Roberts’ Decision in Espinoza Case Undermines Protection of Church-State Separation; Will Damage Public Education

On Tuesday, the U.S. Supreme Court released a long awaited decision in the church-state separation case of Espinoza v. Montana Department of Revenue. Chief Justice John Roberts wrote the majority opinion in the 5-4 decision. NY Times Supreme Court reporter, Adam Liptak quotes Roberts’ argument: “‘A state need not subsidize private education…. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.’ In dissent, Justice Sonia Sotomayor said the majority opinion ‘weakens this country’s longstanding commitment to a separation of church and state beneficial to both.'”

Although historically, religious liberty and church-state cases have been decided on the basis of the First Amendment’s “establishment clause,” this week’s decision rests on what’s known as the “free exercise clause.”

In a particularly lucid explication of this week’s decision, VOX’s Ian Millhiser explains: “The First Amendment places two limits on the government’s interaction with religion: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’… Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful—a dual obligation that courts have often found difficult to reconcile.”

Millhiser continues, explaining that Roberts’ decision rests on a 2017 precedent: “As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer... which held that the state of Missouri could not exclude religious organizations from a state program that offered ‘grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.’… According to Roberts, Trinity Lutheran reached the ‘unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.’ Just as the Missouri recycled tires program ‘discriminated against the Church simply because of what it is—a church,’ the Montana constitution ‘bars religious schools from public benefits solely because of the religious character of the schools.'”

The current Espinoza case was brought by several mothers whose children are enrolled in the Stillwater Christian School in Kalispell, Montana.  Plaintiffs were represented by—and clearly recruited by—the Institute for Justice, a far-right, libertarian law firm which, for years, has set out to challenge First Amendment protection of the separation of religion from government. In this case, the Montana Supreme Court had already partially shut down the tuition tax credit program at issue in the case.  Writing for Education Dive, Linda Jacobson reports that the program will now continue: “In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision.”

The Espinoza decision will affect the 37 states with what are known as Blaine Amendments in their state constitutions. Jacobson explains: “The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful.”

Why are supporters of public education so concerned about the implications of this case? In the first place, voucher programs drain needed tax dollars out of public schools. In Ohio, for example, a state that already permits public funds to flow to religious schools, EdChoice vouchers extract $4,650 for each elementary and middle school voucher and $6,000 for each high school voucher—right from the local public school district’s budget.

Another serious problem with vouchers is that the law protects students’ rights in public schools, but the same laws do not protect students enrolled in private schools. Writing for Slate, Mark Joseph Stern worries that now, after Espinoza: “Taxpayers in most of the country will soon start funding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience.  For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest.  But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs?”

Stern continues, examining how quickly Supreme Court opinions have reversed Constitutional interpretation of church-state issues: “This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion.’  Just 18 years ago in Zelman v. Simmons-Harris, a bare majority of the Supreme Court ruled that, under the establishment clause, states were allowed to fund private schools through vouchers or tax credits, over vigorous dissents from the four liberal justices. Now the court has declared that, under the free exercise clause, most states are compelled to fund private religious schools”—that is if they choose to use vouchers to divert tax dollars to any private schools.

The Baptist Joint Committee for Religious Liberty was joined in an amicus brief in the Espinoza case by the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ, and the Stated Clerk of the Presbyterian Church, U.S.A.  After the Supreme Court’s decision on Tuesday, the Baptist Joint Committee General Council, Holly Hollman declared: “The decision’s high concern for equal treatment of religious schools disregards the distinctiveness of religion in our constitutional order and contradicts the special treatment that religion rightfully receives to keep government from influencing and interfering with it.  In a shell game that focuses on preventing discrimination based on religious status, the Court fails to recognize Montana’s legitimate interest in protecting religious freedom by avoiding funding religious education.”

Forward, a Jewish publication, quotes Nathan Diament of the Orthodox Union: “It’s a great help to our ongoing advocacy efforts to have state and local governments provide a fair and equitable share of support for our K-12 schools in the Jewish community.”

However Forward also quotes Rabbi Jonah Dov Pesner, on behalf of the Religious Action Center of Reform Judaism: “We are deeply disappointed in the Supreme Court’s decision to invalidate Montana’s prohibition on state funding of private religious schools… We joined an amicus brief in support of Montana’s prohibition on financial support for religious education, because not only do tuition tax credits and other types of school vouchers divert desperately needed funding from public schools, these programs also violate separation of church and state when such funding is directed towards religious schools.”

Americans United for Separation of Church and State responded to Tuesday’s Espinoza decision: “Let’s not forget that vouchers were first developed to evade integration orders and fund segregation academies specifically designed to keep black and white students apart.  Even now, national data show that private schools tend to be more segregated than similarly situated public schools and enroll higher populations of white students compared to public schools… Three-quarters of state constitutions contain provisions intended to protect taxpayers from being forced to fund religion, a long-held value. The Supreme Court’s decision sets a dangerous precedent….  Now that the Supreme Court has ruled that taxpayer-funded vouchers must fund private religious schools if they fund secular private schools, it is more important than ever that we fight to oppose all private school voucher programs. Public dollars should fund public schools, which educate 90% of our nation’s students… We must reject the Trump-DeVos agenda of private school voucher programs that divert desperately needed resources away from public schools in order to fund private religious instruction.”

Over many years, when plans to establish voucher programs have been set up as ballot issues,  American citizens have universally voted to defeat the proposals. My suspicion is that most American’s favor the protections promised in the First Amendment’s “establishment clause” rather than accepting Roberts’ convoluted argument justifying vouchers under the “free exercise clause.”

Final CARES Act Disribution Rule Still Favors Private Schools Over Public Schools

Betsy DeVos just released binding final guidance for states to distribute $13.2 billion from the CARES Act to public school districts and private schools. States and public school districts have been pushing back against DeVos’s preliminary non-binding guidance, which favors funding for private and religious schools.  Now in her final guidance DeVos has struck a compromise of sorts, but many think her new plan is unworkable.

In the language of the CARES Act, Congress distributed $13.2 billion in relief funds to school districts  to reflect the distribution plan in the Title I formula, which sends federal money to school districts according to the number and concentration of impoverished students enrolled in the district’s public schools. Title I also requires school districts to provide Title I services for students who live below 185 percent of the federal poverty level and are enrolled in private schools located within district boundaries. In April, in her preliminary (non-binding) guidance for distribution of CARES Act dollars, however, DeVos prescribed that CARES Act dollars would be distributed to private and religious schools based on their total enrollment, not just for the number of impoverished students they enroll.

Education Week‘s Andrew Ujifusa explains how Betsy DeVos’s new final rule revises her previous non-binding guidance for the distribution of CARES Act dollars to public and private schools:

  • “A district can decide to distribute the CARES money only to schools that received Title I for the 2019-20 school year—essentially, those schools with a minimum share of students from low-income backgrounds.
  • “If districts choose to distribute aid only to Title I schools, they can use two options to calculate how much money they set aside for equitable services (for private schools): they can use the same amount for equitable services they set aside for the 2019-20 school year, or they can conduct a count of low-income students in local private schools to determine the proportional share.
  • “If a district distributes aid only to Title I schools, it can’t use the CARES money to backfill cuts at the state and local level. That could create a very big incentive for districts not to spend CARES money only on Title I schools, given the huge budget cuts many districts are facing.
  • “But if a district distributes CARES aid to schools that didn’t receive Title I in 2019-20, then it must calculate the amount it must set aside for equitable services (for private schools) using a count of all local students enrolled in private schools in the district.”

Ujifusa explains why what appears to be DeVos’s compromise may actually complicate decisions for school districts already struggling financially and at the same time trying to figure out how to reopen school this fall: “The… final rule could in theory make life easier for districts where all the schools received Title I in 2019-20, since they could treat equitable services (for private schools) like they always have.  But districts with some schools that didn’t get Title I in 2019-20 would have to weigh whether they want to help all their schools, and then set aside more money for private school students as a consequence, or only use CARES aid to benefit their schools with relatively large shares of poor students and reserve less money for students in private schools.” Under the new compromise, if schools target CARES Act dollars only to their Title I students, these dollars cannot be used to fill in for what are in many cases enormous overall recessionary cuts in state aid.

The Washington Post‘s Laura Meckler explains why what seems to be a compromise really isn’t designed to meet the needs of most school districts: “The agency offered what it billed as a compromise.  It said that school districts may distribute the money to private schools based on the number of poor students they serve.  But if they do so, districts must then restrict their own spending of the federal money to the benefit of their own poor students… Opponents said this was not a real alternative.  Although the law (CARES Act) uses poverty to allocate funding, it allows districts to use the money to aid all schools and students. It’s designed to offset expenses such as cleaning of schools and training teachers in remote education. Opponents said restricting districts’ spending authority to only high poverty schools would hamstring them. A GOP congressional aide agreed and said Congress never intended to give private schools so much funding and DeVos is jeopardizing other efforts to provide them with aid.”

Meckler quotes Dan Domenech, executive director of the School Superintendents Association: “The policy priorities of the secretary represent an opportunistic money grab, using the pandemic environment to advance the privatization agenda.”

