The Education Gadfly Weekly

As Secretary DeVos and Attorney General Sessions and their teams work down the list of Obama-era mischief that needs reversing, let’s hope that their agencies’ joint 2014 “guidance” regarding school discipline is near the top.

This wasn’t a formal rule that can only be undone by engaging in an elaborate new regulatory process. No, it was actually more insidious than that—but also more easily correctable. It was a menacing, twenty-plus page “dear colleague” letter, co-signed by senior civil rights enforcers in the education and justice departments, and sent around the land to state and local education leaders.

Because it was “guidance” rather than “regulation,” it wasn’t—and isn’t—something that must be obeyed. But it was plenty chilling. Aimed arrow-like at “zero-tolerance” style school discipline as well as racial discrepancies, it said, in effect, that if anyone even hints that your discipline policy shows any of the (numerous) warning signs that suggest to us that discrimination might be occurring—these are itemized at length—our agencies will investigate. And if we find that you’re doing anything wrong, we have another long list at the ready, this time consisting of painful remedies we can apply to you.

As legal scholar Richard Epstein noted in a thorough and scathing Education Next review of the dear-colleague letter, “[T]he guidance offers no safe harbor for conducting routine discipline, free of constant federal oversight. Under the Dear Colleague letter, ED has virtually unlimited discretion in deciding, for example, whether ‘[s]elective enforcement of a facially neutral policy against students of one race is also prohibited intentional discrimination.’ Schools will be reluctant to take these cases to court for they always face the risk that ED and DOJ will claim that the observed differences in behavior were themselves caused by racially insensitive or inappropriate district policies.”

The single most troubling feature of this Orwellian guidance was the bald statement that “discrimination” in the application of school discipline does not necessarily mean that any individual was discriminated against. Rather, the two agencies applied the deeply controversial concept—beloved of civil-rights activists—known as “disparate impact.” Which means, in essence, this: should we learn that you discipline students from Group A more often than those in Group B, regardless of cause, provocation, or circumstance, and no matter how even-handedly you may have treated them all, we will nonetheless conclude that your discipline policy as practiced is discriminatory and we will take action to force you to mend your ways. (In this context, “groups” are distinguished by the usual suspect categories such as race, religion, gender, disability, sexual orientation, etc.)

As political scientist Josh Dunn wrote when the letter emerged, “the consequences for schools and particularly for minority students will be nothing short of disastrous if actually implemented. The only conclusion that can be drawn from these guidelines is that the Obama administration does not care about actual student behavior and only wants to focus on disembodied percentages regardless of their destructive educational consequences.”

We have no way of knowing how many federal investigations of this sort may actually have been undertaken in the three years since the “dear colleague” letter was sent (though that would be an excellent question for the Secretary’s office to pose to OCR!). But in a sense it doesn’t matter, for the purpose of the letter wasn’t to pave the way for lots of enforcement activity. It was to scare the bejesus out of U.S. educators when it comes to disciplining minority students so that there’d be little cause for actual investigations.

It certainly succeeded in raising consciousness around the country about school discipline, particularly the practice of suspending youthful miscreants—and it has also played into the hands of those who, for very different reasons, are striving to put charter schools into a regulatory box that curbs their autonomy and will gradually erode their appeal. 

The extent to which Uncle Sam should intrude himself into school discipline practices—and the extent to which “disparate impact” should intrude itself into federal civil-rights policies—are hugely important issues, with or without charter schools. It seems to me unarguable that classroom behavior—and the consequences of misbehavior—is the proper purview of individual schools, districts, and states, which must strike a workable balance between fairness and due process for those who misbehave and the rights of a far larger number of students to calm, orderly, and unthreatening environments in which to learn. It seems to me just as unarguable that federal civil rights enforcement is warranted when actual acts of invidious discrimination take place, not when bean counters calculate that members of one group are being hauled to the principal’s office more often than members of another group. What if—just imagine—there are more incidents of misbehavior on the part of group A than group B? Why does an even-handed, dispassionate response by the school to every such incident constitute discrimination?

If Secretary DeVos and General Sessions need any additional reason to rescind or countermand that three-year old “dear colleague” letter, however, they should consider the negative impact that its view of discipline has on schools of choice. This goes beyond matters of race and asks whether such schools will retain the right and authority to be different from other schools, to be worth attending—worth seeking out, even—because their culture, values, ambience, and the steps they take to foster seriousness, character, behavior, and safety are up to them.

