Who Is Writing the Model Bills Against CRT? And One Alarming Political Consequence of the CRT Controversy in Ohio

Many of us are familiar with the American Legislative Exchange Council (ALEC), the far-right bill mill that creates and distributes model bills to be introduced across the fifty statehouses to create waves of similar public policy.  There was the Taxpayer Bill of Rights(TABOR), for example, and there are all sorts of ALEC model bills promoting charter schools and voucher programs.

(This blog has been updated and corrected.  There are 11 elected members and 8 appointed members of the 19 member Ohio State Board of Education.)

But even though the proposed statutes look alike, most of this year’s bills being considered in many of the state legislatures—bills that prohibit teaching of divisive concepts that touch on race and human sexuality, eliminate diversity training for teachers and other school staff, and ban books—are not coming from ALEC.  ALEC’s model “American Civics and History Act,” introduced ten months ago is mild compared to most of the rest.  It does, like many of these model bills, require that civics and history materials be posted online for parents to review, and it prohibits school districts from forcing students to agree with any particular point of view on controversial topics.

The so called bans on the teaching of “critical race theory” being debated in myriad state legislatures (and passed in Florida, Georgia, Texas, Oklahoma, Iowa, Idaho, Tennessee, South Carolina, New Hampshire, and North Dakota) look so similar, however, that they cannot possibly be bubbling up spontaneously.  So where are these bills originating?

Last July, Education Week‘s Sarah Schwartz set out to answer that question: “Within several months, Republican legislators in more than 20 states have introduced bills that would restrict how teachers discuss racism, sexism, and controversial issues… The same language echoes throughout much of the legislation, from bans on ‘divisive’ or ‘racist or sexist concepts,’ to provisions that require teachers to present contending perspectives on ‘controversial’ issues… At the core of most of the bills… is language lifted from a September 2020 executive order by former President Donald Trump. But it’s not that simple. Education Week reporting uncovered a complex web of individuals and conservative organizations that are writing model legislation and supporting these state-level bills.”

While all of these laws try to control how teachers handle discussions (or avoid discussions) about race and sexuality in their classrooms, Schwartz breaks the model laws into five categories:  legislation that would ban teaching “divisive” concepts;  laws that would restrict discussion of racial, gender, or social identity;  laws that would prohibit teachers from encouraging students in civics classes to participate in advocacy for course credit;  laws that would require schools to post online all curricular materials;  and laws that would prohibit teachers from showing their own political biases. Some of the proposed legislation covers several of these categories at once.

Schwartz identifies some of the organizations producing and distributing model bills. One is Citizens for Renewing America, led by Russell Vought, former director of President Trump’s Office of Management and Budget: “Citizens for Renewing America has drafted its own model legislation using the list of divisive concepts, which also bars schools from asking students to support any of the ideas outlined in the 1619 project… Two of the recently passed laws, in Idaho and Tennessee, most closely match language used in Citizens for Renewing America’s model legislation….”

Another organization “putting forth a model bill is the Alliance for Free Citizens…. Former Kansas Secretary of State, Kris Kobach, who led Trump’s voter fraud commission is the group’s general counsel… The Alliance for Free Citizens’ model legislation also includes a list of ‘racist or sexist’ topics, but is more restrictive than some other bills—banning any materials that promote these concepts, and preventing schools from hosting speakers that hold these views.”

“The America First Policy Institute, a think tank and advocacy group employing former Trump administration officials and advisers, has also consulted with at least two states on their proposed bills…. Outside of this circle, critical race theory has also become a central issue for some conservative organizations established well before the Trump era, such as the Heritage Foundation… State-level conservative organizations have taken up the issue as well—the Texas Public Policy Foundation and the Idaho Freedom Foundation.  A proposed Texas law, the ‘Partisanship Out of Civics Act’: “matches provisions…authored by Stanley Kurtz, of the Ethics and Public Policy Center, a conservative think tank and advocacy group.  Bills proposed in Ohio and Arizona… also include this language.”  In Maine, Schwartz reports that the David Horowitz Freedom Center, a right-wing, anti-Muslim foundation advised legislators on a bill “that would prevent teachers from ‘engaging in political, ideological or religious advocacy in the classroom.'” A law in Wisconsin reflects the priorities of the far-right Wisconsin Institute for Law and Liberty.

