Federal Policy – Education Next

Behind Biden Administration’s Retreat on Race and School Discipline, Real Concern on Student Behavior

R. Shep Melnick — Wed, 19 Jul 2023 09:00:32 +0000

The U.S. Department of Education headquarters in Washington, D.C.

As k-12 schools officials struggle to address a post-Covid surge of student misbehavior and violence, they must also navigate rapid swings in civil rights directives from the U.S. Department of Education. A decade ago, the Obama administration issued lengthy guidelines on bullying, sexual harassment, and racial disparities in school discipline. It also launched hundreds of protracted investigations to enforce these demands. The Trump administration withdrew many of these guidelines, and substantially reduced the number of systemic investigations. The Biden administration has promised to return to a more aggressive approach to civil rights rulemaking and enforcement. A year ago, the Department of Education proposed new rules on sexual harassment, and announced new guidelines on discipline for students with disabilities. In May 2023 the departments of Justice and Education took yet another step, releasing a policy statement with the enigmatic title, “Resources on Confronting Racial Discrimination in Student Discipline.”

Neither a formal regulation or even a standard guidance document, “Resources” describes 14 investigations of school discipline practices completed by the Department of Education between 2012 and 2022. It includes an account of an academy in Arizona that told a student with an Afro to get a haircut. It also include the case of a school district in Utah that referred a Black student to law enforcement while giving a white student a conference for the same offense. Oddly, the two departments insist upon the limited legal significance of their report: “It does not constitute final agency action, and it does not have an immediate and direct legal effect. It does not create any new rights or obligations, and it is not enforceable. Neither the Departments’ investigations nor the summaries included below constitute a binding precedent.” “This document,” they explain, “is for informational and technical purposes only.” What guidance, then, does this report offer? Largely a set of steps school districts can take to stay in the departments’ good graces.

To understand the ongoing controversy over school discipline mandates, it is important to recognize just how limited the federal government’s power is in this area. Outside of special education, the federal government only has authority to prohibit disciplinary practices that discriminate on the basis of race, national origin, or sex. (The Individuals with Disabilities Education Act, in contrast, creates specific rules for disciplining students with individualized education plans). In 2014 the Obama administration launched an aggressive effort to substantially curtail use of out-of-school disciplinary measures (that is, suspensions and expulsions), which many claim have no educational value and contribute to the “school-to-prison pipeline.” But the only way federal regulators could address the issue was by claiming that these punishments were being applied in a racially discriminatory manner.

There is no question that if school officials punish a Black student more harshly than a similarly situated white student, they have engaged in unlawful discrimination and violated Title VI of the 1964 Civil Rights Act. But what does “similarly situated” mean? Not only that the two students engaged in the same type and degree of misconduct, but also that they had a similar history of prior transgressions. Proving “different treatment” requires detailed investigation of individual cases. Given the subjective nature of many forms of misbehavior and the fact that most such behavior is viewed only by a few people, seldom are these easy calls. Consequently, the Obama administration’s 2014 Dear Colleague Letter announced that schools “also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating on the basis of race.” A school’s disciplinary policies and practices would be deemed to have an “adverse impact” on minority students if those students are “disproportionately” punished at higher rates or “subject to longer sanctions or more severe penalties.” Once that prima facie case has been made, the school bears the burden of demonstrating that its policy is “necessary to meet an important educational goal,” and that there exist no “comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group.” The Department of Education’s Office of Civil Rights explained that it would take a particularly hard look at policies that “impose mandatory suspension, expulsion or citations” for specified offenses, especially truancy. Such punishments, federal regulators strongly suggested, are seldom either “necessary” or “effective.”

Black students are subject to disciplinary action more frequently than white, Asian, or Hispanic students. This might be the result of discrimination, but it might also be a consequence of difference in socio-economic status, family structure, neighborhood influences, youth subcultures, and policies adopted by schools in high-crime areas. Although the 2014 Dear Colleague Letter acknowledged that racial disparities “may be caused by a range of factors,” its “disparate impact” analysis said little about them. Its primary goal was to curtail the use of out-of-school punishments. The Trump administration withdrew that Dear Colleague Letter in 2018. The Biden administration subsequently announced that the withdrawal was “under review.”

The 2014 Dear Colleague Letter was announced by the Assistant Secretary of Education for Civil Rights Catherine Lhamon. When she was nominated to regain that position in 2021, she told a Senate committee, “it’s crucial to reinstate guidance on the topic.” What is most notable about the 2023 document, though, is the extent to which it backs away both from the 2014 Dear Colleague Letter’s “disparate impact” analysis and from its blanket condemnation of out-of-school punishments. Helpful suggestions have replaced legally binding obligations. Although this shift does not preclude a return to the aggressive enforcement strategy of the Obama administration, it does seem to signal a more conciliatory federal approach to discipline issues as public schools struggle to respond to heightened levels of violence and misbehavior.

By focusing on case resolutions that span the Obama, Trump, and Biden administrations, the report seeks to downplay the obvious policy shifts of the past decade. Most of the policy changes recommended in the report are sensible and relatively uncontroversial. They include

Collecting and regularly reviewing data on disciplinary actions to identify possible discrimination;
Establishing clearer, less subjective rules on what constitutes misconduct and appropriate the punishments for various levels of misconduct;
Making sure that school policies are consistent with state law;
Reducing the role of School Resource Officials (i.e. law enforcement personnel with arrest power located within schools) in routine disciplinary matters;
Improving communications with parents, especially those with limited English proficiency;
Developing alternatives to out-of-school punishments;
Providing better training to school personnel;
Hiring more school counselors and mental health professionals; and
Providing students with “tutoring, afterschool and summer learning, and enrichment programs to help students make meaningful academic and behavioral progress.”

Note that most of these items are worthy aspirations, not enforceable rules. Whether schools will have the resources and the commitment to put them into effect is one big question. How the Department of Education will try to nudge them in that direction is another.

Why has the department retreated from its hardline 2014 stance? Perhaps the White House has pressured the department to avoid hot-button educational issues prior to the 2024 election—as it seems to have done with the department’s recent proposal on transgender students’ assignment to sports teams. So far, though, we have little information on the nature of the debate within the administration. Nonetheless, it is possible to identify four factors that likely influenced its deliberations.

The first is growing alarm among school officials and parents about post-Covid disorder in our schools. According to a report by the Brookings Institution’s Brown Center, “Schools across the country are reporting increased levels of misbehavior, including fights and more serious acts of violence.” A survey conducted by Education Week’s Research Center found that “nearly half of all school and district leaders (44 percent) say they are receiving more threats of violence by students now than they did in the fall of 2019 . . . [T]wo out of three teachers, principals, and district leaders say that students are misbehaving more these days than they did in the fall of 2019.” In this context, restricting the availability of disciplinary measures would encounter strong resistance.

The second is concern among rank-and-file teachers about their own safety and the difficulty of maintaining order in classrooms and hallways. The department’s 2014 Dear Colleague Letter initially received support from the national leadership of teachers’ unions, but eventually drew angry opposition from teachers subject to lengthy investigations and restrictions on out-of-school punishments. With teachers facing greater threats of violence within the classroom, such opposition could not be ignored—especially since it comes from a key Democratic constituency.

Third, initial research on the main alternative to out-of-school punishments—restorative justice—found that this approach to dealing with misbehavior falls far short of its supporters’ expectations. Subsequent to the 2014 Dear Colleague Letter, the RAND Corporation sponsored two randomized control studies comparing schools that instituted restorative justice programs with those that employed traditional disciplinary practices. RAND’s study of several schools in Maine found that “the middle-school student who received Restorative Practices Intervention did not report more school connectedness, better school climate, more positive peer relationships and developmental outcomes or less victimization than students in control schools did.” A second, more extensive study of schools in Pittsburgh found that the number and length of suspensions declined in elementary schools instituting restorative justice programs. However,

Despite fewer suspensions, academic outcomes did not improve in PERC schools [those instituting restorative justice programs]. At the middle grade level (grades 6-8) academic outcomes actually worsened in the treatment schools. Neither did we find fewer suspensions in middle grades. . . . We did not see fewer suspensions for male students, for students with individual education plans, or for incidents of violence or weapons violation. Neither did we see a reduction in arrests.

According to a summary of the evidence in The Hechinger Report, “The biggest insight from the Maine study was how hard it is for schools to implement restorative justice even after days of teacher training, monthly consultations and visits by coaches.”

Finally, studies of the implementation of the Obama administration’s policies found a wide gap between the policies announced in formal agreements between school leaders and federal officials on the one hand, and the actual practices of teachers and principals on the other. Within a single school district, compliance and reporting differed substantially from one school to another. That experience suggests that without substantial support from teachers and principals on the front lines, directives on discipline from Washington are likely to be ignored.

The fact that federal regulators have addressed the school discipline issue by describing the results of past investigations rather than by issuing explicit rules emphasizes the central role that such investigations play in federal civil rights policy. Especially during the Obama administration, the Department of Education has used lengthy and intrusive investigations to pressure schools to sign detailed resolution agreements. The process was the punishment, and federal policy was in effect the sum of these individually negotiated agreements. The May 2023 report does little to constrain the Department of Education. But it seems to indicate that the department has adopted a more nuanced and pragmatic approach to the school discipline issue than it did a decade ago.

Shep Melnick is the Thomas P. O’Neill, Jr. Professor of American Politics at Boston College and author, most recently, of The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

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The Imperial Presidency Meets Student Debt

Joshua Dunn — Wed, 01 Mar 2023 13:25:49 +0000

Nebraska Solicitor General Jim Campbell speaks with reporters outside the Supreme Court on Capitol Hill in Washington, Tuesday, Feb. 28, 2023, after arguing before the court against President Joe Biden’s student debt relief plan. Standing behind Campbell are Missouri Attorney General Andrew Bailey, from left, Iowa Attorney General Brenna Bird, Ray Wagner of the Missouri Attorney General’s office and Nebraska Attorney General Mike Hilgers.

The 20th century witnessed an astonishing growth in presidential power, leading some to contend that the office had become “imperial,” dominating other branches of government. President Biden’s decision in 2022 to forgive more than $350 billion in student loan debt—an action taken on the basis of statutory authority that was, at best, unclear—gave critics of the imperial presidency another reason to worry.

During the 2020 presidential campaign, Biden promised to waive up to $10,000 in federal student-loan debt. When he did so in August of 2022, the amount increased to $20,000 for Pell Grant recipients but was limited to $10,000 for all others. To qualify, in either 2020 or 2021 the adjusted gross income for individuals had to be less than $125,000 and for married couples less than $250,000. The legal authority on which Biden relied to justify the action was the Higher Education Relief Opportunities for Students Act of 2003, also known as the HEROES Act. The Act, which was passed in the wake of the September 11, 2001, terrorist attacks, allows the Secretary of Education to “waive or modify any statutory or regulatory provision . . . as may be necessary to ensure that” borrowers affected by a national emergency “are not placed in a worse position financially.” It defined the individuals who could qualify for relief as those serving on active duty or in the national guard during a war or other military operation, those living or working or is employed in an area that is declared a disaster area by a federal, state or local government, or those who have “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.”

Previously, in response to the Covid-19 pandemic, the Trump administration had suspended student loan repayments, a policy Biden continued while unsuccessfully seeking Congressional passage of loan forgiveness. Indeed, prior to Biden’s action, it was difficult to find many people who thought the president had the authority to cancel debt unilaterally without a new act of Congress. For instance, in July of 2021, when asked about student loan forgiveness, Speaker of the House Nancy Pelosi said, “The president can’t do it. So that’s not even a discussion. Not everybody realizes that. But the president can only postpone, delay, but not forgive.” The “discussion” that nonetheless ensued ultimately led to oral argument before the Supreme Court February 28, 2023, in two cases, Biden v. Nebraska and Department of Education v. Brown, that challenged the Biden administration’s decision.

The first was brought by six Republican state attorneys general. They contended that Biden had exceeded his authority under the HEROES Act and that the plan was created in violation of rulemaking procedures that federal agencies are supposed to follow. A federal district court judge, Henry Autrey, initially dismissed the case, saying that states lacked standing to sue. But a three-judge appellate panel in the 8th Circuit overturned that decision and granted an emergency injunction pausing the program. The Supreme Court then accepted a Biden Administration request to hear the case on expedited schedule.

The second case was brought by two student-loan borrowers. Myra Brown did not qualify for relief under the program because her loans were held by commercial lenders. Alexander Taylor did not qualify for $20,000 of relief because he did not receive Pell Grants. Both argued that it was “irrational, arbitrary, and unfair” for their debt to not be forgiven too. A district court judge, Mark Pittman, ruled that the program was unlawful. When the 5th Circuit Court of Appeals refused to pause that ruling, the Supreme Court agreed to hear the case on an expedited schedule as well.

At oral argument, the justices spent significant time discussing whether the states or the students had standing. The best hope for the Biden Administration to prevail would be for some of the court’s conservatives to join with the liberal bloc to declare that none of the plaintiffs had a right to sue. For plaintiffs to have standing, they must show a “concrete harm” or “injury in fact.” Some of the conservative justices, such as Justice Barrett, appeared sympathetic to the claims that some of the plaintiffs could not meet that standard. But overall, the justices seemed skeptical about accepting the consequences of adopting that position. Chief Justice Roberts captured that skepticism when he said to Solicitor General Elizabeth Prelogar, who was defending the policy for the Biden Administration, that her view means “that the President can act unilaterally” and therefore “there was no role for Congress to play in this either, and at least in this case, given your view of standing, there’s no role for us to play in this — in this either.” This outcome seemed antithetical to principles of separation of powers and the ability of each branch of government to check abuses of power by the others to Roberts. As well, Prelogar acknowledged under questioning by Justice Alito that as long as the court finds that any party in either of the cases has standing that the court could decide both cases on the merits. Since standing doctrine is relatively flexible, it seems likely that the court will decide that at least one of the two students or one of the six states does in fact have standing.

If the court’s conservatives do reach the merits, enough of the justices appeared unconvinced that Biden had sufficient legal authority for his action to make betting on the program’s survival unwise. Most importantly, there seemed to be a consensus that at the least the policy should fall under the major questions doctrine. Just last term, the court used that doctrine to strike down the Environmental Protection Agency’s Clean Power Plan in West Virginia v. EPA. The doctrine says that if an agency wants to decide an issue of extraordinary economic or political significance, the agency must be able to point to Congressional authorization that is clear and specific rather than merely vague. Even Justice Sotomayor said that the significant sum involved in forgiving the loans “seems to favor the argument that this is a major question.” Prelogar tried to argue that the doctrine should only apply to exercises of regulatory authority by an agency while this was merely a “benefits program” which allegedly has a lower threshold of “liberty interests” for citizens. That distinction did not seem to gain any traction.

