Supremes Breaking Down Church State Wall

The basic question was minor. The implications are huge. The bottom line is that supporters of using public tax dollars to support private religious schools got some major support from the Supreme Court today.

A church in Missouri wanted a shot at some public monies to resurface a playground. The state said no. The trip up through the levels of US courts began. Five years later, here we are.

What matters in a case like this is the reasoning. Here's the oft-quoted excerpt from the majority:

“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand,” wrote Chief Justice John G. Roberts Jr.

As Bloomberg notes, this is a big deal:

It’s the first time the court has used the free exercise clause of the Constitution to require a direct transfer of taxpayers’ money to a church. In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes. Somewhere, James Madison is shaking his head in disbelief.

A portion of the majority made an attempt to mitigate the effects of the decision with a small footnote (the full opinion is here).

That note may be meant to indicate that the ruling is meant to be narrow-- but not all of the seven justices who ruled against the state signed off on this footnote.

Reading through the decision leaves little mystery about where the majority are headed. The church argued that it was being disqualified from a public benefit for which it was otherwise qualified. The majority agrees:

The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious quality. Under our precedents, that goes too far.

And just in case that's not clear enough, here's Justice Gorsuch, joined by Justice Thomas, explaining why they don't agree with footnote three. They argue that there is no point in distinguishing between religious purposes and activities, and that the exercise clause does not care, either.

...the general principles here do not permit discrimination against religious exercise-- whether on the playground or anywhere else.

In other words, giving public tax dollars to a church-run private school would be just fine. In fact, it's hard to know exactly where the court would draw the line. If an organization is in the community, competing for community funds for an activity, you can't rule them out just because they are a religious organization. If a church wants money to pave a playground or run a school, you can't deny them just because they're a church.

The dissenting opinion sees this pretty clearly:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground.  The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state.  The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.

That sounds about right. With this decision, the wall between church and state is pretty well shot, and there is nothing to stand in the way of, say, a federally-financed multi-billion dollar program that would funnel money to private religious schools. Trump and DeVos could not have a brighter green light for their voucher program.

I'll argue, as always, that churches will rue the day the wall is taken down. The separation of church and state doesn't just protect the state-- it protects the church, too. When you mix religion and politics, you get politics. And where federal money goes, federal strings follow. Sooner or later the right combination of misbehavior and people in federal power will result in a call for accountability for private schools that get federal money-- even religious schools. And as the requests for private religious vouchers roll in, folks will be shocked and surprised to find that Muslim and satanic and flying spaghetti monster houses of worship will line up for money, then the feds will have to come up with a mechanism for determining "legitimacy" and voila! That's how you get the federal department of church oversight. Of course, this will only happen once we're finally tired of the idea that charter and voucher schools don't have to be accountable for anything to anyone.

But that's further down the road. For right now, what we know is that the Supremes just punched a huge hole in the wall and a bunch of voucher-loving religious private schools are about to start sucking up public tax money through that breach. A bunch of public tax money is about to disappear into a black hole, and we won't know where it went or how it was used. Education, religion, law, and American society will all be a little bit worse for it.

HYH: The "i" in School

Personalized Learning continues to gather steam as a way to privatize and standardize education. And for educating yourself about the movement and what it really means, I'm here to recommend the latest edition of Jennifer Berkshire and Jack Schneider's podcast, Have You Heard. Berkshire and Schneider talk to guest Bill Fitzgerald about some of the more important aspects of this magical "algorithmically mediated learning."

Schneider, an actual education historian, puts this new tech-based movement echoes similar revolutionary predictions about television, movies and, yes, radio.

Fitzgerald addresses the problem of multiple interpretations of personalized learning, focusing on the issues of the tech-centered model currently prevalent.

