The Kansas House and Senate Education Committees will be busy this week discussing data privacy, sex education, the Common Core standards and charter schools.
Concerns about data gathering and student privacy have been part of the conservative backlash against the Common Core standards, with many groups claiming falsely that the standards require the collection of massive amounts of personal data about students including, some have alleged, their families' religious and political affiliations.
In truth, there is no data-collection requirement in the Common Core standards. There is, however, an unrelated effort underway by the nonprofit organization inBloom — with support from the Bill and Melinda Gates Foundation — to collect and synthesize student data as a way to improve individualized learning.
The Kansas State Department of Education has never been part of that program, which appears to be sputtering anyway and is now down to only three participating states. And Education Commissioner Diane DeBacker has said repeatedly that Kansas will not collect any more data about students through its assessment program than it has been collecting for years. That mainly includes the student's name, age, grade, race, gender, socio-economic status if available, and scores on the tests.
Nevertheless, two bills are being discussed this week that would limit the department's authority to collect and disseminate personally identifiable student data.
Today, the House Education Committee conducts a hearing on House Bill 2606, the Student Data Accessibility, Transparency and Accountability Act, which would limit the department to using only "aggregate" data when reporting "to any federal agency, state or local agency outside the state of Kansas, or any other out-of-state organization or entity."
On Wednesday, the Senate Education Committee holds a hearing on Senate Bill 367, the "Student Data Privacy Act." It would prohibit schools from collecting any kind of "biometric data" about students without their parents' written consent.
On Tuesday, the House panel will hear testimony on House Bill 2620 which would essentially impose an "opt-in" policy for instruction in health and human sexuality. That means schools would be prohibited from providing instruction in that course, "unless written consent has been received from the parent or legal guardian of such student, clearly stating that such parent or legal guardian allows such student to participate in the health and human sexuality education class."
Kansas currently requires one unit of physical education and health for high school graduation, but families are allowed to "opt-out" if a physician certifies they should not participate, or if the family claims a moral or religious objection. Beyond that, however, local districts are allowed to set their own policies regarding health and human sexuality curriculum.
On Wednesday, the House panel hears testimony on House Bill 2621, nullifying the Common Core standards for reading and math, as well as the Next Generation Science Standards, and establishing an Advisory Council on Curriculum Content Standards. You can see our story from Sunday for more background on that bill.
And on Thursday, both panels will have a joint meeting to hear a presentation from Rick Ogston, founder and CEO of Ohio-based Carpe Diem Learning Systems, LLC, a private, for-profit charter school management company.
Kansas currently has one of the more restrictive charter school laws in the country. Charter schools here must be organized within the structure of a unified school district and must have the approval of both the local school board and state department of education.
But the Senate committee is considering Senate Bill 196, which would greatly expand charter schools by giving other entities authority to establish charter schools, including cities and counties, as well as public or private post-secondary institutions.
Last week we ran a story about a poll on school finance issues conducted by the conservative think tank Kansas Policy Institute, including reaction from education advocates who said the questions were loaded with false or misleading information that appeared aimed at eliciting a negative response.
At the time, KPI defended the wording of the question, as did the polling firm SurveyUSA. Since then, however, another education advocacy group, the Kansas Association of School Boards, has weighed in with more information, prompting KPI to concede that one question was misleading. In a phone call with the Journal-World Friday afternoon, KPI spokesman James Franko said the group would soon post a clarification on its own blog.
The text of the question read:
A state court has effectively ordered legislators to increase school funding by $443 million, which would also automatically increase local property taxes by another $154 million. Regardless of whether you believe schools are adequately funded, how would you respond to this statement: It is appropriate for the courts to have final say on decisions of how much taxpayer money is spent on education.”
Many observers objected to the idea that local property tax increases would be "automatic." It was based on the assumption that if the courts order an increase in base state aid, all districts would continue levying the same percentage for their "local option budgets," or LOB's. Ten districts, including Lawrence, are allowed to levy up to 31 percent of their base state aid; the others are capped at 30 percent.
But as KASB's Mark Tallman pointed out in a recent blog, the issue gets more complicated than that, and it speaks to the very heart of a couple of key issues in the lawsuit itself.
Base state aid is currently calculated at $3,838 per pupil, far lower than the $4,492 required by law. That's because when the Great Recession hit in 2008, state revenues plummeted and the Kansas Legislature cut funding. But the cuts were complicated.
In short, while the state is funding base budgets at $3,838 per pupil, it allowed districts to continue levying LOB's as if base aid had gone up, as scheduled at the time, to $4,433 per pupil. Therefore, if the Kansas Supreme Court orders the state to increase its base aid formula to $4,492, where it's supposed to be now, local districts wouldn't get that much more taxing authority. They've already gotten the increased taxing authority that would flow from most of that increase.
Tallman estimates there would only be $14 million worth of new local taxing authority statewide - not the $154 million that KPI plugged into its polling question.
