Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Education

Common Core No More

By: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

Last March, Indiana paved the way for other states by becoming the first state to divorce itself from the national uniform educational standards known as Common Core.

The 1965 Elementary and Secondary Education Act prohibits the federal government from intervening in school curriculum development. However, Indiana independently adopted the Common Core in 2010 along with 45 other states with the aim to create consistent national benchmarks for all students, regardless of their home state. “We want to ensure our students are held to the highest academic standard, and we believe the CCSS will position Indiana children well—nationally and internationally.” Superintendent of Public Instruction Dr. Tony Bennett said in 2010. “While these common standards will serve as guidelines for success, it will be up to our outstanding educators to decide how best to deliver instruction to make sure our students receive an academically rigorous and globally competitive education.

Once Indiana adopted Common Core, they essentially designed the curriculum to give teachers the freedom to create their own methods for instruction and to select the resources best tailored to their lessons. Most of the confusion—and the disapproval–regarding the federal government’s role in Common Core stemmed from President Obama’s Race to the Top Initiative. It gave $4 billion in federal grants to the top 19 states that demonstrated a commitment to education reform and innovation by using the Common Core standards developed at the federal level. Indiana was ranked 23rd on this list and did not receive any Initiative money, despite its adoption of the Common Core; perhaps this was due to the state’s perversion of the Common Core standard that was originally developed federally. While most of the states receiving grants under President Obama’s Initiative were liberal-leaning, the traditionally conservative U.S. Chamber of Commerce supported the Initiative. The intention of the Initiative’s selective funding was to act as a regulatory scheme to make sure funds were being given to states that would apply them properly.

Indiana is attempting to shift to a more state-specific standard and to promote an entirely different model for K through 12 education. The legislature passed a bill putting Common Core implementation on “pause” pending a proper review of the standards, the costs, and more. “I have long believed that education is a state and local function and we must always work to ensure that our students are being taught to the highest academic standards and that our curriculum is developed by Hoosiers, for Hoosiers,” said Governor Pence in May when he signed the legislation. The state has also reportedly stopped participating in the national testing regime—at least for now.

There is a strong disfavor among Republicans when it comes to the idea of the federal government getting involved in education; however, according to the Constitution the state does have this right. The Indiana legislature is expressing its preference that the state should take control of the education system instead of the federal government through incentives like the Initiative—especially regarding soft values allegedly associated with the Common Core. Indiana legislators have made it clear that they believe the tactic of rejecting nationalized education standards is the first step toward shifting students away from public education to private and charter schools via voucher programs. Governor Pence plans to turn Indiana’s school choice initiative into the most extensive in the nation. Since 2011, when the program was launched, Indiana students using vouchers has risen to nearly 5% of the total school population.

If successfully implemented, the new education system could have an impact beyond Indiana. Governor Pence is likely a 2016 presidential hopeful, and his sudden interest in education is a primary area of focus going into his campaign. In fact, Indiana State Senator Delph submitted legislation that would allow a lawmaker—or sitting governor, such as Pence—to seek re-election to state and federal office at the same time. “I think it’s good for the state of Indiana to have a sitting governor in the national conversation and because of that I think it’s in our interest to make the obstacles and roadblocks for Pence as minimal as possible,” Delph said.

Governor Pence lines up on the other side of the political-spectrum as President Obama or potential 2016 candidate Hillary Clinton. In order to win the far right voters in the primary, Pence will do his best to combat the so called “socialist policies implemented under the Obama administration. Whether it be sharing medicare or sharing toys in kindergarten, we can be certain President Obama will face critics from GOP members attempting to dissolve his policies. It will be interesting to see how the American people side on these issues, and how the shift away from Common Core works and—more importantly—whether voters nationally will come vouch for Pence’s voucher plan in the 2016 primary elections.

Politics, Policy, & Pre-K – Indiana Governor Mike Pence Puts the Break on Applying for Federal Pre-K Grant

school bus

By: Jessica Marie Sullivan
Valparaiso University School of Law
J.D. Candidate, 2015

Right on the heels of Indiana pulling out of the Common Core Standards comes another interesting decision by Governor Mike Pence. He made the decision to not submit Indiana’s Application for $80 million dollars in federal Pre-K grant funding for low-income students.