It is important to recognize that while raucous hearings about the model bills from far-right organizations are dominating the public education debates across state legislatures, the racist ideology attached to the bills has definitely also infected power politics. In super-majority Republican, highly gerrymandered Ohio, for example, we have been watching this play out.

In July of 2020, the Ohio State Board of Education passed Resolution 20, a progressive anti-racist statement. Here is how the Cleveland Plain Dealer‘s editorial board summarized Resolution 20: “The resolution… condemned ‘in the strongest possible terms, white supremacy culture, hate speech, hate crimes and violence in the service of hatred’ and said the board itself would work to ‘engage our members in open and courageous conversations on racism and inequity’ while offering training ‘to identify our own biases.’ The resolution directed the Ohio Department of Education to examine curriculum and standards to see if any changes were needed to ‘eliminate bias’ and ensure accuracy, and to encourage and support school districts, parents and communities in examining their own practices.”

The 2020 election shifted slightly the membership of the Ohio State Board, and last October 2021, the newly constituted board replaced Resolution 20 with a weaker Resolution 13. That is when Ohio’s legislative leaders began to use the ugly politics around discussions of racial issues at school to drive their broader agenda.

While 11 members of the 19 member Ohio State Board of Education are elected, Ohio’s  governor appoints 8 members. Last October 2021, the governor and leaders in the Ohio Senate discovered a little-used State Senate power of “advise and consent” over the governor’s appointments to the State Board of Education—a power of advise and consent that can, apparently, be imposed even after members are already serving on the State Board. In the months prior to the vote to replace Resolution 20, Republican State Senate President Matt Huffman and the Senate’s Republican Education Committee Chair, Andy Brenner met with all of the appointed members of the State Board to evaluate their performance. After the vote on Resolution 20—based on the Huffman and Brenner’s evaluations—Republican Governor Mike DeWine requested the resignations of both of his appointed members who voted to keep the anti-racist Resolution 20 —including the state board’s popular elected president, Laura Kohler.

Now it is mid-February 2022, and Maureen O’Connor, the Chief Justice of the Ohio Supreme Court just threatened to hold Governor Mike DeWine, Republican House Speaker Bob Cupp, Senate President Matt Huffman, and other state Republican leaders in contempt of court for refusing to present un-gerrymandered Congressional and state legislative district maps (which are also required for delineating state board districts).

The Plain Dealer‘s Laura Hancock reports that last week—according to his legal prerogative when the legislative maps are missing—Governor DeWine himself redrew the districts for the 11 elected members of the Ohio State Board of Education.

What is striking about his new maps—which will stand unless they are legally challenged or other maps are approved—is that Governor DeWiine has broken up the districts of all four of the remaining elected State Board members who voted to support keeping the 2020 ant-racist Resolution 20.  The districts of two of the three African American members of the State Board of Education have been drawn to include rural, largely white and Republican counties. While incumbents will not be removed from office, the redistricting will affect future elections.

Hancock describes the concerns of current State Board member Meryl Johnson, a 40-year Cleveland teacher, now retired, who currently represents Greater Cleveland’s District 11, set in the Governor’s new maps to be broken up. Johnson calls the Governor’s new maps “very sad.” “The state’s education system is not effectively meeting the needs of specific groups of students, such as African American, Hispanic, English learners, economically disadvantaged and students with disabilities.”

Hancock also reports the reactions of Ohio educators. The president of the Ohio Education Association, Scott DiMauro worries: “The continuing attempts to gerrymander Ohio’s maps threaten to undermine the promise of a high-quality public education for all of Ohio’s children…  Unfair… district maps… rob Ohio voters of their right to choose board members who represent their interests and who will stand up for what’s best for Ohio’s kids.”

The president of the Ohio Federation of Teachers, Melissa Cropper predicts the likely result: “The effect of Governor DeWine’s delineation of Ohio’s State Board of Education districts will be to dilute the voting power of Black communities and other communities of color and to jeopardize the seats of the strongest advocates for the Board’s strategic plan for Ohio’s schools.”

