New Jersey Teacher Tenure Lawsuit Dismissed

Originally published in The American Prospect on May 5, 2017.
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Another legal effort to weaken teacher job protections through the courts has been dismissed, this time in the Garden State. On Wednesday afternoon, a New Jersey Superior Court judge tossed the latest case, ruling that the plaintiffs—six parents from Newark Public Schools—failed to prove that seniority-based layoffs harmed their students.

Partnership for Educational Justice (PEJ), a national education reform group that aims to challenge teacher job protections across the country, funded the New Jersey lawsuit. Originally filed in November, the case marked the third time PEJ has gone after tenure provisions. Their first case filed in New York in 2014, is currently before the state Supreme Court. In October, a Minnesota district judge dismissed PEJ’s second suit, filed there in 2016. That case has since been appealed.

A 2012 California lawsuit, the country’s first legal attempt to challenge teacher job protections, inspired PEJ’s litigation. Lawyers in that high-profile case, Vergara v. California, argued that the rules that help keep ineffective teachers in the classroom violated the equal protection clause of the state’s constitution. The problem, the attorneys argued, was even more serious given that poor and minority students are disproportionately likely to attend schools with bad teachers.

A Los Angeles County Superior Court judge ruled in favor of the plaintiffs in 2014, finding that five long-standing teacher job protections, including a two-year probationary period for new teachers and a layoff system based on how many years one’s been teaching, violated students’ constitutional right to an equal education.

However, in a unanimous 2016 decision, a three-judge panel on California’s Court of Appeals struck down the lower court ruling and the state Supreme Court declined to hear the case.

These decisions have not deterred PEJ leaders. But their other Vergara-style lawsuits have run into similar legal hurdles—namely, the plaintiffs have failed to prove that teacher tenure and seniority directly cause the problems that the plaintiffs say exist.

The California appeals court judges concluded that the plaintiffs “failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students.”

Likewise in Minnesota, the district judge said that the plaintiffs failed to establish that they had been harmed in any way by the statutes, but even if they had, “because Plaintiffs’ alleged harms are not fairly traceable to the teacher tenure and the continuing contract provisions they challenge, a decision by the Court to strike those laws would not redress the harms.”

In the New Jersey case, the judge said that she does not “see any link other than speculation and conjecture between the LIFO statute and the denial of a thorough and efficient education to these twelve children.”

It is not yet clear whether the Newark plaintiffs will appeal Wednesday’s decision. Naomi Nix, a journalist with the education news website, The 74, reported that a lawyer for the plaintiffs said they may appeal the dismissal or replead the case.

“We are very pleased that the judge saw through this transparent attempt to undermine New Jersey’s seniority statute by making false claims and denigrating Newark’s dedicated educators,” said New Jersey Education Association (NJEA) President Wendell Steinhauer, in a statement. The NJEA, along with the American Federation of Teachers, had filed a motion to dismiss the suit.

David Sciarra, the executive director of the New Jersey-based Education Law Center, a legal advocacy organization, told The American Prospect that Newark’s State Superintendent Chris Cerf supported the plaintiffs in the case, claiming that state law tied his hands when cutting the district’s budget. “This is a huge distraction,” Sciarra argues. “Newark students don’t need more layoffs. They need Mr. Cerf to stand up and call on Governor Chris Christie to increase state funding so Newark can hire back the hundreds of teachers and support staff lost over past five years.”

The Untold History of Charter Schools

Originally published in Democracy Journal on April 27, 2017.
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Despite the controversy over their very existence, there isn’t much disagreement over how charter schools came to be. For over 25 years, charter supporters and opponents alike have settled on a straightforward creation story, one defined by a single irresistible irony: Charters were first and foremost the brainchild of teachers’ unions, the very same groups that would become the schools’ greatest foes.

The story goes something like this. In 1988, Albert Shanker, legendary president of the American Federation of Teachers (AFT), gave a speech at the National Press Club where he outlined his vision for a new kind of publicly funded, independently managed school. He called them “charters” and saw them as educational laboratories, where teachers could try out new pedagogical approaches. By empowering teachers to experiment with their craft, charters could serve as R&D spaces for new and better practices that could then be transferred back into traditional public schools. In a New York Times column published later that year, Shanker carried his ideas to the wider public.

Shanker said his piece, policymakers heard him and acted, and the rest—the explosion of charters, the debates over unionization and privatization, the constant experimentation with the form and structure of public schools—is history.

Today, this story has been weaponized by every side in the endless war over education reform. The Shanker speech, it turns out, is useful no matter where you stand on charter schools.

Many supporters use it to argue that charters are, ultimately, a progressive and student-friendly idea—but one abandoned by self-interested latter-day union leaders. Reform proponents like Nina Rees, president and CEO of the National Alliance for Public Charter Schools have defended the charter sector against union attacks by lifting up that Shanker “conceptualized” them. “Union leaders haven’t always been adamantly anti-charter,” Rees wrote last year in The Wall Street Journal. “[AFT President Randi] Weingarten’s former boss and mentor Al Shanker is actually credited with proposing charter schools.” “Here’s a fact,” wrote Laura Waters, a vocal charter advocate. “If Albert Shanker were alive today, he’d still be an education reformer and would support NJ’s efforts to expand school choice for poor urban students.” When a ballot measure to expand charter schools in Massachusetts struggled to find votes on the left, David Osborne, a centrist Democrat, penned a column to gin up progressive support. “Al Shanker gave a speech and wrote a column advocating charters,” Osborne said. “Needless to say, Shanker was no Republican.”

For their part, teacher unions and reform skeptics invoke the same origin story as evidence that they do support school choice and innovation, just teacher-led, unionized, mom-and-pop forms of it. They tell it as a story of an idea stolen and betrayed, drawing a contrast between good charters—those described by Shanker—and what the schools have become today. Supposedly, the creator of charters watched with horror as his idea was “hijacked” by conservatives, profiteers, and privatizers. As described in his biography, Tough Liberal, written by the Century Foundation’s senior fellow Richard Kahlenberg, Shanker “became quite exercised” by state laws written to allow for-profit corporations to enter the charter school sector. Shanker grew worried that charters might actually promote segregation, undermine public education, and be used as tools to destroy unions. By the mid-1990s, Kahlenberg writes, “Albert Shanker largely repudiated a major reform he had helped launch.”

AFT president Randi Weingarten likes to remind audiences that Shanker was one of the first proponents of charter schooling, but that unfortunately some “have shifted the intent of charters from incubating ideas and sharing successes to competing for market share and taxpayer dollars.” Unions are quick to point out that, in Shanker’s mind, charters would employ unionized teachers, would have union representatives on charter authorizing boards, and all charter proposals would include plans for “faculty decision-making.”

There’s only one problem with the idea that charters started with Shanker and his speech: It’s almost completely wrong.

Shanker didn’t invent the concept of charters. He wasn’t part of the long-running campaign to popularize them. His significant contribution was the term “charter school”—except he used it to describe a very different, loosely related idea.

Oh, and he didn’t invent that term, either.

The truth is that the modern fight over education reform has changed less than the people fighting would have us believe. Who invented charter schools? The same groups, it turns out, that are charters’ strongest backers today: business-oriented moderates and technocrats, focused on deregulation, disruption, and the hope of injecting free market dogmas into the public sector. Charters do have a founding father—but he’s a quintessentially neoliberal “policy entrepreneur” who has mostly kept his name out of the history books. The major principles undergirding charter schooling—choice, deregulation, and so-called accountability—had already attracted significant attention long before 1988, and proposals to break up the “monopoly” of school districts had been building for more than a decade. If Shanker helped usher some of these ideas into the limelight, the truth is that those ideas’ backers had many other roads into the inner circles of government—even if some of those roads had not yet been taken.

Progressives have always occupied an uneasy role in the charter movement—one that’s unlikely to get any easier so long as Donald Trump’s Administration remains the nation’s most powerful promoter of school choice. The untold history of charter schools shows why this is: Progressive reformers are stuck fighting against the tide in a campaign that has, from the start, looked at public institutions, labor, and government with a wary eye.

The real origin story of charters isn’t about unions gone astray or progressivism betrayed by reformers. It’s the story of the Third Way in public schools. And it begins, of all places, in Minnesota.

In the 1970s, deregulation was the name of the game. Efforts to deregulate major sectors of government took root under Ford and Carter, and continued to escalate throughout the 1980s under Reagan. From banking and energy to airlines and transportation, liberals and conservatives both worked to promote deregulatory initiatives spanning vast sectors of public policy.

Schools were not immune. Since at least the late 1970s, political leaders in Minnesota had been discussing ways to reduce direct public control of schools. A private school voucher bill died in the Minnesota legislature in 1977, and Minnesota’s Republican governor Al Quie, elected in 1979, was a vocal advocate for school choice.

Two prominent organizations were critical in advancing school deregulation in the state. One was the Minnesota Business Partnership, comprised of CEOs from the state’s largest private corporations; another was the Citizens League, a powerful, centrist Twin Cities policy group. When the League spoke, the legislature listened—and often enacted its proposals into law. In 1982 the Citizens League issued a report endorsing private school vouchers on the grounds that consumer choice could foster competition and improvement without increasing state spending, and backed a voucher bill in the legislature in 1983. The Business Partnership published its own report in 1984 calling for “profound structural change” in schooling, with recommendations for increased choice, deregulation, statewide testing, and accountability. The organized CEOs would play a major role throughout the 1980s lobbying for K-12 reform, as part of a broader agenda to limit taxes and state spending.

Efforts to tinker with public schooling took on greater urgency in 1983, when Ronald Reagan’s National Commission on Excellence in Education released its report, A Nation At Risk. This influential (though empirically flawed) document panicked political leaders across the country. Among other things, the report concluded that American public schools were failing—“eroded by a rising tide of mediocrity”—with ill-prepared teachers and low-quality standards. Its authors tied the country’s economy and national security to the supposedly poor performance of U.S. public schools, and Reagan capitalized on the alarm. His narrative fit snugly within the larger Cold War panic, and as in Minnesota, national business leaders were happy to promote this new movement.

School choice was not specifically mentioned in A Nation at Risk, though Governor Quie, who was then serving as a member on the National Commission, tried to get such recommendations included. But reformers didn’t have to wait long for a national endorsement. In 1986, the National Governors Association, chaired by Tennessee’s Republican governor Lamar Alexander, backed school choice in its Time for Results report.

Back in Minnesota, Rudy Perpich, a member of the Democratic–Farmer–Labor Party, was elected as governor for his second non-consecutive term in 1983. (He had first served from 1976-1979.) During the four years that Quie governed Minnesota, Perpich worked on a global business committee for a supercomputer firm, and returned to government deeply shaped by his corporate experience.

Ember Reichgott Junge, the state senator who would author Minnesota’s—and the nation’s—first charter school bill, described Perpich’s role bluntly: “According to the history books, Minnesota DFL governor Rudy Perpich had nothing to do with passage of chartering legislation. In reality, he had everything to do with it.”

Junge traces this history in Zero Chance of Passage, her first-person account of legislating charter schools, published in 2012. Junge says Perpich was greatly troubled by A Nation at Risk, and thought increasing competition among schools would be a constructive response. As such, in 1985, with Republicans in control of the legislature, Perpich recommended two school choice proposals: postsecondary enrollment options (PSEO), to allow high school juniors and seniors to attend nonsectarian public and private colleges, and open enrollment, to allow parents to send their children to schools anywhere in the state. PSEO passed in 1985, and open enrollment in 1987.

1987 was also the year that the Citizens League waded back into the subject, publishing a report calling for “cooperatively-managed schools”—where teachers could participate in the operational decisions of their workplace. The thinking was this could help drive more distinctive schools—because school choice would mean little without varied options to choose from. The Citizens League’s description of cooperatively managed schools is strikingly similar to modern-day charters. Teachers would be “held accountable” for student achievement, and the schools would “have flexibility to function differently from the schools we know today, from different uses of personnel and technology to different work hours.”

In the midst of this policy ferment came the famous—or infamous—1988 Al Shanker National Press Club speech. The AFT was in a precarious spot. Public support for organized labor was wavering. Ronald Reagan was still in office, and had earned a reputation as one of the most anti-union presidents in American history, in part by firing more than 11,000 striking air traffic controllers.

