for colleges and universities.

If there was any overreach in this area — as the Trump administration claims — it was by the Bush administration when it sought to push a view of the law that had failed before the Supreme Court. The Obama administration corrected that overreach and offered schools the guidance they desperately wanted and needed. That guidance did not require a single institution to do anything it did not want. It merely offered guidelines to those that of their own volition wanted to improve educational opportunities for their students.

In the initial years following Grutter and Parents Involved, uncertainty abounded and the Bush administration exploited it. This time around, schools are in a better position to see Trump’s policy reversal for what it is — an attempt to use executive power to remake the law as it wishes it to be rather than as it is. 

Schools should ignore Trump, heed courts

Since the Obama guidance, the Supreme Court has reaffirmed the educational benefits of diversity as a compelling interest in Fisher v. University of Texas. In Fisher, it also upheld the consideration of race in an admissions program that took numerous factors into consideration and sought to enroll students who achieved against the odds of their personal circumstances. Since the Obama guidance, several courts of appeals have also held that public schools can legitimately consider race in pursuing integration.

In short, the Bush administration policy has failed and the Trump administration is trying to resuscitate it under the rhetoric of an Obama overreach. Our schools must be smart enough to ignore it. As Justice Lewis F. Powell first wrote in 1978 and the Supreme Court repeated in Grutter, “nothing less than the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”

Rescinding Obama guidance does not merely ask schools to achieve diversity and integration through other means, it is a heavy handed suggestion that they abandon the goals of integration and diversity completely.

July 11, 2018 in Racial Integration and Diversity | Permalink | Comments (0)

Tuesday, July 10, 2018

Realizing Restorative Justice in School Discipline Is Not As Easy As You Think

Lydia Nussbaum has a new paper, Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform, in the Hastings Law Journal.  Her abstract provides:

Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the “School-to-Prison Pipeline.”

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute restorative justice as a disciplinary alternative. But, as this Article argues, the resulting legal directives are flawed and, therefore, unlikely to roll back the damage caused by zero-tolerance disciplinary practices. They fail both to account for the ambiguity inherent to restorative justice and to provide clear instructions on how to “build” a restorative school. With the aim of advancing school discipline reform and ending the School-to-Prison Pipeline, this Article employs jurisprudential theory to propose a collection of legal rules and standards that formalize school-based restorative justice and translate it into actionable policy.

In her introduction, she uses the experience in Los Angeles Unified School District to explain the challenge.  The shift from zero tolerance to restorative justice "did not go smoothly."

The problem, however, is that curbing zero-tolerance discipline with an abstract philosophy like restorative justice proves very difficult. Return, for example, to the story of the Los Angeles Unified School District and its struggle to concretize a restorative ethos across more than 900 campuses, in a school district containing more than 60,000 employees and 660,000 K-12 students. School administrators complained about the lack of resources and personnel to construct an alternative system for addressing student misconduct. Teachers felt as if they lacked adequate training in restorative justice principles, not to mention sufficient class time, to engage students in restorative dialogues. Some thought that troublemaking students were being allowed to stay in school to the detriment of other children’s learning. Similar complaints emerged in other school districts, like Chicago and New York City, also trying to implement restorative justice.

. . . [F]ormal law-based interventions are necessary for reforming school disciplinary practices but that, thus far, such attempts to do so by formalizing restorative justice have been wholly insufficient. To date, legislation, regulations, and court orders mandating schools to use “restorative justice” leave too much discretion to various public and private actors and fail to issue necessary guidance on a whole school approach to restorative discipline. Standing alone, the term “restorative justice” is not a legally realizable or enforceable directive but rather an inherently ambiguous idea, around which there is little consensus, that has spawned numerous, incompatible legal reforms. This confusion extends to the educational setting, where schools have difficulty implementing appropriate, high quality, and ethical restorative practices. Thus, to remove zero-tolerance discipline, which became entrenched policy through legislation and school board regulations, a new disciplinary policy based in restorative justice requires equally clear, executable legal mandates. These new legal directives will change the way school boards, administrators, and teachers make disciplinary decisions and allocate finite resources.

