Maryland Showdown on Testing, Charters, and the Direction of Public Schools

Originally published in The American Prospect on March 29, 2017.
—-

Politicians and policy experts have long debated how and whether to hold schools accountable for what students learn. For 13 years under the controversial Bush-era No Child Left Behind Act (NCLB), the federal government required states to identify schools that were failing by the metric of standardized test scores, and dictated how schools should intervene. Critics said the law amounted to untenable and unacceptable levels of federal overreach, and ultimately did little to close academic achievement gaps. Defenders say the law, while imperfect, led to small yet significant gains in student achievement, particularly for black, Hispanic, and low-income children.

At the end of 2015, Congress passed NCLB’s successor, the Every Student Succeeds Act (ESSA), which limits the federal government’s role in shaping school accountability, and gives states considerably more discretion to craft their own plans. In order to receive federal funds, however, each state has to submit its plan for federal approval. These plans are due this coming fall, and the law is supposed to take full effect during the 2017-2018 school year.

A heated battle over the future of Maryland’s plan—specifically, how much weight standardized test scores should be given in determining a school’s rating, and how much power the state should have over low-performing schools—has become a flashpoint in the polarized education reform wars, not only within Maryland but across the country. At the crux of the debate are questions about who gets to speak on behalf of racial minorities and low-income children, and what school accountability should look like in the age of Donald Trump.

Last fall, the Maryland Board of Education—a 12-member body, ten of whom were appointed by the state’s Republican governor, Larry Hogan—released an initial draft accountability plan. The plan did not include details about what specific interventions should be taken if schools are deemed low-performing, but the board’s president, Andy Smarick, a former George W. Bush education official and a current resident fellow at the American Enterprise Institute, told The Baltimore Sunthat he favored “bolder” approaches than Maryland has taken in the past. In February, Governor Hogan sent Smarick and Maryland’s state superintendent of schools a letter encouraging them to include private school vouchers, charter schools, and a state-run “recovery” school district as specific interventions in Maryland’s ESSA plan. Under current Maryland law, the state education department submits the plan to the state education board, which has the final authority to approve, amend, or reject it before sending it on to the federal government.

In response, Maryland’s Democratic-controlled legislature has been working with teachers unions and education advocates on legislation that would shape the direction of the state’s accountability plan, effectively limiting how much Hogan’s appointees could decide on their own.

States have a lot more freedom under ESSA than they did before, but they don’t have total freedom. ESSA dictates that when crafting accountability plans, states must assign indicators of academic performance “much greater weight” than other measures like class size and school climate. But what this language means in practice isn’t so clear. Education reformers say it means that a significant majority of a school’s accountability rating should hinge on standardized test scores—at least 70 percent. Last week, for example, the D.C. State Board of Education approved a plan that would make 70 percent of D.C.’s school accountability rating based on student growth and proficiency scores. (D.C. reformers originally pushed for testing measures to comprise 80 percent of a school’s score, but that percentage dropped amidst criticism.)

In mid-March Maryland’s House passed a union-backed bill—“The Protect Our Schools Act”—that would cap standardized testing measures at 65 percent of a school’s accountability score. Thirty-five percent would be reserved for indicators like class size, absenteeism, and school climate. The bill also would prevent the state from using vouchers and charters as school turnaround interventions, bar the creation of a state-run school district, and require districts and the state to negotiate any school improvement plan with the local teachers union. It passed 91-46, with a veto-proof majority.

Last week, as the state senate prepared to vote on the bill, Governor Hogan called it “misguided and horrible” and vowed to veto it should it land on his desk. In a press conference, the governor claimed the bill “will make it nearly impossible for [Maryland] to save some of these persistently failing schools.”

Maryland’s state board of education also expressed strong opposition to the bill. Chester E. Finn, Jr., the vice president of Maryland’s school board and a Distinguished Senior Fellow at the Fordham Institute, a conservative education think tank, called the passage of the Protect Our Schools Act “painful.”

Market-driven education reform organizations also moved into high gear to defeat the bill. MarylandCAN, a reform advocacy group, released a statement saying the bill “hurts children.” The head of Maryland’s Alliance of Public Charter Schools said it would be “most damaging for students within Maryland’s minority and low-income populations who need every opportunity available to them to lower the achievement gap—not being held to lower sub-par standards.”

The bill’s supporters rallied to its defense. On Monday, the Maryland State Education Association (MSEA) put out a statement that said, “while the Protect Our Schools Act is supported by teachers, the Maryland PTA, civil rights groups—including the ACLU of Maryland and CASA de Maryland—and leading education scholars, it is only opposed by national school privatization advocates and Governor Hogan’s administration.”

