Most teachers have heard it in the last year or two. It is apparently hardwired into all administrative training about new evaluation methods.
You will not live in Excellent (or above average or super-duper proficient or whatever language your state prefers). You will only visit. You will live in Mostly Pretty Okay (or whatever).
Imagine if we started out the year by telling our students, "You'll only get a couple of A's this year. You are never going to excel. You will only be mostly pretty okay the majority of the time." And you'll have to imagine it, because who would actually say that?! Not any Mostly Pretty Okay teacher, because we know that expectations matter. I tell my students every year that we are shooting for awesome. I tell them a gajillion times they can do this and they will be great. Because expectations matter.
Even Arne Duncan believes in expectations, to the point of imagining that great expectations can cure students of any disabilities they might have.
But for some bizarre reason, the US has adopted an approach to teacher evaluation that starts with the premise that the teaching staff will be usually Mostly Pretty Okay and rarely Great. How does that expectation lead us to excellence?
Districts that are operating with some sort of merit pay system only make matters worse. They can't afford-- literally cannot financially afford-- to have a staff of uniformly excellent teachers because they don't have the money to pay them all big-time quality pay. So those districts have an actual financial incentive to make sure that their teaching staff is Mostly Pretty Okay.
And so we flounder on in upside-down education world, where we talk about the need to foster and promote excellence in teaching while we structure the system to avoid and smother excellence. It's a reverse emperor's new clothes-- teachers appear clothed in excellence and the emperor insists that they are naked. The good news for students is that teachers will continue to produce excellence whether anybody in power claims they can see it or not.
Thursday, August 28, 2014
Mike Petrilli Interprets Reform Backlash (Part 1)
This week Mike Petrilli took a stab at interpreting some of the pushback on reformster programs in what we can hope is a step in his journey to a more enlightened opinion. The column is actually an excerpt from a speech that he delivered to the Oklahoma City Chamber of Commerce, which is interesting in that Chambers have not generally have not been open to a message of "Hey, we might have gotten a few things wrong on this ed reform thing."
More than a marketing miscalculation
Petrilli, to his credit, is not here to explain why those who are pushing back are deluded and wrong. Instead, he's asking reformsters to take a look in the mirror.
If we’re going to succeed over the long haul, we need to take a hard look not just at how we’re selling, but also at what we’re selling. We need to look at our reform agenda and ask ourselves: Is it working? Do the pieces fit well together? Does it diagnose the problem correctly and offer the right cures?
This is where we’ve made our biggest mistakes: getting the diagnosis wrong. Specifically, we have diagnosed all of our schools as having the same disease, and prescribed the same medicine for all of them.
Petrilli's first piece of analysis is that reformsters over-stated their case, suggesting that the US landscape was peppered with failing schools and a national system that needed to be creatively disrupted into oblivion and beyond. But Petrilli knows that his own kids go to a decent public school, and he suspects that most well-to-do parents feel the same. So when reformsters started to threaten to blow up those schools and build oppressive testing factories on top of the rubble, parents became cranky. (This is not a new insight for Petrilli-- check out Fordham's House of Cards parody in which Petrilli dupes a clueless Secretary of Education into shooting himself in the foot with a "white suburban moms" gaffe). No word on why low income parents also became cranky.
Mediocrity on the march
Petrilli's larger move in this piece is to downgrade the State of our Schools threat level from Defcon 2 to Defcon 4. It's not that all US public ed is a massive pile of disaster circling a great inexorable suck. No, US public ed is just mostly mediocre. There are very few great schools. That's our new Big Problem in Education.
How can we make sure that every professional in our building is excellent, always improving, and giving 110 percent?
I agree that "always improving" is a goal to shoot for. But Petrilli should know better than the 110% line, which is the pep talk equivalent of an amp that goes up to 11. No human being will ever "give 110%"
Most of us are now teaching under an evaluation system in which we are routinely cautioned that we won't live in "outstanding," but will only visit it occasionally, like a really expensive time-share that actually belongs to a rich uncle. We will live, we're repeatedly told, in "just pretty okay enough."
And Petrilli does dance around some of the definition and explanation of the alleged mediocrity. He suggests, for instance, that his son's elementary school has been neglecting history and science because they are complacent. I know plenty of schools that have cut back on science and history, and it has a lot less to do with complacency than with Not-on-the-test-itis.
The issue of challenging students is also a tricky one-- plenty of students will choose a comfortable A over a challenging B, and without any push from home, it's pretty hard to change that. I teach the most challenging class for juniors in my department, and every year, plenty of students choose not to be challenged. Not sure that's an indicator of school mediocrity.
Petrilli still believes that CCSS and "rigorous, aligned tests" are a solution. I remain convinced they are now part of the problem. But we do agree on this, with one exception:
What’s not a good fit for these middle class schools are policies that take power away from local school boards and local educators, such as a mandatory state curriculum or a formulaic system to evaluate teachers using a template created by a far-away state bureaucrat, and one that encourages teaching to the test.
Note that Petrilli says this is bad policy for middle class schools. I think it's bad policy in any school.
A two tiered system
On the one hand, Petrilli now makes a point that is rather huge coming from a reformster. He moves on to talking about high-poverty schools, and he says this:
From my experience, and from my examination of the data, most of even these schools are not “failing.” ... But on the whole, high poverty schools tend to be no better and no worse than the average school in the affluent suburbs. Their teachers work just as hard, the curriculum and methods they use are much the same.
So, high-poverty schools are not the victims of substandard staff and terrible teaching. Good to hear it.
