CAPSO Midweek E-Mailer
   California Association of Private School Organizations 
April 10, 2013 
Volume 6, Number 12
In This Issue

-- ESEA: Now is the Time to Consult!

-- Last Chance: Register for Our Legal Issues Workshop

-- Indiana Supreme Court Upholds Voucher Program

-- Quick Takes

-- We've Got Work to Do!

-- Publication Note

Join Our Mailing List 

 

 

Follow CAPSO

on Twitter

 

Follow us on Twitter 

 

and Facebook

 

CAPSO Logo GIF  

 

Quick Links...
 

General Resources

California Department of Education
Public School Districts
News & Information


Newsletters & Blogs


Organizations & Think Tanks



California Association
of
Private School Organizations
 
15500 Erwin St., #303
Van Nuys, CA  91411

818.781.4680
  
 CAPSO Logo GIF 
 
  
 CAPSO Logo GIF 









 
ESEA:  Now is the Time to Consult!
The Elementary and Secondary Education Act (ESEA) is the nation's most significant piece of federal education legislation.  Enacted in 1965 as a major component of President Lyndon B. Johnson's "War on Poverty," the multifaceted law has undergone numerous name changes while remaining true to its original purposes: closing the "achievement gap" dividing various groups of students, and supporting systemic improvement.  ESEA is periodically rewritten, or reauthorized - an occasion affording the contemporaneous political administration an opportunity to brand the law with a nickname of its own choosing.  Thus, when ESEA was reauthorized during the Clinton administration, it was labeled the "Improving America's Schools Act," and, when refashioned in 2001-2002, became known as the "No Child Left Behind Act."  Because the statute has yet to be reauthorized under President Obama's watch - its reauthorization is now nearly five years overdue - the current administration simply refers to the law by the generic "ESEA."

The Elementary and Secondary Education Act is organized into various sections, called "titles."  A number of titles contain programs offering opportunities for participation to private school students, teachers, and other education personnel.  Reauthorization notwithstanding, these programs remain very much in effect - to the extent that they are currently funded.  The U.S. Department of Education's Office of Non-Public Education - an excellent resource for information about private school participation in ESEA programs - provides links to all titles (and specific portions) of the law relevant to private schools, here. Links to the full text of ESEA, as well as links to a variety of guidance documents, overviews and other resources can all be found on the same webpage. 

Guidance documents take the form of a series of questions and answers designed to promote a common understanding of the law and to facilitate its implementation.  Reading the statutory language frequently gives rise to questions requiring clarification.  When enough people find themselves wondering about the same question, the opportunity to issue guidance arises.  The guidance documents can thus be viewed as official compendia of responses to frequently asked questions.  While federal guidance doesn't carry the weight of statute, the answers represent the government's position of record on the interpretation of the law for purposes of implementation.  The California Department of Education has also produced a "Guidance Document," developed in cooperation with private school leaders, that can be accessed, here.

Private school participation in relevant ESEA programs is entirely voluntary.  Participation almost always consists of the provision of services to students, teachers, and administrators (rather than the receipt of funding) by either public school district staff, or by third-party contractors hired and supervised by the local public school district, following consultation with private school officials. 

While no private school need participate in any ESEA program, the law requires local public school districts to ensure that every nonprofit private school understands the opportunities and benefits made available through ESEA.  This is accomplished via consultation.  (Private school officials need not take part in consultation if their school has no interest in ESEA participation, but local school districts remain obligated to offer consultation on an annual basis).

It is a statutory requirement that consultation be "timely and meaningful," and that it is to occur before a public school district "...makes any decision that affects the opportunities of eligible private school children, teachers, and other educational personnel to participate in programs."  For private schools wishing to participate in ESEA programs, consultation should take place throughout the school year on an "as needed" basis.  The California Department of Education provides a suggested "California Private School Consultation Timeline," here.  According to the CDE, public school districts should be providing general orientation meetings designed to "provide [an] overview of available programs, [and] services for next year," during the months of March and April.  That's now!

