Edjurist TV Episode 5: Initial Thoughts on Safford Unified School District v. Redding

The Redding case is out today (so is Horne v. Flores, but I'll address that later). Basically, my thoughts on Redding are ... Wahoo ... as I articule in Episode 5.

Here are some other links.

MSNBC reporting.

School Law Blog

ASCD Inservice

And here are all my previous posts:

Thoughts and Resources.

Wins en banc appeal.

Goes to en banc appeal.

Continues to get attention (with video embed).

Original Post (with comment from Savana Redding).

Interesting Short Article on Parents Involved

A good deal of scholarship has been published in the legal and educational communities since the Supreme Court decided the Parents Involved case. In that case, the Court struck down the student assignment systems of Seattle, Washington and Louisville, Kentucky on Equal Protection grounds. Justice Kennedy (nearly universally regarded as the "swing" Justice, now that Justice O'Connor is gone) wrote the decision.

Most of the scholarship has either described the case, fit the case into existing jurisprudence, or made normative claims about its correctness or the likely consequences. Recently, though, I came across an interesting piece in the Teachers College Record addressing the case from the perspective of a social science researcher. The author, Professor David Armor of George Mason University, evaluates the portions of Justice Kennedy's opinion in which he accepted the conclusion of the "liberal wing" of the Court that desegregation was a compelling governmental interest, but rejected the justification for this conclusion, which the Justices in the "liberal wing" based on social science evidence indicating positive average effect sizes in test scores resulting from desegregation. Professor Armor makes some important points that practitioners and researchers of constitutional law would do well to understand. The article is here. In particular, I think Professor Armor gets at a thorny concept--statistical effect versus the practical meaning of such an effect--that confuses many legal decision makers.

I think that Professor Armor's points are particularly salient today because legal scholarship, and increasingly legal adjudication, are becoming permeated with social science methodologies and evidence. Few lawyers and judges have the training necessary to understand such evidence and its limitations, and much legal decision making involving such information illustrates this lack of training. I hope that more work like Professor Armor's will help legal decision makers to understand what social science evidence can and cannot show.

Board Certification for Education Lawyers in Florida

Yesterday, I received the following message from the Florida Bar (of which I am a member).  It announces the approval of board certification procedures for education law and adoption law.  For those unfamiliar, board certification is a designation that a lawyer may achieve only after several years of successful and ethical practice in the field.  It is a highly rigorous process that designates a lawyer as a bona fide expert in the field of certification.  I am not sure how many other states have decided to offer this designation in education law, but it is quite encouraging that our field of practice and scholarship is being recognized as distinct enough from other practice areas to justify board certification.  I look forward to seeing who earns the designation.  Here is the announcement:

On June 11, 2009, the Supreme Court of Florida adopted rules regarding two new areas of board certification– educationlaw and adoptionlaw– to Chapter 6 of the Rules Regulating The Florida Bar. In re: Amendments to the Rules Regulating The Florida Bar– Rules 6-27 and 6-28, SC08-1981, effective June 11, 2009.

Florida attorneys will be able to apply later this year for certification in adoption law and education law.

For more information, go to: http://www.floridabar.org/certification or contact spiland@flabar.org (adoption law) and jcoiro@flabar.org (education law).

Applicants are also being sought for the adoption law and education law certification committees.

The rules can be found on the Florida Bar’s web site: http://www.floridabar.org/divexe/rrtfb.nsf/WContents?OpenView

The court opinion can be found on the Court’s web site: http://www.floridasupremecourt.org/decisions/opinions.shtml

Blogging Teacher Correctly Demoted

The Ninth Circuit has held in Richerson v. Beckon that a teacher who uses her blog to post comments about other employees can have adverse employment consequences taken against her. The teacher, an instructional coach and curriculum specialist, published posts on her personal blog that talked about issues that arose at work. While she never named names, the subjects of the posts were easily identifiable to her co-workers, who refused to work with her. The principal then transferred her back into a regular teaching role.