But this takes us to the heart of Petrilli's point, and it's a dangerous and difficult point to address. Basically, here's how the argument breaks down. US public schools are mediocre. Middle-and-higher class students will be okay anyway, because they have access to resources that will get them where they want to go. But students from high-poverty schools can't settle for mediocre, because poverty puts them at too much of a disadvantage-- a disadvantage that schools have to make up for.
There are two ways (at least) to read this argument. The exceptionally bold one would be to read it as an argument that we should be focusing resources on high-poverty districts to ensure that those students have the best schools in the country. That would be awesome, but hard to sell, because there's no way to get around the reality that such a refocusing means collecting tax dollars from the well-to-do and pumping them into poverty-stricken schools.
The not-so-bold way to read this argument is that only poor students should have to suffer through all the reformster crap. Middle and upper class kids can have the school system their parents want for them, and poor kids can get the school system that bureaucrats and reformsters decide they should have in order to make up for their many failings.
So, which door will we choose
If you're wondering which reading Petrilli is advocating, take a look at this close-to-the-conclusion graf:
The most excellent urban schools in the country tend to be high performing No-Excuses charter schools that have the freedom and drive to obsess about excellence every day, to ensure that every adult in the building is top-notch and giving his or her all, to uphold high standards for student behavior and effort, and to create a culture of success. I’m doubtful that big bureaucratic districts can replicate that kind of school, and for that reason I think most big cities are going, ten or twenty years from now, to have systems dominated by charter schools, instead of school systems as we know them today. And if we can get the policies right and the accountability piece right, our kids will be better off for it.
So, charters. There are a few problems with Petrilli's solution.
First, the "success" of charters (whether they allow excuses or not) has been repeatedly shown to be illusory. Any public, private or charter school can make great numbers as long as they have the power to rid themselves of every under-achieving student.
Second, I agree that big bureaucratic districts are at a distinct disadvantage. But it's becoming rapidly clear that the typical charter of tomorrow (and probably today) is, in fact, part of a big corporate bureaucracy larger than any single school district. K12 is just one example of how the real money in charters is in massive scalability. Charters are going to be just about as nimble and responsive as the phone company.
Waiting for Part 2
So Petrilli has some new insights and ideas, and some of them are admirable and welcome, but they seem to be leading him to an old conclusion, a vision of districts where charters run most of the schooling, but public schools are still kept around because all those students who are run out of No Excuses charters have to be stuck somewhere (thereby keeping public schools in a perpetual state of failure).
I welcome Petrilli's evolution, and his willingness to consider the reformster need to look, not at their marketing, but at their product. I'm just hoping that step #2 in this journey of a thousand miles is forthcoming.
More than a marketing miscalculation
Petrilli, to his credit, is not here to explain why those who are pushing back are deluded and wrong. Instead, he's asking reformsters to take a look in the mirror.
If we’re going to succeed over the long haul, we need to take a hard look not just at how we’re selling, but also at what we’re selling. We need to look at our reform agenda and ask ourselves: Is it working? Do the pieces fit well together? Does it diagnose the problem correctly and offer the right cures?
This is where we’ve made our biggest mistakes: getting the diagnosis wrong. Specifically, we have diagnosed all of our schools as having the same disease, and prescribed the same medicine for all of them.
Petrilli's first piece of analysis is that reformsters over-stated their case, suggesting that the US landscape was peppered with failing schools and a national system that needed to be creatively disrupted into oblivion and beyond. But Petrilli knows that his own kids go to a decent public school, and he suspects that most well-to-do parents feel the same. So when reformsters started to threaten to blow up those schools and build oppressive testing factories on top of the rubble, parents became cranky. (This is not a new insight for Petrilli-- check out Fordham's House of Cards parody in which Petrilli dupes a clueless Secretary of Education into shooting himself in the foot with a "white suburban moms" gaffe). No word on why low income parents also became cranky.
Mediocrity on the march
Petrilli's larger move in this piece is to downgrade the State of our Schools threat level from Defcon 2 to Defcon 4. It's not that all US public ed is a massive pile of disaster circling a great inexorable suck. No, US public ed is just mostly mediocre. There are very few great schools. That's our new Big Problem in Education.
How can we make sure that every professional in our building is excellent, always improving, and giving 110 percent?
I agree that "always improving" is a goal to shoot for. But Petrilli should know better than the 110% line, which is the pep talk equivalent of an amp that goes up to 11. No human being will ever "give 110%"
Most of us are now teaching under an evaluation system in which we are routinely cautioned that we won't live in "outstanding," but will only visit it occasionally, like a really expensive time-share that actually belongs to a rich uncle. We will live, we're repeatedly told, in "just pretty okay enough."
And Petrilli does dance around some of the definition and explanation of the alleged mediocrity. He suggests, for instance, that his son's elementary school has been neglecting history and science because they are complacent. I know plenty of schools that have cut back on science and history, and it has a lot less to do with complacency than with Not-on-the-test-itis.
The issue of challenging students is also a tricky one-- plenty of students will choose a comfortable A over a challenging B, and without any push from home, it's pretty hard to change that. I teach the most challenging class for juniors in my department, and every year, plenty of students choose not to be challenged. Not sure that's an indicator of school mediocrity.
Petrilli still believes that CCSS and "rigorous, aligned tests" are a solution. I remain convinced they are now part of the problem. But we do agree on this, with one exception:
What’s not a good fit for these middle class schools are policies that take power away from local school boards and local educators, such as a mandatory state curriculum or a formulaic system to evaluate teachers using a template created by a far-away state bureaucrat, and one that encourages teaching to the test.
Note that Petrilli says this is bad policy for middle class schools. I think it's bad policy in any school.