The law requires the following items to be addressed during consultation:
  • How students' needs will be identified;
  • What services will be offered;
  • How, where, and by whom the services will be provided;
  • How the services will be assessed, and how the results of the assessment will be used to improve those services;
  • The size and scope of the equitable services to be provided to eligible private school students, teachers and other educational personnel, and the amount of funds available for those services, and,
  • How and when the public school district will make decisions about the delivery of services.  
Federal guidance makes it clear that public school districts cannot simply invite private school students and staff to participate in programs that have been developed for their public school counterparts.  Programs funded through ESEA are to be tailored to meet the specific needs of eligible recipients of service in your school.  (That goes for assessments, as well.)  Keep in mind that federally funded programs must always be of a secular, neutral and non-ideological nature, and that a governmental entity (typically, the local public school district) is the steward of federal funds.

This year, some districts may hesitate to provide an indication of the amount of available funding, citing uncertainty introduced by sequestration.  While it is true that some districts may not currently know the exact amount of federal funds that will be available for the 2013-14 school year, they should, nevertheless, be able to provide good faith estimates that will permit private schools to plan for 2013-14 in a thoughtful and deliberate manner. 

Private school administrators who have not received invitations to participate in an ESEA consultative meeting should not hesitate to take the initiative.  Pick up the phone, call your local public school district, and ask for the individual assigned to oversee private school participation in federally funded programs.  (If such a person cannot be readily identified, ask to speak to the director of federally funded programs.)  Extend the benefit of the doubt to the district and establish a positive, collegial tone as a foundation for ongoing collaboration.  Keep in mind that many districts have been subjected to budget cuts, reductions in staff, and possible reassignment of positions.  While most large school districts employ staff members who are thoroughly versed in the ESEA provisions governing the equitable participation of private school students and staff, if your school is located within the boundaries of a small district, you may find that the person responsible for private school participation in federally funded programs needs your help.  (A good place to start would be to point the person to the resources identified in this article.)

You can expect your public school district contacts to be professional, courteous, and supportive.  On rare occasion, you may encounter someone who appears reluctant to help, or even hostile to the notion of private school participation.  If you are one of the few private school officials to face such a "mind set" challenge, remind your district colleague that the federal funds in question are not intended to benefit private schools or public schools, but students, regardless of the school they happen to attend.  Let him/her know that the money used to provide services for private school students is generated by those students.  Make it clear that you are only trying to understand the law so that it can be implemented as intended.  (If you continue to encounter difficulty, please contact CAPSO.  We'll be glad to be of assistance.)
Last Chance: Register for Our Legal Issues Workshop

The "Ministerial Exception" and Your School

An emerging legal issues for private schools workshop offered by CAPSO.

Presented by:

Michael Blacher and Grace Chan

Liebert Cassidy Whitmore

                  

April 30, 2013

8:30 AM to 11:00 AM 

     Diocese of Oakland Cathedral Conference Center 

2121 Harrison St.

Oakland, CA  94612

(Parking available on the premises)

 

 

Registration Fees

$25.00 per-person (member rate for registrants whose schools are affiliated with CAPSO member organizations).  To view a list of CAPSO member organizations, click here.

$80.00 per-person for non-members.
Registration fee includes continental breakfast.

Workshop Background:  Religious schools are not subject to the same laws as their secular counterparts. A recent U.S. Supreme Court decision held that a teacher at a religious school could not bring a claim of employment discrimination under the "Ministerial Exception." The unanimous ruling contains potentially significant implications for faith-based private schools, but also raises additional questions and concerns. This workshop will explain and explore the Ministerial Exception's application to your school.

Questions to be Answered & Issues to be Addressed

  • What is the "Ministerial Exception?
  • What was decided in the U.S. Supreme Court's Hosanna-Tabor Case, and what does it mean for faith-based private schools?
  • For purposes of the ministerial exception:
    • what is a "church"?
    • who is a "minister"?
    • what claims are covered?
  • Is it advantageous for a faith-based private school to designate faculty members and other employees as "ministers?"
  • What are some possible drawbacks?
  • What issues remain unresolved? 

The presentation will be interactive.  Participants will be afforded ample opportunity to ask questions.

More information about the workshop, including presenter bios, can be found, hereView/download/print registration form.
 

 

Indiana Supreme Court Upholds Voucher Program
By dint of a unanimous decision, Indiana's Supreme Court has ruled that the Hoosier State's Choice Scholarship Program does not violate provisions of the state constitution, as claimed by opponents.  The 5-0 ruling in Meredith v. Pence affirmed the finding of a lower court, and underscores the legal status of the statewide voucher program, currently the nation's largest of its kind.  Currently, some 9,300 children from low-income families receive publicly funded scholarships enabling them to attend one of 289 participating private schools.