The court used Pickering as the central analysis, I was pleased to see:

     Particularly relevant to Richerson’s case are the considerations of whether her speech “disrupt[ed] co-worker relations,” “erode[d] a close working relationship premised on personal loyalty and confidentiality,” or “interfere[d] with the speaker’s performance of her or his duties.”
     It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect in each of these ways.

Right result here and right analysis. This was a relatively simple case that the court didn't mess up by harping over the Internet speech or getting tied up with Garcetti.

H/T - Mitchell Rubinstein

The Rubber Room Balloon

Unbelieveable, really. 700 teachers in New York sitting in rubber rooms waiting on hearings, costing the city an estimated 65 million dollars a year. The issue:

...because their cases are heard by 23 arbitrators who work only five days a month, stints of two or three years in a rubber room are common, and some teachers have been there for five or six.

Hire more arbitrators/hearing officers? I don't see anything in the law that prevents that. Just a thought. I'm sure they have some excuse or another, but at this point I don't think any excuse is sufficient. This has become a national embarassment for education and it needs to go away ... pronto.

Learning About Roberts and Alito: Forest Grove School District v. T.A.

The Supreme Court released Forest Grove Sch. Dist. v. T. A. today and in it found for the parents that their private school tuition should be reimbursed by the public school, even though the public school never made an attempt to provide FAPE in the first place. I think this is really the first education case in which we are feeling the full effects of Justices Roberts and Alito and, in particular, how those two justices are different than Justices Scalia and Thomas. Let me explain ...

 

The case concerned a high school student that was struggling. After his freshmen year the student was evaluated by the public school and the school concluded he did not have a disability. The academic results did not improve and, in the student's junior year, the parents became concerned and consulted private specialists to determine the cause of the academic struggles. The private evaluator diagnosed the student with ADHD and learning disabilities and recommended a private, residential, special education placement. The parents then enrolled him in a private academy. A few days later they informed the school and, after an evaluation, the school again found the student ineligible. The student was left in the private school for his senior year and the parents sought reimbursement for all those private school costs.

 

So, this is sort of a technical case, but I'll try to boil it down for us. This case basically came down to (1) statutory interpretation and (2) gut feeling on the purpose of IDEA and the effects of this policy.

 

First, statutorily this is a close call as IDEA does not really say what to do in instances where there simply was no FAPE provision at all. IDEA contemplates and instructs when a school tries and fails to provide FAPE, but not when a school evaluates that no FAPE is necessary in the first place, as it does in this case. So, if you want to get technical (and I have a variety of readers so I know some of you do), then the statutory provisions to consider in depth come from Section 1412(a)(10)(c). In particular read 1412(a)(10)(C)(i) against 1412(a)(10)(C)(ii). If you don't want to get so into the legalese, they generally say that publics should not have to pay for private school education if they provided FAPE, that is unless later that FAPE is determined inadequate by the courts. Justice Souter in dissent (with Scalia and Thomas) makes a good argument that the provision is pretty clear that first you have to try and fail with the public option - that trying the private option without getting a flat denial or inadequate FAPE does not warrant reimbursement. In this case, where they unilaterally placed in the junior year without first trying the public, were we to merely consider statutory interpretation it's hard to see how reimbursement is permitted under the language of IDEA. Of course, in these cases we usually don't merely consider the language by itself, and that is how Roberts and Alito are different than Scalia and Thomas.

 

Now, if you are to consider the practical effects of all this stuff and the policy effect it will have on children with disabilities, one is much more likely to find for the parents. Really, even though this is an important case in special education law, this is not life and death, especially in the Court's eyes who regularly deal with life and death. In all of the cases this ruling might apply to, the student is going to be a borderline special education student where he or she will be receiving some education in the regular education setting anyway. Really, it is only in very close calls that this case will even matter all that much. When you have (1) a close practical case like this, (2) a close statutory case like this and (3) there are feasible legal and policy interpretations on either side, Roberts and Alito came down on the side of sympathy to the law's original purpose and, frankly, sympathy to the plight of special education students and their parents. Stevens, writing for the majority in which Roberts and Alito joined, almost expressly states as much when he talks about the "remedial purpose of IDEA."

