I picked the title because I didn't want to make you wade through this whole post just to get to my bottom line. That's one thing I learned from reading the TNTP report "Shortchanged: The Hidden Cost of Lockstep Teacher Pay" The other thing I learned is that you can't be afraid to recycle the same old shinola with a spiffy new spin. I can promise you that you probably won't find a thing in this post that I haven't said before. But I can be just as relentless as TNTP. So let's crack open this report and see what creamy nougat is inside.
Introduction
Money is really important. Followed by an abstract of what's to come.
Why lockstep pay doesn't work
Because it doesn't include any punishments for being bad or rewards for being good. And by rewards, we mean money. Because why else would anybody want to do a good job, except to get more money?
From here the nameless authors conclude that school districts are wasting buskets of money paying for crappy teachers.
Low Entry-Level Salaries Keep People from Considering Teaching
Pay attention, because here TNTP starts to show their hand. We should offer more money to starting teachers so they will choose teaching. Part of the problem-- we're paying too much money to high-step teachers. We should move that money down to the bottom of the scale. Though they also offer a chart showing that teacher salaries rise too slowly compared to other fields.
Great teachers feel pressure to leave classroom while lousy ones feel pressure to stay
Okay-- the great teachers will be downtrodden and discouraged because they don't get recognition and more money that the craptastic guy next door, while Mr. Craptastic will stick around forever for the paycheck. So...let me think this through. The great teacher is not motivated by the paycheck, and that's why he needs a bigger one? The guy who doesn't like his job feels highly motivated to keep showing up for the job that he hates?
It doesn't exactly scan, but maybe if we threw in some dubious statistics.
The amount of taxpayer money that goes toward rewarding poor teaching is staggering. Last year, schools in the U.S. spent a conservative estimate of $250 million giving pay increases to teachers identified by their districts as ineffective.
"Estimate" is a generous word to use here for this mostly made-up number. Or this:
This goes a long way toward explaining why 75 percent of low-performing teachers remain at the same school from one year to the next, and half say they plan to remain a teacher for at least another decade.
Well, this one has a source, anyway. A previous paper by TNTP. They finish with their real point, which is that it is annoying as hell that good teachers and bad teachers might be paid the same.
The Best Teachers Aren't Recognized for Leading the Classrooms Where They Are Needed
Most
The assertion here is that people in different settings working with different populations are paid the same amount. The truth of which depends an awful lot on your location. But then, the value of your pay varies with location, too. I don't make huge dollars compared to folks teaching in, say, Pittsburgh, but I live in a nice 10 room house with a finished basement and two baths, residential neighborhood, large yard which butts up against a river that I paid a five-figure price for. I'm not sure they have any point here except that it's hard to compare apples and anteaters.
What's the return on a Master's Degree?
Teachers have a financial incentive to pursue advanced degrees. Some advanced degrees are not awesome, yet teachers still get paid more for having them. TNTP thinks those raises should not happen.
A Roadmap for Building Smarter Compensation Systems
This is a three-step process. More pay for beginners. Offer raises for strong performance (and nothing else). Give incentives for working in tough areas. Let's take a closer look at each, shall we?
Competitive Early Career Salaries
One cute idea-- sign-on bonuses that you have to be vested to get. Otherwise, they want high starting, and a scale that goes up quickly, within, say, the first five years. Six figures in six years is their idea. They do get one thing wrong in asserting that in most districts it takes a whole career to get to the top. Unions figured out that problem ages ago and compacted schedules. For instance, in my district you get to the top of the pay scale in about thirteen years.
I can tell you the problem with that. People at the top of the scale sometimes get testy about having fairly stagnant wages while young folks are getting big raises. Of course, you have to stick around for over a decade for that to matter. Hmmmm....
Merit Based Raises
Nameless Author carefully avoids the M word, but that's what they want-- raises based on performance, with little or no increase for longevity. Their proposal does not include the exact wording of a pitch where schools say, "Come work for us, and you may or may not get a raise, based on measures that we haven't perfected and which you can't affect."
Incentives for High Needs Schools
Do that. But don't give money to bad teachers. Just the good ones. Since high needs schools will always have low test scores, proving that the teachers there are ineffective, you will never have to give anyone a raise, ever. Score!!