Shanker thought part of the path toward saving public education was coopting the forces attacking it. He controversially endorsed aspects of A Nation at Risk, embracing its ideas about higher standards, teacher accountability, and “restructuring.” He wanted a seat at the reform table, and leaned into the idea of “professionalizing” teachers to bring his members along. Shanker felt educators needed to not be seen as obstructionist, and the years following A Nation at Risk marked a massive shift away from the blue-collar unionism that had previously defined the AFT. In 2011, Louise Sundin, who was president of the Minneapolis Federation of Teachers in 1984, said that Shanker’s agenda following A Nation at Risk “was a pretty screeching U-Turn” for the union, “and still is [today] a difficult one for a lot of our members and a lot of our leaders.”

When Shanker gave his charter speech, he fused his ideas about restructuring and teacher professionalization with the growing popularity of school choice. He got the idea (and the name “charter”) from a little-known educator in Massachusetts, Ray Budde, who proposed the idea of school boards issuing charters directly to teachers to create new departments or programs. Budde presented his ideas at an academic conference in 1974, but they received little notice. Budde decided to try republishing his ideas in book-form in the years following A Nation at Risk, and sent it around widely in early 1988. It landed, among other places, on Shanker’s desk.

As Kahlenberg notes in Tough Liberal, a focus on restructuring appealed to Shanker politically. Pressure had been mounting throughout the 1980s to lengthen the school day and school year, to vie with America’s competitors in other industrialized nations. But this idea was deeply unpopular with union members. “The re-structuring focus allowed Shanker to argue that a longer school day or school year was not worth the extra expense,” Kahlenberg writes. Charters offered Shanker a useful alternative.

Shanker wasn’t even the first noteworthy public figure to call for reorganizing public schools. In the late 1960s sociologist Kenneth Clark, whose work helped form the basis of the Brown v. Board of Education decision, advocated for alternative public school systems run by institutions ranging from universities to the Department of Defense.

And once Shanker put his ideas forward, many ascribed to him far more power to shape the charter movement than he ever had, or even tried to have. Shanker’s endorsement was certainly politically valuable to reformers, but most had long had their own agendas. Ultimately he was just one of many people clamoring to define what direction school reform should take.

In fact, if charter schools can be attributed to any single person, it’s certainly not Shanker, Budde, or even Clark. It’s Ted Kolderie, a Minnesota “policy entrepreneur” and one-time Citizen’s League director who spent much of the 1970s, ’80s, and ’90s in the middle of discussions over school reform. His influence can be traced to almost every corner of the charter movement’s development, and unlike Shanker and the others, he remained dedicated to building and promoting the idea through decades of effort. Throughout the 1970s—through an initiative known as Public Service Options (PSO)—Kolderie’s group researched and advocated for different ways to provide government services, including education. As early as 1972 Citizens League published a report calling for “new arrangements”—namely with more choice and contracting. By 1981, Kolderie and a leader of the Minnesota Business Partnership launched Public School Incentives, a PSO successor focused exclusively on education.

One of Kolderie’s central ideas was to “end the exclusive franchise” of school districts providing public education. In several reports, he described the decline of public education as the direct consequence of public districts’ monopolistic power over schooling. His proposal: independent schools, accountable to parents through free market choice, and to the government through a set of contractual obligations. He specified that many different types of entities—universities, corporations, public school districts, nonprofits—should be able to manage these new schools, state law permitting.

This was a remarkably complete vision of the modern charter school, quirks and all.

So why do most people credit Albert Shanker with creating charters, and not Kolderie, who had been developing the concept for nearly two decades longer? One reason is because Kolderie liked it that way.

“To know Kolderie is to know someone of extraordinary vision, who often thinks light-years ahead, but still gently prods others along to where he wants them to go,” wrote Junge in Zero Chance of Passage. “Kolderie was a master at creating, refining, and redirecting ideas. He never would publicly ‘own’ any ideas, and ways to improve those ideas always presented themselves. He nurtured ideas and connected the dots for others.”

Kolderie seems to have understood that Shanker’s very different vision was a useful vehicle for his own ideas. In October 1988, the Minneapolis Foundation hosted its 14th annual Itasca Seminar, a summit for Twin Cities political and business leaders, and the year’s theme was public education. Shanker was invited to speak, and he took the opportunity to expound on charter schooling. His speech complemented the mix of school choice and independent school proposals that had been bouncing around Minnesota for quite some time.

Shanker wasn’t the only person to give a choice-oriented speech at that summit. Other speakers included Joe Nathan, a Twin Cities education reformer who personally worked with Lamar Alexander in the early 1980s to shape the school choice recommendations in the National Governors Association (NGA)’s Time For Results report. At the Itasca Seminar, Nathan would emphasize the need for greater school deregulation in exchange for “results.”

Two months later the Citizens League would issue yet another report, concluding with a strong and specific recommendation that the state legislature allow for the creation of “chartered” schools.

With Junge’s help, Minnesota would pass the nation’s first charter law three years later. Kolderie and Junge like to credit Shanker for helping to shape their ideas, but the final legislation appeared to be in response to the Citizen’s Leagues recommendations—and more than anything else, reflected Kolderie’s own vision of independent, contractually authorized schools.

In the end, Shanker’s comments on the law he was supposedly instrumental in creating were limited. Though Minnesota’s teachers unions fought the law’s passage, Shanker chose not to speak out during the legislative debates.

“I wish the architects of the bill had worked out the collective bargaining issues with the teachers unions,” Shanker told Kolderie, two months after it passed.

Although conservatives led the way in for pushing education reform in the 1980s, centrist liberals jumped on board in the early 1990s. In 1989 when the Democratic Leadership Council (DLC) named Bill Clinton as its chairman, it also founded its own think tank—the Progressive Policy Institute. Kolderie met PPI’s president in 1990, and was invited to write one of its first policy papers about school choice. Kolderie was happy to bring his ideas about “withdrawing the exclusive [monopoly]” of school districts to the Third Way. Bill Clinton embraced Kolderie’s proposals as he traveled around the country making speeches that year, even though he knew it was vexing teachers unions. (“It is almost impossible for us to get President Clinton to stop endorsing [charters] in all his speeches,” Shanker would later complain.)

1990 was also when Wisconsin’s Republican governor Tommy Thompson signed the nation’s first private school voucher program, and when John Chubb and Terry Moe published Politics, Markets, and America’s Schools, an influential Brookings Institution book that called for school deregulation, market competition, and parental choice.

The “New Democrats” saw charters as a way to seem proactive on education policy, offer an alternative to private school vouchers, and avoid catering to the “More Money Dem” crowd, as DLC’s co-founder, Will Marshall, put it. For liberals who sought to weaken their party’s relationships with “special interest groups” like teachers unions, charters were a boon.

At the DLC’s national convention in May of 1991, Bill Clinton and DLC delegates would endorse an education agenda that included, among other things, school choice, accountability, and Kolderie’s idea, which the DLC explained as “giving entities other than school districts” the chance to operate public schools. Even in this early stage, the agenda followed Kolderie’s market-oriented vision, not Shanker’s union-oriented one.

Democrats’ endorsement of charters did little to dampen conservative enthusiasm for the idea. Indeed, Kolderie continued to serve as a trusted education advisor for David Durenberger, Minnesota’s Republican senator, who became an early federal champion for charter schooling.

At its outset, the real power in the charter coalition was what might be termed the “technocratic centrists”: business leaders, moderate Republicans, and DLC members looking for Third Way solutions that couldn’t be labeled big-government liberalism. While charters have drawn praise from other quarters—for instance, some educators and progressive activists see them as tools for racial and economic justice—these groups have never formed the heart of charters’ power base.

It hasn’t always been easy to hold the bipartisan charter coalition together, and fairly stark philosophical divisions have been bubbling to the surface over the past few years concerning what the movement’s priorities should be going forward. The election of Donald Trump, and his appointment of GOP billionaire donor Betsy DeVos as Education Secretary, has plunged the charter movement into an even deeper crisis of identity.

Progressive and centrist charter leaders have so far been trying to walk the line between pushing back on the President’s far-right politics and remaining reserved, lest useful opportunities for bipartisan cooperation arise. But grassroots pressure for more aggressive opposition has been mounting.

Other parts of the coalition are moving in the opposite direction. The stocks on for-profit charters have spiked significantly since the election, with industry leaders anticipating a friendly new political landscape for what some in the reform coalition see as low-quality schools. In New York City, Success Academy CEO Eva Moskowitz has emerged, to the chagrin of many liberals, as one of Trump’s most prominent charter defenders. (Some of Success Academy’s largest benefactors include major Trump donors such as John Paulson and Robert Mercer.)

Today, 43 states and the District of Columbia have charters, educating nearly three million students. Whether charter supporters can maintain the movement’s bipartisan backing while receiving support from a deeply unpopular President who promises to be “the nation’s biggest cheerleader for school choice” remains an open, and dicey, question.

The mythological origin story of charter schools—the Shanker myth—has served an important role in keeping the charter coalition together. The idea that charters come from unions lends a certain weight-of-history inevitability to school reform. It suggests that everyone has agreed that change must come, and the only question is from who, and what it’ll look like in the end.

Besides, on some level, the dramatically compelling nature of the story—unions creating their own greatest antagonist—keeps people from digging deeper. As a writer, it’s easy to want to believe it. This author would know, having once subscribed to it herself.

But the Shanker tale may have also helped undermine progressive school choice advocates, who find themselves chasing a vision that has never played a major role in the inner circles of school reform. Most charters are more segregatedthan traditional public schools, are non-union, and when charter educators do mount union campaigns, they almost always face tremendous opposition. If the promise of unionized, integrated, teacher-centered charters has proven devilishly difficult to fulfill, it may be, in part, because the movement’s leaders never took it very seriously to begin with.

The Shanker myth also leaves those who support traditional public schooling, in its original form, stranded in a political no man’s land. And right now, those people are in the fight of their lives, looking for firmer footing. More broadly, the Democratic Party has grown wary of the Third Way policies of the 1990s, suspecting they provide little defense against a resurgent right. As the charter coalition enters a new, treacherous era, the consensus history of charter schools may at last meet some resistance.

How D.C. Became the Darling of Education Reform

Originally published in The American Prospect on April 19, 2017.
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When it comes to education reform, perhaps no city has inspired more controversy and acclaim over the last decade than Washington, D.C. Even today, uttering the name “Michelle Rhee”—the city’s first schools chancellor appointed in 2007 after a major shakeup in the district—still evokes heated reactions from local residents. Following the dissolution of the local school board and the centralization of education decision-making within the mayor’s office, then-Mayor Adrian Fenty commanded an unusual amount of power to change D.C.’s schools.

Over the past ten years, the policies undergirding the national education reform movement—offering more school choice, weakening teacher union power, and creating new accountability systems (with incentives like pay-for-performance and teacher evaluations based partly on student test scores)—have taken hold in the nation’s capital. Some see these moves as encouraging proof that education reform is working. Proponents point to positive benchmarks: District enrollment is growing; D.C. scores on the National Assessment of Educational Progress (NAEP) have improved (in some cases at a much faster rate than students in other large urban districts); and teachers who left the district after receiving low marks on D.C.’s new teacher evaluation system were replaced with higher-scoring teachers who boosted student achievement.

Research suggests that D.C. charter schools have made strides in student learning compared with the city’s traditional public schools, and the city’s overall test gains cannot be explained by demographic changes alone. In 2016, Jonathan Chait, a liberal writer for New York magazine (whose wife helped craft some of D.C.’s new policies and now works for a local charter school), declared, “The dramatic improvements registered in places like Washington show the revolutionary possibilities of education reform.”

For others, these gains have been overstated. Critics point to large racial and socioeconomic achievement gaps, misleading claims made by the school district’s public relations department, uncritical press coverage, a precipitous decline in black educators, and funding that has been inequitably distributed to some of the city’s most impoverished schools.

“I know that too many of the successes boasted of by schools and by educators like me are little more than polite interpretations of the same data scores,” a D.C. charter teacher wrote recently. “Too much of what I see in my school today is exactly what I saw ten years ago.” After a decade working in D.C. schools, she is calling it quits.

