Kansas Supreme Court Declares School Funding Equitable; More Money Needed for Adequate System

Two weeks ago, the Supreme Court of Kansas found that the state’s school funding system remains unconstitutional, but gave the state a year to increase the funding. This is a relief to families, as the Court had threatened to force the legislature into a special summer session to increase school funding or shut down school altogether for the fall.  It also is a relief for those looking for justice for the state’s children because it means the Court has retained jurisdiction in the case—to ensure that the legislature will have to find enough money to provide for the needs of children in the state’s public schools.

The case of Gannon v. Kansas preceded Sam Brownback’s tax-slashing tenure as Kansas’ governor, but Brownback’s tax cuts only made matters more desperate for public school districts in Kansas, and particularly for the school districts serving the state’s poorest children.

Writing on June 26, school finance expert Derek Black explains what just happened in Kansas: “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… 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 Court credits the Legislature with addressing inequity, resulting from the fact that the state has been expecting school districts to be able to raise local funding through something called a Local Option Budget (LOB).  Wealthier school districts could afford to do so; very poor districts have not been able sufficiently to supplement the state’s contribution. Black explains: “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.”

While The Court approved this system as the path to equity,  the issue of inadequacy of funding remains. In other words, despite that last year the Legislature raised taxes to offset the revenue catastrophe caused by Sam Brownback’s big experiment with supply-side, tax-slashing economics, the state is still suffering from inadequate revenue. Brownback had predicted that his tax cuts would grow the economy, but his hypothesis was wrong.  Now it is taking years for the state to catch up.

Reporters for the Wichita Eagle and the Kansas City Star explain the situation for the 2018-2019 school year: “The Kansas Supreme Court ruled… that a new school funding plan is still inadequate, but gave the Legislature another year to fix it. ‘The State has not met the adequacy requirement in Article 6 of the Kansas Constitution,’ the court ruling said.  But if lawmakers add money to compensate for inflation Kansas ‘can bring the K-12 public education financing system into constitutional compliance.’… The Supreme Court has previously ruled that the Legislature must meet two tests to satisfy a state constitutional mandate to provide ‘suitable’ education funding: It must be adequate, meaning that there’s enough total money in the system for schools to provide a quality education. And it must be equitable, meaning that the state resources are allocated to give poor children the opportunity to obtain an education of roughly similar quality to what’s provided in wealthy districts.”

Retaining jurisdiction over the case, the Court will consider it again on April 15, 2019, “when both sides will have to file reports on whether they think the Legislature has corrected the remaining constitutional issues.”

In Kansas the Supreme Court has provided the kind of checks and balances that are missing across many of the 26 all-Red states, whose legislators and governors doggedly pursue anti-tax dogma. That is why many far right politicians in Kansas have come to believe the Supreme Court itself is the problem. The reporters for the Wichita Eagle and the Kansas City Star quote Susan Wagle, the Senate President and a Wichita Republican: “Today the unelected bureaucrats of the Kansas Supreme Court chose to continue with the endless cycle of school litigation, leading us down the road to an unavoidable tax hike… When Kansas is on par with Nancy Pelosi’s California for sky-high property taxes and families are fleeing the state, we can thank the Kansas Supreme Court.” Senator Wagle and her colleagues are pushing for a constitutional amendment to remove court oversight and make education funding the sole responsibility of the legislature.

What the theoretical discussion of adequacy and equity of school funding misses is the impact on the daily experiences children and schoolteachers. Kansas is one of 12 states identified last November by the Center on Budget and Policy Priorities where the per-pupil school funding remained lower than before the great recession in 2008.  Several of the others—Oklahoma, Kentucky, Arizona, West Virginia, and North Carolina—are places where teachers walked out in massive protests this spring. We listened in those states to the teachers’ stories of huge classes, scarcity of counselors and support services, outdated textbooks, pared-down curriculum, and paltry, non-competitive salaries. We need to replay those stories mentally as we read about the Kansas court battle for better school funding.

On a a theoretical level, however, Kansas is a good example of the importance of checks and balances. It is a place where the judicial branch of government is putting a stop to a radical anti-tax experiment launched by the executive and legislative branches. That is how government is supposed to work.

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Oklahoma Primary Election Results and Supreme Court Decision Show Teachers Changed the Narrative

The New Yorker‘s Rivka Galchen reports on the stunning results in Oklahoma’s primary election. Being anti-tax seems to have doomed several prominent Republican incumbents. And many public school educators, running for office for the very first time, won their parties’ nominations. The Oklahoma Policy Institute’s David Blatt tells Galchen: “It’s the opposite of the way it has been, when legislators expected to pay for it in votes if they supported a tax increase… Now they’re paying for it in votes for having been against a tax increase. That is pretty dramatic for Oklahoma.”