In a follow-up piece, Ujifusa reviews the controversy about DeVos’s original plan to force school districts to award CARES Act dollars to private and religious schools based on those schools’ total enrollment: “Advocates have… accused DeVos of exploiting the pandemic and CARES aid to shore up private schools fearful that they could be forced to close permanently, at the expense of traditional public schools. The fight over roughly $13 billion in federal Covid-19 aid revives long-running and bitter disputes over DeVos’s stance on traditional public schools, and whether she is intent on redirecting resources and other benefits to private schools and other educational models. At least two states have said recently they plan to ignore the late April guidance, and at least one state—Tennessee—has said it will follow the directive.  However, Sen. Lamar Alexander, R-Tenn, the chairman of the Senate education committee, said last week that he differs from DeVos about equitable services (for private schools) under the CARES Act. Congress has the power to overturn DeVos’ guidance,although Alexander did not say he supported a move to do either of those things.  Federal lawmakers can also nullify regulations from agencies like the Education Department.”

Back in May, after the Council for Chief State School Officers complained that DeVos’s preliminary guidance for distribution of CARES Act dollars favored private schools at the expense of public schools, DeVos accused the state school superintendents and other public school educators of selfishness and unwillingness to share: “We trust that LEAs (‘Local education agencies’ is the federal term for local school districts.) understand their general obligations to provide equitable services to students and teachers in nonpublic schools when they accept (federal) money….  Although I understand their reflex to share as little as possible with students and teachers outside of their control, I would remind states and LEAs that their non-public school peers have also been overwhelmed by COVID-19.”

Let’s stop here and consider the idea of selfishness among local school districts. Even when, as advocates, we seek more equitable funding for the poorest school districts, nobody I know wants a funding system that would take away from the services provided in the wealthiest school districts.  When I think about the richest school districts I know personally, I don’t want them to give up their challenging curricula; their art and school music programs and high school orchestras; their advanced science and math courses; extra electives in literature, history and government; high school newspapers; well supplied school libraries; up to date technology; smaller classes; school nurses in every building; and manageable case loads for counselors, school psychologists and social workers.  What we all want is more of these services in the poorest schools to bring them to a level of what most parents would define as adequate services. Everybody I know who seeks better public school funding equity wants to level up, not to level down.

Public education dollars buy services for 50 million children and adolescents across the United States. State superintendents and local school district officials are not selfishly trying to hoard CARES Act dollars.  These educators want to protect federal CARES Act dollars urgently needed in the nation’s 98,000 public schools for the purpose of serving students during the pandemic and making up for deep recessionary cuts in state funding. They are trying to protect federal emergency assistance desperately needed in our public institutions.

Budgeting for the Public Good

Public schools—publicly funded, universally available, and accountable to the public, while imperfect, are essential for ensuring that all children are served.  Public schools are the optimal way to balance the needs of each particular child and family with the need to create a system that secures the rights and addresses the needs of all children. Our society has improved justice in our system of public education over the generations because the U.S. Constitution, the constitutions of the 50 states, and laws passed by Congress and the state legislatures protect the rights of all children including previously marginalized—African American, Native American, disabled, immigrant, and LGBTQ—children. Public schools will always need to be improved to do a better job, and public oversight under law is embedded into the very design of public education. If a student is poorly served, the family has the right to redress under the law.

Private schools, which accept publicly funded tuition vouchers, are neither required to protect the rights of disabled children by providing the necessary and appropriate programming, nor to provide services for undocumented children, nor to accept children of every religion. And while charter schools that contract with the government are charged with protecting students’ rights, many find ways to push out the students they don’t want or employ zero tolerance disciplinary practices that violate children’s civil rights. Oversight is supposed to be provided by state laws in the more than 40 states which have set up charter schools, but in many cases the laws are weak and enforcement is lax.

Private schools accepting publicly funded tuition vouchers and charter schools, which are paid tax dollars under government contracts, extract public funds from the public school system, which serves 90 percent of our society’s children and adolescents, roughly 50 million young people. While recently President Donald Trump, has been trashing “government” schools,” he and Education Secretary Betsy DeVos both support privatized alternatives which are, ironically, paid for by government. School choice creates a marketplace of privatized services, but the costs are absorbed by government at the expense of the public schools that serve most of our children. These publicly funded but privatized educational institutions pay for their operating expenses with public dollars, but no one can promise they will protect the public good.

I guess if you are a right-leaning promoter of school privatization like Betsy DeVos, you would consider the Center on Budget and Policy Priorities “a left-leaning think tank,” a tag I often see in the press next to the name of this national organization.  After all, as its name explains, it is an organization that examines the appropriation of public dollars for public purposes—the federal budget and the budgets of the fifty states. The Center on Budget and Policy Priorities (CBPP) examines the priorities represented when federal and state legislative bodies appropriate money.  If you don’t like public institutions like public schools, or if you don’t like funding for programs like CHIP (children’s healthcare) or SNAP (food stamps) you might disdain the CBPP—by callling it a liberal think tank—because it advocates funding levels for these programs. CBPP looks at public funding trends over the decades and how these funding trends reflect the level of services provided.

As someone who values public schools as among our society’s primary civic institutions, I value the the Center on Budget and Priorities for objective analysis of public school budget appropriations across the states. In a June 11, 2020 brief, CBPP reviews the history of the impact of the Great Recession a decade ago on public education budgets across the states: “When COVID-19 hit, K-12 schools employed 77,000 fewer teachers and other workers than before the Great Recession even though they were teaching 2 million more children, and overall K-12 funding in many states was still below pre-recession levels. In response (to the Great Recession), many districts had to increase class sizes, employ fewer school nurses, and counselors, and postpone needed investments in technology and school buildings. These cuts harm students—especially students in low-income districts, who are disproportionately students of color. One study found that high-school graduation rates fell by 2.6 percentage points for every 10 percent spending cut by public school districts after the Great Recession. Cuts in state support often widen educational divides between students in poorer districts and those in wealthier districts, which can more easily make up for the lost funding.”

Now, due to COVID-19 business shutdowns and layoffs, the U.S. economy has fallen into another recession.  CBPP’s June 11 policy brief addresses the likely impact of the current COVID-19 economic crisis crisis on children: “States’ fiscal crises threaten cuts that would damage children’s future. Due to the pandemic and resulting economic fallout, states face historic shortfalls of hundreds of billions of dollars over three state fiscal years. Absent further fiscal relief states and localities will be forced to cut services, likely including services particularly important to children, such as K-12 education and possibly even the Children’s Health Insurance Program. School districts have laid off or furloughed 760,000 employees over the last three months. Such cuts can have lasting impacts. K-12 funding faced especially damaging cuts in the Great Recession and school districts have never fully recovered from the layoffs imposed back then.”

In a second report, on June 15, The Center on Budget and Polities Priorities State Budget Watch explains: “COVID-19 has triggered a severe state budget crisis. While the full magnitude of this crisis is not yet clear, state revenues are declining precipitously and costs are rising sharply with many businesses closed and tens of millions of people newly unemployed… CBPP estimates that state budget shortfalls will ultimately reach almost 10 percent in the current fiscal year (which ends on June 30 in most states) and about 25 percent in fiscal year 2021 based on recent economic projections… States must shortly adopt budgets that will extend until July 2021. State revenue estimators are likely proceeding cautiously with these initial estimates… Policymakers will want to be more certain about the scale of expected revenue drops before making large and harmful budget cuts. Current economic forecasts strongly suggest, however, that as the full scale of the downturn becomes clearer, revenue projections will fall further… Even the initial projections now available make clear that states face an immediate crisis in their current fiscal years.”

Finally, in a  June 15, policy brief, the Center on Budget and Policy Priorities warns: “Our estimate of $615 billion in shortfalls over state fiscal years 2020-2022 is based on the historical relationship between unemployment and state revenues and on the average of the CBO (Congressional Budget Office) and Federal Reserve Board projections. The estimate demonstrates that the federal aid policymakers have provided to date, while helpful, will fall far short…  States hold $75 billion in their rainy day funds, a historically high amount, but far too little to meet the unprecedented challenges they now face.  And, even if states use all of it to cover their shortfalls, that would still leave them about $440 billion short. The shortfalls that local governments, tribes, and territories face are in addition to this.” (emphasis in the original)

The June 15 brief continues: “States must balance their budgets every year, even in recessions. Without additional, substantial federal help, they likely will deeply cut critical program areas such as education and health care, lay off teachers and other workers in even greater numbers, and cancel contracts with many businesses… The coronavirus relief bill that the House passed on May 15, the HEROES Act, includes substantial state and local fiscal relief…. States need robust aid of this nature to avoid making cuts that would further weaken an already weak economy and cause further widespread hardship.”

It is now the end of June, and school superintendents and school boards are trying to figure out how to plan for the 2020-2021 school year, scheduled to begin in mid-August in most places.  When National Education Association Vice President Becky Pringle testified to the U.S. House  of Representatives Education and Labor Committee on June 15, she emphasized the urgency of the need for more federal assistance: “We thank the House for taking bold action to pass the HEROES Act, and we call on Mitch McConnell and the Senate to abandon their wait-and-see approach and act quickly. Schools are already planning for the upcoming school year and all of the new dilemmas—COVID-related and beyond—that it will bring.  They need the certainty that this legislation can offer.”