The solution, she reasons, is to adopt rules and standards to formalize the implementation of restorative justice.  In particular, she argues for "whole school integration of restorative philosophy" and a requirement that schools adhere to "core principles and best practices."

I suggest there is one more step and it is implicit in Nussbaum's article: tying school discipline to school resources.  As I argue in Ending Zero Tolerance and Reforming School Discipline, school discipline is, at its core, a question of school quality.  Thus, quality and discipline cannot be separated into silos. And school quality is tied to school resources.

Too often, schools have attempted to end zero tolerance without the resources they need to implement a new system.  In fact, the lowest quality and lowest resourced schools are the ones most often tasked with making this shift.  The lack of resources in these schools falls on the backs of teachers who are asked to make lemonade out of lemons--but they don't have any sugar.  No one recognizes that it is the state's job to provide the sugar--or resources--and it hasn't.  Instead, we criticize schools for making lemonade that is too sour.  Or we give in to pressures to let them revert to the old way of doing things.

The only escape from this cycle is to unwind it by acknowledging that, in so far as school quality and discipline are connected, states have a duty to provide schools with the resources they need to make the transition from zero tolerance schools to high quality schools.

July 10, 2018 in Discipline | Permalink | Comments (0)

Thursday, June 28, 2018

New Report Suggests California Has Improved Its School Funding, But Has Long Way to Go to Meet Student Needs

The Local Control Funding Formula Research Collaborative has released an interesting new report on how California’s relatively new school funding formula is playing out in the state from the perspective of the superintendents who live with those budgets every day.  California had one of the more problematic funding systems in the nation a decade ago.  The poor funding formula was particularly ironic given that California brought us the pathbreaking fundamental rights litigation, Serrano v. Priest, in the 1970s.  The court was the first to declare education a fundamental right in the modern era and did it while the US Supreme Court was reaching the opposite conclusion under the federal constitution. 

How could a state in which education was declared a fundamental right 40 years ago have such an ineffective school funding formula today? Some argued that the strict equity had created a race to the bottom.  Rather than ensure everyone received sufficient resources, the state appeared to just ensure that everyone received equally insufficient resources.  This spurred dissatisfaction with public schools and potentially played a role in the later desire for a robust charter school sector. Sorting out those causes is far too much for a blog post, but I offer them as background to say that California finally made a major leap forward with its new funding formula in 2013--a move that hopefully moves the state back toward its roots.

As the Research Collaborative writes in its new report:

Adopted in 2013, the [Local Control Funding Formula] provides all districts with base funding plus supplemental and concentration grants for low-income students, English learners, and foster youth. The law eliminated most categorical programs, giving local school systems resource allocation authority and requiring Local Control and Accountability Plans (LCAPs) be developed with input from parents, community members, students, and educators. The policy intends to promote more equitable and coherent resource allocation decisions and to lead to improved and more equitable student outcomes.

The report takes the pulse on how well this formula has worked.  It uses superintendents’ assessments as the measuring stick.  The report includes several important findings.

94% of superintendents agree that students and districts with the most needs should receive additional resources.  In other words, they agree with the premise of the funding formula.

Unfortunately, three in four believe that the formula has also created new administrative burdens—an odd phenomenon if one of the purposes was to increase local flexibility.

38% also believe that by eliminating the old categorical funding system, the new system removes essential protections that once existed for high-need students. Yet, more than half also said that the flexibility of the new system has allowed them to make innovative changes.  And three in four say the formula has helped them match funding to local needs.

But the kicker—maybe the most important question we can ask if we are concerned about student outcomes and the resources necessary to achieve them—is whether the new formula is providing sufficient funds to districts. 78% say that inadequate base funding remains a moderate or great barrier to improving teaching and learning in their district. 57% say it is a great barrier and 21% say it is a moderate barrier.