Justice Thomas pointed to another concern. Canceling the debt was “in effect . . . a grant of $400 billion,” he noted, which seemed to him to run “head long into Congress’s appropriations authority.” Other justices seemed skeptical that even if the program could be created that it could be done so outside of normal notice-and-comment rulemaking where the public has an opportunity to weigh in on the effects of the decision. Prelogar argued that Congress had exempted the HEROES Act from those requirements, but Justice Kavanaugh seemed to think that outside of ordinary rulemaking it would be impossible for the Secretary of Education to factor in all the “big winners and big losers” created by loan forgiveness.

Those “winners and losers” also troubled Chief Justice Roberts, who raised questions about the fairness of the program. Some people might have worked hard during college to avoid taking out loans while others did not, but only the latter would rewarded. Roberts also mentioned a hypothetical landscape-business owner who didn’t go to college but who borrowed money to start a business. His debt was not forgiven, and his tax dollars were spent to subsidize the college graduates. At one point, the chief referred to the loan forgiveness as a “half trillion” dollar action. To Roberts this reinforced that this kind of decision should be left to Congress, since “we like to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayers’ money, to the people in charge of the money, which is Congress.”

Overall, the broad concerns about executive power likely point to a loss for the Biden Administration. Justice Kavanaugh, for instance, said that “some of the biggest mistakes in the Court’s history were deferring to assertions of executive emergency power” while “some of the finest moments in the Court’s history were pushing back against presidential assertions of emergency power.” One could even imagine a majority agreeing that the policy was unlawful but not agreeing on the reasons why, which would still mean a defeat for the Biden Administration.

The administration tried to turn the focus back to the beneficiaries of the debt relief, with Secretary of Education Cardona issuing a post-argument statement about “the crushing burden of student debt for millions of working families.” The court may tell those families, essentially, that if they want loan forgiveness, they will need not only to elect a sympathetic president such as Biden, but also to install a Congress that is willing to authorize the expenditure in a more explicit way than was done by the HEROES Act of 2003. Those concerned about the imperial presidency would welcome that result.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Summer 2023 issue of Education Next. Suggested citation format:

Dunn, J. (2023). The Imperial Presidency Meets Student Debt: Supreme Court skeptical of Biden’s unilateral loan forgiveness. Education Next, 23(3), 6-7.

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Student Loan Payment Pause Benefits High-Income Households the Most

Diego Briones — Tue, 17 Jan 2023 05:01:58 +0000

A great deal has changed since March 2020, when executive and Congressional action paused payments on most federal student loans. The national unemployment rate spiked at 14.7 percent in April 2020, but receded dramatically and has stayed below 4 percent since December of 2021. Meanwhile, inflation climbed from an average of 1.2 percent in 2020 to 9.1 percent in June 2022—the biggest jump in 40 years.

Yet, following nine extensions, the payment pause on student loans remains in place at an approximate direct cost of $5 billion per month. The Biden Administration also has moved to end some repayments altogether, by forgiving hundreds of billions of dollars in federal student loans. Whether the forgiveness program is legal, and whether millions of Americans will have to repay their student loans back in full, is now before the U.S. Supreme Court. Justices will hear the case on February 28.

These two policies may be tethered to one another in court, but they have strikingly different distributional impacts. While the White House claims that nearly 90 percent of the relief provided under the forgiveness plan would go to families with incomes less than $75,000, the payment pause has provided more than 65 percent of the relief to families with incomes greater than $75,000. In fact, the top 20 percent of households receive nearly 30 percent of the benefit while only accounting for 16 percent of families with federal student debt.

We look at the household student loan balances, payments, as well as earnings, to determine the relative impacts of the payment pause program on lower- and higher-income Americans. Our analysis shows the across-the-board pause on federal student loan payments disproportionately benefits the most affluent borrowers. Continuing the payment pause without means-testing its benefits leads to ballooning costs for taxpayers.

Still, in the absence of some payment relief, approximately 12 percent of families, who disproportionately have low and moderate incomes, have payment-to-income ratios greater than conventional metrics for excessive student debt burden. If both the payment pause and promise of partial loan forgiveness end with an adverse Supreme Court ruling in early 2023, these borrowers are at risk of significant negative financial impacts.

The reliance on the payment pause may have made other avenues of relief, including relief under Income-Driven Repayment plans and the Fresh Start program, less salient for the most vulnerable borrowers. Yet these more stable avenues represent the best way to assist borrowers most in need of government support. Encouraging families to seek out these options now, while the pause is still in effect, is an important safeguard for borrowers’ longer-term financial health.

How Much does the Student Loan Payment Pause Cost?

Various government sources and independent policy organizations have provided cost estimates to the student loan payment pause. Reconciling these estimates requires articulation of the impact of the payment pause on the federal budget along with other economic indicators.

Available government measures have recorded the pause on financial statements as “loan modifications,” which is essentially the cost of forbearance with zero interest accrual. The U.S. Department of Education has calculated these costs at $41.9 billion for Fiscal Year 2020 and $53.1 billion for Fiscal Year 2021. The total indefinite appropriations provided in Fiscal Year 2020 and Fiscal Year 2021 for student loan payment deferrals was $98.4 billion. The Congressional Budget Office estimated the cost of the payment pause at $112.8 billion from March 2020 to May 2022. A subsequent letter from the office projected that the 4-month extension of relief from August 2022 to December 2022 would cost an additional $20 billion.

In July 2022, the Government Accountability Office analyzed data from the Department of Education and found that costs associated with the emergency relief between March 2020 and April 2022 totaled $102 billion. This analysis, which does not include extensions beyond August 2022, only measures costs associated with the Direct Loan program and likely underestimates the total cost of the payment pause.

Analysts in the private sector also have considered factors beyond the direct cost of lost interest payments. In August 2022, the Committee for a Responsible Federal Budget (CRFB), a private think tank focused on fiscal policy, estimated the total cost of the pause through the end of 2022 to be $155 billion. With the extension announced in November, the organization presented the cost of the extension of the payment pause until August 2023 as generating a cumulative policy cost of $195 billion. Broadly, the analysis asserts that the pause of collections on loans, interest, and defaults costs $5 billion per month, which is generally consistent with estimates from the Congressional Budget Office.

While government analyses focused more exclusively on the accounting costs of the policy, CFRB also identified the inflationary implications of the pause. First, inflation generates a cost in the erosion of the value of future payments to the government; for individual debt holders, this cost is a “benefit” in the form of reductions in the real value of future payments. Second, as borrowers have more cash-on-hand for consumption, it is likely that the student loan pause increases inflation, with the organization estimating an effect of about 20 basis points per year. Indeed, this inflation impact was acknowledged by the Biden White House, as Council of Economic Advisors member Jared Bernstein claimed that the restarting of student loan payments would offset any inflationary impact of debt forgiveness.

One final component of “cost” that most analyses do not consider is the payments that will be foregone for borrowers receiving Public Service Loan Forgiveness and Income-Driven Repayment forgiveness. For borrowers covered by these programs, the months of forbearance during the payment pause (34 to date) are included as part of the repayment count. Thus, a worker covered by the public service program, which forgives loan balances after 120 qualifying months of payments, would need only 86 additional qualifying payments to qualify for full loan relief. While it is difficult to provide a full accounting of the eventual “costs” of these forgone payments to the government, they are not distributionally neutral because those borrowers who forego relatively large payments or would have paid off their loans before forgiveness are the largest beneficiaries.

Distributional Evidence

The benefits of the payment pause tie directly to the balances, monthly payments, and the interest rates on the loans. Each of these components contributes to the net regressive impact of the payment pause continuation.

Interest rates on federal student loans vary based on the education level of the borrower and the type of loan, effectively representing the current benefit per dollar borrowed. To illustrate, for 2022, the interest rate for undergraduate borrowers is 4.99 percent, while graduate borrowers face a rate of 6.54 percent. Through the PLUS program, graduate and professional students who borrow beyond the basic limit and parents borrow at 7.54 percent interest. Thus, for each dollar borrowed, PLUS borrowers receive the greatest “benefit” from the pause.

Using data from the 2019 Survey of Consumer Finances, we organize households with federal student debt (our sample of ”borrowers”) by decile of family income to estimate the distribution of student loan payments and balances. While the incidence of borrowing is broadly concentrated in the middle of distribution (about 71 percent in the middle 60 percent of the distribution), both payments and balances are concentrated in the top part of the income distribution (see Figure 1). Borrowers in the top four deciles, with approximate family incomes greater than $80,000, account for about 47.4 percent of student loan balances and about 60 percent of student loan payments, but only 41.4 percent of households with federal student debt. The greater concentration of student loan payments (relative to balances) in the top deciles reflects the fact that borrowers at lower deciles are more likely to be in deferment or enrolled in income-based repayment.

We also see an upward march of mean loan payments across the income distribution, making clear that higher-income households see the largest increases in cash-on-hand and interest subsidies from the payment pause (see Figure 2). What is more, the erosion of the real value of future liabilities with high inflation (4.7 percent in 2021 and 8.0 percent in 2022) disproportionately benefits high-balance borrowers, who are likely to be found in the top deciles of the income distribution.

The payment-income patterns we observe also have been documented in administrative banking data linked to credit reports. Research published by the JPMorgan Chase Institute, for example, examines an extraordinarily rich dataset involving 301,000 people. It demonstrates that for borrowers making about $30,000 per year, the median monthly payment is about $134 and the 90th percentile payment about $419; for borrowers making about $130,000 per year, the median monthly payment is about $225 and the 90th percentile payment about $813.

Even as payments and loan balances, along with interest premiums, are skewed to the top part of the income distribution, the question of how the “burden” of student loans is measured relative to income merits investigation. We therefore also plot the means of student loan payment to income ratios by household earnings decile.

Mean payment-to-income ratios generally decline with income and range from approximately 1.8 percent in the top decile to 6.3 percent in the 2nd decile. However, there is notable variation in the degrees of burden both overall and within income deciles, even as these ratios tend to be higher at the bottom than at the top of the income distribution. In total, 12 percent of families have payment-to-income ratios greater than 8 percent, which is a conventional metric for excessive debt burden. Within deciles, the shares of families carrying an excessive debt burden range from 2.7 percent for the 10th to 27.3 percent for the 2nd. Again, this resembles the patterns observed in the banking data, which show that about one-quarter of borrowers have a scheduled student debt burden above 7.3 percent, while 10 percent is obligated to pay at least 13.3 percent of their take-home pay. The takeaway is that while the majority of borrowers have “manageable” student debt, there is a significant minority that is likely to struggle with repayment.

We also look at which types of degree holders have the highest payment levels. Our analysis shows that nearly 48 percent of payments are made by graduate degree recipients, even as this highly educated group constitutes about 29 percent of borrowers. Finally, we examine borrowing, debt levels, and payments by race. While Black Americans constitute roughly 20 percent of households with federal student loans and hold 23 percent of balances, they make approximately 15 percent of the aggregate loan payments. By contrast, white American households make up about 61 percent of borrowers and 70 percent of payments. Thus, the relief afforded by the payment pause is racially disparate in its absolute impact.

Policy Alternatives

Continuing to extend the student loan payment pause is expensive and regressive. It costs at least $5 billion per month and delivers the bulk of the benefits to upper-income families. In addition, these many extensions threaten the government’s future credibility to administer student loan programs or, indeed, any government lending initiative. With at least three announcements of a “final” pause, it seems unlikely that borrowers will take such announcements seriously and change their spending behavior to prepare for payments to restart. These individuals may face serious financial deficits if payments ever do resume—and the biggest risks are concentrated among families at the lower end of the income distribution. Looking farther in the future, the “normalization” of payment suspension may create an expectation that all forms of perturbations in the economy will be met with a payment pause. Such expectations would make a student lending policy fiscally unsound.

Still, there are plainly borrowers who are at risk of delinquency or default with a resumption of payments. Is extending the payment pause a lifeline for these struggling borrowers, or a diversion that may actually them?

The extension of the payment pause may encourage a false expectation for borrowers. The latest pause announcement claims: “The extension will alleviate uncertainty for borrowers as the Biden-Harris Administration asks the Supreme Court to review the lower-court orders that are preventing the Department from providing debt relief for tens of millions of Americans.” And U.S. Secretary of Education Miguel Cardona introduced the most recent extension of the payment pause by saying:

“Callous efforts to block student debt relief in the courts have caused tremendous financial uncertainty for millions of borrowers who cannot set their family budgets or even plan for the holidays without a clear picture of their student debt obligations…”

It would be difficult to deny that there is uncertainty surrounding the eventual likelihood of debt forgiveness. However, rhetoric from Secretary Cardona and the Department of Education that encourages a false sense of security about the likelihood of debt forgiveness may make at-risk borrowers worse off. Without taking on the role of legal odds-maker, debt forgiveness is far from certain, and a ruling from the Supreme Court against executive action could lead to a payment restart in the first half of 2023 rather than in August 2023. Rather than providing false assurances about the prospects for forgiveness, shouldn’t the Department of Education and the Biden administration be taking every possible step to ensure that borrowers have access to the safety net of resources designed to help those who may struggle with the restart of payments?

Public conversation about student loan forgiveness sometimes invokes a false dichotomy: endlessly continuing the payment pause as the sole alternative to financial ruin for borrowers who are struggling in the labor market or who have been victims of predatory institutions. However, these borrowers have clear options. Indeed, notable accomplishments of the Biden administration include progress to increase access to Income-Driven Repayment, Fresh Start to Repayment, Public Service Loan Forgiveness, and Borrower Defense to Repayment.

Most notably, existing income-based repayment programs are designed to provide relief for low- and moderate-income borrowers for whom standard repayments would cause financial hardship. These programs limit payments based on earnings and eventually forgive outstanding balances after 20 or 25 years. For example, current programs like Pay As You Earn and Revised Pay As You Earn generally cap payments at 10 percent discretionary income. Yet, since the pandemic began, the number of borrowers in income-based repayment programs has increased only slightly, even as it is widely recognized that there are many more borrowers who would benefit but are not enrolled.

The most constructive action from the White House and the Department of Education would be to use the remaining time of the pause to motivate enrollment in existing income-based repayment plans and other programs already “on the books” to help borrowers. Aggressive focus on the politically and judicially uncertain debt forgiveness makes other programs that could provide certain relief less salient to borrowers. Indeed, one hypothesis is that low take-up of the Public Service Loan Forgiveness waiver, which has been suspended as of October 31, 2022, was driven by many borrowers’ expectations that they would be able to get loan relief through forgiveness without having to complete the paperwork filings associated with the public service program.