No Matter What Trump Says, School Choice Is Not the Civil Rights Issue of our Times

Twice in the past couple of weeks, President Donald Trump has been out promoting school choice as the civil rights issue of our times.

Trump went to Dallas,Texas, supposedly to discuss the recent tragic police killings of unarmed African Americans. The Washington Post‘s Valerie Strauss describes what happened: “At Gateway Church in Dallas, Trump met with law enforcement officials, pastors and business owners and talked about his four-point plan to ‘build safety and opportunity and dignity’ for communities of color. He did not discuss why the police chief, sheriff and district attorney of Dallas—all of whom are African Americans, were not invited to the event focused on injustice and policing. Trump bashed public schools, calling them ‘bad government schools’ in which African Americans get ‘trapped’—although Surgeon General Jerome M. Adams said at the same event that it was important for schools to reopen safely as soon as possible.”

Then last Tuesday, The Hill‘s Brett Samuels reported that in remarks at the White House Rose Garden, Trump once again mentioned school choice: “We’re fighting for school choice, which really is the civil rights (issue) of all time in this country… Frankly, school choice is the civil rights statement of the year, of the decade and probably beyond because all children have to have access to quality education.”

I certainly agree with the President that all children must have access to quality education, but I also appreciate what Samuels noticed: “The comments describing school choice as the preeminent civil rights issue of the day appeared out of place as the nation is gripped by protests over the treatment of black Americans by law enforcement.”

Perhaps the President has recently turned to Education Secretary Betsy DeVos to help him define primary themes for his reelection campaign.  If so, some reminders are in order.

At the most basic level, the cost of school privatization is prohibitive in the midst of this COVID-19 recession we are all experiencing.  While many states are in essence supporting three kinds of schooling—traditional public schools, charter schools, and tuition vouchers for private and religious schools—in data released last week, the National Education Association demonstrates that unless Congress appropriates a large infusion of federal HEROES Act spending to prop up state budgets over the next three years, there will likely to be a loss of 1.9 million teachers and other school staff—about one-fifth of the public education workforce across the United States (see here and here).

For Shawgi Tell, a professor at New York’s Nazareth College, it is obvious why Trump’s idea of expanding school privatization is financially unsustainable: “Now is not the time to divert even more public funds to private businesses like charter schools…  The nation’s public schools have been suffering budget cuts for years, and now with the “COVID Pandemic” they will experience deeper funding cuts.  Yet the federal government and state governments continue to funnel huge sums of public funds to segregated non-profit and for-profit charter schools that operate without transparency and (that) close regularly… Society needs a public authority that provides the human right to education with a guarantee in practice, which means fully funding all public schools and making sure high quality public schools are available to all for free in every neighborhood. Funding ‘free market’ arrangements in education while letting the nation’s public schools go underfunded is especially absurd given the repeated failure of the free market to produce stability and success for all.”

Political economist Gordon Lafer explains definitively why charter schools are fiscally unsustainable—robbing the Oakland Unified School District in California of $57.3 million each year that could be spent on the needs of the city’s public schools: “To the casual observer, it may not be obvious why charter schools should create any net costs at all for their home districts. To grasp why they do, it is necessary to understand the structural differences between the challenge of operating a single school—or even a local chain of schools—and that of a district-wide system operating tens or hundreds of schools and charged with the legal responsibility to serve all students in the community. When a new charter school opens, it typically fills its classrooms by drawing students away from existing schools in the district…  If, for instance, a given school loses five percent of its student body—and that loss is spread across multiple grade levels, the school may be unable to lay off even a single teacher… Plus, the costs of maintaining school buildings cannot be reduced…. Unless the enrollment falloff is so steep as to force school closures, the expense of heating and cooling schools, running cafeterias, maintaining digital and wireless technologies, and paving parking lots—all of this is unchanged by modest declines in enrollment. In addition, both individual schools and school districts bear significant administrative responsibilities that cannot be cut in response to falling enrollment. These include planning bus routes and operating transportation systems; developing and auditing budgets; managing teacher training and employee benefits; applying for grants and certifying compliance with federal and state regulations; and the everyday work of principals, librarians and guidance counselors.” “If a school district anywhere in the country—in the absence of charter schools—announced that it wanted to create a second system-within-a-system, with a new set of schools whose number, size, specialization, budget, and geographic locations would not be coordinated with the existing school system, we would regard this as the poster child of government inefficiency and a waste of tax dollars. But this is indeed how the charter school system functions.”

Indigo Oliver reports for In These Times, that as a recession threatens public school budgets, one of the biggest private, for-profit, online charter school companies is positioning itself to profit: “On its most recent quarterly earnings call, Timothy Medina, chief financial executive for virtual charter school operator K12Inc., said, ‘We believe the effects of Covid-19 will be a lasting tailwind to online education.’ The company was founded in 2000 by former Wall Street investment banker and McKinsey & Co. consultant Ron Packard…. Since then, K12 has grown into one of the largest for-profit education companies in the world, with revenue topping $1 billion last year. Now, amid uncertainty about the future of in-person education, the company sees an opportunity to extend its reach even further.  K12 has been involved in targeted lobbying campaigns through the American Legislative Exchange Council for nearly two decades, and company executives suggested during the earnings call that they have been working with state legislators and school districts to expand the market for online learning this fall. They’ve also worked with the Heritage Foundation… to draft policy recommendations on Covid-19 Recovery efforts.  K12 operates more than 70 online schools, the majority of them tuition-free and publicly funded through partnerships with school districts.  K12 tuition-free online public schools account for nearly 30% of all virtual school enrollments in the country.”

Over the weekend, Washington Post columnist Helaine Olen attacked Education Secretary Betsy DeVos for failing to lead the U.S. Department of Education as citizens have a right to expect—to provide guidance for getting the nation’s 98,000 public schools up and running in the fall: “The Education Department… is all but silent, issuing little in the way of guidance…. It’s not that DeVos isn’t hard at work—it’s just that she’s not devoting her efforts to what we would assume a federal education head should be prioritizing. For DeVos, the pandemic is no obstacle to pushing her long crusade for charter schools and ‘school choice’…. She’s attempted to reroute a portion of the $13.5 billion in the CARES Act dedicated for K-12 funding needs—money that’s supposed to be distributed based on poverty and need formulas—to independent and religious schools.”

Professor Tell concludes: “Treating education as a commodity or consumer good… is not the way forward… Social responsibilities must not be outsourced to private interests and subjected to the inhumanity of the ‘free market.’… Thousands of families have already been abandoned by… charter schools that have closed over the years for financial malfeasance and poor academic performance.”

Privatized educational alternatives like charter schools and vouchers for private school tuition not only extract public funds needed in the public school system to serve 50 million American children, but they also undermine our rights as citizens and our children’s rights. Only in the public schools, which are governed democratically according to the law, can our society protect the rights of all children.

The late political philosopher, Benjamin Barber, warns about what we all lose when we try to privatize the public good: “Privatization is a kind of reverse social contract: it dissolves the bonds that tie us together into free communities and democratic republics. It puts us back in the state of nature where we possess a natural right to get whatever we can on our own, but at the same time lose any real ability to secure that to which we have a right.  Private choices rest on individual power… personal skills… and personal luck.  Public choices rest on civic rights and common responsibilities, and presume equal rights for all.  Public liberty is what the power of common endeavor establishes, and hence presupposes that we have constituted ourselves as public citizens by opting into the social contract. With privatization, we are seduced back into the state of nature by the lure of private liberty and particular interest; but what we experience in the end is an environment in which the strong dominate the weak… the very dilemma which the original social contract was intended to address.” (Consumed, pp. 143-144)

If High Stakes Standardized Testing Fades, Lots of Awful Punishments for Students, Teachers, and Schools Would Disappear

In yesterday’s Washington Post, Valerie Strauss published a very hopeful column: It Looks Like the Beginning of the End of America’s Obsession with Student Standardized Tests.  I hope she is right.  Her column covers current efforts to stop the requirement for college entrance exams and the wave of testing in primary and secondary public schools that was enshrined in the 2002 No Child Left Behind Act. This post will be limited to examining the implications of the mandated standardized testing that, for two decades, has dominated America’s K-12 public schools.

Strauss begins: “America has been obsessed with student standardized tests for nearly 20 years.  Now it looks like the country is at the beginning of the end of our high-stakes testing mania—both for K-12 ‘accountability’ purposes and in college admissions.  When President George W. Bush signed the K-12 No Child Left Behind Act in 2002, the country began an experiment based on the belief that we could test our way to educational success and end the achievement gap.  His successor, Barack Obama, ratcheted up the stakes of test scores under that same philosophy. It didn’t work, which came as no surprise to teachers and other critics. They had long pointed to extensive research showing standardized test scores are most strongly correlated to a student’s life circumstances.”

