K-12 Education

Last Friday, July 19, the House passed H.R. 5, the Student Success Act–its version of the reauthorization of the Elementary and Secondary Act (ESEA)–by a vote of 221-207. The message?  State and local control. Last reauthorized under the No Child Left Behind Act of 2001, the ESEA has continued in recent years under annual appropriations funding.

The Senate Health, Education, Labor and Pensions (HELP) Committee reported its version of ESEA, the Strengthening America’s Schools Act of 2013 (S. 1094), on June 12.  The message? Federal control of the levers.  No floor time has yet been set.

Meanwhile, after much negotiation, the Senate has reached a tentative agreement on student loan interest rates.  Under the plan, undergraduates will pay 3.86% interest on subsidized and unsubsidized loans for the coming school year, after which interest rates will be pegged to the 10-year Treasury borrowing rate.  The full Senate is expected to consider the plan in the coming week

Updates on my earlier post (February 20) on school safety:  The House Education and Workforce Committee hearing set for Wednesday, February 27, 2013 will focus on school safety in the aftermath of the tragedy in Newtown, Connecticut.

Witnesses will include Bill Bond–School Safety Specialist with the National Association of Secondary School Principals (KY), Mo Canady–Executive Director of the National Association of School Resource Officers (AL), Vincent Pompei–a School Counselor with the Val Verde Unified School District (CA), Brett Bontrager–Senior Vice President and Group Executive with Stanley Black & Decker (IN), David Osher–Vice President of the American Institutes for Research (DC), and Frederick Ellis–Director of the Office of Safety and Security at the Fairfax County Public Schools (VA).  The new time for the hearing is 12:30 p.m. in Room 2175 Rayburn.

In what for the moment has trumped discussions of Mali, Egypt, the debt ceiling, and the Ravens/49ers match-up, a group of four Republican senators (John McCain, Lindsey Graham, Marco Rubio, and Jeff Flake) and four Democrats (Chuck Schumer, Dick Durbin, Robert Menendez, and Michael Bennet) released today a “Bipartisan Framework for Immigration Reform.”

What does the framework say about education?  Among other things, in creating a pathway to citizenship via a probationary legal status, the outline requires unauthorized immigrants to complete various actions (pass background checks, pay taxes, demonstrate a history of work in the U.S. and current employment), including learning English and civics, before applying for a green card.  Perhaps most significantly as to education, the framework will award a green card to immigrants who have received a PhD or Master’s Degree in science, technology, engineering, or math from an American University. Finally, one who entered the U.S. illegally while a minor will not face the same requirements as others in order to earn a pathway to citizenship.

Colleges, universities, and K-12 educators will do well to give a close reading when a bill becomes available.

In a May 10, 2012 opinion in the case of Renee v. Duncan,  the U.S. Court of Appeals for the Ninth Circuit held:  (1) that prior to enactment of an appropriations amendment (Section 163 of the Continuing Appropriations and Surface Transportation Extensions Act of of 2011, Pub. L. No. 111-322), the highly qualified teacher regulation (34 C.F.R. 200.56(a)(2)(ii))–that permitted teachers still in training to be considered “highly qualified”–violated the Elementary and Secondary Education Act of 1965 (ESEA); and (2) after enactment of section 163 and until such time as the section expires at the end of the 2012-2013 academic year, the challenged regulation is consistent with ESEA.

The Court of Appeals noted the appeal was not moot, and those challenging the regulation were not entitled to judicial enforcement of the highly qualified teacher reporting requirement to Congress.

School districts as well as teacher training organizations will want to review the opinion for its implications for the end of the 2012-2013 academic year.

Charter School advocates should take a close look at today’s U. S. Department of Education Federal Register Notice announcing the FY2012 grant competition for the Replication and Expansion of High Quality Charter Schools.  Applications are due May 7, 2012.  Under the FY2012 appropriations law, Pub. L. No. 112-74, Division F, Title III, the Secretary is authorized to reserve up to $55 million for the replication and expansion of successful charter models.