A two tiered system
On the one hand, Petrilli now makes a point that is rather huge coming from a reformster. He moves on to talking about high-poverty schools, and he says this:
From my experience, and from my examination of the data, most of even these schools are not “failing.” ... But on the whole, high poverty schools tend to be no better and no worse than the average school in the affluent suburbs. Their teachers work just as hard, the curriculum and methods they use are much the same.
So, high-poverty schools are not the victims of substandard staff and terrible teaching. Good to hear it.
But this takes us to the heart of Petrilli's point, and it's a dangerous and difficult point to address. Basically, here's how the argument breaks down. US public schools are mediocre. Middle-and-higher class students will be okay anyway, because they have access to resources that will get them where they want to go. But students from high-poverty schools can't settle for mediocre, because poverty puts them at too much of a disadvantage-- a disadvantage that schools have to make up for.
There are two ways (at least) to read this argument. The exceptionally bold one would be to read it as an argument that we should be focusing resources on high-poverty districts to ensure that those students have the best schools in the country. That would be awesome, but hard to sell, because there's no way to get around the reality that such a refocusing means collecting tax dollars from the well-to-do and pumping them into poverty-stricken schools.
The not-so-bold way to read this argument is that only poor students should have to suffer through all the reformster crap. Middle and upper class kids can have the school system their parents want for them, and poor kids can get the school system that bureaucrats and reformsters decide they should have in order to make up for their many failings.
So, which door will we choose
If you're wondering which reading Petrilli is advocating, take a look at this close-to-the-conclusion graf:
The most excellent urban schools in the country tend to be high performing No-Excuses charter schools that have the freedom and drive to obsess about excellence every day, to ensure that every adult in the building is top-notch and giving his or her all, to uphold high standards for student behavior and effort, and to create a culture of success. I’m doubtful that big bureaucratic districts can replicate that kind of school, and for that reason I think most big cities are going, ten or twenty years from now, to have systems dominated by charter schools, instead of school systems as we know them today. And if we can get the policies right and the accountability piece right, our kids will be better off for it.
So, charters. There are a few problems with Petrilli's solution.
First, the "success" of charters (whether they allow excuses or not) has been repeatedly shown to be illusory. Any public, private or charter school can make great numbers as long as they have the power to rid themselves of every under-achieving student.
Second, I agree that big bureaucratic districts are at a distinct disadvantage. But it's becoming rapidly clear that the typical charter of tomorrow (and probably today) is, in fact, part of a big corporate bureaucracy larger than any single school district. K12 is just one example of how the real money in charters is in massive scalability. Charters are going to be just about as nimble and responsive as the phone company.
Waiting for Part 2
So Petrilli has some new insights and ideas, and some of them are admirable and welcome, but they seem to be leading him to an old conclusion, a vision of districts where charters run most of the schooling, but public schools are still kept around because all those students who are run out of No Excuses charters have to be stuck somewhere (thereby keeping public schools in a perpetual state of failure).
I welcome Petrilli's evolution, and his willingness to consider the reformster need to look, not at their marketing, but at their product. I'm just hoping that step #2 in this journey of a thousand miles is forthcoming.
Wednesday, August 27, 2014
PARCC and Test Prep
When PARCC wrote a press release earlier this month addressing some testing concerns, most commentators focused on this quote:
“High quality assessments go hand-in-hand with high quality instruction based, on high quality standards,” said Laura Slover, the Chief Executive Officer of the PARCC nonprofit. “You cannot have one without the other. The PARCC states see quality assessments as a part of instruction, not a break from instruction.”
It's a noteworthy quote, given its baldfaced admission that testing, curriculum, and the standards are all of a piece. The connection between all the parts is not a surprise, but reformsters rarely divert from the standard story of separate lives for their reformy wares.
But plenty of folks have hit that point, and I don't want you to miss this quote that appears a bit further down the page.
“The PARCC assessment system is a new way of testing that reduces time spent on ‘test prep,’ because the only way to prepare for these more sophisticated assessments is through good teaching and learning all year long," Slover said.
That, in one short sentence, attempts the bank shot of changing the definitions of both test prep and good teaching by throwing them into a big cauldron in which they can smush together.
"Test prep" is just "good teaching," and "good teaching" is that which gets students ready for the test. Which is of course what we usually call "test prep."
“High quality assessments go hand-in-hand with high quality instruction based, on high quality standards,” said Laura Slover, the Chief Executive Officer of the PARCC nonprofit. “You cannot have one without the other. The PARCC states see quality assessments as a part of instruction, not a break from instruction.”
It's a noteworthy quote, given its baldfaced admission that testing, curriculum, and the standards are all of a piece. The connection between all the parts is not a surprise, but reformsters rarely divert from the standard story of separate lives for their reformy wares.
But plenty of folks have hit that point, and I don't want you to miss this quote that appears a bit further down the page.
“The PARCC assessment system is a new way of testing that reduces time spent on ‘test prep,’ because the only way to prepare for these more sophisticated assessments is through good teaching and learning all year long," Slover said.
That, in one short sentence, attempts the bank shot of changing the definitions of both test prep and good teaching by throwing them into a big cauldron in which they can smush together.
"Test prep" is just "good teaching," and "good teaching" is that which gets students ready for the test. Which is of course what we usually call "test prep."
Law Professor Says Duncan's Actions Un-Constitutional
An upcoming article in the Vanderbilt Law Review argues that the administration's waiver program is both illegal and a very, very bad precedent. University of South Carolina law professor Derek W. Black has written articles about the intersection of federal power and school law before, but none quite as feisty as "Federalizing Education By Waiver." And folks have questioned the legality of Duncan's waivers all along, but this takes that game to a whole new level.