Strauss explains what’s different this year: “Now, we are seeing the collapse of the two-decade-old bipartisan consensus among major policymakers that testing was the key lever for holding students, schools and teachers ‘accountable.’ And it is no coincidence that it is happening aginst the backdrop of the coronavirus pandemic that has forced educational institutions to revamp how they operate.  States are learning that they can live without them, having been given permission by the Department of Education to not give them this past spring… Former vice president Joe Biden, who is the presumptive Democratic presidential nominee and ahead of Trump in many polls, has tried to distance himself from the pro-testing policies of the Obama administration. He was not a cheerleader of testing during Obama’s two terms and has said recently he is opposed to high-stakes testing.  That’s not a promise that he will work to reduce it, but it is a promising suggestion.”

Strauss publishes six principles from FairTest, the National Center for Fair and Open Testing, principles designed to guide state policy by reducing reliance on high-stakes testing:

  1. “Limit state standardized test requirements to no more than the minimum required by ESSA (the Every Student Succeeds Act that replaced No Child Left Behind) once each in reading and math in grades 3-8, plus once in high school, as well as one science test each in elementary, middle, and high school…
  2. “Seek federal waiver of testing requirements, at least for the 2020-2021 school year but preferably longer…
  3. “Terminate high-stakes consequences that rely on test scores for students (grade promotion tests, exit exams, course/program placement), teachers (bonuses, job ratings) and schools/districts (simplistic grading systems).
  4. “Protect young children by banning mass standardized testing before grade 3…
  5. “Enforce testing transparency and enhance public oversight…
  6. “Develop and implement performance-based assessment systems that enhance academic quality and equity by focusing on improvements in student work done over time.”

One of the most misunderstood issues about our current wave of testing is the impact of attaching high-stakes punishments to test scores. Test-and-punish was the central strategy of the No Child Left Behind Act.  It was assumed that, under the threat of sanctions, teachers would raise their expectations for their students and quickly raise test scores in even the public schools with low aggregate scores. You will remember that when the law passed in 2002, Congress gave America’s public schools a dozen years until which, by 2014, all American children were going to achieve proficiency.  Except it didn’t work.  We now know that Congress’s assumptions underneath No Child Left Behind failed to recognize many factors inside and outside of schools that affect standardized test scores.

In a profound book, The Testing Charade: Pretending to Make Schools Better, Daniel Koretz, a Harvard University expert on the design and uses of standardized testing, explores serious problems that arise when high stakes are attached to testing.  First there is social science research evidence that attaching high stakes punishments for teachers and public schools when scores don’t rise in fact distorts the test results and at the same time undermines in several ways the entire educational experience for both students and teachers: “The more any quantitative social indicator is used for social decision making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intended to monitor… Achievement tests may well be valuable indicators of… achievement under conditions of normal teaching aimed at general competence. But when test scores become the goal of the teaching process, they both lose their value as indicators of educational status and distort the education process in undesirable ways.” (The Testing Charade, pp. 38-39)  In chapter after chapter, Koretz demonstrates that the consequences have been particularly devastating in schools where child poverty is concentrated; testing has narrowed the curriculum to the tested subjects, forced teachers to coach students and teach to the test, and even resulted in cheating by educators to make a school’s or school district’s scores look better.

Second, Koretz demonstrates that, because children in some schools start farther behind and face far greater obstacles, No Child Left Behind’s uniform timeline for the testing and the law’s application of high-stakes punishments embodies a bias against public schools in the poorest communities and their teachers: “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—and, particularly important in this system, more kids who aren’t ‘proficient’—than others. 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.” (pp. 129-130)

I believe FairTest’s third principle is designed to undo the greatest damage wrought by two decades of high stakes testing: “Terminate high-stakes consequences that rely on test scores for students (grade promotion tests, exit exams, course/program placement), teachers (bonuses, job ratings) and schools/districts (simplistic grading systems).”  As states have undertaken to follow the dictates of No Child Left Behind, they have attached punishments for the schools and school districts where scores have failed to rise or where they have risen too slowly.  States have branded those schools and school districts as failures, and continued in several significant ways to punish the nation’s most vulnerable schools instead of providing support.  Across the United States, public schools in the poorest communities continue to receive less funding than the schools in America’s wealthiest and most exclusive suburbs.

Here are the high stakes punishments—always based primarily on aggregate students’ scores on standardized tests—that states persist in imposing on the schools and school districts where scores are low:

The Third Grade Guarantee:  Students who do not meet the standardized test cut score for “proficient” in reading are in many states held back for another year in third grade.  This is despite that research shows that students are developmentally ready to begin reading at very different ages and that forcing children to read in Kindergarten (as the Third Grade Guarantee has encouraged many schools to push) may cause students to struggle and to dislike reading.  Holding children back has also been shown eventually to increase the chance that a student will drop out before graduating from high school.

High School Exit Exams and Graduation Tests:  By denying high school diplomas to students who don’t pass a graduation exit exam, many states continue to punish high school students even if these students have passed all the required classes.

Teacher EvaluationsSome states continue, according to what they promised Arne Duncan, to evaluate teachers by their students’ aggregate standardized test scores.  When the Every Student Succeeds Act replaced No Child Left Behind, that federal agreement states had made to qualify for Race to the Top grants and No Child Left Behind waivers was dropped. Tying teachers’ evaluations to their students’ standardized test scores remains in states’ policies as a remnant of another era.

State Report Cards:  FairTest mentions “simplistic grading systems” for school districts. I believe these grading systems may be the most damaging negative consequence of high stakes testing because all sorts of other serious punishments cascade from the state report card grades.  States were required by No Child Left Behind to rate school districts and individual schools primarily by aggregate standardized test scores. Many states created school district report cards that award school districts and particular schools letter grades: “A” through “F.”  One of the most damaging consequences is that real estate sales websites like Zillow and Great Schools have adopted these state-awarded grades to brand specific communities as desirable places to live and to brand others as undesirable. Because aggregate standardized test scores correlate most highly with family income, the state report card grades—based largely on the each school district’s aggregate students’ test scores—have created educational redlining that is driving racial and economic segregation across America’s metropolitan areas.

School Closures:  One of the original “turnaround” models under No Child Left Behind was school closure.  Some school districts have found ways to shutter or phase out low scoring schools.  In June of 2013, Chicago closed 50 schools, with over 80 percent in African American neighborhoods.  Research from the University of Chicago’s Consortium on School Research showed that students didn’t do better on the whole in receiving schools.  A University of Chicago sociologist, Eve Ewing published a profound book, Ghosts in the Schoolyard: Racism and School Closings on Chicago’s South Side, about widespread grieving across one African American neighborhood when public schools which had served for years as community anchors were shut down.

Targeting Particular School Districts for Privatization:  Some states use aggregate standardized test scores to identify so-called “failing school districts” and then to enable children in those districts to qualify for private school tuition vouchers. Some states locate charter schools primarily in the school districts where aggregate standardized test scores are lower. Instead of investing more financial support for smaller classes and more staff in the public schools in those school districts, some states take the voucher dollars or the per-pupil state funding for each charter school student right out of the local school district budget.

State School District Takeovers:   State takeovers are the ultimate damaging consequence  of the punishments imposed by state legislatures on their poorest and lowest scoring school districts.  Over the years many states have seized low scoring schools or school districts, imposed autocratic, state appointed CEOs to manage the schools or turned over the schools to a “state achievement authority.” Gradually after the long failure of such state seizures of schools and whole school districts, the schools are being returned to locally elected school boards, but the damage to local schools and the disruption of communities is a long, sad story.

If you are searching for good books to explore while you are at home due to the pandemic, check out Daniel Koretz’s The Testing Charade and Eve Ewing’s Ghosts in the Schoolyard.

Federal CARES Act Public Education Relief Dollars Quietly Flow into the Coffers of Charter Schools and Private Schools

Many charter schools are taking advantage of their public/private status to double dip into more than one stream of federal CARES Act dollars. And Betsy DeVos has also been shifting the rules on distribution of CARES Act education dollars to support private schools at public schools’ expense. Promoters of school privatization are using every opportunity they can find to squeeze the public schools that serve 50 million of our children and undermine especially the public school districts serving our nation’s poorest big cities.

Charter Schools Skim CARES Act Dollars

The NY TimesErica Green reports: “Charter schools, including some with healthy cash balances and billionaire backers like Michael Bloomberg and Bill Gates, have quietly accepted millions of dollars in emergency coronavirus relief from a fund created to help struggling small businesses stay afloat.”

By state law, charter schools must themselves be nonprofits, although, as we know, many are operated by for-profit Charter Management Organizations. Whether they are nonprofit or managed for-profit, they are all private contractors operating schools under a charter from the state. As private contractors providing a public function under state law, they receive per-pupil state aid provided by tax dollars. But charter school promoters like to call themselves “public charter schools” and keep the definition murky. Right now, however, a lot of charter schools are trying to operate as private businesses just to get CARES Act Payroll Protection Program dollars.

Erica Green explains: “Since their inception, charter schools have straddled the line between public schools and private entities. The coronavirus has forced them to choose. And dozens of them—potentially more because the Treasury Department has not disclosed a list—have decided for the purpose of coronavirus relief that they are businesses, applying for aid even as they continue to enjoy funding from the school budgets, tax-free status, and in some cases, healthy balances and the support of billionaire backers.”