The political and public relations efforts around the forgiveness plan would appear to crowd out more general outreach and troubleshooting to ensure that at-risk borrowers are protected when payments resume. While more than $100 million was budgeted for the rollout of the forgiveness application, there has been no comparable expenditure to increase take-up of existing loan relief programs for at-risk borrowers. And recent Congressional action, which can be seen as a partisan response to the forgiveness effort, denied additional funding to the Office of Federal Student Aid in the December 2022 omnibus spending bill, exacerbating the problems of antiquated processes and limited trouble-shooting tools. In addition, expending the limited bandwidth of the Department of Education and its Office of Federal Student Aid on an uncertain forgiveness effort or a new income-driven repayment plan with questionable distributional implications seems ill-advised.

Executive action combined with judicial intervention in the student loan space seems to yield short-term and unsustainable fixes. These may not only confuse borrowers, but also contribute to instability in the policy process and, ultimately, the higher education market. If only executive action and judicial decision-making prevail over the course of the next two years, there is no certainty in outcomes. Instead, borrowers are faced with a decision tree of various scenarios reflecting possible combinations of Supreme Court rulings and executive action. Regardless, plausible scenarios including extending the student loan payment pause indefinitely by executive action or ending it by judicial ruling would not address the structural problems of design and implementation that have long plagued federal student lending.

While the legislative process presents significant challenges with razor-thin majorities in both the Senate and House of Representative, looking over the longer term it’s clear that compromise is imperative to build a well-functioning student loan system. Americans need a student loan program that enables the kind of post-secondary investments that contribute to economic prosperity and innovation while also providing borrowers with insurance against weak economic outcomes and oversight to prevent abuse by predatory institutions. In the meantime, the tools exist to protect at-risk borrowers right away: it’s time to put them to use.

How We Got Here: A Brief History of the Student Loan Repayment Pause

The student loan payment pause began March 13, 2020, when President Trump used executive authority to waive interest on all government-held student loans, effectively allowing penalty-free forbearance. The initial presidential announcement did not cite specific authorizing language, though the declaration of the Covid-19 pandemic provided a broad rationale.

When Congress passed the Coronavirus Aid, Relief and Economic Security Act, it included language that required the U.S. Secretary of Education to suspend payments on designated student loans until September 20, 2020. These provisions were not extended by Congress in the summer of 2020; however, President Trump used executive action to direct then-Secretary Betsy DeVos to extend the payment pause until the end of the year. He then issued a payment pause extension to January 31, 2021. These actions cited the Higher Education Relief Opportunities for Students Act of 2003, known as the HEROES Act, which amended the Higher Education Act of 1965 to provide executive authority to “grant waivers or relief” to recipients of federal financial aid in connection with “a war or other military operation or national emergency.”

The use of the HEROES Act to pause student loan payments in 2020 went unchallenged. But a larger question emerged: did the HEROES Act also provide executive authority to cancel student loan debt? Loan forgiveness became a campaign issue in the 2020 Democratic primary and presidential elections. For example, Senator Bernie Sanders called for canceling “all student loan debt for the some 45 million Americans who owe about $1.6 trillion.” Senator Elizabeth Warren articulated her call for canceling student loan debt early in her campaign and well before the start of the pandemic, with a plan released in April 2019 calling for “the cancellation of up to $50,000 in student loan debt for 42 million Americans.” On the campaign trail, President Biden presented a plan that limited full debt forgiveness to low- and middle-income borrowers who had attended public institutions or Historically Black Colleges and Universities and then proposed to “immediately cancel a minimum of $10,000 of student debt per person, as proposed by Senator Warren in the midst of the coronavirus crisis.”

As one of his first acts in office on January 21, 2021, President Biden extended the student loan repayment pause using the HEROES Act authority until August 31, 2021. As that date neared, the payment pause was again extended until January 31, 2022, with this billed as the “final” extension. Yet there were two additional extensions, to May 31 and then September 30, 2022—a full two years after the pause was granted by Congress.

Alongside the question of the appropriate duration of the payment pause, the Biden administration faced the larger political (and legal) question of whether to attempt to use the HEROES Act to cancel some student debt. That move came on August 24, 2022, when the administration announced executive action to discharge student debt and a “final” extension of the payment pause until December 31, 2022. The plan was soon challenged in court, with two lawsuits effectively halting the program.

The application for student loan forgiveness opened on October 17, 2022. Four days later, the U.S. Court of Appeals for the 8th Circuit placed a temporary hold on the program. During this time the government continued to encourage applications but did not discharge loans. However, on November 10, a federal judge in Texas blocked the loan forgiveness policy and the U.S. Court of Appeals for the 8th Circuit followed with a 3-0 decision granting an order of injunction halting the proposed debt relief plan on November 14. The Biden Administration stopped accepting applications for loan forgiveness on November 11. Beginning on November 19, the Biden administration notified many borrowers who had applied through the Department of Education website that “[Your] application is complete and approved, and we will discharge your approved debt if and when we prevail in court.”

The legality of the forgiveness program will be before the U.S. Supreme Court in February. Justices rejected two early requests to block loan forgiveness but then agreed to hear the case from the Court of Appeals. Meanwhile, the Court of Appeals for the 5th Circuit declined to overturn the Texas judge’s ruling that forgiveness is unlawful, which essentially vacated the program.

With forgiveness suspended and the resumption of payments approaching, an announcement on November 22 extended the student loan repayment pause again. Now payments are scheduled to resume no later than 60 days after June 30, 2023, giving time for the Supreme Court to consider the case.

While there were few questions about the legal status of the payment pause at the height of the Covid-19 pandemic, questions about the legality, cost, and distributional implications of the extension have received greater scrutiny. The legal questions, as summarized by a 2021 Congressional Research Service report, involve the interpretation of the language of the HEROES Act, the process of its implementation, and whether a “national emergency” remains in effect. The legal standing of payment pause extensions under the HEROES Act is not unassailable, but this is ultimately a question for the courts. That said, there are notable parallels with the 2021 U.S. Supreme Court decision in Alabama Association of Realtors v. Department of Health and Human Services, which struck down the continuation of a moratorium on evictions from executive action rather than the legislative process.

Diego Briones is a doctoral candidate in economics at the University of Virginia. Eileen Powell is a graduate student at the Batten School of Leadership & Public Policy at the University of Virginia. Sarah Turner is University Professor of Economics and Education and Souder Family Professor at the University of Virginia.

This article appeared in the Summer 2023 issue of Education Next. Suggested citation format:

Briones, D., Powell, E., and Turner, S. (2023). Student Loan Payment Pause Benefits High-Income Households the Most: With forgiveness uncertain, struggling borrowers are unprotected from risk. Education Next, 23(3), 40-47.

The post Student Loan Payment Pause Benefits High-Income Households the Most appeared first on Education Next.

“It Felt Like Guerrilla Warfare”

Chester E. Finn, Jr. — Tue, 17 May 2022 09:00:38 +0000

As I write this, representative samples of 4th and 8th graders are taking National Assessment of Educational Progress tests in math and English. These exams must be held every two years in accordance with federal law to determine how well ongoing education reforms are working, whether achievement gaps between key demographic groups are growing or shrinking, and to what extent the nation is still “at risk” due to weakness in its K–12 system. Best known as “The Nation’s Report Card,” the NAEP results have long displayed student achievement in two ways: as points on a stable vertical scale that typically runs from 0 to 300 or 500 and as the percentages of test takers whose scores reach or surpass a trio of “achievement levels.” These achievement levels—dubbed “basic,” “proficient,” and “advanced”—were established by the National Assessment Governing Board, an almost-independent 26-member body, and have resulted in the closest thing America has ever had to nationwide academic standards.

Though the NAEP achievement levels have gained wide acceptance amongst the public and in the media, they are not without their detractors. At the outset, the idea that NAEP would set any sort of achievement standards was controversial; what business had the federal government in getting involved with the responsibilities of states and localities? Since then, critics have complained that the achievement levels are too rigorous and are used to create a false sense of crisis. Now, even after three decades, the National Center for Education Statistics continues to insist that the achievement levels should be used on a “trial basis.”

How and why all this came about is quite a saga, as is the blizzard of controversy and pushback that has befallen the standards since day one.

Recognizing the Need for Performance Comparisons

In NAEP’s early days, results were reported according to how test takers fared on individual items. It was done this way both because NAEP’s original architects were education researchers and because the public-school establishment demanded that this new government testing scheme not lead to comparisons between districts, states, or other identifiable units of the K–12 system. Indeed, for more than two decades after the exams’ inception in 1969, aggregate NAEP data were generated only for the nation as a whole and four large geographic quadrants. In short, by striving to avoid political landmines while pleasing the research community, NAEP’s designers had produced a new assessment system that didn’t provide much of value to policymakers, education leaders, journalists, or the wider public.

Early critical appraisals pointed this out and suggested a different approach. A biting 1976 evaluation by the General Accounting Office said that “unless meaningful performance comparisons can be made, states, localities, and other data users are not as likely to find the National Assessment data useful.” Yet nothing changed until 1983, when two events heralded major shifts in NAEP.

The first stemmed from a funding competition held by the National Institute of Education. That led to moving the main contract to conduct NAEP to the Princeton-based Educational Testing Service from the Denver-based Education Commission of the States. ETS’s successful proposal described plans to overhaul many elements of the assessment, including how test results would be scored, analyzed, and reported.

President George H.W. Bush with Lamar Alexander, who catalyzed the “Time for Results” study as Tennessee governor

The noisier event that year, of course, was the declaration by the National Commission on Excellence in Education that the nation was “at risk” because its schools weren’t producing adequately educated graduates. Echoed and amplified by education secretaries Terrel Bell and Bill Bennett, as well as President Reagan himself, A Nation at Risk led more state leaders to examine their K–12 systems and find them wanting. But they lacked clear, comparative data by which to gauge their shortcomings and monitor progress in reforming them. The U.S. Department of Education had nothing to offer except a chart based on SAT and ACT scores, which dealt only with a subset of students near the end of high school. NAEP was no help whatsoever. The governors wanted more.

Some of this they undertook on their own. In mid-decade, the National Governors Association, catalyzed by Tennessee governor Lamar Alexander, launched a multi-year education study-and-renewal effort called “Time for Results” that highlighted the need for better achievement data. And the Southern Regional Education Board (also prompted by Alexander) persuaded a few member states to experiment with the use of NAEP tests to compare themselves.

At about the same time, Secretary Bennett named a blue-ribbon “study group” to recommend possible revisions to NAEP. Ultimately, that group urged major changes, almost all of which were then endorsed by the National Academy of Education. This led the Reagan administration to negotiate with Senator Ted Kennedy a full-fledged overhaul that Congress passed in 1988, months before the election of George H.W. Bush, whose campaign for the Oval Office included a pledge to serve as an “education president.”

The NAEP overhaul was multi-faceted and comprehensive, but, in hindsight, three provisions proved most consequential. First, the assessment would have an independent governing board charged with setting its policies and determining its content. Second, in response to the governors’ request for better data, NAEP was given authority to generate state-level achievement data on a “trial” basis. Third, its newly created governing board was given leeway to “identify” what the statute called “appropriate achievement goals for each age and grade in each subject to be tested.” (A Kennedy staffer later explained that this wording was “deliberately ambiguous” because nobody on Capitol Hill was sure how best to express this novel, inchoate, and potentially contentious assignment.)

In September 1988, as Reagan’s second term neared an end and Secretary Bennett and his team started packing up, Bennett named the first 23 members to the new National Assessment Governing Board. He also asked me to serve as its first chair.

The Lead Up to Achievement Levels

The need for NAEP achievement standards had been underscored by the National Academy of Education: “NAEP should articulate clear descriptions of performance levels, descriptions that might be analogous to such craft rankings as novice, journeyman, highly competent, and expert… Much more important than scale scores is the reporting of the proportions of individuals in various categories of mastery at specific ages.”

Nothing like that had been done before, though ETS analysts had laid essential groundwork with their creation of stable vertical scales for gauging NAEP results. They even placed markers at 50-point intervals on those scales and used those as “anchors” for what they termed “levels of proficiency,” with names like “rudimentary,” “intermediate,” and “advanced.” Yet there was nothing prescriptive about the ETS approach. It did not say how many test takers should be scoring at those levels.

President Ronald Reagan with Secretary of Education Terrel Bell, who spearheaded the efforts that eventually became A Nation at Risk, which highlighted the need for comparative data.

Within months of taking office, George H.W. Bush invited all the governors to join him—49 turned up—at an “education summit” in Charlottesville, Virginia. Their chief product was a set of wildly ambitious “national education goals” that Bush and the governors declared the country should reach by century’s end. The third of those goals stated that “By the year 2000, American students will leave grades 4, 8, and 12 having demonstrated competency in challenging subject matter including English, mathematics, science, history, and geography.”

It was a grand aspiration, never mind the unlikelihood that it could be achieved in a decade and the fact that there was no way to tell if progress were being made. At the summit’s conclusion, the United States had no mechanism by which to monitor progress toward that optimistic target, no agreed-upon way of specifying it, nor yet any reliable gauge for reporting achievement by state (although the new NAEP law allowed for this). But such tools were obviously necessary for tracking the fate of education goals established by the governors and president.

They wanted benchmarks, too, and wanted them attached to NAEP. In March 1990, just six months after the summit, the National Governors Association encouraged NAGB to develop “performance standards,” explaining that the “National Education Goals will be meaningless unless progress toward meeting them is measured accurately and adequately, and reported to the American people.”

Conveniently, if not entirely coincidentally, NAGB had already started moving in this direction at its second meeting in January 1989. As chair, I said that “we have a statutory responsibility that is the biggest thing ahead of us to—it says here: ‘identify appropriate achievement goals for each age and grade in each subject area to be tested.’ …It is in our assignment.”

I confess to pushing. I even exaggerated our mandate a bit, for what Congress had given the board was not so much assignment as permission. But I felt the board had to try to do this. And, as education historian Maris Vinovskis recorded, “members responded positively” and “NAGB moved quickly to create appropriate standards for the forthcoming 1990 NAEP mathematics assessment.”

In contrast to ETS’s useful but after-the-fact and arbitrary “proficiency levels,” the board’s staff recommended three achievement levels. In May 1990, NAGB voted to proceed—and to begin reporting the proportion of students at each level. Built into our definition of the middle level, dubbed “proficient,” was the actual language of the third goal set in Charlottesville: “This central level represents solid academic performance for each grade tested—4, 8 and 12. It will reflect a consensus that students reaching this level have demonstrated competency over challenging subject matter.”