The federal government is offering states the opportunity to apply for Preschool Development Grants. These grants are meant to support states in their effort to

“build, develop, and expand voluntary, high quality preschool programs for children from low-and moderate-income families.” The Preschool Development Grant program was created in response to President Barack Obama’s call to rethink our approach to education. President Obama in his 2013 State of the Union Address called for Congress to work towards expanding access to high quality Pre-K education programs. There are two levels of grant funding development for states that have little or no Pre-K programs and expansion grants for states that have larger programs and/or a Race To the Top-Early Learning Challenge Grant.  Only 16 states currently are eligible for the Development Grant, including Indiana.

According to the Indianapolis Star, Indiana had been building momentum for reform in terms of preschool education. The state made its first investment in preschool and there were major pushes from the city of Indianapolis, as well as corporate and philanthropic organizations. Indiana Public Media reports that earlier this year, the General Assembly approved a new state run Pre-K pilot program for five counties that would begin in most places in January. Yet, on Thursday October 16, 2014, Gov. Pence surprised the Hoosier education community by announcing the decision not to pursue the funding.

Why did Gov. Pence decide to pull the plug? According to an internal e-mail that was sent to the Indiana Early Advisory Committee (a committee created by Pence in 2013): “While accepting federal grant dollars can at times be justified to advance our state’s objectives…when it comes to early childhood education I believe Indiana must develop our own pre-K program for disadvantaged children without federal intrusion.”

In an editorial response to his critics, he stated that Pre-K should be expanded “the Indiana-way.” But according to the grant application, states are afforded the opportunity to develop their own plan. Applicants would be selected based on their plan to accomplish a variety of objectives, such as demonstrating their commitment to implementing high-quality pre-school plans, implementing state-level infrastructure and quality improvements, as well as ensuring they create sustainable programs.

Other than “federal intrusion” and doing things the “Indiana-way” Gov. Pence explained that his apprehension to apply for federal funding came because “…many early learning programs across the country have not been successful over the years.” He goes on to further state, “It is important not to allow the lure of federal grant dollars to define our state’s mission and programs.” Gov. Pence further stated that the pilot program needed to be studied before it was expanded.

Gov. Pence’s decision has been met with both applause and criticism. Sen. Joe Donnelly, – D is critical of Gov. Pence’s decision. In a letter to the Governor, Sen. Donnelly seems to be reaching out to get more specific information on the following:

  • What federal guidelines/consideration would impede the expansion of Pre-K in Indiana?
  • What outstanding policy questions need to be answered by the state’s pilot program in order for the state to pursue expansion?
  • What is the state’s plan to fund and implement expansion?

State School Board Superintendent Glenda Ritz stated that this was a “huge missed opportunity.” Ritz explained that the grant did not require a state or local match, nor did it require children to take a test to qualify for entering kindergarten. Without the funding, the board is left without the ability to provide high quality early childhood education to all children.  The Indiana State Teacher Union (ISTU) stated that “thousands of Indiana’s neediest children will once again pay the price for loyalty to narrow political agendas.”

Social Conservatives, Tea party groups, and other conservative political/public policy groups considered this a victory. Hoosiers Against the Common Core felt the grant was just “taxpayer funded day care.” The American Family Association of Indiana was also in support of Gov. Pence’s decision not to go forward because they were “…skeptical of the benefits of preschool programs and dubious of putting 4 year olds into government programs.”

Others suspect that Pence’s decision was not made from a right v. left position, but rather from the position of Gov. Pence as a possible candidate in the 2016 Presidential Election.

What happens in the mean time for the children in the five counties, including Lake and Marion counties, that have high populations of “at-risk” children? What happens to the counties that were not chosen for the pilot program for Pre-K? It seems that Hoosier parents and their children are subject to a tug-o-war between politics and policy, a situation in which there doesn’t seem to be a clear winner on the horizon.