A quick perusal of the Notice raises at least two questions:  (1) If pre-existing successful models are to be replicated, why has the Department included six competitive preference priorities that may necessitate applicants changing their models to be in the running for a grant? (2) Given the grants are to replicate successful models, why give novice applicants extra points? Why not put everyone on equal footing in the competition?

Potential applicants should also note that charter Replication and Expansion grants allow extra points for policies that promote diversity.  As many who follow this issue know, the U.S. Supreme Court has decided to review this area of the law later this year in the context of higher education admissions in Fisher v. University of Texas.

On February 9, 2012, the White House announced that ten states had been approved for Conditions-Based Waivers (“ESEA Flexibility”) under the Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind Act (NCLB).  As a part of the approval, states must comply with Department-imposed conditions.  Strangely silent, the Department provided no explanation of its specific legal authority to impose the conditions.  As explained in a paper(referenced in Bob Eitel’s blog post of February 9), he and I analyze how the Department is using these Conditions-Based Waivers to push nearly every state seeking a waiver to remain forever committed to the Common Core State Standards, the companion federally-funded assessments, and the curriculum which the standards and assessments necessitate.

On the same day of the White House announcement, Education and Workforce Committee Chairman John Kline (R-MN) introduced the Student Success Act (H.R. 3989).  In part, the legislation amends the ESEA waiver authority to prohibit the Secretary from imposing new requirements or conditions that are not specified in the Act.  Though there is no authority in law even now for Department-imposed conditions, the legislation takes the law a step further to include an outright prohibition.

The Student Success Act is one of several bills introduced in the House to reauthorize the ESEA.  Others are the Setting New Priorities in Education Spending Act (H.R. 1891), Empowering Parents Through Quality Charter Schools Act (H.R. 2218), State and Local Funding Flexibility Act (H.R. 2445), and Encouraging Innovation and Effective Teachers Act (H.R. 3990).

The U.S. House Committee on Education and the Workforce will hold a hearing on public school accountability and Adequate Yearly Progress (AYP) (as provided for under the Elementary and Secondary Education Act) on Wednesday, September 14, 2011 at 10:00 a. m. in room 2175 of the Rayburn House Office Building.  The hearing will delve into the appropriate federal role in accountability, as well as innovative state and local approaches.

In an August 25, 2011 interview with Kyle Palmer, I offered comments on recent actions of the House Education and Workforce Committee to push forward legislation to reauthorize the Elementary and Secondary Education Act, as well as spoke about the U.S. Department of Education’s preliminary plans to attach conditions to waivers.  The interview can be found here.

Earlier this year the House Education and Workforce Committee held hearings to examine the impact and burden of federal, state, and local regulations upon school districts. In a related vein, yesterday Chairman John Kline and Rep. Richard Hanna sent a letter to the Government Accountability Office (GAO) asking a number of questions about federal regulatory burdens, what the Department of Education has done, and what barriers exist to eliminating such burdens.  It will be interesting to see what GAO finds and how those findings relate to the Department’s own plan for reviewing regulations mentioned earlier on July 6.

By a vote of 23-17, the House Education and Workforce Committee reported its third Elementary and Secondary Education Act (ESEA) reauthorization bill, the State and Local Funding Flexibility Act (H.R. 2445 committee substitute, on July 13.  As its name suggests, the legislation gives states and school districts significant freedom to spend federal program dollars where needed most, be that Aid for the Disadvantaged (Title I), School Improvement, Reading First, Teacher Quality, Math and Science Partnerships, or other program areas.  The list of amendments and their vote counts can be found here.  Two more ESEA bills addressing accountability and teachers are expected to move through the committee later this session.

Today (July 6, 2011), the U.S. Department of Education published a Notice of its “Preliminary Plan” for a comprehensive review of elementary, secondary, and higher education regulations in the Federal Register.  As noted in my post of July 1, institutions of higher education, school districts, schools, and others in the education sector will want to take advantage of this opportunity to opine on how existing education regulations should be changed, repealed, or otherwise modified, as appropriate.   The comment period closes July 25, 2011.