 

In the ability to consider a sympathetic position both to Congress and to plaintiffs we see a difference emerging between Roberts and Alito on one hand and Scalia and Thomas on the other. Scalia and Thomas would sentence themselves to death if that is what the language said in their mind, even in a close and ethically challenging case. They are proud of the fact that courts should not involve themselves in issues of policy or sympathy. Roberts and Alito take a somewhat more flexible approach in that when the language is plain it must be followed, but when it is not other considerations are warranted. Either result here could have been good or bad practically. A ruling for the school would embolden schools to flatly deny FAPE in the first place while a ruling for parents would, and will, encourage them to seek more costly unilateral placements that taxpayers will eventually have to fund. Considering the purpose of IDEA, the risk should be born by the taxpayers. And, frankly, I think this development in Robert's and Alito's judicial temperment is a good development for education generally and for students in particular (as long as you are a sympathitic student ... a.k.a. not Joseph Frederick). 

Answering Scott's Question: Bureaucracy or Democracy

Like many of you, I have excitedly followed along with the events in Iran. Yesterday, not by chance (the video was released because of the events), Scott McLeod posted Clay Shirky's latest TED talk and I also read Clay's Q & A on the Iranian situation.

Scott's question:

Shirky notes that we are living through "the largest increase in expressive capability in human history." Wait, isn't it a function of K-12 schools to help students be effective communicators in the media of their time?

In response, let me say this: I think democratic schools would "help students be effective communicators in the media of their time." Thus, the question fundamentally is one of the democractic nature of our education system (or lack thereof, but, we'll get back to that).

First, though, schools are resistant to this kind of democratizing change toward social media for a reason ... fear. Really, no different than the fear shown by the Iranian government right now, just a difference of degree. We block Youtube in our schools for the same reason Iran blocks Youtube in their country or China blocks Twitter ... we can't control it ... and therefore it is viewed as dangerous.

Thus, for me, the social media adoption fight in our schools has always been a democratic fight, not a technological fight. We know the technology and we could implement it fairly easily. The system is resisting though, perhaps correctly, because of fear. It is an innate resistance inherent in bureaucratic systems -- i.e. the whole reason bureaucracies are built in the first place is to resist (or stop) change.

Now, if you are a government, there really is nothing more dangerous than teaching the entire population how to communicate with each other without you (Iran has found out the hard way that too many of it's citizens knew how to tweet). And, this innate resistance, particularly because of it's heightened danger, is chiefly responsible for the nationwide bureaucratic resistance to social media adoption in schools. Particularly in schools, actually, both because the law allows the government more regulatory freedom there and, relatedly, students are much less passive than middle aged men with mortgages.

So, returning to Scott's question,"isn't it a function of K-12 schools to help students be effective communicators in the media of their time?" The answer is clearly "no" if two things are true. First, the fundamental purpose of our schools must be bureaucracy, and not democracy, and I think one can make a legitimate argument that such is the case. Second, though, the bureaucracy must not have internalized, and thus removed from fear from, the change.

And, in this second point is our lesson. Schools may well be bureaucratic - any school law scholar such as myself would be hard pressed to conclude otherwise. But, simply because schools are bureaucratic does not necessarily mean they must be anti-democratic. When one can remove the fear from a democratic initiative, bureaucracies can readily adapt. This is what Obama did in the FISA example in Clay's talk. He, or his campaign, overcame the fear of dissent and thus his bureaucracy actually promoted democracy.

So, the answer to Scott's question can be yes either if our schools are fully democratic (and maybe I am underestimating them) or, more realistically, the bureaucracy embraces the fear, removes it, and stays one step ahead of its populace. And, this is how we are, or must be, different than Iran ... one hopes.