Thus, just months after the summit, a standard-setting and performance-monitoring process was in the
works. I accept responsibility for nudging my NAGB colleagues to take an early lead on this, but they needed minimal encouragement.

Early Attempts and Controversies

In practice, however, this proved to be a heavy lift for a new board and staff, as well as a source of great contention. Staff testing specialist Mary Lyn Bourque later wrote that “developing student performance standards” was “undoubtedly the board’s most controversial responsibility.”

The first challenge was determining how to set these levels, and who would do it. As Bourque recounted, we opted to use “a modified Angoff method” with “a panel of judges who would develop descriptions of the levels and the cut scores on the NAEP score scale.” The term “modified Angoff method” has reverberated for three decades now in connection with those achievement levels. Named for ETS psychologist William Angoff, this procedure is widely used to set standards on various tests. At its heart is a panel of subject-matter experts who examine every question and estimate how many test takers might answer it correctly. The Angoff score is commonly defined as the lowest cutoff score that a “minimally qualified candidate” is likely to achieve on a test. The modified Angoff method uses the actual test performance of a valid student sample to adjust those predicted cutoffs in case reality doesn’t accord with expert judgments.

William Bennett, one of Reagan’s education secretaries, named 23 members, including the author, to NAGB.

As the NAEP level-setting process got underway, there were stumbles, missteps, and miscalculations. Bourque politely wrote that the first round of standard-setting was a “learning experience for both the board and the consultants it engaged.” It consumed just three days, which proved insufficient, leading to follow-up meetings and a dry run in four states. It was still shaky, however, leading the board to dub the 1990 cycle a trial and to start afresh for 1992. The board also engaged an outside team to evaluate its handiwork.

Those reviewers didn’t think much of it, reaching some conclusions that in hindsight had merit but also many that did not. But the consultants destroyed their relationship with NAGB by distributing their draft critique without the board’s assent to almost 40 others, “many of whom,” wrote Bourque, “were well connected with congressional leaders, their staffs, and other influential policy leaders in Washington, D.C.” This episode led board members to conclude that their consultants were keener to kill off the infant level-setting effort than to perfect its methodology. That contract was soon canceled, but this episode qualified as the first big public dust-up over the creation and application of achievement levels.

NCLB Raises the Stakes

Working out how best to do those things took time, because the methods NAGB used, though widespread today, were all but unprecedented at the time. In Bourque’s words, looking back from 2007, using achievement-level descriptions “in standard setting has become de rigueur for most agencies today; it was almost unheard of before the National Assessment.”

Meanwhile, criticism of the achievement-level venture poured in from many directions, including such eminent bodies as the National Academy of Education, National Academy of Sciences, and General Accounting Office. Phrases like “fundamentally flawed” were hurled at NAGB’s handiwork.

The achievement levels’ visibility and combustibility soared in the aftermath of No Child Left Behind, enacted in early 2002, for that law’s central compromise left states in charge of setting their own standards while turning NAEP into auditor and watchdog over those standards and the veracity of state reports on pupil achievement. Each state would report how many of its students were “proficient” in reading and math according to its own norms as measured on its own tests. Then, every two years, NAEP would report how many of the same states’ students at the same grade levels were proficient in reading and math according to NAGB’s achievement levels. When, as often happened, there was a wide gap—nearly always in the direction of states presenting a far rosier picture of pupil attainment than did NAEP—it called into question the rigor of a state’s standards and exam scoring. On occasion, it was even said that such-and-such a state was lying to its citizens about its pupils’ reading and math prowess.

In response, of course, it was alleged that NAEP’s levels were set too high, to which the board’s response was that its “proficient” level was intentionally aspirational, much like the lofty goals framed back in Charlottesville. It wasn’t meant to shed a favorable light on the status quo; it was all about what kids ought to be learning, coupled with a comparison of present performance to that aspiration.

Some criticism was constructive, however, and the board and its staff and contractors—principally the American College Testing organization—took it seriously and adjusted the process, including a significant overhaul in 2005.

Senator Ted Kennedy worked with Reagan to pass a congressional re- vamp of NAEP in 1988.

Tensions with the National Center for Education Statistics

Statisticians and social scientists want to work with data, not hopes or assertions, with what is, not what should be. They want their analyses and comparisons to be driven by scientific norms such as validity, reliability, and statistical significance, not by judgments and aspirations. Hence the National Center for Education Statistics’ own statisticians resisted the board’s standard-setting initiative for years. At times, it felt like guerrilla warfare as each side enlisted external experts and allies to support its position and find fault with the other.

As longtime NCES commissioner Emerson Elliott reminisces on those tussles, he explains that his colleagues’ focus was “reporting what students know and can do.” Sober-sided statisticians don’t get involved with “defining what students should do,” as that “requires setting values that are not within their purview. NCES folks were not just uncomfortable with the idea of setting achievement levels, they believed them totally inappropriate for a statistical agency.” He recalled that one of his senior colleagues at NCES was “appalled” when he learned what NAGB had in mind. At the same time, with the benefit of hindsight, Elliott acknowledges that he and his colleagues knew that something more than plain data was needed.

By 2009, after NAEP’s achievement levels had come into widespread use and a version of them had been incorporated into Congress’s own accountability requirements for states receiving Title I funding, the methodological furor was largely over. A congressionally mandated evaluation of NAEP that year by the Universities of Nebraska and Massachusetts finally recognized the “inherently judgmental” nature of such standards, noting the “residual tension between NAGB and NCES concerning their establishment,” then went on to acknowledge that “many of the procedures for setting achievement levels for NAEP are consistent with professional testing standards.”

That positive review’s one big caveat faulted NAGB’s process for not using enough “external evidence” to calibrate the validity of its standards. Prodded by such concerns, as well as complaints that “proficient” was set at too high a level, the board commissioned additional research that eventually bore fruit. The achievement levels turn out to be more solidly anchored to reality, at least for college-bound students, than most of their critics have supposed. “NAEP-proficient” at the 12th-grade level turns out to mean “college ready” in reading. College readiness in math is a little below the board’s proficient level.

As the years passed, NAGB and NCES also reached a modus vivendi for presenting NAEP results. Simply stated, NCES “owns” the vertical scales and is responsible for ensuring that the data are accurate, while NAGB “owns” the achievement levels and the interpretation of results in relation to those levels. The former may be said to depict “what is,” while the latter is based on judgments as to how students are faring in relation to the question “how good is good enough?” Today’s NAEP report cards incorporate both components, and the reader sees them as a seamless sequence.

Yet the tension has not entirely vanished. The sections of those reports that are based on achievement levels continue to carry this note: “NAEP achievement levels are to be used on a trial basis and should be interpreted and used with caution.” The statute still says, as it has for years, that the NCES commissioner gets to determine when “the achievement levels are reasonable, valid, and informative to the public,” based on a formal evaluation of them. To date, despite the widespread acceptance and use of those levels, that has not happened. In my view, it’s long overdue.

Forty-nine of 50 governors, including then-Arkansas-governor Bill Clinton, attended President George H.W. Bush’s “education summit” in Charlottesville, Virginia, in 1989. Attendees developed a set of “national education goals” to be reached by the end of the century.

Looking Ahead

Accusations continue to be hurled that the achievement levels are set far too high. Why isn’t “basic” good enough? And—a concern to be taken seriously—what about all those kids, especially the very large numbers of poor and minority pupils, whose scores fall “below basic?” Shouldn’t NAEP provide much more information about what they can and cannot do? After all, the “below basic” category ranges from completely illiterate to the cusp of essential reading skills.

The achievement-level refresh that’s now underway is partly a response to a 2017 recommendation from the National Academies of Sciences, Engineering and Medicine that urged an evaluation of the “alignment among the frameworks, the item pools, the achievement-level descriptors, and the cut scores,” declaring such alignment “fundamental to the validity of inferences about student achievement.” The board engaged the Pearson testing firm to conduct a sizable project of this sort. It’s worth underscoring, however, that this is meant to update and improve the achievement levels, their descriptors, and how the actual assessments align with them, not to replace them with something different.

I confess to believing that NAEP’s now-familiar trinity of achievement levels has added considerable value to American education and its reform over the past several decades. Despite all the contention that they’ve prompted over the years, I wouldn’t want to see them replaced. But to continue measuring and reporting student performance with integrity, they do require regular maintenance.

Chester E. Finn, Jr., is a Distinguished Senior Fellow at the Thomas B. Fordham Institute and a Senior Fellow at Stanford’s Hoover Institution. His latest book is Assessing the Nation’s Report Card: Challenges and Choices for NAEP, published by the Harvard Education Press.

This article appeared in the Summer 2022 issue of Education Next. Suggested citation format:

Finn, C.F. (2022). “It Felt Like Guerilla Warfare” – Student achievement levels in the Nation’s Report Card: a brief history of “basic,” “proficient,” and “advanced.” Education Next, 22(3), 44-51.

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New Biden Rules Would Slow Charter Growth

Martin R. West — Wed, 27 Apr 2022 09:00:39 +0000

Education Secretary Miguel Cardona watches as President Joe Biden speaks to students in a classroom during a visit to Luis Muñoz Marin Elementary School in Philadelphia, Friday, March 11, 2022.

Applying for a federal grant to support the creation of new charter schools is about to get a lot harder. That’s the upshot of draft regulations for the Charter Schools Program that the Biden administration released for public comment in March. It is an unfortunate proposal at a time when new research confirms that charter schools are an asset not only to their students but also to the broader communities in which they operate (see “The Bigger Picture of Charter School Results,” features, this issue).

For nearly three decades, Congress has provided funds to assist charter schools with start-up expenses such as staffing, professional development, facility improvements, and community engagement events. The bulk of the money goes first to state education departments who, in turn, award grants of up to $500,000 to charter schools preparing to open, replicate, or expand. When Congress last renewed the program in 2015, it permitted successful charter management organizations to apply directly to the U.S. Department of Education for comparable support.

The program is modest by federal budget standards—Congress authorized $440 million for it this year—but over time it has been a major driver of the charter sector’s expansion. What’s more, the states, none of which wants to leave federal money on the table, often design and implement their charter school programs according to the criteria Congress uses to select grant applicants.

That’s one reason the administration’s recent proposal is so troubling. Among other new requirements, the regulation would force applicants to submit a detailed “community impact analysis” demonstrating that the number of schools they propose to open or expand “does not exceed the number of public schools needed to accommodate the demand in the community.” The language says nothing about the quality of available schools. It would effectively prevent charter schools from opening with federal support in the growing number of areas with flat or declining enrollment—often places where high-quality options are scarcest.

The regulation would also require applicants to collaborate with a traditional public school or district on “an activity that would be beneficial to all partners in the collaboration”—a nice-sounding concept that would effectively give districts veto power over charter expansion. Applicants would even need to provide “a letter from each partnering traditional public school or school district demonstrating commitment to participate in the proposed charter-traditional collaboration.” Charter entrepreneurs unable to find a willing partner would be out of luck.

The entire proposal seems to reflect the view, heavily promoted by teachers unions and their political allies, that charter schools are a drain on school districts’ resources to be tolerated, if at all, as pockets of innovation within expanding systems. That same perspective has informed key revisions to state charter-school laws in recent years, including California’s 2019 move to allow districts to reject charter school applications based not on the proposal’s quality but on its impact on their finances. The result was a dramatic slowing of charter growth nationally in the years leading up to the pandemic—just as charter opponents intended.

Yet the research case for the charter sector’s expansion continues to strengthen. In this issue, Doug Harris and Feng Chen of Tulane University offer the most comprehensive analysis to date of how charter schools affect the combined outcomes of both charter and traditional public-school students in the school districts in which they are located. Looking nationwide and comparing districts with a substantial charter presence to those without charter schools, they find substantial gains in both test scores and high-school graduation rates. A January 2022 study by David Griffith for the Fordham Institute, “Still Rising: Charter School Enrollment and Student Achievement at the Metropolitan Level,” similarly found greater charter enrollment associated with increased math achievement by Black, Hispanic, and low-income students.

If Biden administration rule makers are not swayed by these findings, the reality underlying them is persuasive to many of the families who have chosen to enroll their children at charter schools. Despite an oddly short window for public comment, more than 25,800 members of the public, many of them charter parents, weighed in on the proposed rule before the April 18 deadline. A group of 17 Republican governors wrote to education secretary Miguel Cardona to register their objections to the proposed changes. When a similarly tone-deaf draft rule on civics-education grants prompted an uproar last year, the administration backed down and replaced the rule with something more sensible. Here’s hoping that pattern prevails again.

— Martin R. West

This article appeared in the Summer 2022 issue of Education Next. Suggested citation format:

West, M.R. (2022). New Biden Rules Would Slow Charter Growth: Parents, governors protest. Education Next, 22(3), 5.

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Expand Access to Free School Food?

Amy Ellen Schwartz — Tue, 15 Feb 2022 10:00:56 +0000

Third grader Eliana Vigil checks out in the lunch line at the Gonzales Community School in Santa Fe.

The Community Eligibility Provision of the National School Lunch Program allows high-poverty schools to offer subsidized school lunches free of charge to all students, regardless of an individual family’s financial need. President Joe Biden has proposed expanding the provision by lowering the threshold for schools to adopt community eligibility. U.S. Senator Bernie Sanders and other legislators want to expand nutrition programs further, to provide a free breakfast, snack, lunch, and dinner to every student, regardless of family income. During the school closures wrought by the pandemic, public schools gave many families electronic benefits or checks to compensate for missed lunches and breakfasts, even through the summer, and in some cases provided boxed meals or bags of groceries for pickup. How far should the federal government go in expanding school-based nutrition programs beyond the free or reduced prices lunches for some that date back to the Richard B. Russell National School Lunch Act of 1946? Weighing in on this question are Amy Ellen Schwartz and Michah Rothbart of Syracuse University and Max Eden of the American Enterprise Institute.

Let More Schools Offer Free Lunch for All

by Amy Ellen Schwartz and Michah Weitzman Rothbart

There’s No Free Lunch

by Max Eden

This article appeared in the Spring 2022 issue of Education Next. Suggested citation format:

Schwartz, A.E., Rothbart, M.W., and Eden, M. (2022). Expand Access to Free School Food? Debating plans to increase federal support for child nutrition. Education Next, 22(2), 66-72.

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How a Turbocharged Child Tax Credit Could Electrify School Choice

Frederick Hess — Wed, 04 Aug 2021 09:00:39 +0000

US President Joe Biden and Vice President Kamala Harris arrive for an event to mark the start of monthly Child Tax Credit relief payments, in the White House complex, July 15, 2021.