Subsequent D.C. mayors (Vincent Gray, elected in 2011, and Muriel Bowser, elected in 2014) and schools chancellors (Kaya Henderson, appointed in late 2010, and Antwan Wilson, in late 2016) have largely continued to promote the school reforms launched by Fenty and Rhee. Though it’s been more than two months since Wilson took over as D.C.’s new schools chancellor, it is unclear how he will steer the District of Columbia Public Schools (DCPS) between these competing narratives of success and hype. A better understanding of D.C. school reform, which was long heralded by the Obama administration as a national model, matters even more now that Donald Trump’s administration aims to expand school choice policies across the country—likely beginning with the nation’s capital.

 

THOUGH PEOPLE REMAIN starkly divided over education reform in D.C., the one thing both critics and supporters agree on is that the old way of evaluating teachers had to change. Removing bad teachers from the classroom had been too difficult. Mary Levy, a longtime independent budget analyst for the D.C. schools and a former DCPS parent, says it was well-known that some teachers shouldn’t have been there, but they were hard to fire.

“There was peak enrollment in the late 1960s, and after that [the district] just abandoned their gatekeeping test and started hiring anyone who was breathing so long as they had a degree,” Levy says. “My older daughter had one of those teachers, and she was unbelievably bad. So the district had an older workforce to whom no standards had been applied, and when enrollment started going down, and there were big layoffs in the 1980s, every elementary teacher with less than ten years in the system lost their jobs, and the older ones got to stay.”

“The union contract in D.C. was awful,” says Mark Simon, an Economic Policy Institute research associate and a former president of the Montgomery County (Maryland) teachers union. “It was an example of the kind of contract that existed in some school districts where the limitations placed on teachers’ time and the specificity of what administrators had to do [for] an evaluation [to] hold weight was so rigid that more often than not, teachers could not be evaluated out of the school system.” Simon added, “If a principal did not get the right documents filled out the right way on just the right line, then the whole thing was thrown out by an arbitrator.”

An American Prospect review of a 2006 D.C. teacher evaluation handbook corroborates these observations. One byzantine rule stipulated that to terminate an ineffective teacher by the end of the school year, the administrator had to make a decision no later than the first week of January. If the process began with less than 90 days remaining in the school year, “the educator must be granted permission to return to the same site the next school year” as the process continued.

Simon opposes D.C.’s new system, IMPACT, which ranks teachers as highly effective, effective, developing, minimally effective, or ineffective, arguing that it de-professionalizes teachers. He contrasts IMPACT with the system he helped pioneer in the 1990s as union president for Montgomery County, D.C.’s suburban neighbor. Simon wrote in 2012, “The focus of teacher evaluation in Montgomery County is professional growth—the nurturing of good teaching, not the sorting and ranking of the teacher workforce.” He added: “Although an evaluation system must be able to weed out people who never should have entered teaching, that objective only applies to a tiny percentage of the workforce and must not be the system’s main purpose. Good teachers are not found through some magical recruitment pipeline. They are made, over time.”

Simon says that in 2008 he approached Jason Kamras, the D.C. school official charged with developing a new teacher evaluation system, and suggested that the district craft a system similar to Montgomery County’s. “[Kamras] ran it up the food chain, said other people had suggested the same thing, but that the response was that it takes too long, costs too much, we’re not interested, we want to use a rubric to hire and fire,” says Simon.

There had been some innovative teacher evaluation models at the time—Toledo, Ohio, was experimenting with peer review and others were exploring so-called professional learning communities. Even though Simon was critical of IMPACT, he agreed that policymakers had not been focusing much on improving teacher quality through feedback and evaluation.

“I think the reformers are right that people hadn’t been paying enough attention to teacher evaluation, and in a lot of places the systems were pretty pro-forma,” says Jesse Rothstein, a University of California, Berkeley public policy and economics professor. “But there were places that were doing it better, and that typically involved things like mentor[ing] teachers and careful classroom observations.”

One reason D.C.’s education reforms attracted significant attention across the country was their timing: DCPS started using IMPACT to evaluate teachers during the 2009–2010 school year, just as the education reform organization The New Teacher Project (TNTP) released a report recommending that districts develop evaluation systems that rate teachers “based on their effectiveness in promoting student achievement.”

IMPACT and TNTP’s report heavily influenced the Obama administration’s $4 billion Race to the Top program, which rewarded states that created new evaluation systems based on student test scores. (The administration also used No Child Left Behind waivers to incentivize similar policies.) According to the National Council on Teacher Quality, 35 states and Washington D.C. revamped their teacher evaluation processes to include student achievement as a “significant or the most significant factor” from 2009 to 2013.

By January 2010, 40 states had applied for the first round of competitive Race to the Top grants. The first two winners, Tennessee and Delaware, were awarded grants of $500 million and $100 million, respectively. Tennessee’s proposal notably included a teacher evaluation system that looked just like D.C.’s.

Since Tennessee won the first and biggest prize for a proposal modeled on IMPACT, D.C.’s program garnered even more notice. There was little research on its actual effectiveness, but many states nevertheless looked to D.C. as a leader to emulate. “All of these states were in the middle of a financial crisis, where their revenue declined dramatically, and to get this grant money they had to pretty quickly come up with new plans,” says Matt Di Carlo, a senior research fellow at the Albert Shanker Institute. “I certainly think there is a tendency, an understandable tendency, to look around and see what other people are doing who were successful winning funds.”

 

FOR YEARS, THE D.C. public schools have been known as factious battlegrounds for education reformers of all stripes; new plans and policies would be implemented every few years, only to have new leaders and competing agendas ushered in shortly afterward. The day before Rhee was appointed, The Washington Post traced this trajectory, noting: “The history of D.C. school reform is filled with fix-it plans hailed as silver bullets and would-be saviors who are celebrated before being banished. … Isolated gains achieved under one reform theory were tossed aside, lost or forgotten in the next. Some reforms that did have an impact went awry, accelerating inequality, distrust and decline.”

In 1989, a coalition of more than 60 business and community leaders published a report calling for sweeping changes to D.C. education, including closing and rehabilitating schools, lengthening the school day, and drafting new curriculum standards. “There have been countless studies, task forces, and five-year plans for the District’s schools, but few come close to the size and scope of this effort,” the Post reported at the time. The coalition spent six months and $500,000 on the effort, yet like those that came before it, their recommendations bore little fruit.

By 1996, the D.C. Financial Responsibility and Management Assistance Authority issued another report declaring the city’s public schools to be in crisis, and called for urgent changes. By 2004, the Council of the Great City Schools, a national nonprofit, published its own report, noting that D.C. remained one of the lowest-performing urban school districts in the nation. They recommended a series of reforms that had been floated over the past five decades—new accountability systems for student achievement, more standardized curricula and instruction, and incentives to attract high-quality teachers to work in the most challenging schools.

Unlike other places, elected D.C. officials must compete with federal leaders for authority over the city’s public schools. Congress can overturn laws passed by the D.C. City Council, and the District’s two members of Congress cannot vote on legislation. The introduction of an elected school board in 1968 and the passage of the Home Rule Act in 1973 were attempts to increase local political representation, but the school board and council lacked independent taxing authority. It was no small sacrifice for residents when city leaders voted to dissolve the school board in 2007—dismantling one of the city’s only elected bodies. But local officials felt drastic action was needed given DCPS’s poor outcomes.

Rhee’s tenure as chancellor was controversial, both locally and across the country. In addition to pushing forward a new teacher evaluation system, she fired hundreds of teachers, replaced principals, and closed schools. Her brash style of leadership frustrated even those who backed her policy ideas. Following Rhee’s resignation in 2010 after Adrian Fenty lost the Democratic mayoral primary, the new schools chancellor, Kaya Henderson, continued to promote her predecessor’s policies—albeit in a less polarizing way.

MEANWHILE, D.C.’S REFORMS continued to attract glowing praise. In 2013, The Washington Post editorial board concluded that there was “unassailable” evidence that the city’s reforms, based on “high standards, rigorous evaluation of teachers, an investment in pre-kindergarten and school choice” worked. In 2014, Education Secretary Arne Duncan said D.C. was “by every measure the fastest-improving big city school district in the nation.” New America called D.C.’s teacher evaluation “as rigorous and comprehensive as teacher evaluation systems get.”

All the talk of success and failure led Steven Glazerman, a Mathematica Policy Research fellow, to coin a new phrase—“misNAEPery”—which describes how leaders and pundits wrongly attribute the rise and fall in National Assessment of Educational Progress scores to the success or failure of specific education policies. “D.C. [NAEP] scores [rose] faster than other cities—that part is basically true, but if you want to say it’s because of school reform, that’s a harder case to make,” says Glazerman. Alan Ginsburg, a retired 40-year veteran of the U.S. Department of Education, published a report in 2011 that found that D.C. NAEP scores were already steadily improving before Michelle Rhee took over in 2007, and that “the rates of D.C. score gains under Rhee were no better than the rates achieved under [the prior two superintendents].”

Another thorny issue is demographics: Some critics charge that any documented learning gains can be attributed to the increase in white, affluent students who now enroll in DCPS. Yet when controlling for demographics, about two-thirds of the city’s ten-year gains in math persist for fourth-grade and eighth-grade students. However, controlling for demographics does make the ten-year reading gains for eighth graders almost entirely disappear. In late February, Levy, the independent D.C. budget analyst, went before the city council to testify about the district’s low academic performance. She noted that the lowest achieving groups are black males, at-risk students, and special education students. Achievement gaps between white and black or Hispanic students have narrowed somewhat since 2003, but white proficiency rates still run about 65 percentage points above black proficiency rates, and 53 to 61 percentage points above Hispanic rates. Socioeconomic gaps have widened.

“We have an ever-worsening achievement gap in this city, that has been spun into the D.C. miracle,” says Elizabeth Davis, president of the Washington Teachers Union. “Were a teacher to perform in this manner for their students, they’d have long since lost their jobs.”

Critics have raised other concerns about the way D.C school reform has been cast as an example of “clear progress.” School funding advocates have criticized DCPS for inequitably distributing financial resources to the neediest schools, and last September, the Washington City Paper published a cover story on Kaya Henderson’s failure to deliver on her five-year strategic plan. A new report from the UCLA Civil Rights Project explores the city’s heavily segregated schools.

But if there’s one reform that supporters of D.C.’s school policies point to as evidence of success, it’s IMPACT. In 2013, two education economists published a working paper suggesting that D.C.’s teacher evaluation system induced teachers with low evaluation scores to voluntarily leave DCPS, and improved the performance of teachers who stayed. In 2016, the researchers published another working paper that found DCPS teacher turnover between 2011 and 2013 led to a net positive effect on student test scores—suggesting that turnover is not necessarily bad if low-performing teachers can be replaced with higher-quality ones.

These were encouraging results, but DCPS officials went on to exaggerate the findings. School administrators falsely said the research showed teachers and students improved because of IMPACT, and that IMPACT caused low-performing teachers to leave. The researchers had repeatedly emphasized that their work was not an evaluation of IMPACT, per se.

“DCPS has one of the best publicity operations I have ever seen,” says Levy. “I think, unfortunately, they go beyond spin, and into some areas of half-truths.”

DCPS was not alone in spinning the IMPACT studies. Supporters of VAM, a controversial statistical tool that uses student test scores to come up with estimates of teacher effectiveness, tried to frame the positive IMPACT studies as proof of VAM’s merit. “People looked at the study and concluded it must be the VAM-based firing that did it, and that’s not supported by the evidence,” says Jesse Rothstein, who has raised concerns about using VAM in teacher evaluations.

The real issue with attributing the researchers’ results to IMPACT is that there’s no proof that other new teacher evaluation systems wouldn’t have also worked. Dee and Wyckoff also caution that despite the positive results of their research, IMPACT might not work as a national model, given that D.C. is a particularly attractive location to live in (thus it has an unusually robust labor pool). The high salaries and bonuses DCPS teachers earn would likewise be difficult for many struggling school districts to adopt.

In an interview with The American Prospect, Dee adds that the leadership in D.C. was very strong and thoughtful, and that a system like IMPACT might not thrive under different political conditions. “When I present the IMPACT work, I say, yes, it does seem extremely promising but I worry it won’t be a proof point,” says Dee. “You had certain planets in alignment politically, and capable, entrepreneurial leadership.”