Is Performance Based Pay Affordable?
Now, eighteen pages in, we get to the heart of the matter. I've argued over and over that merit pay will never work because in education, you cannot grow the pie-- you can only slice it thinner and thinner. Here's the TNTP answer
It does, however, require that school systems make a fundamental choice: Do they want to pay for years of service, advanced degrees and everything else they are currently buying with teacher salaries? Or do they want to pay for great teaching? Doing both is not an affordable option.
But paying those six-figure salaries year after year to 100% of your teaching staff is not an option either. So they are correct-- you can have this model, or you can have longevity. Their model works as long as you keep churning and turning over your staff. That's been the argument for the first eighteen pages-- TNTP doesn't want to look at career earnings, but just the first five or six years, because not only do they not care if you stick around longer, but they need you to get the heck out so that they can repurpose your salary to pay for two newbies.
And that is how we use the argument of better teacher pay to drive the McDonaldization of education. As long as we can churn and burn, this model is sustainable. But it cannot sustain a school full of lifers who all make top dollar all the time.
Examples
The paper goes on to offer some studies of school districts that have done some version of what they propose. What can I say, except that the first example is Newark. Newark. Followed by Bridgeport's Academy school. Followed by Louisiana, Tennessee, Indiana and Florida as examples of state-led salary reform. If you had somehow still been taking them seriously up until this point, you may now get off that train.
They also have ideas about how to implement this smart compensation program, finishing with the motto "Give great teaching the compensation it deserves." And that certainly sings with ambiguity, doesn't it.
It's the same old bad ideas constructed to model the charter/TFA model of schools as dispensers of speedy education product, staffed by temps who are just passing through and cashing in on their way. It's a dark and dopey vision of education, no matter how many pretty graphics you stick on the page.
Friday, August 29, 2014
Spell Check & Educrats
A few days ago I tried composing a post on my tablet. I like the equipment; it's new and shiny and it lets me get things done while sitting on the couch with my wife instead of hunched over my desk.
But for whatever reason (no doubt a setting that I haven't located and changed yet) it is an aggressive fixer of my spelling. And my battles with the spell checker remind me of the role that technocrats have tried to play in education.
Spell check seems like such a helpful idea in theory. Whether you mistype or mis-spell, the power of the computer will correct you, help you get things right. Except that instead of helping you get things right, it helps you write things that the programmer judges as right. And here we hit trouble.
Granted, the only thing worse than my spelling is my typing. I have a cadre of loyal readers who regularly direct my attention to mistakes I've typed. The process there is that they send me a message about what they've spotted, I check it, and if need be, I fix it.
This is different than the process of spell-checking, in which the computer program substitutes its judgment for my own without asking. In the case of my tablet, it is so insistent that even when I think I have overruled it, I find out later that it simply changed things back. It's not trying to be oppressive. I have no doubt that the software writers felt that they were offering a helpful feature, that this overruling of my judgment was for my own good. But it does not need to know me, meet me, even make an attempt to understand what I'm trying to say. The content of my writing doesn't matter; I will be assimilated.
Technocrats dream this dream a great deal. They dream of an elegant system, a perfectly produced piece of software that will make human judgment (so messy, so flawed) unnecessary. So Google tries to finish my words for me even as they work on a car that will drive for me.
It's a weird warping of time. It feels as if the software overrides my judgment right now, but of course the decisions that created that moment were made by programmers a while ago, long before they would even know who would be using their program. They could never have known that I like to bend and twist words, make new illegitimate ones. They could never have known that I think one of life's great little moments is when somebody puts together a sentence that has never been spoken or written before.
It also makes subtle value judgments. Most spell checkers assume that people either never would or never should use words like shit, and never, ever drop the F bomb. So spell checkers are also politeness checkers.
You can see all of these drives in the technocrat approach to education reform. The dream is a system so smooth and uniform that it can be implemented anywhere and, more importantly, the people who are actually pressing the buttons don't ever use their personal judgment because the system renders their judgment unnecessary. Teachers and students should be able to just boot things up and step back and wait for their prompt. Their individual qualities and preferences shouldn't matter. When the system and the people clash, the system is keyed to simply override the humans. Human judgment as exercised by humans, after all, is messy and sloppy and unpredictable; it reacts to too much, is steered too much by its senses and surroundings. On the other hand, human judgment enshrined in the form of software is solid and unchanging and smooth and unaware of anything except its own directives.
