K-12 Education


House Passes ESEA Reauthorization; Senate Reaches Interest Rate Deal

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

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

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

ESEA Reauthorization Set to Move in U.S. House

The House of Representatives is expected to take up the reauthorization of the Elementary and Secondary Education Act (H.R. 5, the Student Success Act) as early as Thursday, July 18, 2013. Reported from the Education and Workforce Committee by a vote of 23-16, the legislation devolves much to the state and local levels, eliminates a number of federal requirements, repeals the Highly Qualified Teacher requirement, consolidates several existing K-12 programs into a new Local Academic Flexibility Grant, and li mits the authority of the Secretary of Education to influence state decisions on the Common Core.  Additional details can be found in the Committee Report.

School Safety: To Be Center Stage at Ed and Workforce Hearing

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

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

House and Senate Hearings Set For Next Week on Schools, Workplace, and NCLB Waivers

Next week the House Education and Workforce Committee and Senate Health, Education, Labor and Pensions Committee will hold hearingson February 5 (Tuesday) and 7 (Thursday) respectively.  Ed and Workforce meets at 10:00 a.m. on the fifth in Room 2175 to consider training and workforce issues, federal actions that impede job growth, K-12 education reform efforts, state efforts to lower college costs, and higher education transparency.  Governor Gary Herbert of Utah, Virginia Secretary of Education Laura Fornash, President and CEO of the National Association of Manufacturers Jay Timmons, and Senior Fellow Dr. Jared Bernstein of the Center on Budget and Policy Priorities headline the witness list.

In the Senate, the Health Education, Labor and Pensions Committee will meet at 10:00 a.m. on February 7 in Hart 216 to look at lessons learned on No Child Left Behind State Flexibility Waivers.  A witness list has not yet been released.

Roll-Out of Immigration Reform Framework

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

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

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

Congratulations to Nina Rees, the New CEO for NAPCS

The National Association for Public Charter Schools announced its new chief executive officer last week–our former U.S. Department of Education colleague, Nina Rees.  Nina is an excellent choice, and was an admired senior official at the Department when she served as the first Assistant Deputy Secretary for Innovation and Improvement from 2002-2006.  Nina comes to NAPCS after a six year stint at Knowledge Universe, where she worked on online instruction, early childhood education, and before- and after- school programs.  Charter schools will have an effective–and very aggressive–advocate in Nina.

Ninth Circuit Affirms Highly Qualified Teacher Regulation

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

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

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


In his column today, nationally syndicated columnist George F. Will discusses our paper, The Road to a National Curriculum:  The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers,released on February 9 by the Pioneer Institute.

With only minor exceptions, the General Education Provisions Act, the Department of Education Organization Act, and the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act (NCLB), ban the federal government from directing, supervising or controlling elementary and secondary school curricula, programs of instruction, and instructional materials.

As we explain in our paper, through three major initiatives—the Race to the Top Fund,the Race to the Top Assessment Program,and ESEA flexibility guidance (i.e., NCLB waivers)—the Department has created a system of discretionary grants and waivers that herds state education authorities into accepting elementary and secondary school standards and assessments favored by the Department.  When combined with the use of discretionary NCLB waivers, these standards and assessments will ultimately erode these legal restrictions, with states serving as little more than administrative agents for a nationalized K-12 program of instruction.

I presented the paper to a colloquium at the Program on Education Policy and Governance at Harvard University on February 29.  Harvard initiated the PEPG Education Policy Colloquia Seriesin the spring of 2004 to foster an interest in education research by allowing scholars and others to present their findings in an open discussion with colloquia attendees.  All events are free and open to the public.

Charter School Replication and Expansion Grants Raise Questions

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

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

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

Committee Mark-up Scheduled for Elementary and Secondary Education Act (ESEA) Bills

The House Committee on Education and the Workforce has scheduled a mark-up of two more Elementary and Secondary Education Act (ESEA) bills–the Student Success Act (H.R. 3989) and the Encouraging Innovation and Effective Teachers Act (H.R. 3990)–on Tuesday, February 28, 2012 at 10:00 am in Room 2175 of the Rayburn House Office Building.