Green describes Summit Public Schools, for example, a chain of charter schools on the West Coast.  She explains that, because charter schools are nonprofits, they qualify for the CARES Act Paycheck Protection Program, a loan program:  “Charter recipients of the forgivable loans include wealthy networks like Summit, whose most recent tax filings show it had assets totaling $43 million and an endowment, and it paid its chief executive nearly $500,000. The charter network receives donations from the philanthropic organizations of Mr. Bloomberg and Bill and Melinda Gates, and the Bezos Family Foundation.  And its business-savvy California board of directors includes Meg Whitman, the chief executive of Quibi and former chief executive of eBay.”  At a Summit board meeting, there was discussion about whether taking Paycheck Protection Program dollars would be the right thing to do: “Summit’s chief executive, Diane Tavenner, brushed away several concerns… including ‘public shaming.’  She urged the board to take the funds, saying that ‘the benefits far outweigh the risks.’  The board ultimately accepted the loan… at its May 18 meeting.  By that time, Ms. Tavenner said the money had come in, and with the recent announcement from Gov. Gavin Newsom of California of 10 percent budget cuts next year, ‘further bolsters our case, as a nonprofit that’s operating schools, of our economic uncertainty.'”  All public schools in California will be affected by Gov. Newsom’s 10 percent budget cut, but only charter schools, like Summit Public Schools, who redefine their status in these CARES Act times as private businesses, can qualify for Paycheck Protection Program dollars.

In a new report, Are Oakland Charter Schools Double Dipping?, In the Public Interest and Parents United for Public Schools examine the acceptance of Paycheck Protection Program dollars by charter schools in California’s Oakland Unified School District.  Quoting the bill itself, In the Public Interest explains that the language Congress used to describe he Paycheck Protection Program makes the intent of the program clear: “With the COVID-19 emergency, many small businesses nationwide are experiencing economic hardship as a direct result of the Federal, State, and local public health measures that are being taken to minimize the public’s exposure to the virus. These measures, some of which are government-mandated, are being implemented nationwide and include the closures of restaurants, bars, and gyms. In addition, based on the advice of public health officials, other measures, such a keeping a safe distance from others or even stay-at-home orders, are being implemented, resulting in a dramatic decrease in economic activity as the public avoids malls, retail stores, and other businesses.”

However, “Despite that need and the limited funds available, Oakland’s charter school industry is heavily accessing this ‘first come, first served’ small business funding source, while at the same time receiving full continuity of education funding from the state, plus access to federal CARES Act (public school relief) funding. In other words, charter schools are receiving full funding to pay their employees as public schools while also seeking PPP funds to pay those same employees as private businesses.  Overall, the charter schools located within OUSD’s boundaries have received a total of at least $18,909,300” in CARES Act Paycheck Protection Program loans.

DeVos Rewrites Guidance to Drive Title I Equitable Services Dollars Away from Public Schools and Into Private School Coffers

It is not only charter school operators who are finding a way to use CARES Act dollars to shore up school privatization at the expense of the local public schools. Education Secretary Betsy DeVos has released informal guidance, and now threatens to issue compulsory formal guidance to change the distribution formula for federal CARES Act public education relief dollars that Congress specified should be awarded according to the Title I Formula.  In addition to sending federal funds to public school districts serving poor children, Title I was designed additionally to award federal dollars to enable school districts to provide Title I services to impoverished students attending the private schools located within their district boundaries.  DeVos has now demanded that per pupil CARES Act relief for private schools be based on each private school’s full enrollment, not on the number of the private school students who qualify for additional services because their families are living below 185 percent of the federal poverty line.

Public Funds Public Schools, a project of the Education Law Center and the Southern Poverty Law Center, explains how Congress set up distribution of CARES Act dollars to public and private schools: “Title I of the Every Student Succeeds Act (ESSA), the national education law, requires public school districts to use part of their funding on ‘equitable services’ for low-income students attending private schools in their geographic area.  This fits with the purpose of Title I, which is to provide resources for low-income students who may need extra supports to succeed in school. The recent CARES Act states that school districts receiving federal relief funds must provide equitable services to students and teachers in non-public schools ‘in the same manner’ as provided under Title I of ESSA. But Secretary DeVos’ guidance tells districts to do things differently than federal law requires, instructing them to calculate the amount they must spend on equitable services based on all students in the district who attend private schools rather than the number of low-income students in private schools. This dramatically decreases the federal emergency funds available for many public schools….”  (emphasis in the original)

Independent Media Institute education writer, Jeff Bryant shows what DeVos’s reinterpretation of Congress’s plan for redistributing CARES Act education relief dollars will mean for vulnerable public school districts: “Should DeVos get her way, the impact will be devastating on struggling school districts… In Passaic (New Jersey), where the majority of public school students are poor, the district will need to reserve $1.4 million for private school students instead of $300,000….”

A seasoned education reporter with experience in Ohio, now writing for The 74, Patrick O’Donnell describes outrage across Ohio about CARES Act money, urgently needed in Ohio’s urban districts which serve masses of poor children, but now scheduled, according to DeVos’s new guidance, to support private schools. Public schools across Ohio are desperate because, due to the COVID-19 recession, Governor Mike DeWine has already slashed state funding for public schools in this fiscal year ending June 30 by $300 million. O’Donnell quotes a letter sent by Ohio’s “Big 8” urban school districts demanding that Governor DeWine ignore DeVos’s new guidance and abide by the distribution plan Congress established in the CARES Act itself: “The past few months have laid bare the inequities that exist across our state, which is why Ohio must distribute the CARES dollars as they were directed to by Congress… Following watered down guidance from the USDOE will weaken Ohio’s ability to address the unique needs of low-income children, children with disabilities, students experiencing homelessness, and foster care youth.” In Ohio, O’Donnell reports that losses as CARES Act dollars are rerouted to private schools will be sizeable unless DeWine joins eight other states refusing to follow DeVos’s new guidance: “DeVos’s approach would cost the Cleveland school district $2.3 million and the Cincinnati schools $4.9 million.”

On Monday, the Washington Post‘s Laura Meckler summed up Betsy DeVos’s failure to support the nation’s public schools which DeVos’s own Department of Education is supposed to protect:  “Education Secretary Betsy DeVos has long believed that the federal government should have little to do with education. This spring, with schools facing their most significant crisis in decades, DeVos has stuck to that conviction… The coronavirus, she has said, offers a ‘silver lining,’ showing Americans that traditional schooling is not the only way. ‘This really is a moment for transformation,’ she told conservative talk show host Glenn Beck in April… When Congress passed its pandemic relief package, it included $13.5 billion for K-12 schools, most of it to be distributed using a formula that favors high-poverty schools. But DeVos chose to distribute the money using a calculation that diverts millions of additional dollars to private schools—and away from high-poverty public schools. She said the law allowed her the flexibility to do so. Leading Democrats and school leaders lambasted the move. Even Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Education Committee and a DeVos ally, disagreed… She also used $180 million of the federal relief money to create a ‘microgrant’ program that will allow parents to pay for educational expenses, including private school tuition… ‘The problem is here she is again standing up for private schools and public school folks feel like she’s never protected or cared about them.’ said Michael J. Petrilli, president of the Thomas B. Fordham Institute, a conservative education think tank.  ‘As far as I can tell, she’s pretty much played to type.'”

When Mike Petrilli and the Fordham Institute, lovers of school privatization, criticize DeVos for failing to stand up for public schools, you know there’s an enormous problem. The redistribution of federal dollars to private schools and to charter schools is not inconsequential in these times when the National Education Association recently documented the likely loss of 1.9 million jobs from America’s public schools within the next three years, staff cuts resulting from the recession-driven collapse of state education budgets. The untenable reduction of educators across the nation’s public schools will occur unless, on top of the CARES Act, Congress enacts additional relief in the form of the HEROES Act—passed already in the U.S. House of Representatives but awaiting action in the U.S. Senate.  Betsy DeVos, the U.S. Secretary of Education, has no business undermining efforts by Congress to keep class size manageable and to preserve the jobs of essential school staff—teachers, counselors, school psychologists, social workers, nurses, and librarians.

Public Funds Public Schools Website Provides Compendium of Research on School Vouchers

Updated, June 5, 2020 at 1:10 PM Eastern Daylight Time

Ohio was one of the first states, in 1996, to impose school vouchers, and today across Ohio and many other states, vouchers are devastating local school district budgets. Nationally, the nation’s loudest voucher cheerleader, Education Secretary Betsy Devos, continues to promote vouchers and their cousins—tuition tax credits and education savings accounts.  To support advocates for a strong system of public education, Public Funds Public Schools—a project of the Education Law Center, the Southern Poverty Law Center and Munger, Tolles & Olson—provides a compendium of research exploring whether vouchers are an effective school reform strategy. The research inventory is online. It is, I presume, being updated as new research is released.