When live humans and software collide, technocrats blame the humans for not getting in harmony with the system. I can tolerate that in my word processing, but not in my school. Or to speak in programmer terms, human chaos and responsiveness to the world, the tendency to change and grow and change some more in relationship with the richness of the world and other humans-- these are not bugs. They are features. They are the whole point.
But for whatever reason (no doubt a setting that I haven't located and changed yet) it is an aggressive fixer of my spelling. And my battles with the spell checker remind me of the role that technocrats have tried to play in education.
Spell check seems like such a helpful idea in theory. Whether you mistype or mis-spell, the power of the computer will correct you, help you get things right. Except that instead of helping you get things right, it helps you write things that the programmer judges as right. And here we hit trouble.
Granted, the only thing worse than my spelling is my typing. I have a cadre of loyal readers who regularly direct my attention to mistakes I've typed. The process there is that they send me a message about what they've spotted, I check it, and if need be, I fix it.
This is different than the process of spell-checking, in which the computer program substitutes its judgment for my own without asking. In the case of my tablet, it is so insistent that even when I think I have overruled it, I find out later that it simply changed things back. It's not trying to be oppressive. I have no doubt that the software writers felt that they were offering a helpful feature, that this overruling of my judgment was for my own good. But it does not need to know me, meet me, even make an attempt to understand what I'm trying to say. The content of my writing doesn't matter; I will be assimilated.
Technocrats dream this dream a great deal. They dream of an elegant system, a perfectly produced piece of software that will make human judgment (so messy, so flawed) unnecessary. So Google tries to finish my words for me even as they work on a car that will drive for me.
It's a weird warping of time. It feels as if the software overrides my judgment right now, but of course the decisions that created that moment were made by programmers a while ago, long before they would even know who would be using their program. They could never have known that I like to bend and twist words, make new illegitimate ones. They could never have known that I think one of life's great little moments is when somebody puts together a sentence that has never been spoken or written before.
It also makes subtle value judgments. Most spell checkers assume that people either never would or never should use words like shit, and never, ever drop the F bomb. So spell checkers are also politeness checkers.
You can see all of these drives in the technocrat approach to education reform. The dream is a system so smooth and uniform that it can be implemented anywhere and, more importantly, the people who are actually pressing the buttons don't ever use their personal judgment because the system renders their judgment unnecessary. Teachers and students should be able to just boot things up and step back and wait for their prompt. Their individual qualities and preferences shouldn't matter. When the system and the people clash, the system is keyed to simply override the humans. Human judgment as exercised by humans, after all, is messy and sloppy and unpredictable; it reacts to too much, is steered too much by its senses and surroundings. On the other hand, human judgment enshrined in the form of software is solid and unchanging and smooth and unaware of anything except its own directives.
When live humans and software collide, technocrats blame the humans for not getting in harmony with the system. I can tolerate that in my word processing, but not in my school. Or to speak in programmer terms, human chaos and responsiveness to the world, the tendency to change and grow and change some more in relationship with the richness of the world and other humans-- these are not bugs. They are features. They are the whole point.
Bellwether Flubs Teacher Evaluation Argument
I am fascinated by the concept of think tank papers, because they are so fancy in presentation, but so fanceless in content. I mean, heck-- all I need to do is give myself a slick name and put any one of these blog posts into a fancy pdf format with some professional looking graphic swoops, and I would be releasing a paper every day.
Bellwether Education, a thinky tank with connections to the standards-loving side of the conservative reformster world, has just released a paper on the state of teacher evaluation in the US. "Teacher Evaluation in an Era of Rapid Change: From 'Unsatisfactory' to 'Needs Improvement.'" (Ha! I see what you did there.) Will you be surprised to discover that the research was funded by the Bill and Melinda Gates Foundation?