Collectively, the two new measures authorize state-developed accountability systems, provide for local teacher evaluation systems, and give state and local education officials greater flexibility in the use of federal education funds.  As noted in my earlier blog post of February 12, the Student Success Act also prohibits the Secretary of Education from imposing conditions on ESEA waivers.

Last year the committee reported out three other ESEA bills–the Setting New Priorities in Education Spending Act (H.R. 1891), the State and Local Flexibility Act (H.R. 2445), and the Empowering Parents Through Quality Charter Schools Act (H.R. 2218).  The charter schools’ bill was approved by the full House in September 2011. The other two remain pending.

In October 2011, the Senate Health, Education, Labor and Pensions Committee approved its version of ESEA reauthorization by a vote of 15-7.

Bill Introduced Limiting Department-Imposed Conditions on NCLB Waivers

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

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

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

The Erosion of National K-12 Curriculum Legal Restrictions

Those responsible for elementary and secondary education know that federal law prohibits the U.S. Department of Education from establishing a national curriculum, instruction, and the like.  Or at least they should know.  With only minor exceptions, the General Education Provisions Act, the Department of Education Organization Act, and the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act (NCLB), ban the federal government from directing, supervising or controlling elementary and secondary school curricula, programs of instruction, and instructional materials.

In our paper released today, my law partner, Kent Talbert, and I examine how recent federal policy initiatives are significantly eroding these restrictions.  As we explain, through three major initiatives—the Race to the Top Fund, the Race to the Top Assessment Program,and ESEA flexibility guidance (i.e., NCLB waivers)—the Department has created a system of discretionary grants and waivers that herds state education authorities into accepting elementary and secondary school standards and assessments favored by the Department.

When combined with the use of discretionary NCLB waivers, these standards and assessments will ultimately erode these legal restrictions, with states serving as little more than administrative agents for a nationalized K-12 program of instruction.  This is a critical compliance issue that deserves the attention of Congress, other policy-makers, and those interested in innovation in the education sector.

Public School Accountability Hearing Set For September 14, 2011

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

House Presses Ahead on ESEA: Endorses Charter School Bill

On September 13, 2011, the U. S. House of Representatives voted overwhelmingly (365-54) to approve H.R. 2218, the Empowering Parents Through Quality Charter Schools Act.  The bill is the first of a handful of Ed and Workforce Committee measures that reauthorize parts of the Elementary and Secondary Education Act (ESEA).  Among other things, the legislation makes a number of improvements to the federal charter program to facilitate the replication of greater numbers of high quality charter schools.  A summary is here.

Interview on “The Politics of NCLB Renewal”

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

Harvard Conference on Learning from the International Experience

Last week I had the occasion to attend an outstanding conference organized by Paul Peterson and hosted by the Harvard Kennedy School’s Program on Education Policy and Governance. Entitled “Learning from the International Experience:  Lifting U.S. Students to World Class Levels of Performance,” the panel discussions focused upon the following questions:  What can be learned from the International Experience? How can autonomy and choice bolster achievement in the U.S.? Should the U.S. have common standards and examinations? Is digital learning the answer? How do we get great teachers?

In conjunction with the conference, the Program on Education Policy and Governance released a report that analyzed how U.S. students fared in math and reading with students in other countries and cities. The results show a 32 percent proficiency rate in mathematics and 31 percent proficiency rate in reading. Shanghai topped the list with 75 percent math proficiency, and 55 percent in

House Committee Asks Government Accountability Office (GAO) to Examine Regulatory Burdens

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

Title IX Suit Filed Against ED

You will recall that I wrote last March about the controversy that was brewing over the application of Title IX’s “three-part test” to high school athletics.  (You can locate my post here.)  Now, the American Sports Council, formerly known as the College Sports Council, has filed a suit against the U.S. Department of Education over the issue.

In its complaint filed in the United States District Court for the District of Columbia and brought under the Administrative Procedures Act, the ASC, which is represented by the Pacific Legal Foundation, seeks declaratory and injunctive relief disallowing the Department from applying Title IX’s “three-part test” to high school sports.  ASC maintains that ED acted arbitrarily and capriciously when ED’s Office for Civil Rights denied the ASC’s (then CSC’s) “petition to repeal, amend, and clarify rules applying Title IX to high school athletics” in March of 2008.