The IRS recently sent $15 billion in Child Tax Credit payments to the families of 60 million children. Parents woke up to find the first monthly distributions (averaging $483 per family) had been directly deposited into their bank accounts. These dollars are part of the $110 billion in expanded child tax credits legislated by this spring’s $1.9 trillion American Rescue Plan Act. While these funds are not targeted at education, the program has opened a temporary window that could help vastly expand school choice.

The American Rescue Plan Act created an unrestricted, refundable child tax credit of $3,600 for children under 6 and $3,000 for children aged 6 to 17. The full credit applies to all families making less than $150,000, and the balance is paid as a cash transfer if the total exceeds their federal tax burden. After a year, unless Congress extends the increase, the credit will revert to $2,000 per child and become only partially refundable (see this issue’s forum, “Should Congress Make the Expanded Tax Credit Permanent?”).

To understand how the child tax credit might be made into something more educationally transformative, consider three things.

First, $3,000 may seem modest compared to the cost of schooling—the sum is less than a quarter of what public schools spend per child each year—yet it’s more than 60 percent of tuition at a typical Catholic elementary school. In fact, $3,000 isn’t much less than the average voucher awards (of $4,000 to $5,000) in states like Indiana, North Carolina, and Ohio.

Second, at this moment, governors and state legislators have exceptional financial flexibility to augment or supersize the child tax credit funds. State budget collections are coming in much higher than was anticipated last year, while the American Rescue Plan Act delivered state and local governments $350 billion in federal Covid aid—atop the $130 billion in K–12 aid.

Third, the child tax credit offers an opportunity to extend school choice to a broader swath of families. President Joe Biden and a Democratic Congress just opted to send child tax credit funds to the families of 80 percent of the nation’s children. If we were to stipulate that choice programs should serve the kids whom these officials deemed in need of these funds, that would vastly expand the ranks of the eligible. It would be awkward for Democrats to argue that middle-class parents need federal help paying their bills but are too well-off to merit state help in defraying the cost of schooling.

In short, state leaders have the opportunity to offer families expanded educational options at a time when support for school choice has exploded. The most promising tack is to augment the federal tax credit for any family that chooses to spend its funds on school tuition or another documented educational cost. A temporary 50-percent state match for families who use the funds to pay tuition could make the credit for many worth about as much as the voucher offered in leading school-choice states; a 100-percent match, funded with general Covid aid, could make it exceptionally large.

Such a move allows states to radically expand the ranks of the eligible while hewing to the eligibility criteria endorsed by Democratic leaders. (In our school life column for this issue, Robert Behning, the chair of the Indiana house education committee, makes precisely this argument.) The resulting program would only run as long as the expanded child tax credit, but it could spark a taste for choice among many.

State leaders should also explore ways to augment the credit with education savings accounts, and then help parents understand how to marry the two. Earlier this year, for instance, West Virginia enacted its first education savings account program, providing eligible families with $4,600 per child (See “School Choice Advances in the States,” features). Combined with the maximum child tax credit payment, that yields $7,600 per child—an amount that exceeds the cost of tuition in 9 out of 10 West Virginia private schools. Energetic use of the bully pulpit could encourage some families to think of child tax credit payments as education-choice funds.

The expanded child tax credit is a one-year program. If it goes away, children will have benefited and the constituency for choice will grow. And if it becomes permanent? Then state leaders will have the opportunity to do even more.

Frederick M. Hess
Executive Editor

This article appeared in the Fall 2021 issue of Education Next. Suggested citation format:

Hess, F. (2021). Tax Credit Could Boost Choice. Education Next, 21(4), 5.

The post How a Turbocharged Child Tax Credit Could Electrify School Choice appeared first on Education Next.

Betsy DeVos and the Future of Education Reform

Jim Blew — Tue, 15 Jun 2021 09:00:14 +0000

My job as Betsy DeVos’s assistant secretary for policy often came down to translating her reform vision into concrete legislative proposals, budgets, and grant competitions. It was a stimulating, enjoyable job—despite the constant tumult created by the unconventional president. There was also some unpleasantness because of the conventional labor unions that represent teachers in collective bargaining and elections, as well as their Democratic allies in Congress. That was just an expected part of the job.

I had known and admired Betsy DeVos for a couple of decades before our time together in D.C., so none of her positions surprised or disappointed me. That’s a risky thing to say, given how partisans on both sides have distorted her views, but it is an important point given what did surprise and disappoint me. Even after developing a pretty good understanding of the factions within education reform over 25 years, I was astounded by the intensity with which so many reformers opposed Betsy DeVos.

As secretary, DeVos unmasked tensions and disagreements within the education-reform community. In some ways, that was healthy, but our open conflicts did give an advantage to the defenders of the status quo and hampered reformers’ efforts to effect policy changes. In comparison to the concerns about the status quo, such policy differences should pale.

To be clear, I am not advocating for a reform orthodoxy. Given the range of informed thinking on complicated issues like federally mandated assessments or public charter schools, orthodoxy is neither beneficial nor even possible. My purpose here is not to settle scores or defend every aspect of DeVos’s record. I do hope a better understanding of the divisions within the reform camp will equip us to avoid being divided and conquered. It should increase the likelihood of success in improving the education system.

Education Secretary Betsy DeVos visits a classroom at the Edward Hynes Charter School in New Orleans, Friday, Oct. 5, 2018.

Defining Education Reformers

Let’s start with the common denominator among reformers. We all believe that the current education system needs to be reformed, transformed, or whatever nomenclature you choose. We believe the system is failing to educate sufficiently a substantial portion of children. As a result, a large number of children do not reach their potential as adults—never really succeeding in the workplace, never contributing to their communities, and never leading truly fulfilling lives. This isn’t only bad for those individuals; it’s also bad for communities, the country, and the world.

For those of us committed to equal opportunity in America regardless of class, race, gender, or beliefs, the outcomes of our education system are especially disturbing. It appears that our schools systemically fail our low-income, African American, and Latino students, notwithstanding vigorous enforcement of federal civil rights laws over nearly 60 years. Some say that our education system is a manifestation of systemic racism. Others, like me, see evidence that our system reinforces racism and might even be a source of it.

Reformers also do not believe that the current system will ever successfully educate all children to their full potential. The status quo is mostly a one-size-fits-all model from the industrial era, where instruction is aimed at an “average” student and provided by an “average” teacher. In practice, in this system, some students were highly educated and others, not so much. The system might once have served America well, but it does no longer.

This core belief that our system is antiquated and inadequately meeting America’s needs has caused some reformers, including Betsy DeVos, to call for a total reimagining of the system. When the goal is to educate fully each and every unique child, why do we maintain age-based classes or seat-time rules? Why do we resist moving to a mastery-based system? Why do we obsess on limited academic content, when we know that successful adults also need critical-thinking and social-emotional skills and behaviors?

Some reformers, particularly those that run excellent public charter networks in low-income communities, are not completely convinced that the industrial model is hopeless. They have shown that they can dramatically improve some outcomes within the traditional model by raising expectations, attracting top teaching talent, personalizing instruction, and making 100 other one percent changes to classrooms, schools, and networks. These colleagues should be welcome within the big tent of reformers, because they also despise the status quo, and because we benefit from a variety of approaches to moving beyond the status quo.

If you’re a visible education reformer, you have undoubtedly been accused of wanting to destroy or defund public education. It’s worth saying: the opposite is true. Reformers believe in public education—especially the core commitment that society (taxpayers) should foot the bill for it. (Public money is, after all, what makes it public.) Education is both a private and a public good that benefits our democracy and our economy. Out of our mutual interest, we should all share in the cost of educating all children, so they can secure good jobs and become productive citizens. We can debate who delivers that education (from a government monopoly to a laissez-faire marketplace), how much money should be spent on individual children, and whether the funds should come from local, state, or federal taxpayers. But reformers believe in public education as much as our opponents. That’s why we spend our time, treasure, and talents trying to improve it.

Reform opponents have a different view of the system. To them, the century-old system is proven, basically sound, and could rise again to serve America well, if only Americans would fund it substantially more generously. In the meantime, public schools should not be held accountable for reversing the impact of children growing up in poverty or imperfect homes.

Although the line between the reformer and status-quo camps is clear, neither group is a monolith. Among defenders of the status quo, including the leaders atop the teacher unions, the factions are not always obvious, because the public-facing position is usually the hardline position. Similarly, divisions among reformers are not reported much, and many of us think it’s better to keep them out of sight. But the rifts are real.

Howard Fuller at the Freedom Coalition for Charter Schools rally in Los Angeles in 2019. He wondered how DeVos could stomach working with Trump.

Culture Wars

Debates over K–12 education often have little or nothing to do with educating our students or preparing them for good jobs. Public schools end up being battlegrounds for America’s culture wars. They are the backdrop for discussions of a broad range of policy issues—including immigration, gun control, police misconduct, racial equity, gender equity, transgender rights, and religious liberty. Curricula and instruction around these topics can feel doctrinaire and ideological, often sparking local battles and causing distress for parents who wish schools would focus on teaching how to read, write, do math, and think.

For people who want to keep the focus on how our schools are failing so many children and need to be reformed, these culture wars are a frustrating distraction. We should be able to disagree on various culture-war issues and still agree that something must be done to fix our education system. But even people focused on fixing education often define their politics by these culture-war issues. It’s impossible to get away from them.

Unless Congress had directed the Department to get involved in an issue, Betsy DeVos generally stayed out of it, due to her respect for federalism. Most commonly, she defaulted to punting culture-war issues to local officials, a tactic that enraged people who want the federal government to dictate solutions. On transgender students, for example, she said that no student should be bullied and that her Office for Civil Rights would investigate any such cases, as enabled by federal law, but she held that bathroom accommodations for transgender students should be determined locally. On the other hand, she went through the grueling process of promulgating regulations for Title IX of the Education Amendments Act of 1972, formally addressing sexual assault and violence. For the first time, due process is now a clear requirement under Title IX.

Even though she rarely addressed culture-war issues, education reformers often believed that Betsy DeVos was on the opposite side of them. Part of their “evidence base” was that Secretary DeVos served as a cabinet member for the divisive President Trump. This association drove the behavior of many prominent reformers. For example, Dr. Howard Fuller, who has influenced and guided my work more than anyone but John Walton, would have nothing to do with the Trump administration after the so-called “Unite the Right” rally in Charlottesville, even though he agreed with most of DeVos’s policies. He openly wondered how DeVos and I could stomach working with the Trump White House. He was not alone.

As if the Trump association weren’t bad enough, the risks of aligning with Betsy DeVos were magnified after her rocky nomination process and the personal vilification campaign that accompanied it. There are consequences of being associated with not-cool people, and, as intended by her opponents, DeVos was definitely not-cool after her national introduction. Because reformers have a thin path to maintain credibility against the status quo, they often have a heightened sense of reputation. When the DeVos team asked charter-school advocates how we might be helpful, their explicit entreaty was that we mention charter schools as little as possible. Some particularly sensitive reformers even found ways to oppose a secretary whose policies they generally supported.

President-elect Donald Trump looks on as Betsy DeVos, his nominee for Secretary of Education, speaks at the DeltaPlex Arena, December 9, 2016 in Grand Rapids, Michigan.

Substantive Divisions

While these issues of association and reputation played a role in many reformers’ behavior toward Betsy DeVos, something else was at play. Many reformers pushed back (often alongside defenders of the status quo) because of substantive policy differences.

Reformers tend to be mavericks, and each of us seems to have an individual “theory of change” for the system—that is, a working hypothesis of which policy or operational changes today will eventually lead to educating all students fully. These hypotheses—I think it’s problematic to call them “theories”—are refined over years, informed by personal experience, and, too often, owned psychically. Validation of them is personally satisfying, and refutation of them is personally threatening.

We can generally divide reformers into either the school-choice camp or the standards-and-accountability camp. In practice, most reformers tend to incorporate a little of both camps into their hypotheses, but they lean toward one or the other. The generic hypothesis of the school-choice camp is that, by empowering families (and teachers) to select among different educational options, we will incentivize schools and other providers to innovate and develop compelling, effective programs. Choice leads to competition, which leads to continuous improvement. Proponents of public charter schools, K–12 scholarships, and the abolishment of attendance zones fall into this camp.

For the standards-and-accountability camp, the generic hypothesis is that, by defining clear, rigorous standards for everyone, planning backward to achieve those standards, and then truly holding adults and students accountable for meeting them (through rewards and consequences), we can transform system performance. Strong incentives and management based on high standards leads to continuous improvement. In terms of policy advocates, the standards-and-accountability camp is much larger than the school-choice camp, partly because more money is available to them, and partly because we need to set rigorous standards for so many things. In addition to having groups that set standards for every conceivable academic subject from math to ethnic studies, we have reform-minded groups establishing standards for schools of education (e.g., the National Council on Teacher Quality), for data management (e.g., the Data Quality Campaign), for use of education technology (e.g., Aurora Institute, Digital Promise, the EdTech Evidence Exchange), for financial productivity (e.g., Edunomics Lab), and for dozens of other aspects of teaching and learning.

True system-defenders reject both the school-choice and the standards-and-accountability hypotheses, although they confuse the issue by co-opting some of the language. School choice is a fundamental threat to the government monopoly, because it could drain resources from their system. They might say they favor “school choice,” but they are only talking about the status quo, where the monopoly creates and manages the available options, and where most affluent families exercise choice by buying homes in attendance zones with high-performing neighborhood schools.

Similarly, the status quo can tolerate standards and accountability, but only up to a point. If accountability is translated into substantial consequences for employees, positive or negative, it will meet resistance. For example, reform-minded superintendents are welcome to set rigorous academic standards, but if they try to reward teachers whose students excel, or if they try to take steps to remove chronically ineffective and detrimental instructors from the classroom, they will be subjected to a world of pain and likely lose their jobs. When there are no consequences, it’s not really accountability.

The two generic reform hypotheses should live comfortably next to each other. When we have a full-fledged system of choice and competition, every education provider will still need high standards and accountability, although not necessarily dictated through a top-down, command-and-control system. As we are building toward that system of choice and competition, well-designed standards and accountability systems would be beneficial for students.

Most state-based reformers seem to agree, combining standards-and-accountability and school choice into action with their own personal twists and flair. Governor Jeb Bush of Florida is a premier example—at times promoting standards-and-accountability, such as prohibiting grade-promotion for illiterate third graders, and at other times, pushing school-choice solutions, such as public charter schools or K–12 scholarships for disadvantaged students. In fact, the history of federal education policy can be seen as a bipartisan parade of state-based leaders—Governors Lamar Alexander, Bill Clinton, Dick Riley, and George W. Bush—who brought their teams and ideas about standards-and-accountability and school choice to Washington, D.C. Part of their experience involved learning to work with, perhaps even accommodating, the labor unions and other defenders of the status quo as they tried to improve education.