School-to-Prison Pipeline: Indiana State Legislature Examine the Disproportionate Suspension of Minority Youth from K-12 Schools.

dirty hall

By: Jessica Sullivan
Valparaiso University School of Law
J.D. Candidate, 2015

On September 16, 2014 Indiana Lawmakers held a four-hour hearing at the Statehouse to discuss how the legislature can stage an intervention in an effort to halt the startling trend of disproportionately suspending and expelling Indiana’s minority youth. According to a recent study conducted by the U.S. Department of Education, Indiana has the second highest rate of suspension and expulsion in the nation when it comes to minority youth; the only state that surpassed Indiana was Wisconsin.

Advocates and researchers are imploring state lawmakers to step in and help curb this trend. Indiana University education researcher Russell Skiba told the joint House-Senate study committee that the increased use of out-of-school suspension for routine or minor infractions, such as profanity and dress code violations, not only undermines student achievement but also imposes high societal costs. Skiba went on to say that, “Zero tolerance and the over use of school suspension and expulsion place students at risk for a range of negative outcomes from academic underachievement to dropout, to involvement with the juvenile justice system.” Skiba’s research found that “Indiana, where about 70 percent of students are white, 48 percent of the students given out-of-school suspension last year black or Latino. That’s up from about 44 percent in 2007.” According to the Kokomo Tribune, “Students are being punished for breaking school rules and not the law. Only 25% of school suspensions were linked to violence or illegal activity.”

This notion that it is beneficial to get “bad kids” out of school because of their bad behavior is simply false.  According to the report’s findings, schools that used suspension more sparingly than others had HIGHER test scores – not lower. According to Brandie Oliver, the president of the School Counselors Association, the problem is deeper than high suspension rates among minority students. If you look at the ratio of male to female students, African-American and Latino males are the most-frequently suspended.

Ultimately, lawmakers that were a part of the four-hour hearing had mixed reactions to the report’s findings. State Rep. Jim Lucas, R-Seymour felt that “If a child is actively committing an offense,” there is no problem with using suspension or expulsion as a solution to addressing that behavioral issue.  On the other hand, Rep. Vernon Smith – D – Gary, a well-known African-American educator, said that the underlying issue is the lack of resources for early intervention with a troublesome student. “What we often have is punishment discipline.” But having discipline should mean having alternatives to out-of-school suspension or expulsion for minor school rule offenses (profanity, uniform violations, and the like).  Smith explained that having early intervention resources would help “bad kids” learn from their mistakes and improve their behavior.

For now it remains unclear how Indiana plans to tackle this problem, but it is clear that the U.S. Department of Education’s study was a nationwide wake up call for lawmakers and school officials to consider the following:

  • The “school-to-prison pipeline” is more than just a metaphor. Extensive research shows that disciplinary exclusions increase a student’s risk for a variety of negative school and life consequences, including dropping out of school and juvenile delinquency.
  • Given the extreme differences in suspension rates across different groups, researchers have concluded that unintended teacher bias is a real occurrence. “Several studies indicate … that racial disparities are not sufficiently explained by the theory that black or other minority students are simply misbehaving more.”
  • New longitudinal studies at the state and national levels indicate that school suspensions are associated with higher risks of dropping out of school. Researchers “found that even being suspended out-of-school once was associated with a two-fold increase in the risk of dropout.” The increased risk of dropping out, in turn, increases the risk of juvenile delinquency.
  • There is a dramatic disconnect between the educational and juvenile justice systems. Their practices can even be contradictory. For example, in many communities, students who have been expelled are, by definition, violating juvenile delinquency laws and are subject to arrest.
  • Maintaining a police presence in schools more often than not leads to the increased criminalization “of what might otherwise be considered adolescent misbehaviors.” The best available evidence “suggests that police presence in schools, particularly armed police, should be a very last resort in school discipline strategies.”

While a four-hour hearing is not enough time to address the issues that are plaguing minority Hoosier students, the Indiana legislature is willing to continue the conversation. Rep. Greg Porter, D- Indianapolis introduced legislation that would call for further studies of these troublesome suspension and expulsion policies and a summer study committee has been charged with doing this task.