We will keep you informed as to DOJ’s first move (no doubt a motion to dismiss for lack of standing).  ED has sixty days from the date of service of process to file a responsive pleading.

State and Local Flex Bill Reported from House Committee

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

Third ESEA Reauthorization Bill Introduced: H.R. 2445, State and Local Funding Flexiblity Act

The third in a series of Elementary and Secondary Education Act (ESEA) bills that the House Ed and Workforce Committee intends to report from committee was introduced on July 7, 2011. H.R. 2445, the State and Local Funding Flexibility Act, gives states and school districts broad authority to use federal program funds to best meet the needs of their states and localities. States and school districts are well-advised to track the bill closely given its shift of significant decision-making to the state and local levels of government.

Comments Due by July 25, 2011 on Education’s Plan to Review Regulations

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

Big Vote (34-5) on Charter Schools’ Bill

By a vote of 34-5, the House Education and Workforce Committee reported out its second Elementary and Secondary Act (ESEA) reauthorization bill, H.R. 2218, on June 22, 2011. Entitled the Empowering Parents Through Quality Charter Schools Act, the legislation revamps the current charter schools’ discretionary grant program, among other things, to give priority to states that do not cap the numbers of charter schools.  H.R. 2218 also provides support for the purchase, construction, renovation or lease of school facilities. Additional information can be found in my post of June 20.

Watch for other ESEA bills in the committee later this summer and fall on funding flexibility, teachers, and accountability.

Committee to Update Charter Schools Grant Program

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

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

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

Ed and Workforce Committee Moves Ahead on K-12 and Higher Ed Bills

On May 25, 2011, the House Education and Workforce Committee reported, by a vote of 23-16, its first Elementary and Secondary Education Act (ESEA) reauthorization bill, H.R. 1891–one of several measures expected to be considered this year as Congress works to extend the ESEA.  Known as the “Setting New Priorities in Education Spending Act,” the legislation builds on previous legislation.

Arizona’s Tuition Tax Credit Withstands Challenge

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

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

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

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

SOAR Act Launches (H.R. 471, D.C. Opportunity Scholarships)

By a vote of 225-195, the U.S. House of Representatives approved (March 30, 2011) the reinstatement of the D. C. Opportunity Scholarship Program, providing a renewed message of hope and change for families of the District of Columbia.  The legislation, H.R. 471, as passed by the House, makes it possible for students to escape failing schools, and attend a DC private school of their choice.  The scholarship program earlier expired at the end of the 2009-2010 school year.

Since the time of my last post on this topic (“School Choice Updates:  East Coast, West Coast,” January 31, 2011), the Senate Committee on Homeland Security and Governmental Affairs held a hearing on the companion measure, S. 206, on February 16, 2011. The bill awaits further action by the committee and full Senate.

Another Title IX Controversy Brewing

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

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

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

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

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

School Choice Updates: East Coast, West Coast

On January 26, 2011, Speaker John Boehner (R-OH) and Senator Joe Lieberman (D-CT) introduced H.R. 471 and S. 206, respectively, the Scholarships for Opportunity and Results Act (SOAR Act)(summary), to renew the DC Opportunity Scholarship Program, which expired at the end of the 2009-2010 school year.  The renewed program would provide scholarships of up to $8,000 (elementary school) and up to $12,000 (high school) to families whose income does not exceed 185 percent of the federal poverty level, to attend a DC private school of their choice.

On the west coast, the choice news is a bit different.  In January 2010, California enacted the refreshing parent trigger law, which gives parents the opportunity to make major changes to failing schools.  Under the “parent trigger,” one-half of parents can, by petition, demand that a failing school be shut down, change its staff, or become a charter school.  In the last few months of 2010, this came to the forefront in Compton, CA, where about 60 percent of the parents at McKinley Elementary School petitioned to turn the failing school into a public charter school.  There’s still a ways to go. According to the Los Angeles Times, newly-appointed members of the State Board of Education announced they needed more time to review issues associated with the trigger.  The board is responsible for regulations governing the program. Time will tell how it all sorts out.  Stay tuned.