The Associated Press‘s Tim Talley describes the role of public education in Oklahoma’s primary election: “Almost 100 schoolteachers and administrators filed as candidates in this year’s round of elections and at least 55 won their races in the primary or advanced to runoffs in August. Many of them were motivated by the Republican-led Legislature’s cuts to funding for public schools in recent years and nearly a decade without a pay raise, funding issues that prompted thousands of educators to walk off the job in April—a walkout that coincided with the filing period for this year’s round of elections.”

Galchen analyzes the results: “One question going into the elections was how well teacher candidates would fare; another… was how well the incumbent Republican legislators who had voted against the teachers’ pay raise would fare. Republican legislators who opposed the pay raise were mostly either beaten or forced into runoffs. Chuck Strohm, a Republican state representative, lost by more than twenty-five points to a more moderate opponent. The like-minded Scott McEachin, who represents a neighboring district—they are both solidly red areas—lost by a similarly decisive margin. Meanwhile, more than fifty educator candidates advanced….”

And, recently a referendum petition filed by Oklahoma Taxpayers Unite!—a referendum to nullify the modest tax increases the Oklahoma Legislature passed (by the outrageous 75 percent supermajority required by Oklahoma law) to pay for modest raises for school teachers—has been rejected by the Oklahoma Supreme Court. These were the first tax increases passed in Oklahoma since 1990. For Tulsa World, Barbara Hobercock reports: “A referendum petition seeking to repeal tax hikes used to fund teacher raises is invalid…. Oklahoma Taxpayers Unite! sought to ask voters to repeal House Bill 1010xx, which hiked taxes on cigarettes, little cigars, fuel and gross (energy) production. State Question 799 drew two legal challenges before the Oklahoma Supreme Court. ‘Upon review, we hold that the petition is legally insufficient and invalid,’ the court opinon said.  It ordered SQ 799 stricken from the ballot. The tax increases will take effect July 1, according to the Oklahoma Tax Commission.”  Further, “The court ruled that had the tax hike measure been repealed, it would not have nullified the teacher pay raises contained in House Bill 1023xx. The average raise is $6,100.”

Hobercock adds that the court will permit those seeking to repeal the taxes to file a new referendum, but only if the anti-tax organizers can secure 41,000 valid signatures by July 18. None of the signatures on the first petition can be reused.

How is it that the funding for the public institutions in which we have traditionally educated our children has come to encapsulate our society’s ideological war?  In his important 2017 book, The One Percent Solution, political economist Gordon Lafer explains why attacking public education has become a top priority for wealthy plutocrats: “At first glance, it may seem odd that corporate lobbies such as the Chamber of Commerce… or Americans for Prosperity would care to get involved in an issue as far removed from commercial activity as school reform. In fact, they have each made this a top legislative priority… The campaign to transform public education brings together multiple strands of (their) agenda. The teachers’ union is the single biggest labor organization in most states—thus for both anti-union ideologues and Republican strategists, undermining teachers’ unions is of central importance. Education is one of the largest components of public budgets, and in many communities the school system is the single largest employer—thus the goals of cutting budgets, enabling new tax cuts for the wealthy, shrinking the government, and lowering wage and benefit standards in the public sector all naturally coalesce around the school system. Furthermore, there is an enormous amount of money to be made from the privatization of education—so much so that every major investment bank has established special funds devoted exclusively to this sector. There are always firms that aim to profit from the privatization of public services, but the sums involved in K-12 education are an order of magnitude larger than any other service, and have generated an intensity of corporate legislative engagement unmatched by any other branch of government.” (The One Percent Solution, pp. 128-129)

Oklahoma’s fight over taxes and teachers’ salaries epitomizes the battle about the role of taxes and the public good that is engulfing our society. Hobercock presents the competing narratives by which Oklahomans have described the state Supreme Court’s recent decision and the stunning primary election results. A spokesperson for the anti-tax Oklahoma Taxpayers Unite! predicts his organization will erase the new taxes by managing by July 18th to secure the required 41,000 signatures: “The people did not support this egregious and unnecessary, burdensome tax hike. The people will have their say…. Our mistakes will be corrected.  Our motivation has been renewed.”