Credit for Release-Time Religion Class

Howard Friedman, who does yeoman's work at Religion Clause, has an interesting religion case out of Spartanburg, S.C. where they are giving academic credit and grades to religious-based courses offered during school release time. Spartanburg is responding to a 2006 S.C. statute that permitted such credit to be awarded for release time activities. 

Hard to see how see how South Carolina gets away with this one, but it will make for interesting case law if it goes to trial and up on appeal. 

RTI and Special Education Enrollment Declines

I'm teaching a special education class at the moment and I was forced to reevaluate a long held belief. You see, since IDEA was first passed as EAHCA in 1975, there has been a steady increase in special education enrollments nationally. At least, that was what I told my students because last time I checked, that hadn't changed. Well, I checked again after a discussion about RTI implementation in Kentucky and sure enough, at least in Kentucky, we have for the first time seen a decline. Here is the data and here is a chart:

Okay, a few things to note. I put in the trendline so that you can see the trend is still very much in the positive direction since 1992. Second, there was a negligible decline in the 07 numbers, but a fairly substantial decline in the 08 numbers (so it will be interesting what 09 reveals). Third, this is not statistically correlated yet to RTI implementation, so there might be some other unexplained factor that is accounting for the drop. For instance maybe the economy is playing a role, maybe we did just finally hit a saturation point - there may be lots of non-RTI explanations.

But, my hunch is RTI. I can't speak to other states because I have been in Kentucky the last few years, but Kentucky has been very serious about RTI implementation and most schools across the Commonwealth are firmly on board from what I have seen. RTI has accounted for drops before in district numbers, but at least for me this is the first statewide drop I have seen. I checked a couple other states and there are some mixed data. Oregon and Illinois are still going up. Kansas seems to have leveled off. Maine has seen a decrease, as has Texas. Part of this, though, may be a function of when the latest data is available.

Anyway, someone needs to get out there and look at all the state's data and compare that to RTI implementation. These numbers will eventually aggregate into national numbers and we'll have a little better national picture, but what we really need to be able to statistically verify is whether and how much effect RTI is having on special education enrollments at the local, state and national levels. On top of that, we really need a TON of data on those students that are being directed away from special education because of RTI. Are they achieving? What is the recurrence rate? And, a ton more questions. And, we need all this by the next round of IDEA reauthorization.

Paying for the National Standards with Federal Dollars

Recent developments around the formation of national standards have been really interesting. They got even more so today as Secretary Duncan has announced that the federal government will spend $350 million developing tests off whatever standards are eventually developed by the collection of 46 states.

Scott has written eloquently about this movement here and I agree with all of his points, even though my instinct is more toward state control (I don't think I trust the federal government). Anyway, one of the questions he raised in that post was concerning enforcement and specifically concerning the millions (or billions) needed to develop new tests to actually make these standards mean something.

Well, here is a 350 million dollar down payment and the DOE clearly sees its role as bankrolling this whole enterprise.

Asked to explain the money's focus on developing more tests, Duncan said developing the standards themselves would be relatively inexpensive.

Developing assessments, by contrast, is a "very heavy lift financially," he said, expressing concern that the project could stall without federal backing.

"Having real high standards is important, but behind that, I think in this country we have too many bad tests," Duncan said. "If we're going to have world-class international standards, we need to have world-class evaluations behind them."

So, we have national standards developed by states and paid for, and enforced, by the federal government. This is getting messy already and we don't even have a single standard developed yet. 

This is a constitutional end-run if I have ever seen one.

So, the federal government is going to pony up the money but not contribute at all to the formation of the standards? When was the last time the federal government was that gratuitous? They are not, that's the answer. There are standards and then there are tests. Ask any teacher, any single one, whether for the sake of curriculum development the standard or the test is the most important aspect. What gets tested, gets taught. If the federal government dictates the test ... the federal government dictates curriculum - and federalism as we know it in education is over.   

