New reports show that six years after Gov. Jerry Brown and the Legislature approved a sweeping overhaul in how school funds were divvied up, the evidence is mixed that the overhaul is accomplishing its main goal: improving the academic performance of the 1.2 million English language learners in California public schools.

Under the law, known as the Local Control Funding Formula, schools with high percentages of English learners, foster children and poor families get additional funding that in 2013 was described as being specifically to help these students achieve proficiency in key subjects. Since then, about $30 billion in LCFF grants have been distributed.

But a 2015 decision by then-Superintendent of Public Instruction Tom Torlakson to allow LCFF dollars to go for teacher raises and other general uses has led to critics such as Assemblywoman Shirley Weber, D-San Diego, arguing that struggling students aren’t getting the help they were promised in 2013. Earlier this year, Weber persuaded a legislative panel to have state Auditor Elaine Howle review how the grants are being spent and possibly examine their effectiveness.

Reformers see bad faith in how law was implemented

The pending audit is highly anticipated by education reform groups which have for years accused the state government of showing bad faith in implementing LCFF. 

Defenders of the law have some data that back up claims it is working as intended. An EdSource analysis of the state’s Smarter Balanced test scores released earlier this month showed that schools with high numbers of LCFF students had seen a 9 percent increase in student English proficiency over the last five years. But the same analysis showed little change in the “achievement gap” between white and Asian students and those of Latino and African American descent. 

And a Public Policy Institute of California report released in August found that increased funding hadn’t changed a fundamental problem that makes progress difficult in struggling schools: They still had teachers who were considerably less experienced than those in wealthier communities. These schools are also far more likely to have teachers offering instruction in fields in which they had no training. The PPIC suggested there was evidence that these issues had gotten worse in recent years.

Because of strong teacher job-protection laws, veteran teachers have considerable latitude about where they work. Schools in wealthy communities that often get help from parental and community fundraisers have a huge edge over schools in poor communities where teachers often feel they have no choice but to bring in basic supplies for students from destitute families.

Civil rights lawyers again target LAUSD over spending

Meanwhile, in Los Angeles Unified, the state’s largest school district, a formal complaint has been filed by the Public Advocates civil rights law firm that alleges that much of the $1 billion-plus in LCFF money the district gets annually is being used in ways that are not properly documented as required by state law. The complaint includes numerous examples from district records of LCFF grants being spent in questionable ways.

In 2016, Public Advocates filed a similar complaint against L.A. Unified, which some district officials strongly disputed. But the next year, the district agreed to provide an additional $151 million to 50 schools with high concentrations of English learners, foster children and students from poor families.

The U.S. Supreme Court’s June decision in the Janus v. AFSCME case that public employees couldn’t be compelled to pay union dues was widely seen as a game-changing moment in U.S. politics.

The coverage on The Atlantic website was typical. It called the decision, which stemmed from a lawsuit brought by Illinois state employee Mark Janus, a “huge blow” to public sector unions and suggested the decision had the potential to “end” such unions in America.

But five months later, the experience of the most powerful public employee union in the nation’s largest state undercuts the assumption that Janus would take a quick toll on unions’ clout. In supporting Assemblyman Tony Thurmond, D-Richmond, for state superintendent of public education against Marshall Tuck, the California Teachers Association spent $16 million as of Oct. 31 – $5 million more than it did in the entire 2014 superintendent election, where the union supported incumbent Tom Torlakson over Tuck, a former Los Angeles school executive with deep support from charter school advocates and a loose coalition of tech billionaires.

Torlakson narrowly defeated Tuck. This election, Tuck and Thurmond have been trading the lead in recent days. With millions of votes yet to be counted, no journalism organization has called the race.

The CTA does not issue regular updates on its membership status. But a recent Sacramento Bee analysis suggested that the union, as in previous years, had 90 percent membership among the 325,000 teachers it represented. So while it’s lost dues from the 10 percent of teachers who reject union membership, the CTA still collects more than $150 million in dues annually – making it the most powerful force in the California Democratic Party.

