Tuesday, February 25, 2014

ALEC's Model Legislation for School and Course Choice Leads to Unequal, Separate Education

The Future is Digital!

A 1985 film, Back to the Future, features skateboards hovering above sidewalks, recycled garbage for fuel, and time travel in the not-so-distant tomorrow. In 1987, Wall Street showed power-player Gordon Gekko walking with an early cell phone about as long as a shoe box and about half as wide. Over the course of its television life, Mulder and Scully carried increasingly smaller and smaller cell phones in a nod to changing times.

Now we have notebooks, laptops, Google glass, wristwatches, and smart phones that bring the world and messages to us without much effort on our parts. For good or bad, ours is an electronic, digital world, one that has changed how we think and acquire knowledge.

Educational Landscape

Once upon a time, public education took place in neighborhood schools, but neighborhoods were often racially and economically segregated, White children from Black, rich from poor. Poorer districts, with poorer tax bases, often received fewer funds; thus, public education wasn’t equal.

Petitioners used the courts to secure equal educational opportunities for all races, both genders, English and English Language Learners, and different economic and/or ability groups. As a consequence, school districts now transport children farther from their neighborhoods to schools and in theory, children of all races, ethnicities, social groups, and abilities intermingle.

In practice, however, some people prefer separate educations. Whites fled inner cities, moving to suburbs, in part to insure the separation of races; this has led to a different kind of school system: inner city schools, once again underfunded according to tax base, and suburban schools, usually well-funded. Some groups, preferring separate educations and building upon a European model, enrolled their children in private schools frequently built upon a religious foundation so Catholics attended school with other Catholics, Jews with Jews. For the faithful without a juggernaut as large as Catholicism or Judaism, home schooling began to grow in popularity, and entire industries providing books and curriculum were born.

Furthermore, many now believe that public schools have failed so new choices and new models must be given support and wings. Government in partnership with private enterprise stepped in to provide both.

Support and Wings New Orleans Style

The catastrophe of Hurricane Katrina put New Orleans, Louisiana in the unique position of starting over, and their schools were reinvented. With schools damaged, whole neighborhoods displaced, and an infrastructure in need of rebuilding, 7,000 teachers were laid off. Only recently did Courts determine that this was unlawful, especially because these teachers were not given places in the new school system emerging and run by the state rather than the city or district.

Charters rushed into the opening created by Hurricane Katrina. These charters, with the full support of Louisiana’s governor, are run by private investors receiving public money. The public rationale includes the assumption that public schools can not meet every need and indeed often fail to succeed in the absence of competition. Charters inspire excellence, according to charter proponents, by providing competition.

Some charters have not succeeded, and some have not proved to be stable choices. One charter faces an abbreviated tenure in New Orleans due to financial discrepancies. Others often employ Teach for America (TFA) personnel, a program that provides five weeks’ training for recent college graduates and a two-year commitment to teach in low performing and/or low-income schools. TFA staff turns over frequently because most TFA teachers do not remain in the profession at the end of two years, or they move to high performing schools once their two-year commitment with TFA ends.

The Role of ALEC and Jeb Bush’s Foundation for Excellence in Education

Former Florida Governor Jeb Bush addressed ALEC and recommended, among other things, no more social promotion in order to insure literacy for U. S. citizens. This recommendation leads to third-grade testing and retention if the student does not read at a pre-set level. Bush, as founder and spokesman for the Foundation for Excellence in Education, also advocates virtual and online education, both, like charters, tied to for-profit companies, including Pearson, an educational testing company that donates to the Bush education foundation and to ALEC.

An entire industry dedicated to essential educational reforms, in league with and building upon Bush’s Foundation, advocates charter school choices and online and/or virtual learning options. New Orleans, Houston, and so many other cities and states, including Oklahoma, have embraced this recommendation even as they shave educational budgets in this so-called tough economy.

All of this rush to provide choice in brick and mortar schools as well as courses begs the question: do charters and online education deliver a better product and healthy, high achieving children? Several studies, including one reported by Diane Ravitch, once a school reformer but now a reformed reformer, suggest that neither charters nor course choices are solutions. Few charter schools outperform public education; in fact, the documentary, Waiting for Superman, celebrates the rise of charters, but grants that only one in five produces stellar results on par with or better than public schools. 
Al Griffin Photography

Online and/or virtual educational choice is not an answer either. Most children still need collaborative learning and a teacher as guide to excel. Cyber schools can’t boast about graduation rates either, but this is what ALEC advocates: more freedom to choose schools and to use online education when courses are unavailable or interests and student needs differ.