On the other hand, Oklahoma’s State School Superintendent, Joy Hofmeister, presents the view that seems to have prevailed in last week’s primary election: “At long last, we can reward our dedicated, hardworking public school teachers with the competitive pay they deserve… On the heels of a school year in which 1 in 7 students was taught by an untrained teacher, we can, and we must, now begin stemming the tide of Oklahoma’s crippling teacher shortage. Today’s decision clears the way for funding regionally competitive teacher pay, ushering in a new era of stability that is not only a win for public education, but for our kids and the future of our state.”

Rand Corp. Report Says Grading Teachers by Student Scores Doesn’t Work; Ohio Law Will Diminish Use of Student Scores for Evaluating Teachers

In 2009, the Bill & Melinda Gates Foundation launched a huge project to demonstrate that evaluating teachers by their students’ standardized test scores would improve education and especially the education of “low-income, minority” students. Now the Gates Foundation has paid for a huge Rand Corporation study that showed its original experiment didn’t work. Although the Gates Foundation can move on to testing another hypothesis, its prescription for grading teachers has done immeasurable damage by injecting econometric teacher evaluation into the laws of many states. It will take a long time for the 50 state legislatures to clean up laws based on a mistake.

Chalkbeat‘s Matt Barnum describes the original plan: “Barack Obama’s 2012 State of the Union address reflected the heady moment in education. ‘We know a good teacher can increase the lifetime income of a classroom by over $250,000,’ he said. ‘A great teacher can offer an escape from poverty to the child who dreams beyond his circumstance.’ Bad teachers were the problem; good teachers were the solution. It was a simplified binary, but the idea and the research it drew on had spurred policy changes across the country, including a spate of laws establishing new evaluation systems designed to reward top teachers and help weed out low performers.  Behind that effort was the Bill and Melinda Gates Foundation… Now, new research commissioned by the Gates Foundation finds scant evidence that those changes accomplished what they were meant to: improve teacher quality or boost student learning.  The 500-plus page report by the Rand Corporation… details the political and technical challenges of putting complex new systems in place…”

The Gates Foundation not only launched a giant experiment without an adequate research base, but it also leveraged the investment of public dollars and used its own lobbying might to influence public policy. The Obama administration conditioned qualification for Race to the Top grants on the use of students’ standardized test scores in teachers’ evaluations and later made the same requirement for states to qualify for No Child Left Behind waivers.

The Washington Post‘s Valerie Strauss details the history: “Put this in the ‘they-were-warned-but-didn’t-listen’ category.”  She describes the project launched in Hillsborough County (Greater Tampa), Florida, Memphis, and Pittsburgh along with four charter management organizations: “The Bill & Melinda Gates Foundation pumped nearly $215 million into the project while the partnering school organizations supplied their own money, for a total cost of $575 million.”  Federal policy makers jumped into the mix: “The Obama administration, through its Race to the Top initiative, dangled federal funds in front of states that agreed to establish teacher evaluation systems using test scores to varying extents.  And Gates funded his ‘Empowering Effective Teachers’ project with the aim of finding proof that such systems could improve student achievement…  (M)ost states adopted test-based teacher evaluation systems.  In a desperate attempt to evaluate all teachers on tested subjects—reading and math—some of the systems would up evaluating teachers on subjects they didn’t teach or on students they didn’t have. Some major organizations questioned them, including the American Statistical Association…. And so did the Board on Testing and Assessment of the National Research Council.”

Strauss quotes the conclusion of the Rand Corporation’s huge new assessment of the experiment: “Overall, the initiative did not achieve its stated goals for students, particularly LIM (low-income minority) students. By the end of 2014-2015, student outcomes were not dramatically better than outcomes in similar sites that did not participate in the IP (Intensive Partnerships) initiative. Furthermore, in the sites where these analyses could be conducted, we did not find improvement in the effectiveness of newly hired teachers relative to experienced teachers; we found very few instances of improvement in the effectiveness of the teaching force overall; we found no evidence that LIM students had greater access than non-LIM students to effective teaching; and we found no increase in the retention of effective teachers, although we did find declines in the retention of ineffective teachers in most sites.”

What the Rand Report fails to calculate is the collateral damage. It is well known that, in Hillsborough County, Florida, the Gates Foundation suspended its study before it had been completed—leaving the school district itself to cover a significant part of the cost. But beyond Hillsborough County, the consequences were long lasting as state legislatures, lured by Race to the Top funding and the need to qualify for No Child Left Behind waivers, passed laws basing teachers’ evaluations on students’ standardized test scores. When, in December of 2015, Congress replaced No Child Left Behind with the Every Student Succeeds Act, it removed the requirement that states use  students’ test scores in teachers’ evaluations, but the laws the states had put in place to meet federal requirements remained.