Union clout to be tested in coming fight over funding

The extent of the CTA’s clout is likely to be tested soon – whether Thurmond or Tuck is elected. That’s because both have said they oppose one of Torlakson’s most controversial, union-favoring decisions: His 2015 announcement that the extra funding going to schools with disproportionate numbers of English learners, foster children and impoverished students could be spent on general needs, such as raises for teachers.

Torlakson’s decision, which overrode a directive from a lower-ranking official in the state Department of Education, spurred outrage in education reform circles. The Local Control Funding Formula – the 2013 state law changing how districts were allocated state dollars – had been pitched as creating a lock-box of dollars that would be spent only on helping underachieving students.

But Torlakson’s decision had the effect of turning the local-control funding into a de facto block grant. Many districts have used the funds for employee raises.

If Thurmond or Tuck revive the lock-box theory of how the funds can be spent, that’s likely to create huge headaches for most school districts, which have received an average of $8 billion a year in local-control dollars since the law took effect.

Newsom close with both teachers unions and reformers

A key factor in the coming fight over funding is the position taken by Gov.-elect Gavin Newsom, who was strongly backed by the CTA but is also friends with the tech tycoons who want education reform. The governor’s control over parts of the Department of Education’s budget gives him a powerful lever to use on the state superintendent.

On the campaign trail, Newsom said teachers are underpaid and schools are underfunded. But he’s also rejected Gov. Jerry Brown’s claim that education reform is a “siren song” in which trends come and go but schools never get better. In interviews, Newsom has noted the success of education reform in union states like Massachusetts and New Jersey.

It’s unclear when the count of the Thurmond-Tuck vote will be complete. But the recent statewide election with the most parallels to the race offers encouragement for Thurmond, a former social worker.

In the 2010 attorney general’s race, Los Angeles District Attorney Steve Cooley, a Republican, took such a substantial early lead over San Francisco District Attorney Kamala Harris that the San Francisco Chronicle pronounced him the winner on election night. But as millions of provisional and late ballots were counted, the tide turned steadily toward the union-backed Democrat. Three weeks later, Cooley conceded when Harris’ lead topped 50,000 votes. Harris ended up winning by more than 74,000 votes – about 1 percent of total voters.

The Los Angeles-based Parent Revolution group, which focuses on improving education and increasing educational opportunities for poor minority students, analyzed 44 LAUSD schools with weak test scores last school year. At these schools, only 20 percent of students met or did better than state math standards and only 28 percent in English.

Yet last school year, 68 percent of teachers in these schools were not subject to official evaluations – either through oversight or via exemptions ordered by their principals. Of teachers who were evaluated, 96 percent were found to meet or do better than district performance standards. Over the past three school years, the figure edged up to 97 percent getting positive evaluations – meaning only about one in every 30 evaluated teachers is found wanting.

“We do see this in other districts, where almost everyone has a satisfactory rating and it’s disconnected from student achievement,” Seth Litt, Parent Revolution’s executive director, told the Los Angeles Times. “It shouldn’t be disconnected.”

The findings parallel those that emerged from the landmark Vergara v. California lawsuit, in which nine students from state public schools represented by civil-rights attorneys hired by the Students Matter group alleged five state teacher job protection laws were so powerful that they had the unconstitutional effect of keeping incompetent teachers on the job and funneling them toward schools in poor communities.

Evidence presented by the plaintiffs in the case showed that only 2.2 teachers on average are fired each year for unsatisfactory performance in a state with 275,000 teachers at its public schools.

The case’s primary focus was on Los Angeles Unified. In a twist that few expected, some of the most powerful testimony against the teacher protection laws came from then-LAUSD Superintendent John Deasy. He testified in early 2014 that even if a teacher were “grossly ineffective,” it could cost the district millions in legal bills to fire the teacher.

Later that year, state Judge Rolf Treu agreed with the plaintiffs that the five teacher protection laws unconstitutionally deprived the students of their right to a good public education. Treu likened the laws’ effects to those of segregation before the U.S. Supreme Court’s 1954 ruling in Brown v. Board of Education. Treu’s decision was overturned on appeal on the grounds that the trial failed to clearly establish a factual nexus between student performance and the job protection laws.