Trump and DeVos were a break from the experience of such governors. When the American Federation of Teachers and National Education Association attacked nominee DeVos as “unqualified,” they were expressing their concerns about her lack of working with them—not her lack of being a classroom teacher. Although DeVos had worked to improve K–12 education for more than two decades, she had never had to accommodate the status quo. There were no signs that she would start doing so in 2017. And she didn’t.

When teachers unions attacked DeVos as unqualified, they were expressing their concerns about her lack of working with them.

Reformer Reactions to DeVos

During her time as secretary, Betsy DeVos publicly focused almost exclusively on promoting school choice and education freedom, especially in K–12 but also in postsecondary, adult education, and civil rights. The focus was not only the result of having promoted the issue for decades, but also of strategic calculation. She concluded the lack of education freedom was the most important inequity to highlight if she wanted to pressure the system to change.

Because of her school-choice focus, you might have expected more clashes with the standards-and-accountability camp because of competing reform hypotheses. The reasons for the relative harmony deserve a longer treatment, but for now, suffice it to say that Congress had largely resolved the debates over federal standards-and-accountability with the Every Student Succeeds Act, or ESSA, about a year before DeVos was installed. While decidedly shifting authority over K–12 education back to states, Congress pointedly minimized the secretary’s role, particularly regarding academic standards and accountability. The 115th Congress, which began in 2017, piled on by rolling back a variety of mildly activist ESSA regulations promulgated in the waning months of the Obama Administration, an action that generally precludes most future rulemaking on the topic. All this suited DeVos just fine, and she quietly implemented ESSA with fidelity, maximizing state and local flexibility and moving most standards-and-accountability battles to the states.

While the disagreements with standards-and-accountability reformers were notable mostly because of how modest they were, the disagreements with and among the school-choice camp were notable because of how unrestrained they sometimes became. Within the school-choice community, there are many factions. One key divide is over whether school-choice programs should be universal—that is, available to all children—or targeted to specific needy populations. Charter schools, for example, are universal, even though low-income students are over-represented in their enrollment. So are magnet schools. In contrast, K–12 scholarship programs are almost always limited to low-income students or students with disabilities. This became an issue in the design of the federal Education Freedom Scholarship tax credit DeVos championed, and DeVos astutely designed the proposal so that state leaders would decide student eligibility and other design questions for themselves, without the feds.

Another divide is over the proper level and type of accountability for schools of choice. At one end of the spectrum, some argue that parents provide the ultimate accountability because they can leave a school when it’s not working for them, and nothing more is needed. At the other end, some argue that private schools and charter schools should have to abide by all or most of the rules and burdens placed on traditional public schools. This divide is also playing out in states across the country.

The most serious divide is between those who only support public charter schools and those who support a broader range of options. DeVos is clearly in the latter camp. She supports charters as one of many mechanisms that empower parents with choice, and she and her team made it a priority to encourage states to create and replicate them. But she sincerely does not care whether families choose a charter school, a private school, a pandemic pod, a type of school that hasn’t yet been invented, or a traditional public school.

Many of the successful charter-school operators and supporters have a different point of view. They see the public charter school model as a promising hybrid that can single-handedly address various concerns and meet everyone’s needs. The National Alliance for Public Charter Schools and most state associations have to constantly remind legislators that charters are “public” schools. They are funded by taxpayers, are tuition free, and are open to all comers. But charter schools aren’t like other public schools. They are managed and governed independently of the traditional school bureaucracy. They can innovate new models of instruction and learning, and they are often not unionized. Teachers-union leadership, for example, never refers to charters as public schools.

Netflix CEO Reed Hastings, the City Fund, and others make the good point that the independent governance of public charter schools is the key to their long-term success. By establishing sustainable governance and transcending unstable and politically fraught elected school boards, charter schools will be able to continuously improve and outperform traditional schools. Over time, charter-school performance will help them become the norm across public education, as they already have in New Orleans, D.C., Detroit, and elsewhere. Because the model is flexible, charters can evolve to meet the needs of every type of student. “Portfolio” districts dominated by charter schools will emerge, where a “harbor master” will authorize new charters as needed or demanded by the community. No other options are needed.

For some charter-school advocates, a student choosing a private school or other non-public provider should be supported exclusively with private funds. They oppose private-school choice, dismissing it as a distraction from the real reform agenda of charter schools. To them, public funds should be reserved for public schools. That is a perilous position to take when the definition of “public” education is so debatable. Charter schools get funded through the same mechanisms as traditional public schools, and occasionally, they sound very much like defenders of that piece of the status quo.

Some charter-only supporters object to private-school choice mainly because they are uncomfortable with sanctioning faith-based decision-making. In our pluralistic society, many families do indeed make sacrifices and choose faith-based private schools, a majority of which are Catholic. Today, even after losing more than two-thirds of their enrollment since the 1960s, Catholic schools still enroll about 1.5 million students, compared to charter-school enrollment of 3.1 million. Public polls repeatedly suggest that many more low- or middle-income families would choose faith-based schools, if only they could afford them. DeVos believes families should be able to choose among all education offerings, including faith-based schools, and she would empower families with public money so they could afford faith-based schools.

Add all of these divisions within the school-choice camp to the issues of association and reputation, and soon you had charter-school leaders openly parroting the labor union talking points against the secretary. A handful of national charter-school advocates—such as Nina Rees, Eva Moskowitz, and Jeanne Allen—tried to balance the negativity, but their statements were largely buried.

Charter-school leaders had to make a difficult political calculus when responding to the campaign against DeVos. The attacks on the secretary from the teacher unions and their allies often centered on her support for charter schools. They felt their own schools were being threatened, and most of them did not know her or her work behind the scenes on behalf of charter schools. Based on their statements and letters to Congress, many of them appear to have decided their best hope would be to garner short-term favor with elected Democrats. If they thought Republicans would not notice or matter, they were wrong. If they thought that elected Democrats would stop taking their lead on charter schools from teacher-union leadership, they were probably wrong. I will be surprised if the federal Charter School Program is not reduced or eliminated during the Biden administration.

Some charter-only supporters objected to any private-school choice plans that would include funding for religious schools.

Reformers and Federal Power

Laying on top of all education issues is a federalist structure, where the local, state, and federal roles are constantly shifting and being redefined. To fully understand DeVos’s position on the federal role, it is helpful to ponder the opposite view of the labor unions representing teachers at collective bargaining tables and elections. At one level, they are merely greedy for more money from federal taxpayers. If their members are to have good wages, benefits, and pensions, more money is needed. If their system is going to start fully educating every child, more money is needed. And where better to get money than the federal budget? Unlike state and local budgets, the federal budget need not be balanced, so federal dollars are conceptually unlimited. That means that the teacher unions don’t have to compete against other government-sector unions or anyone else for limited state and local resources, and they don’t have to ask the public to increase their taxes.

For school districts across the country, the mix of federal, state, and local revenue can vary dramatically. On average, about 47 percent comes from state taxpayers, 46 percent from local taxpayers, and just 8 percent from federal taxpayers. From the unions’ perspective, that means federal funding has a lot of growth potential. The three largest federal K–12 programs for FY 2021 were the nutrition programs ($20 billion, managed by the U.S. Department of Agriculture), Title I of the Elementary and Secondary Education Act ($16 billion), and Grants to States for students with disabilities (about $15 billion). Those large numbers seem miniscule compared to $826 billion, the total K–12 receipts for school year 2019–20.

The labor unions seem interested in more than money for their system. Over the past decades, they have successfully increased union power and influence over our education system and the Democratic Party. For them, it has been a virtuous cycle. More money leads to more political power, which leads to more money, which leads to more power.

The unions also are not limiting their vision to K–12 schools. Their long-term vision extends down through early childhood and up through college. Union leadership would benefit from such a government monopoly, where they actively elect officials and then “negotiate” with them. If that system is increasingly funded through the federal government, the key issues would be increasingly decided at the federal level.

That prospect should concern anyone already troubled by the power and influence of labor unions in our education system. It is certainly a concern for Betsy DeVos, who doubled down on limiting the federal role. She maximized the flexibilities available to states and local districts under ESSA. She tried unsuccessfully to convert ESSA funding into a no-strings-attached block grant. She even tried to hold the line on spending. Between 1989 and 2016, the Department of Education’s discretionary budget had quadrupled to $68.3 billion from $17.1 billion. The final Trump request for the Department was $66.6 billion. Congress answered with a bipartisan $73 billion appropriation, not counting the $170.1 billion in additional Covid relief.

With regard to the federal role, much of the reform community—both the school-choice and the accountability camps—was on the side of the teachers unions and their allies. To them, more federal money is a good thing. The accountability camp relies on federal resources to facilitate their data and accountability systems. Charter organizations rely on federal resources to help offset the state policies that provide them with fewer dollars per student than traditional schools.

The teachers unions and their allies are leveraging the pandemic to increase dramatically the amount of federal funding flowing into their K–12 system, as well as into their frontiers of early childhood and postsecondary education. For K–12, much of that money will be allocated using ESEA’s Title I formula.

The Biden White House consistently describes Title I as targeted at “children in high-poverty schools,” but that terminology can be misleading. You might think that Title I money is mostly going to help students in poverty. In reality, the Title I funds flow through to nearly 90 percent of school districts. The unlucky 10 percent of districts outside of Title I are typically small enclaves that lack much, if any, socio-economic or racial diversity. Within school districts, the Title I program serves 25 million students, nearly half of about 51 million public school students. In contrast, the portion of children (ages 5-17) living in poverty was 15.8 percent in 2019, historically low due to the pre-pandemic economic boom. That rate has undoubtedly grown during the Covid shutdowns, but one of the key provisions in President Biden’s American Rescue Plan, the expanded and fully refundable child tax credit, will reportedly cut child poverty in half.

For 2020, the traditional Title I appropriation totaled $16.3 billion, and for 2021, it was $16.5 billion. The Biden Administration’s “skinny” budget request for 2022 included another $36 billion for Title I. On top of these funds, Congress pumped an additional $190 billion out to school districts between March 2020 and March 2021 using Title I shares through the Elementary and Secondary School Emergency Relief (ESSER) Fund. (There were other federal enrichments for K–12, and there are more coming, but Title I shares are the largest influx.)

All this money will do little more than bolster the status quo. In fact, that’s the point; the appeal for this money was explicitly based on the desire to return to the status quo ante. At first, the dozens of D.C.-based groups representing school employees (from state chiefs to district superintendents to school administrators to teachers to support personnel) positioned ESSER as necessary to compensate for precipitous drops in school revenues. When school revenues proved to be steady or higher for most states (the exceptions are states like Hawaii that depend on tourism or Alaska that rely on oil for school revenues), the talking points widened to cover the costs of safely reopening schools and of remediating the academic gaps that have been exacerbated by school closures.

My home state of California is a spectacular example of how this is all playing out. By the end of March 2021, ESSER included an extra $23.4 billion for the Golden State. This federal aid is not contingent on safely reopening schools, and only 9 percent of California’s school districts were offering in-person full-time instruction.

California’s enacted budget 2020-21 included $98.8 billion for all K-12 education programs. By the governor’s revised May request for 2021-22, that number had increased to $121.7 billion, a 23 percent jump. On a per pupil basis, spending swelled to $21,152 from $16,881 (more than 25 percent), when accounting for all funding sources.

Even before the pandemic, 32 percent of California’s 8th graders scored “below basic” on the NAEP reading assessment —meaning that about one-third our 8th graders cannot read and understand a basic, grade-level text. Perhaps the governor and legislature are preoccupied with getting buy-in from the teachers unions to safely open schools, but state officials have not yet publicly grappled with how to remediate students to make up for the last year, much less the past decades. Meanwhile, the system is tremendously grateful for the extra funds, so it can more easily continue business as usual.

Conclusion

Betsy DeVos unmasked a lot of divisions among education reformers, but she does not need to be the undoing of the education-reform movement.

While there are real and important differences among us, education reformers still have more that unites than divides us. Education reformers are trying to address the inequities baked into our education system. We are a social-change movement, and like previous movements, we are up against an institution that serves vested interests and is perpetuating itself. The education-reform movement should be defined by the cause and the enemy that unites it. Our cause is educating all students, regardless of class, race, gender, or beliefs, and our enemy is the status quo education system that harms children because it fails to deliver.

Realistically, though, that’s not all that defines a movement to the public. We are a diverse lot, encompassing the spectrum of politics and personality. Yet, all education reformers do seem to have two traits in common: passion and grit. We want to achieve a better system, and we pursue that goal over years and decades, even when it seems we may never succeed. We know that nothing will get better if we don’t try.

Movements are invariably represented by their leaders—a precarious situation, because leaders are flawed, even when their cause is not. Betsy DeVos was thrust into representing the movement for a short time, but she is not the movement, and never was. You can reject DeVos and her specific policies without rejecting the movement. Even if you want the federal government to play the dominant role in our system, or you want charter management organizations to dominate K–12 education, you and Betsy DeVos are in the same movement, because you want to change the status quo.

We have a common cause, despite our differences in boldness and strategy and tactics. That suggests that education reformers have three options. You might go the bash-Betsy route—hoping to build credibility with our opponents so you can persuade them to see things your way. You might work in parallel to other reformers, ignoring or distancing yourself from, for example, faith-based decision-making. Or we all might work together strategically, using each of our competitive advantages. If that last option appeals to you at all, let’s talk. Recent progress in places such as Florida, Indiana, Missouri, and West Virginia is encouraging. But there is still a lot to do.

Jim Blew was the assistant secretary for planning, evaluation, and policy development at the U.S. Department of Education under Secretary Betsy DeVos. Before the department, Blew advocated for education reform through leadership roles with StudentsFirst, 50CAN, and the Alliance for School Choice. From 2005 through 2014, he helped guide the Walton Family Foundation’s investments in K–12 education reform.

This article appeared in the Fall 2021 issue of Education Next. Suggested citation format:

Blew, J. (2021). Betsy DeVos and the Future of Education Reform: My years as assistant secretary of education gave me a firsthand look at how infighting among education reformers is hampering progress toward change. Education Next, 21(4), 26-36.

The post Betsy DeVos and the Future of Education Reform appeared first on Education Next.

Schooling Qualified Immunity

Justin Driver — Tue, 23 Mar 2021 10:00:01 +0000

A protester holds an “END QUALIFIED IMMUNITY” sign during a Black Lives Matter protest in Brooklyn, New York, on July 4, 2020.