Linda Darling-Hammond, a Stanford education professor and the president of the Learning Policy Institute, sent a letter to the Maryland state Senate last week to voice her support for the bill. “While academic outcome indicators are important, it is equally important to include indicators of student and school conditions that predict outcomes, so that educators have information to use for diagnostic purposes and improvement decisions,” she wrote. “By including school quality indicators [such as access to effective teachers and college-ready coursework] and using them in meaningful ways, parents, educators, and education stakeholders can have a richer understanding of what is going on in a school and what is fostering or delaying its success.”

Pedro Noguera, a professor at UCLA’s graduate school of education, also sent a letter to the senate expressing support for the bill, saying he felt it would provide Maryland with “the strong accountability system that it needs and enable it to be positioned to monitor school and student performance, and draw attention to inequities in learning opportunities that research has shown obstruct effort to close achievement gaps.”

Education reform groups opposed to the bill argue that it will have the opposite effect, actually obfuscating information about achievement gaps and inequities.

On Tuesday morning, the Maryland Senate passed the Protect Our Schools Act with a final vote of 32-15. The House concurred Tuesday night, also with a veto-proof margin, and it now heads to Larry Hogan.

Teacher unions and other education advocates who favor the bill have been stressing that the Protect Our Schools Act serves as a preemptive measure against school privatization, particularly since Trump and Education Secretary Betsy DeVos, both advocates of charters and vouchers, now guide federal policy. The MSEA also claims that Hogan has ignored their efforts to collaborate on school improvement.

“Since the day after his election, we’ve reached out to the governor repeatedly to try and put partisanship aside and work with him on reducing over-testing and other education issues,” says MSEA’s communication director, Adam Mendelson. “We’re still waiting on him to return our calls and include public educators’ voices in his policy development.”

How far Hogan will go in fighting the Democratic-controlled legislature over school reform remains an open question. Despite his statewide popularity, the Republican governor is expected to face a tough reelection battle in 2018, and Maryland voters express strong support for public education.

The Washington Post recently found that 41 percent of registered voters said they’d support Hogan for a second term, down from 46 percent in September. Maryland went for Hillary Clinton in the 2016 presidential election by 26 points.

Advertisements

Public Education under Trump

Originally published in The American Prospect winter 2017 issue.
—–

On November 8, 2016, the man who vowed to be “the nation’s biggest cheerleader for school choice” won the presidential contest. About two weeks later he announced that Betsy DeVos, a billionaire Republican donor who has aggressively lobbied for private-school vouchers, online education, and for-profit charter schools, would serve as his education secretary. In early December, Jeb Bush told an audience of more than 1,000 education reformers in Washington, D.C., that he hoped “there’s an earthquake” in the next few years with respect to education funding and policy. “Be big, be bold, or go home,” he urged the crowd.

To say education conservatives are ecstatic about their new political opportunities would be an understatement. With Republicans controlling the House and Senate, a politically savvy conservative ideologue leading the federal education department, a vice president who earned notoriety in his home state for expanding vouchers, charters, and battling teacher unions, not to mention a president-elect who initially asked creationist Jerry Falwell Jr. to head up his Department of Education, the stars have aligned for market-driven education advocates.

Donald Trump neither prioritized education on the campaign trail, nor unveiled detailed policy proposals, but the ideas he did put forth, in addition to his selection of Betsy DeVos, make clear where public education may be headed on his watch. And with a GOP Congress freed from a Democratic presidential veto, conservative lawmakers have already begun eyeing new legislation that just a few months ago seemed like political pipedreams.

Many aspects of education policy are handled at the state and local level, of course, but Republicans will govern in 33 states, and Trump will have substantial latitude to influence their agenda. The next few years may well bring about radical change to education.

School Choice

“President-elect Trump is going to be the best thing that ever happened for school choice and the charter school movement,” former New York Mayor Rudy Giuliani has proclaimed. “Donald is going to create incentives that promote and open more charter schools. It’s a priority.”

Giuliani’s comments reflect the enthusiasm that Trump expressed about choice and charters while campaigning for president. During a March primary debate, Trump said charters were “terrific” and affirmed they “work and they work very well.” A few months later he traveled to a low-performing for-profit charter school in Cleveland to say he’d invest $20 billion in federal money to expand charters and private-school vouchers as president. His campaign has not outlined where the money would come from, but suggests it will be accomplished by “reprioritizing existing federal dollars.”

Trump’s ambitions will likely be aided by his vice president-elect, Mike Pence, who worked vigorously to expand charter schools and vouchers while serving as Indiana’s governor. Pence loosened the eligibility requirements for students to obtain vouchers, and eliminated the cap on voucher recipients. Today, more than 30,000 Indiana students—including middle-class students—attend private and parochial schools with public funds, making it the largest single voucher program in the country. Pence also helped double the number of charter schools in his state; he increased their funding and gave charter operators access to low-interest state loans for facilities.