3 state justices wanted to hear teacher tenure case

But education reformers were somewhat heartened by what happened next. Three members of the California Supreme Court wanted to hear an appeal of the appellate ruling, suggesting at the least some interest in Treu’s reasoning, which was mocked as novel and weak by attorneys for teacher unions. While they were voted down by the state high court’s other four justices, they could be a factor in future litigation.

As for Los Angeles Unified, litigation over school practices affecting minorities and high-needs students has been common for decades. In September 2017, for a recent example, the district reached a $151 million settlement in a lawsuit filed by the ACLU over the improper diversion of Local Control Funding Formula dollars that were supposed to be used to help struggling students in poor communities, especially English-language learners.

LAUSD was also the target in 2010 of what a federal government statement called “the first proactive civil rights enforcement action taken by the Department of Education under the Obama administration” – prompted by what then-Education Secretary Arne Duncan called the district’s failure to adequately educate many Latino and African-American students. The case was settled in 2011 after the district agreed to make several substantial changes meant to improve these students’ performance.

But evidence presented in the Vergara case showed no subsequent gains by these student groups.

Los Angeles Unified has 640,000 students, making it by far the largest school district in California. Only the New York City school system, which has about 1 million students, is larger in the U.S.

The suit was filed by Public Counsel, a pro bono law firm, and Morrison & Foerster, against the State of California, the State Board of Education, the State Department of Education, and State Superintendent of Public Instruction, Tom Torlakson.

“The state has long been aware of the urgency and the depth of the all-too-preventable literacy crisis, and yet it has not implemented a single targeted literacy program to remedy this crisis,” said Mark Rosenbaum, the lead attorney with Public Counsel, according to Education Week.

To support their case, the lawyers reportedly submitted results from a recent Stanford study examining the 26 lowest performing school districts in the U.S. based on literacy and basic education. Eleven of the 26 districts are in California.

Furthermore, data shows that less than 50 percent of students from third grade to fifth grade have met statewide reading standards since 2015. The plaintiffs, which include 10 public school students, want the state to create an accountability system to monitor literacy levels.

“Although denial of literacy is the great American tragedy, California is singlehandedly dragging down the nation despite the hard work and commitment of students, families and teachers,” Rosenbaum added.

Public Counsel has been pro-active in this capacity before as it’s also filed a similar suit against the state of Michigan.

The lawsuit seeks “proven literacy instruction, literacy assessments and interventions, support for teachers, and implementation of practices to promote parent involvement and learning readiness,” according to the press release.

Concerns about a lack of proficiency with basic reading skills has been a persistent concern in California.

For example, just 40 percent of LAUSD students met or exceeded English standards in 2016. That was actually an improvement from 2015 when only 33 percent of students met the benchmarks.

Statewide, around 48 percent of students met English standards on the California Assessment of Student Performance and Progress during the same year.

Critics of current policy often cite tenure laws as a reason for the lack of improvement, arguing that the inability to fire poor instructors disadvantages poor and minority students.

But in a high-profile lawsuit in 2016 (Vergara v. California), a California appeal court upheld the teacher tenure framework, reversing a lower court ruling, in what was blow to school choice advocates but a win for teachers unions.

However, the newest challenge doesn’t take aim at tenure, but argues for improved teacher training and additional resources.

“We need citizens that can read. We need citizens that can vote,” David Moch, one of the plaintiffs and a retired teacher, reportedly said about the newest challenge. “Once you get behind, if there’s no intervention, there’s no catching up. The level of the work is getting more intense and multiplied at every level.”

The issue involves the contentious matter of teacher job protections, which the union says are necessary to counter unfair and politically motivated firings. Education reformers believe such protections – tenure, a seniority-based layoff system, and the long and costly dismissal statutes – deprive some students of a quality education.

The main dismissal-related measure this year is Assembly Bill 1220, which extends the time period before teachers are eligible for tenure, at which point they can only be fired for certain types of misbehavior. The bill would extend the probationary period to three years for districts with more than 250 students and mandates an individualized improvement plan for teachers in their third year.