For its part, KPI says before it put the poll in the field, it confirmed its estimates with Deputy Education Commissioner Dale Dennis. And they forwarded an email from Dennis in which he confirms that he overlooked this quirk in LOB law when he spoke with KPI.
But there are still a few points worth noting:
First, local school boards must take affirmative action every year to decide where they want to set their LOB percentage. If base state aid goes up as a result of a court decision, some districts - possibly including Lawrence, which traditionally levies the maximum amount, whatever that may be - will continue to do so.
But others are likely to come under intense pressure from local voters to use the additional money for tax relief. That's likely to be the case in poorer districts that were forced to raise the LOB's in order to make up for the state funding cuts that began in 2008-2009. So it is false to say there is anything "automatic" about any LOB increases.
Second, one aspect of the lawsuit that often goes unreported concerns "equalization aid" for poorer districts. That's another thing the Legislature has cut, and it's something the plaintiffs are suing to get back. It amounts to a subsidy for lower-wealth districts that would otherwise have to impose huge property taxes to raise the same amount of money as a wealthier district of the same size. So if the Supreme Court sides with the plaintiffs on that issue, as the trial court did, those districts could continue levying the same LOB, and they would see an automatic tax cut.
Third, even with the polling question loaded with that false and inflammatory premise, nearly half of all respondents still preferred to let the courts, as opposed to the Legislature, have the final say in determining how much money is spent. The split was 50 percent to 47 percent against giving the courts that power, well within the 4.5-percent margin of error.
And finally, many observers — including this one — think it is dangerous to assume anything about how the Kansas Supreme Court will or won't rule. During oral arguments in October, it appeared there were a number of justices looking for some graceful way to wash their hands of this case entirely.
There was plenty of vitriol and hyperbole going around the statehouse in the final few days of the session as conservatives made a last-minute attempt to block any public funds from being used to implement the Common Core standards in reading and math, and to prevent the State Board of Education from adopting the Next Generation Science Standards.
Sen. Mary Pilcher-Cook, Republican from Shawnee, called Common Core a "dramatic centralization of authority over the nation's traditionally decentralized K-12 schools." And Rep. Allan Rothlisberg, a Geary County Republican, compared them to a Marxist-like effort at central government command and control of education.
That kind of rhetoric, in turn, prompted Rep. Julie Menghini, a Pittsburg Democrat, to label the anti-Common Core legislators paranoid.
“I’ve got an inside tip: invest in tinfoil,” Menghini was quoted as saying in the Topeka Capital-Journal, referring to the common "tinfoil hat" shorthand for paranoia and conspiracy theory. Thereafter, outside observers could follow much of the Kansas legislative debate on Twitter under the hashtag, #tinfoil, an area of conversation usually reserved for sports maniacs who think the referees or umpires are conspiring against their team.
It's probably safe to say, however, that as with most public policy debates, neither side of the Common Core debate has a monopoly on reason and enlightenment; nor is the other side completely deluded.
There are, in fact, intelligent arguments being made on both sides. So for those interested in doing a little more reading on the subject, here is a short list of better (and more easily digestible) discussions.
First, some pro-Common Core articles:
Can Academic Standards Boost Literacy and Close the Achievement Gap? A Brookings Institution paper by Ron Haskins, Richard Murnane, Isabel V. Sawhill and Catherine Snow. This offers a fairly objective description of how the Common Core standards came into being, and why.
BRT Letter to Republican National Committee Supporting Common Core State Standards, a letter by John Engler, former Republican governor of Michigan and now president of the Business Roundtable, arguing that the standards, "are critical to building and maintaining an American workforce that can compete in the global economy."
Myth v. Fact: Taking on the Tallest Tales about Common Core State Standards, a blog post from the Foundation for Excellence in Education, taking on some of the more extreme criticisms of Common Core.
And from some skeptics ...
Dispatches from a Nervous Common Core Observer: by Michael McShane of the American Enterprise Institute. This is an ongoing 10-part blog series in which McShane, a research fellow at the institute, lays out some well-reasoned concerns about the loss of local control and homogenization of education, as well as the challenges Common Core poses to textbook publishers and the school administrators who select and buy them.
The State of State Standards—and the Common Core—in 2010. This is a review by the Thomas B. Fordham Institute that attempts to answer the question: Are the Common Core standards better than the old standards? Answer: Yes or no, depending on where you live. It includes links to lots of other articles both for and against the Common Core standards.
Morning Bell: Join the Fight Against Common Core, a blog post by Lindsey Burke, a policy analyst at the Heritage Foundation. This article actually makes more use of platitudes and bumper-sticker slogans than evidence or argumentation. But it does put the debate into context as a competition for the "school choice" movement (think vouchers, charter schools, etc.) vs. greater investment in traditional public schools.
The Kansas House on Saturday narrowly defeated a bill that almost certainly would have resulted in a costly – and potentially embarrassing, for the Legislature – lawsuit over who controls the content and standards for public education.