Schools are under siege. Public services are being examined and crushed. Budgets are tight, and international test scores lag behind other nations, but we know why: poverty, unequal funding, the very conditions we once sought to correct. Charters and choice are not solutions for poverty; they too often abandon poor kids without transportation or parental vision to no education. Liberty, freedom, choice, and excellence should be equal opportunities, not just for the few.

Tuesday, February 18, 2014

ALEC Hopes to Surveil Your Children and Direct Their Futures


Edward Snowden brought many citizens into the debate about national security, rights to privacy, the National Security Agency, the FISA court, cell phone communication, and electronic messaging. Americans seem to have awakened from a deep sleep, one induced by 9-11, and they now are alarmed about their personal privacy, but are they willing to stand their ground in behalf of their children?

Conventional Wisdom.

According to popular myth-makers, our public schools have failed; many are dysfunctional. One remedy is standardized testing, originally intended to be formative assessments; i.e., the results would help teachers tweak instruction so that students master essential content and progress in learning. Assessments have become summative, however; i.e., individual student learning is juxtaposed against a predetermined benchmark to measure student learning, teacher effectiveness, school effectiveness, district effectiveness, and state effectiveness.

The formative assessment value of scores has not been lost on anyone, however. Many still assert that test scores must be reported quickly so that states, districts, schools, and teachers can remediate and re-teach to insure student progress and success. Unfortunately, quick, timely reporting is rare. Test results are often sent to schools after students have advanced to another grade and the purview of a different teacher responsible for a different set of objectives. Furthermore, classroom teachers do not have easy access to each student's test results and therefore, cannot use them efficiently or effectively.

The ALEC Model Legislation.

To overcome deficiencies in current test reporting practice, ALEC suggests a Student Achievement Backpack Act, another piece of model legislation to create a means by which records can be transported from place to place and authorized person to authorized person so that counselors and teachers can access a student's assessments in order to place students correctly and provide remediation. Such transparency and accessibility will also allow districts and States to judge how best to fund programs and schools.

The Thomas B. Fordham Institute argues a Backpack Act’s advantages in the following: 

“Current technological deficiencies and restrictions on data sharing limit teachers’ access to student data, leaving them inadequately prepared to build off individual students’ strengths and nurture their weaknesses. … The Data Backpack would act as one common official transcript, tracking many more indicators (like prior years’ test scores, attendance, and behavior reports) than current transcripts. The Learning Profile, a customizable data tracker for more qualitative points like students’ goals and teachers’ comments, would supplement.” The ALEC model legislation also suggests a writing sample and more and has been implemented, word for word, in Florida and Michigan.


The Backpack Act will add to the cost of education. Hardware and software must be developed and/or purchased and secured. The last necessity is possibly the most important. Do we wish to authorize digital cloud storage of so much information about our children? We are not comfortable with so much information about adults being mined and collected; shouldn’t we protect our children from the same?

No program is safe from hackers. Potential employers, college and university admissions committees, insurers, credit agencies, lending institutions could also access a child’s school record, as they now access utility billing, arrest records, and credit reports with subscriptions to data bases, and with such reports, infer from discrete data pulled from a year or day that was complicated for reasons that have nothing to do with the person’s work ethic, integrity, or abilities.

Most important, the scores to be stored digitally are not accurate determinants for future performance, yet decisions will be made as if the data were reliable. Just one of the many problems with these summative assessments is that the benchmark moves upward as it chases a poorly defined high-jump bar called rigor. An additional problem is that standardized testing or summative assessments are based upon a core set of standards determined by test-makers and corporate interests rather than teachers or even school boards.

Still ALEC proponents believe that a child’s scores on every year’s set of summative assessments should be available in a digital cloud provided by and secured by a contractor. The potential abuses are greater than rewards if such a system were adopted.

Tuesday, February 11, 2014

ALEC Misrepresents Reading Instruction to Its Own Advantage


Reading is fundamental. Reading is power; reading is knowledge. Reading is also essential for social advancement and success. BUT THE INABILITY TO READ AFTER A PUBLIC EDUCATION IS RARE! Yes, rare. No matter what else you’ve heard, remember the inability to read after a public education is rare.

The Contemporary Narrative:

Our public schools have failed. Educators fail to prepare students for reading challenges and to accomplish simple calculations necessary for entering into contracts or buying enough paint for a single room. Our poor PISA (Program for International Student Assessment) scores prove it. The United States scores well below other nations in math, science, and reading. Twenty-nine other nations earned higher math scores; 22 scored above the U. S. in science, and 19 in reading. Essentially, the U. S. has flatlined or shown little change in rank since 2003.