Black opens with one of the most concise summaries of the current reformster wave you'll ever see
Two of the most significant events in the history of public education occurred over the last year. First, after two centuries of local control and variation, states adopted a national curriculum. Second, states changed the way they would evaluate and retain teachers, significantly altering teachers’ most revered right, tenure. Not all states adopted these changes of their own free will. The changes were the result of the United States Secretary of Education exercising unprecedented agency power in the midst of an educational crisis: the impending failure of almost all of the nation’s schools under the
No Child Left Behind Act (NCLB). The Secretary invoked the power to impose new conditions on states in exchange for waiving their obligations under NCLB....As a practical matter, he federalized
education in just a few short months.
This allows the kibbitzing to start immediately in response. Black does not distinguish at all between Common Core Standards and a national curriculum, a distinction without a difference that reformsters have fought hard to maintain. Nor will reformsters care for the assertion that states did not all adopt reform measures of their own free will. But all of that background in the first paragraph of the article is simply setting the stage for Black's main point.
This unilateral action is remarkable not only for education, but from a constitutional balance-of-power perspective. ... Yet, as efficacious as unilateral action through statutory waiver might be, it is unconstitutional absent carefully crafted legislative authority. Secretary Duncan lacked that authority. Thus, the federalization of education through conditional waivers was momentous, but unconstitutional. [emphasis mine]
I should note that all of his material comes heavily laden with footnotes.
There follows a more detailed recap of the Tale of NCLB and Creeping Federalism.
Once upon a time, Congress created NCLB which kept the line on states' rights by making the states accountable for educational results. Scholars called it "cooperative federalism" and it was a new role for the feds, but a limited one. But NCLB was flawed, and as early as 2008, Congress and the President were looking to stop the train. The President proposed a fix in 2010, but Congress was not having it. However, NCLB came with its own magic beans-- the Sec of Ed had the power to waive noncompliance consequences for the states.
The Sec of Ed broke out the magic beans, but he said they will come at a price-- a price, it turns out, remarkably identical to the 2010 proposal ideas. And here's the thing about that 2010 blueprint-- it was proposed as a way to take education in a completely different direction, away from NCLB.
That means that the waiver requirements were decidedly NOT an outgrowth of the underlying legislation, and were in fact meant to bury it, not to save it. That means that waivers took us into a magical new land of Not Actually Legal.
Specifically, it assaults the magical fairies of the Spending Clause in these two ways. 1) You can't use federal money to change the rules that the money is attached to and 2) Congress can't use federally funded programs to coerce states into adopting federal policies. And so it's time to break out the magic wands and zap some naughty federal fairies.
There's not a lot of scholarship about this web of fine legal detail, and so Black sets out to fill in the gap with four very erudite and legally sections of the article. I am going to summarize them in very non-legally ways, and any damage I do to Black's arguments is on me, not him.
PART I: No Changing the Rules
When the feds pass a law, they have to lay out all the rules that do and will apply to that law. You can't pass a law, start folks working under it, and then years later announce, "Oh, yeah, and by the way, we've changed this law about making cheese sandwiches so that it also covers sloppy joes, and also, if you don't go along with us on this, we get to take your car." Also, you can't suddenly say, "We've given my brother-in-law the power to judge your sloppy joes."
Conditions for receiving federal fund must be "unambiguous" and non-coercive. Also, you can't suddenly delegate Congressional authority to an agency of the Executive branch.
There's not a lot of constitutional case law related to waivers, but Black is pretty sure that insufficient notice of waiver conditions as well as "leverage and surprise at the point of waiver" (wasn't that an Alan Parson's Project album?) are problematic. Even more problematic is the issue of an agency of the federal government using waiver conditions to rewrite laws passed by Congress. And then he takes a few pages to explain how these issues should be navigated.
PART II: Using NCLB Waiver To Impose New Policy
If you're going to understand why this was bad, it helps to understand how it happened. The smoking gun for Black is the President's Blueprint for Reauthorizing the Elementary and Secondary Education Act. He is painstakingly specific in this (reading this 51 page article has helped me remember why I'm not a lawyer), but the upshot seems to be this:
The President said quite plainly that his blueprint was meant to erase, replace, and supersede No Child Left Behind. So when the same requirements appear in the waivers, that makes it hard to argue that the waivers are meant to conform with and help preserve NCLB. Put another way, a waiver cannot legitimately be based on replacing the waived law with some other law entirely. It's like those movies where federal agents offer a criminal release from jail only if he'll steal something for them-- it may be cool drama, but it is in fact coercive and ultimately illegal.
PART III: The Constitutional Flaws of NCLB Waivers
The Constitution does not give agencies (executive branch) the power to rewrite laws (legislative branch). They have some limited legal power to do waivery things, but only to the extent that the waivery things are described in the original law. NCLB does not contain any waiver descriptions that match what Arne Duncan has been doing. Duncan has no authority to offer these waivers under the conditions he's set.
PART IV: That Would Be Extraordinarily Bad
If the NCLB waivers are ruled as Constitutional, then we've just extended to an agency of the executive branch the authority to create new laws. This would be bad. Really, unprecedentedly bad.
Yes, regulatory agencies like the EPA often have to make judgments that seem tantamount to creating policy and law, but they still have to make those judgments based on facts and in ways that fit the original regulations. Agencies like the FCC have very broad legislative mandates, but other language and explication actually narrowed their scope considerably. What the ed waivers have done is create a whole new version of ESEA without the country's actual lawmakers ever touching a bit of it.
CONCLUSION
With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured: the federalization of public education. His path to the “holy grail” of education, however, was fundamentally flawed. He only reached it by imposing waiver conditions that were neither explicitly nor implicitly authorized by the text of NCLB. Thus, he exceeded his statutory authority and violated the Constitution’s clear notice requirements regarding conditions on federal funds.