House Bill 2391 was forced onto the House and Senate floors in the final days of the session. Its purpose was to put the brakes on public schools implementing the Common Core standards in reading and math, and to completely block the State Board of Education from adopting the proposed Next Generation Science Standards.
It also would have set up a legislative oversight committee to review those standards and make recommendations to next year's legislature about whether any of those standards should be allowed to continue.
In some people's eyes, that would have created a broad and sweeping new power of the legislature to block or usurp the constitutional authority of other branches of government – in this case, the elected Kansas Sate Board of Education.
In the gallery above the Senate chamber, where the bill passed, 24-12, and in the hallways outside, three State Board of Education members told me they had already begun talking among themselves about challenging the bill in court if it became law. The exact nature of such a legal challenge was yet to be determined, but board member Janet Waugh, a Kansas City Democrat, said: “Our next meeting (June 11) should be interesting.”
And in the gallery above the House chamber, where the bill narrowly failed, 55-58, Education Commissioner Diane DeBacker acknowledged some sort of legal action would be necessary.
It takes 63 “yes” votes to pass a bill in the House. Twelve members were absent, but had they been present it's entirely possible the bill would have been approved. When asked about the bill, in between the Senate and House votes, Gov. Sam Brownback would not indicate whether he would sign it, saying only, “Let's wait and see what happens in the House.”
DeBacker said she believed the real issue behind the bill was not Common Core, but rather the new science standards, which the State Board is expected to vote on June 11. She also wondered aloud whether the board shouldn't ignore the law, if it passed, and adopt the science standards anyway, in effect daring the legislature to try to stop them.
Had the law passed, and had the state board stood up to the challenge, it would have set up a dramatic face-off between the legislature and state board over who has constitutional authority to set educational standards. But it's a contest that has already been litigated in Kansas – several times, in fact – and most legal authorities agree it is virtually certain which side would have won.
Article 6 of the Kansas Constitution gives the legislature authority of “establishing and maintaining public schools,” but it gives the state board authority to supervise how they are operated.
Article 2 gives the legislature what is commonly called “the power of the purse” - the authority to appropriate money. But it does not give the legislature authority to use that power for unconstitutional purposes, such as de-funding another branch of government or blocking that branch from exercising its own constitutional duties.
That issue was litigated in 1973 when the Kansas Supreme Court handed down a landmark decision interpreting Article 6 of the Constitution. The case, State ex rel. vs. Board of Education, commonly known as the Peabody, established that the Constitution gives the state board “self-executing” powers, meaning the board doesn't need any further legislative authority to exercise the power granted to it by the Constitution:
"The state board of education authority to exercise general supervision of the public schools, educational institutions and educational interests of the state . . . is self-executing in effect," the Court ruled. "Where a constitutional provision is self-executing the legislature may enact legislation to facilitate or assist in its operation, but whatever legislation is adopted must be in harmony with and not in derogation of the provisions of the constitution."
The opinion itself does not seem to have been published on the internet, but it is explained in a 1983 attorney general's opinion. It also is referenced in other Supreme Court cases, including USD 443 vs. State Board of Education (1998). And it's discussed in the 2001 "History of Kansas Education," by Sherrill Martinez and Lue Ann Snider of the Kansas State Department of Education
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Opponents of the Common Core standards in reading and math haven't given up on their last-minute push to get something through the Kansas Legislature this year.
According to a story earlier today by Scott Rothschild, the Tea Party-affiliated group FreedomWorks sent out a call to its members, urging them to pressure the Legislature into cutting off funds to implement the Common Core.
This comes on the heels of a big anti-Common Core turnout at the Kansas State Board of Education last week where people urged the board to do an about-face on those standards, which are known locally as the Kansas College and Career Ready Standards.
And that came on the heels of a Statehouse rally the week before, just as lawmakers were returning for the wrap-up session.
According to Kansas Education Commissioner Diane DeBacker, similar campaigns are being waged in at least 16 other states as well:
In Alabama, at least four anti-Common Core bills have been introduced in the Legislature. At least one bill has been introduced in Georgia, Indiana, Michigan, Missouri, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota and Utah.
Meanwhile, anti-Common Core rallies and forums have been staged in Colorado, Florida and Tennessee.
And in Arizona, Idaho, New Hampshire, New York and Ohio, education officials are reporting other kinds of active anti-Common Core rumblings.
Based on comments made at the state board meeting last week, much of the opposition is based not on the content of the standards, but on a shared perception that the standards represent a form of federal intrusion into state matters.
But when I asked DeBacker about it last week, she said the latest criticism was all a bit frustrating.
On the one hand, she noted, the State Department of Education is constantly targeted for criticism by Kansas Policy Institute, a conservative think tank, which uses data based on the old, pre-Common Core standards to show that Kansas has low academic standards compared with other states, never mentioning that the standards have been changed since then to address those very concerns.
And then, when Kansas collaborates with other states to come up with higher educational standards designed to prepare students for college and the workforce in a global marketplace, DeBacker said, they get criticized by other groups who say such collaboration represents "federal intrusion" into state matters.