Currently, teachers are eligible for tenure after just two years, and they must be told whether they will receive tenure after only 18 months. That forces school districts to make tenure decisions rather quickly. The bill’s sponsor, Assemblywoman Shirley Weber, D-San Diego, and other backers argue that “districts would make wiser hiring decisions with more time,” according to EdSource, which recently analyzed 10 education-related bills that have passed the Assembly or Senate but still must be approved by the other house.

This is the latest bill that responds to issues raised in a much-publicized California legal tussle. In the Vergara case, nine public-school students filed suit against the State of California and the California Teachers’ Association claiming these policies violate the California Constitution’s Equal Protection Clause. As Los Angeles Superior Court Judge Rolf Treu explained in his June 2014 decision, the plaintiffs argued that these protections “result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.”

Treu agreed with the plaintiffs. “The evidence is compelling. Indeed, it shocks the conscience,” the judge ruled as he tossed out as unconstitutional teacher tenure and other job protections, including the “last in, first out” seniority system under which younger teachers are the first to go whenever districts must implement layoffs. The appeals court overturned the ruling in 2016, pinning most of the problems on poor decisions by the school district rather than the job-protection statutes.

Later that year, the state Supreme Court declined to review the case on a 4-3 vote, thus letting the appeals court’s decision stand. But the controversy didn’t subside. In direct response to the appeal court ruling, reformers introduced Assembly Bill 934 last year to extend the tenure process to three years and allow districts to negotiate an “alternative teacher dismissal process,” according to the bill analysis. The CTA opposed the bill, which died in committee.

The union likewise opposes this year’s bill. “AB1220 is the wrong solution to support good teaching and learning, and it’s disappointing that leaders in the Assembly refused to work with educators to improve the bill,” said CTA President Eric Heins in a June 2 statement. “Forty-six other states provide due process rights to teachers on day one. California is taking a step back by adding another year without any rights for our newest educators.”

Reformers argue that including new rights for probationary teachers from “day one” would make it even harder to get rid of those teachers who don’t make the grade. They note that 42 other states have probationary periods ranging from three to five years.

“California has one of the shortest times for a teacher to demonstrate classroom readiness and achieve permanent status,” according to a statement from Weber’s office. “A statewide survey of 506 teachers in traditional California schools found that 85 percent of teachers think that tenure decisions should be made after at least three years of classroom instruction. Only 15 percent of teachers found California’s current two-year timeline was sufficient.”

Backers of extending the probationary period point to statistics raised in Treu’s decision. The judge pointed to testimony suggesting that 1 to 3 percent of California public-school teachers are “grossly ineffective,” which amounts to 2,750 to 8,250 such teachers statewide. That’s a large enough number to have “a direct, real, appreciable and negative impact on a significant number of California students,” he wrote.

While AB1220 will be heard July 12 in the Senate Education Committee, another high-profile education bill this year has reformers concerned. It would ban for-profit charter schools, beginning in 2019. Backers argue that it’s a misuse of tax dollars to fund charters that have the goal of maximizing profits. Opponents argue the bill is part of a broader attack on charter schools and note that for-profit online charters provide needed services for a small segment of students with special needs or who are bullied in traditional schools.

There are other education measures that are still alive in the Legislature. As EdSource explained, they would “require more accounting for spending under the Local Control Funding Formula, mandate a later start time for middle and high schools and further restrict student suspensions.” But the teacher tenure and for-profit charter measures promise to be the most contentious matters for this legislative session, and the ones most important to track.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Under the law, each school district was supposed to adopt a Local Control and Accountability Plan (LCAP) to ensure English-learners and foster children were getting the extra help that Brown and lawmakers promised. These plans outline district priorities and relate them to funding decisions.

Three years later, California education reform groups increasingly question how the LCFF is working out. They cite little evidence of more resources going to struggling students and many instances of extra dollars going into general school district budgets, with the blessing of Superintendent of Public Instruction Tom Torlakson.

This frustration led to the unusual decision last week of three reform groups — Public Advocates, Education Trust-West and Californians Together — to simultaneously issue studies that question how local LCAPs are being implemented.

Difficult to impossible to determine progress

EdSource has a roundup of their concerns:

Districts are not providing the level of transparency promised in exchange for increased spending flexibility,” wrote Public Advocates, a nonprofit law firm that has threatened to sue the West Contra Costa Unified School District for failing to disclose how it planned to spend millions of dollars on high-needs students. “Most districts are missing the opportunity to use the LCAP as a comprehensive planning tool for continuous improvement.”