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Buying into the Social Contract is Different from Buying Education with a Public Tuition Voucher in a Privatized School Marketplace

For a quarter of a century, Ohio has pursued the accountability-based “education reform” strategy that was formalized in the 2002 No Child Left Behind Act.

Ohio holds schools accountable for raising students’ scores on high-stakes standardized tests by imposing sanctions on schools and school districts unable quickly to raise scores. Ohio identifies so-called “failing” public schools, ranks them on school district report cards, and locates privatized charter schools and voucher qualification within the boundaries of low-scoring districts.  Additionally, the state takes over so-called failing school districts and imposes Academic Distress Commissions as overseers. Ohio’s students are held back in third grade if their reading scores are too low, and high school seniors must pass exit exams to graduate.

After more than two decades of this sort of school policy, student achievement hasn’t increased and test score gaps have not closed.  Ohio is a state with eight big cities—Cleveland, Columbus, Dayton, Cincinnati, Toledo, Youngstown, Akron, and Canton; lots of smaller cities and towns; Appalachian rural areas and Indiana-like rural areas; and myriad income-stratified suburbs. Just as they do across the United States, aggregate standardized test scores correlate most closely with family and neighborhood income, not with the characteristics of the public schools. In the fall of 2019, the Plain Dealer’s data wonk, Rich Exner, created a series of bar graphs to demonstrate the almost perfect correlation of school districts’ letter grades on the state school district report card with family income.

But while Ohio has punished so-called “failing” schools, it hasn’t done much to help the public schools in Ohio’s poorest communities. In profound testimony before the Ohio State Board of Education in early April, Policy Matters Ohio’s Wendy Patton described several decades of fiscal realities for Ohio’s 610 school districts, conditions that have accompanied the decades of punitive accountability: “(T)he state provided slightly more than half of the funding for Ohio schools, on average, in 1987, but since then local dollars have paid for the greater part of funding… Gov. Ted Strickland narrowed the gap over his 4 year term…. But Gov. John Kasich promptly reversed that effort with a $1.8 billion cut to school funding imposed over the two-year budget of 2012-13.  School funding has lagged ever since. By 2020, the state share of school funding had fallen to its lowest point since 1985.”

Patton continues, noting that state funding has been not only inadequate but also unstable: “Lawmakers have allowed state funding for Ohio’s public schools to rise and fall over time, adjusted for inflation. They also changed the formula for granting state aid four times over the past dozen years.  Uncertainty in state aid made planning and staffing hard for districts…  Poverty affects children’s ability to learn, and concentrated poverty makes it worse.  In the first years following the Supreme Court finding (DeRolph case), educators persuaded the legislature to provide extra funding for students experiencing poverty.  But over time the number of economically disadvantaged students in Ohio rose, but funding did not keep pace.”

While Ohio’s legislature has doggedly enacted punitive school accountability and at the same time allowed school funding to collapse, however, in recent years a philosophical divide in the legislature has emerged and widened on the subject of public school funding.  Despite that both of Ohio’s legislative chambers are now dominated by Republican supermajorities, the Ohio House, led by Bob Cupp, passed a major Fair School Funding Plan last December, a plan that meets the 24-year—until now unfulfilled—mandate of the Ohio Supreme Court’s decision in DeRolph v. Ohio.  The Ohio House passed the Fair School Funding Plan by an overwhelming margin of 87-9 and sent it to the Senate, where Senate Finance Committee Chair Matt Dolan and incoming Senate President Matt Huffman killed the plan at the end of the legislative session by refusing to bring it to the floor for a vote.

In early February in the Ohio House, sponsors immediately reintroduced the Fair School Funding Plan at the beginning of the new legislative session. Then the Ohio House folded the plan into the proposed FY 2022-23 biennial budget, which the House passed on Wednesday and sent forward as HB 110 to the Ohio Senate. Although the need for a new school funding plan has been exhaustively demonstrated, there is widespread worry that the fate of the Fair School Funding plan rests with Senator Matt Huffman, whose website defines him this way: “President Huffman is devoted to quality school choices for all families, lowering taxes and reducing regulations on Ohio’s small business.”

