Thursday, May 02, 2019






Should we shutter the Department of Education?

Since its inception 40 years ago as a political payoff from President Jimmy Carter to the National Education Association, the Department of Education has engaged in scores of dubious actions that have made millions of Americans yearn for its expulsion.

The most recent example of comes from a long string of audits showing the federal department is doing a lousy job keeping tabs on the $38 billion it receives to administer federally funded K–12 programs. “Complex and persistent” is how Congress’ spending watchdog, the Government Accountability Office, described the agency’s mismanagement of data, oversight, and evaluation.

It’s not surprising a colossal central bureaucracy cannot efficiently run 100,000 schools attended by 50 million children in 50 gloriously variegated states. The U.S. is a richly diverse country, and its families have widely different educational interests and needs.

The founders of our constitutional republic anticipated the pitfalls posed by big, intrusive government. They did not include education among the powers granted to the federal government. In fact, under the Bill of Rights (the often-overlooked 10th Amendment), they left authority over matters such as education expressly with the states and the people — where it rightfully belongs.

So, what is the expiration date for a federal education behemoth that shouldn’t exist in the first place?

Unfortunately, very few laws contain sunset provisions and “regulations almost never do,” Institute for Policy Innovation President Tom Giovanetti noted a few years ago. In other words, “we are piling up taxes, laws, and regulations that are outdated, ineffective, redundant, sometimes contradictory, and otherwise simply past their prime.” In 2015, Giovanetti proposed that every new law or regulation should contain a sunset clause after five years and after 10 years for any and all new agencies. If that commonsense guideline were actually in place, the Education Department would have probably been on the chopping block 30 years ago.

Partly by design and partly by accident, Idaho could be on the verge of providing a national test case for the sunset strategy. The Gem State stipulates that agency regulations will expire unless the legislature votes to reauthorize them. This year’s session ended in feuding, with House and Senate voting down each other’s bills. One of the casualties, the Associated Press reported, “was a bill approving 8,200 pages containing 736 chapters of rules and regulations that touch on just about every aspect of daily life in Idaho.”

The upshot of that fortuitous gridlock is that Republican Gov. Brad Little — a critic of excessive governmental regulations who in January ordered agencies to kill two regulations for every one they birthed — must decide by July 1 which regulations are important enough to be reinstated. News accounts suggest Little and his budget chief, Alex Adams, are downplaying the likelihood of sweeping policy changes.

Of course, some rules, such as those licensing hunting and fishing, are fairly innocuous. However, Wayne Hoffman, president of the Idaho Freedom Foundation, says Little could do more than simply tap the brakes on the administrative state: “He has a chance to discontinue a plethora of bad public policies.” For instance, he could pull out the failed Common Core education standards by their regulatory roots.

Regardless of what happens in Idaho, there is a lesson here for other states and the federal government in the value of having termination dates — not just for regulations, but for entire agencies too.

Meanwhile, Rep. Thomas Massie, R-Ky., offered a sunset bill for the Department of Education, abolishing it at the end of 2020. A dissolution deadline would likely prompt a thorough examination of everything the department does and fails to do. Even better, it could devolve obsolete one-size-fits-all education federal programs, return taxing power to the states and localities, or transfer certain activities to other federal agencies.

Obviously, the Massie bill will not see the light of day in the current Democrat-led House of Representatives, where socialist schemes are the cause du jour. But if a sunset clause is never implemented, will inept and costly bureaucracies such as the Department of Education ever be dissolved?

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Record Numbers of Public School Teachers Attacked as School Discipline Is Curbed

“A record 220,300 public school teachers reported that they were physically attacked by a student during the 2015-2016 school year, according to a report jointly published this month by the National Center for Education Statistics and the Bureau of Justice Statistics.

“The 220,300 public school teachers who said they were physically attacked by a student in 2015-2016 is up from the 197,400 who said they were attacked by a student in 2011-2012 (which is the last school year before 2015-2016 for which teachers were surveyed on the question).”