So, in short, superintendents believe California’s funding formula has been a significant step forward from the old system, but it is still has a long way to go to ensure students have equal access to the fundamental right to education.

June 28, 2018 | Permalink | Comments (0)

Wednesday, June 27, 2018

National Study of Charter School and Voucher Policies Brings Much Needed Balance to the Conversation

Grading-the-states-privatization-report-schott-npeThe Network for Public Education and the Schott Foundation have 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 is, in many respects, the one I have been waiting for. It fills in key facts that have been missing from the public debate and will help move it in a more positive direction.

In my forthcoming article, Preferencing Educational Choice: The Constitutional Limits, I also attempt to reframe the analysis of charter schools and vouchers, arguing that there are 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.  This new report drills down into the facts in a way I have never seen before.  It systematically examines charter and voucher laws in each state with a standardized methodology aimed at identifying 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
  • Transparency
  • 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.

June 27, 2018 in Charters and Vouchers | Permalink | Comments (0)

Tuesday, June 26, 2018

Nonprofits, Philanthropy, and Education: A Call for Papers




Nonprofits, Philanthropy, and Education

(Co-sponsored by the Section on Education Law)

 The AALS Section on Nonprofit and Philanthropy Law is happy to announce a call for papers to be presented as works-in-progress in our committee session at the 2019 AALS Annual Meeting in New Orleans, LA, from January 2-6, 2019.

Theme: Nonprofits, Philanthropy, and Education

Education has been changing and it is not clear that nonprofit law is keeping up.  In both post-secondary and primary/secondary education, there continue to be more and more growth of for-profit, nontraditional nonprofit, and mixed forms of educational institutions.  In addition, changes to charitable giving and endowments, including legal changes in the recent tax reform, may have an impact on educational organizations.  This program focuses on legal issues faced by educational organizations and regulators as education changes.

Eligibility: Scholars teaching at AALS member or nonmember fee-paid schools

Due Date: Friday, August 10, 2018

Form and Content of Submission: Please submit scholarly articles or drafts that address the theme (Nonprofits, Philanthropy, and Education) in some way.  The theme should be interpreted broadly, and we invite submissions from a wide variety of methodological approaches.  Articles may range from early drafts to articles that have been submitted for publication, but not articles that will have already been published by January 6, 2019.

Submission Method: please submit papers electronically in Microsoft Word format to bleff@wcl.american.edu with "AALS Nonprofit and Philanthropy Law" in the email subject line.

Submission Review: Papers will be selected for inclusion in the program after review by members of the AALS Nonprofit and Philanthropy Law section and representatives of the Education Law section.

Additional Information: Unfortunately, the section is not able to provide any funding to presenters, who will be responsible for their own expenses.  If you have any questions, please contact Benjamin Leff at bleff@wcl.american.edu. 

June 26, 2018 | Permalink | Comments (0)

Money, Markets, and Public Education, A Call for Papers

The AALS Education Law Section is pleased to announce a call for papers for our 2019 Annual Meeting session, called “Markets, Money, and Public Education.”

Panel details:
Law reform efforts vary as to the role they assign to markets and money in improving the field of public education, but one thing is certain: debates about markets and money are not going away. As alternative models of schooling (such as charters, publicly funded voucher programs, and online school systems) continue to grow, they are disrupting traditional public education in ever increasing ways. From stressing budgets to sinking enrollment, municipalities, counties, and states are struggling with how to fund and operate new schooling models while striving for high quality in their traditional public schools. Meanwhile, litigation efforts challenging state funding systems proceed in both traditional and new formats, and questions about equity pervade the debate. This session will explore these and related topics.

Submission information:
Please email submissions to Professor Eloise Pasachoff at eloise.pasachoff@law.georgetown.edu by Friday, August 10, 2018. Papers that address this theme of markets, money, and public education, broadly construed, are welcome. The Education Law Section executive committee will review the submissions and select one paper to be presented at our section’s program in January.