Funding Priorities for K-12 and Higher Education Discretionary Grants Announced

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

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

These priorities are effective January 14, 2011

Office for Civil Rights Offers New Guidance on Bullying

The Office for Civil Rights (OCR) of the U.S. Department of Education recently issued new guidance on bullying.  OCR notes that the purpose of its Dear Colleague is “to remind [school officials] .  .  .  that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR).”

Given OCR’s enforcement authority and the fact specific nature of sexual harassment and bullying claims that may implicate Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans With Disabilities Act.pdf, all educational institutions should read the guidance closely.

But OCR’s letter also bears attention for what it does not include—any discussion of case law since OCR last discussed it way back in 2001.  This is odd, as student-on-student sexual harassment cases are particularly fact specific, with court decisions turning on a handful of facts.  School district officials would benefit from a substantive review of the cases over the last ten years, noting not only findings of liability, but also instances where school districts deflected liability.  Indeed, in the aftermath of the leading Supreme Court case on student-on-student sexual harassment, Davis v Monroe County Board of Education.pdf, 526 U.S. 629 (1999), where the Supreme Court held that a school district could be liable for monetary damages under Title IX for student-on-student sexual harassment, several courts of appeal and district courts have decided student-on-student sexual harassment cases.  See Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir. 2000, Doe v. Bellafonte School District, 2003 U.S. Dist. LEXIS 25841 (3rd Cir. 2003), Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009), Schroeder v. Maumee Board of Education, 296 F. Supp. 2d 869 (N.D. Ohio 2003), Patenaude v. Salmon River Central School District, 2005 U.S. Dist. LEXIS 29066 (N.D. N.Y. Feb. 16, 2005), Theno v. Tonganoxie Unified School District, 377 F. Supp. 2d 952 (D. Kan. 2005), Doe v. Southeastern Greene School District, 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. March 24, 2006). Educational institutions should be familiar with these cases before responding to student-on-student sexual harassment claims and OCR enforcement actions.

No Child Left Behind Act: Not an “Unfunded Mandate”

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

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

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

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

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

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

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

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

Another Take on Freedom (Or The Lack Thereof): “The Lottery” and Charter Schools in New York City

For those who follow education reform, consider going to see “The Lottery,” the new documentary about the challenges charter schools face from entrenched interests in New York City.  Though I have not yet seen the film (opening June 82010 in New York City and June 25, 2010 in Washington, DC ), Bari Weiss, in the June 5-6, 2010 weekend edition (p. A14) of The Wall Street Journal presents a summary of the hurdles New York City charter schools have faced  from the United Federation of Teachers, certain city council members, and others. Weiss recounts her interview with 27-year-old filmmaker Madeleine Sackler.

Summary of Film.  Weiss tells how filmmaker Sackler was taken aback by the number of parents that gathered at the Harlem Armory to see who would win slots, via the lottery, for their children to enroll at the Harlem Success Academy.  According to the article, the Harlem Success Academy is one of the best charter schools in NYC.  [Under the law, when there are not enough openings for students at charters to meet the demand, a lottery is required.]

Sackler notes “I wanted to know why so many parents were entering their kids into the lottery and what it would mean for them.”  Thus began her quest to produce the documentary–interviewing family members, educators, politicians and others.

The success rate at the Harlem Success Academy is compelling. According to the article, in 2009, 95% of third-graders passed the state’s English Language Arts exam, versus only 51% in P.S. 149, the traditional public school that shares the same building. That same year, notes Weiss, Harlem Success was No. 1 in math out of 2,500 public schools in New York State.

Yet establishing charter schools and providing more options for parents has not been easy. Charter schools in New York City have faced many hurdles along the way.  Eva Moskowitz, a former New York City Councilmember and founder of the Harlem Success Academy notes, the opponents of charter schools are the “union-political-educational complex.” As Weiss explains, “[t]hat’s a fancy term for the web of unions and politicians who defend the status quo in order to protect their jobs.”

Whether you are a charter school principal, board member, reformer, authorizer or simply interested in education, consider the documentary “The Lottery” as part of your summer “to do” list.