“The usefulness of the LCAP as a means of accountability is compromised by the difficulty in gleaning a sense of coherence and what the plan actually entails,” Californians Together, a coalition of parent, professional and civil rights organizations focused on the needs of English language learners, wrote in a report, published this month, analyzing LCAP plans to improve services for English learners.

The reports, which follow similar analyses last year, studied several dozen LCAPs for the current school year from large and small, urban and rural districts. Public Advocates’ report, released Wednesday, can be found here. Education Trust-West’s report is here.

All three reports made the same overall criticisms: that it is often difficult, if not impossible, to find out how much some districts are spending on high-needs students; to track the expenditures over time; and to find a justification or rationale for districts’ spending decisions.

Brown won’t second-guess local funding decisions

Part of the reason for the frustration of reform groups isn’t related to problems implementing the Local Control Funding Formula at the district level. It’s with Gov. Brown, whose appointees on the State Board of Education sided with Torlakson on the question of whether the funds could be used for teacher raises and other broad district expenses.

At the 2013 signing ceremony for LCFF, Brown depicted the law as reflecting a historic new commitment to helping English-language learners. But of late, Brown administration officials have emphasized the “local control” aspect of the law — not the promises that more direct help would be given to the 1.4 million students who struggle with English in state public schools.

In a January 2015 telephone interview with editorial writers after unveiling his proposed 2015-16 budget. the governor said he would look into complaints that funds were going to teacher raises, not English-language learners.

But a year later, his aides took a sharply different position. In a January telephone interview with editorial writers after the governor unveiled his proposed 2016-17 budget, state Finance Director Michael Cohen said LCFF was meant to empower officials at local districts to make their own decisions. If they considered teacher raises a priority, the Brown administration had no issues with that, Cohen said.

The reform groups will present their critical findings about the law’s implementation to the State Board of Education at a meeting in May. The board is expected to try to fine-tune LCAP rules to make them easier to comply with and complete.

State Board of Education President Michael Kirst acknowledged local concerns about how unwieldy the process had become as a February state Senate hearing. But that hearing didn’t focus on the larger question of whether the LCFF’s initial goal of directly helping English-language learners and foster children was actually driving decisions at the district level.

Children entering charter schools in Los Angeles already outperform peers who attend traditional public schools, then pull ahead even a bit more, especially those attending charter middle schools … .

 

Pupils who enter charter elementary or high schools displayed significantly higher test scores, relative to counterparts entering traditional public schools at the same grade levels, the report said. Elementary students in charter schools benefit from slightly steeper learning curves, relative to peers remaining in conventional schools, researchers said. Charter high schools were no more or less effective than traditional schools in boosting student performance.

 

Charter schools, while publicly funded, operate independently of many state requirements and the administration of the Los Angeles Unified School District. Some 274 charter schools operate in L.A. Unified this fall, more than any school district nationwide.

 

The four-year study of 66,000 students at charter schools in Los Angeles Unified — one of the largest research projects yet on charters — offers generally positive news about their quality of education.

The $490 million ‘Great Public Schools Now Initiative’

The study is sure to be invoked by Broad and others unhappy with the quality of education in the nation’s second-largest district. In September, the Los Angeles Times obtained a copy of a 44-page report prepared for Broad called “The Great Public Schools Now Initiative” that corroborated earlier stories that Broad hoped to increase from 16 percent to 50 percent the number of L.A. Unified students in charters, which would require the creation of an estimated 260 new schools. A key passage in the executive summary:

The opportunity is ripe for a significant expansion of high-quality charter schools in Los Angeles. Thanks to the strength of its charter leaders and teachers, as well as its widespread civic and philanthropic support, Los Angeles is uniquely positioned to create the largest, highest-performing charter sector in the nation. Such an exemplar would serve as a model for all large cities to follow.