Although there are no requirements for the length of the submission, the review committee will preference completed drafts over abstracts or outlines. The paper selected may have the option of publishing in the Georgetown Journal of Poverty Law and Policy, although publication in that journal is not a requirement of participation in the panel; authors interested in this opportunity should so note on their submission.

The author of the paper selected will be responsible for paying all expenses associated with attendance at the AALS meeting.

Please direct any inquiries to Professor Pasachoff at the email address above.

June 26, 2018 in Conferences | Permalink | Comments (0)

After Fifteen Years of Litigation, Kansas Is on the Verge of Finally Adequately and Equitably Funding Its Schools

Yesterday, the Kansas Supreme Court issued its third decision in two years regarding the state’s school funding practices.  Yet again, the court found that the state had failed to meet its constitutional duty.  This time, however, the court found that the state was close. 

The two big issues before the court were the equality of its financing system and the adequacy.  The court found that the state had finally developed a plan that would achieve equitable access to school funding.  The prior problem with equity involved what the state calls a “Local Option Budget.” 

The LOB allowed local districts to supplement the funds they received from the state.  Without the local option funds, however, a district would fail to generate the total “foundation aid” necessary to deliver basic education.  The LOB had to be at least 15% of the district received from the state. 

Under the prior law, not all local districts had the capacity to meet their LOB targets.  The new law, according to the court, cures the problem by taking into account the percentage of at-risk students a district serves.  Those with higher percentages will calculate their LOB requirement (and the funds they are entitled to from the state) differently than other districts.  In short, high-need districts will receive more from the state and be expected to generate less locally.  This, reasoned the court, would create equity.

The court, however, found that the state has still failed to fund its schools adequately.  In other words, while the districts have equal access to funding now, the amount they have access to is still not enough. But the gap between current funds and adequacy has shrunk.  The court’s primary concern in the new opinion was that the state had not kept its adequacy calculations in line with inflation. 

The court reasoned that the state come up with a method a few years ago to reasonably calculate the level of funding necessary to reach adequacy.  While there are other higher estimates out there, the court accepted the notion that the state’s estimate would work. But the state has failed to apply the appropriate inflation increases in some years.  If the state cures this relatively small problem, it will have finally, after a decade of litigation, finally come into constitutional compliance.

For the skeptic, it is also worth noting that the court reiterated the basic principle that money does, in fact, matter to student outcomes—and not just in general.  Specific studies of money and achievement in Kansas have shown

that student achievement rose when funding increased after Montoy IV but eventually fell when funding began to decrease in 2009[]. And based upon its finding "that a correlation existed between funding and achievement, the panel determined the inadequacy was caused by underfunding."

I would be remiss, however, if I did not offer one final question. What will the state do for the lost generation? The first equity case in the state was decided by the Kansas Supreme Court on January 24, 2003.  The state has had momentary periods in which it seemed to provide equity, but never adequacy and equity.  The past 15 years, and many that preceded it, were best typified by enormous inequality and inadequacy. That the state has finally inched close to goal of simultaneously providing equity and adequacy means absolutely nothing for the generation (or generations) of students who did not get that opportunity.

Solutions for the lost generation are not easy and I will not purport to offer them here.  I would only emphasize that legislative foot dragging and the failure or inability of courts to stop it necessarily means generations are lost.  There are, in other words, serious and maybe irreparable costs to constitutional violations in education. To the Kansas Supreme Court's credit, it pushed the state probably as hard as any court in the nation.  And unlike others, it did not simply walk away when things got tough.


June 26, 2018 | Permalink | Comments (0)

Thursday, June 14, 2018

If Classroom Observations Are Biased and Value Added Assessments Are Flawed, Where Do We Go Next to Measure Teacher Quality?