On the morning of March 19, 2007, I entered the grand courtroom of the U.S. Supreme Court and eagerly slipped into one of the worst seats in the house. My spot—far from center stage and with a view obstructed by enormous marble columns—was located in the section reserved for the justices’ law clerks so they could see, or at least hear, legal history being made. I had the privilege of serving that year as a clerk for Justice Stephen Breyer, assisting with tasks such as drafting written opinions and evaluating the merits of potential cases. I was particularly excited to hear the oral argument in that morning’s case because it involved a beguiling set of facts and marked the first time in nearly two decades that the Supreme Court would resolve a dispute involving students’ freedom of speech.

The case was formally titled Morse v. Frederick, but we law clerks called it by its nickname: BONG HiTS 4 JESUS. A 12th-grader in Juneau, Alaska, named Joseph Frederick had produced that odd, and oddly capitalized, slogan on a 14-foot-long banner that he unfurled across the street from his public school during a parade that teachers had permitted students to attend. When principal Deborah Morse saw the banner, she marched across the street, snatched the sign from Frederick’s hands, and later suspended him for 10 days, asserting that the sign ran afoul of the school’s rule against advocating the use of illegal drugs. So, as Frederick’s attorney, Douglas Mertz, strode to the lectern to make his argument before the court, I expected that the justices would immediately pelt him with a barrage of First Amendment questions: If the principal’s actions violated the First Amendment, might students around the nation start unfurling banners in the middle of algebra class? Should she and other educators have special authority to censor student speech regarding drugs, as everyone knows “bong hits” refers to marijuana? Given that Frederick was technically off campus when he displayed the banner, should the relatively restrictive judicial decisions governing student speech even apply to this case?

Joseph Frederick, a 12th-grade student in Juneau, Alaska, created the “BONG HiTS 4 JESUS” banner and displayed it across the street from his school during a parade.

Mertz opened by observing: “This is a case about free speech. It is not a case about drugs.”

Before he could continue, though, Chief Justice John Roberts jumped in with a retort—one that has significance today not just for lawyers, but also for activists, politicians, and educators across the nation. “It’s a case about money,” Roberts chided. “Your client wants money from the principal personally for her actions in this case.” Mertz insisted that Frederick’s primary concern was vindicating students’ free expression, not any modest financial gain that might flow from a determination that the principal violated his client’s constitutional rights. Roberts further pressed Mertz on this monetary question: “[T]here’s a broader issue of whether principals and teachers around the country have to fear that they’re going to have to pay out of their personal pocket whenever they take actions . . . that they think are necessary to promote the school’s educational mission.”

Although Roberts never directly uttered the words “qualified immunity” during oral argument, his questioning of Mertz unmistakably invoked that doctrine. Qualified immunity is a legal principle that can insulate public employees from financial liability, even if the officials have been found to violate someone’s constitutional rights. In Frederick, the court found that principal Morse’s actions did not violate the Constitution, so the qualified-immunity question in that case largely faded in the written opinions.

Today, though, the once relatively arcane concept of qualified immunity has burst to the fore of public discussion, largely because of an increased focus on police misbehavior. Scholars and citizens alike have condemned the courts’ frequent use of qualified immunity to inoculate police officers from money damages in high-profile cases involving police violence. The exercise of qualified immunity, detractors emphasize, poses a nearly insurmountable obstacle for individuals and their families seeking financial compensation for police wrongdoing. Accordingly, a wide-ranging chorus of critics has demanded an end to qualified immunity.

Public discussion of qualified immunity most often examines the concept as applied to law enforcement, but other government officials can also invoke the protection. Indeed, judicial opinions involving teachers, principals, and schoolboard officials have played a central role in shaping qualified-immunity doctrine. A closer examination of these often overlooked school decisions deepens our understanding of the doctrine’s history and can help us contemplate its future. Viewing qualified immunity through the schooling prism suggests, as critics routinely assert in the policing context, that courts are too lenient in granting qualified immunity to educators. But the schooling prism also offers potent arguments against the wholesale elimination of qualified immunity for educators, regardless of whether the protection is eradicated for police officers.

Deborah Morse, as principal of a high school in Alaska, suspended a student for displaying a banner that read “BONG HiTS 4 JESUS.” Qualified immunity protects school officials like her.

When Does Qualified Immunity Apply?

The Supreme Court introduced the qualified-immunity doctrine in a case involving police officers in the late 1960s. In that case, police officers arrested a group of civil-rights protestors in Mississippi, citing a state anti-loitering law. The Supreme Court later deemed the statute unconstitutional, but it also determined the officers should not be held liable for enforcing a law they presumed valid. Although this case centered on police officers, it did not take long for the court to make clear that other government employees could avail themselves of the defense. In 1975, the court issued an opinion formally granting qualified immunity to educators in Wood v. Strickland, a momentous decision that arose from a delicious set of facts. Peggy Strickland, Virginia Crain, and Jo Wahl—three 10th-grade students at a small public high school in Arkansas—were tasked with providing refreshments at a mother-daughter event for the Future Homemakers of America club. The girls decided to purchase some Right Time malt liquor to spike the punch for the future homemakers and their mothers. The students added such a miniscule amount of malt liquor to the punch, however, that the resulting concoction neither tasted of alcohol nor could have intoxicated even the thirstiest eventgoer. Still, word of the stunt eventually trickled out, and the school board suspended the offending students for the remainder of the semester. A federal appellate court found that the suspensions violated the Fourteenth Amendment’s Due Process Clause.

During oral argument, Chief Justice John Roberts focused on school officials’ financial responsibility.

The case made its way to the Supreme Court, which determined that schoolboard officials could in some instances avail themselves of qualified immunity. Writing for the court, Justice Byron White held that an educator could not be found liable for financial damages unless “he knew or reasonably should have known that the action he took . . . would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights . . . to the student.” White continued, in language that would loom large over time, that damages would be assessed only if the educator acted with “such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.”

Over time, the court abandoned Strickland’s subjective standard requiring jurists to decide whether a defendant had acted with good faith or, instead, “malicious intention.” But key phrases from Strickland have endured. The modern era’s leading case involving qualified immunity—Harlow v. Fitzgerald (1982)—unmistakably built upon the language introduced in Strickland, as Harlow instructs that plaintiffs cannot overcome qualified immunity unless they demonstrate that government officials “violate[d] clearly established . . . constitutional rights.” Since 1982, the Supreme Court has offered varying formulations for determining who may successfully invoke qualified immunity. In perhaps the broadest definition, the court in 1986 stated that qualified immunity shielded “all [government officials] but the plainly incompetent” from liability.

Yet today, the court’s basic test in deciding whether to apply the doctrine continues to be: did the government official in question transgress the Constitution in a way that had been “clearly established” by prior judicial decisions? If precedents have not clearly established the constitutional right in question, then government officials can successfully invoke qualified immunity, even if the court determines that their conduct violated the Constitution. In practice, courts typically require the plaintiff to identify binding precedents featuring government officials who have been found to violate the Constitution in a manner that is almost indistinguishable from the plaintiff’s own conditions.

This notion—that plaintiffs must present identical factual scenarios from past case law to demonstrate that an offense violates a “clearly established” right—is profoundly flawed. In 1990, Judge Richard A. Posner, perhaps the most celebrated legal mind of his generation, pressed this point memorably:

It begins to seem as if to survive a motion to dismiss a suit on grounds of [qualified] immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don’t even arise. There has never been a . . . case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.

Although jurists sometimes quote Judge Posner’s language, they too seldom embrace his logic.

Too Much Qualified Immunity?

Judge Richard Posner pointed out that the current approach to qualified immunity is flawed.

Indeed, the judiciary has been excessively willing to grant immunity to educators, even in the face of heinous conduct that, properly understood, contravenes clearly established law. In one notorious decision from 1997, a federal appellate court afforded immunity to school officials who strip-searched two 2nd-grade girls in Talladega, Alabama. The search occurred in an (ultimately futile) effort to locate seven dollars that had supposedly gone missing from a teacher’s purse. In 1985, long before these odious events transpired, the Supreme Court articulated the governing standard for determining when educators violate the Fourth Amendment’s prohibition on unreasonable searches in a case titled New Jersey v. T.L.O. Student searches complied with the Fourth Amendment, the court found in T.L.O., only “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” The Talladega misadventure would plainly seem to fail this test, as requiring students to remove their undergarments is intensely invasive and the alleged infraction was trifling. Nevertheless, in Jenkins v. Talladega City Board of Education, the federal court deemed T.L.O.’s “broadly-worded phrases” as providing insufficiently “detailed guidance” to notify educators that they could not demand their young charges to expose their naked bodies in an attempt to recover a paltry sum of stolen money. Other federal appellate courts have also permitted educators to use qualified immunity to shield themselves in lawsuits arising from their, at best, wrongheaded strip searches of pupils.

The Supreme Court has also too readily invoked qualified immunity in education law cases. One example is the 2009 case Safford Unified School District v. Redding. The case arose after school officials in a tiny Arizona town subjected an 8th-grade honors student, Savana Redding, to a strip search for contraband. Redding was suspected of possessing nothing more potent than prescription-strength ibuprofen tablets, a substance banned by the school’s zero-tolerance drug policy. No one ever suggested that Redding had secreted painkillers in her underwear, but when a backpack search turned up nothing, two school officials instructed Redding to remove her clothing and to shift her undergarments in ways that exposed her breasts and pelvic area. This humiliating search failed to locate ibuprofen—or any other contraband. The Supreme Court ruled that the strip search had violated Redding’s Fourth Amendment rights because the substance in question was neither particularly potent nor likely to be located in her undergarments. Yet the court also found that Safford’s school officials had not violated clearly established law and were therefore entitled to qualified immunity. In a powerful dissent, Justice John Paul Stevens lambasted the court’s immunity holding, writing, “This is, in essence, a case in which clearly established law meets clearly outrageous conduct.”

Questioning Qualified Immunity

Although the Supreme Court introduced the concept of qualified immunity more than five decades ago, some justices—from across the ideological spectrum—have recently begun questioning its continued validity. Justice Sonia Sotomayor, the court’s leading liberal, and the archconservative Justice Clarence Thomas have both written separate opinions challenging qualified immunity. Thus far, however, Sotomayor and Thomas seem to have gained little traction with their colleagues on this issue. In June 2020, the court rejected nine separate petitions that would have teed up reconsideration of qualified immunity. Since only four of nine justices must agree to have the court address a legal question, it seems unlikely that advocates will soon be able to cobble together five votes to renounce qualified immunity. The court’s hesitation to cast aside such a longstanding practice reflects its extensive line of qualified-immunity opinions and its frequent adherence to the traditional principle of stare decisis—the Latin phrase meaning “to stand by things decided.”

It is possible, though, that Congress, rather than the Supreme Court, will act to alter the scope of qualified immunity, or perhaps even eliminate the practice. A legislative solution is possible, scholars hold, because qualified immunity stems from interpreting a congressional statute (42 U.S.C. § 1983)—not a constitutional provision. Prompted by the May 2020 killing of George Floyd at the hands of police in Minneapolis, Congress members have floated a few different proposals. The George Floyd Justice in Policing Act, introduced by Representative Karen Bass, Democrat of California, and recently passed by the House of Representatives, seeks to end qualified immunity for police officers. That measure would permit other government officials—including educators—to continue invoking the practice. But a broader proposal, titled the Ending Qualified Immunity Act, would eradicate the defense for all government officials. That sweeping proposal, introduced in June 2020, found backers in both the House of Representatives and the Senate, including Elizabeth Warren of Massachusetts and Bernie Sanders of Vermont, who were both then running for the Democratic presidential nomination. While political gridlock makes it extremely difficult to enact legislation in the modern era, it seems probable that Congress will entertain renewed calls for addressing qualified immunity at some point during the Biden administration. Lawmakers proposing such legislation would do well to consider whether they aim to curb the defense only for law enforcement officers or for all government officials, who include not just educators, but a wide range of civil servants.

Savana Redding, age 19, speaks to the media in front of the Supreme Court. The court ruled school officials had violated her rights with a search but were protected by qualified immunity.

Retaining Protection for Educators?

Even if qualified immunity is jettisoned for police officers, should the doctrine still apply to other public officials? Proponents of abolishing qualified immunity for all officials should consider three main arguments that could be marshaled for retaining the practice in schools. First, unlike the work of police officers, the primary responsibilities of teachers are not inherently imbued with legality and constitutionality. Honoring citizens’ Fourth and Fifth Amendment rights is central to a police officer’s work, or at least it should be. While constitutional issues certainly arise in the school environment, many teachers go their entire careers without confronting firsthand a close question involving students’ rights. Stephen Breyer voiced a version of this argument in his Frederick concurring opinion, where he advocated resolving the case solely by granting principal Morse qualified immunity and avoiding the First Amendment question entirely. “Teachers are neither lawyers nor police officers,” Breyer reasoned, “and the law should not demand that they fully understand the intricacies of our . . . jurisprudence.” My own practical experience corroborates Breyer’s argument. Following my college graduation, when I was working toward a master’s degree in teaching, I student-taught civics and U.S. history at a high school in Durham, North Carolina. I heard many topics broached in discussions among teachers that year, but I cannot recall a single conversation addressing students’ constitutional rights, and I am confident that the term “qualified immunity” was never bruited about the faculty lounge.

The second argument for retaining some qualified-immunity protection for educators is that teachers are far less likely than police officers to use lethal force against people in the course of executing their responsibilities. Even in the states that still permit educators to inflict corporal punishment on students, those actions are mild compared to the harms that can all too easily flow from police officers using their weapons. The teacher’s paddle is, in other words, a far cry from the officer’s gun.

Third, there are significant differences between the constitutional case law pertaining to police offers and the law that applies to educators. The judiciary has produced an ample body of constitutional opinions governing police conduct, resulting in a well-developed legal field, while the court opinions on students’ constitutional rights are quite sparse. This disparity in the number of precedents means that educators are much more likely than police officers to encounter legally novel situations in which the law contains legitimate ambiguity even for people who know the existing doctrine well. Affording educators the possibility of qualified immunity may thus be desirable in the face of comparatively widespread uncertainty regarding the constitutionality of their actions.

Yet at least one prominent argument advanced for reflexively conferring qualified immunity on educators should draw skepticism. Chief Justice Roberts’s emotional plea during oral argument in Frederick conjured up the deeply sympathetic image of principal Morse having to shoulder the expense of financial damages on her own. That image deserves little credence. An Alaskan statute dating back to the 1970s requires school boards throughout the state to indemnify school officials against legal costs incurred in the course of their official duties. Educator indemnification statutes like Alaska’s appear across the United States, meaning that school officials are seldom required to pay damages in the manner that Roberts posited. School districts typically purchase insurance policies for coverage in such instances. Of course, if enough school districts are forced to pay significant financial damages growing out of student lawsuits, their insurance premiums will eventually increase, and the additional charges will be drawn from already strapped education budgets. While that dynamic might be lamentable, it is far less disconcerting than individual teachers rifling through their couch cushions to scrounge up the required money themselves.