The House Committee on Education and the Workforce announced plans today to mark-up its second Elementary and Secondary Education Act reauthorization bill on Wednesday, June 22, 2011 at 10:00 A.M.

Known as the Empowering Parents Through Quality Charter Schools Act, H.R. 2218 updates the federal charter schools program by consolidating various funding streams into the existing state grant program, and by allowing either state departments of education, state charter school boards, or governors to make subgrants to support new charter school start-ups. Funds could also be used to replicate or expand high-quality charter schools.

Priority in funding will go to states that: (1) repeal caps on the numbers of charter schools; (2) allow more than a state educational agency or local school district to be an authorizer; (3) provide financing to charters that is comparable to traditional public schools; (4) support full-blended or hybrid-online charter school models; and (5) use charters to help improve struggling schools.

In the latest challenge to Arizona’s tuition tax credit program (Arizona Christian School Tuition Organization v. Winn) taxpayers sued Arizona claiming the state’s tuition tax credit program was unconstitutional under the Establishment Clause.  Under the program, one can receive a state income tax credit for contributions to school tuition organizations.  School tuition organizations, in turn, use the contributions to provide scholarships to students attending private schools, including religious schools.

The question before the Supreme Court was whether the taxpayers had standing to pursue the claim.  The plaintiffs claimed standing on only one ground—that they happened to be taxpayers.  Under Article III of the Constitution, to get into court and have a dispute heard on the merits, a plaintiff must establish standing.  Standing requires injury in fact, a causal connection between the injury and the conduct complained of, and a conclusion that it is likely (not speculative) that the injury will be redressed by a favorable decision.

In a 5-4 decision of April 4, the Supreme Court held the taxpayers lacked standing to challenge the state law.  The plaintiffs failed to establish they suffered any harm or injury as a result of the state’s establishment of the tuition tax credit program.  Any benefit to religious schools was not the result of the government’s spending choices; rather, the benefit to religious schools was the result of the decisions of private individuals giving to school tuition organizations.

What is the take away? For the citizen, it’s all “inside baseball”—a technical discussion of the law of standing (yawn), but a decent tax benefit.  For the state legislator and policymaker, it’s a step forward with tax incentives to promote school choice.  For the lawyer, it’s another example of what it takes to get into court—injury in fact.

Title IX’s seemingly endless controversies continue with no end in sight.  Last November, the National Women’s Law Center (NWLC) filed administrative complaints with the U.S. Department of Education’s Office for Civil Rights against twelve school districts across the country.  The gist of NWLC’s complaints is that the school districts are not providing opportunities for female high school students to play sports under Title IX’s “three-part participation” test (actually, a test that derives not from Title IX statutory or regulatory language but from 1979 HEW policy guidance).  NWLC is pushing OCR to apply the three-part test to high schools in each school district.

Now, other players have jumped into the fray.  The Pacific Legal Foundation has countered the NWLC complaints with letters to each OCR Regional Office, arguing that the three-part test does not apply to high school athletics under Title IX and raising Equal Protection and public policy concerns. The Independent Women’s Forum recently urged House Education and the Workforce Committee Chairman John Kline (R-MN) to investigate the impact of Title IX’s various policy interpretations on high school athletics.  And the College Sports Council, a national coalition of coaches, parents, athletes, and alumni that advocates reform of Title IX enforcement, has written each school district urging them to resist NWLC’s pressure.

A major concern expressed by PLF, IWF, and CSC is that applying the three-part test to high school athletics will result in school districts using proportional gender quotas that will cut athletics for male students.  On the collegiate level, that indeed is what has happened:  the numer of women’s teams has exceeded the number of men’s teams since 1995; male athletes and men’s teams per school have declined from 1981 to 2005 (bad); and female athletes and women’s teams per school have increased during the same period (good).

The districts facing this crossfire are the Chicago Public Schools (IL), Clark County School District (NV), Columbus City Schools (OH), Deer Valley United School District (AZ), Henry County Schools (GA), Houston Independent School District (TX), Irvine Unified School District (CA), New York City Department of Education (NY), Oldham County Schools (KY), Sioux Falls School District (SD), Wake County Public School System (NC), and Worcester Public Schools (MA).  Each school district sits in a different OCR region, so this is an issue that will receive close attention and coordination from the senior folks in OCR.