According to the Times account, the report cited …

… numerous foundations and individuals who could be tapped to raise money, including the Bill and Melinda Gates, Bloomberg, Annenberg and Hewlett organizations. Among the individuals cited as potential targets for fundraising were Eli Broad, Irvine Co. head Donald Bren, former entertainment mogul David Geffen and Tesla’s Elon Musk.

 

It also suggested a strategy of grassroots organizing and civic engagement designed to generate more interest among parents in charter schools.

UTLA, CTA gear up for public-relations war

The California Teachers Association and its largest chapter, United Teachers Los Angeles, are ramping up for the challenge. The UTLA has already launched a picketing campaign against the plan. At a November rally, CTA President Eric Heins said, “We are here to say to Eli Broad and to Walmart that our schools are not for sale. … The 325,000 members of the California Teachers Association stand arm in arm with UTLA and with CFT to say no to Eli Broad, to say no to Walmart, and to help build the schools that all L.A. students deserve.”

The CTA has won support from Diana Ravitch, a high-profile education reformer and author who’s made an odyssey from harsh union critic to someone who agrees with the union claim that there is something unsavory, corporate and ominous about a school reform movement organized by billionaires. That’s how she characterized Broad’s effort on her website.

“Will the [LAUSD] board go along with Eli’s silent coup or will they choose someone to represent the public interest?” Ravitch wrote.

Broad’s defenders describe his school reform ideas as very comparable to President Obama and his push for school and teacher accountability. But the nation’s two largest teachers unions, the National Education Association (which counts the CTA as its biggest affiliate) and the American Federation of Teachers (the California Federation of Teachers is its biggest affiliate), reject that comparison.

Obama’s recent decision to sign the Every Student Succeeds Act, a national education framework replacing 2002’s No Child Left Behind law, would appear to back up the NEA’s and AFT’s view. It pulls back sharply from federal accountability requirements imposed on states and individual school districts.

The new law swept to bipartisan passage because of an unusual coalition of Democrats who joined teacher unions in saying too much class time was being spent on testing and Republicans who said Congress should not be a “national school board,” in the phrase of Tennessee Sen. Lamar Alexander, a former secretary of education.

However, the Legislative Analyst’s Office surveyed 50 school districts around the state, including the 11 largest, and warned in a January report that not one had proper safeguards to prevent diversion of funds. In Los Angeles Unified, among other districts, the local teachers’ union last summer pointed specifically to new, incoming LCFF dollars as a kitty to tap for pay raises.

In coming months, this issue is likely to emerge as a point of contention in Sacramento because of concerns raised by the California Legislative Black Caucus about State Board of Education rules governing how LCFF funds are used. Here are three of the caucus’ main points:

— Any authority for the use of supplemental or concentration grants to schoolwide and districtwide expenditures must clearly link the services to demonstrated effectiveness in increasing student achievement and closing achievement gaps, and demonstrate that the expenditures are proven effective for “concentrations” of unduplicated children in schools in the district where concentrations exist.

— The terms “most effective” or “effective” should be defined, and at a minimum be tied to demonstrated effectiveness in meeting the “student achievement” goal and closing any persistent achievement gaps or deficiencies as it relates to the unduplicated students, and not just a generic reference to the state priority areas.

— The proposed regulations also do not provide the Board or county superintendents clear standards by which districts must explicitly demonstrate or explain, at a minimum, how expenditures of supplement and concentration grant funds will support services that will actually improve the academic achievement of unduplicated students or close persistent academic achievement gaps.

These concerns are from Assemblywoman Shirley Weber’s remarks to the State Board of Education at its Jan. 16 meeting on behalf of the Black Caucus.

Dan Walters wrote a Feb. 26 column in the Sacramento Bee noting that a “broad coalition of civil rights and education reform groups” had expressed worry about the LCFF not being implemented according to the goals cited in 2013 upon its passage. But this effort seems likely to be much stronger with the aid of state lawmakers.

The Black Caucus has 12 members — Weber, Reginald Byron Jones-Sawyer Sr., Sebastian Ridley-Thomas, Cheryl R. Brown, Autumn Burke, Jim Cooper, Mike Gipson, Christopher Holden, Kevin McCarty and Tony Thurmond in the Assembly, and Isadore Hall III and Holly J. Mitchell in the Senate.