In the House and Senate, Republicans are eager to expand Washington, D.C.’s private-school voucher program, which has paid for about 6,500 students to attend mostly religious schools since the program launched in 2004. “I think [the Republican Congress and new administration] could eventually turn D.C. into an all-choice district like we see in New Orleans,” says Lindsey Burke, an education policy analyst at the right-leaning Heritage Foundation.

Congress also allocates $333 million per year to the federal charter school program, and groups like the National Alliance for Public Charter Schools are calling for that number to rise to $1 billion annually. Martin West, an education policy professor at Harvard’s Graduate School of Education, noted that to the extent the federal charter school program is well funded, states will continue to feel pressure to position themselves competitively for those dollars.

Conservative leaders at the state level are also looking to expand private-school vouchers and so-called education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, in addition to private-school tuition. At the Washington conference where Jeb Bush keynoted, panelists spoke enthusiastically about setting up vouchers or education savings accounts in all 50 states. On the campaign trail, Trump called for expanding private-school vouchers for low-income students, but his vice president-elect and his nominee for education secretary both support giving vouchers to middle-class families, too.

Congressional Republicans may also try to establish federal tax-savings accounts for K–12, which are similar to the 529 plans that already exist for higher education, and which mainly benefit well-off families. They also may push for federal tax credit scholarships, which would provide tax relief to individuals and businesses that help low-income children pay for private school.

In a sense, the George W. Bush and Barack Obama administrations softened the ground for a federally incentivized expansion of vouchers and other forms of privatization. In the bipartisan deal that led to the enactment of No Child Left Behind in 2002, Bush and Democrats led by Senator Edward Kennedy traded federal standards for more federal funding. The subtext was the Republican narrative that public schools were failing. This in turn led to the era of standardized testing and punitive measures against “failing” schools. Later, by appointing former Chicago Public Schools Superintendent Arne Duncan to lead the Education Department, and passing over such progressive reformers as Linda Darling-Hammond, Obama sided with those who sought measures like the nationalization of academic standards. The new backlash from conservatives against testing and the Common Core should not be interpreted as a rejection of a federal role. The right loves it when Washington intervenes—if it serves the right’s purposes.

The Department of Education

Trump has boasted that he would reduce the size of the federal government, and his DeVos-led Department of Education is one likely place he’ll start. Though threatening to dismantle that federal agency is a long-standing Republican tradition, surrogates say it is more likely that Trump will try and “starve” the department, and downsize its responsibilities, rather than kill it outright.

In October, Carl P. Paladino, a New York real-estate developer who was briefly considered for education secretary, took to the stage on Trump’s behalf at a national urban education conference and said the department’s Office for Civil Rights—which oversees initiatives like tackling college sexual assault and reforming school discipline—was spewing “absolute nonsense.”

Obama’s Education Department has given unprecedented attention to reducing racial disparities in school discipline, issuing the first set of national guidelines in 2014 and making clear that it would hold districts accountable for discriminatory practices. Policy experts think these efforts will fall quickly by the wayside in the coming years.

In a press conference following Trump’s victory, David Cleary, the chief of staff for Republican Senator Lamar Alexander, who chairs the Senate Committee on Health, Education, Labor and Pensions, said his boss believes the Office for Civil Rights should be reined in. “There will be aggressive oversight from Congress to make sure it shrinks back to its statutory authority and responsibilities,” Cleary said.

Another major threat to the Education Department is a significant loss of institutional knowledge. Politico reported that the agency is already experiencing a loss of morale since the election, and bracing for a serious brain drain: Many veteran employees who have served for decades, in addition to younger staff who entered government under Obama, are considering leaving because they don’t want to work for a President Trump.

Common Core

One crowd-pleasing element of candidate Trump’s stump speech was his promise to “kill” Common Core—the standards launched in 2009 that lay out what all K–12 students are expected to learn in English and math. The standards, which were created by a coalition of state governors, and incentivized by the Obama administration through the federal Race to the Top program, have been a flashpoint for conservatives, who see them as a threat to “local control.” Trump vowed to eliminate Common Core through the so-called School Choice and Education Opportunity Act—part of the legislative agenda he says he’ll focus on during his first 100 days. DeVos now stresses that she does not support Common Core, although an organization she founded—the Great Lakes Education Project, which she also funded and served as a board member for—strongly backed the standards in 2013.

While there are limits to what Trump and DeVos could do to end the Common Core standards (they are state standards, after all), Trump’s executive bully pulpit could certainly help embolden Common Core opponents on the local level.