For example, only last week did the Ohio Legislature act to reduce the role of students’ test scores in the state teacher evaluation system. Finally—before going on a 2018 summer recess, the Ohio lawmakers passed a new statute reducing the weight of students’ standardized tests in the formal evaluation of teachers. The law passed with bipartisan support, and it is hoped that Governor John Kasich will sign it.

Last Sunday, the Columbus Dispatch‘s Jim Siegel reported that Ohio has been basing 50 percent of teachers’ ratings on students’ standardized  test scores .  Keep in mind that it is now 2018, and Ohio, like many other states, has still been using a plan that the Rand Corporation has now declared ineffective for measuring the quality of teachers.

Siegel quotes Jonathan Juravich, the 2018 Ohio Teacher of the Year, describing the new system: “No longer… (will) student growth measures be used as a disconnected evaluation factor linked to an arbitrary weighted percentage.”

Ohio is also finally doing away with “shared attribution,” according to Siegel: “Changes include doing away with shared attribution—growth measures attributed to a group of teachers that, critics say, does not accurately measure individual performance….”

State Superintendent Paolo DeMaria is quoted describing the new law: “Most importantly, we want our teachers on a path of continuous improvement, and with these changes the system places a greater focus on improvement in teacher practices that lead to better outcomes for students.”

The Bill & Melinda Gates Foundation and Obama administration’s collaborative scheme to evaluate teachers econometricaly has undermined the morale of school teachers and contributed to a climate in which teachers have been blamed unfairly when test scores don’t rise. Contrast the Gates theory, now rejected by the Rand Corporation report, with the research of Harvard’s Daniel Koretz, who explains how the test scores—so central to the school accountability movement—don’t really measure the quality of the schools or specific teachers, but instead primarily reflect the aggregate economic level of a school’s families and neighborhood:

“One aspect of the great inequity of the American educational system is that disadvantaged kids tend to be clustered in the same schools. The causes are complex, but the result is simple: some schools have far lower average scores…. Therefore, if one requires that all students must hit the proficient target by a certain date, these low-scoring schools will face far more demanding targets for gains than other schools do. This was not an accidental byproduct of the notion that ‘all children can learn to a high level.’ It was a deliberate and prominent part of many of the test-based accountability reforms…. Unfortunately… it seems that no one asked for evidence that these ambitious targets for gains were realistic. The specific targets were often an automatic consequence of where the Proficient standard was placed and the length of time schools were given to bring all students to that standard, which are both arbitrary.” (The Testing Charade; Pretending to Make Schools Better, pp. 129-130)

Ohio is now joining other states trying to undo the damage. Writing for the Stamford Advocate, Wendy Lecker, a columnist and attorney for the Education Law Center, explains: “Technology writer Eugene Morozov coined the term ‘solutionism’: a pathology that recognizes a problem based on one criterion only… solvable with a simple, preferably technological, solution. Solutionists operate with a myopic hubris, believing that if they get their simple fix right, as the chair of Google once claimed, ‘we can fix all the world’s problems.'”

The story of America’s nine year experiment with rating teachers by their students’ test scores ought to teach us to beware solutionists with gobs of money and the power to seduce policy makers.

(This blog has tracked education philanthropy from the Bill & Melinda Gates Foundation here.)

School Segregation Persists Across the States: Public Schools and Charter Schools, North and South

It is hard for me to write about school integration. As white parents, my husband and I made the choice to educate our own children in a racially integrated, majority African American public school district, and we believe the setting where they went to school was a valuable and essential part of their education. But I know that for personal reasons, many white and African American parents make a different decision, and it’s been clear to me for a long time that our decision was, quite simply, our own decision.

It is a little easier to think about racial and economic integration of schools from a public policy point of view. Sean Reardon, the Stanford University sociologist, has been showing for years now (here and here) that our society is resegregating economically, and that that segregation is hurting the educational opportunities of students who are increasingly concentrated in the poorest neighborhoods of our big cities. Much of the educational inequality that accompanies racial and economic segregation directly results from the unequal funding associated with wealth and power. Racial and economic segregation are wound together in most places, and when local, state, and federal funding are combined, our society spends far more on the education of our nation’s highest-income children. The money buys smaller classes, more counselors, more music programs, and an enriched curriculum.

In their new report on the privatization of public schools, the Schott Foundation for Public Education and the Network for Public Education present a profound endorsement of racially, ethnically and economically integrated public education: “The required inclusivity of the public school setting provides more opportunity for students to learn in culturally, racially, and socioeconomically integrated classrooms and schools, and that promotes a variety of social-emotional and civic benefits for students.  At a time when there seems to be more emphasis on community divisions in our social and political settings, attending a public school can provide students with more opportunities to encourage relationships and friendships across group lines, thus eliminating false barriers of separation. And yet our nation has embarked on a troubling course that steers us toward school privatization, exclusivity and division.”