Yeah, so I mean I think that there is not a single definition of personalized learning that  satisfies everybody who actually works in education technology. When we talk about  algorithmically mediated learning, we're talking about a very specific type of  interaction, which even though it's actually called personalized learning, actually cuts  people out of the project, cuts people out of the equation. So we have the semantics  of the term, which actually sound very human, but in some implementations, not all,  but in some, we actually have a process where what we call personalized learning is  actually less personal and less human. 

The conversation deals with the related issue of assessment, because as always, in bad teaching design, assessment drives everything else. And that's not the only important related issue. Here's Fitzgerald again:

So when we talk about our education system and one size fits all, I think we need to  acknowledge that there's a context within which our education system has never  worked in an equitable way. So when we talk about one size fits all, I think we need to  be very careful about how we're defining all.

Schneider on the allure of technology:

The challenge of desegregating schools is a political and moral problem, not a  technical problem and part of the allure of technology is that it suggests that whatever  is holding our schools back in terms of delivering an equally excellent education for all  children is simply a matter of a technological fix, that it's not going to require us to  make a difficult trade off, that it does not pose a dilemma that is unsolvable and that  will require us to collectively make a decision about what we value and for some of us  to give things up.

Which brings to one of Fitzgerald's most important insights:

Yeah, we have these social and ethical and moral issues and algorithms can effectively  embeds those and make them less visible and because it's an automated process, we  were trained to think that it's more objective, when the reality is its lack of objectivity  just gets done automatically every single time. So I think there's some large scale  misunderstanding of actually what algorithms do and how they can invent biases and  we have examples of this all over the place. 

It's a valuable and informative podcast. Take the time to give a listen:

Problems with Performance-Based Compensation

Bellwether Education Partners want to overcome the obstacles standing in the way of performance-based compensation (aka "merit pay" aka "fun ways to reduce total personnel costs for a school district"). But if you want writer Jen Bolson Meer's fancy definition, that's "Performance-based compensation is an approach where some or all monetary compensation is related to how employee performance is assessed relative to stated criteria."

Meer takes a moment to attack the traditional steps and lanes payment system. Advanced degrees and years of experience, she says, do not make teachers any better. And by "better" we mean "correlated to higher student scores on a narrow, invalid Big Standardized Test." That's pretty much the only way we could hope to make the absurd argument that neither additional education nor years of experience make teachers any better at our jobs.

That argument poorly made, Meer is on to her main point. Why is there no model, no "playbook" for PBC in the teaching world. Meer says that's because in all versions, there are winners and losers. She has three possible versions of PBC

1) Stick with a traditional “step and lanes” system, but teachers only move up a step if they meet a minimum specified level of performance

Nobody gets a raise unless she makes her numbers; "ineffective" teachers would stay stalled on a single step for years, just like all of the teachers in places like North Carolina. Meer says that winners would be programs that benefitted from  the "freed up" money saved  by all the people not getting raises.

There are two problems with that. One is that money would be "freed up" which h is an idea carried over from industry, where merit pay systems are based on the amount of money that the business made in that year. That is not how public school systems work-- we do not have an annual "profit" to divvy up.

Second, the system assumes, as do all PBC systems, that there is a bunch of Bad Teachers out there that we will just root out and pay less money. After years of various evaluation systems that keep saying that 98% of teachers bare just fine, reformers are wedded to the theory that the results prove that the evaluation systems are messed up, and not that most teachers are just fine.

Meer says the losers here are the high-performing teachers who wouldn't get the Big Bucks because the well-reviewed crappy teachers would be glomming up all the money. Which highlights another problem with PBC systems-- the amount of merit pay would be based not on actual quality, but on the amount of money the district budgeted for teacher pay. I've read many merit-based policy ideas and not one has ever said, "And at this point, if it turns out that the district has a plethora of great teachers, they'll just have to raise taxes to meet the merit payroll."