NCLB: "A Hostage of Fortune"

I get asked all the time about NCLB reauthorization and we talked about it in class this week (it's a law, I'm a law guy, I guess I am supposed to know that). I'm no expert for sure, but my standard response is 2010 at the soonest. I don't see any serious signs from the administration and although George Miller keeps saying it will be done this year, there is really no reason to believe that. So, since I am not an expert, I thought I would post this from a couple of, well, near-experts who have some insightful analysis of when we can expect reauthorization (ok, I will go ahead and ruin it ... 2010 right before mid-terms). But, its good analysis from real experts (i.e. not just my hunches), so enjoy.

Harrison Williams' Bill

Our own little Charlie Wilson ... sort of. Harrison (Pete) Williams was a Senator from New Jersey. He is important to us because he was the Senator that proposed the core provisions of EAHCA, what is today IDEA, based off the PARC and Mills cases which granted equal educational access to children with disabilities. 

A few years later, just as his law was starting to positively affect the lives of millions of disabled students, he was caught taking bribes in an FBI sting operation called ABSCAM (the same sting operation John Murtha was involved in). He agreed to take stock in a titanium mining business in return for giving the business special treatment by the government. He was convicted and served several years in jail.   

I guess you take your heroes where you can find them. 

Crazy, Alright.

I hate columns like this. Hate them. 

When the top of your blog says "Business" ... maybe you should stick to writing about business. We got a name for this nonsense, it's called telling tales out of school. Pity, I really like The Atlantic otherwise, but if you got a "food" correspondent maybe you should have an education correspondent too. 

Digital Efficiency

That's what Governor Schwarzenegger wants.

It's nonsensical — and expensive — to look to traditional hard-bound books when information today is so readily available in electronic form. Especially now, when our school districts are strapped for cash and our state budget deficit is forcing further cuts to classrooms, we must do everything we can to untie educators' hands and free up dollars so that schools can do more with fewer resources.

We're seeing an interesting shift here where the digital is now seen as more efficient than the textbooks. That's a key shift in perception because conservatives now have an argument from which they can support such broad digital transitions, as we see the Governor doing in this article. You look at the healthcare debate for instance, where digital records are guaranteed to be a big part of this package. Because it is being sold as an efficiency in the healthcare system, no conservatives are voicing strong opposition to it and many support that aspect of reform. We could well see the same thing in education where digital becomes equated with efficiency. 

For a long time digital advocates have been trying to sell the digital transition on the basis of global competition, job readiness, student receptivity, and a bunch of other very good arguments - which you can see summed up in great videos like the one Scott McLeod helped produce. But efficiency ... well, that argument sells itself. I don't need a great video to sell someone if the digital is seen as the cheaper option - what I need is an economist to total the savings and testify in front of the subcommittees and we can get whatever digital transition we want. 

The Power of Pension Funds

As regular readers know, I have a little secret infatuation with teacher pension systems. I've posted on them several times, but this is one of the more recent ones.

Anyway, today the Indiana Teacher's Retirement System (which I know a lot about), with a couple other Indiana pension systems, stopped the Chrysler sale. Mark Walsh had it earlier and Justice Ginsburg issued the order. 

Now, this doesn't mean the sale won't go through. Nor does it really mean that only a pension system could have stopped it. Any number of plaintiffs could have stopped it - it just happens that it was pension systems. 

But, I feel it is a good corollary of just how powerful these pension systems are - they can literally shut down international commerce - bet you didn't know teachers were so powerful.  

NCSL Bill Tracking

One of the things I am going to try to do over the summer is provide links to data sources related to education law - and today is the first of those. 

The National Conference of State Legislators has a great education bill tracking database that they built last year. They seem to be doing a pretty nice job of catching all the bills and the history of those bills. But, the cool part is that you can sort by topic in a pretty detailed topical list. For instance a search of 2009 bullying bills yields this list, containing everything from technical changes to the law in Illinois to a fairly bold proposal by Alabama. Anyway, it could be a cool little tool that you would find useful. 

If Things Are Not Bad, They are Not Accurate

Check out this Columbus Dispatch story today. The author blatantly accuses the schools in Ohio of lying, or intentionally ignoring, incidents of sexual harassment in schools. 