In this paper, Chad Aldeman (Associate Partner on the Policy and Thought Leadership Team-- his mom must be proud) and Carolyn Chuong (Analyst-- keep plugging, kiddo) lay out what they see as current trends which they evaluate in terms of what they think the trends should be. So, see? A smattering of factish information all filtered through a set of personal ideas about how education should be going-- just like me! Let's see what they came up with.
The Widget Effect
Oh, this damn thing. You can go back and read the original TNTP paper, which was earthshattering and galvanized governments to leap up and start using a new piece of jargon. Just in case you missed it, the whole point was that school systems should not treat teachers as if they are interchangeable widgets, but instead should treat them as interchangeable widgets, some of which do widgetty things better than others. In other words, under this approach, all teachers are still widgets in a big machine; it's just that some widgets are better than others. But this theoretical thought-leadery framework is still influential today in the sense that it influenced this paper that I'm reading and you are reading about.
So what did Aldeman and Chuong find? Five things, it turns out. Here they are.
1) Districts are starting to evaluate teachers as individuals.
The "most dramatic finding" in The Widget Effect was that school districts were using binary pass/fail. Now states are moving toward a four- or five-tiered system. Woot!
Some people, apparently, quibble because the new system still finds a small percentage of teachers are in the suck zone, and for many reformsters, a teacher eval system is only good if it finds the gazillions of bad teachers that reformsters just know are out there. But Aldeman and Chuong say that criticism misses two points.
First, they say, don't look at the percent-- look at the number. See how high that number is? That's lots of bad teachers, isn't it. Also, they cite the New York report about tenure rule changes. They think the research says that if you're a bad teacher and your administration says so, you might leave. I think the research also says that if you're a good teacher and your boss gives you a bad evaluation, you might think twice about wanting to work for that boss. But here, as throughout, we will see that the question "Is the evaluation accurate" never appears on the radar.
Second, did we mention there are more than two categories. And the categories are named with words, and the words are very descriptive. That allows us to give targeted support, which we totally could never do under the old system, because-- I don't know. Principals are dopes and the evaluation rating is the one and only source of data they have about a teacher's job performance?
2) Schools are providing teachers with better, timelier feedback on their practice.
There's no question that this is a need. Traditional evaluations in many states involved getting a quick score sheet as part of a teacher's end-of-the-year check-out process. Not exactly useful in terms of improving practices.
But in this section the writers come close to acknowledging the central problem-- the ineffectiveness of the actual evaluation. They note that research shows that teachers with higher-functioning students tend to get better evaluations.
However, they correctly note that new evaluation techniques encourage a more thorough and useful dialogue between the teacher and the administrator. But, of course, the new evaluation system are based on the same old true (and only) requirement-- certain paperwork must be filled out. The new models put huge time requirements on principals who still have a school to run, and the pressure to the letter of the paperwork law met while trampling the spirit are intense. We'll see how that actually works out.
3) Districts still don't factor student growth into teacher evals
Here we find the technocrat blind faith in data rearing its eyeless head again
While raw student achievement metrics are biased—in favor of students from privileged backgrounds with more educational resources—student growth measures adjust for these incoming characteristics by focusing only on knowledge acquired over the course of a school year.
This is a nice, and inaccurate, way to describe VAM, a statistical tool that has now been discredited more times than Donald Trump's political acumen. But some folks still insist that if we take very narrow standardized test results and run them through an incoherent number-crunching, the numbers we end up with represent useful objective data. They don't. We start with standardized tests, which are not objective, and run them through various inaccurate variable-adjusting programs (which are not objective), and come up with a number that is crap. The authors note that there are three types of pushback to using said crap.
Refuse. California has been requiring some version of this for decades. and many districts, including some of the biggest, simply refuse to do it.
Delay. A time-honored technique in education, known as Wait This New Foolishness Out Until It Is Replaced By The Next Silly Thing. It persists because it works so often.
Obscure. Many districts are using loopholes and slack to find ways to substitute administrative judgment for the Rule of Data. They present Delaware as an example of how futzing around has polluted the process and buttress that with a chart that shows statewide math score growth dropping while teacher eval scores remain the same.
Uniformly high ratings on classroom observations, regardless of how much students learn, suggest a continued disconnect between how much students grow and the effectiveness of their teachers.
Maybe. Or maybe it shows that the data about student growth is not valid.