The Choice Scholarship Program provides a voucher with a value set at 50 percent of the per-pupil funding figure (for neighboring public school students) to children hailing from families with a combined income at-or-below 150 percent of the Free and Reduced Price Lunch criterion ($63,964 for a family of four).  Children from families with a combined income at-or-below the Free and Reduced Price Lunch criterion ($42,643 for a family of four) are eligible to receive vouchers with a value set at 90 percent of the per-pupil spending for local public school students.  Participating private schools must be accredited by the State Board of Education, or another recognized accrediting agency, must administer Indiana's state assessment, and must participate in the Board of Education's school improvement program

In their decision, the justices noted that participation in the program "...does not subject participating schools to 'regulation of curriculum content, religious instruction or activities, classroom teaching, teacher and staff hiring requirements, and other activities carried out by the eligible school,'... except that the school must meet certain minimum instructional requirements which correspond to the mandatory curriculum in Indiana public schools and nonpublic schools accredited by the Board of Education."

The legislation enacting the program in 2011 was immediately challenged by a consortium of opponents led by the state's teachers unions.  Meredith v. Pence addresses critics' claims that the voucher program violated Indiana's constitution in the following two ways: 1) it allegedly uses taxpayer funds to pay for the teaching of religion, and, 2) it purportedly enables participation outside the state's mandated 'general and uniform system of Common Schools'.  As to the first claim, the state's High Court appears to have adhered to the view established by the U.S. Supreme Court in its landmark Zelman v. Simmons-Harris decision.  The Indiana Court found:

"The direct beneficiaries under the voucher program are the families of eligible students and not the schools selected by the parents for their children to attend. The voucher program does not directly fund religious activities because no funds may be dispersed to any program-eligible school without the private, independent selection by the parents of a program-eligible student. Participation in the voucher program is entirely voluntary for parents of eligible students. Beyond the requirement that the non-public schools meet the benchmark curriculum requirements in order to be eligible to receive program students-eligibility which is in no way limited to religious schools-the State plays no role in the selection of program schools. The funds are provided for the eligible students' education, and the parents determine where that education will be received. Thus, any benefits that may be derived by program-eligible schools are ancillary to the benefit conferred on families with program-eligible children."

 

With respect to the provision of a 'general and uniform system of Common Schools,' the Indiana Court found that, "The school voucher program does not replace the public school system, which remains in place and available to all Indiana schoolchildren in accordance with the dictates of the Education Clause."  The decision further notes:

"...the Education Clause directs the legislature generally to encourage improvement in education in Indiana, and this imperative is broader than and in addition to the duty to provide for a system of common schools. Each may be accomplished without reference to the other. Considering that the voucher-program statute does not alter the structure or components of the public school system...it appears to fall under the first imperative ('to encourage') and not the second ('to provide'). The General Assembly's 'specific task with performance standards ("general and uniform," "tuition without charge," and "equally open to all"),'...falls under the second imperative, 'to provide, by law, for a general and uniform system of Common Schools,'...and is not implicated by the school voucher program."

In somewhat simpler terms, the Court appears to be saying that the voucher arrangement contributes to the constitutional provision "to encourage improvement in education" without obstructing those provisions requiring the state "to provide" the elements making for a 'general and uniform system'.

The text of the decision in Meredith v. Pence can be accessed, here.  A statement issued by the American Federation for Children, hailing the ruling, can be read, here.  The New York Times quotes Indiana Superintendent of Public Instruction Glenda Ritz as stating, "I personally believe that public dollars should go to public schools," here.

Quick Takes 
USDE Announces ESEA/IDEA Action Plan Addressing Private School Participation

The U.S. Department of Education has announced a four-pronged action plan designed to "improve the implementation of equitable services requirements under the ESEA and IDEA for eligible students enrolled in nonprofit private elementary and secondary schools and, as applicable, their teachers and parents."  The plan's four components include:
  • Outreach
  • Promoting and Encouraging Promising Practices
  • Technical Assistance
  • Monitoring 
The initiative, which will be overseen by the USDE's Office of Non-Public Education, was announced in a letter addressed to chief state school officers, state and local federal education program directors, and private school leaders.  A copy of the document can be accessed, here.  The letter provides additional details regarding activities to be undertaken relative to each component of the action plan.  For example, as part of the Technical Assistance component, the USDE will conduct webinars for state and local school district staff, as well as private school officials, focusing on the equitable participation of private school students and staff.  The webinars will be recorded and archived on the Department's website for future access by public and private school officials.


