The Education Gadfly The Education Gadfly A Bulletin of Weekly News and Analysis from the Thomas B. Fordham Institute
Volume 11, Number 3. January 20, 2011.
In This Edition
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Opinion and Analysis

Students' rights: A haze of precedents
Free speech laws vary by region
Opinion | Daniel Nadler

A "third way" on charter-school policy
Toward a charter truce in the Buckeye State
Opinion | Terry Ryan

An e(z)-way around class-size mandates
Miami-Dade finds a creative solution
News Analysis

E pluribus unum, and not the other way around
High school “ethnic studies” courses deserve scrutiny
News Analysis

Short Reviews

Assessing the Determinants and Implications of Teacher Layoffs
A guy walks into a RIF…
Review | Nick Joch

Accountability in Action: A Comprehensive Guide to Charter School Closure
Steps one through forty-seven
Review | Marena Perkins

Race to Nowhere
A movie the Tiger Mother would despise
Review | Gerilyn Slicker


From The Web

Only the good die young
Mike and Stephanie (and the Father, Son, and the Holy Ghost) talk Catholic schools, ethnic studies, and online learning
Education Gadfly Show Podcast | Hosts: Mike Petrilli and Stephanie Saroki

School boards: Our indicator species
Do they need saving?
Flypaper's Finest | January 19, 2011 | Peter Meyer

Buy me!
Amy Chua is a wimp and other misstatements
Flypaper's Finest | January 18, 2011 | Liam Julian

Event trailer: Are Bad Schools Immortal?
Get excited for Groundhog Day
Gadfly Studios | January 20, 2011

Extras

Call me anytime
Teacher quality and budget stability
Briefly Noted

Show your school spirit during National School Choice Week
Events across the land run January 23-29
Announcement

Common Core is hiring
Spring semester research interns, step right up!
Announcement

Charter School Autonomy: A Half Broken Promise
State rankings of charter autonomy
Fordham featured publication

Opinion and News Analysis

Opinion: Students' rights: A haze of precedents
By Daniel Nadler

Under the U.S. Constitution, how may a district investigate a student thought to have stolen a school computer, smoked cigarettes in a school’s back stairwell, or bullied a youngster online? It depends on the location of the district. In Richmond, VA, and other parts of the Fourth Circuit, district personnel may opt to seize and search the student’s cell phone, accessing potentially incriminating text messages. In Boulder, CO, and other communities within the Tenth Circuit, inquisitive staffers may do the same thing—but only with student or parent permission.

Which method is just? Constitutionally sound? Is a school like a parent, with legal protections to read its children’s text messages? Or is it instead like a neighbor, who would face charges for opening the mail of the person next door without consent, or for looking through his email?

These are but a few of the thousands of questions federal courts must answer in the fog that is the field of students rights litigation.

Students’ rights law—with its strong implications for school safety—is perhaps the most visible element of American educational jurisprudence. And, thanks to the Supreme Court’s vague and sometimes contradictory decisions on this front, it’s also the most contentious. The High Court first weighed in on students’ rights in 1969, declaring in their Tinker ruling that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Since then, educators—and state and local officials—have wrestled with what exactly the Court had in mind.

Now, more than forty years later, district administrators and state policymakers still find little guidance in Supreme Court opinions. Instead of offering concrete precedent, Tinker and other High Court opinions have left ample room for lower courts to diverge in their interpretations—and, as is the case in Boulder and Richmond, these lower courts have embraced this opportunity wholeheartedly.

To understand the variation of appellate court decisions on this issue, I assembled the first comprehensive dataset of federal cases dealing with students’ rights in public schools (from 1969 to 2009), with an eye to answer one key question: whether judges’ interpretations and holdings are significantly influenced by the federal circuits (with their contrasting political make-up) to which they are aligned.

It turns out that there is enormous cross-circuit divergence in students’ rights case outcomes—more, even, than noted legal scholar Cass Sunstein found in the touchy areas of race and sex discrimination.