They also present Florida as an example of similar futzing. This time they note that neighboring districts have different distributions of ratings. This somehow leads them to conclude that administrators aren't properly incorporating student data into evaluations.
In neither state's case do they address the correct way to use math scores to evaluate history and music teachers.
4) Districts have wide discretion
Their point here is simply that people who worry about the state (and federal) government using One Size Fits All to intrude local autonomy into oblivion are "premature" in their concern. "Premature" is a great word here, indicating that the total control hasn't happened yet-- it's just going to happens later.
5) Districts continue to ignore performance when making decisions about teachers
Let me be clear. I used the heading of this section exactly as Adelman and Chuong wrote it, because it so completely captures a blind spot in this brand of reformster thought.
Look at that again, guys. Is that really what you meant to say? Districts completely ignore performance when making decisions about teachers? Administrators say to each other, "Let's make our decisions about staff based on hair color or height or shoe size, but whatever we do, let's not consider any teacher's job performance ever, at all."
No, that would be stupid. What Adelman and Chuong really mean is that districts continue to ignore the kind of performance measures that Adelman and Chuong believe they should not ignore. Administrators insist on using their own professional judgment instead of relying on state-issued, VAM-infested, numbly numbery, one-size-measures-all widget wizardy evaluation instruments. Of course districts make decisions about teachers based on job performance; just not the way Adelman and Chuong want them to.
Also, districts aren't rushing to use these great evaluation tools to install merit pay or to crush FILO. They are going to beat the same old StudentsFirst anti-tenure drum. I have addressed this business at great length here and here and here and here (or you can click on the tenure tag above), but let me do the short version-- you do not retain and recruit great teachers by making their continued pay and employment dependent on an evaluation system that is no more reliable than a blind dart player throwing backhand from a wave-tossed dinghy.
Recommendations
It's not a fancy-pants thinky tank paper until you tell people what you think they should do. So Adelman and Chuong have some ideas for policymakers.
Track data on various parts of new systems. Because the only thing better than bad data is really large collections of bad data. And nothing says Big Brother like a large centralized data bank.
Investigate with local districts the source of evaluation disparities. Find out if there are real functional differences, or the data just reflect philosophical differences. Then wipe those differences out. "Introducing smart timelines for action, multiple evaluation measures including student growth, requirements for data quality, and a policy to use confidence intervals in the case of student growth measures could all protect districts and educators that set ambitious goals."
Don't quit before the medicine has a chance to work. Adelman and Chuong are, for instance, cheesed that the USED postponed the use of evaluation data on teachers until 2018, because those evaluations were going to totally work, eventually, somehow.
Don't be afraid to do lots of reformy things at once. It'll be swell.
Their conclusion
Stay the course. Hang tough. Use data to make teacher decisions. Reform fatigue is setting in, but don't be wimps.
My conclusion
I have never doubted for a moment that the teacher evaluation system can be improved. But this nifty paper sidesteps two huge issues.
First, no evaluation system will ever be administrator-proof. Attempting to provide more oversight will actually reduce effectiveness, because more oversight = more paperwork, and more paperwork means that the task shifts from "do the job well" to "fill out the paperwork the right way" which is easy to fake.
Second, the evaluation system only works if the evaluation system actually measures what it purports to measure. The current "new" systems in place across the country do not do that. Linkage to student data is spectacularly weak. We start with tests that claim to measure the full breadth and quality of students' education; they do not. Then we attempt to create a link between those test results and teacher effectiveness, and that simply hasn't happened yet. VAM attempted to hide that problem behind a heavy fog bank, but the smoke is clearing and it is clear that VAM is hugely invalid.
So, having an argument about how to best make use of teacher evaluation data based on student achievement is like trying to decide which Chicago restaurant to eat supper at when you are still stranded in Tallahassee in a car with no wheels. This is not the cart before the horse. This is the cart before the horse has even been born.
Bellwether Education, a thinky tank with connections to the standards-loving side of the conservative reformster world, has just released a paper on the state of teacher evaluation in the US. "Teacher Evaluation in an Era of Rapid Change: From 'Unsatisfactory' to 'Needs Improvement.'" (Ha! I see what you did there.) Will you be surprised to discover that the research was funded by the Bill and Melinda Gates Foundation?