2. Earn one-time incentives such as bonuses

As a teacher, you basically take a cut in your base pay so that you might one year get a one-time lump sum. Meer says the winners would be teachers who actually get the bonuses, "especially teachers who find particular meaning and recognition in one-time 'gifts.'" and I do not even know what that means. Somewhere there are teachers who say, "I don't want a dependable, predictable salary. Just surprise me with a wad of cash every several years. My family will take 'surprise' vacations."

And Meer acknowledges that if districts go cheap with these bonuses, they won't actually motivate anybody to do anything like, say, stick around in a district with crappy pay.

3. Adjust base salary based on performance

Meer notes that this system is supported by people who feel they'll beat it, and opposed by people who think it will beat them. She even acknowledges that this confidence may be rooted in faith in the system, not just teacherly self-confidence. Her language acknowledges another issue with PBC-- that such a system is built to measure a teacher's built-in awesomeness, assuming that such a quality is a solid state hard-wired feature of each educator, and not a quality that ebbs and flows over decades.

Discussions about performance-based compensation are hard because there will be winners and losers with any approach, and defining high and low performance can be challenging and controversial

It's a start to admit that any PBC system must have winners and losers, but it skips over the question of why we need a system with winners and losers. There are all sorts of assumptions embedded here, from flushing out the Secret Society of Terrible Teachers noted above to the Motivate the Lazy fallacy-- the notion that teachers could be teaching students well, but just don't bother because we haven't been sufficiently bribed or threatened. This is not only hugely insulting (Yes, I could teach the children better in this profession that I've made my life's work, but I choose not to just to be a dick) but it reveals a profound lack of understanding of what a classroom is like. Teaching badly is hard-- it's exhausting and stressful and the students will punish us much more in that moment than any reformster ever dreamed of.

But even if the perfect plan is elusive,  a “works for us” compensation approach doesn’t have to be, whether it’s a variation of one of the categories above or another creative approach.

Yes, actually, it does have to be. Because the biggest weak point of all of these systems, beyond the funding of them or the insulting nature of them or the tendency to turn colleagues against each other as they fight for that money or even the dishonesty behind systems that aren't about paying more for the best as much as they're about finding ways to pay less for average teachers-- beyond all of that is the problem of measuring teacher performance.

We can't do it.

We have no reliable, valid, tested, proven method of definitively distinguishing good teachers from mediocre teachers. And we must choose the method carefully, not merely because of justice and fairness, but because of what that system will do to the work of the school.

We have ample evidence of what happens when you tie the definition of "effective" to the scores on a crappy standardized test-- education is re-organized around teaching to that test. And nobody-- nobody-- has jumped up in the last decade to say, "This is working awesome!"

A performance based compensation system is another way to tell your staff, "This-- and just this-- is what we're paying you for. This is what matters." So before you install any such system, you'd better be damned sure that you have c hosen well. Otherwise all you're doing is installing a system of perverse incentives. So no-- a "works for us" or "good enough" or "close enough for jazz" system is not easy or okay.

The obstacles to all PBC systems are many, and largely unacknowledged by the people pushing them. Meer has scratched the surface.

ICYMI: What Day Is It Now Edition (6/25)

I'm pretty sure that before this summer is over, I will miss one of these Sunday reading lists, because the three week old twins in my house exert some sort of time warping field. But today I'm on it. Here are some things to read from the past week. And remember-- if you like it, pass it on.

Um, Teacher Retention Is Not Just a DCPS Problem

Despite the fact that they are reportedly more awesome than ever, DC public schools are having some trouble holding onto staff. Go figure. A look at why schools might be having such problems.

Why Teachers Suck..

Yes, you know it's going to be the reverse, but a nice addition to the Clever Attateacher files

Is School Choice Just Expanding Privilege

That is the question. Does school choice cut into support for students who needed the most in the first place?

When a Community Loses Its Schools

Closing schools comes with a number of prices, including costs to the community at large.

Intersection of Philanthropy and Dark Money

There are many, many, many dollars being thrown behind ed reform. Exactly where are they coming from?