The contribution of school privatization to the racial segregation of children at school is the subject of Emmanuel Felton’s profound report for the Hechinger Report and NBC News. Felton describes the mostly white Lake Oconee Academy charter school in Greene County, Georgia: “At Lake Oconee Academy, 73 percent of students are white. Down the road at Greene Country’s other public schools, 12 percent of students are white and 68 percent are black…. In all, there are at least 747 public charter schools around the country that enroll a higher percentage of white students than any of the traditional public schools in the school districts where they are located.  The differences between the charters and the whitest nearby public schools ranged from less than 1 percent to 78 percent.”

So, how did Lake Oconee Academy charter school make itself into a publicly funded segregation academy? “In its early years, Lake Oconee Academy created a priority attendance zone for the gated communities that surround it. This is legal in several states, allowing charters to pick the neighborhoods they want to serve. While these schools usually hold randomized admissions lotteries open to everyone in their school districts, families in preferred attendance zones get first dibs… The case of Lake Oconee Academy doesn’t just illustrate how charter schools can segregate a community, it also underscores how charters can give well-connected individuals outsize influence on local schools. The charter was the creation of a real estate development company that is also the county’s largest employer, Reynolds Lake Oconee. Company officials and their allies sit on many of the county’s most important boards.”  While the school does set aside some places for children who don’t live in its economically exclusive attendance zone, at Lake Oconee, there are other disincentives for families without resources to invest in their children. The school requires uniforms purchased from Land’s End.  And it does not offer any kind of transportation to school; parents have to drive their children—a burden for parents whose work schedules make it difficult to provide school transportation.

Felton concludes: “The proliferation of racially identifiable white charters in some states but not others can be attributed in part to differences in state laws. In addition to allowing charters to draw their own attendance zones, Georgia doesn’t require charter schools to provide school bus transportation. The four states with the most racially identifiable white charters—Michigan, Arizona, Texas and California—also don’t require charters to offer transportation or to address the issue in their charter applications. And in North Carolina, which had six such charter schools in 2015, lawmakers have discussed allowing charters to give priority to children whose parents work at corporations that have contributed at least $50,000 to the school.  In June, lawmakers passed a bill that lets four mostly white and affluent Charlotte suburbs open up charter schools that would give preference to their residents.”

School segregation is not by any means limited to charter schools. Nor is segregation limited to the South or to Republican all-Red states like Michigan and Arizona. In 2014, the Civil Rights Project at UCLA released a report identifying New York as the state with the most racially segregated schools in the United States: “New York has the most segregated schools in the country: in 2009, black and Latino students in the state had the highest concentration in intensely-segregated public schools (less than 10% white enrollment), the lowest exposure to white students, and the most uneven distribution with white students across schools. Heavily impacting these state rankings is New York City, home to the largest and one of the most segregated public school systems in the nation.”

The news has been filled this month with stories about racial segregation in New York’s exclusive specialized high schools. Mayor Bill de Blasio has now pledged to address the problem, but even in New York, doing something about racial segregation is a tough problem. The New York Times addressed the shortage of black and Latino students in New York City’s elite high schools in an editorial on Monday: “Opposition has been swift and fierce, much of it from alumni of the specialized schools, who have said the mayor’s plan would somehow lower the quality of education or ‘set kids up for failure.’ The very intensity of the response underscores how formative an experience it is to attend a specialized high school—an experience that for years has been unfairly denied so many black and Latino New Yorkers.”

Here are the stunning and deplorable statistics: “Black and Latino students make up nearly two-thirds of the city’s 1.1 million school children. Yet, of the 5,067 offers of admission to specialized schools this year, 51.7 percent went to Asian students and 26.5 percent to white students.  Latino and black students received 6.3 and 4.1 percent of the offers respectively. At Stuyvesant, the most sought-after of the schools, just 10 of the 902 students offered admission were black.”  The Times Editorial Board continues: “New York’s elementary and middle schools do not prepare children for the test, all but ensuring that students seek out extensive test preparation.  Many Asian and white students have done so for thousands of dollars apiece. Black and Latino students are likely to walk in with little or no test preparation.”

In 1971, the state legislature established in a state law known as Hecht-Calandra that students would be chosen for New York City’s specialized high schools based on scores on a single test, the Specialized High Schools Admissions Test. Even now as Mayor de Blasio has proposed expanding the admissions criteria: “Perhaps the biggest challenge to the mayor’s full plan is political, since it will require overturning Hecht-Calandra. That would take forceful lobbying from Gov. Andrew Cuomo, who has so far signaled only lukewarm support.”