I'm not an expert on Ohio sexual harassment, so I can't say one way or the other whether the data cited in this story is accurate. But, the point is that neither is this newspaper author - and she doesn't cite anyone that does seem to be an expert on Ohio school data reporting systems. 

The operating assumption here, and it is explicitly acknowledged in the article, is that kids are sexually harassing each other all over the place. Kids are probably exposing themselves everyday, fondling each other, forcing kisses on each other, raping each other. That is the clear modus operandi of all teenagers because they are "hormonally charged." To support these assumptions, she quotes a consultant who would benefit if such was the national perception. We must assume the worst, and that assumption must override any data ... because, well, we all know that schools and tennagers are bad, in all cases. 

What has happened to real education journalism? Was it ever even there in the first place? Look, if you think the numbers are cooked, do an investigation and get some real proof. Then you have a story - otherwise you have nothing. Speculation is for the editorial page ... keep it off of the education page. 

Shifting, or Blurry, Fora?

The Busch v. Marple Newton Sch. Dist. case is getting a lot of play. In it the 3rd Circuit ruled that a parent may not read the bible in her son's kindergarten class, even though it was during an activity called "All About Me" which featured information about each student, including the opportunity to read from each student's favorite book. The mother of the student selected the "Give Thanks unto the Lord for He is Good" passage of Psalms, but before she could read it in class, the teacher and principal stopped (Mark Walsh has more). Anyway, the court ruled for the school - which is fine by me - because it occurred in a classroom, which the court found to be a closed forum and thus the administration could regulate. This is just another example of the court's tilting toward schools, but nothing seems legally out of order in their ruling.

It's that forum, though, that concerns me. The court seemed to imply, as Patrick Fanelli noted, that even though the classroom is a closed forum, it is sort of a shifting closed forum in that age and context matter as to how much regulatory control the school retains. As Patrick said:

The Court also recognized, though, that age and context matter in determining what kind of control the district can retain. In other words, the question of whether or not a forum has been opened to general debate or dialogue may be answered differently at the elementary level than at the secondary level, for example.

This strikes me as odd. Fora are not the kinds of things that are blurry, once your decision as to the applicable forum is made (i.e. public forum ... pretty much anything goes, limited open forum ... some restriction permitted, closed forum ... any rational and constitutional restriction permitted).

It is unclear to me reading the opinion what the court was shifty or blurry about, but it should not be shifty of blurry about the forum. A public school classroom is a closed forum, pretty much all the time when school is in session - whether that's kindergarten or that's high school seniors. The court correctly concluded it was a closed forum. So, giving them the benefit of the doubt, I am only left to conclude that they were implying that it was the constitutional principles can be shifted or blurred by the surrounding circumstances, not the fora. If that's what they meant, then I would agree. What a kindergartner is constitutionally permitted to say and what a senior is constitutionally permitted to say are different, and thus the freedom of expression shifts to compensate for the speaker and the circumstances (shouting fire is fine in a park, not so much in movie theater). But, it is the constitutional protection that is shifting, not the forum.

Thus, there is not a spectrum of thousands of different fora. There are only three options when it comes to schools and those options are mutually exclusive.

"National" Standards--Part I

There has recently been a movement among the states to collaboratively adopt learning and content standards that apply nationwide.  "National, not federal, standards," as a proponent pointedly referred to them at the AERA Annual Meeting.  Today, Education Week reports that 46 states, "representing 80% of the nation's K-12 student population" have signed a "memorandum of understanding" (a euphemism for an unenforceable contract) reflecting their intent to adopt such standards within three years.  The standards will be developed by representatives from Achieve, Inc., The College Board, and ACT, Inc. (two testing companies and an advocacy organization), and each set of standards will be sent to experts selected at the state level for comments.  The project apparently will focus only on English and math at the K-12 level (though college standards in some form will apparently also be developed).  Once the standards development is complete, states will apparently be expected to adopt them through the normal lawmaking process.