Still, Catherine Brown, vice president of education policy at the Center for American Progress, is not so worried about the future of the national education standards. “I don’t even think Donald Trump knows what the Common Core is,” she says. And despite candidate Trump’s demagoguery, Brown points out that states haven’t really abandoned them, even in more conservative parts of the country. “To the extent that states have changed their standards, they basically renamed them and kept the basic content,” she says.

Teachers Unions

This past year, public-sector unions faced an existential threat from Friedrichs v. California Teachers Association, a Supreme Court case seeking to overturn a 40-year-old ruling that required public employees represented by a union to pay fees to cover the union’s bargaining and representation costs, even if they do not pay full membership dues. Five of the nine justices were clearly primed to rule against the so-called “agency fees” and upend decades of legal precedent, but Justice Antonin Scalia unexpectedly died in February, before the Court could rule. The case ended up in a 4–4 tie, leaving the law, and collective bargaining, in place.

Now that the Republican Senate has refused to hold a vote on Obama’s appointment of Judge Merrick Garland, Trump will nominate a conservative Scalia successor to the Court. With a number of Friedrichs look-alike cases headed to the Supreme Court, it’s a near certainty that a reconstituted majority of five conservative justices will strike down agency fees, which could considerably reduce the resources available to the American Federation of Teachers and the National Education Association—two of the nation’s largest unions. Were that not trouble enough, the massive support that the AFT and NEA gave to Hillary Clinton’s campaign is not likely to endear them to a president with a well-known penchant for revenge.

Every Student Succeeds Act

At the end of 2015, Congress passed the Every Student Succeeds Act (ESSA), the successor to the controversial Bush-era No Child Left Behind Act, which tied federal funding to school performance. The new law is set to take full effect during the 2017–2018 school year. While there was broad recognition that ESSA marked a positive step forward from the test-and-punish regime that had reigned for 13 years under No Child Left Behind, a diverse coalition of civil-rights groups has worried that its replacement, which substantially reduced the federal government’s role in public education, will not do enough to hold states accountable for the success of racial minorities, students with disabilities, and English language–learners. “The hard-learned lesson of the civil rights community over decades has shown that a strong federal role is crucial to protecting the interests of educationally underserved students,” wrote the Leadership Conference on Civil and Human Rights in a letter to Capitol Hill during the ESSA negotiations.

For the past year, the Obama administration worked to draft regulations that would help maintain some level of federal accountability for student learning and funding equity, particularly for disadvantaged students. These executive-level regulations, which have been controversial among congressional Republicans, are likely to be abandoned, or weakened, under President Trump.

One policy that congressional Republicans might push for under a President Trump is known as “Title I portability,” which would allow states to use federal dollars earmarked for low-income students to follow students to the public or private school of their choice. While still a candidate, Trump brought in Rob Goad, a senior adviser to Representative Luke Messer, an Indiana Republican, to help him flesh out some school-choice ideas. Messer co-sponsored a bill during the ESSA negotiations that would have launched Title I portability, but Obama threatened to veto any version of the law that contained it. A White House report issued in 2015 said that Title I portability would direct significant amounts of federal aid away from high-poverty districts toward low-poverty ones, impacting such districts as Chicago, Detroit, Los Angeles, and Philadelphia particularly hard. Conservatives may see a more politically viable route to push this policy under Trump.

Brown of the Center for American Progress doesn’t think Congress will likely pursue Title I portability, however, in part because it has a lot of other legislative priorities to attend to. “The ink is barely dry on ESSA; states haven’t yet submitted their plans. I think [portability] is probably dead on arrival, but maybe six years from now,” she says. Even then, Brown thinks the policy will never be all that popular, since huge swaths of the country lack many school options, making them poor candidates for private-school vouchers.

But other education experts say that the lack of brick-and-mortar schools in rural communities just means that the door could open more widely for for-profit virtual schools, which DeVos has strongly supported. In 2006, Richard DeVos, her husband, disclosed that he was an investor in K12 Inc., a national for-profit virtual charter school company that has since gone public. As of mid-December, Betsy DeVos had not clarified whether her family still holds a financial stake in the for-profit education sector.

Higher Education

Trump, who founded the now defunct for-profit college Trump University, recently agreed to pay $25 million to settle a series of lawsuits alleging fraud. Sara Goldrick-Rab, a sociologist at Temple University who studies college affordability, predicts America will be “open for business” under President Trump when it comes to promoting for-profit colleges. “This means cutting regulation and oversight, and defunding public higher education so that students view for-profits as a good deal,” she wrote on her blog following the election. The Higher Education Act, which governs the administration of federal student aid programs, is also up for reauthorization in 2017.