The Structure of Educational Reform

You'll probably disagree with a lot of this (I certainly do). But Andy Smarick remains the refomster most likely to take a thoughtful look at the tension between the goals of reform and traditional conservatism.

Charter Schools Do Bad Stuff Because They Can

Jeff Bryant gives a well-sourced overview of charter misbehavior.

Things That Principals Know About Great Teachers

Another piece cheering on the real qualities of actual teachers. At a minimum, food for thought.

White People Keep Finding New Ways To Segregate Schools

From Mother Jones, a piece that looks at ed reform through a different lens, and shows how creative white folks have been about getting their children away from black and brown students.

Newpoint Charges As Bad As We Reported

A careful look at one Florida charter scam. It's worth studying, because this model can be pulled off in many states.

ECOT Continues Tax Funded Ad Blitz Despite Layoff Announcement

Ohio's premiere cyber school is in trouble. The state wants its money back because ECOT's been lying about enrollment. ECOT is laying off hundreds of workers. But somehow they can still spend taxpayer dollars on advertising.

Putting the "i" in School

The latest Have You Heard podcast from Jennifer Berkshire and Jack Schneider looks at personalized learning

Well-Funded Non-Profits Pave the Way to Privatization

Over at Living in Dialogue, John Thompson has been taking a look at the book The Givers, a tough look at what modern philanthropy is doing to our society.

The Fart-Free Classroom

A look at the practical reality of negotiating with 160 different persons in your classroom, every day.

Making Cybereducation Creepier

Do you think that cyber-education is just kind of creepy, with students sitting alone in the glow of a computer screen, navigating hundreds of little standardized quizlets and activities, their every keystroke and answer compiled in an undying data file that will follow those students around forever.

Do you find it hard to imagine how it could be worse? Well, a company called LCA Learning has found a way. They've come up with a program called Nestor which adds a whole new feature to online learning-- while you're watching the course, the course is watching you:

The idea, according to LCA founder Marcel Saucet, is to use the data that Nestor collects to improve the performance of both students and professors. The software uses students’ webcams to analyze eye movements and facial expressions and determine whether students are paying attention to a video lecture. It then formulates quizzes based on the content covered during moments of inattentiveness. Professors would also be able to identify moments when students’ attention waned, which could help to improve their teaching, Saucet says.

First, the software will not "formulate" quizzes-- it will pull quiz questions out of a bank of questions according to an algorithm. Let's just stop talking about algorithms tied to question banks as if they're artificial intelligence. They aren't any kind of intelligence.

But lets think about the rest of this picture. You have to keep your face in place, and mimic whatever the computer thinks an "interested" face looks like (and as anyone who has taught for more than two years can tell you, if you think students can't learn to fake an "interested" face, you are dreaming). Feedback to professors will encourage them to make certain parts of their lectures more "interesting," though I can imagine a quick solution would be to insert random explosions in the lecture.

This software has the potential to collect a whole new data set about each student, a super-creepy data set. And it can also help professors realize that they are no longer experts presenting information about a topic, but video producers trying to create an entertaining info-clip.

Here's a quick video clip of how this is supposed to work:



Notice that in the "good" example, the robot arm of the computer still rules the student-- it's just nicer about it.

And notice the five great benefits listed at the end:

* Students are more attentive
* Fewer physical classrooms
* Personalized coach for thousands of students
* Machine learning can use data from social networks
* Can register missing students from class

Only the last is legit. The magical attentiveness feature is the kind of thing technocrats envision because they don't spend enough time in the meat world. Fewer physical classrooms (and fewer meat teachers) is only a bonus if you're intent on making a healthy profit on all this. If you are coaching a thousand students, it's not personalized. You cannot have personalized education without persons.

But the fourth bullet is perhaps the creepiest-- your cybereducation program will also sweep up the rest of your online activity. Big Brother is always watching.

This is all even creepier when you look at LCA Learning itself. Here's how they describe themselves:

Our specialties are Street Marketing ™ and Alternative Marketing, Innovation, Brand Psychoanalysis, Active Web Listening and Experiential Marketing.