I have many thoughts about this movement, so I label this post "Part I," anticipating future postings.  To begin with, I see this as the latest example of how we have become determined to engage in half-measures in national education reform, for fear of "growing" the federal government or infringing on the time-honored value of "local control," whatever that means today. 

For example, however you may feel about NCLB, it is abidingly clear that the decision to hold states accountable for year-on-year progress, and then to let the states themselves set individual standards of such progress, has been a disaster.  States routinely "game the system" by setting testing "cut" scores lower than they would otherwise be, thus inflating test score data and avoiding federal (financial) sanctions.  The only reason that I can see for drafting NCLB in this way was to tamp down on objections based on "local control" to the largest expansion of the federal role in education since Lyndon Johnson.  So, what we got was a half-measure--a federal accounability program that allows (or even encourages) states to game their way to great scores by setting low, easily achievable standards.  This improves education?   

The same philosophy seems to be at work in the "national" (but scrupulously NOT "federal") standards push.  If we need common standards throughout the country--if this is indeed vital to the health of our education system (and this itself is debatable)--then why not set them in federal law?  This would ensure uniformity, would not allow for state-level "gaming," and would allow for valid comparisons across state lines.  Best of all (if you are into national education reform), this would make NCLB's accountability data meaningful for cross-state comparative research.  Anything short of that leads to unavoidable problems, such as those we have experienced with the current version of NCLB. Why not take the opportunity of the re-authorization of NCLB to set high, but realistic, federal standards in a few areas and develop a federal test for purposes of accountability?

Beyond this, a few more preliminary questions:  What if the "national" standards are developed, and then several states only legislatively adopt portions of them (for political or financial reasons)?  Will they still be meaningful?  Will anything exist to "force" compliance?  What if state-developed tests are rendered content-invalid by the new standards?  Will the states be expected to spend millions (or even billions) to develop new tests?  What about textbooks and other resources keyed to the existing state standards?  Is it realistic to think that, without some external (i.e., "federal") accountability lever, the local schools and districts will just get rid of those materials in favor of new (and undoubtedly more expensive) ones?  What is to stop a state from adopting, and then subsequently repealing or tinkering with, its "national" standards law when results do not look so rosy?  Most importantly, how on earth will all of this dovetail with NCLB's accountability measures?  How will this prevent the "gaming," which has related to testing, rather than to the content of the standards themselves?  I am not a reflexive opponent of national education reform, but I also do not see clear answers to any of these questions.  More in future posts . . .

NCLB and State Education Finance Remedies

Several states have complained about the No Child Left Behind Act (NCLB) and its tendency to cause states to incur expenses they would not have incurred absent the law.  This tendency is troubling because NCLB appears to explicitly forbid the creation of any unfunded mandates in the law (and two states have sought to remind the Department of Education of this through lawsuits).  However, it may be troubling for another, unforeseen reason.  

Multiple states have had their state education finance systems held unconsitutional due in part to their failure to provide adequate or substantially equal funding.  The states typically defend these suits first on procedural grounds (e.g., standing, separation of powers), and then on the basis that either (1) local control prevents the state from equalizing expenditures; (2) the constitutional standard in the education clause is met; or (3) the state simply is unable to increase or equalize funding due to lack of available revenues.  

The first two of these defenses are well-worn, and I do not seek to comment on them here, but the third defense appears to collide directly with the "unfunded mandates" argument under NCLB.  That is, if NCLB, a federal law under which states can choose to be bound simply by accepting federal funds, can cause state expenditures to increase or be diverted, such that revenue that could have been used to equalize spending (or increase total spending to an adequate level) is instead committed to funding the unfunded mandate, is not NCLB at least one proximate cause of the alleged funding inequality or inadequacy?

If this link were to be proved in court (and I'm sure it would not be that difficult if NCLB does indeed create unfunded mandates), then it appears that the court would be presented with a ready remedy.  Enjoin the state education board from complying with the unfunded portions of NCLB until such time as state general education funding is rendered equal or adequate, as the case may be.  I wonder what the DOE would do about that . . .