Trump didn’t devote much time while campaigning to talking about colleges and universities, but he did say in an October speech that he’d look to address college affordability by supporting income-based repayment plans, going against many Republicans who say such initiatives are fiscally reckless and create incentives to acquire too much higher education. Conservatives have also proposed rolling back Obama administration reforms that federalized all new student loans and applied stricter regulations, particularly to for-profit institutions. If President Trump does ultimately re-privatize student loans, consumer protections would likely disappear, and the cost of borrowing would rise.

University leaders are also worrying about what a Trump administration could mean for research funding. The government is likely to cut back on investments on budgetary grounds, but also on ideological grounds, since universities tend to be seen as liberal enclaves. Experts say that non-ideological scientific research is particularly vulnerable. House Republicans, led by Representative Lamar Smith, who chairs the House Science, Space and Technology Committee, have tried before to cut federal funding for social sciences and climate and energy research, and having a president who refers to global warming as a hoax “created by and for the Chinese” doesn’t augur well for federal research investments.

Moreover, as the president-elect frequently rails about political correctness, higher education leaders worry that a Trump administration will not look kindly on student free speech and protest. Ben Carson, who was briefly considered for Trump’s education secretary, said that if he were in control he would repurpose the department to monitor colleges and universities for “extreme bias” and deny federal funding to those judged to have it. Decrying alleged campus bias is a staple of “alt-right” (read: white nationalist) media outlets like Breitbart, whose chief, Steve Bannon, will be Trump’s strategic adviser and senior counselor.

The Path Forward for Progressives

For a week following the election, it wasn’t clear how exactly the liberal groups that backed Obama’s education reform agenda—Common Core standards, test-based accountability, and charter schools—would respond to their new choice-friendly president. The fact that the school reform agenda has long had bipartisan backing has always been one of its strongest political assets.

As pundits tried to guess whom Trump would pick for various cabinet-level positions, rumors started to float that Trump might be eyeing Michelle Rhee, the controversial former D.C. Public Schools chancellor, or Eva Moskowitz, the founder and CEO of Success Academy Charter Schools in New York City, for education secretary. Both women back the Common Core standards, and are broadly revered among Democratic school reformers.

But on November 17, just over a week after the election, the president of Democrats for Education Reform, Shavar Jeffries, issued a strongly worded statement urging Democrats to refuse to accept an appointment to be Trump’s secretary of education. “In so doing, that individual would become an agent for an agenda that both contradicts progressive values and threatens grave harm to our nation’s most vulnerable kids,” Jeffries said. He condemned Trump for his plans to eliminate accountability standards, to cut Title I funding, to reduce support for social services, and for giving “tacit and express endorsement” to racial, ethnic, religious, and gender stereotypes, and he called on the president-elect to disavow his past statements.

Shortly thereafter, Moskowitz announced that she would “not be entertaining any prospective opportunities” in the administration, but defended the president-elect, saying there are “many positive signs” that President Trump will be different than candidate Trump. His daughter, Ivanka Trump, took a tour of a Success Academy charter in Harlem later that week. Rhee, following a meeting with Trump a few days later, issued a statement saying she would not pursue a job in Trump’s administration but that “[w]ishing for his failure” would amount to “wanting the failure of our millions of American children who desperately need a better education.”

The equivocating didn’t end there. Democrats for Education Reform soon walked back their original declaration of opposition to Trump. In a statement sent to the group’s supporters, Jeffries wrote that DFER was not saying Democrats should not work with Trump on education, but just that no Democrat should work for him as secretary of education. “[W]e draw a distinction between working with and working for Trump,” Jeffries wrote. “Where appropriate, we will work with the Administration to pursue policies that expand opportunity for kids, and we will vocally oppose rhetoric or policies that undermine those opportunities.”

In a political climate where teachers-union strength may dramatically diminish, opposition to Trump’s agenda from liberals who supported Obama’s education reforms could be an important deterrent to Trump’s rightward march on education. But with DFER already signaling that it’s open to working with Trump, with high-profile reformers like Moskowitz and Rhee also giving him a public nod of approval, and since some of the same billionaires who fund the charter school movement also back the president-elect, the chances aren’t great that Democratic education reformers will staunchly oppose Trump’s school reform agenda.

Randi Weingarten, the president of the American Federation of Teachers, is under no illusions about the enormous challenges that loom for the future of public education. Yet she notes that over the past half-decade, educators and their unions have worked with their communities like never before. “If Donald Trump opts for privatization, destabilization, and austerity over supporting public education and the will of the people,” she says, “well, there will be a huge fight.”