States only acceded to these new and unforeseeable terms because their impending non-compliance with NCLB put so much at stake financially, practically, and politically. By the time Secretary Duncan announced the conditions, states were out of options and left in a position where the Secretary could compel them to accept terms that, under most any other circumstances, they would reject. The administration took the states’ vulnerability as an opportunity to unilaterally impose policy that had already failed in Congress. In doing so, the administration unconstitutionally coerced states.
This is fifty-one pages of detailed argument with a mountain of footnotes and a heck of a lot of Constitutional lawyerese. But it is a thorough argument about how the current reformy wave of waiverism is not merely bad policy, but illegal. It is going to be really interesting to see what fuss is kicked up once this article hits the fan. Plenty of folks have been calling the waivers illegal since waivering first began, but now they've got a heavy-duty law professor in a professional journal to back them up. Who would like to start the countdown to lawsuit?
(h/t to Love Light for passing this article along to me)
Black opens with one of the most concise summaries of the current reformster wave you'll ever see
Two of the most significant events in the history of public education occurred over the last year. First, after two centuries of local control and variation, states adopted a national curriculum. Second, states changed the way they would evaluate and retain teachers, significantly altering teachers’ most revered right, tenure. Not all states adopted these changes of their own free will. The changes were the result of the United States Secretary of Education exercising unprecedented agency power in the midst of an educational crisis: the impending failure of almost all of the nation’s schools under the
No Child Left Behind Act (NCLB). The Secretary invoked the power to impose new conditions on states in exchange for waiving their obligations under NCLB....As a practical matter, he federalized
education in just a few short months.
This allows the kibbitzing to start immediately in response. Black does not distinguish at all between Common Core Standards and a national curriculum, a distinction without a difference that reformsters have fought hard to maintain. Nor will reformsters care for the assertion that states did not all adopt reform measures of their own free will. But all of that background in the first paragraph of the article is simply setting the stage for Black's main point.
This unilateral action is remarkable not only for education, but from a constitutional balance-of-power perspective. ... Yet, as efficacious as unilateral action through statutory waiver might be, it is unconstitutional absent carefully crafted legislative authority. Secretary Duncan lacked that authority. Thus, the federalization of education through conditional waivers was momentous, but unconstitutional. [emphasis mine]
I should note that all of his material comes heavily laden with footnotes.
There follows a more detailed recap of the Tale of NCLB and Creeping Federalism.
Once upon a time, Congress created NCLB which kept the line on states' rights by making the states accountable for educational results. Scholars called it "cooperative federalism" and it was a new role for the feds, but a limited one. But NCLB was flawed, and as early as 2008, Congress and the President were looking to stop the train. The President proposed a fix in 2010, but Congress was not having it. However, NCLB came with its own magic beans-- the Sec of Ed had the power to waive noncompliance consequences for the states.
The Sec of Ed broke out the magic beans, but he said they will come at a price-- a price, it turns out, remarkably identical to the 2010 proposal ideas. And here's the thing about that 2010 blueprint-- it was proposed as a way to take education in a completely different direction, away from NCLB.
That means that the waiver requirements were decidedly NOT an outgrowth of the underlying legislation, and were in fact meant to bury it, not to save it. That means that waivers took us into a magical new land of Not Actually Legal.
Specifically, it assaults the magical fairies of the Spending Clause in these two ways. 1) You can't use federal money to change the rules that the money is attached to and 2) Congress can't use federally funded programs to coerce states into adopting federal policies. And so it's time to break out the magic wands and zap some naughty federal fairies.
There's not a lot of scholarship about this web of fine legal detail, and so Black sets out to fill in the gap with four very erudite and legally sections of the article. I am going to summarize them in very non-legally ways, and any damage I do to Black's arguments is on me, not him.
PART I: No Changing the Rules
When the feds pass a law, they have to lay out all the rules that do and will apply to that law. You can't pass a law, start folks working under it, and then years later announce, "Oh, yeah, and by the way, we've changed this law about making cheese sandwiches so that it also covers sloppy joes, and also, if you don't go along with us on this, we get to take your car." Also, you can't suddenly say, "We've given my brother-in-law the power to judge your sloppy joes."
Conditions for receiving federal fund must be "unambiguous" and non-coercive. Also, you can't suddenly delegate Congressional authority to an agency of the Executive branch.
There's not a lot of constitutional case law related to waivers, but Black is pretty sure that insufficient notice of waiver conditions as well as "leverage and surprise at the point of waiver" (wasn't that an Alan Parson's Project album?) are problematic. Even more problematic is the issue of an agency of the federal government using waiver conditions to rewrite laws passed by Congress. And then he takes a few pages to explain how these issues should be navigated.
PART II: Using NCLB Waiver To Impose New Policy
If you're going to understand why this was bad, it helps to understand how it happened. The smoking gun for Black is the President's Blueprint for Reauthorizing the Elementary and Secondary Education Act. He is painstakingly specific in this (reading this 51 page article has helped me remember why I'm not a lawyer), but the upshot seems to be this:
The President said quite plainly that his blueprint was meant to erase, replace, and supersede No Child Left Behind. So when the same requirements appear in the waivers, that makes it hard to argue that the waivers are meant to conform with and help preserve NCLB. Put another way, a waiver cannot legitimately be based on replacing the waived law with some other law entirely. It's like those movies where federal agents offer a criminal release from jail only if he'll steal something for them-- it may be cool drama, but it is in fact coercive and ultimately illegal.
PART III: The Constitutional Flaws of NCLB Waivers
The Constitution does not give agencies (executive branch) the power to rewrite laws (legislative branch). They have some limited legal power to do waivery things, but only to the extent that the waivery things are described in the original law. NCLB does not contain any waiver descriptions that match what Arne Duncan has been doing. Duncan has no authority to offer these waivers under the conditions he's set.