In Ohio, at least, legislators try to justify vouchers as the salvation of students enrolled in so-called “failing” schools.  Public Funds Public Schools‘ summary of research studies is invaluable for public school leaders, parents, and community advocates who need to be able to document that vouchers are not, in fact, an effective strategy for expanding educational opportunity for our nation’s poorest and most vulnerable students. In fact, the expansion of vouchers has devastated the very school districts that need greater public investment to serve concentrations of children living in poverty, but vouchers extract essential dollars from those very districts.

Why is this online resource so important? The school district where I live and where we educated our children is the best example I know. reports that in the Cleveland Heights-University Heights School District during the current 2019-2020 school year, EdChoice, one of Ohio’s four statewide voucher programs, extracted $7.2 million from the total $21 million in state funding provided to the Cleveland Heights-University Heights school district.  Students living in our school district carried away a third of the district’s total state funding to pay for tuition in private and religious schools, but 94 percent of those students have never been previously enrolled in our district’s public schools. In other words, they have always attended private and religious schools, but the Legislature has now created a program that diverts local school district funds to pay for their private education.

Public Funds Public Schools introduces its research compendium: “Studies of voucher programs across the country have found that students who participate in private school voucher programs fare worse academically than students educated in public schools, and in some cases dramatically worse.  In addition, voucher programs undermine already struggling public schools.  Other damaging effects of vouchers include loss of civil rights protections, increased segregation, and erosion of the separation of church and state.  Private school voucher programs often lack accountability and transparency, yet cost millions of public dollars.”

Public Funds Public Schools organizes its research inventory into 8 sections.

Private School Vouchers Don’t Improve Student Achievement:  Here are summaries of 14 research reports, some as current as 2019 and others dating back to 2008.   Several reports confirm losses in math achievement over time in states including Indiana, Louisiana, and Washington, D.C.  Additionally, “A 2016 study of the Ohio private school voucher program conducted by a conservative think tank, the Thomas B. Fordham Institute, and funded by the pro-voucher Walton Foundation, found voucher students ‘have fared worse academically compared to their closely matched peers attending public schools…Such impacts also appear to persist over time, suggesting that the results are not driven simply by the setbacks that typically accompany any change of school.'”

Private School Vouchers Divert Needed Funding from Public Schools:  Two studies from 2018 and 2017 demonstrate funding losses to public schools in Arizona and Wisconsin.  For example, in Arizona, “the amount spent on private school subsidies from the General Fund… increased nearly 50-fold from $3 million in 1999-2000 to $141 million in 2015-16.”

Private School Vouchers Programs Lack Accountability:  Here are three research studies, including a nationwide study published by Education Week Research Center, showing that of the 29 states with voucher programs,”fewer than half the states require that private voucher school teachers have a bachelor’s degree, and not even a third publicly report student results on state tests or high school graduation rates. The study also found that only three states require private voucher schools to admit students regardless of their sexual orientation, while only six require that students be admitted regardless of their religion.”

Absence of Oversight in Private School Voucher Programs Leads to Corruption and Waste:  The two studies here extend the findings of lack of accountability from the previous section.  A 2017 Florida investigation, for example, found “the hiring of teachers without college degrees, falsification of fire safety and health records, and an absence of consequences for poorly performing schools.”  In Arizona from August 2015 to January 2016, researchers discovered $102,000 in misspending by parents in the state’s Education Savings Account voucher program.

Private School Vouchers Don’t Help Students with Disabilities:  The five studies in this section document that private schools accepting vouchers sometimes mislead parents about the kind of services available and too often fail to protect students’ rights.  One report in 2017 from the National Center for Learning Disabilities, “highlighted the important protections in federal law that students with disabilities lose when they attend private schools using a voucher and the lack of information provided to parents about these rights.”

Private School Vouchers Don’t Protect Against Discrimination   All three reports summarized in this section are recent.  Here are the findings of a 2018 policy brief from the National Education Policy Center: “First, federal law defines discrimination differently in public and private spaces. Second, state legislatures have largely neglected issues of discrimination while constructing private school laws. Third, because private schools are free to determine what programs to offer, they can attract some populations while excluding others.”

Private School Vouchers Exacerbate Segregation:  All five studies in this section examine racial segregation in private schools accepting public vouchers.  A 2018 academic working paper, for example, examined the D.C. Opportunity Scholarship Program (the name for D.C.’s voucher program) since 2003, when the program was launched: “The author found that 70% of participating voucher students were enrolled in heavily segregated schools with 90% or more minority students, and 58% were enrolled in all-minority schools.”

Universal Private School Voucher Programs Don’t Work:  The one study described in this final section is international: The National Education Policy Center examined a universal school privatization voucher program in Chile.  In Chile’s program NEPC shows that schools were explicitly permitted to choose their students.  Not surprisingly poor children found themselves in low-performing schools: “There is plausible evidence that privatization is associated with pervasive discrimination and exclusion among students, low public trust, neglect of civic education, and a tenacious social movement clamoring for a stronger and more inclusive public option.”  NEPC adds something that has also been true of voucher programs across 29 states here at home: “It is extremely difficult to reverse privatization.”

The research accumulated by Public Funds Public Schools confirms the discovery by Christopher (now a professor at Indiana University) and Sarah Lubienski (a professor of mathematics education at the University of Illinois), whose 2014 book describes The Public School Advantage: Why Public Schools Outperform Private Schools. The Lubienskis explain: “We were both skeptical when we first saw the initial results: public schools appeared to be attaining higher levels of mathematics performance than demographically comparable private and charter schools—and math is thought to be a better indicator of what is taught by schools than, say, reading, which is often more influenced directly and indirectly by experiences in the home… But after further investigation and more targeted analysis, the results held up. And they held up (or were ‘robust’ in the technical jargon) even when we used different models and variables in the analysis… These results indicate that, despite reformers’ adulation of the autonomy enjoyed by private and charter schools, this factor may in fact be the reason these schools are underperforming.  That is, contrary to the dominant thinking on this issue, the data show that the more regulated public school sector embraces more innovative and effective professional practices, while independent schools often use their greater autonomy to avoid such reforms, leading to curricular stagnation.”  (The Public School Advantage, pp. xvii-xviii)

(This post has been updated to correct that the CH-UH School District in Ohio lost one-third of its state aid to EdChoice vouchers, not one-third of its total budget.)

While the Press Covers the Police Killing of a Black Man, Riots, and the Pandemic, Trump Quietly Vetoes Rule to Protect Defrauded Student Borrowers

On Saturday morning, the Washington Post‘s Matt Zapotosky and Isaac Stanley-Becker began their coverage of the state of our nation: “A global pandemic has now killed more than 100,000 Americans and left 40 million unemployed in its wake. Protests — some of them violent — have once again erupted in spots across the country over police killings of black Americans. President Trump, meanwhile, is waging a war against Twitter, attacking his political rivals, criticizing a voting practice he himself uses and suggesting that looters could be shot… Together, the events present a grim tableau of a nation in crisis — one seared by violence against its citizens, plagued by a deadly disease that remains uncontained and rattled by a devastating blow to its economy.”

Few reporters noticed something that President Trump did on Friday under the cover of all the news Zapotosky and Stanley-Becker summarize.  By comparison it seems like a small thing, but it will have a devastating effect on many of the same vulnerable people who have lost jobs due to the pandemic.  On Friday, President Trump vetoed a joint congressional resolution, passed by bipartisan majorities in both chambers of Congress, to overturn Betsy DeVos’s re-write of the “borrower defense to repayment” rule. Trump’s veto will make it much harder for students defrauded by unscrupulous for-profit colleges to force the federal government to forgive their federal college debts. It seems unlikely that Congress will have enough votes to override Trump’s veto.

The Obama era “borrower defense to repayment” rule made it easier for student borrowers with federal student loans to have their loans forgiven if they had been defrauded. However, an enormous backlog of claims has been building since DeVos took over the department and her staff slowed processing of students’ claims. Finally, last September, DeVos’s department rewrote a new version of the rule more friendly to the for-profit colleges and less protective of defrauded student borrowers burdened with enormous debt.

Anger and disagreement has swirled around the “borrower defense to repayment” rule. The Washington Post‘s Danielle Douglas-Gabriel reports that the President’s veto on Friday, “arrives two months after Congress agreed to scrap DeVos’s overhaul of a 1995 law known as ‘borrower defense to repayment.’ The law provides federal loan forgiveness to students whose colleges lied to get them to enroll. An Obama-era update of the statute lowered hurdles for students and shifted more of the cost onto schools but DeVos tried to scuttle the update and then rewrite the rule. The Trump administration finalized its rewrite in September, which limits the time borrowers have to apply for relief and requires them to prove they were harmed financially by the deception. The rule is scheduled to take effect July 1.”

The New York TimesErica Green explains how DeVos’s rule will make loan forgiveness far more difficult: “Even if some borrowers can show they were victims of unscrupulous universities, they could be denied relief unless then can prove their earnings have been adversely affected…  Ms. DeVos’s changes raised the bar for borrower relief claims, requiring applicants to individually prove that a school knowingly misled them and, even if students were bilked, that they were financially harmed by the deception. They also set a three-year deadline on claims.”