But PISA scores do not reveal the whole truth!

ALEC’s Proposal to Help Children Learn and Achieve.

Tank, the WatchCat. Photo by Al Griffin
One way to improve PISA scores, according to conventional wisdom, is to insure that elementary school children acquire the skills necessary to progress and excel. To that end, ALEC proposes legislation, already enacted in Oklahoma and other states, to test third-grade children and retain them in the third grade until they can read according to the third grade reading sufficiency for that year’s test. The suggested and enacted laws also require teacher training and remediating students at risk or retained. An entire industry has blossomed so that states and schools can dedicate dollars to consultants and testing companies in order to implement the law, training, testing, and remediation.


The legislation is without merit simply because the reason for its existence is fundamentally flawed. While reading is indeed power, the online remediation programs, testing juggernauts, and purported benefits cannot be supported by research or scholarship. Students become better readers by reading. Programs such as Silent Sustained Reading (SSR) succeed unlike any accelerated reader, computer drill, or teaching and learning strategy. Access to books succeeds so libraries must be well-funded and accessible. Neither Pearson nor Accelerated Reader, Jeb Bush’s Foundation for Excellence in Education, and other private contractors for educational reforms have been able to produce the results that SSR has, but SSR is not one of the pedagogical changes advocated by any of these contractors or ALEC’s legislation.


Trust educators and scholarship to guide you, not those who have a vested interest, especially when your children’s self-esteem, actualization, and futures are at stake. Children retained are not more likely to succeed. 

Tuesday, February 4, 2014

Blocking the Door to the Halls of Justice: ALEC Weighs In Again


Several years ago, while chatting with some of my students, one young woman revealed that she had no worries about paying for college. She laughed and said PopTart will pay for four full years at any college I choose with enough left over for my younger brother. I asked her to elaborate, and she explained that she was a latch-key kid, arriving home before her parents or her brother. Every day, she chose a PopTart for her after-school snack. On the day that changed her collegiate life, she put the tart in the toaster, unloaded her backpack and listened for the tart to pop. When it did, she depressed the lever to warm the tart thoroughly--just as she did every day, Monday through Friday, for a full school year, and she returned to organize her homework on the dining room table.

This day, however, the tart caught fire inside the toaster. The flames leaped up the cabinets, and soon the fire was out of control. The kitchen and living room had to be gutted after the fire department and insurance were through investigating. Her parents sued, and thus, according to my student, was born a disclaimer on the PopTart package reading “Due to possible risk of fire, never leave toasting appliance or microwave unattended.” 

Some would call the family’s actions a frivolous lawsuit; others would understand that the girl’s parents believed a warning was absolutely necessary for the safety of us all. They believed they were sending a message to the world to watch over your tarts as they heat and thus, save lives.

I wasn’t able to verify my student’s version of events, and in truth, I had no reason to do so. I know that she and her brother graduated from the same expensive private college and did not need student loans to do so. I have however verified that Kellogg’s has been sued and has paid several claims for decades--even after the disclaimer appeared on their packages, and I don’t have a problem with that.

The marketplace is large, consisting of many parts. Manufacturers, retailers, government, attorneys, and experts all co-mingle and analyze in order to deliver products that are profitable and desirable. The courts are merely one measure or safety valve to prevent abuses, including, but not limited to, some of the following abuses when Goliaths preyed upon our natural resources and human well-being in the pursuit of profits that subsequently returned to their victims.

Many American stories are about Davids slaying Goliaths: 
  • John Travolta, starring in A Civil Action, reluctantly undertakes the case of people poisoned by a company’s callous disregard for natural resources and human life. His pursuit of justice is expensive, endangering his professional life and personal wealth, but he continues to tilt at windmills because the cause is righteous, and he wins without cashing in.
  • Julia Roberts portraying Eric Brockavich also wins.
  • Greg Kinnear represents the plaintiff in Flash of Genius he loses everything, even his family, in pursuing justice against Ford Motors over intermittent windshield wipers.
  • Matt Damon portrays John Grisham’s fictional attorney who, with little experience or funding and no firm to support him triumphs over a negligent, opportunistic health insurance company in The Rainmaker.
  • Paul Newman portraying another fictional attorney revives his lost dignity in The Verdict and scores sizeable punitive damages in behalf of a woman who resides lost inside a coma at great expense to her family.