Mayor de Blasio has suggested a plan clearly based on academic merit. It is hard to believe his idea would be controversial: “Mayor de Blasio has vowed to replace the test with a system, to be phased in over three years, that would eventually admit the top 7 percent of students from every middle school, based on a combination of grades and performance on state exams. City officials say that if the plan is implemented, the specialized high schools would be about 45 percent black and Latino.”

Dante de Blasio, the mayor’s biracial son and a graduate of one of New York’s specialized high schools, Brooklyn Tech, just had an opinion piece published in the New York Daily News on the subject of racial segregation in New York’s elite high schools. Now a rising senior at Yale University, Dante de Blasio writes about his experience as a black student in a school where he was in the minority: “When I went to Tech, it was clear that people were missing. Fort Greene, the neighborhood that houses the school, is majority black and Latino, and I remember the constant discontinuity of walking through this neighborhood of black faces in order to enter a school where hardly anyone looked like me… Let me tell you what I appreciated most about Brooklyn Tech. The school takes people from all across the city—many of them from immigrant backgrounds and who will be the first in their families to go to college—and offers them a quality of education that many public schools can’t. But the way these schools choose students is offering them another education: a distorted lesson in who belongs in the upper reaches of education in this nation, and who does not.”

Supreme Court Decision in “Janus v. AFSCME” Will Undermine Teachers Unions and the Common Good

Yesterday the U.S. Supreme Court released its long anticipated decision in Janus v. AFSCME (the American Federation of State, County and Municipal Employees). The decision undermines workers’ rights by threatening the fiscal viability public sector unions, including teachers unions.

The same issue—union agency (fair share) fees—was heard in 2016 by the U.S. Supreme Court in the case of Friedrichs v. California Teachers Association, but after the death of Justice Antonin Scalia, the court split 4-4, and the issue at the heart of the case was left unresolved.  After President Donald Trump appointed conservative Justice Neil Gorsuch to the U.S. Supreme Court, and after the new case of Janus v. AFSCME was appealed to the high court, yesterday’s decision ending fair share fees had been expected.

Yesterday’s 5 to 4 decision was written by Justice Samuel Alito, Jr., joined by Chief Justice John Roberts, Jr., and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch.

Yesterday’s decision finds union agency fees to be a violation of First Amendment free speech, and stops the practice of forcing public sector employees, who choose not to join a union but whose job is protected as part of a union contract, to pay a fee to cover the collective bargaining part of the union’s work. Non-members (still covered by their unit’s collective bargaining agreement) have not been paying any fee to cover the political activity of their unions, but they have, until now, been required to pay agency fees to cover bargaining.

A report released last February by the Economic Policy Institute (EPI) explains how fair share, agency fees work: “Just like in any democratic institution, when a majority of employees in a bargaining unit choose to be represented by a union, the union then becomes the exclusive bargaining representative of all workers in the unit. The union has a responsibility to represent all workers in the unit, union members and employees who decide not to join the union alike, and the employer has a duty to bargain with the union over employees’ wages and working conditions.  Unions may bargain to include union security agreements, which allow them to collect fair share fees (also known as ‘agency’ fees) from employees who do not join the union but are part of the bargaining unit… Nonmembers’ fair share fees cover the union’s expenses related to collective bargaining and contract administration, but not expenses for political… advocacy…  A union is required to represent a nonmember worker who is mistreated by the employer as the nonmember pursues a costly grievance process, even if it costs the union tens of thousands of dollars. Fair share fees enable the union to charge nonmember workers for the right to access that service if they need it… Workers who choose not to pay union dues also receive the higher wages and benefits that the union negotiates on behalf of its members… Taking away unions’ ability to collect fair share fees—while they are nonetheless required to provide services and representation to nonmembers—would threaten the very essence of unions by weakening their financial stability.”