The number of such borrowers skyrocketed when several for-profit institutions were shut down. Douglas-Gabriel reports: “The closure of Corinthian Colleges and ITT Technical Institute, for-profit chains felled by charges of fraud and predatory lending, resulted in a deluge of claims at the Education Department. Claims continue to mount as other for-profit colleges including Argosy University and the Art Institutes, have folded. The Education Department has received more than 300,000 claims for debt relief to date.”

Throughout her tenure, DeVos has been protective of for-profit colleges and trade schools, dependent for much of their operating budgets on government loans. While some of these institutions have promised programs that will eventually yield fabulous jobs, too often they have left their students unemployed and severely in debt.  Because the for-profit colleges have preyed particularly on military veterans who can bring additional G.I. Bill dollars to their coffers, veterans groups have opposed DeVos’s rewrite of the “borrower defense to repayment’ rule.  Veterans’ groups had pressed President Trump not to veto Congressional action to block DeVos’s new rule. Politico‘s Michael Stratford reports: “Veterans groups lobbied furiously to get Trump to sign the measure… In a statement on Friday before the veto, James ‘Bill’ Oxford, the national commander of the American Legion, said that the group was ‘hoping that President Trump will once again come to the aid of student veterans,’ and that DeVos’s rule made it ‘nearly impossible for veterans to successfully’ obtain loan forgiveness if they were deceived by a school.”

It is easy to miss one of the important issues at play in the debate about college debt and the for-profit higher education sector.  For-profit colleges and trade schools raise over two-thirds of their revenue from federal grants and loans. In her book on the politics of higher education, Degrees of Inequality, Cornell University’s Suzanne Mettler explains how funding for the for-profit colleges and trade schools works: “Notably, these institutions, with only one exception, earned between 60.8 and 85.9 percent of their total revenues in 2010 from Title IV of the Higher Education Act, meaning predominantly student loans and Pell grants… Most received an additional 2 to 5 percent from military educational programs, including the Post-9/11 GI Bill. The sum of these federal government funds added up, as a portion of all revenues collected, to a minimum of 65.8 percent for ITT and a maximum of 93.7 percent for Bridgepoint.  In short, the for-profit schools are almost entirely subsidized by government.” (Degrees of Inequality, p. 168)

And yet, Politico‘s Stratford reports that DeVos claims she wants to save the government money by refusing to erase the debts of students who have been have defrauded: “The Education Department estimated that the stricter rules will reduce loan forgiveness by hundreds of millions of dollars each year, compared with the Obama era policy, saving taxpayers more than $11 billion over the next decade.”

DeVos says one goal of her new rule is to save money, but DeVos has expressed no intention of regulating the for-profit college sector whose very operation is underwritten largely by the federal government.  At the same time, the Trump administration refuses to protect the students themselves—the victims of shoddy operations, fraud, false advertising, and even the sudden closure of the institutions in which they were enrolled—from debts that will in many cases ruin their financial futures.

Betsy DeVos Ignores Congress: Orders Distribution of CARES Act Dollars to Private Schools Instead of Public Schools Serving Poor Children

On April 30, U.S. Education Secretary Betsy DeVos released informal guidance directing federal Covid-19 stimulus funds to private schools at the expense of the public schools that educate 50 million American children and adolescents.  DeVos is using the pandemic crisis to promote her own agenda supporting the privatization of American public education.  Her recent action also undermines one of the most fundamental purposes of the U.S. Department of Education for which she is responsible.

On Wednesday, the NY TimesErica Green described DeVos responding to criticism from the Council of Chief State School Officers: “Ms. DeVos accused the state education chiefs of having a ‘reflex to share as little as possible with students and teachers outside of their control,’ and said she would draft (a final) rule codifying her position to ‘resolve any issues in plenty of time for the next school year.’ The proposed rule would need to go through a public comment process before it could take effect.”

But the issue is far more complicated than what DeVos claims is public schools’ selfish unwillingness to share.

In the CARES Act, Congress directed the U.S. Department of Education to distribute $13.5 billion to the nation’s public schools according to the principles of the Title I formula.  The Title I formula represents—more than any other policy or program—the very role of the federal government in U.S. public education.  Public schools are created and funded under the 50 state constitutions, but in 1965, when Congress passed the Elementary and Secondary Education Act in the midst of the Civil Rights Movement and Lyndon Johnson’s War on Poverty, the federal purpose was to support the education of impoverished children and confront unequal access to education across the states.

Jack Jennings, founder and retired CEO of the Center on Education Policy, describes the history of Title I: “In 1965, (then President) Johnson found the road map leading to enactment of federal education legislation. His approach was to base federal aid on the number of children from low-income families who lived in a school district. This strategy served two purposes. First, it fit well with the temper of the times. Achieving greater equity and focusing on the effects of poverty and hunger were national issues, and fundamental to the agenda of the Kennedy-Johnson administration. And second, it also made room for a compromise on the religious and private school issue. The Johnson administration proposed providing federal support for education services to poor children who attended private schools, while vesting control over the administration of the services with public school districts.” (Presidents, Congress, and the Public Schools: the Politics of Education Reform, p. 23)

Title I was established to provide extra funds to public school districts serving a large number or large concentration of very poor children, and the law specified that Title I would supplement, not supplant, the services states and school districts were already providing. Public school districts were also to provide federally funded Title I services for poor children enrolled in private or religious schools located in their school districts.

Despite that, in March 2020, Congress charged the U.S. Department of Education with distributing federal CARES Act stimulus funds according to the Title I formula, on April 30, Betsy DeVos’s Department of Education released informal guidance changing the way states and school districts are to distribute CARES Act funding. The Washington Post‘s Laura Meckler reports that DeVos’s new guidance helps private schools at the expense of public schools serving poor children: “Congress allocated roughly $13.5 billion to K-12 schools as part of the CARES Act, a stimulus package meant to mitigate the economic damage from the coronavirus crisis. Most of the funding was to be distributed to elementary and secondary schools based on a formula driven by how many poor children they serve. The formula has long allocated some funding for poor children attending private schools. But in guidance sent out to the states, DeVos said states should use a calculation that takes into account the total number of students private schools serve, not just the number of poor students attending. The result is that millions of dollars that would otherwise assist high poverty schools in the Title I program will instead be shared with private schools, regardless of the economic needs of their families.”

Meckler adds that, on May 15, when the House of Representatives passed the HEROES Act, a more recent Covid-19 stimulus bill, the House overturned DeVos’s new guidance on the distribution of CARES Act dollars to private schools: “Subsequent legislation passed by the House would overturn the DeVos guidance, but that legislation is part of a large aid package whose prospects are unclear.”

The Senate has not yet taken up the HEROES Act. Not satisfied to wait for the Senate, on May 20, three prominent members of Congress wrote directly to Secretary DeVos, condemning her April 30 guidance for distribution of CARES Act dollars to private schools. The letter is signed by Robert C. “Bobby ” Scott, chair of the House Committee on Education and Labor, Rosa. L. DeLauro, chair of the House Appropriations Subcommittee on Labor, Health, Human Services and Related Agencies, and Senator Patty Murray, ranking member of the Senate Health, Education Labor and Pensions Committee.

Representatives Scott and DeLauro and Senator Murray put Betsy DeVos on notice that, “The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), requires local education agencies (local school districts) receiving funds to use a portion of such funds to provide services to low-income students attending private schools that are equitable to services provided to students in public schools in the same manner as under section 1117 of Title I of the Elementary and Secondary Education Act (ESEA).  However, the department broke with statutory requirements of the CARES Act and longstanding precedent of the equitable services provision in section 1117 of ESEA by issuing guidance that directs LEAs to use emergency relief funds for the provision of services to students at private schools regardless of their wealth or residence… The department’s new policy will direct districts to allocate additional resources and services to wealthier private school students, thereby leaving a smaller amount of funds available to serve public school students.”

The letter continues: “Since 1965, Title I-A has served as a vital source of support for disadvantaged students in schools with high concentrations of students from low-income families. An LEA’s (school district’s) Title I-A allocation is determined by a variety of factors, primarily the number and concentration of low-income students within the LEA… LEAs must set aside a share of their Title I-A funds to serve disadvantaged students attending private schools. The amount of the set aside is based on the number of low-income students attending private schools who reside in participating school attendance areas within the LEA attendance area… Simply put, the Department is directing LEAs to provide equitable services in a different manner from that provided under section 1117 of ESEA, in direct contravention of the plain text of the CARES Act.”

Derek Black, a professor of education law at the University of South Carolina, considers the implications of Betsy DeVos’s new attempt to promote her own agenda supporting private and religious education at the expense of public schools: “I’m a scholar of federal education policy and history who has testified before a congressional commission and federal courts in disputes over federal funds. In my view, this new policy runs counter to what Congress has tried to achieve in public education for the past 50 years and it directly contradicts the CARES Act… The relief package specified that the money would go to school districts based on the number of low-income students they serve. Those are children who are eligible for free and reduced-priced meals. Students whose families are below 185% of the official poverty line—which as of 2020 stands at $26,200 per year for a family of four—fall into this category. The department’s new guidance calls for a different method.  Public school systems are being told to share these new federal funds based on the total number of students who attend private schools—rather than the much smaller number of low-income students in these schools.  In other words, public school districts are being told to reserve funds for roughly 6 million total private school students, of which only an estimated 300,000 are low-income children.  By contrast, 52.3% of the nation’s 50 million public school students are low-income.”