Indeed, one factor that worked in DCPS’s favor was that the 4,000-member Washington Teachers Union was significantly weakened, and unable to successfully fight against using test scores to evaluate teachers. The WTU has been under siege since the Rhee years, and teachers have been working under a contract that expired in 2012.

According to Davis, the union president, DCPS educators still strongly oppose the new evaluation system. “IMPACT does little to seed improvement in practice,” Davis says. “Our professionals don’t believe teaching every year should be a scene out of The Hunger Games, fighting for survival against what could best be considered arbitrary standards.” She adds, “WTU teachers believe that educators should have an evaluation system that focuses on supporting and assisting those who work in the classroom and holds the whole system accountable, not one that obsesses on points, ratings, and consequences solely for teachers.”

David Grosso, a city councilmember and the chairman of the education committee, tells me that while he respects the teachers union, when they “testify or complain or say things are awful, it’s hard to believe” based on his personal conversations with educators. “Nine out of ten teachers I speak to are pretty happy and feel like they’re making a difference,” he says. “The fact of the matter is, if you’re a teacher in the District of Columbia, you have the support that you need and when you are successful, you will get paid a lot of money and be treated with a lot of respect, and that’s just a reality.”

For what it’s worth, schools located in the poorest areas of the city have the smallest percentage of teachers rated “highly effective” under IMPACT. Teacher turnover districtwide also remains very high. Levy, the budget analyst, finds almost half of all newly hired teachers, whether experienced or new to the profession, leave the classroom within two years; and 75 percent leave within five years. There is similar turnover among principals: Levy finds most schools have had two or three principals in the last five years.

ONE REASON IT’S become so easy for advocates to spin the city’s school reforms is that despite DCPS’s claims of being “data-driven,” comprehensive, accessible data actually remains hard to come by. As a result, it is hard for researchers to get a sense of how specific policies are working, and for the public to hold school leaders accountable.

When D.C. passed its 2007 education reform law, one provision required the mayor to produce annual evaluations on new school reforms, such as academic achievement and personnel policies. The law also allowed the mayor to skip the annual reports and produce a five-year independent evaluation by September 2012. Fenty opted for the latter—but his two proposed evaluators, Frederick Hess of the conservative American Enterprise Institute, and Kenneth Wong of Brown University, had both supported the DC mayoral school-takeover plan. Then-councilmember Vincent Gray objected to Fenty’s picks, arguing that they involved conflicts of interest.

Gray also objected to the mayor’s desire to have the $750,000 evaluation paid for by an entity known as the D.C. Public Education Fund, a private organization launched and run by a former Fenty aide, which solicits private-sector donations to support education reform. Gray believed that the evaluation should be publicly funded. Yet three years later, when Gray himself ran for mayor, his tune on rigorous evaluations changed. “Adrian Fenty refused to carry out the evaluation, and when Gray ran against Fenty, he also lost interest,” says Levy. “Gray’s attitude changed a lot when he became mayor.”

Levy thinks that incentives for oversight worsened after the switch to mayoral control. Before the change, the city council would sketch out the school district’s finances, but the body could not control how those funds were actually spent. This dynamic frustrated councilmembers who were often blamed for the public schools’ struggles, but had few tools to address the problems. This issue led the council to enact tougher oversight measures. “The public would come down and say, ‘You need to give us more money,’ and the city council wanted to justify not coming up with all of it,” Levy explains.

But after the move to mayoral control, DCPS failures were no longer pinned on the city council. “Now the mayor comes up with a budget number for the school system and that’s pretty much it,” says Levy, who thinks the city council is not interested in rocking the boat. “They too have gotten all this good publicity,” Levy says, in regards to the supposed successful turnaround of DCPS.

D.C. finally produced a publicly funded independent evaluation of its school reforms in 2015. The National Research Council, an organization chartered by Congress, conducted the review and found some promising evidence of improvements, but the evaluators identified many persistent disparities, and noted a lack of comprehensive, accessible data. They said they were often unable to obtain important information for their research effort, and recommended the creation of a data warehouse for ongoing, independent studies.

After the NRC issued its report, a group of education advocates and public policy researchers gathered in 2016 to discuss creating an independent think tank to evaluate D.C. education policies. Inspired by the University of Chicago Consortium on School Research, which has access to a broad range of Chicago Public School data, the D.C. group envisioned their think tank serving a similar function as the Congressional Budget Office.

Mathematica’s Glazerman agrees it has been difficult at times to obtain DCPS information to conduct research. “The researchers want to do research, they want access to data, and the people who control the data don’t want to give it up, except under tightly controlled circumstances,” he says. “Researchers need independence and access to data, and they shouldn’t have to worry about whether the agency is going to look good—both in whether they undertake the study, and how they report results from their study.”

He thinks the idea of a publicly funded research organization akin to the CBO is a good one, but that it could be a heavy lift to get off the ground. It would take real leadership, and right now, the mayor and the city council have few incentives to poke holes in the narrative that D.C. school reform has been a tremendous success.

“We met for about six months and put together a proposal,” says Mark Simon, who was involved in the 2016 effort. “Initially we got good, positive encouragement from David Grosso, and he basically promised to put money in the budget, but when we got to the actual budget hearings we were iced out.”

The Prospect asked Grosso why he withdrew his support for the independent research organization. “I hadn’t heard that much about it, but I do support the idea for third-party analysis and review of what we’re doing in DCPS, but I was not convinced that what they were offering at the time was the best approach,” he said. “It seemed like it was a purely academic thing. There was a desire to do something similar to what was done in Chicago and, in the end, I decided I did not want to do that. I thought it would confuse governance in the city more than it would help.”

THIS PAST FEBRUARY, DCPS’s new schools chancellor, Antwan Wilson, took over. Prior to coming to D.C., he spent two years as the superintendent of the Oakland Unified School District in California and worked as a public school administrator in Denver. He also participated in a superintendent training academy funded by the Eli and Edythe Broad Foundation, which finances education reform efforts. “The candidate [Mayor Bowser] has selected appears by résumé and reputation to have the same kind of forward-thinking passion for excellence that has helped make D.C. schools the fastest-improving urban school district in the country,” The Washington Post editorial board said in November.

Wilson declined the Prospect’s request for an interview through DCPS press secretary Michelle Lerner. Lerner is a former communications manager for several reform-driven organizations, including the Fordham Institute and the advocacy group American Federation for Children, formerly chaired by Betsy DeVos, now the U.S. secretary of education.

Looking to the future, Councilmember Grosso says D.C. will need to invest more heavily in wrap-around services for poor students, including basic health care, housing, and resources for coping with trauma. He says that he’s spoken with Antwon Wilson and that the new chancellor “absolutely understands” this.

The bipartisan political forces that shepherded D.C.’s education policies may shift in the coming years, as the election of Trump and the ascendance of the controversial DeVos threaten to fracture some of the Obama-era coalitions. New leadership, both in the district and the mayor’s office, could also portend greater changes for D.C. public education.

Though Glazerman is skeptical that a publicly funded research agency committed to robust, independent evaluations will be created, it is possible that Wilson may be more open to the idea, since his outsider status might shield him from the fallout from any negative findings—at least at the outset. Mary Levy also thinks the independent think tank idea could resurface, citing the new influx of upper-middle-class families who send their children to D.C. public schools.

“They don’t take ‘no’ for an answer,” she says. “These are city parents behaving like persistent suburban parents. So in the future, this idea may grow.”

Why D.C.’s First Charter Union Election Was Called Off

Originally published in The American Prospect on April 3, 2017.
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In February, I reported on the first public union campaign at a charter school in Washington, D.C. Teachers at Paul Public Charter School wanted to form their own local—the District of Columbia Alliance of Charter Teachers and Staff (DC ACTS)—which would be affiliated with the American Federation of Teachers. Seventy-one percent of Paul’s staff signed a petition in support of joining DC ACTS, and asked their administrators on February 22 to voluntarily recognize their union.

When the administration refused to do so, Paul teachers filed for an NLRB election—scheduled for Thursday, March 30. (In a statement, the charter’s management said, “We do not believe that a union is necessary at Paul PCS.”) But the day before the scheduled vote, a surprising thing happened. The AFT, not the charter school teachers, called it off.

David Koenig, a government and history teacher at Paul told WAMU that their teacher organizing committee felt they had enough votes to win, and wanted to go ahead with their election, but “we did not have enough people who were willing to be public with their support to convince AFT that we were definitely going to win.”

While 58 of Paul’s 82 teachers, instructional aides, and counselors signed the initial union petition given to administrators in February, in the days leading up to the NLRB election just 33 people were willing to publicly commit to voting “yes” on March 30. Teachers on the organizing committee said that despite this, they were confident, based on private conversations with their colleagues, that they would still have a majority in support of the union when taken to a secret vote.

Experts who’ve studied NLRB elections have no such confidence, however. “If the teachers went forward, they would lose, absolutely,” says Kate Bronfenbrenner, the director of labor education research at Cornell University’s School of Industrial Labor Relations. “If workers will not publicly say that they will vote for the union, that means they are voting no. That has been proven a hundred times over.”

If the staff’s support for the union has dwindled, that looks to be chiefly the result of management’s opposition. Since the time teachers went public with their union campaign, Paul’s administration engaged in what some teachers described as an aggressive, scorched-earth effort to dissuade teachers from voting to unionize.

The charter school maintains that it never pressured staff on how to vote, and that it “support[s] the right of all employees to participate in such [union] activity.”

But on March 15, Emily Farley, the high school dean of academics; Danielle Singh, the middle school principal; and Rosemarie Ragin, the director of student services, sent Paul staff the following letter:

Make no mistake, this election will have a lasting impact on you, your job, and the entire Paul community.

We are deeply concerned about what this election means to Paul’s staff and our Scholars. We do not believe that this union would be good for you or for our school, and believe the entire community—including teachers and staff—will be better served by continuing a collaborative, cooperative dialogue and problem solving process that does not include a third-party union. One of the advantages that draws both teachers and students to Paul is our ability to work directly and efficiently with our staff on a range of things that matter to all of us. This allows us to meet the needs of our students and families while engaging directly with teachers and staff to create the work environment you need to be successful. We readily agree that this is not always been a perfect process and that it can always be improved, but by voting for AFT in the election, you may be voting away your legal rights to deal directly with Paul and your supervisors on issues that will determine your pay, benefits and working conditions.

We also believe that our future success and security hinges on our ability to provide a high quality education to our Paul Scholars. This is why their families entrusted them to us. We do not believe that the involvement of AFT will help any of us educate our students.

This issue is about our commitment to each other. You will be asked to decide whether you want to continue to have a cooperative working relationship with the Paul administration, or whether you want an outside third party, AFT, to speak for you. Remember, AFT can only promise to do things; we have proven that the Paul community can deliver when we work together. Our proud history demonstrates that we do not need outsiders trying to get us to work against each other.

Over the next few weeks, we will try to provide you with the facts about AFT and the potential impact of unionization at our school. We believe that once you get all the facts you will see that unionization is not right for Paul staff or students, and you will vote “NO.”

And in an email sent to staff on March 20, Paul administrators told staff to “PROTECT YOUR PAYCHECK. VOTE NO ON MARCH 30TH.”

xx

Moreover, on March 27, three days before the vote, Tammy Wythe, the school’s director of talent, sent a letter to Paul staff saying the school would hold off on issuing employment contract information for the 2017–2018 school year until after the NLRB vote. The school had previously told staff that they would receive this information by the end of March—acknowledging that “this information allows all of us—teachers, staff, and school leaders to plan for the next year.” The AFT filed an Unfair Labor Practice (ULP) complaint in response, saying administrators crossed a line by withholding information about whether teachers would continue to have their jobs until after the vote. (Following the election’s cancellation, the union withdrew its ULP.)

Despite all of this, the teachers still wanted to move forward with their vote. An AFT spokesperson told POLITICO that Paul’s administrators “created a toxic environment so full of fear, harassment and intimidation that we felt a fair election would be impossible at this time.”

From the union’s perspective, the fact that more teachers no longer wanted to publicly declare that they would vote for a union meant that management’s aggressive tactics were working, and that they had lost a significant amount of support.

By cancelling the NLRB election, teachers are able to schedule a new one in six months. If they had held the election and lost, then staff would have to wait one year before filing again. More importantly, from the union’s perspective, if the teachers lose their union election, then management might take that as a mandate to do whatever they want over the next school year. But by canceling it, management will have to remember that a failure—union advocates would say, a continued failure—to satisfy teachers’ conditions could mean that the staff could file again quickly for a vote. In other words, the union says it can help keep the boss on their best behavior.