Special_ed_teacherShanyce L. Campbell and Matthew Ronfeldt have published a new study: Observational Evaluation of Teachers: Measuring More Than We Bargained for? They "provide the strongest evidence to date that teachers’ ratings are significantly related to the sociodemographic characteristics of the students they teach apart from differences in teacher quality."  Their abstract offers this longer explanation:

Our secondary analysis of Measures of Effective Teaching data contributes to growing evidence that observation ratings, used as part of comprehensive teacher evaluation systems across the nation, may measure factors outside of a teacher’s performance or control. Specifically, men and teachers in classrooms with high concentrations of Black, Hispanic, male, and low-performing students receive significantly lower observation ratings. By using various methodological approaches and a subsample of teachers randomly assigned to classrooms, we demonstrate that these differences are unlikely due to actual differences in teacher quality. These results suggest that policymakers consider the unintended consequences of using observational ratings to evaluate teachers and consider ways to adjust ratings to ensure they are fair.

This is bad news for those who would replace the flawed statistical assessments of teacher quality with in person evaluations.  As I detail here, attempts to measure teacher effectiveness based on how their students perform on standardized exams haven't worked.  While these statistical evaluations make intuitive sense, the devil is in the detail.  It is very difficult, if not impossible, to isolate the effect that a single teacher has on students in a single subject matter areas. This is not to say that teaching effectiveness doesn't matter.  Of course, it does.  But pinpointing precise effects and isolating them from what student may have learned from another teacher this year, last year, and other classes is not easy.  This is to say nothing of the factors that are not even included in the data, but likely explain a lot--home factors, peer groups, etc.

Now this.  We can't even accurately assess teacher quality when we go in the room and what them because racial and socio-economic biases appear to get in the way. 

To their credit, Campbell and Ronfeldt seem to have found a way to filter the bias out.  Once they took classroom demographics into account and adjusted the scores that teachers received based on the demographics of the students they taught, the evaluations made more sense.  But this is not something a state would likely ever do. 

Unfortunately, I don't have an answer to the question I posed in the title to this blog post, but I welcome your thoughts or suggestions regarding other new research.

   --image by Dscot018 at en.wikibooks

June 14, 2018 in Teachers | Permalink | Comments (0)

Wednesday, June 13, 2018

Reasonable Expectations About Education Data Puts a Damper on "Solving Problems No One Has Solved"

Christopher Elmendorf and Darien Shanske recently published the article “Solving ‘Problems No One Has Solved’: Courts, Causal Inference, and the Right to Education” in the Illinois Law Review.  Elmendorf and Shanske advance several important arguments but two in particular. First, the reason that the unavailability of quality data on public schools presents a serious obstacle to litigants in education rights case. This lack of data and the uncertainty it produces around the operation of public schools, Elmendorf and Shanshke rightly note, has been exploited by both the left and right to advance depending on the specific case and legal theory. Their core insight is that while this has been the state of affairs for decades, it need not be: it is completely within the state’s control to design and provide access to these systems. They argue further that judges should do more to direct the state to collect and provide this access in a way that sheds light on key educational questions.

This argument about the accessibility of information is paired with their second key insight: thanks to major advancements in administrative data sets and methodological advancements in data analysis, we are in an unprecedented position to discern the causal relationship between key aspects of our education system. Judges and litigants, Elmendorf and Shanske argue, should embrace this revolution in “causal methods” to banish much of the uncertainty in what “works” in education—a key to adjudicating educational rights and defining appropriate judicial remedies.

This is an important and compelling argument--one we are glad that Elmendorf and Shanske have made. But (you knew there would be a ‘but’) as educational researchers, we  (Ethan Hutt & Morgan Polikoff) think it is important to calibrate expectations about what the embrace of the causal revolution is likely to secure. In our reply, we advance three primary arguments.  First, we underscore just how intractable the problem of access to education information has been historically. Whether one looks at early administrative data from the 19th century, the development of measures like NAEP in the middle of the 20th, or modern administrative data on course taking patterns, data collection efforts have been shaped by political pressures. Collecting accurate information about American schools is hard and it is made even more challenging by the lack of uniformity in our system. So even when we have statistical uniformity it may mask important underlying variation (and inequality).