Is School Choice a Stumbling Block to ESEA Reauthorization?

When the No Child Left Behind Act was on the legislative drawing board, it contained a provision that would have permitted students enrolled in persistently under-performing public schools to use Title I dollars to pay for tuition at a private school of their choosing.  That provision was quickly abandoned in a calculated move to win bipartisan support for the sweeping federal education law.  Now, with reauthorization of ESEA nearly five years overdue, two prominent U.S. senators occupying different ends of the Republican political spectrum are both pushing to revivify the "dollars follow the child" concept.  Senators Rand Paul (R. - KY), a favorite of the Tea Party, and Lamar Alexander, one of a handful of Republicans who supported a Senate draft of an ESEA reauthorization bill in 2011, have teamed up to co-author a budget amendment that would permit Title I funds to follow children to private schools.  Education Week's Politics K-12 blog reports the development, here.  (The amendment was voted down.)

Politics K-12 blogger Alyson Klein questions what a push for school choice by Senate Republicans might hold in store for ESEA reauthorization:  "If Republicans in Congress refuse to support an ESEA reauthorization measure that doesn't include vouchers, it might make an already very tough reauthorization even tougher. Vouchers are considered a wedge issue. It would be hard to get many congressional Democrats on a bill that includes them-although, to be fair, vouchers are beginning to gain traction in some districts and states, even among some Democrats."  Which Democrats does she have in mind?  You can find out, here.


Read the CAPE Outlook

Are students who attend private high schools more likely than their public school counterparts to graduate, enroll in four-year colleges, and ultimately earn a bachelor's degree?  The Council for American Private Education (CAPE) asked the U.S. Department of Education's National Center for Education Statistics to compile data so as to answer those questions.  You can read the results in the lead article of this month's CAPE Outlook newsletter, available in PDF format, here

Among other featured articles are synopses of two engaging talks presented at a joint meeting of CAPE's board of directors and State-CAPE Network (of which CAPSO is a member).  The first, presented by John Chubb, who will soon become President of the National Association of Independent Schools, provides an overview of his current book, The Best Teachers in the World: Why We Don't Have Them and How We Could.  The second features a sampling of informative remarks presented by Grover J. "Russ" Whitehurst, Director of the Brookings Institution's Brown Center on Education Policy.  The Center administers the Education Choice and Competition Index, which employs 13 categories to assign rankings to over 100 public school districts.  Which district currently tops the list?  Read the CAPE Outlook!


Charter School Operators Found Guilty of Misuse of Public Funds

Critics of charter schools often claim that charters represent a move toward the privatization of the public education system.  Some go so far as to assert that charter schools are little more than private schools in disguise.  In some states, billboards promoting various charter schools invite prospective parents to provide their children with a private school education at no cost.  Backers and opponents, alike, thus see value in blurring the distinction between charter schools and private schools.

Notwithstanding the fact that charter schools are publicly funded, and are ultimately accountable to the public entities that possess the authority to renew or deny their charters, a Los Angeles Superior Court jury has helped to further differentiate charter schools from private schools.  That development comes in the form of an April 5 verdict that found the operators of a San Fernando Valley charter school guilty of misappropriating over $200,000 in public funds.  The Los Angeles Times reports the story, here.

What makes the story interesting is that the crimes committed by Yevgeny "Eugene" Selivanov, and his wife, Tatyana, are generally not of a blatantly criminal nature.  While the couple was found to have spent $12.99 for the purchase of a Speedo swimwear, most of the disputed charges fall into far grayer areas.  (The swimwear purchase was defended as a simple mistake made by the inadvertent use of the wrong credit card.)  As Roger Lowenstein, a witness for the defense who runs the L.A. Leadership Academy charter school warned, "Now we are threatened with jail if we give a teacher a Christmas bonus of a $50 Target card, as we do." 

Attorneys for the defendants argued, unsuccessfully, that charter schools "...should be treated as non-profits, which have flexibility in spending money, provided it furthers the mission of the organization."  As further evidence that the conduct of the Selivanovs was not viewed as an aberration by leaders of the charter school community, witnesses for the defense included a number of high profile charter school advocates, including Mr. Lowenstein, former L.A. School Board President and California Charter Schools Association Executive Director Caprice Young, and Eric Premack, executive director of the Charter Schools Development Center.