Weakening public sector unions is part of the far-right corporate political agenda. Political economist Gordon Lafer describes the impact of the the Red-wave 2010 election that turned more than half the states all-Republican: “For the corporate lobbies and their legislative allies, the 2010 elections created a strategic opportunity to restructure labor relations, political power, and the size of government… Starting in 2011, the country has witnessed an unprecedented wave of legislation aimed at eliminating public employee unions, or where they remain, strictly limiting their right to bargain… The number of public sector jobs eliminated in 2011 was the highest ever recorded, and budgets for essential public services were dramatically scaled back in dozens of states.” (The One Percent Solution: How Corporations Are Remaking America One State at a Time, pp. 44-45)

The Economic Policy Institute report examines the organizations behind the current wave of attacks on unions along with the funders who have underwritten the legal onslaught: “The National Right to Work Legal Defense Foundation, Center for Individual Rights, and Liberty Justice Center (an affiliate of the Illinois Policy Institute which has close ties with Illinois Governor Bruce Rauner, who has been involved with the Janus case since the beginning) are separate nonprofit organizations, but they share many of the same donors.”  The donors are a who’s who of the extreme right: Donors Trust/Donors Capital Fund, Sarah Sciafe Foundation, Lynde and Harry Bradley Foundation, Ed Uihlein Family Foundation, and Dunn’s Foundation for the Advancement of Right Thinking.  EPI continues: “How do these groups benefit by limiting workers rights?  Anti-worker policies shift a greater share of economic gains to corporate players and away from ordinary workers… As union membership has fallen over the last few decades, the share of income going to the top 10 percent has steadily increased… The erosion of collective bargaining is a core part of our nation’s problems of wage stagnation and rising inequality.  Workers who are not in a union have much less power to negotiate…”

Writing for The American Prospect, Celine McNicholas and Heidi Shierholz describe what has happened in Wisconsin following an attack on public sector unions led by Governor Scott Walker: “In dollars-and-cents terms, efforts to shrink state and local workforces and reduce public-sector workers’ compensation in order to reduce taxes disproportionately benefit the wealthiest households.  Wisconsin provides an important example of this impact.  Lawmakers there passed $2 billion worth of tax cuts from 2011 to 2014, paid for by the layoffs and wage and benefit cuts of public employees.  Far from benefiting the average taxpayer, fully half of the tax cuts went to the richest 20 percent of the state’s population.  An examination of Wisconsin’s education system reveals negative outcomes following the passage of a law that virtually eliminated collective bargaining rights for most state and local government workers.  Far from improving public services after the law passed, teacher turnover accelerated and teacher experience shrank; nearly a quarter of the state’s teachers for the 2015-2016 school year had less than five years of experience, up from one in five… in the 2010-2011 school year.  These data demonstrate that attacks on state and local government workers are likely to result in reductions in the quality of public services on which most state residents depend.  For families who depend on public education, maintaining a stable, experienced education workforce is critical.  And it is the stability and experience of state and local government workers—and the quality of services they provide—that is at stake in the Supreme Court’s decision in Janus.”

While the Janus plaintiff is a member of AFSCME, not a teacher’s union, McNicholas and Shierholz believe the effect of yesterday’s decision by the U.S. Supreme Court will have perhaps the greatest impact on teachers unions. Public schools are likely to be the institutions most affected simply because of the sheer number of public employees who are educators. Educators comprise 51 percent of all state and local government workers, with elementary and secondary school workers making up 39.9 of all public state and local employees.

McNicholas and Shierholz caution about the overall impact of yesterday’s Supreme Court decision: “This is what is at the core of Janus—whether a group of wealthy donors and corporations will be allowed to rewrite our nation’s rules to serve their own interests at the expense of the public good.  The financial backers of this litigation likely do not rely on public services to educate their children, care for aging parents, or provide support for disabled family members.  Increasingly, the wealthiest interests in this country are able to bypass the state for fundamental services. They exist apart from local communities and divorced from a shared interest in many public services. This results in cases such as Janus in which wealthy, corporate interests look for ways to reduce public spending on services that they don’t need to rely on. These wealthy corporate interests are not just attacking state and local government unions’ ability to protect good, middle-class jobs in public employment—they are also attacking the crucial services on which most Americans depend.”

D.C.’s New Emergency Attendance Policy: A Compassionate Plan or Just a Way to Get Kids Over?

The Washington Post‘s Perry Stein reports that the Washington D.C. Public School District has instituted a new, emergency attendance policy to cope with chronic absence by many students—a policy that will also allow some students to graduate this year even though they missed many days of school. The District’s creation of this emergency policy surfaces some serious issues about what it means to go to school, what it means to graduate, and how schools can work with masses of students experiencing the disruptions caused by deep poverty.

It’s an important debate to have, but a graduation crisis is probably not the right context for a thoughtful resolution.

You’ll remember that in Washington, D.C., under Michelle Rhee and her successor Kaya Henderson, teachers’ and principals’ evaluations depended on educators’ capacity to produce metrics-driven deliverables—higher test scores at first, and later an ever-rising high school graduation rate. You’ll remember that under Michelle Rhee, principals and teachers were fired if they couldn’t quickly raise test scores. More recently, teachers report they have been instructed not to fail students, no matter what.  They have been asked to ensure that students have enough credits for the District to keep on raising the graduation rate.