PART IV: That Would Be Extraordinarily Bad
If the NCLB waivers are ruled as Constitutional, then we've just extended to an agency of the executive branch the authority to create new laws. This would be bad. Really, unprecedentedly bad.
Yes, regulatory agencies like the EPA often have to make judgments that seem tantamount to creating policy and law, but they still have to make those judgments based on facts and in ways that fit the original regulations. Agencies like the FCC have very broad legislative mandates, but other language and explication actually narrowed their scope considerably. What the ed waivers have done is create a whole new version of ESEA without the country's actual lawmakers ever touching a bit of it.
CONCLUSION
With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured: the federalization of public education. His path to the “holy grail” of education, however, was fundamentally flawed. He only reached it by imposing waiver conditions that were neither explicitly nor implicitly authorized by the text of NCLB. Thus, he exceeded his statutory authority and violated the Constitution’s clear notice requirements regarding conditions on federal funds.
States only acceded to these new and unforeseeable terms because their impending non-compliance with NCLB put so much at stake financially, practically, and politically. By the time Secretary Duncan announced the conditions, states were out of options and left in a position where the Secretary could compel them to accept terms that, under most any other circumstances, they would reject. The administration took the states’ vulnerability as an opportunity to unilaterally impose policy that had already failed in Congress. In doing so, the administration unconstitutionally coerced states.
This is fifty-one pages of detailed argument with a mountain of footnotes and a heck of a lot of Constitutional lawyerese. But it is a thorough argument about how the current reformy wave of waiverism is not merely bad policy, but illegal. It is going to be really interesting to see what fuss is kicked up once this article hits the fan. Plenty of folks have been calling the waivers illegal since waivering first began, but now they've got a heavy-duty law professor in a professional journal to back them up. Who would like to start the countdown to lawsuit?
(h/t to Love Light for passing this article along to me)
Tuesday, August 26, 2014
Four Reformy Problems in a Single Tweet
@NeeravKingsland @CtrEdEcon @smarick @amandaripley How do we measure schools' progress without annual tests?
— Michael Petrilli (@MichaelPetrilli) August 24, 2014
This is the kind of statement that brings me up short. It's neither notably nefarious, nor is it larded with some deliberate obfuscation, and yet it is loaded with so many assumptions.
Measure schools' progress
Is "schools' progress" really a thing? It sounds more sciency than "is the school getting better"? But it has the same problem. Progress is a giant tribble of a word, so fuzzy that one cannot really make out a shape within the furry expanse. Progress from where to where? Become a better connector of the community? Become safer? Develop a stronger arts program, or more successful sports program? Do a better job of creating students who are able to function as self-directed learners? Graduate more students who get into college or get good jobs?
There are so many ways in which a school can progress (and most schools are tying to move in several of them at once. How exactly will standardized test results measure all of those many and varied forms of progress?
Measure schools' progress
Annual standardized tests will only measure one sort of progress-- how well the school is doing at housing students who do well on standardized tests. That is a standard for progress that can be met many ways, including paying close attention to which kind of students you're housing. This truly does measure the school's progress-- but not the progress of students, which would be a nice goal for a school. But we've moved from measuring student achievement to measuring student progress to measuring schools' progress.
Why? Why is measuring school progress useful? Why is it the end goal? It seems a little like checking the oven temperature as a way of determining if the turkey is cooked. Why not just check the turkey?
And that gets us right back to progress. When we talk about great schools, schools or students that are making progress-- what do we mean?
Without annual tests
Is that what we mean? Progress will be defined as "whatever we can measure with a standardized test?" Thomas Newkirk gets to the heart of this:
It all comes down to the parable of the drunk and his keys, an old joke that goes like this: A drunk is fumbling along under a streetlight when a policeman comes up and asks him what he doing. The drunk explains he is looking for his keys. “Do you think you lost them there?” the policeman asks.
“No.But the light is better here.”
Neither of the necessary questions is being asked-- what do we really want to measure, and what would be the best way to measure it?
We
What do you mean "we"? Who is this we? And why do they need to have a measure of schools' progress?
Is it parents? I don't think so-- why would parents care about any plural schools beyond their own singular one? Who is it that needs a national scale everyschool rundown of how things are progressing? When exactly did the US appoint a Grand High Overseer to whom all schools must answer, and whom did we appoint? Is this the US DOE talking? A representative council elected by all the American taxpayers?
I know it's picky as shit to peel apart a simple tweet, but I want to highlight how many unexamined assumptions find their way into the education discussion. If we could start examining them more often, maybe we could start talking about the real concerns that should be on the table.
The Cult of Order
Many, many, many reformsters are members of the Cult of Order.
The Cult of Order believes in blind, unthinking devotion to Order. Everything must be in its proper place. Everything must go according to plan. Everything must be under control.
It is not new to find cult members in education. We all work with a least a couple. Desks must be just so. The surface of the teacher desk must be pristine and orderly enough that bacteria will avoid it and others will either stay back in awe (or experience a near-uncontrollable urge to violate it). Students lose a letter grade for putting their name in the wrong corner of a paper. In high schools, they believe that even seniors would benefit from going class to class in neat and orderly lines.
But reformster members take the Cult of Order to new levels.
They were bothered by the chaos of the crazy-quilt state standards, each different from the rest. They are alarmed at the possibility that individual teachers might be teaching differently from other teachers. Order, predictability, uniformity-- these are qualities to be pursued, not because they are a path to better outcomes of some sort, but because they are in and of themselves desirable outcomes. Standardization and a national curriculum that gets every student in every classroom on the same page at the same time-- this vision is good. Don't ask "Good for what?" To the Cult of Order that's a nonsense question, like asking about the utility of a kiss. For them, controlled, orderly standardization is as beautiful as a sunrise.