Or this self-description::

LCA Learning is an academic laboratory on "New Concepts of Marketing" in partnership with the University of San Diego, California

And on their home page, under the heading of "Shades of Learning," they list Street Marketing, Stealth Marketing, Facebook& Twitter, Undercover Marketing, and Ambush Marketing.

The company's creator is Marcel Saucet, whose background is in marketing and business. You can reach him in Paris, San Diego, or Dubai. Meanwhile, the website includes some subheadings that turn out to be bad links, and another spot where you can "get more informations"

A few news outlets(Engadget, Digital Trends) have picked up the story about Nestor, running more or less the same info (from, one would assume, the same press release), hung on the hook that Nestor is being used in two courses in Paris.

But as near as I can tell, nobody has yet run the explanation of how a marketing company suddenly is a champion of artificial intelligence-driven education. The most likely explanation seems to be that it's a great piece of stealth marketing and a great way to extend Big Brother's cyber-arm and add a marketing spin to whatever online courses you're trying to peddle (LCA has a big list). What's remarkable at this point is how few people seem to be asking LCA, "Exactly what is your expertise in education, and why should we buy education software from a marketing company?" Or other useful questions like, "How much data will this program hoover up and offer for people who want more informations about their future customers in order to more effectively stealth market whatever they have tom sell.

What Choice Won't Do

When it comes to the advocates of school choice, there are many points with which I disagree. I disagree with many of their assessments of the public school situation ("a dead end for which we spend more money than God and get results lower than dirt"). I disagree with many of their policy goals (why exactly should parents-- and no other taxpayers-- have a say about how tax dollars are spent).

These are disagreements about policy and systems that can be debated and argued (when people on both sides of the discussion are speaking in good faith). But what I find frustrating in the choice debates is the pro-choice arguments that simply aren't so.

There are some things that school choice simply won't do.

Choice Will Not Save Money

Multiple duplicate school systems must cost more than one single system. When businesses want to save money, they consolidate operations. They don't open more branches and raise their costs.

School Choice Will Not Unleash Competition That Will Spur Excellence

This will not (and has not) happen. For one thing, it's a zero-sum system in which losing means having less of what's needed to compete. It's a race in which the laggards must take off their shoes and give them to the leaders. But the very nature of the competition is problematic anyway.

It's Greene's Law of the Free Market: The free market does not foster superior quality; the free market fosters superior marketing.

Betamax was better than VHS, but VHS made better marketing choices. McDonald's does not dominate its market by producing top-notch gourmet food. Pepsi and Coke do not dominate their market by producing artificially flavored carbonated water that is significantly superior to other artificially flavored carbonated water.

Sure, product quality can be useful as a marketing tool. But it is often expensive, and more companies than we can count have decided they would rather save some money on production and get the product sold with marketing. And in a world jam packed with shiny spinny marketing, even quality is not enough to break through. On the other hand, a huge number of mediocre products that have ridden to success on the back of fancy, expensive marketing.

School choice will unleash marketing, schools promising any number of things they can't deliver. Worse, the drive to market affects the product. If, for instance, we push out all the students who aren't high-achieving, we'll be able to promote ourselves as a school where 100% of the seniors go to college (because everyone who isn't likely to go to college doesn't get to be a senior).

Schools in a free market choice system will not be asking, "How can we become better schools?" They will be asking "How can we convince more students to enroll here?" There will be many answers to that question, from flashier marketing to celebrity spokesperson to-- well, every sort of marketing approach used to sell breakfast cereal or beer. And as long as school attendance is mandatory, there will also be a market for people who choose schools for entirely non-educational reasons. We've already seen this, from basketball academies that minimize academics so students can shoot hoops all day, to the segregation academies where families can keep their children away from black kids.