Observe the recent dust-up over school suspension policies in two of the most successful charter networks in the nation’s capital. Seems they—KIPP and DC Prep—operate with broadly phrased policies that empower school leaders to suspend students whose behavior is “detrimental to” or “not in the best interests of” their schools. Any right-thinking school leader would want—and arguably needs—that kind of flexibility so that suspensions (and other forms of discipline) can be tailored and customized to take into account an array of factors regarding individual circumstances and histories, classroom conditions, and the larger school culture. But such flexibility is anathema to bean counters, activists, and over-eager politicians. Should it trigger—as one DC city council member seeks—new regulations that impose fixed external norms regarding which kinds of pupil offenses and misbehaviors—if any—warrant suspension or other disciplinary action? Whose interests are being looked after here—those of troublemakers or serious learners, of government bureaucrats or effective school leaders, of parents seeking safe learning environments for their children—or, just maybe, of those who want to besmirch and ultimately diminish D.C.’s burgeoning charter sector? (What could be better, if that is one’s intent, than to tear into some of the schools with strongest reputations and longest waiting lists?)

Before you answer, please consider two more factors:

First, the uproar in Washington over school suspension rates was fueled in recent weeks by a new GAO report. If you look only at the report’s title, or at the headlines of articles reporting its findings, you would think the suspension problem, such as it is, is confined to charter schools. Yet as my colleague Brandon Wright recently pointed out, both D.C. charter schools and D.C. district schools had 2013–14 suspension rates that were about double the national rates. (That’s often the case in urban settings.) But the charters’ suspension rate (13.4 percent) was only slightly higher than the district rate (12.6 percent). And the charter rate was headed downward (3 percentage points lower than in 2011–12) while the district rate was level, even up a bit. Moreover, the suspension rates for black students (and youngsters with disabilities) were slightly higher in the district sector (17 percent and 25 percent respectively) than in D.C. charters (16 percent and 22 percent).

Second, check out the evidence—albeit anecdotal—that when schools ease up on swift, forceful disciplinary practices and instead put a premium on “restorative practices” and “conflict resolution,” they find themselves with declining student achievement.

Seems to me that an administration that cares about choice, about achievement, about state and local control of education, and about restoring the proper role of the federal government with regard to civil rights now has ample reason—maybe even urgent reason—to make known its views and take corrective action. Such action should both undo the direct damage that the Obama team did in these realms and—insofar as possible—also quench the spreading flames that threaten to consume far too much of what’s actually working in American K–12 education.  

As a mom of three children, I’ve learned that structure and a few rules can make life much more enjoyable for everyone, including the kids. Family rules should be clear, simple, and consistently enforced. Structure in a context of empowerment can make all the difference.

What’s true of families can also be true of the relationship between the federal government and the states. In my eight years working on regulations for the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act at the U.S. Department of Education, I learned that rules and guidance can be as much about protecting freedom, promoting flexibility, and encouraging state-led innovation as they are about ensuring faithful application of federal laws. In fact, one of the most valuable pieces of guidance the federal government can offer to states is to avoid inferring federal mandates where they don’t exist.

Regulatory clarity is especially valuable when it comes to promoting school choice. Secretary Betsy DeVos now has the opportunity to use federal regulations and guidance to create a safe space for states and local authorities that want to maximize the potential for school choice.

Congress can be vague—on purpose

When Congress agrees on any bill language in order to achieve final passage, it doesn’t mean there was agreement on intent. Some language is left deliberately vague because greater specificity would have exposed deep divides in what different sides were trying to achieve in key sections of the law. Other language lacks detail because Congress wanted to leave such details to executive-branch guidance or regulations, including application requirements and issues that depend more on state context.

As a result, there are different kinds of statutory vagueness. Intentional statutory flexibility grants freedom to states—for example, to determine how to use assessment participation rates in their state accountability system. But ambiguous language can be problematic, such as when it leaves states having to decide whether the Every Student Succeeds Act (ESSA) overrides their state charter school teacher credentialing requirements. In the latter case, regulations or guidance can serve as an important guardrail to ensure that states don’t abrogate hard-won school autonomies in the name of ESSA compliance.

Creating a “safe place” for choice and flexibility

Regulations and guidance can create a “safe place” for forward-leaning state and local leaders that want to align their federal funds with their own decisions—and dollars—by which to expand school choice. ESSA offers much flexibility to states, but when faced with nebulous statutory language, state attorneys and program managers aren’t necessarily inclined to sign off on bold new uses of the money that comes from Washington. They often want to see some direct authority in statute or regulations. That’s partly because the same fault lines that prevented agreement on issues in Congress (or the executive branch) often exist in states as well. Vague statutory and regulatory language can impede choice by empowering state decision-makers who are opposed to it. The Trump administration should look at opportunities to “tip the scales” in these state-level debates, by clearly delineating just how expansively the statute can be read.