The Cult of Order is all about fear-- fear that some sort of dark, menacing chaos lurks just beyond the borders. There's a horrible monster waiting just on the other side of that white picket fence, and the only way to keep it at bay is to make the fence just as neat and orderly as possible.
And yet, we know this is not how the world of human beings works. Human relationships are messy, wobbly, unpredictable, hard to plan. At first flutter of your heart, you cannot know how that story will end. Friendship may grow or wither, and no amount of orderly control can change it. And on the large scale, throughout human history, the dream of perfect order always travels hand in hand with aspirations of totalitarian despots.
It is only in the modern age that a true dream of perfect order seems attainable. The Romans maintained centuries of empire precisely because they developed a system that did not depend on perfect order and standardization, but left the many varied local governments in place. The Romans knew that complete order and control was unattainable. The modern Cult of Order believes it is.
Science also tells us that the Cult of Order is wrong. Chaos theory and information theory and quantum mechanics all tell the same story, The dream of simple linear Newtonian order, where insisting on A always gets you to B-- that dream is unattainable, a failed model that does not reflect how the world works. There is a kind of order in the chaos, but it is more rich and complex than we have ever imagined. More importantly, it is an order that does not respond to nor allow for planning and control.
Reformsters keep asking, "How can we precisely control the aspects of education in order to get the exact results that we want?" This is a oxymoronic nonsense question, like asking "How can I best kick that cute girl in the face in order to get her to love me?"
To try to exert that kind of exacting control over other human beings is not just futile-- it's damaging and destructive. To remodel American public education into the model preferred the Cult of Order is destructive and wrong.
The Cult of Order believes in blind, unthinking devotion to Order. Everything must be in its proper place. Everything must go according to plan. Everything must be under control.
It is not new to find cult members in education. We all work with a least a couple. Desks must be just so. The surface of the teacher desk must be pristine and orderly enough that bacteria will avoid it and others will either stay back in awe (or experience a near-uncontrollable urge to violate it). Students lose a letter grade for putting their name in the wrong corner of a paper. In high schools, they believe that even seniors would benefit from going class to class in neat and orderly lines.
But reformster members take the Cult of Order to new levels.
They were bothered by the chaos of the crazy-quilt state standards, each different from the rest. They are alarmed at the possibility that individual teachers might be teaching differently from other teachers. Order, predictability, uniformity-- these are qualities to be pursued, not because they are a path to better outcomes of some sort, but because they are in and of themselves desirable outcomes. Standardization and a national curriculum that gets every student in every classroom on the same page at the same time-- this vision is good. Don't ask "Good for what?" To the Cult of Order that's a nonsense question, like asking about the utility of a kiss. For them, controlled, orderly standardization is as beautiful as a sunrise.
The Cult of Order is all about fear-- fear that some sort of dark, menacing chaos lurks just beyond the borders. There's a horrible monster waiting just on the other side of that white picket fence, and the only way to keep it at bay is to make the fence just as neat and orderly as possible.
And yet, we know this is not how the world of human beings works. Human relationships are messy, wobbly, unpredictable, hard to plan. At first flutter of your heart, you cannot know how that story will end. Friendship may grow or wither, and no amount of orderly control can change it. And on the large scale, throughout human history, the dream of perfect order always travels hand in hand with aspirations of totalitarian despots.
It is only in the modern age that a true dream of perfect order seems attainable. The Romans maintained centuries of empire precisely because they developed a system that did not depend on perfect order and standardization, but left the many varied local governments in place. The Romans knew that complete order and control was unattainable. The modern Cult of Order believes it is.
Science also tells us that the Cult of Order is wrong. Chaos theory and information theory and quantum mechanics all tell the same story, The dream of simple linear Newtonian order, where insisting on A always gets you to B-- that dream is unattainable, a failed model that does not reflect how the world works. There is a kind of order in the chaos, but it is more rich and complex than we have ever imagined. More importantly, it is an order that does not respond to nor allow for planning and control.
Reformsters keep asking, "How can we precisely control the aspects of education in order to get the exact results that we want?" This is a oxymoronic nonsense question, like asking "How can I best kick that cute girl in the face in order to get her to love me?"
To try to exert that kind of exacting control over other human beings is not just futile-- it's damaging and destructive. To remodel American public education into the model preferred the Cult of Order is destructive and wrong.
Monday, August 25, 2014
ACT Report Finds ACT Really Important
Okay kids. Here's today's lesson in critical thinking (which, as you may have heard, is built right into the heart and sinew of the Common Core).
When a business releases a study showing the importance and effectiveness of that business's product, is there a possibility that the study might be aimed at something other than Telling the Whole Truth?
The folks at ACT must be really sweating these days. Their competitors at the College Board have scored a couple of coups, including A) hiring the well-connected author of the CCSS ELA standards, David Coleman and B) getting state and federal governments to adopt their line of AP products as the official education product of the US government. So the ACT people are in need of some realmPR work.
So they are here to report on the national level of college readiness.
This report provides the ACT folks with a great chance to let us know what they've been up to as theydesperately try to grab some market share work to make US education sweller.
They have, for instance, released ACT Aspire, a test package for assessing student college readiness for grades 3 through 10. It aligns with the ACT College Readiness Standards, so take that, new multi-grade PSAT.