In recent years, many school systems have curbed suspensions of students who engage in “willful defiance” of their teachers. California plans to eliminate suspensions for all K-12 students for “willful defiance” (previously, it was an option for kids in grades 4-12).

California’s State Senate has voted 30-to-8 to ban such suspensions, and the State Assembly is expected to enact the ban into law. California’s legislature previously passed such a ban in 2018, but it was vetoed by former Governor Jerry Brown, who viewed it as too extreme. But Brown is no longer in office, and this time the ban is expected to become law.

In California, suspensions for willful defiance had already fallen a lot in recent years. For example, in the 2015-16 school year, 96,421 students were “suspended for willful defiance – a decrease of nearly 30,000 from 2014-15 school year.”

A single willfully defiant student can set back learning for the entire class. Students who assault teachers and classmates often do so after remaining in class despite repeated willful defiance.

Why, then, is California’s legislature doing this? It’s about racial bean-counting. As the Sacramento Bee reports:

“Research has shown the category of willful defiance was disproportionately used to discipline minority students, specifically African-Americans. … African-American students made up 5.6% of enrollment in California schools in 2017-18, but accounted for 15.6% of willful defiance suspensions. Conversely, white students made up 23.2% of statewide enrollment but made up only 20.2% of willful defiance suspensions.”

The reason why African-American students made up a disproportionate share of willful defiance suspensions is because a disproportionate share of students who engage in willful defiance are African-American. A 2014 study by John Paul Wright and several other professors in the Journal of Criminal Justice found that higher rates of “prior problem behavior” among black students — not racism — explained why black students are suspended at a higher rate.

Black students are not singled out for “willful defiance” suspensions more than other suspensions. The black share of suspensions for willful defiance is lower than the black share of suspensions for misconduct in general. In California, blacks are suspended for misconduct at more than four times the white rate, and nearly 15 times the rate for Asians, who have the lowest suspension rate of all races. (See Tom Loveless, The 2017 Brown Center Report on American Education: How Well Are American Students Learning?, Brookings Institution, March 2017, pg. 25).

Supporters of banning suspensions for “willful defiance” cite its allegedly “highly subjective” nature. But that is not a reason to tolerate willful defiance that undermines classroom learning. A federal appeals court pointed that out in striking down as an unconstitutional racial quota a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” As the court observed, “important disciplinary criteria (such as disrupting classes) are unavoidably judgmental and hence ‘subjective.’” (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).

But that is not a reason to get rid of such rules or thwart their enforcement. They are essential to creating an environment where learning can occur.

Also, subjectivity in discipline isn’t why blacks are suspended at a higher rate than whites. The federal appeals court in Philadelphia noted in 1996 that “statistical data” showed larger racial differences in discipline rates for serious, “very objective” offenses than for minor, “less objective” offenses. It also cited a lack of evidence for the notion that “misbehavior” occurs at the same rate among all “racial groups.” (See Coalition to Save Our Children v. State Board of Education of Delaware).

Curbing suspensions of willfully defiant students harms innocent African-Americans by reducing their ability to learn and be safe. After all, much violence is black-on-black, and when a black student constantly disrupts class, that harms black classmates’ ability to learn. After suspensions were curbed in New York City, the Manhattan Institute’s Max Eden found that “schools where more than 90% of students were minorities experienced the worst” effects on school climate and safety. Indeed, the harm from curbing suspensions had “a disparate impact by race and socioeconomic status.” Eden noted in the New York Post that another “study by a University of Georgia professor found that efforts to decrease the racial-suspension gap actually increase the racial achievement gap.” Joshua Kinsler found that “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

The higher black suspension rate is not surprising to many observers, given the higher black crime rate and the fact that black kids are more likely to come from struggling single-parent households that fail to instill discipline. As even the liberal Brookings Institution has noted, “Black students are also more likely to come from family backgrounds associated with school behavior problems; for example, children ages 12–17 that come from single-parent families are at least twice as likely to be suspended as children from two-parent families.” (2017 Brown Center Report on American Education, pp. 30-31). The homicide rate is 10 times higher among black teens than white teens. And the Supreme Court rejected the “presumption that people of all races commit all types of crimes” at the same rate, as being “contradicted by” reality, in its decision in U.S. v. Armstrong.