Over this forty-year period, the rate of U.S. appellate-court case outcomes that were pro-student (when a student plaintiff was granted some relief by the court) varied by as much as 56 percent, depending on which circuit tried the case (see Figures 1 and 2). Overall, the national average of pro-student rights case outcomes was roughly 42 percent. Students in the First and Fourth Circuits saw favorable court-case outcomes 75 and 67 percent of the time, respectively; those in the Eleventh and Sixth Circuits, just 30 and 19 percent of the time, respectively. At least four of the eleven circuits produce case outcomes that vary from the national average by more than a full standard deviation.

Figure 1: Summary of Student Rights Case Outcomes by Circuit

From another perspective, these variances in circuit court rulings represent a dramatic regional bias associated with the judicial outcomes. In the (more liberal) Northeast, Mid-Atlantic, and West Coast, courts favor students in a majority of cases: In the (more conservative) southern and central states, students can expect a favorable outcome less a third of the time. This means that landmark students-rights decisions at the national level, like Tinker, play out very differently across America’s regions. In the nation’s four biggest states—California, Florida, New York, and Texas—roughly 40 percent of the variance in all case outcomes of student rights claims can be accounted for by geographic situation alone.

Figure 2: Regional Variation in Student Rights Rulings, 1969-2009

These variant Appellate Court interpretations set a moving bar for educators across the country. A ruling from the California-based Ninth Circuit, may not see the same conclusion in the Georgia-based Eleventh Circuit. Without clarity, the scope of school-leader authority lingers in a legal mist. Our national judicial system is grounded in the supposition that court rulings objectively determine statute. These findings hammer at the bedrock of that assumption.

Daniel Nadler is a graduate student studying the political economy of the United States at the Harvard University Department of Government.

This piece is an adaptation of an academic-length paper entitled Regional Heterogeneity in U.S. Courts of Appeals Case Outcomes Over Time: A Review of Existing Studies & New Data from the Field of Student Rights and supported by the Thomas B. Fordham Institute as part of our Fordham Scholars program.

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Opinion: A "third way" on charter-school policy
By Terry Ryan

Since their inception in 1997, charter schools have been at the center of some of the most politically contentious debates in Ohio. These debates have too often been characterized by two competing camps. One side typically has been organized labor (read: the teacher unions), stalwart Democrats, and citizens groups believing charters represents a threat to “public schools.” The other side tends to be the business sector—represented by large profit-making school management companies—free-market oriented individuals (often Republicans), and activists of all political stripes who advocate for educational equity.

Interest groups on both sides of the debate have poured money into political campaigns over the years and have treated the politics of charter schools as a zero-sum game.

This political polarization has led pro-labor Democrats to support anti-charter legislation while pro-business Republicans have fought to protect extant school operators and have resisted accountability measures that they perceived as anti-charter. True to form, in his first budget in 2007—and again in his second budget in 2009—Ohio Governor Ted Strickland proposed legislation that would have banned for-profit charter operators, cut charter school funding, and buried the schools in costly regulations.

The political battle long-waged around these schools has hurt charter quality in the state, made it difficult for Ohio to improve its charter law, and retarded the ability of charter schools to meet their potential. According to new state charter law rankings by the National Alliance for Public Charter Schools (NAPCS), Ohio’s law now ranks number twenty-seven out of forty-one states with charter laws.

In contrast, the states with the best charter laws—Minnesota, Florida, Massachusetts, Colorado, and New York—have made steady improvements over the last few years through bipartisan legislative action. According to NAPCS, these improvements include both the removal of constraints on charters (e.g., lifting of charter caps and moratoriums) and the strengthening of charter-school accountability. Florida is a case in point. The Sunshine State made the biggest jump in 2010, moving from number eleven to number two in the charter-law-rankings database. Florida’s rating leapt because lawmakers there embraced quality-control provisions that included adopting model-charter-school applications and requiring high-quality charter-school-application evaluation forms and performance-based charter contracts.

Republicans now control state government in Ohio and have promised to remove caps and moratoriums on charters. This is a good start, but removing barriers to new schools—increasing choice—must be balanced by improvements to the state’s charter quality-control mechanisms. The Buckeye State needs more than charter school quantity. It needs charter school quality, too. Ohio should build on the lessons from Florida and other high-performing charter states.