Second, though the causal revolution is a pivotal moment in education history, it is not a panacea. Despite the major changes in data collection, methodological innovations, and computing power, there are many questions that are unlikely to give way to these new developments. There are still many questions that are unlikely to yield definitive answers and many non-technical questions about the design and operation of our school system will remain.

Finally, to try and ground our consideration of how Elemendor and Shanske’s proposal might work in practice, we consider it in the context of the case of Williams v California. This case sought to secure educational rights by requiring the state to fulfill its responsibility to monitor the operation of schools through the production of better educational data.  We wrote our reply in the hopes of introducing and engaging a broader audience around issues of considerable importance at the intersection of education data, research, and litigation. We would welcome any and all replies to our reply.

June 13, 2018 | Permalink | Comments (0)

Tuesday, June 12, 2018

Tennessee Adopts New Accountability System to Deal with the Fact It Doesn't Have Valid Test Scores, But Does It Need a Federal Waiver?

This Spring has been unusually stressful for the Tennessee education system and its officials. Standardized tests are normally stressful for students and their teachers, particularly when the test are high stakes.  This year, they became stressful for high ranking officials. For weeks, the system basically crashed or malfunctioned.  The problems were so severe and ongoing that they eventually invalidating the results of the tests. In a bygone era, this would have amounted to nothing more than a waste of time and money.  In today's world, it meant huge legal problems.  Without valid test results, how could the state run is federal accountability system that requires it to rate schools, identify those in need of intervention, and report back to Washington?

Tennessee just came up with its solution.  Chalkbeat Tennessee reports that the state has tossed out its A-F grading system for schools--the system that the US Department of Education previously accepted as a proper plan to comply with the Every Student Succeeds Act.

Now the state Education Department has come up with a different approach to help parents and communities understand how their schools performed in 2017-18.

The state will rate each school on a scale of 0-4 on six different performance indicators. And in a major concession to local district leaders, schools won’t receive a single overall grade or rating as initially planned.

Education Commissioner Candice McQueen said the change complies with a new state law ordering that this year’s TNReady scores “shall not be used to assign a letter grade to a school” — a nod to concerns that the test results may be unreliable. She believes it also complies with the Every Student Succeeds Act, also known as ESSA, the 2015 federal law that requires every state to adopt a rating system that distinguishes each of its schools in a meaningful way.   

McQueen’s approach is drawing mostly praise from education leaders and groups, even as some wonder whether a numeric system will provide the simplicity and clarity of one that grades schools on an A-F scale.

“I give the department credit for going much further than I thought they could or would based on the TNReady law. They were very creative and ambitious,” said Gini Pupo-Walker, who leads the Tennessee Educational Equity Coalition, which seeks to improve education quality for students of color.

Sen. Dolores Gresham, who chairs the Senate Education Committee, says the numeric system “is not ideal, but it does allow for some accountability and fulfills our requirement” under ESSA.

Federal officials are expected to approve the numeric rating concept and a few other revisions on Tennessee’s updated ESSA plan shared last month with the U.S. Department of Education.

McQueen recently told the task force advising her on testing matters that the numeric system will still provide useful information about how schools are doing in areas such as chronic absenteeism; out-of-school suspensions; student readiness for college, career and the military; and a variety of student achievement and growth data. The indicators are meant to give families a fuller picture of school performance than test scores alone.

I hate to throw cold water on the plan.  It seems like a good one.  But it is not clear to me how it complies with ESSA.  Under ESSA, states must identify those schools performing in the bottom 5% of their accountability system and then intervene with evidence based solutions.  They are also supposed to examine school funding to determine if that played any role in the low performance.

In Abandoning the Federal Role in Education: The Every Student Succeeds Act, I explain and critique the complexities of these rating systems. Basically, a state can take as many different school quality factors as it wants so long as student achievement measures are a substantial factor and collectively counts more than the others.  These vague outlines are problematic.  While states were to reduce schools to a single rating and rank schools across the state, parents would have no way of knowing what these ratings actually represent.  And almost no one in the state could reasonably predict how schools would fall out each year.