The ACT itself has been "enhanced" by the addition of stats and probability math questions, new questions that require students to "integrate knowledge and ideas across multiple texts, a STEM score, a new writing section enhanced with God-knows-what, and, of course, a computerfied version to take on line, because, computers. They will start throwing in ACT Profile, which appears to be career-suggestion software, so I guess the ACT is now an aptitude test. They also want you to know that they are committed to making sure that the test is continuously monitored for validity and evidence, which may seem obvious, but since David "An Education Is What I Say It Is" Coleman seems inclined to move SATs away from validity and evidence, it's worth the ACT's time to toot their own trumpet of obviousness.
Now, if you think any of that qualifies as a "report" and not "advertising copy," you are not exceeding expectations in your applying of critical thinking. But that's okay, because even Caralee Adams writing about the report at EdWeek, fails critical thinking regarding the meat of this report.
She takes away exactly what she was supposed to-- students who take lots of ACT courses do better in college, therefor, the ACT courses must have prepared them super-well for college.
Why is it that education "research" is so riddled with an inability or unwillingness to distinguish between correlation and causation?
If we were going to design an experiment to determine the effectiveness of a product (say, New Shiny ACT Creme) we would need to first start with subjects who were close to identical. So, let's start with 200 fifteen-year-olds who have similar amounts of acne, give 80 of them New Shiny ACT Creme, 80 of them nothing, and 40 of them mayonnaise. After several months, we'll check to see how the acne looks.
That is not what this "study" has done.
Instead, this study says, "We want the teens who think they have the best complexion to use ACT Creme. We'll let them try it, and in a few months, we'll check to see how they look."
What the ACT report seems to show is not terribly remarkable. Apparently the same high-achieving, hard-working, top-ability, ambitious students who do well in college also seek out the challenging courses in high school. Put another way, the students who value college success and take steps to achieve it in college, also take steps to achieve it in high school. In other news, the sun is expected to rise in the East tomorrow.
I'm not suggesting that the ACT is a scam and terrible waste of time. Like AP courses and the SAT, the ACT clearly has some benefits for some students, and that's a Good Thing.
But we really need to stop looking at these groups as if they are philanthropic organizations trying to make the education world a better place out of the goodness of their highly objective hearts. The ACT is a business, and any "report" they offer about their product is most reasonably viewed as advertising copy, not scientific research.
News organizations do not run stories with headlines like "Researchers Discover Frosted Flakes Are Grrrreat" or "Study Shows Men Who Wear AXE Get Laid More Often." At least not yet. In the meantime, let's keep those critical thinking caps firmly attached.
When a business releases a study showing the importance and effectiveness of that business's product, is there a possibility that the study might be aimed at something other than Telling the Whole Truth?
The folks at ACT must be really sweating these days. Their competitors at the College Board have scored a couple of coups, including A) hiring the well-connected author of the CCSS ELA standards, David Coleman and B) getting state and federal governments to adopt their line of AP products as the official education product of the US government. So the ACT people are in need of some realmPR work.
So they are here to report on the national level of college readiness.
This report provides the ACT folks with a great chance to let us know what they've been up to as they
They have, for instance, released ACT Aspire, a test package for assessing student college readiness for grades 3 through 10. It aligns with the ACT College Readiness Standards, so take that, new multi-grade PSAT.
The ACT itself has been "enhanced" by the addition of stats and probability math questions, new questions that require students to "integrate knowledge and ideas across multiple texts, a STEM score, a new writing section enhanced with God-knows-what, and, of course, a computerfied version to take on line, because, computers. They will start throwing in ACT Profile, which appears to be career-suggestion software, so I guess the ACT is now an aptitude test. They also want you to know that they are committed to making sure that the test is continuously monitored for validity and evidence, which may seem obvious, but since David "An Education Is What I Say It Is" Coleman seems inclined to move SATs away from validity and evidence, it's worth the ACT's time to toot their own trumpet of obviousness.
Now, if you think any of that qualifies as a "report" and not "advertising copy," you are not exceeding expectations in your applying of critical thinking. But that's okay, because even Caralee Adams writing about the report at EdWeek, fails critical thinking regarding the meat of this report.
She takes away exactly what she was supposed to-- students who take lots of ACT courses do better in college, therefor, the ACT courses must have prepared them super-well for college.
Why is it that education "research" is so riddled with an inability or unwillingness to distinguish between correlation and causation?
If we were going to design an experiment to determine the effectiveness of a product (say, New Shiny ACT Creme) we would need to first start with subjects who were close to identical. So, let's start with 200 fifteen-year-olds who have similar amounts of acne, give 80 of them New Shiny ACT Creme, 80 of them nothing, and 40 of them mayonnaise. After several months, we'll check to see how the acne looks.
That is not what this "study" has done.
Instead, this study says, "We want the teens who think they have the best complexion to use ACT Creme. We'll let them try it, and in a few months, we'll check to see how they look."
What the ACT report seems to show is not terribly remarkable. Apparently the same high-achieving, hard-working, top-ability, ambitious students who do well in college also seek out the challenging courses in high school. Put another way, the students who value college success and take steps to achieve it in college, also take steps to achieve it in high school. In other news, the sun is expected to rise in the East tomorrow.
I'm not suggesting that the ACT is a scam and terrible waste of time. Like AP courses and the SAT, the ACT clearly has some benefits for some students, and that's a Good Thing.
But we really need to stop looking at these groups as if they are philanthropic organizations trying to make the education world a better place out of the goodness of their highly objective hearts. The ACT is a business, and any "report" they offer about their product is most reasonably viewed as advertising copy, not scientific research.
News organizations do not run stories with headlines like "Researchers Discover Frosted Flakes Are Grrrreat" or "Study Shows Men Who Wear AXE Get Laid More Often." At least not yet. In the meantime, let's keep those critical thinking caps firmly attached.
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