Specifically, Governor Kasich and legislative leaders should craft policies that ensure would-be school operators are carefully vetted in advance of opening; that all schools are thoroughly monitored by responsible authorities for their academic performance; and that poor performers exit the market in timely fashion.

Failed schools should not be able to skirt academic accountability, whether they are traditional-district schools, virtual-charter schools, or brick-and-mortar charters (operated by either for-profit or nonprofit management companies). The theory behind the school-choice movement—that parents will vote with their feet and that the market will hold schools accountable—is imperfect. Choice alone all too often allows poorly performing schools to stay open for business. Parental choice should be encouraged and expanded, but in parallel with rigorous accountability for results.

For too long, charter schools have been a political battlefield on which powerful partisan interests have waged war. As such, charter quality has suffered and children who badly need better educational options have been unable to find them, all too often bouncing from troubled school to troubled school. Governor Kasich and Republican lawmakers in Ohio should break the cycle of political acrimony around school choice. This means resisting the temptation—and the encouragement they will surely receive from some in the charter sector—to push for more charter schools while also scaling back on school accountability. This would be a grave mistake.

The challenge facing education reformers in Ohio isn’t so much to add yet more school options, but to ensure that those available to families are in fact educationally sound. This is both the lesson from Ohio’s rocky charter-school history and the lesson from state’s with higher performing charter schools.

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News Analysis: An e(z)-way around class-size mandates

We never thought we’d say this. But, hats off to the Miami-Dade school district! Through a partnership with Florida Virtual School, the district has enrolled over 7,000 of its students in online courses, taught by teachers over the Internet. The initiative is a smart, creative counter to the one-two punch of tough economic times and rigid class-size restrictions. (In Florida, elementary schools may only have eighteen students per class and high schools, twenty-five. The e-learning labs are exempt from these stifling and costly limitations.) While the Miami-Dade initiative has left status quo defenders fuming, it’s allowed the district to cut costs while still providing personalized, individual instruction. “Mass customization” they call it. There is no question that these e-lessons must be well-planned and well-implemented if this initiative is to be a plus for students. But to the teachers’ unions and their minions we say: Something’s got to give. Axe the Sunshine State’s ridiculous class-size mandate or start to get comfortable with alternative solutions to stretching the school dollar. ‘Nuff said.

In Florida, Virtual Classrooms With No Teachers,” by Laura Herrera, New York Times, January 17, 2011.

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News Analysis: E pluribus unum, and not the other way around

The Gadfly and Fordham have forever embraced multiculturalism: All students should learn about the history (and cultures) of all Americans. Standard U.S. history courses should recount the good and bad chapters of our nation’s past, helping our young people understand the origin of our high ideals as well as ways we’ve fallen short of them, our triumphs as well as our sins, and the stories of all peoples, from whites to blacks to Latinos to Native Americans and onward. But we cannot condone courses designed for students from one ethnic group about the history of said group alone. African American-studies courses just for African Americans? Latino-studies courses just for Latinos? Count us out. That’s why we were disappointed (if not surprised) when the New York Times editorial page condemned a new Arizona law that bans such courses for “inject[ing] nativist fears directly into the public school classroom.” Currently at issue are the Tucson Unified School District’s Mexican American-studies courses, which, according to some reports, including one from a former teacher of the program, the students are taught that “the United States was an still is a fundamentally racist country in nature.” It’s hard to know from afar if these courses do in fact cross the line, but it’s completely appropriate—and not at all “nativist”—for states to ensure that their public schools don’t teach hate, divisiveness, or an ideology of victimization.

Tom Horne: Tucson Unified School District runs afoul of ethnic studies law,” by Mark K. Reinhart, Arizona Republic, January 3, 2011.

Arizona, in the Classroom,” by the editorial board, New York Times, January 16, 2011.