These school districts are likely facing severe revenue shortfalls and can ill afford new budget items.  It will be interesting to see how aggressively OCR moves on these complaints and the extent to which Congress will pressure ED to give some sway to the school districts in resolving these issues.

Potential applicants for U.S. Department of Education (ED) discretionary grants in both K-12 and higher education programs should take note of the Department’s latest refinements (December 15, 2010 Federal Register Notice) in its priorities for awarding grants in Fiscal Year 2011 and future years.  The notice of “Supplemental Priorities for Discretionary Grant Programs” refines what ED earlier published on August 5, 2010 (August 5, 2010 Federal Register Notice).

The 16 final priorities (they have certainly covered the territory and then some) are: (1) improving early learning outcomes; (2) implementing internationally benchmarked, college-and career-ready elementary and secondary academic standards; (3) improving the effectiveness and distribution of effective teachers or principals; (4) turning around persistently lowest-achieving schools; (5) improving school engagement, school environment, and school safety and improving family and community engagement; (6) technology; (7) core reforms; (8) increasing postsecondary success; (9) improving achievement and high school graduation rates; (10) promoting science, technology, engineering, and mathematics (STEM) education; (11) promoting diversity; (12) support for military families; (13) enabling more data-based decision-making; (14) building evidence of effectiveness; (15) supporting programs, practices, or strategies for which there is strong or moderate evidence of effectiveness; and (16) improving productivity.

These priorities are effective January 14, 2011

On June 7, 2010, the U.S. Supreme Court turned down the request of the National Education Association to review the decision of the U.S. Court of Appeals for the Sixth Circuit in School District of the City of Pontiac [MI] v. Duncan (09-0852). (cert denied, Pontiac v Duncan; en banc 6th Cir, Pontiac v Spellings; 3 judge panel 6th Cir, Pontiac v Spellings; trial court, Pontiac v Spellings).

Background.  The NEA and the school district of Pontiac, Michigan sought, through the Pontiac, Michigan case, to have the No Child Left Behind Act (NCLB)set aside as a so-called “unfunded mandate.”  In short, the NEA claimed NCLB does not require states and school districts that accept federal funds under Title I of the Elementary and Secondary Education Act (as amended by the No Child Left Behind Act), to comply with the statutory requirements of the Act if those funds do not cover the full costs of compliance. Their argument was based on the following language:

Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act. 20 USC § 7907(a).

The United States, on the other hand, argued that when states and school districts take the federal dollars, they agree to abide by the law’s requirements as a condition of receiving the funds.

Procedure of the Case. The trial judge rejected the NEA and school district’s arguments about the meaning of the unfunded mandate language and dismissed the case. The trial court noted that section 7907(A) restricts the ability of the federal government to add to the statutory conditions for receipt of federal funds, but it does not excuse noncompliance with the statutory conditions themselves or guarantee that Congress will reimburse states for other state and local money they might spend to comply with the Act.

A three judge panel of the Sixth Circuit Court of Appeals reversed in a 2-1 decision.  Thereafter, the Sixth Circuit granted a rehearing with the full court (en banc), and affirmed the trial court’s decision via an 8-8 decision.  Subsequently, the NEA petitioned the U.S. Supreme Court for review.

In its announcement on June 7 of its refusal to take the case, the Supreme Court permitted the trial court’s dismissal of the case to stand.  What that means, in essence, is that the No Child Left Behind Act (NCLB) is not an “unfunded mandate” in Kentucky, Michigan, Ohio, and Tennessee (the states of the Sixth Circuit).

Conclusion.  So whether one is a school district, teacher, principal, or state education agency, one cannot lawfully refuse to comply with NCLB in the Sixth Circuit by arguing there are insufficient federal funds to meet the requirements of the law.  Whether new or other court challenges urging the same argument make their way to the high court in future years is an open question.