________________________________________  THE VERMONT EDUCATION REPORT April 25, 2005 - Vol. 5, No. 17 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯  Covering education news in Vermont and beyond... Informative, provocative, unique... Published by Vermonters for Better Education  VBE is a nonprofit, nonpartisan organization whose mission is to enlist parents and the public at large in achieving quality educational opportunities for all the children of Vermont by monitoring the state of education in Vermont; promoting the value of educational freedoms for all parents; and giving parents the evaluative tools with which to identify excellence. Libby Sternberg, executive director: VTBetterEd@aol.com NEWS & ANALYSIS... YOUR TAX DOLLARS ARE NO MORE THAN A "BIG WHOOP": SO SAYS RUTLAND/NORTHEAST SUPERINTENDENT MATHIS In the dog-bites-man category of news, Vermonters learned last week that Rutland Northeast Supervisory Union will join in a national lawsuit claiming the No Child Left Behind Act is underfunded. William J. Mathis, superintendent of Rutland Northeast and perennial critic of NCLB and numerous other education reforms, was in Washington last week standing shoulder to shoulder with representatives of the NEA as they announced the suit. The Vermont-NEA is part of the suit as well. The lawsuit claims NCLB is underfunded to the tune of $27 billion. In a well-reported Burlington Free Press story, reporter Molly Walsh quotes Mathis as characterizing $21,000 in extra funding for a Leicester school that failed to meet progress standards two years in a row as nothing more than a "big whoop" in the scheme of things. According to the article, Mathis claims it would take at least $100,000 to help the school achieve standards. He would have used the money to hire social workers, according to the article. To read the full story, go to: http://www.burlingtonfreepress.com/bfpnews/news/thursday/6000h.htm (link expires Thursday). The article originally appeared on April 21. Also see a related NEA story in "From Elsewhere" (below). SENATE AND HOUSE ED: SLOW PROGRESS Senate and House Education committees continue to move ponderously through a variety of topics. Last week, NCLB and school choice critic William J. Mathis (see above story) was on the schedule to testify in House Ed about Act 150, the state's extremely modest public high school choice bill. Mathis is such a vigorous opponent of choice that even this tiny crumb of a program is too much for him to swallow, so it's unlikely he had much good to say about it. This week, House Ed looks at technical corrections to S.159 which itself is a bill correcting small items in education statutes about when various data collecting should be done, etc. House Ed will also look at bills related to School Board vacancies. Senate Ed, meanwhile, will hear testimony on S.132, the early education bill, on Monday with Kevin Brier of Vermont Renewal on tap by phone. The rest of the week covers a hodgepodge of issues - from "Reinventing High Schools" to civics education to confirmations of appointments to various boards.  *   *   * FROM ELSEWHERE... THE EDUCATION INTELLIGENCE AGENCY 4/25/05 (an EIA exclusive) On the web at: http://www.eiaonline.com   DOES NEA BELIEVE ITS OWN NCLB LEGAL ARGUMENT?  The National Education Association filed suit against the U.S. Department of Education last week, claiming the No Child Left Behind Act (NCLB) is an unfunded federal mandate. Nine NEA state affiliates and one local affiliate joined the suit, along with nine school districts in three states. One of the attorneys who filed the suit, and who is undoubtedly its primary author, is NEA General Counsel Robert H. Chanin. Though the complaint makes many claims, it hinges on one phrase in the law that releases states and school districts from any obligation "to spend any funds or incur any costs not paid for under this Act." The lawsuit claims that by failing to provide "sufficient federal funds" to pay for its provisions, "the Secretary of Education is violating the Spending Clause of the United States Constitution." So far, the arguments have fallen along predictable lines. The Department of Education attacked both ends of the union lawsuit by asserting that NCLB is neither a mandate nor insufficiently funded. NEA is taking an unusual stance for a left-of-center labor organization. "The law says that you don't have to do anything it requires unless you receive the federal money to do it," Chanin told the New York Times. "There's a promise in the law, and it is unambiguous." But EIA has evidence of some considerable ambiguity in NEA's own argument. On May 7, 2003, the NEA Office of General Counsel sent a "confidential-attorney/client privileged" memo to a large group of state affiliate officers and employees. The memo concerned the NCLB provision regarding the notification of parents whose teachers did not meet the law's definition of "highly qualified." As EIA reported in its December 8, 2003 Communiqué, Chanin advised the union not to pursue litigation on that issue, and the bulk of the memo provides NEA state affiliates advice about the best way to comply with the law. What makes the memo