New Education Law Sparks Civil Rights Concerns

Originally published in The American Prospect on January 8th, 2016.
—-

The sweeping new federal education law known as the Every Student Succeeds Act (ESSA) has drawn praise from educators and lawmakers who had become increasingly frustrated with No Child Left Behind, the controversial federal education law on the books since 2002.

But one group has voiced reservations about the new law: civil rights advocates. Civil rights leaders have praised the law as an improvement over the No Child Left Behind Act, which tied federal funding with school performance. But they have voiced concerns that ESSA, which largely leaves accountability goals up to the states, could leave marginalized students even further behind.

Their big fear is that under the new law, states may not hold schools truly accountable for poor performance, making it harder to close the “achievement gap” for disadvantaged students. Despite all of the No Child Left Behind Act’s flaws, education researchers found that it led to small but substantial gains in student achievement, particularly for black, Hispanic, and low-income students.

The new law has placed two key progressive constituencies—unions and civil rights groups—at odds. Unions are celebrating the return of power to states and local districts, and an end to continuous testing mandates. But a broad coalition of civil rights groups that includes the Southern Poverty Law Center and the NAACP, has cautioned that the Every Student Succeeds Act must not let states off the hook for failing to educate the nation’s most vulnerable students.

Civil rights have long been at the heart of American federal education policy. ESSA reauthorizes the Elementary and Secondary Education Act, a civil rights law originally passed in 1965 that was designed to raise the academic achievement of marginalized student groups, including the poor, the disabled, racial and ethnic minorities, and non-native English speakers.

It took years for Congress to pass the Every Student Succeeds Act, and throughout the process civil rights groups worked hard to ensure that their concerns were being heard. While ESSA expands on important reporting requirements first imposed by No Child Left Behind, the new law does not require states to respond to inequities if data reveal that they exist.

“Data is always an important first step, but what we wanted was a requirement that when there are disparities, the schools, districts, and states have to take action,” explains Liz King, the director of education policy at the Leadership Conference on Civil and Human Rights. (The law also does not require states to disaggregate Asian American and Pacific Islander data by ethnicity, which civil rights advocates worry will obscure important differences.)

Most importantly, civil rights organizers voice serious concerns that states will now essentially hold themselves accountable. Under No Child Left Behind it was the federal government, not the states, that had the last word on school performance.

“The hard-learned lesson of the civil rights community over decades has shown that a strong federal role is crucial to protecting the interests of underserved students,” wrote the Leadership Conference on Civil and Human Rights in a letter to Capitol Hill last year. While the law includes some measures that will help advocates push states and districts to ensure that disadvantaged students don’t slip through the cracks, some experts say it will be harder for the federal government to intervene in the event that states fail to act.

One specific equity measure that civil rights groups tried and failed to win during ESSA negotiations was the closing of the so-called “comparability loophole.” In order for states to access Title I funds, which are federal dollars that go to high-poverty districts, they have to demonstrate that they’re providing “comparable” levels of services to both Title I schools and more affluent schools. The new law, like the old law, allows states and districts to exclude real teacher salary costs from expenditure calculations. That means that a district could be considered “comparable” if it has a bunch of novice, inexpensive teachers in one school, and many highly paid veteran teachers in another.

According to a 2015 report issued by the Center for American Progress, a liberal think tank, 4.5 million students attend inequitably funded Title I schools—receiving about $1,200 less per student on average than wealthier schools in their districts. (Closing the loophole would only address intra-district disparities, but advocates say that it’s an important step for educational equity nonetheless.)

Historically, teachers unions have been wary of efforts to close the loophole, fearing that districts might respond by making veteran teachers transfer involuntarily to more disadvantaged schools. In recent years, however, unions have softened their stance, recognizing that districts could respond to inequities not through forced transfers, but by investing in disadvantaged schools in other ways. Still, the National Education Association and the American Federation of Teachers did not push as hard to close the loophole during ESSA negotiations as civil rights groups did.

Nevertheless, civil rights groups did win some of their key demands.

Although Congress did not close the “comparability loophole,” districts will now be required to report actual expenditure data at the school level, something civil rights leaders say is a huge improvement over No Child Left Behind. (Other data reporting requirements have also been expanded.) Civil rights advocates hope that this new level of transparency will go a long way towards highlighting funding inequities, and pave the way for further reforms.

States will now also have to do more to help students become proficient in English, and there are more accountability measures in place to ensure schools are making progress toward that goal.

“This was a very important goal for us; research suggests the longer you’re identified as an English-language learner, the less likely you are to graduate high school,” says Brenda Calderon, ‎the Education Policy Analyst at National Council of La Raza, a Latino advocacy organization.