Misguiding Public School Policy: The Role of Giant Philanthropy and Technocracy

This blog will take Memorial Day off.  Look for a new post on Wednesday, May 27, 2020.

Several years ago, I was privileged to receive an invitation from a school psychologist at our local high school to visit the school and write about what I saw during that visit. The most memorable experience  was a social science elective class open to high school juniors and seniors—a high school level course introducing political philosophy.  The students were discussing Voltaire’s Candide, and the teacher began by presenting the class with a list of questions for discussion and asking the students to choose where to begin. By challenging the students to begin with the hardest question, which would help them explore what they were struggling to understand, the teacher disarmed the students’ anxieties and gave them the freedom to participate actively. In the discussion that followed—which the teacher struggled to wrap up even as students had to move on to the next class—students engaged each other, the teacher probed the students’ understanding of the book, and students demanded background to fill in their limited experience with this sort of reading. One girl, sitting in a chair at the back of the room near the windows, became so engaged that she climbed up to sit on top of a radiator in order to be able to see everyone who was talking and participate more actively in the conversation.

This is the best high school class I have ever observed. The engagement—between the teacher and students and the students with each other— was spontaneous, emotional, and intellectual. I don’t think that experience could really have happened on Zoom, though I’m sure that same teacher has done his best in these past two months to engage his students in this year’s version of that class.  We all do the best we can in an emergency.  In our current emergency, Zoom and other programs like it are all we have.

I thought about that high school political philosophy class when I read that New York Governor Andrew Cuomo has sought the help of Bill Gates to realize Cuomo’s latest proposal—“The old model of everybody goes and sits in a classroom, and the teacher is in front of that classroom and teaches that class, and you do that all across the city, all across the state; all these buildings, all these physical classrooms… why, with all the technology you have?”  These days, so many of us are considering all the ways in which online encounters with our friends and relatives—and children’s virtual discussions with their peers and their teachers—aren’t quite the same as the real live connection we feel when we can sit down and talk or feel the energy that flows among a group of students all together in a classroom.  It feels bizarre that so-called experts and their politician friends are trying to convince us that virtual schools are going to be the future of public education.

Why is Cuomo considering the advice of Bill Gates instead of consulting New York’s teachers who know how to create the kind of engaged high school class I visited all those years ago?  One contributing factor has been the growing role of mega-philanthropy driving education policy.  In a 2014 study, published by the American Educational Research Association, Michigan State University’s Sarah Reckhow and Jeffrey Snyder describe the ways giant philanthropic investment has increasingly shaped public policy across America’s public schools.  Reckow and Snyder document that in the decade from 2000 to 2010, grants from major foundations vastly increased policy advocacy by national  organizations with paid staff who produce reports and have a presence in Washington, D.C.: “As education philanthropy evolves, funds flow increasingly toward national advocacy.  Many of these groups are highly active in policy debates on issues such as common standards and charter school expansion.  Moreover, foundations are finding new strategies to link nonprofit work with advocacy.”

The growth in philanthropic funding for education policy has neither supported traditional public schools nor traditional professional training for teachers and administrators: “Major foundations in education have simultaneously shifted away from funding traditional educational institutions towards support for organizations that could create competition for the public sector. This suggests a pattern of convergence in grant making—major foundations supporting the same kinds of activities and policy priorities.  If foundations are not only funding organizations with similar functions, but also providing financial support for the same organizations, this would indicate significant overlap in the agenda and policy goals of top education funders.”

Reckow and Snyder conclude: “Philanthropy is commonly viewed as a charitable activity, and philanthropists have traditionally approached political advocacy tentatively, if at all.  Yet major education foundations are increasingly politically engaged.  Their work includes supporting groups involved in policy advocacy, funding organizations that promote competition with public sector institutions, and providing convergent funds to key groups advancing favored policy priorities.  Coordinated policy-focused and advocacy-oriented philanthropy provides an important pathway for political influence among foundations… Foundations have simultaneously invested greater sums into jurisdictional challengers while divesting from more traditional educational institutions… Philanthropists have acted as patrons for new voices in education politics, funding increasing numbers of national advocacy groups… Philanthropic support for jurisdictional challengers suggests strong alignment of funding for research, advocacy, and implementation to advance a policy agenda.”

On Monday of this week, the University of Wisconsin’s Kathryn Moeller and Penn State’s Rebecca Tarlau pick up the same theme in an opinion piece in The Chronicle of Philanthropy.  Commenting on Governor Andrew Cuomo’s new partnership with Bill Gates to “reimagine” public education in New York, Moeller and Tarlau declare: “Gates Foundation’s tactics to remake public education during pandemic are undemocratic.”  Describing the role of today’s education philanthropy, they write: “Powerful foundations like the Gates Foundation do not simply impose policies on governments like New York State… Rather, they influence state officials’ consensus about which policies to adopt by positioning themselves as experts on education, garnering widespread support for their policy proposals, and offering economic and organizational support to put those policies in effect.  In our research, we refer to this as a process of ‘philanthropizing consent’ for highly controversial policy solutions.”

While Reckow and Snyder describe the recent philanthropic preference for jurisdictional challengers—charter schools rather than traditional public schools or alternative and quick teacher certification programs like Teach for America— Moeller and Tarlau describe an additional trend in today’s philanthropically driven education policy: (R)esearch shows that philanthropic experts often work to find technical solutions to systemic inequities without addressing their underlying causes.”  The threat to the public operation and governance of public schools is not merely because foundations lack public accountability, but also because their proposed solutions are likely to replace democratic institutions with technocracy.

In an essay “Pangloss, Pandora, or Jefferson,” which was a chapter in the 1998 book of essays, A Passion for Democracy, and reprinted here, the late political philosopher Benjamin Barber considers the problem of rapidly accelerating technology as a potential threat to democracy itself.  Barber reminds readers: “Henry Adams… observed at the beginning of this century that between the years 1800-1900, ‘measured by any standard known to science—by horsepower, calories, volts, mass in any shape… the tension and vibration and volume and so-called progression of society were fully a thousand times greater.’ … The internal combustion engine, and the typewriter came of age between the two World Wars, and television, microchips, and lasers are still more recent. The first computer built after the war filled a large room and performed less complex calculations for its ardent cybernetic attendants than a handheld instrument performs for students today.”

In the more than two decades since Barber published his essay, we now do have the technology to put New York state’s public schools entirely online, which Governor Cuomo seems to believe would cheaper, more efficient, and safer if another wave of the pandemic should hit his state. My sense, however, is that Barber would caution Cuomo about entirely turning over what are today’s democratically governed and operated New York public schools to the technological wizards and tech philanthropists. Barber would worry about our society’s capacity to meet the needs and protect the legal rights of all students if the technocrats were put in charge.

Barber warns: “There are, in fact, at least three prospects for the future of technology and democracy—three scenarios of their relationship—that are within the realm of technological possibility. I will call them, rather fancifully, the Pangloss scenario, which is rooted in complacency and is simply a projection of current attitudes and trends; the Pandora scenario, which looks at the worst possible case in terms of the inherent dangers of technological determinism, and the Jeffersonian scenario, which seeks out the affirmative uses of the new technology in the nurturing of modern democratic life.”

The students in the high school political philosophy class that I observed knew about Dr. Pangloss, Candide’s tutor, who, in any situation saw, “the best of all possible worlds.” Barber explains: “Anyone who reads good-time pop-futurology knows the penchant of the future mongers for Panglossian parody.  Their view of the future is always relentlessly upbeat and ahistorical, mindlessly naive about power and corruption as conditioners of all human politics.  They assume that the technological present and the future it will naturally produce are wholly benevolent and without costs.”  Governor Cuomo, turning to Bill Gates to create an educational future all online to replace “all these buildings, all these physical classrooms,” is a Dr. Pangloss.

The second scenario involves Pandora, the mortal woman created by the Greek gods and given many gifts. One gift was a box she was forbidden to open. Subject to curiosity, Pandora opened the box and released all the plagues, miseries and sorrows of mankind.  Describing the lure of today’s technology, Barber explains: “Pangloss is a peril to every society, but the greater danger to democracy comes form Pandora’s scenario, which envisions what might happen if a government consciously set out to utilize the new technologies for purposes of standardization, control, or repression.”

Of course, Barber prefers what he calls the Jeffersonian scenario: “Despite the potential of the… technology… for abuse, the new technologies, in themselves, can also offer powerful assistance to the life of democracy… In this sense, a guarded optimism is possible about technology and democracy, but only if citizen groups and governments take action in adapting the new technology to their needs.”  However, “In considering the Jeffersonian scenario we do not want to fall into Pangloss’s error and persuade ourselves that technology, properly used, can solve all the problems of democracy. Next to Pangloss, Pandora and Jefferson lurks Icarus, to remind us of the ultimate limits of all human technology—the modern extension of human hubris… Democracy can be reinforced by technology and it can be corrupted by technology, but democracy’s survival depends on human not machine inspiration.”