relevant to last week's lawsuit is the reason Chanin cited for not pursuing litigation. "There are two conceptual possibilities for a challenge based on federal law," the 2003 memo reads. "One is that the parental notice requirement violates a right guaranteed by the First Amendment, denies equal protection, or runs afoul of some other provision in the United States Constitution. We find no such violation. "The other basis for a possible federal law challenge is that there is no constitutional provision that gives Congress the authority to impose this type of requirement on states -– and that might be an avenue worth exploring if that was what Congress has done. In point of fact, however, neither the parental notice requirement -– nor, indeed, any of the other requirements in NCLB -– are 'imposed' on the states in a legal sense. NCLB has been enacted on the basis of Congress' Spending Power, and states can avoid this and other statutory requirements simply by declining to accept federal Title I funds. If the states decide to accept such funds, however, then they must also accept the conditions that Congress has attached to them. To be sure, a legal argument can be made that this choice is not really 'voluntary' -– states have no option but to comply inasmuch as they cannot adequately fund public education without the federal contribution -– but the courts uniformly have rejected such an argument in the education context, as well as in connection with other federal aid programs." Chanin then helpfully goes on to cite the many cases to support this interpretation: Jim C. v. United States ("Congress can condition the receipt of all federal funds on state's promise not to discriminate against disabled persons"); Kansas v. United States ("threatened loss of $130 million in federal financial support for state welfare program for failure to adopt changes in welfare program as mandated by Congress held not 'coercive'"); Nevada v. Skinner ("no coercion where potential loss of federal funds represented approximately 95% of state highway funds"); Koslow v. Commonwealth of Pennsylvania ("threatened loss of all federal financial support to the state Department of Corrections is not coercive... it is a free and deliberate choice by the Commonwealth"); California v. United States ("conditioning state's receipt of Medicaid funds on state's agreement to provide emergency medical services to illegal aliens does not make the condition involuntary"); Virginia v. Browne! r ("no coercion where state would lose portion of federal highway funds for failing to comply with requirements of Clean Air Act"); and Oklahoma v. Schweiker ("no coercion where state would lose all federal Medicaid funds for failing to follow certain requirements in Social Security Act.") "In sum," the memo says, "we see no way for a school district to avoid complying with the parental notice requirement," but adds in a footnote, "except, of course, by rejecting NCLB funding. But the parental notice requirement hardly seems sufficient to trigger such drastic action." NEA President Reg Weaver told the media, “The principle of the law is simple; if you regulate, you have to pay." But the memo and all those court cases illustrate the obvious fact that federal funds are a two-way obligation. If you want the federal bucks, you have to play by the federal rules. The American Federation of Teachers quietly noted the NEA lawsuit, stating the AFT had "previously weighed the legal option" but "chose instead to pursue legislative efforts to secure more funding." Perhaps AFT was taken aback by the NEA argument on pp. 50-51 of the lawsuit that the NCLB teacher qualification requirement was costing states money because it was driving up teacher salaries. Following up the massive publicity surrounding the lawsuit, NEA is still hoping to get a state government to sign on.  THE FORDHAM FOUNDATION On the web at: http://www.edexcellence.net SHORT TAKES by Chester E. Finn, Jr., president of the Fordham Foundation I finally got around to glancing through The Charter School Dust-Up: Examining the Evidence on Enrollment and Achievement, by Martin Carnoy, Rebecca Jacobsen, Lawrence Mishel, and Richard Rothstein. These people sure have nerve, pretending to analyze in scholarly fashion the now-famous contretemps over the American Federation of Teachers' so-called "study" of charter school performance using NAEP data. (Anyone whose memory of that episode is dimming can begin a refresher course at http://www.edexcellence.net/foundation/gadfly/issue.cfm?id=159#1941.) The crucial thing to know about the authors of this 186-pager is that they intensely dislike charter schools and all other threats to the public-school monopoly. Jacobsen is a research assistant but the other three all have lengthy track records on the subject. Indeed, taking shots at choice-style education reforms is their vocation and possibly their greatest source of pleasure. The crucial thing to know about the Economic Policy Institute, which sponsored the volume, is that it's tightly tied to, and supported by, labor unions. Check out its self-description (http://www.epinet.org/content.cfm/about) and the composition of