Bronfenbrenner says that based on her 25 years of labor research, the AFT was right to conclude that the vote would fail given the drop in public commitments to vote in favor. “The initial petition is not a measure of ‘yes’ votes—it’s a benchmark as to whether you should go forward to the next step,” she says. “And if you vote and lose, it’s much harder to win than if you withdraw and try again. If you vote and lose, then the employer can go after the pro-union teachers and reward the anti-union ones. If they withdraw, then the campaign can continue.”

Despite not getting to vote for a union, it appears the staff’s organizing effort already helped increase teacher voice somewhat within Paul Public Charter. Since the teachers went public with their campaign, Paul’s administration added teachers to both the charter’s CEO hiring committee and the high school’s principal hiring committee.

The optics of canceling a vote that teachers wanted to hold doesn’t look great for the AFT, given that union officials regularly make a point to say that workers should have the freedom to decide for themselves if they want to be represented by a union. Bronfenbrenner stresses, however, that a unionization campaign isn’t about voting, per se. “It’s about winning. And if they vote, they will lose—they will get slaughtered,” she says. “It’s not democracy to let them vote. What would be democratic is to let them build their union.”

One Paul teacher, who didn’t want to be specifically mentioned in this article, said the campaign’s stalwarts are likely to continue organizing with their colleagues, but that it’s unclear what shape those efforts will take, or if they’d consider working with the AFT in the future.

D.C. Charter Teachers Seek to Unionize

Originally published in The American Prospect on February 22, 2017.
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This morning, teachers at Paul Public Charter School, one of the oldest charters in Washington, D.C., publicly announced their intent to unionize—a first for charter schoolteachers in the nation’s capital. As in other cities where charter teachers have formed unions, the Paul educators are forming their own local—the District of Columbia Alliance of Charter Teachers and Staff (DC ACTS)—which will be affiliated with the American Federation of Teachers. 75 percent of Paul’s teaching staff signed a petition in support of joining DC ACTS, and asked administrators to voluntarily recognize their union.

The Center for Education Reform estimates that 10 percent of charter schools are unionized nationally, up from seven percent in 2012. As more and more charter teachers have launched organizing efforts, the absence of charter unions in Washington, D.C., has been notable—particularly given the city’s high density of charter schools. There are 118 charters—run by 65 nonprofits—within D.C., educating 44 percent of the city’s public school students.

Patricia Sanabria, a high school English and special education teacher at Paul, is excited about unionizing with her colleagues. Born and raised in Washington, D.C., Sanabria is a product of D.C. public schools, and spent two years teaching at Ballou High School, a traditional public school in one of the poorest parts of the city, before coming to her charter.

When she first started working at Paul—which educates about 700 students from grades 6-12—Sanabria felt very supported by the staff, which was much smaller than Ballou’s. “It felt more like a family, I felt a lot more at home,” she says. But over the past three years, that feeling has waned, and this year has been especially frustrating.

“When I first got here, the teacher in the classroom next to mine told me that charter schools are ‘teacher factories’, and it’s very true,” Sanabria says. “They keep giving us things to do, and they don’t take into account how much time that adds to our work day. I would say I’m pretty routinely here for 10 hours or more a day, and that’s just not something you see in other professions, and certainly if you do see it, people are compensated for it.”

Sanabria thinks the working conditions negatively impact her school’s special education program, and she hopes a union can help improve it. “Part of that is linked to teacher retention and the hiring of teachers,” she explains. “I think [Paul] is not a very attractive one for special educators, who often have multiple degrees, because we don’t offer competitive salaries. If I had stayed working for DCPS I would be making more than $10,000 a year more than I am now as a fifth-year teacher.”

Two things happened last year which helped precipitate the union effort.

The first is that administrators brought in a consultant at the start of the 2015-16 school year to launch a committee with teachers dedicated to discussing school improvements. After a series of meetings, teachers submitted a list of proposals to their administration, including such recommendations as more transparent staff evaluations, caps on class sizes, and increased time for teacher planning. But the suggestions went nowhere.

“Soft diplomacy has been tried,” says Dave Koenig, a government and history teacher at Paul, and the first person at his charter to reach out to the AFT.

“Nothing really came out of the consultant committee, nothing substantial, no major changes,” adds Katrina Foster, a special education coordinator who has been working at Paul for seven years. “So the union was just kind of the next step, [we] organically moved into starting this movement.”

Paul teachers also grew frustrated at the end of last year when the high school’s popular principal did not have her contract renewed. Educators say they were given no clear explanation for her firing, and the teachers rallied together for the principal’s reinstatement. Their efforts, too,  went nowhere. For teachers like Koenig, that was the last straw.

“In my time here I’ve seen people who are really good, dedicated teachers shown the door because they have personality conflicts with someone above them. I’ve also seen really good people leave on their own because they feel underappreciated or overworked to the point of developing [a] nervous breakdown,” says Koenig. “I don’t want that to continue to happen. I want the staff to be stable and happy, and I think a union is part of how we get there.”

“I don’t think the union is for any one particular thing, but mainly to support staff, to give teachers a voice, and recourse,” says Foster.

Representatives from Paul Public Charter were not available for immediate comment.

Two key factors have inhibited charter organizing in Washington, D.C.

Charter teachers in cities such as Chicago, Philadelphia, and New Orleans—where successful charter unions have taken root—have had the benefit of receiving help from their state teachers union. When charter teachers have just begun trying to launch a brand new local off the ground, state affiliates have provided them with valuable transitional support and bargaining staff. No such intermediate body exists for the District of Columbia.

The Washington Teachers Union, D.C.’s traditional public school teachers union, has also been particularly embattled in recent years. In 2007, the city hired a controversial schools chancellor, Michelle Rhee, who was empowered to make decisions largely without school board or city council approval. As charter schools expanded throughout the city, Rhee proceeded to fire hundreds of teachers from traditional public schools, and regularly engaged in high-profile fights with the WTU.

Rhee left in 2010, but the union has since struggled to find its footing and regain power. Its current president, Elizabeth Davis, was elected in 2013, and has spent the majority of her tenure trying to negotiate a new collective bargaining agreement. Teachers have been working under a contract that expired back in 2012, and haven’t had a base-level salary increase since then.

In an interview with The American Prospect, Davis says she’s always been interested in helping to support charter school organizing, and that her members are interested in it, too. “The first three years of my presidency just ended up being far more than I anticipated,” she says, in reference to the contract negotiations that have commanded the union’s attention and resources.

“But our union is going to support charter teachers organizing in any way we can,” Davis said. “We want teachers, irrespective of what schools they teach in, public or charter, to have a union.”

Paul charter teachers say they’re looking forward to forming DC ACTS, rather than joining the 4,000-member WTU, because it will allow them to build something from the ground up. “I think being in our own local, and such a small unit, is going to allow us the freedom to be creative and innovative in terms of what we negotiate for,” says Koenig.

Paul’s educators plan to organize under the jurisdiction of the National Labor Relations Board. Last summer, the NLRB issued a pair of decisions which said that charter school teachers are private employees who fall under the federal labor board’s purview. Even before the NLRB ruling, D.C.’s public employees’ labor board, which covers teachers and other staff in traditional public schools, had excluded charters from its purview.

If Paul Public Charter School administrators do not voluntarily recognize their teachers’ union, and challenge the NLRB’s jurisdiction should the staff then move for an election, the administration would effectively be saying that D.C. charter school teachers should have no formal rights under any labor board—public or private. Union opponents may see an opportunity to overturn the NLRB’s charter rulings in the Trump administration, given that Trump has named Philip Miscimarra as the board’s new acting chairman. Miscimarra was the sole dissenting voice in the 2016 charter school decisions, and argues that charter labor law should be left to state and local regulators.

Across the country, charter administrators and board members have generally fought union efforts, insisting that collective bargaining agreements would inhibit charter school success and flexibility. Gina Mahony, the former vice president for government relations for the National Alliance of Public Charter Schools, a group that strongly discourages charter unionization, sits on the Paul Public Charter School’s board of trustees.

While Koenig says improving Paul is his top priority, he’s also hopeful that starting DC ACTS could spark broader change within D.C.’s charter school sector.

“This has always been partially political for me,” he says. “Problems we face at Paul are also problems in other charter and public schools. A really disturbing theme in education today is how teachers are treated so poorly, so that the good ones are pushed out, and automatons are brought in who are willing to simply teach skills for standardized tests. I think teachers unions are our only way to fight back against things like that, and unions in general are very important to fight back against a changing economy that crushes working people.”

DeVos Might Not Force Private School Vouchers on States — But She Could Promote Them

Originally published in The American Prospect on February 6, 2017.
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In 1997, when Arizona launched the nation’s first tax-credit scholarship program, allowing individuals to receive tax credits for donating to nonprofits offering private school tuition grants, legislative aides estimated it would cost the state $4.5 million annually. By the 2015-16 school year, the yearly cost of the program had grown to more than $140 million, even though private school enrollment was actually below its 1997 levels.

Florida launched the nation’s second tax-credit private school voucher program in 2001, with a cap of $50 million. Today the program tops out at $559,000,000 annually, and will increase to $699,000,000 in the next fiscal year.

Pennsylvania’s tax-credit school voucher program, also launched in 2001, was originally capped at $30 million. Designed to provide tuition assistance to private schools, pre-K programs, and “innovative” public school initiatives, it now hits $175 million annually.

Tomorrow the Senate will hold its final vote on Donald Trump’s nominee to lead the federal education department, Betsy DeVos, a billionaire Republican donor who has spent decades advocating for charter schools, private schools, and virtual education. No other Trump appointee has faced the same magnitude of opposition, with hundreds of thousands of Americans calling, emailing, and faxing their senators in protest.

Though it’s widely expected that she’ll be confirmed on Tuesday, the past few months of anti-DeVos campaigning have created some new fault lines within education reform coalitions. In addition to labor unions and civil rights groups, more liberal school choice organizations, like Democrats for Education Reform and Education Trust, have lined up against DeVos’s nomination. Billionaire Eli Broad, who funds charter schools in Los Angeles, New Orleans, and other cities, penned a letter last week against his fellow billionaire education reform champion. On the other hand, Eva Moskowitz, founder and CEO of Success Academy, the largest charter school network in New York City, has emerged as one of DeVos’s most ardent supporters.

One major concern critics have voiced about DeVos is whether she will use her federal perch to push school privatization. She’s referred to the public education system as a “dead end” and has neither attended a public school, nor worked in one. In her home state of Michigan, DeVos has spent years (unsuccessfully) pushing private school vouchers, and has funded voucher efforts in other states.

Though DeVos has promised she would not “force” voucher programs on states, there are other ways she could support their growth if she’s confirmed as education secretary. She might get behind what’s known as “Title I portability”—a policy that would allow states to use federal dollars earmarked for low-income students to follow them to the public or private school of their choice. At $14.5 billion annually, Title I is the federal government’s largest program for K-12 students. Some congressional Republicans tried to include Title I portability in the federal education law that passed in 2015, but Barack Obama said he’d veto any bill that contained it. Democrats and Obama’s administration maintained that such a policy would significantly harm poor students by directing federal funds away from high-poverty school districts.

Title I is likely to come up again, given that in early January Donald Trump tapped Rob Goad, a senior education adviser to Representative Luke Messer of Indiana, to join his administration. Messer is known as one of the most vocal Congressional advocates for Title I portability, and Goad will serve as the key education expert on Trump’s White House Domestic Policy Council. A DeVos-backed Title I portability amendment to the Every Student Succeeds Act could win congressional approval unless Senate Democrats successfully filibuster it.

DeVos is also likely to support states establishing education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, as well as private school tuition. In December, right-leaning education reformers gathered together in Washington, D.C., for a conference hosted by the Foundation for Excellence in Education, an education advocacy group on whose board Betsy DeVos served until recently. At the conference leaders spoke animatedly about setting up vouchers or education savings accounts in every state across the country.

Noting the liberal opposition to DeVos’s nomination, some education analysts have suggested that private school vouchers are unlikely to expand beyond conservative legislators and red states. However, the reality is that private school voucher programs are often pushed in blue cities and purple suburbs—where a plethora of religious schools are located. In fact, it’s Republican-leaning rural areas that tend to have some of the greatest opposition to private school vouchers, given their scant school options.