Secretary DeVos can leverage regulations and guidance to ensure that ESSA is read as expansively and flexibly as possible by doing the following:

1. Spell out flexibility for state educational agencies (SEAs) to contemplate accountability that looks different in urban areas with many charter schools. ESSA’s flexibility coupled with the fact that some cities now have fewer than half their schools within the traditional district can enable state leaders to apply charter-style accountability to district-run schools. Consequently, all public schools in a city could be held accountable via performance contracts held by an independent authorizer. This would, in turn, allow state leaders to give district-run schools charter-like autonomy and create a single citywide accountability system. (See Andy Smarick’s paper on this idea for the National Alliance.)
2. Allow and encourage states to leverage Title I’s 7 percent set-aside for school improvement to replicate and expand high-quality charter schools to serve students otherwise attending low-performing schools (i.e., those identified for comprehensive support and improvement). Without clear permission, local education agencies (LEAs) and SEAs may be hesitant to use school improvement funds to open or expand high-quality schools.
3. Support the use of Title I funds to turn around schools that feed into or out of struggling schools, not just low-performing schools. Make it clear that strategies can integrate targeted support schools that feed in or out of schools identified for comprehensive support and improvement. The comment and responses section of the Obama Administration’s final ESSA accountability rules indicated this would be possible.
4. Encourage states to implement Direct Student Services (DSS). Direct Student Services is an optional, 3 percent state-level set-aside in Title I that awards funds to LEAs to provide innovation to students. There is a lot of potential in this broad authority, should states choose to take advantage of it. Chiefs for Change has already done great work generating ideas for DSS’s potential. Secretary DeVos could capitalize on those ideas and actively encourage the use of DSS, while providing guidance that illustrates potential best practices and clarifies any ambiguous statutory language. She could shape DSS into a program that fosters choice in a variety of ways:
   • Providing specific guidance on how states can integrate and align their DSS program with their use of the Title I set-aside for school improvement.
   • Encouraging innovative strategies, such as micro-charter schools to provide school choice and access to courses not readily available district-wide. Micro-charters are schools where individuals or an organization receive a charter to open a very small school to test out new ideas on a smaller, less risky scale. With micro-chartering, one or more classrooms or individual teachers could receive a charter to provide course access to students beyond the walls of a particular school—or to incubate new charter school models on a small scale before growing them.
   • Requiring LEAs to be transparent and report the benefits they are furnishing to individual students, so DSS isn’t simply a windfall for district bureaucracies.
   • Clarifying a state’s responsibilities with respect to the high-quality tutoring provided through DSS.
5. Weighted student funding pilot. The Flexibility for Equitable Student Funding pilot gives districts that use student-based budgeting new freedom to allocate Title I and Title II dollars to schools along with state and local dollars. Allocating funds based on the number and characteristics of students that attend a school, instead of more typical methods of district-based budgeting and funding personnel, has the potential to facilitate public school choice by helping to ensure district schools of choice receive equitable funding. Secretary DeVos should use her authority to simplify the application process for districts wanting to take advantage of this pilot. Guidance to states can help remove any state imposed accounting roadblocks that might further deter districts from participating in this pilot
6. Issue comprehensive ESSA school choice guidance. A comprehensive choice and ESSA guidance package could connect the dots for SEAs and LEAs on all the authorities in the statute that could be integrated into a comprehensive vision for school choice, and describe how they can work together: Title I, DSS, Equitable Student Funding Pilot, Magnet Schools Assistance Program, Charter Schools Grants, and the Student Support and Academic Enrichment (SSAE) grant. In addition, guidance can address how to transfer funds between programs to support choice, using the “transferability” authority.
7. Streamline and update Charter Schools Program guidance. Current Charter Schools Program guidance needs to be revised to be consistent with ESSA. It should also take advantage of flexibility in the statute, such as new freedom for schools receiving federal aid to implement weighted lotteries, as well as language encouraging states to request waivers to tailor the program to their state.
8. Ensure that ESSA isn’t used to undercut state charter school laws. For example, clear guidance or regulations are necessary to ensure that states don’t use the federal “teacher effectiveness” definition requirements to layer on teacher evaluation requirements that are not otherwise in state laws.
9. Revisit certain ESSA accountability regulations—if they aren’t repealed by Congress. The National Alliance for Public Charter Schools has identified specific issues in the accountability rules that would potentially hamstring charter schools through additional regulation, such as new reporting requirements.

While the Secretary has the authority to rewrite or not enforce troublesome provisions in the accountability rules, Congress may short-circuit that process and repeal the rules outright. A repeal, however, could make it more complicated to implement choice-friendly regulations, given the restrictions the Congressional Review Act would place on future ESSA rulemaking. I believe, however, that much of what I’ve outlined here could still be accomplished via guidance if regulations are not possible.

While the Department has already spilled a lot of ink describing how to use ESSA funds, there is very little guidance for SEAs and LEAs that may want to take advantage of flexibility in the statute to use those funds to advance school choice. Proactive choice regulations and/or guidance will give states and districts the legal assurance they need to innovate and to provide more options to their families.