In this paper, Chad Aldeman (Associate Partner on the Policy and Thought Leadership Team-- his mom must be proud) and Carolyn Chuong (Analyst-- keep plugging, kiddo) lay out what they see as current trends which they evaluate in terms of what they think the trends should be. So, see? A smattering of factish information all filtered through a set of personal ideas about how education should be going-- just like me! Let's see what they came up with.
The Widget Effect
Oh, this damn thing. You can go back and read the original TNTP paper, which was earthshattering and galvanized governments to leap up and start using a new piece of jargon. Just in case you missed it, the whole point was that school systems should not treat teachers as if they are interchangeable widgets, but instead should treat them as interchangeable widgets, some of which do widgetty things better than others. In other words, under this approach, all teachers are still widgets in a big machine; it's just that some widgets are better than others. But this theoretical thought-leadery framework is still influential today in the sense that it influenced this paper that I'm reading and you are reading about.
So what did Aldeman and Chuong find? Five things, it turns out. Here they are.
1) Districts are starting to evaluate teachers as individuals.
The "most dramatic finding" in The Widget Effect was that school districts were using binary pass/fail. Now states are moving toward a four- or five-tiered system. Woot!
Some people, apparently, quibble because the new system still finds a small percentage of teachers are in the suck zone, and for many reformsters, a teacher eval system is only good if it finds the gazillions of bad teachers that reformsters just know are out there. But Aldeman and Chuong say that criticism misses two points.
First, they say, don't look at the percent-- look at the number. See how high that number is? That's lots of bad teachers, isn't it. Also, they cite the New York report about tenure rule changes. They think the research says that if you're a bad teacher and your administration says so, you might leave. I think the research also says that if you're a good teacher and your boss gives you a bad evaluation, you might think twice about wanting to work for that boss. But here, as throughout, we will see that the question "Is the evaluation accurate" never appears on the radar.
Second, did we mention there are more than two categories. And the categories are named with words, and the words are very descriptive. That allows us to give targeted support, which we totally could never do under the old system, because-- I don't know. Principals are dopes and the evaluation rating is the one and only source of data they have about a teacher's job performance?
2) Schools are providing teachers with better, timelier feedback on their practice.
There's no question that this is a need. Traditional evaluations in many states involved getting a quick score sheet as part of a teacher's end-of-the-year check-out process. Not exactly useful in terms of improving practices.
But in this section the writers come close to acknowledging the central problem-- the ineffectiveness of the actual evaluation. They note that research shows that teachers with higher-functioning students tend to get better evaluations.
However, they correctly note that new evaluation techniques encourage a more thorough and useful dialogue between the teacher and the administrator. But, of course, the new evaluation system are based on the same old true (and only) requirement-- certain paperwork must be filled out. The new models put huge time requirements on principals who still have a school to run, and the pressure to the letter of the paperwork law met while trampling the spirit are intense. We'll see how that actually works out.
3) Districts still don't factor student growth into teacher evals
Here we find the technocrat blind faith in data rearing its eyeless head again
While raw student achievement metrics are biased—in favor of students from privileged backgrounds with more educational resources—student growth measures adjust for these incoming characteristics by focusing only on knowledge acquired over the course of a school year.
This is a nice, and inaccurate, way to describe VAM, a statistical tool that has now been discredited more times than Donald Trump's political acumen. But some folks still insist that if we take very narrow standardized test results and run them through an incoherent number-crunching, the numbers we end up with represent useful objective data. They don't. We start with standardized tests, which are not objective, and run them through various inaccurate variable-adjusting programs (which are not objective), and come up with a number that is crap. The authors note that there are three types of pushback to using said crap.
Refuse. California has been requiring some version of this for decades. and many districts, including some of the biggest, simply refuse to do it.
Delay. A time-honored technique in education, known as Wait This New Foolishness Out Until It Is Replaced By The Next Silly Thing. It persists because it works so often.
Obscure. Many districts are using loopholes and slack to find ways to substitute administrative judgment for the Rule of Data. They present Delaware as an example of how futzing around has polluted the process and buttress that with a chart that shows statewide math score growth dropping while teacher eval scores remain the same.