Indeed Maryland, a blue state that went for Hillary Clinton by 26 points, established its first private school voucher program last year, appropriating $5 million to the effort. While school voucher initiatives are often pitched as vehicles to help poor, black students escape their local public schools, data from the first year of Maryland’s program reveal that more private school vouchers went to white students than black students, and 78 percent of the 2,464 vouchers issued went to students who were already enrolled in private schools. Maryland’s Republican governor Larry Hogan says he wants to double the funding for the voucher program over the next three years.

“In Maryland, no one has lobbied harder or been more excited about Governor Hogan’s voucher program than religious schools,” says Sean Johnson, the legislative and political director for the Maryland State Education Association. “Despite the rhetoric you hear on vouchers from President Trump, Governor Hogan, and Betsy DeVos, vouchers are less about moving kids from public schools and more about moving taxpayer dollars to private and religious schools. We can’t afford to fund two different school systems—public taxpayer dollars should be spent improving our public schools, not subsidizing expensive private schools.”

Meredith Curtis of the Maryland ACLU says what’s happening in Maryland is similar to what’s happened in other states, where private school voucher programs start out small, but continue to steadily grow, even as public school budgets are cut.

“Maryland public schools have tremendous needs that need to be addressed by the state, but we have no promises from the governor to meet those urgent needs, and yet he proposes increasing funding to religious schools,” Curtis says. “What we’ve seen in other states is that once allocations for vouchers are set in place, they just continue to increase, but there’s no accountability for benchmarks to compare the quality of education. We support [the right of] private schools to set their own curriculums, but we object to publicly funding [them].”

Assessing the educational value of private school voucher programs has been difficult. As Erin Richards details in The American Prospect’s most recent issue, Wisconsin, which launched the nation’s first private school voucher program 27 years ago, still lacks high-quality data for assessing performance, and still lacks robust mechanisms to hold private schools that receive public dollars accountable.

DeVos, congressional Republicans, and a host of GOP governors around the country may be enthusiastic about increasing the number of students enrolled in private schools, but public support for such policies is actually falling. According to an annual poll conducted by Harvard’s Education Next journal, nationwide support for vouchers targeted at low-income students fell from 55 percent to 43 percent between 2012 and 2016, and support for universal vouchers fell from 56 percent to 50 percent.

If private school vouchers become increasingly associated with Donald Trump, the nation’s staggeringly unpopular new president, then public support for vouchers may fall further yet.

 

The Right Way to Assess Charter Schools

Originally published in The American Prospect on November 30, 2016.
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On November 8, Massachusetts residents went to the polls not only to cast their vote for president but also to weigh in on a hotly debated question regarding charter schools. The ballot initiative—which proposed lifting the state’s cap to allow establishing up to 12 new charters or expanding existing charters annually—had generated a heated battle for months, with voters inundated by mailings and advertising from both sides. About $34 million was spent on these efforts, making them easily the most expensive ballot initiative campaign in state history. Teacher unions provided nearly all the money to fight the measure, while out-of-state donors and Boston’s business community shelled out most of the money in support.

The debate mostly went like this: Supporters of the ballot measure, known as Question 2, argued that charter schools in Boston have proven extremely effective for disadvantaged students. They pointed to research studies that show students who attended Boston charter schools, compared to students in Boston’s traditional public schools, were more likely to graduate high school in five years, more likely to attend and complete college, and less likely to enroll in remedial education. In addition, researchers found attending Boston charters led to significant gains in state tests, AP tests, and the SAT.

Supporters of charter expansion also pointed to long charter school waiting lists as evidence that families, especially poor families, desperately seek better school options. If the ballot measure failed, proponents insisted, it would be because wealthy white suburbanites were too selfish, or short-sighted, to let low-income African-Americans escape their failing public schools. Polls conducted throughout the campaign did reveal higher support for charter school expansion among black and Latino voters.

Critics of the charter school ballot initiative challenged the legitimacy of the waitlist figures that supporters wielded—pointing to evidence that the stats were substantially inflated. Critics also pointed out that the research on charter school effectiveness was dramatically less impressive outside of Boston, and this statewide ballot measure would impact schooling all over Massachusetts.

But the most salient argument critics levied—and one that Question 2 supporters never figured out how to overcome—was that the ballot measure might expand opportunity for some students, but would ultimately drain money and resources from those students who remained in traditional public schools. Supporters tended to dismiss these concerns, saying that per-pupil dollars would “follow the child” so there would be no real negative impact on other students who didn’t attend charters. But a number of experts, including Boston’s chief financial officer, said the fiscal strain would be tremendous. This became the rallying point for Question 2 opponents—and the primary reason the ballot measure failed 62 percent to 38 percent, with cities all over the state, including Boston, voting in opposition.

Throughout the campaign, many Massachusetts voters said that they found the news coverage confusing. Someone would make an argument, a new report would come out claiming the opposite, so-called experts would go back and forth about it, and the media would often do little more than cover the “he says, she says” discussion—leaving residents unsure of what the truth really was.

Today, the Economic Policy Institute is publishing a report by Bruce Baker, a national expert in state school finance, charter schools, and teacher and administrator labor markets, that he hopes will help improve the level of public discourse the next time residents and political leaders are asked to make such high-stakes education decisions.

Baker’s report looks at the fiscal impact of charter school expansion—an area that has received surprisingly little academic attention, despite the charter sector’s 25-year existence, and the growing public awareness that this is a critical issue to understand.

I covered the topic back in June, and at the time the only real research study available on the issue was one published in 2014 that documented the negative fiscal impacts that traditional public schools in Buffalo and Albany had experienced from charter schools proliferating. Since then, David Arsen, an education policy professor, published research finding that the biggest drivers of fiscal distress across Michigan school districts were declining enrollment and revenue loss, particularly where school choice and charters were most prevalent. Moody’s Investor Service, a bond credit rating agency, has also been sounding the alarm about the severe financial distress a growing number of school districts face as charter schools expand.

For Baker, the debate over whether charter schools are seen as good or bad was for a very long time “one-dimensional”—based on whether charters produced marginal increases or decreases in students’ standardized test scores. The debate over whether to lift Massachusetts’ charter school cap, Baker says, was more “two-dimensional,” in that people talked about both academic impacts and some fiscal tradeoffs. But still, the parameters of the fiscal conversation were limited, and Baker says he hopes his new report will provide a framework for a more “multi-dimensional” discussion of tradeoffs going forward.

So what does a multi-dimensional discussion look like?

“If we consider a specific geographic space, like a major urban center, operating under the reality of finite available resources (local, state, and federal revenues), the goal is to provide the best possible system for all children citywide, given the resources available,” Baker writes. “That is, resources should be used most efficiently and equitably to achieve the best possible system of schools for all children.”

Baker suggests moving the conversation away from the individualistic, consumer-choice narrative that market-driven reformers have promoted over the past two decades, and towards one that centers public education as a collective responsibility for communities to provide as efficiently, and equitably, as they can.

In an interview with the Prospect, Baker emphasizes that we need a far better understanding of all the costs and benefits associated with running multiple, competing school systems in a given space—public policy questions that are surprisingly ignored on a regular basis. He cites transportation costs as one example that rarely gets attention when leaders decide whether or not to open more charter schools.

“If we’re saying that driving kids two hours here, and one hour there, is creating liberty of choice, which some people simply like as a policy, and we’re also getting some marginal test score gains—well, we have to be clear about how much we’re spending to get those things,” he says. “We have to ask, could we be getting similar test score gains, and similar favorable public opinion for a better price for more students? We’re not even bothering to take those measurements and to ask those questions.”

Baker says that before leaders decide to open new charter schools, they should take into account the inefficiencies created from having multiple transportation systems, duplicative administrative overhead costs, additional financing fees associated with alternative capital investments, and any transition costs that arise from creating new school systems. Baker wants to see leaders wrestle with whether it’s possible to achieve comparable gains by investing in programs and services in existing public schools. Do the gains of charter expansion outweigh the costs? Is it possible to design a more equitable and efficient system by other means?

Economic Policy Institute president Larry Mishel says he hopes this report will lead to greater attention paid to the impacts of unbridled charter school expansion, especially under Donald Trump’s presidency.

“We would like the focus to be on what really matters—giving the students the support they need to make great learning possible, which involves their homes, their families, their neighborhoods—and to integrate those concerns with schooling,” Mishel says. “We’ve had a 25-year history of being distracted by issues of governance. We see charters as an evasion of the core questions.”

Fining Teachers for Switching Schools

Originally published in The American Prospect on November 3, 2016.
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Last month, the Massachusetts Teachers Association reported on the story of Matthew Kowalski, a high school history and economics teacher who received a $6,087 bill over the summer from his former employer—a suburban charter school in Malden, Massachusetts. Kowalski had worked at the Mystic Valley Regional Charter School for seven years, but with three young children and another one on the way, he said he wanted to find a teaching job that would offer something more stable than at-will employment.

Mystic Valley now seeks to collect thousands of dollars in “liquidated damages” for Kowalski’s departure. Every spring, the charter school requires its employees to sign one-year contracts for the following school year, but since many new teaching positions don’t open up until May, June, and July, this puts teachers in a tough position if they want to consider looking for alternative jobs. Kowalski signed Mystic Valley’s 2016-2017 contract in April, got a job offer from a traditional public school in May, and gave the charter written and verbal notice by May 20. Mystic Valley then hired Kowalski’s replacement, whom Kowalski trained. Two months later, his $6,000 bill arrived. It didn’t take long for Kowalski to learn there were others who had faced a similar fate. MTA Today reported on another teacher who had worked at Mystic Valley for four years, who was billed $4,900 in “damages” for giving notice over the summer.

As MTA’s legal division worked to help the former Mystic Valley teacher fight these charges, Kowalski’s attorney stumbled upon something surprising: Mystic Valley employment contracts included non-compete provisions, prohibiting teachers from working in any public or private school in any of the six “sending districts” near the charter school. Though charters are often framed as a way to induce competition into American schools, non-compete agreements—which have grown increasingly common in the private sector—make clear that some charter employers don’t believe that schools should compete for teaching talent. Nor is it clear that the agreements are even legal, or enforceable.

Just how common contracts like these actually are remains a mystery, but they’re not just limited to Mystic Valley.In 2015, the Akron Beacon Journal found that Summit Academy Schools, the largest charter network in Ohio, sued nearly 50 former teachers in a three-year period for leaving for other jobs. Summit Academy schools have non-compete provisions in their employment contracts.

“Summit Academy’s legal team filed [lawsuits] against as many as eight [former teachers] at a time,” the Akron Beacon Journal reported. One such teacher was Joel Kovitch, who quit in 2013 to take a higher-paying position. He gave his notice one month into summer vacation, and thought there’d be plenty of time to replace him. He ended up paying Summit Academy $1,200 after growing tired of fighting the legal battle.

The American Prospect also reviewed an employment contract for a charter school within the Constellation Schools network, another Ohio charter chain with 17 campuses throughout the state. The contract requires teachers to work for one year, to have no expectation for employment beyond that, and to pay their school $2,000 in liquidated damages if they terminate their employment at any time before their contract expires. The Constellation contract says this is not a “penalty” for leaving, but an acknowledgment that the employer “has expended considerable time and effort recruiting and/or retaining and training you to ensure you are prepared for your position, and … that such a disruption to the educational process is difficult if not impossible to calculate.”

In other words, teachers can’t expect to stay more than one year, but if they leave before one year is over, then they will need to pay their school two grand. Constellation Schools did not return request for comment.

Teachers who work at Ozark Montessori Academy, a charter school in Arkansas, also have to sign non-competes, agreeing to not “directly or indirectly … solicit, induce, recruit, or cause another person in their employ of Employer to terminate his/her employment for the purpose of joining, associating, or becoming employed with any business or activity which is in competition with Ozark Education, Inc.” The agreement lasts for two years after the teacher leaves the school, and it applies “in any area in which Employer plans to solicit or conduct business.” Charter teachers at Ozark are also required to sign confidentiality agreements that they will not directly or indirectly disclose “trade secrets” which are “used by Employer and give it an opportunity to obtain an advantage over competitors who do not know those trade secrets.”