Supporters of curbing school discipline say it is necessary to prevent racially “disparate impact,” which they define in a racial quota-like way, to mean anytime a higher percentage of black students is disciplined than of students of other races. But as I and others have explained in the past, that wrongly defines “disparate impact,” legally speaking. It also pressures school districts to have racial quotas in discipline.

“Disparate impact” only matters in the eyes of the Supreme Court when it takes into account the racial composition of the “qualified population,” meaning those students who actually misbehaved. Students who didn’t misbehave can’t be suspended to meet a racial quota, and they shouldn’t be included in any “disparate impact” comparison, either, because they aren’t part of the qualified population.

The rate at which a racial group is disciplined should be compared to that group’s actual misbehavior rate, not its percentage of the student body, because the student body is the general population, not the qualified population. What matters is if a school system’s discipline system has flaws that are causing the black or Hispanic percentage of the students disciplined to be higher than the black or Hispanic percentage of the students who misbehaved (for example, a failure to accommodate students’ inability to speak English in the disciplinary process, leading to Hispanic immigrants often being unable to defend themselves against false charges). But if the black percentage of students disciplined is high only because a lot of black students in fact misbehaved, that is not “disparate impact,” under the “qualified population” approach of the Supreme Court’s decision in Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642, 651 (1989).

Assessing whether disparate impact exists in discipline should take into account people’s behavior, such as that reflected in “prior records of discipline,” not just compare discipline rates to the racial breakdown of the workforce or student body. (See, e.g., Mozee v. American Commercial Marine Ins. Co., 940 F.2d 1036, 1047-49 (7th Cir. 1992)).

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Too Many Public Colleges ‘Are Silencing the Voices of Faith-Based Student Groups’

Sen. Tim Scott (R.-S.C.) joined Sen. James Lankford (R.-Okla.) and Sen. Roy Blunt (R.-Mo.) on Thursday in introducing the “Equal Campus Act,” a bill that would prohibit federal funding of public institutions of higher learning that discriminate against faith-based student groups

The text of the bill, which would amend a law that authorizes the federal government to provide funding to institutions of higher learning, says:

“None of the funds made available under this Act may be provided to any public institution of higher education that denies to a religious student organization any right, benefit, or privilege that is otherwise afforded to other student organizations at the institution (including full access to the facilities of the institution and official recognition of the organization by the institution) because of the religious beliefs, practices, speech, leadership standards, or standards of conduct of the religious student organization.’

Scott emphasized the importance of protecting the First Amendment rights of religious student groups.

“If we’re not instilling the importance of the First Amendment in our nation’s colleges and universities, we’re doing our future an injustice,” Scott said.

“Too many public institutions of higher learning are silencing the voices of faith-based student groups and I am proud to stand with my colleagues to stand up for the First Amendment,” he said. “Freedom of speech isn’t just a nice saying—it’s a core American ideal.”

“Our nation’s college campuses should respect the rights of religious student groups, just as they respect the rights of other groups, to select their own leaders who share their faith and mission,” Lankford said.

“More and more we see free speech and free association restricted on college campuses, especially for religious speech and religious groups, but students do not have to forfeit their First Amendment rights of speech, religion, and association to attend a public college,” he said. “The Equal Campus Access Act affirms the right of religious groups to choose their own leaders without government interference.”

“Too many public institutions of higher learning are silencing the voices of faith-based student groups,” Lankford said.

“Students don’t give up their First Amendment rights when they step foot on a college campus,” said Blunt.

“Over the past decade, there have been far too many incidents where universities excluded religious student groups because of their faith-based policies,” Blunt said. “This bill ensures faith-based student groups have the same rights and protections as other student organizations. Congress afforded similar protections to public high schools under the Equal Access Act and there is no reason it should not apply to higher education institutions.”

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