its board (http://www.epinet.org/content.cfm/board), a veritable who's who of organized labor--including former AFT head Sandy Feldman--and the Democratic left. Are we surprised that the nation's most ardent anti-charter lobby is behind this piece of work? Even the publisher is an ed school! In short, EVERYBODY affiliated with this project yearns to dance on the grave of charter schools. Just like the AFT, which authored the original "study" that led to the "dust-up." And they have the chutzpah to use the word "zealots" to describe the charter supporters who shed doubt on the AFT's product? Shame on the handful of gullible journalists that took this screed seriously. MORE KIDS OR FEWER Is this schizophrenia visible in your state, too? Ohio's public educators, politicians, and policymakers apparently cannot decide whether they're more troubled by growing public-school enrollments (and the State Education Department's periodic failure to project the numbers accurately) or the hemorrhage of children from district schools into charter schools.  If you read the Ohio press these past two weeks, you would not be able to tell whether they find the more worrisome prospect to be more or fewer pupils in their classrooms. As usual, the answer depends mostly on money. More pupils are welcome so long as the state correctly forecasts them and appropriates all the money to cover them. Reduced budgets consequent to burgeoning charter enrollments make them apoplectic. It's not about the kids, after all. It's about dollars. (For examples, see http://www.ljworld.com/section/stateregional/story/201609, http://www.ohio.com/mld/beaconjournal/11184982.htm, and http://news.enquirer.com/apps/pbcs.dll/article?AID=/20050408/NEWS01/504080400/1056.) CHARTER UNIVERSITIES? American public universities are reinventing themselves in ways that smell like charter schools: becoming more entrepreneurial, entering into unprecedented partnerships with business, lightening their historic dependence on formula-based state subsidies, raising more private dollars--and in return demanding greater autonomy. Virginia universities, for example, will now have the option of entering into "management agreements" with the state, rather than operating as bureaucratic arms of the Commonwealth.  Though the legislature shunned the word "charter," in fact what lawmakers did is point the Old Dominion's public campuses toward charter-like status. The head of the Association of American Universities, Nils Hasselmo, says such an evolution can be seen across the land. "They're looking for greater freedom to take their own fate into their own hands by, for example, setting their own tuition, entering into strategic relationships with other institutions and business and industry." And of course the next set of issues to arise, familiar to veterans of the charter school wars, are such messy ones as whether existing state personnel protections and pension programs will remain intact for employees of these newly liberated institutions. Still, what's sauce for the goose. . . . See: "Va. colleges seek financial flexibility," by Susan Kinzie, Washington Post, April 6, 2005 MORE FROM FORDHAM..... JUST THE FACTS, MA'AM Columbia Journalism Review has a long essay in its March/April issue calling upon journalists to "get beyond" test scores in education reporting and not just accept the district or state's numbers, but also look at how numbers and policies are actually affecting the classroom. The essay by LynNell Hancock--a professor at Columbia's journalism school and former education reporter for Newsweek--notes that the education beat, long the unloved step-child of the news and metro sections, is "a complex beat, in flux, under new scrutiny. Old top-down reporting habits--never adequate to begin with--become even more dangerous when used to analyze the impact of such far-reaching, top-down reforms as the elimination of social promotion and No Child Left Behind." The essay argues that journalists need to stack these claims against the impact that reforms have on individual schools and teachers, on classrooms and the lives of students. We agree--to a point. A healthy skepticism about official pronouncements among the fourth estate is always advisable, and possibly even indispensable to transparent government.  But reporters should also beware of the "tunnel effect" that can bedevil all reporting, but especially education reporting. (It has its ed school counterpart: so called "qualitative research".) As in, because I see something--curricular narrowing, or a wonderfully effective teaching tool--in this particular school, it must be equally effective or equally true of all schools, all students, all teachers. Not true. And of course, there is ever the problem of stacking the deck by allowing emotional appeal to trump good data about effectiveness or impact. It's always going to make better copy to, for example, highlight the tears and disruptions testing causes those who don't pass some particular test. But once you stack that emotion against the long-term effects of not possessing the skills and knowledge one needs to succeed in life, one's perspective about the issue might