The American Prospect contacted Ozark to inquire about their employment contract, and in regards to their non-compete requirement, a school representative said, “We pay for our teachers’ Montessori training, and since that’s such a big expense for us, we wanted in [the contract] that we’re not going to pay for a teacher’s training and then they go quit and work for someone else.”

The American Prospect reviewed a contract for another charter school in Washington, D.C., that, in addition to having a one-year non-compete provision and requiring teachers to keep “trade secrets” confidential during and after employment—including information related to the school’s “academic policies and strategies”—also requires teachers to not “create, or appear to create, a conflict of interest with Employee’s loyalty to or duties for” the school, “including, but not limited to, providing any tutoring for hire.”

This charter school also requires teachers to agree to mandatory arbitration—a process that involves waiving away your right to sue for grievances, or to contest the terms of the contract itself. The provision requires teachers to waive their rights accorded them by worker protection, civil-rights, and anti-discrimination acts, as follows:

The parties agree that … any dispute (“Dispute”) between the parties arising out of or relating to the Employee’s employment, or to the negotiation, execution, performance or termination of this Agreement or the Employee’s employment, including, but not limited to, any claim arising out of this Agreement, claims under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, Section 1981 of the Civil Rights Act of 1966, as amended, the Family Medical Leave Act, the Employee Retirement Income Security Act, and any similar federal, state or local law, statute, regulation, or any common law doctrine, whether that dispute arises during or after employment shall be resolved by final, binding, and non-appealable arbitration by one arbitrator in the Washington, D.C. metropolitan area, in accordance with the National Employment Arbitration Rules of the American Arbitration Association, as modified by the provisions of this Article.

The Covenant Keepers Charter School in Little Rock, Arkansas, requires its teachers to not disclose “trade secrets” and to agree to not work for any “business or activity in competition with the charter school” for two years after leaving, in “any area in which the Employer currently solicits or conducts business, and/or any area in which an Employer plans to solicit or conduct business.” The teacher also has to agree to pay liquidated damages in the amount of “$100,000 plus court costs, litigation expenses, and actual and reasonable attorneys’ fees” if the non-compete or confidentiality agreement is breached.

No one has sought to tally how many charter schools include non-compete agreements in their contracts. Schools certainly don’t publicize them; it often requires individual teachers coming forward to alert the public to their existence. A Gainesville, Florida, elementary school teacher wrote on a legal advice forum asking whether the non-compete agreement she signed at her charter school was enforceable. A teacher at the Pennsylvania Virtual Charter School confirmed to The American Prospect that they too must sign non-compete agreements.

The Prospect reached out to the National Association of Public Charter Schools to inquire if the group promoted any kind of model charter employment contract, or if there are any provisions they specifically discourage charter schools from adopting. Vanessa Descalzi, a senior communications manager, says her group had never heard of other charter schools with practices like suing departed teachers for liquidated damages, or including non-compete, or forced-arbitration clauses.

The revelation of such provisions in charter school contracts comes at a time when the Obama administration and the National Labor Relations Board have begun to crack down on overly broad confidentiality agreements, mandatory arbitrations, and non-compete clauses. The White House says 20 percent of American workers are bound by non-compete agreements, and just last week urged state legislatures and policymakers to ban them for certain categories of workers, particularly those unlikely to possess real trade secrets.

The Economic Policy Institute says survey evidence reveals that many workers have no idea they are bound by non-compete agreements, with fewer than one in five employees consulting an attorney before signing, and only about one in ten attempting to negotiate the terms of their agreement. And as Economic Policy Institute vice president Ross Eisenbrey notes, even when workers know about the clauses, it’s a choice “between taking a job and not taking it in a tough labor market that favors employers.”

Even if such provisions are one day banned by legislatures or nullified by the courts, their current inclusion within charter employment contracts may be enough to deter teachers from taking the legal risk of moving on to a different school. This may be what the employers are counting on.

Q&A: Pulling Back the Curtain on Education Philanthropy

Originally published in The American Prospect on September 21, 2016.
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Private foundations give millions of dollars to public education every year, but these powerful institutions typically operate behind a curtain of secrecy. In a new book, Policy Patrons: Philanthropy, Education Reform, and the Politics of Influence, University of Michigan public policy professor Megan Tompkins-Stange sheds new light on the role philanthropy plays in public education, particularly in the arena of charter schools and other market-based reforms. 

Tompkins-Stange spent five years conducting confidential interviews with foundation insiders at the Ford Foundation, the W. K. Kellogg Foundation, the Bill & Melinda Gates Foundation, and the Eli and Edythe Broad Foundation. Analyzing their diverse, and sometimes competing, approaches to grant-giving, she raises important questions about the influence that philanthropic interests wield in American education and public life. This is an edited transcript of that interview.

Rachel Cohen: You chose to dive into a controversial topic—education reform. What kind of feedback has your book received?

Megan Tompkins-Stange: Honestly I was really scared building up to the book’s release date, especially since I am a junior scholar. For months I was like, what am I doing? Why did I decide to do this? I was terrified. But honestly, most of the response to the book has been really supportive and positive, including from the foundations. I still haven’t heard anything from the Broad Foundation, but I’ve also heard from retired teachers, and people who experienced some of the politics first-hand.

One major critique I’ve received is that I’m not vocal enough about whether philanthropic giving is good or bad. But I did this intentionally—I wanted it to be accepted as an academic and empirical book, as opposed to a piece of advocacy. I’ve taken a more critical stance in the press though, I’m now more comfortable to do so.

Your book talks about the secrecy of foundations. Can you say more?

Foundations are private nonprofit corporations. There’s very little they have to do in order to be accountable to the public. They publish their tax forms, they have their 990s. They’ve established some professional norms over the past 50 years, so many will publish their grants in a database, or put out annual reports. That’s more just good practice, though. Foundations don’t have boards that are democratically accountable, and they are very private by nature of their organizational form. They don’t have to talk to anyone.

Of course, the argument that comes up again and again is, well is that a good thing? That’s a debate that’s gone on for many years. My position is that foundations need to be much more legally accountable. They have enough power in the public realm that they need to be held to some accountability procedures beyond the ones they institute on their own. That could be a formal mechanism, or creating space for people to weigh in on efforts they’re pushing that will impact the public at large. They could have boards with some kind of public member component, or make some investments subject to an external review.

People often lump the Gates and Broad Foundations together, but you explore some differences between these two education reform-friendly foundations.

Eli Broad is the only person to have founded two Fortune 500 companies, and part of his theory of change is about getting the right people into the right positions. So Broad focuses on pipelines: training superintendents, creating leadership positions for individuals to then shape school districts. He very intentionally talks about “venture philanthropy” and having “dramatic results” and creating “transformative breakthroughs.” The Broad Foundation moves unapologetically with urgency; that is their core value.

Gates is a little more skittish about where the public stands on them, they’re more careful. They have legions of lawyers who work to make sure their advocacy doesn’t cross any line. The Gates Foundation also has a sense of urgency, but they’ve always been a bit more cautious. Some people say this may be due to some things Microsoft went through with antitrust—Bill Gates has always just been much more public and attracts more criticism and critique than Eli Broad.

Many supporters of the Common Core insist that the standards originated from the states, not the federal government. Your book recounts the many ways in which they were actually pushed forward by the Gates Foundation, on both the state and the federal level.

Gates was very much about building up the power at the state and local level, and then bringing in the federal government. That was their strategy, and the main way they did that was by getting all the governors on board in ’08 and ’09. Gates made huge grants to The Council of Chief State School Officers and the National Governors Association designed to build political will.

The grants were basically for instituting standards, educating the public, and research. It was all very above-board, but they really played that convener role to get everyone on the same page. Their strategy was to give money to elites to move the effort efficiently and quickly.

HistPhil, a blog about the history of philanthropy, hosts debates about what’s changed in the modern landscape of philanthropic giving. Your book describes some shifts in education philanthropy over the past few decades. What do you think has changed?

HistPhil is such a valuable website, I really appreciate the role that they’ve taken in advancing the conversation and bringing it back to history. There’s a tendency in political discussions about philanthropy to argue that today is the biggest it’s ever been. The truth is that foundations have been really powerful for more than a century; if you look back at some of the press from the 1920s and 1930s, there are very similar arguments being made about the influence of the Rockefellers.

All that’s old is new again. I think that what’s changed is that people today are more concerned about the size of foundations. It’s the first time in many decades we’ve seen foundations that are in excess of a billion dollars, and the growth of their assets has also grown significantly. The presence of market-based values and the influences of neoliberalism over the past 30 years is a big deal, too. People tend to get hyperbolic because there are wealthy people in tech and business who are more assertive in ways that foundations haven’t been in the past.

Your book suggests “evidenced-based” policies are often far less rigorous, and far more political, than their proponents suggest.

Right, what is evidence? I’m working on a book proposal now with [political scientist] Sarah Reckhow about teacher quality debates. We look at the new industry of advocacy research, and its influence on policy discussions. So many ideological arguments have the veneer of neutrality confirmed by the label “evidenced-based.”

We’re in the midst of a presidential election that actually has a significant focus on philanthropy. Both Clinton and Trump have foundations, and particularly the Clinton Foundation’s influence is regularly in the media. Do you see this having any import for the education philanthropy conversation?

It’s an interesting question because the broad public doesn’t really know what a foundation is, or what it does. Clinton’s foundation doesn’t make that many grants, it’s more like brokering and convening. I teach a class on philanthropy and I start by asking my class “what is the foundation you most admire?” Students will say things like the Salvation Army. Most people really conflate foundations and public charities, and there’s not a real understanding of who gives the money and who does the work on the ground. There’s a real lack of knowledge about what power these different groups have, which also carries implications for our democracy.

The national conversation around inequality has grown far more pronounced. Has this impacted the public’s focus on philanthropy?

That was fascinating for me. Literally I kept having to add things to the book as we were going to press. ESSA passed, Bernie Sanders became a real viable candidate. I think people are starting to realize that philanthropy is inextricably linked to an unequal society. You can’t have philanthropy without having some people who have a lot more than others.

 

 

California’s Ed Reform Wars

Originally published in The American Prospect on August 2nd, 2016.
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This past April, the California Court of Appeals unanimously struck down the controversial Vergara v. California decision, in which a Los Angeles County Superior Court judge ruled that five longstanding teacher protections—including a two-year probationary period for new teachers and a layoff system based on how many years one’s been teaching—violated students’ constitutional right to an equal education. The lower court judge had argued that these labor protections make it harder to fire bad teachers, and bad teachers significantly undermine a child’s education. In a 3-0 decision, the appellate judges concluded that the labor protections themselves are not responsible for harming students, even if school administrators sometimes implement them injudiciously.

Students Matter, a nonprofit backed by Silicon Valley entrepreneur David Welch that’s representing the Vergara plaintiffs, has filed an appeal to California’s Supreme Court. Their supporters argue that children pay the price for such job protections as teacher tenure and seniority. They also point to research that suggests making it easier to fire teachers has positive effects on student achievement. Critics counter that the real problems students face—particularly low-income students of color—are not teacher job protections, but their under-resourced, highly segregated schools that fail to attract and retain high-quality educators. At a time when states like California face real teacher shortages, they say, the focus on firing teachers is misplaced at best.

Since the lower court’s Vergara ruling two years ago, similar suits challenging teacher job protections have been filed in New York and Minnesota.

While David Welch and his allies remain committed to waging legal battles against tenure, seniority, and other job protections, they are also pushing for statutory changes via the California legislature. Following the original Vergara decision, Republican lawmakers introduced a package of three bills to extend the time it would take a teacher to earn tenure, to repeal the “last-in, first-out” statute that makes layoff decisions based on seniority, and to establish an annual teacher evaluation system. These bills, however, got nowhere in the Democratic-controlled statehouse.

“I think the Vergara decision helped increase public demand for improvements in our education system, but I always think it’s better when we can make policy changes through the legislature rather than the court system,” says Assemblywoman Kristin Olsen, the Republican who sponsored the teacher evaluation bill.

Back during the original Vergara trial, unions and some education experts also argued against making policy changes through the courts. A spokesperson for the California Teachers Association told The Wall Street Journal that legislators were already looking at ways to amend the contested laws, and Randi Weingarten, the president of the American Federation of Teachers, said that extending the time it takes to get tenure in California is a legitimate idea, but that such changes should be done through the political process, not the judiciary.