In each of these, filmmakers examine the unbalanced scales of justice. Defendants and corporations have armies of attorneys and deep pockets from which to fund a prolonged legal battle while plaintiffs and their attorneys have few tricks up their sleeves and pockets with holes in them. Filmmakers persuade us to cheer for the underdogs, those put-upon plaintiffs and the attorneys who risk it all to deliver justice, and we cheer loudly when the compensatory and punitive damage numbers flash upon the screen. We cheer because the Big Companies and Their Big Legal Teams dissemble and deploy dirty tricks to win. 

Conventional Wisdom.

As I labored to explain last week, we have heard a narrative so often repeated and declared as fact that many of us no longer question it, and that narrative persuades us to believe that:
  • Our judicial system is constipated by frivolous lawsuits;
  • Attorneys are opportunists wheedling little guys to pick up that slingshot and aim at big business;
  • Attorneys charge excessive contingency fees, taking from the rich but withholding from the poor;
  • Our nation will crumble if we don’t right these wrongs promptly because the Captains of Business and Industry can only thrive in a less litigious state; and
  • The marketplace will correct itself without legislative or judicial interventions.
The Manhattan Institute for Policy Research, heavily funded by the Koch Brothers, billionaires with political aspirations and an agenda, suggest that we must eliminate contingency fees and stop the practice of the lawsuit loser paying for the lawsuit winner’s legal fees. Both suggested changes would have a chilling effect upon consumer protections because few petitioners have the means to pursue their claims in court; they rely upon not only an attorney’s expertise, but also his firm’s financial resources.

An organization of which the Kochs are fond, ALEC, seeks to reduce the costs of consumer protections by revising and/or restricting regulations as well as legal remedies. In another piece of model legislation, ALEC proposes to reduce the cost of doing business by holding in check damage awards for consumers, requiring that compensation be restricted to actual “out of pocket” loss, that a prospective defendant be given ten days’ notice before any suit is filed so the defendant may attempt to compensate the complainant for actual “out of pocket” loss, that no additional awards be made unless the court or arbiter determines that the loss was the result of a willful act to defraud, and that additional awards be limited to three times the actual loss or $500--whichever is greater.

In addition, any suit must be filed within one year of the loss and a class action eliminates the possibility of any additional award. Thus, consumers must be aware of the damage or loss in a calendar year and may not join together to sue without limiting the amount awarded for loss. Furthermore, no retailer can be sued if the retailer was simply representing the claims of a manufacturer, and advertisers are held blameless if they collect money for claims that subsequently turn out to be fraudulent or deceptive.


With this piece of legislation, the children of parents with property poisoned by long-term, upstream pollution could never sue or expect remedy if the effects of those toxins were not known until a generation of data had been collected. With this piece of legislation, my former student would not be able to settle for damages and go on to college. With this piece of legislation, a group of people whose insurance claims were denied after a catastrophic event could not join to sue the insurer even though the weight of their combined experience stands as undeniable proof of harm. These consumers would need to stand not as as Davids against Goliath, but as David alone against behemoths.

Photo by Al Griffin
This legislation would have a chilling effect upon consumer complaints without delivering an adequate deterring effect. If the company merely has to refund a negligible amount, it has no incentive to stop the practice because many people will never catch the error or even pursue a complaint. After all, the death of one person appears to be a terrible result not necessarily attributed to the drug recently prescribed. But 30 months later, after several deaths linked to a drug and studies undertaken, the first family’s loss would have no remedy because the loss did not fall within the calendar limits to sue. Moreover, proving that a company willfully misled the public about the effects of the drug is not easy, especially if doing so must be accomplished by individuals within a single calendar year. Similarly, proving that a bank has charged consumers “junk fees” for years is very difficult to prove when each complaint results in a settlement before a suit is made public.

That small fines and refunds have no deterrent effect is evident in today’s financial world. Chase and Bank of America have been assessed record-setting fines for failing to provide adequate safeguards against Ponzi schemes and mortgage fraud, but the fines are so slight when compared to the banks' profits that few expect unfair banking practices to stop.


The ALEC proposed legislation is not in the service of citizens and consumers. It would make it tough for underdogs to have their day. It would give Goliath more advantage than he has now, and it would cease to inspire the nation to believe that one day, justice might well be served. We have in the marketplace laws, regulations, competition, incentives, and courts that are flexible enough to accommodate different circumstances and wide variations in incomes. Let the system stand and work. It is regulated capitalism. Unfettered capitalism has not been good for people.