just change. See: "How are the kids?," by LynNell Hancock, Columbia Journalism Review, March/April 2005  THE US FREEDOM FOUNDATION On the web at: http://www.freedomfoundation.us SCHOOL BOARDS AND EDUCATIONAL OPTIONS by David W. Kirkpatrick, Senior Education Fellow The public school system can only be reformed by opening it up to individual creativity and initiative. Which is not to say there aren't things school boards can do. Those in a state with charter schools should take advantage of this opportunity. Good charter school laws permit school boards to create schools not otherwise possible and over which they have oversight if they granted the charter. Further, they should not wait for proposals to come to them. They should consider what they would like to see and then put out a Request for Proposals as they do when building a new school. Second, school boards should survey their staff and students as to what they would like to do. Suppose a number of teachers would like to work together in an alternative school and there are students/parents who would be interested in the same thing. They did this in East Harlem, NY in the mid-1970s. A variety of schools have developed, and student achievement has soared. Third, boards are not required to assign teachers to particular schools and classrooms or students to particular teachers. They could introduce public school choice by giving teachers more options and letting students select their school, or even their teachers, and honoring these choices to the degree possible. If students do not voluntarily select a given school or teacher that sends a very clear message. Hundreds of colleges and universities do not require a high school diploma for admission. Encourage able students to go to college early, saving them one or two years of schooling and saving the school district the time and expense of educating them. If it is a growing district it might even avoid or delay school construction or renovation.  Encourage teachers to work cooperatively. Two teachers might have a class of 50 students rather than two classes of 25 each. This way teachers could each utilize their own strengths. With one teaching and one free, maintaining order in the room is easier. If one teacher is absent, no substitute teacher is needed. Some of the money saved, say 50%, could be made available for supplemental materials or services. On a non-instructional note, one district permitted teachers to ride free on a school bus as long as space was available, and there was no need to alter bus routes. When some took advantage of this option, a side benefit developed because with non-driving adults on the bus student behavior improved. Teachers could also talk with students. New schools should be smaller, ideally about 200 students for elementary grades and 400 or so for secondary. Hundreds of studies have concluded that school size is extremely important. Even the National Association of Secondary School Principals, at their annual conference some years ago, adopted a resolution calling for limiting high schools to about 600 students. If no new schools are planned, subdivide large schools into smaller units, as happened in East Harlem. As that made clear, a school and a building are not the same. Smaller schools are easier and less expensive to locate, can more readily be neighborhood schools, especially important at the elementary level, and avoid the need for transportation costs except in sparsely populated areas. Billions of dollars are spent by school districts annually for transportation, most of which is the result of building consolidated schools. Look at busing systemically, as is rarely done. If a student spends an hour each way on a school bus, not an uncommon occurrence, that is two hours a day, 360 hours for a 180-day school year, and 4,320 hours during their grades 1-12 career, 4,680 for K-12. That's the equivalent of about five full years of instructional time at 900-990 such hours each regular school year. Few boards, superintendents, or virtually anyone else has stopped to consider what a waste of a child's time this is, or that the cost would be unnecessary if smaller schools were built.  See Roger Barker and Paul Gump's book, Big School, Small School, published in 1964 which reported that, even then, hundreds of studies concluded smaller schools were better. All these, and more, are possible and might well require less money, not more. David Kirkpatrick is a Bennington native now living in Pennsylvania. He is a former public school teacher and officer in the Pennsylvania NEA. WHO COVERS EDUCATION IN VERMONT? We do! Consider a gift to Vermonters for Better Education, the publisher of the weekly Vermont Education Report, Vermont's ONLY continual source of education news. Send donations to: VBE, 170 Church Street, Rutland, Vermont 05701. VBE is a nonprofit organization and contributions are tax-deductible.  *   *   * The VERMONT EDUCATION REPORT is published by Vermonters for Better Education 170 Church Street, Rutland, VT 05701, 802.773.5240 Contact VTBetterEd@aol.com for more information.   Subscribe Here SubscribeRemove

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