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Short Reviews

Review: Assessing the Determinants and Implications of Teacher Layoffs
By Nick Joch

Add this credible and quantitative research to the growing list of reports finding seniority-based layoffs to be detrimental both to student learning and to the bottom line. From the CEDR, the report analyzes data on over 2,000 Washington state teachers who received reduction-in-force (RIF) notices during the 2008-2009 and 2009-2010 school years—primarily on a first hired, last fired model. It then compared these seniority-based layoffs to a number of proposed performance-based layoff models—each using a different metric for value-added. In a computer simulation, the seniority-based model caused student learning to lag by two to four months compared to a performance-based model, and under it African American students were 50 percent more likely to have their teacher laid off than were white students (compared to 20 percent more likely in the performance-based scenario). Further, the study found that performance-based layoffs would save up to 10 percent of the state’s teacher workforce, as fewer tenured, higher-paid teachers would need to be pink-slipped to meet budget quotas. Many states, including Fordham’s home state of Ohio, have laws that require all teacher layoffs to be based on seniority alone, laws that, in light of this study’s findings, legislators would do well to cut.

Dan Goldhaber and Roddy Theobald, “Assessing the Determinants and Implications of Teacher Layoffs,” (Seattle, WA: Center for Education Data and Research, December 2010).

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Review: Accountability in Action: A Comprehensive Guide to Charter School Closure
By Marena Perkins

While it’s no one’s idea of a good time, there’s little doubt that charter authorizers need to get better at shuttering bad schools.  To help that end, this guide from NACSA pulls together solid advice from consultants, lawyers, and charter authorizers on how to support students and families through the closure process. It also supplies the reader with appendices providing sample school-closure material—from a forty-seven step action plan to a press release and resolution for charter revocation. Although the fill-in-the-blank nature of some of these documents arguably belong in a black and yellow How to Close a Charter School for Dummies, the sample action plan for charter-school closure is explicit and useful, detailing a timetable and point-person for tasks ranging from U.S. Department of Education filings to the simpler to-dos like compiling parent contact information. This guide may not provide political cover. But, if used widely, it will help to ensure that quality prevails in the charter market.

Kim Wechtenhiser, Andrew Wade, and Margaret Lin, eds., “Accountability in Action: A Comprehensive Guide to Charter School Closure,” (Chicago: National Association of Charter School Authorizers, October, 2010).

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Review: Race to Nowhere
By Gerilyn Slicker

While surely not the norm in American education today, the daunting, competitive, and stressful world in which some affluent U.S. students live is still worthy of attention—and a movie. Race to Nowhere, a new film by mother-come-documentarian Vicki Abbels explores the negative effects of the high-stakes, highly competitive world of middle-to-upper class families. It argues that, when students begin to over-prioritize GPAs and college applications, learning becomes an afterthought, not the primary focus of education. This is a common meme—see books from the same genre, such as Pressured Parents, Stressed out Kids and Doing School. But Vicki Abbels, the film’s director, deserves credit for including some oft overlooked subgroups of American students. Along with the affluent, she connects with a few high schoolers from lower-income families, pressured by their parents to win college scholarships or to be the first in the family to attend post-secondary school. This grassroots documentary has caused quite a stir in well-to-do communities and surely adds to the current debates on A.P. restructuring, “Chinese parents,” and the American education system writ large. Unfortunately, while Abbels and her team do well framing the issue—creating overworked, sleep-deprived, college-application-obsessed kids is no good—her proposed solutions disappoint. In fact, she offers but one, simple and inadequate: Assign less homework.

Vicki Abbels, director, “Race to Nowhere,” (Lafayette, CA: Reel Link Films, 2010).

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From The Web

The Education Gadfly Show Podcast: Only the good die young

Mike welcomes Stephanie Saroki of Seton Education Partners to this week’s Pardon the Gadfly. They lament Catholic school closures in NYC, opine on virtual education, and get heady talking ethnic-studies courses. Amber offers more proof on the detriments of “last hired, first fired” and Chris shakes his fist at do-gooders who want kids to drop out of school.

The Education Gadfly
Click to listen to the podcast, download it onto your computer, or subscribe to it via iTunes. (Podcast will be available at 6:00PM, January 20.)

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Flypaper's Finest: School boards: Our indicator species
By Peter Meyer

A few months ago, chatting with my brother-in-law, a former executive at the National School Boards Association, I suggested we collaborate on a book called Saving School Boards.