The Toledo Blade‘s Jim Provance describes Huffman’s careful but unenthusiastic response to the school funding plan in the new budget: “Senate President Matt Huffman (R.. Lima) raised concerns about the general level of spending in the House-passed plan: ‘Financially, the government is in good shape at the state level… That doesn’t mean necessarily all the citizens are. I think it’s easier to make decisions that can be catastrophic in the long term when, at the moment, there’s a lot of money available.'”

The Cincinnati Enquirer‘s Jessie Balmert reports the same kind of lukewarm, cautious response from Huffman: “The fate of that new school funding formula, which would be phased in over six years, is murky.  Senate President Matt Huffman, R-Lima, has said he doesn’t like the price tag, and the GOP-controlled Senate is working on its own way to pay for schools.”

The thing is that Matt Huffman has not been the least bit shy about expanding his own priority for school privatization. Last November he alone revised one of Ohio’s punitive educational accountability schemes—EdChoice Vouchers—by putting the burden for paying for the vouchers on the state’s poorest school districts. In late November of last year, Huffman rammed through, without any open hearings, changes in the EdChoice Voucher program, which has for several years been funded through school district deductions. (The state counts voucher students as though they are enrolled in a school district and then removes $6,000 for each high school student and $4,650 for each K-8 student right out of the school district’s local budget for the student to pay private school tuition. The district receives the state’s per-pupil basic aid for each of the students, but in many cases the voucher extracts more money than the school district receives for that student from the state.)  In November, to solidify support for the program from legislators representing Ohio’s wealthy suburbs, Huffman revised the program so that only students in federally designated Title I schools can now qualify for EdChoice vouchers, thereby placing the financial burden of this program only on the school districts serving Ohio’s poorest children.

Now that the Fair School Funding Plan has been sent to the Ohio Senate as part of the House budget, the worry, of course, is that Huffman’s chamber will delete the plan—developed over several years to balance the need for adequate and equitably distributed state school funding—or redesign it to save money. The plan is calculated around the actual costs of personnel like teachers, counselors, and school nurses and other basics like technology, transportation, and facilities.  In a House Finance Committee hearing on December 2, 2020, Ohio school funding expert Howard Fleeter presented testimony explaining that due to a long collapse in school funding, Ohio’s school funding formula has ceased to work: “The FY10-11 school year was the last year in which Ohio had a school funding formula… which was based on objective methodologies for determining the cost of providing an adequate education to Ohio’s 1.6 million public school students.  In FY12 and FY13, Ohio employed the ‘Bridge’ formula which was not really a formula at all, instead basing funding on FY11 levels. From FY14 through FY19, Ohio did have a school funding formula; however, this formula suffered from several significant deficiencies. First the base cost was not based on any adequacy methodology, instead just utilizing per pupil amounts selected by the legislature. This approach is the very embodiment of ‘residual budgeting’ which was explicitly ruled unconstitutional in the March 1997 DeRolph ruling.”  Although the term “residual budgeting” sounds technical, what Fleeter means is that from FY 14 to FY 19, without considering actual school expenses, the Legislature simply set per-pupil state funding based on now much “residual” money the Legislature had left in the budget after funding all the other expenses of state government.

What would cause Ohio’s state senators to fail to address such a serious injustice for our state’s children?

What we are watching here in Ohio is a conflict in basic values between House and Senate and even between two Republicans from Lima, Ohio: Bob Cupp, the Speaker of the House, and Matt Huffman, the Senate President. Senator Huffman understands schooling from the point of view of consumerist individualism: He supports policies that encourage families to choose their children’s education privately as though they are buying a car or a selecting a smart phone. But the money to pay tuition would come from Ohio tax revenues. Representative Cupp, who has spent a long legislative career informing himself about school finance, understands our public schools, protected by the specific language of the Ohio Constitution, as the center of the social contract. Public education is an institution that epitomizes our mutual responsibility to each other as fellow citizens in a democratic experiment.

The wide support for the Fair School Funding plan expressed by the members of the Ohio House of Representatives demonstrates the values defined by the late political philosopher, Benjamin Barber: “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)