The problem with Tennessee's new plan is that it would not seem to reduce schools to a singular rating that would allow it to rank all the schools in the state.  If it can't rank them, then how can it identify those in the bottom 5%?  If it cant do that, how can it properly intervene in schools? I suppose Tennessee could intervene in schools that are in the bottom 5 percent of each of the data points it does have, but that seems problematic because intervention is not to be based on a single factor.  To be clear, intervention is not required for a few years, but this might even complicate the system more.  Either Tennessee will just ignore the results from the first year, which would not seem to be allowed, or it would have to try to figure out how to combine this year's results with the hopefully valid results next year.  But this involve not just comparing apples and oranges, but combining them into a single fruit.

Again, Tennessee's new plan makes sense of this year.  And to be frank, the state doesn't really have any other options.  Rather than reducing schools to a single measure, they will separate out the factors.  This will actually make sense to the average Joe.  Joe will understand what a school excels in or doesn't.  Joe won't be mislead by an overall score. But Joe will be missing that key achievement data that was required to be part of the system.  

If I were the U.S. Secretary, I would give Tennessee a waiver to operate this new plan, but the point is that it seems to me that Tennessee may need one.  And, of course, my opinion and a few quarters won't buy a cup of coffee, much less a waiver.


June 12, 2018 | Permalink | Comments (0)

Monday, June 11, 2018

School Vouchers, Special Education, and the Supreme Court

Aaron Tang has posted a new paper.  School Vouchers, Special Education, and the Supreme Court is forthcoming in the University of Pennsylvania Law Review.  His abstract provides:

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly-funded voucher to attend a private school—with the number growing each year—one recent survey found that just 37% of Americans support the practice while 49% oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it doesn’t.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular value-based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron-clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.

Tang, in his usual fashion, offers a thorough analysis of vouchers.  He also, probably more than any other, seeks to find a middle ground and provides a great primer on the competing positions along the way.  I had once attempted a middle ground on charters, reasoning that they were empty vessels and we could make of them what we wished.  I, like Tang, reasoned that the facts rather than ideology alone should determine the course.  My analysis admittedly was not as thorough as Tang's, but my real failure was wishful thinking. 

I could see what was happening with charter schools and surveyed the trends in my scholarship, but I imagined a world in which charters could move in a different direction, particularly if they are empty vessels.  I also underestimated the ideology that was driving the charter movement.  Those pushing the policies were not interested in the facts or effective policy. They were interested in pushing an entirely different concept of public education.  Cutting deals with that devil is hard to survive.  The ideology almost necessarily wins when the earnest equal educational opportunity types agree to purportedly reasonable compromises.

I don't mean to suggest Tang makes my mistake.  He argues that "one’s support for vouchers should not depend on abstract arguments about resource draining, shared societal values, subordination, or parental liberty. It should turn on what the cold, hard data tells us about the impact of school vouchers on educational outcomes for disadvantaged students."  That is not far removed from a point I make in Preferencing Educational Choice: The Constitutional Limits. I acknowledge that the constitutional train on charters and vouchers has already left the station.  The argument that they are unconstitutional on their face is near implausible, so advocates should stop making it.  

I also argue, like Tang, that we have to look at the facts and look at them in particular jurisdictions. These facts reveal that there are a host of constitutional problems in certain locations.  The difference between Tang's work and mine is the frame of analysis.  Tang seems to ask whether vouchers work for the students receiving them.  I ask how vouchers and charters affect the local education system.  This is not just a question of money.  And it is not just a question of what is taught in those schools--whether private schools might promote the same public values as public schools, as Tang allows.  The question is whether the overall system becomes more segregated, more unequal, more stratified, or more underfunded.  

I believe the overall education system not the outcomes for some subset of individual students within it must be the frame of reference.  It is the one our state constitutional systems were committed to 150 years ago.  And it is an assault on that system, not individual outcomes, that is driving today's school choice and reform agenda.  


June 11, 2018 in Charters and Vouchers | Permalink | Comments (0)