Choice Will Not Put The Power in Parents' Hands

Choice advocates talk about how choice gives all the power to parents. It does not.

Parents, like any other customers in a free market system, will get exactly the choices that businesses choose to give them. Businesses get to choose the location at which they open. Businesses get to chose their pricing structure. In the case of education-flavored businesses, they get to choose what the requirements of admission are. And charter school businesses routinely set limits on when a student may enroll-- only at particular grade levels and almost never during the school year.

So to start, the only choices available will be the ones that businesses choose for the parents of a community. And choice schools will be highly motivated to choose which students they prefer to take on (see also above marketing section). The schools get to choose-- not the parents. This will work great if your child is a highly desirable recruit, not so much if your child belongs to the other 98%.

But then, there's also the question of how parents will exercise whatever limited choices are available, because the information available to them for making such choices is going to be limited, if not just plain packed with a bunch of noise. Marketing-- choosing a school will be like trying to choose a new car based strictly on car advertisements. It will be in the interests of many choice schools-- particularly the not-so-great ones-- to flood the decision space with inaccurate, misleading, and (depending on their ethics) false information.

Finally, once in a selected choice school, parents may well have no avenue for talking to school management. No monthly board meeting to attend, no local elected board members to call, no central office that has to respond to customer complaints. And schools don't need to keep customers happy, because those customers will be moving on shortly anyway. Who cares if these parents are unhappy-- we were already busy recruiting their replacements anyway?

For high-powered high-information high-clout parents with high-achieving students in wealthy markets, there will be some power in choice. For everyone else, there will not. Not unlike choosing a college-- you can "pick" Harvard, but Harvard will have the final say. There will be big winners, but most customers will be powerless before, during and after the choosing.

There Are Other Goals

There are plenty of bad ideas wrapped up in the school choice movement. There are things we shouldn't want to do, but these are things that choice will not do. There may be reasons to have a serious, honest conversation about choice, but these arguments for choice do not belong in that conversation.

NY: Competition, Shmompetition

Eva Moscowitz has some kind of magical power. Maybe it's money or pheremones or some sort of magical aura, but her record in getting New York leaders to roll over and play fetch for her is impressive.

At the beginning of the month, NY court declared that her Success Academy is not accountable to the taxpayers when it comes to her Pre-K program; the city can not hold her to any sort of performance requirement. That flies directly in the face of the old ideal that a charter works by promising the taxpayer certain results and then is held to those results. Not for Moscowitz-- she remains free to do as she pleases.

Lawmakers in Albany handed her another win. Buried amidst new legislation dealing with mayoral control of schools, there is reportedly this nugget:

The SUNY Charter Institute, the regulations read, “acknowledges that many schools and education corporations it oversees that have demonstrated strong student performance have had difficulty hiring teachers certified in accordance with the requirements of the regulations of the commissioner of education.” SUNY is now planning to create “an alternative teacher certification pathway to charter schools.” 

So New York joins the roster of states where anyone with a pulse and a degree can be certified a teacher.

There are many reasons to be annoyed by this. It degrades the teaching profession, codifying that it is a job that literally anybody could do. It thumbs its nose at all the teachers who went to the trouble and expense to get real certification. And it underlines how charter backers often support ideas for charters that they would never accept in the schools attended by their own children.

But I'm also wondering-- what about the competition?

Charters, particularly in markets like NYC, were supposed to spark competition, as each school worked hard to become the very best, to chart new courses to the Land of Excellence. But isn't that supposed to work like a high jump competition? You know-- we keep setting the bar higher and higher and the jumpers improve their skills-- literally up their game-- to meet the new requirements.

This is the opposite. This is "We can't clear the bar at that height, so we'd like the legislature to lower the bar for us." This is "We'll settle for what the leaders of the best schools and the parents who send children to them would never settle for. We will deliberately not live up to that standard."

Competition is allegedly supposed to weed out those who can't cut it. If you can't manage to adequately staff your school, you aren't cutting it.