Christy Wolfe is the senior policy adviser for the National Alliance for Public Charter Schools.

The views expressed herein represent the opinions of the author and not necessarily the Thomas B. Fordham Institute.

On this week's podcast, special guest Suzanne Tacheny Kubach, executive director of the PIE Network, joins Mike Petrilli and Alyssa Schwenk to discuss cooperation and bipartisanship in education reform. During the Research Minute, Amber Northern examines how policy changes in Louisiana affected teacher turnover.

Amber’s Research Minute

Katharine O. Strunk et al., “When tenure ends: Teacher turnover in response to policy changes in Louisiana,” Education Research Alliance for New Orleans, Tulane University (February 2017)

A new descriptive study by Marcus Winters examines whether low-performing students are more likely to exit charter schools than surrounding traditional public schools.

We’re all aware of the claim that some charter schools “counsel out” their lowest performing students, so this analysis looks into whether there’s evidence to that claim. Analysts use six years of student-level administrative data from New York City (2006–12) and Denver (2007–13), two large urban districts with growing and effective charter sectors. They use test scores from grades 3–8, which are combined into one math-ELA standardized measure for each student by grade and year.

The researchers find that low-performing students are on average more mobile than their higher-performing peers. Yet low-performing students in both cities are either equally likely or less likely to exit their charter schools than are students in traditional public schools. In particular, in New York City, low performers are about 5 percentage points less likely to exit their charter school than their traditional school. In Denver, there is no statistical difference between the sectors.

This study does not get into the more qualitative question of whether schools are pushing students out. Yet, the analysts conclude: “[I]f attrition of low-performing students is worrisome for charter schools as evidence of ‘pushing out’ students, it appears to be at least as worrisome for traditional public schools.”

A wise reminder to the pot not to call the kettle black.

SOURCE: Marcus A. Winters et al., “Are low-performing students more likely to exit charter schools? Evidence from New York City and Denver, Colorado,” Economics of Education Review (February 2017).

The Every Student Succeeds Act loosens the requirements governing teacher evaluation systems, and a recent Bellwether Education Partners report analyzes what that means for states, which can now tailor these policies to their own circumstances. Authors suggest ways state officials can learn from past reforms to institute more effective state-led policies.

It’s the authors’ view that the goal of teacher evaluations should be to optimize instructional practice, as measured by academic growth assessments. Many states and districts now use student scores on these tests to, in part, measure teacher effectiveness. Implementation has been rocky in many places, but recent reforms have, overall, improved relations between proponents and opponents of test-based teacher accountability, according to the authors. A growing number of districts and schools, for example, welcome open, constructive dialogue about effective instructional practice; provide specific support and development for each and every teacher; and work to better understand the connection between teacher practice and student academic growth. Nevertheless, many still question whether it’s fair to use test scores to determine teacher effectiveness. And others argue that state tests don’t adequately measure student learning. States looking to reconsider or alter their teacher evaluation policies ought to be cognizant of how these ongoing debates are playing out in various places. The report points to the charter management organization, Achievement First, as a worthwhile model in which student growth assessments count for part of a teacher’s evaluation score, but surveys from students, families, peers, and leaders are also taken into account.

Moreover, the authors caution policymakers that creating and implementing these policies carry a number of risks. First, and perhaps most important, are the considerable amounts of time and resources that must be expended to do this well. States must therefore be sure that they have the requisite people, expertise, and funding. Officials ought to recruit strong state-, district-, and school-level leaders—no small task. And, when crafting policies, resist the urge to move in an overly hasty manner, opting instead for deliberate, informed action.

In locales where interest groups pressure policymakers to base evaluations and employment decisions more on classroom observations and professional development than student achievement measures, the authors argue that caving to these forces would be a mistake because they’d reduce school and teacher accountability. For proof they state, again, that student growth indicators are the most accurate assessment of teacher effectiveness, especially for low-income and minority students. Moving away from these metrics would therefore harm disadvantaged pupils and widen achievement gaps.

We ought not simply take the authors at their word here, however. It’s important to note that, as many have argued, “value added” might not, in fact, be the best way to measure teacher quality. Especially worrying is the concern that an overemphasis on test score gains will encourage nervous teachers to teach slavishly to the test.

With ESSA and a federal government devoted to local control of education, states are now in the driver seat when it comes to school policy. In this new age, one of the best ways to maximize student outcomes is to frequently and openly share lessons across state lines. On the teacher-evaluation front, a lack of a consensus on what constitutes high-quality teaching will complicate these efforts—but it might also harbor innovation. Change can be a good thing, but it can also sow chaos, and policymakers ought to tread carefully.

SOURCE: Kaitlin Pennington and Sara Mead, “For Good Measure? Teacher Evaluation Policy in the ESSA Era,” Bellwether Education Partners (December 2016).