The School Matters blog gives a great summary for lawmakers, school officials and the community at hand, saying that the issue of disproportionate suspensions and expulsions among minority students is both an educational and civil rights issue.  “The discipline gap and the achievement gap are two sides of the same coin.”

For a brief summary of the U.S. Department of Education’s findings – both nationwide and specific to Indiana – go to the IU Bloomington Newsroom. To see further research in this area of Discipline Disparities please visit The Discipline Disparities Research-to-Practice Collaborative.

For the full report of the U.S. Department of Education Findings please visit the Civil Rights Data Collection report.

Back To School: The State of Indiana Receives No Child Left Behind Waiver

schoolBy: Jessica Sullivan
Valparaiso University School of Law
J.D. Candidate, 2015

On August 28, 2014 The Indiana Department of Education (IDOE) received a No Child Left Behind (NCLB) Waiver from the United States Department of Education. This waiver is good from now until June 30, 2015.

What is a NCLB Waiver?

 According to the U.S. Department of Education, each state can request a flexibility waiver of specific requirements of the NCLB Act of 2001 in exchange for “rigorous and comprehensive State-developed plans designed to improve educational outcomes for all students, close achievement gaps, increase equity, and improve the quality of instruction.”

Many states are flocking to get these waivers because they feel that NCLB standards were unattainable at best.  In total, 43 States, the District of Columbia, and Puerto Rico are approved for waivers.

According to Arnie Duncan, the U.S. Secretary of Education, without the waiver “more than 82% of the nation’s schools would have been penalized for failing to make progress towards those goals in [2014].”

 What is Indiana’s waiver plan?

 For Indiana, the flexibility waiver means that the IDOE can develop its own yearly progress goals. (NCLB required all schools to meet certain yearly test score progress goals)   According to Indiana Public Media, Indiana plans to use the A-F grading system, which is already in place.  Their goal is: “Every Indiana School must earn a state letter grade of an A –, or failing that, improve two letter grades to earn no worse than C – by 2020.” Also, IDOE plans to have a “more aggressive timeline for state intervention of failing schools.” 

The A-F grading system is not new for Indiana schools and has been in place since the 2011-2012 school year. According to IDOE the A-F grading system is simpler and improves transparency by “allowing parents and community members to better recognize how well Indiana schools are performing and leading students to achieve positive academic outcomes.” The A-F grading system holds schools to higher standards than the old system by moving schools through the phases of: Exemplary, Commendable, Academic Progress, Academic Watch, and Academic Probation.  The system is “creating a more accurate picture of their performance by incorporating students academic growth and graduation rates, as well as college and career readiness as measures of success.”

However, the A-F grading system isn’t without its share of problems. The brainchild of the A-F grading system was the former state superintendent, Tony Bennett.  Bennett used the A-F grading system to catapult himself into his next job as the State Superintendent of Florida Schools.  Before long, it was discovered that he had instructed “his staff to tinker with the metrics used to calculate school grades; [h]is actions lifted the scores of more than 160 Indiana schools, including a prominent donor’s charter [school].”

 Feared Obstacles To Waiver Approval  

Indiana feared that their NCLB Waiver application would be rejected after receiving notice this May of possible red flags that could cause the application to be rejected.  Here is the running list of red flags that I created. This running list is just speculation as to some of the issues that US Department of Education that could have given them pause when making a decision on IDOE’s request for the NCLB waiver:

What’s the result?

This will be the first school year where IDOE will be operating on the A-F grading system under the NCLB waiver.  So many questions remain. Where does this leave failing school districts? Where does it leave high stakes testing like ISTEP? What does it do to support and motivate teachers? Will there be further litigation surrounding IDOE? Only time will tell if this was the best move for Indiana educational system and the children that it serves on a daily basis.

For more information and a spreadsheet of the Indiana’s schools progress according to the A-F grading progress to see how the various schools districts are doing check on Indiana Public Media’s Sortable Table. In addition to view the timeline of IDOE’s waiver process please visit Chalkbeat – Indiana.


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