In addition, no more than 1 percent of students with disabilities may now be given so-called alternative assessments, a form of test less rigorous than what the general student population takes. This was a key priority for disability rights advocates, who said too many students with special needs were being separated from their peers without good reason. Taking alternative assessments can have negative consequences, like preventing disabled students from graduating with a regular high school diploma.

The law also offers some additional protections for homeless children and children in foster care, expands opportunities for children in the juvenile justice system, and includes measures to help schools deal with emotional trauma.

The big challenge for civil rights groups during negotiations was that Republicans control both the House and Senate. For years, conservatives have been seeking to reduce the federal government’s role in education policy, and to a large extent, they succeeded. It didn’t help the civil rights coalition that teacher unions largely agreed with the GOP on the need to shift power back to the states.

Over the next two years, legislators and advocates on the state and federal levels will work through a regulatory process to flesh out what the requirements of the new education law actually mean.

“What we’re hoping for is some real state and federal leadership, because it doesn’t serve anyone well if we wait until things aren’t working,” says King, of the Leadership Conference on Civil and Human Rights. “We want to make sure there are affirmative steps to ensure there is equity. We’re planning to help influence the regulatory process, to shape what the terms in the law actually mean, and to inform guidance about how to comply with the law.”

Civil rights groups are bracing for what they say will be a lot of challenging fights in all 50 states. The Every Student Succeeds Act will require parents and advocates to continually pressure states and districts to make sure disadvantaged students get the same education as their more-privileged peers. It’s an uphill battle, civil rights advocates acknowledge.

Yet along with conservatives and teachers unions, civil rights organizers have praised the new law’s expanded data reporting requirements, the continuation of annual student testing in third through eighth grades, and the reduction of harsh, test-linked penalties. Everyone, for now at least, agrees that the new law is an improvement over No Child Left Behind.

Obama’s Mixed Record on School Integration

Originally published in The American Prospect on August 31, 2015.
——
As Congress debates competing revisions of the No Child Left Behind Act over the next several weeks, lawmakers are unlikely to spend much time looking at the growing problem of segregated schools. Despite strong academic and civic benefits associated with integrated schooling, and a unanimous Supreme Court decision which ruled that “separate educational facilities are inherently unequal”—American public schools have resegregated quickly by race and class over the past two-and-a-half decades.

Many advocates had hoped to see the Obama administration take steps to address rising school segregation, but so far its record has not been great. While the Department of Education has paid lip service to the need to promote integrated schools, and has included modest diversity incentives within a handful of federal grants, it refused to use larger education initiatives like Race to the Top to encourage states and districts to prioritize school diversity. In some cases, the department actually pushed policies that made segregation worse.

The Obama administration came to power at an interesting time for the integration movement. With the help of Reagan-appointed judges and justices, court decisions in the 1990s absolved many local districts from their legal obligations to desegregate schools. Between 1988 and 2006, the number of black students attending majority-white schools dropped by 16 percentage points. Between 2000 and 2008, the number of schools where at least 75 percent of students qualified for free or reduced-meals—a proxy for poverty—jumped from 12 percent to 17 percent.

But many districts were also interested in racial and economic diversity, even if they weren’t legally required to promote it. And so various voluntary integration experiments began cropping up around the country. These new efforts seemed promising but quickly faced legal challenge. In a pivotal 2007 decision, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court rejected voluntarily desegregation plans in Seattle and Louisville, on the basis that their particular student assignment strategies relied too explicitly on race. But the Court did clarify that, under certain conditions, districts can use race-conscious measures to promote diversity. Justice Kennedy even endorsed specific strategies to do so, including magnet schools and interdistrict plans.

The years immediately following the Parents Involved decision sparked confusion, largely thanks to the Bush administration. While the majority of Supreme Court justices said districts could consider race in school assignments, the Bush administration posted a federal guidance that suggested only race-neutral means of pursuing integration would be legal.

In 2009, shortly after President Obama took office, a group of educators, policy advocates, and civil rights leaders came together under the banner of the National Coalition on School Diversity (NCSD) to try and push the new administration to take action.

“Our very first goal was to get the Department of Education to take down the guidance from the Bush administration, which told schools they could not promote racial and economic diversity,” said Phil Tegeler, executive director of the Poverty & Race Research Action Council and NCSD coalition member. Their efforts were ultimately successful. By December 2011, the department posted a new guidance, which affirmed the Supreme Court’s decision and listed various ways school districts could pursue voluntary integration.

Other NCSD efforts met less success. One of their primary objectives has been to get the Obama administration to prioritize school integration within their competitive federal grant programs. While Secretary of Education Arne Duncan has repeatedly said that he supports school diversity and wants to reduce racial isolation, his department has not, for the most part, translated such support into its competitive programs.