This article has largely treated the school setting and the police setting as distinct, but it is important to remember that uniformed police officers do appear in many public schools as “school resource officers,” or SROs. As long as the practice of qualified immunity continues, courts should be careful about permitting SROs to cloak themselves too easily with that doctrine. A few years ago, an SRO in New Mexico arrested a middle-school student for interrupting physical-education class by repeatedly belching. Rather than informing the belcher’s parents or giving him a stern lecture, the SRO handcuffed the 7th-grader and drove him in a police cruiser to juvenile detention. In 2016, Neil Gorsuch, then a federal appeals court judge, wrote an opinion that would have denied the SRO qualified immunity: “I would have thought [the existing judicial decisions] sufficient to alert any reasonable officer . . . that arresting a now compliant class clown for burping was going a step too far.” Unfortunately, though, Gorsuch’s comments arrived in a dissent, as his colleagues on the appellate court disagreed and granted the SRO’s invocation of qualified immunity. Let us hope that now-Justice Gorsuch enjoys better luck convincing his new colleagues at the Supreme Court to rein in the distressingly frequent excesses of qualified immunity.

Justin Driver is a professor at Yale Law School and the author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

This article appeared in the Summer 2021 issue of Education Next. Suggested citation format:

Driver, J. (2021). Schooling Qualified Immunity: Should educators be shielded from civil liability for violating students’ rights? Education Next, 21(3), 8-14.

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Making Education Research Relevant

Daniel T. Willingham — Tue, 02 Mar 2021 10:00:28 +0000

In this journal, as in others, scientific evidence is regularly invoked in defense of one classroom practice or another. And on occasion, scientific evidence features prominently in federal education policy. It had a star turn in the 2002 No Child Left Behind Act, which used the phrase “scientifically based research” more than 50 times, and an encore in the 2015 Every Student Succeeds Act, which requires that schools implement “evidence-based interventions” and set tiers of academic rigor to identify programs by their proven effectiveness.

Yet teachers, for the most part, ignore these studies. Why?

There’s research about that, too. First, teachers may view research as somewhat removed from the classroom, with further translation needed for the practice to be ready to implement in a live setting. Second, teachers may judge a practice to be classroom-ready in general but delay implementation because their particular students and setting seem significantly different from the research context. Third, teachers may resist trying something new for reasons unrelated to its effectiveness—because it seems excessively demanding, for example, or because it conflicts with deeply held values or beliefs about what works in the classroom. Finally, teachers may be unaware of the latest research because they only rarely read it.

No matter the reason, it seems many teachers don’t think education research is directly useful to them. We think these teachers have it right. And we think the problem lies with researchers, not teachers.

The first three obstacles listed above—two concerning applicability of research and one concerning perceived constraints research puts on practice—are products of the methods researchers use. Research seems irrelevant to practitioners because it does not pose questions that address their needs. Teachers feel constrained by research because they feel pressured to use research-approved methods, and research creates clear winners and losers among practices that may be appropriate in some contexts but not others.

The root of these issues lies in two standard features of most studies: how researchers choose control groups and researchers’ focus on finding statistically significant differences. The norm in education research is that, for a finding to be publishable, the outcomes of students receiving an intervention must be noticeably different from the outcomes of an otherwise similar “control” group that did not receive the intervention. To show that an intervention “works,” you must show that it makes a positive difference relative to the control. But are such comparisons realistic, reasonable, or even helpful for teachers?

No—but they could be. Here’s how.

Better Than Nothing Is Not Enough

Let’s consider the hypothetical case of CM1, a new method of classroom management meant to reduce the frequency of suspensions. Suppose we recruit eight schools to join an experiment to assess the effectiveness of CM1. We randomly assign teachers in half of the participating classrooms to implement it. We could then compare the rate of suspensions from students in those classrooms to the rate observed in the classrooms that are not implementing CM1. This type of comparison is called “business as usual,” because we compare CM1 to whatever the comparison classrooms are already doing. A similar choice would be to compare the rate of suspensions before CM1 is implemented to the rate after it’s implemented within the same schools. This “pre-post” design is comparable to the business-as-usual design, but each school serves as its own control.

If suspension rates are lower with CM1, we can conclude that it “worked.” But with a business-as-usual control group this conclusion is weak, essentially that “something is better than nothing.” Even that may be too optimistic. We might be observing a placebo effect—that is, students behaved differently only because they knew they were being observed, or because something in their classroom changed. Or maybe CM1 isn’t especially effective, just better than whatever the teachers were doing before, which might have been actively harmful.

We can draw a somewhat stronger conclusion if we use an “active control,” which means that control classrooms also adopt a new method of classroom management, but one that researchers don’t expect will affect suspension rates. Active-control designs make researchers more confident that, if a difference in suspension rates is observed, it’s really CM1 that’s responsible, because both CM1 classrooms and control classrooms are doing something new. This model means we need not worry about placebo effects or that CM1 merely prevented ineffective practices. However, even the best-case scenario produces a weak conclusion, because the control method was predicted not to work. It’s still “something is better than nothing.”

Still another type of comparison tests an intervention that’s known to be effective against a newer version of the same intervention. The goal, obviously, is to test whether the new version represents an improvement.

The three research designs we’ve considered answer questions that will often be of interest only to researchers, namely, whether CM1 “works” or, in the case of the old versus new version comparison, whether CM1 has been improved. When “works” is synonymous with “better than nothing,” the answer can be important for distinguishing among theories and hence is of interest to researchers. But is this question relevant to teachers? Practitioners are not interested in theories and so would not ask, “Is this program better than nothing?” They would ask something more like, “What’s the best way to reduce suspensions?”

The answer “CM1 is better than nothing” is useful to them if no other interventions have been tested. But in the real world, classroom teachers—not to mention school and system leaders—are choosing among several possible interventions or courses of action. What about other methods of classroom management intended to reduce suspensions? If, say, hypothetical classroom-management program competitors CM2 and CM3 have each been shown to be better than nothing, practitioners would prefer that researchers compare CM1 to CM2 and CM3 rather than compare it to doing nothing at all. Is one much better than the others? Or are all about equally effective, and it’s up to practitioners to pick whichever one they prefer?

The 2002 No Child Left Behind Act used the phrase “scientifically based research” more than 50 times.

Best Practices—But for Whom?

If we set a goal of finding the best way to reduce suspensions, and there are no successful interventions known, comparing CM1 to business as usual makes sense. However, if there are successful interventions known, researchers should compare CM1 to what is currently thought to be the most successful intervention. We might think of this as the strong definition of the term “best practices.” It indicates that there is one champion method, a single preeminent way of reducing suspensions, and the goal of research is to find it.

But that’s generally not how the world works and indeed, “What’s the best way to reduce suspensions?” is probably not exactly what an educator would ask. Rather, they would ask, “What’s the best way to reduce suspensions at my school, with the particular students, faculty, and administrators found here, and with our peculiar set of assets and liabilities, and without negatively impacting other important instructional goals?”

CM1 may be terrific when it comes to reducing student suspensions, but it may also be expensive, demanding of administrators’ time, or workable only with very experienced teachers or with homogenous student bodies. And maybe CM2 is also terrific, especially for inexperienced teachers, and CM3 is helpful when working with diverse students. Research certainly shows such variability across contexts for some interventions, and teachers know it. As we’ve noted, one reason teachers don’t tend to use research is because they assume that whatever positive impact researchers found would not necessarily be the same for their particular students in their particular school.

If a universal champion “best practice” really emerges, improbable as that seems, it would be useful to know, of course. But teachers would benefit most not by researchers’ identifying one program as the best, but by their identifying or broadening a range of effective interventions from which teachers can then choose. Research can support that goal, but it requires a change in what we take to be an interesting conclusion. Instead of deeming a study interesting if the intervention is better than the comparison group, teachers would be interested in knowing whether a new intervention is at least as good as the best intervention. That would allow them to choose among interventions, all of which are known to be effective, based on which one they believe best fits their unique needs.

Null (and Void) Hypothesis

But that’s not the goal of research studies. Researchers are looking for differences, not sameness, and the bigger the difference, the better. Teachers might be interested in knowing that CM1’s impact is no different than that of another proven classroom-management method, but researchers would not. Researchers call this a null effect, and they are taught that this conclusion is difficult to interpret. Traditionally, research journals have not even published null findings, based on the assumption that they are not of interest.

Consider this from a researcher’s point of view. Suppose a school leader implements CM1 because the leader thinks it reduces suspensions. There are 299 suspensions in the school that year, whereas in the previous year there had been 300. Did CM1 help? A researcher would say one can’t conclude that it did, because the number of suspensions will vary a bit from year to year just by chance. However, if the difference were much larger—say there were 100 fewer suspensions after CM1 were put in place—then the researcher would say that was too large to be a fluke. A “statistically significant difference” is one that would be very unlikely to have occurred by chance.

This logic undergirds nearly all behavioral research, and it leads to an obsession with difference. Saying “I compared X and Y, and I cannot conclude they are different” because the outcomes were similar may be uninteresting to researchers, but it is potentially very interesting to practitioners looking to address a particular challenge. They would be glad to know that a new intervention is at least as good as a proven one.

Null effects matter for another reason. Interventions often spring from laboratory findings. For example, researchers have found that memory is more enduring if study sessions are spread out over time rather than crammed into a short time period. We should not assume that observing that effect in the highly controlled environment of the laboratory means that we’re guaranteed to observe it in the less controlled environment of the classroom. If spacing out study sessions doesn’t work any better in schools than cram sessions, that’s a null effect, but it’s one that’s important to know.

Researchers are right that null effects are not straightforward to interpret. Maybe the intervention can work in schools, but the experimenters didn’t translate it to the classroom in the right way. Or they may have done the translation the right way, but the experiment the wrong way. Nevertheless, null effects are vital to tally and include in a broader evaluation of the potential of the intervention. Researchers can make null effects more readily interpretable through changes in research design, especially by increasing the number of people in the study.

Publication Bias

How do these phenomena play out in recently published research? To find out, we did some research of our own. We examined a sample of articles reporting intervention studies published from 2014 to 2018 in four journals: American Education Research Journal, Educational Researcher, Learning and Instruction, and Journal of Research in Science Teaching. Our analysis looked at the type of control group employed and whether the intervention was reported to be significantly different from the control group. We predicted that most published articles employ weak control groups—those allowing the conclusion “better than nothing”—because these offer the greatest chance of observing a significant difference between intervention and control.

Of 304 studies examined, 91 percent were of the “better than nothing” sort: 49 percent employed business-as-usual designs and 42 percent used as the control group an alternative intervention that researchers expected not to influence the outcome. Some 4.5 percent used a control that was a variant of the intervention with the goal of improving it. Another 4.5 percent used a control group that was either known to have a positive effect or was expected to have a beneficial effect based on existing theory.

Coders also noted whether the key comparison—intervention versus control—was reported as a statistically significant difference and whether a particular interaction was emphasized. For example, perhaps the intervention group performed no better than the control group in early grades, but there was a significant difference in later grades. Alternatively, the key conclusion of the report may have been that the intervention and control group did not differ.

We found that 91 percent of the studies reported that the intervention was significantly different than the control group. Of those that did not, another 4 percent reported a significant interaction—that is, the intervention worked for certain subjects or under certain circumstances. Just 5 percent of studies reported null effects. None of these studies demonstrated that a new intervention is equivalent to another intervention already established as effective.

A More Useful Research Standard

In theory, the goals of education research are to build knowledge and improve decision-making and outcomes for teachers and students. But in practice, education research is shaped by the common practices and priorities of researchers, not teachers or school and system leaders. Most intervention research employs a better-than-nothing control group, and an intervention is deemed worth applying (or, at least, worthy of continued research) only if it makes a measurable and statistically significant difference. The drawback to this pervasive research design is clear: there may well be “research-based” interventions in the marketplace, but educators have no basis on which to compare the alternatives. They have all been shown to be “better”—but better than what, exactly?

Imagine instead that the common research design started with whatever trusted intervention is considered the current “gold standard” for the desired outcome and used that as the control group. Imagine too that the criterion of the comparison would be that a new intervention should be at least as good as the gold standard. In time, a group of proven interventions would emerge, roughly equivalent in effectiveness and known to be superior to other interventions not up to the gold standard. As a result, educators would have a range of high-quality interventions to choose from and could select the one that best fits their school context, skills, and personal preference. In addition, choice itself can be an important component of educational effectiveness—interventions with teacher buy-in tend to be more successful, and research has shown that the pervasive adoption of a single intervention that does not suit the broader array of individual differences may lead to less learning.

We see other benefits to adopting this approach as well. We predict that refocusing research on equivalence as the dissemination criterion will spur innovation. “At least as good as” is actually “better than” if the new intervention has fewer side effects, is less expensive, is less time-consuming, or is easier to implement compared to its predecessor. For example, consider electronic textbooks, which are less expensive to disseminate and easier to update. The salient question for educators and policymakers isn’t whether they are better than other texts, but whether they are associated with learning outcomes equivalent to those of using traditional, more costly textbooks. The research field’s narrow focus on ensuring the intervention is statistically “better than” the control group means that the workaday demands of the intervention in terms of time, money, space, and personnel are not emphasized—in fact, are often not even considered. This disconnect invites skepticism on the part of the teachers charged with implementing supposedly classroom-ready practices.

What will it take to effect this change? We believe researchers are sensitive to the incentives their profession offers. Most education research is conducted in the academy, where the coins of the realm are grants and peer-reviewed publications. There are some encouraging signs that journal editors are taking a greater interest in null effects, such as a recent special issue of Education Researcher dedicated to such studies. But change will most likely come about and endure if the foundations and government agencies that fund research make clear that they will view this change in study designs favorably when reviewing proposals. This would encourage journal editors to publish studies with null effects and reject those that use business-as-usual control groups.

Researchers are, in our experience, frustrated and saddened that teachers do not make greater use of research findings in their practices. But nothing will change until the researchers recognize that their standard methodology is useful for answering research questions, but not for improving practice.

Daniel T. Willingham is a professor of psychology at the University of Virginia. David B. Daniel is a professor of psychology at James Madison University.

For more, please see “The Top 20 Education Next Articles of 2022.”

This article appeared in the Spring 2021 issue of Education Next. Suggested citation format:

Willingham, D.T., and Daniel, D.B. (2021). Making Education Research Relevant: How researchers can give teachers more choices. Education Next, 21(2), 28-33.

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