Today, however, local unions are fighting back against attempts to change employment laws through the legislature. California is one of just five states that grants teachers tenure after two years—32 states require a three-year probationary period, and nine states require four or five years. And, as critics are quick to point out, the reality is that California administrators must file paperwork for tenure status after a teacher has been working for just 15 to 18 months if they’re to meet state deadlines. Even those who are very supportive of teacher tenure feel lengthening the amount of time it takes to earn it makes sense. Before granting genuine job security, they say, make sure it’s for an individual you’d really want in front of students for the long haul.

But the California Teachers Association and the California Federation of Teachers have both strongly opposed bills aimed at modifying tenure, even legislation from which their adversaries have withdrawn support. While the final outcome of the Vergara case remains to be seen, the unions’ firm stance against reform could help prompt tenure opponents to mount an initiative campaign—a routine occurrence in California politics. That may not bode well for the unions: A 2015 poll of registered California voters found that most respondents think teachers in their state receive tenure too quickly, and that seniority should count less during the layoff process. If changes to tenure and seniority were to come before the voters, there are decent odds that such a measure would pass.

The concept of teacher tenure in American public education, as Dana Goldstein documents in her book The Teacher Wars, was an idea originally imported from Germany. Progressive-era reformers saw that giving teachers more job security was often a good way to incentivize people to join the low-paid profession. Tenure also made it harder to fire teachers, which consequently made it more difficult for the urban political machines that then dominated cities to dole out teaching jobs as political favors.

Though teachers unions have existed in the U.S. for a long time, the idea of collective bargaining didn’t take off until the second half of the 20th century, as membership in teachers unions grew, and public sector unionism gained strength more broadly. The first teachers union to win collective bargaining rights was New York City’s United Federation of Teachers in 1963, and by the end of the 1970s, after a series of labor strikes across the country, 72 percent of public school teachers were covered under collective bargaining agreements.

As a result, teacher tenure in unionized school districts means being covered under a “just cause” provision in a collective bargaining agreement. In a non-unionized workplace, employees can be fired simply because an employer doesn’t like them. The added job security that comes with tenure means that a boss would need to legally demonstrate that firing their employee was justified—that there is “just cause” for the worker’s termination. Tenured employees also have the right to contest their firing.

Tenure critics rightly note that in many school districts, the process an administrator has to go through in order to dismiss a teacher for cause ends up being so lengthy and expensive that it can feel nearly impossible. In many cases, it’s easier, and a lot cheaper, to keep an ineffective teacher employed, rather than jump through the legal hoops to remove them. In New York City, officials who make failed attempts to terminate teachers often end up just issuing fines.

Union contracts generally distinguish between two kinds of dismissals. The first is termination for cause; for example, an administrator should be able to fire you if you’re an ineffective teacher or if you sexually harass a student. The second type of dismissal is through a layoff due to an economic circumstance—generally, cuts to school district budgets during recessions.

Many teacher tenure critics also want to end the process of “seniority”—which requires that districts make layoff decisions based on the number of years a teacher has been working. Opponents of these “last-in, first-out” statutes say that high-quality young teachers are penalized under this system, since their few years in the profession makes them more likely to be canned, regardless of their job performance. This also disproportionately hurts students in high-poverty schools, critics say, because young teachers are generally assigned to those schools.

Some states, including many that are substantially unionized, have already explicitly banned seniority when making layoff decisions, and others require teacher job performance to be the primary factor considered. Ten states—including New York and California—however, still require that the number of years a teacher has taught be a partial, or the primary factor for districts when making layoff decisions.

Defenders of seniority say that if you want to fire someone for poor performance, then do it for cause, not disguised through the layoff process. In effect, tenure and seniority work together to give employers the flexibility to lay people off when economic circumstances require it, but in a way that protects teachers from being arbitrarily targeted, or targeted because they were paid more than more junior faculty. Seniority-patterned layoffs exist specifically to protect the “just cause” rights.

“Until very recently, these rules were fairly uncontroversial,” says Leo Casey, the executive director of the Albert Shanker Institute, a think tank affiliated with the American Federation of Teachers. “They prevented older, more expensive teachers from being discriminated against during lean economic times, and administrators often appreciated the simplicity of ‘last-in, first-out’, especially because there was no consensus on how to best evaluate teachers’ performance.”

In February, before the Vergara appeals court decision came down, California Assemblywoman Susan Bonilla, a Democrat, introduced a bill aimed at finding some legislative common ground for the various employment statutes being challenged in court. While the three bills sponsored by Republicans in 2015 got nowhere, some believed an effort led by a Democrat might get more traction. Both the California Teachers Association and the California Federation of Teachers have donated to Bonilla’s campaigns.

Bonilla proposed, among other things, giving principals the option of waiting until a teacher’s third or fourth year to grant tenure, and placing poorly performing teachers in a program that would provide increased professional support. If the ineffective teacher received another low performance rating after a year in this program, Bonilla’s legislation would enable schools to fire the teacher through an expedited process. The LA Times editorial board said her bill would make the rules “more reasonable and practical, while preventing capricious or vindictive firings of teachers by school administrators.” Education reformers initially took no position on her bill, but following April’s Vergara appeals decision, Students Matter, the group that brought the case, decided to back it.

However, Bonilla still lacked support from school administrators and teachers unions, and the California Teachers Association was urging its members to fight her bill. EdSource, a nonprofit news site focused on education in California, reported that the union posted an “action alert” for teachers to call their lawmakers, labeling the proposed legislation “an all-out assault” by “corporate millionaires and special interests.”

In June, Bonilla introduced an amended version of her bill, one that would require new teachers to work for three years before becoming eligible for tenure. Her bill no longer included provisions to create a new teacher evaluation system, to require teachers with poor performance reviews to be laid off before those with less seniority, and to remove many of the dismissal rules that administrators found frustrating. In an interview with The American Prospect, Bonilla explained that she needed to narrow her legislation’s scope because that’s what the Senate Education Committee requested. “They are looking for policy change, but my original bill was too wide-ranging,” she says.

Despite being significantly watered-down, the bill was still opposed by the unions, while the education reform groups that originally offered support came out in strong opposition, too. However, the Association of California School Administrators and the California School Boards Association now came forward with endorsements of the amended legislation.

“In my opinion, I really needed administrators’ support. That’s why we took LIFO [last-in, first-out] completely out and worked with the superintendents and the school board association to craft a version they could back. They’re part of the education community, they really understand what needed to be changed,” says Bonilla. The Association of California School Administrators is listed as one of Bonilla’s top campaign contributors.

Students Matter called the amended bill “a bad deal for California students” and urged members of the California legislature to reject it.

“The reform groups wanted everything, and some wanted everything but only if it was written exactly by them,” says Bonilla. “They didn’t want to come on board if it didn’t come out of their house.” She says Students Matter, and another reform-oriented group, Teach Plus, withdrew their support when her legislation no longer addressed seniority.

“If I had to choose who I was going to go with, I’d choose the administrators, the people actually running the schools. That was my priority in terms of really getting sound policy,” says Bonilla.

The California Teachers Association called upon its members to organize against the amended bill, saying it would take rights away from educators, and negatively impact students.

On June 29, the California Senate Education Committee held a hearing,ultimately rejecting Bonilla’s amended bill. Just two of the committee’s nine senators voted in favor—and both are terming out in November. (Five opposed it, and two others didn’t vote.)

“I do feel that at least having the hearing on the bill, which went on for about an hour and a half, was really important,” says Bonilla, who is also leaving office in November. “I felt it was important, as a Democrat, that I stand up and say, we as legislators have an obligation to our constituencies to find a solution and not pretend that the status quo is alright, just because the union says it is.”

One senator to vote in favor of Bonilla’s bill was Carol Liu, the chairwoman of the education committee. Liu told Bonilla that she could amend her bill further over the July recess period if she wanted to try and get more support. Bonilla took Liu up on this and submitted a new version that does not extend the time it takes a new teacher to earn tenure. All Bonilla’s latest version does now is grant school districts the authority to negotiate an alternative dismissal process with their local bargaining units, if they so choose. Right now, under California state law, local bargaining units are prohibited from negotiating the terms of their dismissal process. In 2014, the teachers union in San Jose tried to do this, and asked the California state board of education for a waiver so they could extend their probationary period to three years. But the state board denied the San Jose school district and its union their request. (The California Teachers Association argued that such changes should only come from the state legislature, not through waivers.) Bonilla’s twice-watered-down bill, then, would make such a change.

As of August 1st, it was still unclear whether Bonilla’s new bill would receive a waiver and come up for a re-vote. The American Prospect was unsuccessful in getting an interview with the California Teachers Association, despite repeated attempts over several weeks.

I asked Josh Petchalt, the president of the California Federation of Teachers, why his union opposed Bonilla’s amended bill in June. Wasn’t a one-year extension of the probationary period a fairly good compromise?

Petchalt, though, does not think the tenure law needs to be changed, and believes changing it would not solve the underlying issue of how tenure is assessed. “I think all the commotion about making it three years or five years really misses the point about what it means to have a rigorous procedure for evaluating teachers,” says Petchalt, who taught high school for more than two decades. “I don’t think it takes very long to decide if an adult should be working with kids. I think it happens relatively quickly if that person is being observed on a regular basis by properly trained administrators who know what they’re doing.”

Some leading academics share Petchalt’s assessment. During the Vergara trials, Jesse Rothstein, an economics professor at UC Berkeley, testified that two years was long enough for principals and school administrators to determine whether or not to award tenure. He cited his own research, which suggests that granting tenure earlier, rather than later, is better for students. Rothstein also argued in favor of using seniority to handle layoffs, which he says is a less costly, subjective, and controversial method than using annual performance evaluations.

If Bonilla’s revised-again bill, which has been stripped of its probation provision, comes up for a revote, she says she really hopes there will be “three courageous legislators” who will vote for its passage. “Allowing a union to bargain locally is not an anti-union position,” Bonilla says.

If her amended bill does not pass, or even if it does, the education reformers may seek to place an initiative on the 2018 ballot. Bonilla says she’s heard that there already been some money raised to start that effort.

If such a measure is placed before voters, I asked Petchalt, wouldn’t it look bad to oppose a bill that wouldn’t end seniority, wouldn’t end tenure—just merely extend the probationary period to three years, which is how long it takes in most states anyway?

“I don’t doubt that the optics are not great, but our members spend a career in the classroom, they are committed to public education, to children, and so it’s not good enough to say well there’s an element of goodness in this specific bill if the overall effect would make things worse,” he says. Petchalt points to the Vergara trial, and the broader political effort to weaken teachers unions and collective bargaining. At a time when public sector workers are under attack, when public education is under attack, he says, his union feels compelled to fight back against “a broad narrative.”

“The teachers union supported No Child Left Behind and it got them nowhere,” Petchalt adds. “And they supported [NCLB] for exactly what you’re saying, they didn’t want to be seen as folding their arms and being opposed to everything. [Some union leaders] said if we support [NCLB], then they’ll stop their attacks. But it furthered the attacks, creating a dynamic that resulted in very bad things happening.”

Petchalt is probably right to suspect that even if his union and the CTA backed Bonilla’s bill, even if union leaders agreed to change the probationary period to three years, education reformers would be unlikely to stop fighting for more concessions. In Pennsylvania, where teachers are eligible for tenure after three years, reformers are pushing to extend it to five years, insisting that three years is too short. In this political climate, unions have decided that ceding no ground and putting forth alternatives is preferable to compromising and hoping the disputes get resolved.

Whether this is the most strategically savvy move, though, is unclear. A survey released in 2012 of 10,000 educators found that, on average, teachers felt it was reasonable to work 5.4 years before being evaluated for tenure. Another survey released in 2015, sponsored by the pro-reform group Teach Plus, found that 65 percent of California teachers think that a probationary period between three and five years makes sense for administrators making tenure decisions.

“In California, when legislators can’t come up with a solution, it ends up going on the ballot,” says Bonilla, who worries about lawmakers abdicating their responsibilities, and the electorate voting on issues they’re not well informed about. “We as legislators have to be the ones to demand that the reformers and the centrally-controlled unions be reasonable. There is no one else who is going to do it.”