Despite NCSD’s urging, the department declined to use its largest grant, the $4 billion Race to the Top initiative, to promote racial diversity. Duncan argued that including incentives for voluntary integration would have been too difficult to get through Congress. He also said that when it comes to successful integration efforts, we can’t “force these kinds of things.”

In 2013, Richard Rothstein, a research associate at the Economic Policy Institute,responded strongly to Duncan’s arguments, pointing out that “no education secretary has been as deft as Arne Duncan in creating incentives—both carrots and sticks—to get states to follow his favored policies that are technically voluntary.” Duncan used incentives to get states to adopt Common Core standards, to promote after-school programs and early childhood education, and even within Race to the Top, incentives were used to encourage states to adopt teacher evaluation systems tied to student test scores. But in the case of school integration, Rothstein noted, suddenly Duncan sings a different tune.

“Only in this area, apparently, does Secretary Duncan believe that progress must be entirely voluntary, unforced by carrots and sticks,” Rothstein wrote. There have been plenty of opportunities to incentivize racial integration, such as rewarding states that prohibit all-white suburbs from excluding poor people through zoning ordinances, or withholding No Child Left Behind waivers from states that allow landlords to discriminate against families using federal housing vouchers. “Adoption of such ‘voluntary’ policies could make a contribution to narrowing the academic achievement gap that is so much a focus of Secretary Duncan’s rhetoric,” Rothstein said.

Despite a frustrating first term, desegregation advocates have seen some progress in the last couple years. The Department of Education recently began to include diversity as a funding priority in several of its smaller grant programs like the preschool development grants and its charter school grants; it also announced that magnet-type integration approaches are eligible for the school improvement grants (SIG) program.

While modest, these changes have led to some important new integration experiments. At the end of 2014, New York’s education commissioner, John King, helped launch a socioeconomic integration pilot program to increase student achievement using newly available federal SIG funds. King has since moved to the Department of Education, where he now serves as Arne Duncan’s senior advisor.

Other advocates have capitalized on the Department of Education’s 2011 guidance. David Tipson, executive director of New York Appleseed, says it was an absolute game-changer for his work in New York City. “Getting that correct interpretation, with some real practical guidance for school districts, I can’t even emphasize how important that was,” Tipson said. “There was a very deliberate effort to misconstrue the 2007 [Supreme Court] decision and put fear into many school officials across the country. Everything we’ve been able to do to promote school integration has come in the wake of getting that new federal guidance in place.” New York Appleseed, along with community stakeholders, sought to design a zoning plan that would help keep a school located within a gentrifying Brooklyn neighborhood integrated. Officials resisted at first, but they eventually relented after advocates presented them with the federal guidance. Thus at the beginning of the 2013-2014 school year, Brooklyn’s P.S. 133 became the first school in Bloomberg’s administration to foster a specific mix of students based on socioeconomic status and English proficiency. At the school’s ribbon-cutting ceremony, the city’s school chancellor said he believed their innovative admissions model could be replicated elsewhere.

While advocates of desegregation are happy to see the administration beginning to prioritize diversity within its grant programs, some feel these gestures are too little, too late.

In a letter sent to Secretary Duncan last July, NCSD noted that while the Department of Education has included preferences for diversity within some grant programs, in practice, the department has “consistently underemphasized” these incentives. Many grants still make no mention of diversity at all, and in cases where they do, officials tend to weigh other competitive priorities far more heavily, rendering the modest diversity incentives ineffective. For example, in one grant, applicants could earn an additional five points if their school was diverse, but applicants could earn twice as many bonus points if their school would serve a high-poverty student population

The only federal education initiative to significantly emphasize integration is the Magnet School Assistance Program (MSAP), a program first launched in 1976. However MSAP has limited impact today due to the small amount of federal funding it receives. Even though charters are far more likely than magnets to exacerbate segregation, the department gave MSAP $91.6 million in 2014, compared to the $248.2 million it gave the Charter Schools Program.

Advocates have not given up. Next month in D.C., the NCSD will be hosting a national two-day conference, bringing together scholars, educators, parents, students, and policymakers to continue, “building the movement for diversity, equity, and inclusion.” John King will be speaking on a panel there about the progress they’ve made, and further challenges they face on the federal level. NCSD hopes that King’s new role at the Department of Education will motivate the government to take integration efforts more seriously. The department’s press secretary, Dorie Nolt, told The American Prospect that “we’ve taken meaningful steps, and we want to do more.”

Yet this administration has fewer than 18 months left. And the next secretary of education could quite easily end even the modest progress that NCSD has fought for. “Promoting voluntary school integration is an area where the department has a lot of leeway to act on its own, in terms of trying to encourage state and local governments to prioritize diversity,” said Tegeler. “But that also means the next department has a lot of leeway to not act.”