Uniformly high ratings on classroom observations, regardless of how much students learn, suggest a continued disconnect between how much students grow and the effectiveness of their teachers.
Maybe. Or maybe it shows that the data about student growth is not valid.
They also present Florida as an example of similar futzing. This time they note that neighboring districts have different distributions of ratings. This somehow leads them to conclude that administrators aren't properly incorporating student data into evaluations.
In neither state's case do they address the correct way to use math scores to evaluate history and music teachers.
4) Districts have wide discretion
Their point here is simply that people who worry about the state (and federal) government using One Size Fits All to intrude local autonomy into oblivion are "premature" in their concern. "Premature" is a great word here, indicating that the total control hasn't happened yet-- it's just going to happens later.
5) Districts continue to ignore performance when making decisions about teachers
Let me be clear. I used the heading of this section exactly as Adelman and Chuong wrote it, because it so completely captures a blind spot in this brand of reformster thought.
Look at that again, guys. Is that really what you meant to say? Districts completely ignore performance when making decisions about teachers? Administrators say to each other, "Let's make our decisions about staff based on hair color or height or shoe size, but whatever we do, let's not consider any teacher's job performance ever, at all."
No, that would be stupid. What Adelman and Chuong really mean is that districts continue to ignore the kind of performance measures that Adelman and Chuong believe they should not ignore. Administrators insist on using their own professional judgment instead of relying on state-issued, VAM-infested, numbly numbery, one-size-measures-all widget wizardy evaluation instruments. Of course districts make decisions about teachers based on job performance; just not the way Adelman and Chuong want them to.
Also, districts aren't rushing to use these great evaluation tools to install merit pay or to crush FILO. They are going to beat the same old StudentsFirst anti-tenure drum. I have addressed this business at great length here and here and here and here (or you can click on the tenure tag above), but let me do the short version-- you do not retain and recruit great teachers by making their continued pay and employment dependent on an evaluation system that is no more reliable than a blind dart player throwing backhand from a wave-tossed dinghy.
Recommendations
It's not a fancy-pants thinky tank paper until you tell people what you think they should do. So Adelman and Chuong have some ideas for policymakers.
Track data on various parts of new systems. Because the only thing better than bad data is really large collections of bad data. And nothing says Big Brother like a large centralized data bank.
Investigate with local districts the source of evaluation disparities. Find out if there are real functional differences, or the data just reflect philosophical differences. Then wipe those differences out. "Introducing smart timelines for action, multiple evaluation measures including student growth, requirements for data quality, and a policy to use confidence intervals in the case of student growth measures could all protect districts and educators that set ambitious goals."
Don't quit before the medicine has a chance to work. Adelman and Chuong are, for instance, cheesed that the USED postponed the use of evaluation data on teachers until 2018, because those evaluations were going to totally work, eventually, somehow.
Don't be afraid to do lots of reformy things at once. It'll be swell.
Their conclusion
Stay the course. Hang tough. Use data to make teacher decisions. Reform fatigue is setting in, but don't be wimps.
My conclusion
I have never doubted for a moment that the teacher evaluation system can be improved. But this nifty paper sidesteps two huge issues.
First, no evaluation system will ever be administrator-proof. Attempting to provide more oversight will actually reduce effectiveness, because more oversight = more paperwork, and more paperwork means that the task shifts from "do the job well" to "fill out the paperwork the right way" which is easy to fake.
Second, the evaluation system only works if the evaluation system actually measures what it purports to measure. The current "new" systems in place across the country do not do that. Linkage to student data is spectacularly weak. We start with tests that claim to measure the full breadth and quality of students' education; they do not. Then we attempt to create a link between those test results and teacher effectiveness, and that simply hasn't happened yet. VAM attempted to hide that problem behind a heavy fog bank, but the smoke is clearing and it is clear that VAM is hugely invalid.
So, having an argument about how to best make use of teacher evaluation data based on student achievement is like trying to decide which Chicago restaurant to eat supper at when you are still stranded in Tallahassee in a car with no wheels. This is not the cart before the horse. This is the cart before the horse has even been born.
Thursday, August 28, 2014
Expecting Less Than Excellence
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.
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.
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)
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