My Exchange with Diane Ravitch

Diane Ravitch has become one of the most visible and outspoken opponents of what she and others regard as the "privatization" of public education.  Recently, the renowned historian of education and New York University professor featured an article on her blog written by Dr. Henry M. Levin, Director of the National Center for the Study of Privatization in Education at Teachers College, Columbia University, in which the accomplished economist commented on the Swedish school voucher system.  Professor Levin noted that the availability of universal vouchers in that Scandinavian nation has been accompanied by declining test scores and an increase in social stratification.

In the comments section following Dr. Levin's article, I decided to pose a simple question:  How is one to know that test scores wouldn't have been even lower, and social stratification even greater had vouchers not been available?  Somewhat surprisingly, Professor Ravitch responded to my question, and engaged me in an exchange of posts.  Did she provide a satisfactory answer to my question?  You can decide for yourself.  Here's the link.

Ron Reynolds
We've Got Work to Do!
One of the shrewdest investors of all time is a man you never heard of by the name of Ernest Ackerman. Mr. Ackerman earned his niche in the back channels of American history by becoming the first individual to apply for a lump sum Social Security benefit. The Cleveland motorman participated in the federal entitlement program for exactly one day in 1937, the first year in which Social Security contributions were deducted from worker's paychecks. In Mr. Ackerman's instance, a sum of 5 cents was withheld for deposit into one of the federal program's "trust funds." Following his retirement (the next day), the shrewd Midwesterner made application for, and subsequently received a lump sum payment in the amount of 17 cents, or 340 percent of the amount he paid into the program.  (That's Mr. Ackerman, smiling in the accompanying photo.)

In 1940, a total of 222,488 Americans were recipients of Social Security benefits, a figure amounting to less than one percent of the total U.S. population.  The government was able to take a nickel from Ernest Ackerman and give him 17 cents because the number of people who were paying into the system far exceeded the number being paid.  If Social Security's economic underpinnings were shaky, the advent of the Baby Boomer generation promised to provide decades of solvency, as additional millions entered the U.S. work force.  Not only were a far greater number of people paying into the system, the people footing the bill were increasingly productive

But that was then.  By 2011, the total number of Social Security beneficiaries had burgeoned to 56 million, or approximately 18 percent of the total population of the United States.  And that figure largely excludes the Baby Boomers. The oldest of the Boomers will turn 67 during the course of the current year.  Even if every last one of them had begun drawing from Social Security at age 65, fewer than 10 percent of the cohort would currently be on the distribution end of the equation.  In other words, we know the tsunami is coming.  By the time the last of the Baby Boomers will have turned 65 in the year 2030, the Congressional Budget Office estimates that Social Security outlays will exceed dedicated revenue by about 20 percent.  By 2033, the program is projected to become insolvent. 

While 2033 may seem distant to some, twenty years is little more than the blink of an eye to any forward thinker.  Yet, members of Congress fiddle as "Rome" burns.  Eventually, they'll tweak Social Security so as to buy more time.  They'll ratchet up the age at which benefits can be received.  They may trim benefits paid to the more affluent.  They'll look for ways to jack up revenue.  And maybe, just maybe, they'll connect the dots and realize that education is the key to productivity, and understand that no matter how much political tinkering they do, our entitlement programs will be doomed absent a resurgence in American productivity.
 
We can't wait for Congress.  If America is going to become more productive, America's private schools must take the lead.  The good news is, we can.  Our schools possess the independence, flexibility and vision to produce the next generation of innovators and entrepreneurs, thinkers and "doers," leaders, givers, movers and shakers.  We know we are capable of doing so, because we always have.
 
So, while the acrimonious quibbling continues in Washington, we must maintain our focus while renewing our sense of purpose.  Whatever happens, or doesn't happen in Washington and Sacramento, our schools must assume responsibility for leading our nation into the future.  Ultimately, shaping lives, fueling dreams, inspiring and enabling our young people will prove decisive.  We must produce a generation capable of turning an investment of 4 cents into (at least) 17 cents of value.  That's real social security. 

Ron Reynolds

Publication Note


The next edition of the CAPSO Midweek E-Mailer will be published May 1, 2013.