You’ll also remember that last winter the press discovered that many students across Washington, D.C.’s high schools were being given passing marks despite missing so much school that the District’s rules said they had been chronically absent and must be failed in their classes.  Many of last year’s high school graduates were reported to have missed so much school they were not qualified to have graduated. There had also been lots of emphasis on superficial projects that had been assigned for so-called credit recovery.

Earlier this month, Perry Stein reported, that as the 2018 school year ended, the Washington, D.C. City Council passed a law permitting chronically absent students to graduate: “High school seniors who missed more than six weeks of class would still receive their diplomas under an emergency measure approved by the D.C. Council, even as the city remains mired in a graduation scandal… The vote set up a potential showdown between the council and Mayor Muriel E. Bowser (D), whose signature is necessary for the reprieve to go into effect. Bowser’s administration has said it opposes the measure….” By mid-June, Bowser still had not decided whether to sign the emergency law.

The school district’s new emergency rules announced last week would appear to be designed to appease members of the Council without Bowser’s having to sign the law. The new rules appear to be designed to satisfy concerns by members of the Council about acute challenges posed for students by extreme poverty: “(T)he proposed regulations come in the wake of a city-commissioned report that found that 1 in 3 high school graduates in 2017 received their diplomas despite accruing too many absences or improperly enrolling in makeup classes… Following the release of the city-ordered report in January, teachers and community members said that students have lives complicated by unstable homes, jobs and responsibilities for taking siblings to schools. In such an environment, attending school each day, in full, can prove challenging… The introduction of the updated rules Friday… suggests that school leaders are acknowledging the obstacles confronting students… The regulations allow schools to decide if they want to alter their academic days, including adding periods to the day to accommodate students who struggle to attend school during standard hours.” The new rules would still fail students with more than 30 unexcused absences during the school year.

Here are some questions that occur to me as I read about this new policy:

  • Should there be different expectations for students who cut school because they don’t care and students who cut school because they have to be responsible for a younger sibling or who cut school because they accompany their mother to eviction court?
  • If students are working jobs during school hours, can they be said in any way to be attending school?
  • Does it matter if students come to class regularly?
  • How does chronic absence by a large number of students affect the work of teachers and the dynamics of any classroom?
  • How can a school accommodate a large number of chronically absent students coming and going on different schedules?
  • What sort of makeup projects or exams can be designed that require the same sort of understanding of a subject that students regularly participating in class would likely gain?

Our nation’s school accountability policies under No Child Left Behind and its replacement, the Every Student Succeeds Act evaluate and rate schools and teachers by the test scores of their students and school graduation rates. What does this year’s Washington, D.C. graduation scandal—reflecting outrageous rates of chronic absence—expose about a national policy that judges school improvement by factors that are not a reflection of what is happening in school? Washington, D.C. is not the only school district that has struggled with chronic absence. Other districts are coping with this challenge by creating incentives and outreach programs to try to increase the number of students who are in school.

It seems important that Washington, D.C. is being forced to acknowledge publicly the kind of challenges students bring to school—family issues we pretend do not exist as we assume that all schools address the same sort of student needs. A wealthy suburban school district can set rules for students whose primary life responsibility during adolescence is attending school. But what about school serving students with a mass of other challenges?  If the D.C. Public Schools can meet students’ needs with more flexible scheduling and other accommodations to help students participate fully and do the work, that would be a welcome innovation other school districts could consider. But surely flexibility and accommodation should not reduce or replace academic rigor.

While we might understand why D.C. Council members sympathize with students who, due to their family challenges, cannot get to school, aren’t there good reasons for expecting students to be in school—especially if we expect to award a diploma to mark each student’s accomplishment of finishing high school?  Doesn’t society have a responsibility to set a better economic foundation for families so that students can comfortably fulfill their responsibility to be in school?  If that were the case, we could assume that students’ cutting school ought to be an infraction with clear cut consequences.

Rright now in the Washington, D.C. Public Schools—a school district that has made raising the graduation rate the single metric by which the District can tout itself as a national model—it will be important to ensure this emergency plan isn’t just a way to get students over and brag about raising the District’s graduation rate. The District will need to study carefully the reasons for seemingly outrageous rates of chronic absence among adolescents and announce clear rules for student attendance.

Most important, the District will need to demonstrate that any new policies designed to accommodate students’ personal needs neither diminish nor undermine the expectation that, to graduate from high school, students will complete a full academic program.