There was a pause. “Do they need saving?” he asked.…

The Education Gadfly
Click to read the rest on Flypaper.

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Flypaper's Finest: Buy me!
By Liam Julian

David Brooks is a New York Times columnist, and boy does he know how to write 750 words that will rocket to the top of his paper’s most-e-mailed list. Here’s his basic recipe. First, pick a topic in the sociology realm, preferably something sort of vague, with Malcolm-Gladwell-ish overtones (or, better yet, apply explanatory social science to some newsy situation). Second, boil down complicated ideas until you’re left with the thickest residue; deglaze it with short, choppy, declarative, simple-to-read sentences.…

The Education Gadfly
Click to read the rest on Flypaper.

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Gadfly Studios: Event trailer: Are Bad Schools Immortal?

Do you drive past low-performing schools and feel a bit like Billy Murray? Join Fordham and a crackerjack set of panelists on Groundhog Day, February 2, from 3:30 to 5:00PM, for a lively conversation on bad schools—and how they just don’t ever seem to go away. Find out more information here, or RSVP here.

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Extras

Briefly Noted: Call me anytime

  • The National Council on Teacher Quality officially announced their newest project, monumental but oh-so-necessary: reviews of all 1,4000 of America’s education schools. For a sneak-preview of what to expect, check out their Illinois and Texas reports. 
  • Are the teachers unions finally caving? Probably not. But the AFT has education reformers hoping with the release of a new plan, meant to be used for future collective-bargaining negotiations. The plan would expedite the teacher dismissal process and revamp teacher discipline. 
  • Marguerite Roza explains on NPR just what new school funding formulae should look like in the modern era. Hint: They’d be a whole lot more flexible. 
  • Parents who are annoyed with pre-dawn wakeup calls from school districts announcing snow days: Take a page out this Maryland father’s playbook. To avenge his lost sleep at the hands of a district’s automated caller service, the parent created a robocall of his own, set to telephone district leaders at 4:30 one morning, thanking them for their snow day reminders.
  • When students act up, or disrupt or cut class, Texas school districts discipline them not with detention slips but with class C misdemeanor tickets. Tickets can cost the family as much as $500 a pop.

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Announcement: Show your school spirit during School Choice Week

For the school-choice advocates in the crowd, January 23-29 is National School Choice Week. Events are held across the country, but those of you in the Columbus, Ohio area at 6:00PM on January 25 get a special treat. Fordham’s own Terry Ryan will join School Choice Ohio for a look at the school-choice terrain in the Buckeye State. Learn more about the event here, and about the week in general here.

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Announcement: Common Core internship available

If you’re a motivated, intelligent, and creative individual with a keen eye for research and keen thirst for a balanced curriculum in K-12 education, then look no farther than Common Core—a D.C.-based organization promoting a rich K-12 curriculum that is hiring for a research intern. To apply, send a 3-5 page writing sample, resume, and cover letter here.

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Fordham's featured publication:

Charter School Autonomy: A Half-Broken Promise

The typical charter school in America today lacks the autonomy it needs to succeed, once state, authorizer, and other impositions are considered. See how authorizer contracts, federal policy, and local statutes affect charter autonomy in your state—and how they compare with other jurisdictions.

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The Education Gadfly is published weekly (ordinarily on Thursdays), with occasional breaks, by the Thomas B. Fordham Institute. Regular contributors include Amy Fagan, Daniela Fairchild, Chester E. Finn, Jr., Chris Irvine, Amanda Olberg, Jamie Davies O’Leary, Emmy Partin, Marena Perkins, Michael J. Petrilli, Terry Ryan, Janie Scull, Gerilyn Slicker, Chris Tessone, and Amber Winkler. Have something to say? Email us at thegadfly@edexcellence.net. Find archived issues or other reviews of reports and books here.

The Thomas B. Fordham Institute is the nation’s leader in advancing educational excellence for every child through quality research, analysis, and commentary, as well as on-the-ground action and advocacy in Ohio. (For Ohio news, check out our Ohio Education Gadfly, published bi-weekly, ordinarily on Wednesdays.) The Institute is neither connected with nor sponsored by Fordham University.

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