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Act III of Act 1 Fight Ends: Time to Prepare a Backup Plan

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The Honorable Michael “Double-Down” Caldwell

The Honorable Michael “Double-Down” Caldwell

On Wednesday, District Court Judge Michael Caldwell doubled-down on his decision from March of last year and once again declared Act 1 [see full-text below] unconstitutional. In May, the Louisiana Supreme Court vacated Caldwell’s original decision and remanded the case back to the 19th Judicial District Court for reconsideration in light of subsequent case law. Nevertheless, Caldwell apparently didn’t get the hint and instead reiterated his belief that Act 1 violates the “single object requirement” of the state constitution that prohibits the legislature from passing bills with more than one aim or purpose.

Signed into law by Governor Bobby Jindal in 2012, Act 1 establishes performance objectives for local superintendents, limits the meddling of local school boards in personnel decisions, and prohibits districts from using seniority as the primary factor in reduction-in-force decisions. In addition, Act 1 sets a much higher bar for teachers to meet in order to receive tenure, which in most cases guarantees teachers a job for life. Since the law would effectively preclude these employment policies from collective bargaining, it has been vigorously opposed from the start by the state’s teachers unions, including the Louisiana Federation of Teachers (LFT), who brought the original lawsuit challenging the constitutionality of Act 1 [see LFT’s original petition below].

While LFT President Steve Monaghan declared, "We came to court out of respect for the constitution," their legal fight is also an attempt to salvage the union's relevance.

While LFT President Steve Monaghan declared, “we came to court out of respect for the constitution,” their legal fight is also an attempt to salvage the union’s relevance.

While LFT President Steve Monaghan has portrayed the lawsuit as a crusade in defense of the state’s constitution and the union is using last week’s victory in an effort to rally the rank-and-file, one could also interpret LFT’s ongoing legal challenge as a sign of weakness. Louisiana’s embrace of education reform policies over the past two decades has resulted in a steady erosion of LFT’s influence in Baton Rouge. Not only do reform supporters have a solid majority on the Board of Elementary and Secondary Education, but LFT’s attempts to push their agenda in the legislature – including an effort to derail the provisions of Act 1 during the 2013 legislative session – have ended in failure. Thus, in a sense, the courts are one of the few venues where LFT can still hope to prevail – and on Wednesday at least, they did.

Regardless, the final act in the battle over Act 1 has yet to be written. Governor Jindal almost immediately responded to Wednesday’s decision with a promise to appeal, saying:

“These reforms are constitutional and will help improve Louisiana schools for children and families across the state. The law rewards effective teachers for their hard work and ensures that we have a great teacher in the classroom so that our children have the opportunity succeed.”

Jindal’s determination to continue the fight means the case will again head back to the Louisiana Supreme Court, although it could be several months before the justices issue a final ruling. In meantime, as State Superintendent John White reminded reporters on Wednesday afternoon, “The law remains in effect. It is the law of our state until such time as the Supreme Court says it is not.”

The Justices of the Louisiana Supreme Court, who will once again consider the state's appeal of Caldwell's ruling on Act 1, awkwardly realize they all wore the same outfit to work.

The Justices of the Louisiana Supreme Court, who will once again consider the state’s appeal of Caldwell’s ruling on Act 1, awkwardly realize they all wore the same outfit to work.

Although there is good reason to believe that the state will prevail before the Supreme Court – as Jindal noted: “I’m no lawyer, but if the Supreme Court tells you to reconsider, I think they’re sending you a pretty strong message” – obviously, the ultimate outcome of the case is anything but certain. Therefore, it would seem wise for the Jindal Administration to take steps to hedge its bets. During last year’s legislative session, pro-reform lawmakers in fact readied a so-called “backup plan,” filing three bills that when taken together, were identical to Act 1 (all three were eventually deferred in committee).

For the time being, however, officials have dismissed the possibility of legislative action until the appeals process is exhausted. As House Education Committee Chairman Steve Carter (R-Baton Rouge) told the Times-Picayune, “Why would we want to tinker with something that’s the law, now that the appeals process hasn’t run its due course?” His counterpart in the Senate, Conrad Appel (R-Metairie) agreed, adding, “We don’t believe there’s a violation of law…I would hope the Supreme Court would take it up quickly and rule quickly.”

House Education Committee Chair Steve Carter (right) and his Senate counterpart, Conrad Appel, want to let the appeals process play out.

House Education Committee Chair Steve Carter (left) and his Senate counterpart, Conrad Appel, want to let the appeals process play out.

The reticence to pursue a legislative workaround is no doubt a tacit recognition that the political winds have shifted since 2012, as the troubling case of House Bill 160 clearly demonstrated last spring. Moreover, LFT President Steve Monaghan has made it clear that the union will fight any attempt to reintroduce the elements of Act 1 during the upcoming legislative session:

“No matter how this case is ultimately decided, the legislature will have to revisit the whole concept of education reform. We hope they will not try to pass the repugnant sections of this act as individual pieces of legislation.”

Nevertheless, given the fact that an adverse ruling by the Supreme Court could effectively derail state’s entire education reform agenda, perhaps policymakers need to reconsider their strategy. At the very least, a contingency plan needs to be prepared that could be quickly put into action should the high court strike down the law in whole or in part. In the meantime, reform supporters need to send a clear message to our elected officials ahead of the 2014 Regular Session that Louisiana cannot turn back on the progress we’ve made in public education.

Post-Script (1/13/14): The Times-Picayune reports that the Louisiana Supreme Court vacated a smaller case out of Ouachita Parish regarding Act 1 – read more here

Pete became involved in education reform as a 2002 Teach For America corps member in New Orleans Public Schools and has worked in various capacities at Teach For America, KIPP, TNTP, and the Recovery School District. As a consultant, he developed teacher evaluation systems and served as a strategic advisor to school district leaders in Cleveland, Nashville, Chattanooga, and Jefferson Parish, Louisiana. He now writes about education policy and politics and lives in New Orleans.

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A Victory For Pettiness Over Progress Why Did The Governor Veto A Common Sense Education Bill?

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On Friday, Louisiana lawmakers voted to cancel a veto session to override Governor John Bel Edwards’ rejection of a number of bills passed by the legislature during this year’s regular session. The move was expected even though many Republican legislators accused the Governor of using his veto power to punish lawmakers who have consistently opposed his agenda.

Although the Governor’s line-item vetoes of construction projects in the state budget aroused the most controversy, the press largely overlooked his rejection of House Bill 568, a proposal from State Rep. Nancy Landry which would have revised the state’s student data privacy law.

Some background on H.B. 568

The story of House Bill 568 has its origins in a conversation I had last spring with a friend who works at the Center for Research on Education Outcomes (CREDO) at Stanford University. For years, CREDO has produced highly regarded studies on the effectiveness of the state’s charter schools using data provided by the Louisiana Department of Education (LDOE). However, in 2015, LDOE officials informed CREDO they could no longer provide access to that information due to changes in the state’s student data privacy law, passed by the legislature in 2014, which prohibited the department from sharing data with research institutions outside of Louisiana.

The Center for Research on Education Outcomes (CREDO) at Stanford has published highly regarded studies on the effectiveness of charter schools.

Without access to student performance data, CREDO’s research on Louisiana’s charter schools would grind to a halt and education policymakers would lose an objective, in-depth assessment of the health of the state’s charter sector. Moreover, the refusal to share data with out-of-state researchers would mean that Louisiana’s influence on the national education policy debate would be significantly diminished.

Seeking to avoid that outcome, my friend at CREDO reached out to see if I had any ideas on how they should proceed. I connected her with State Rep. Nancy Landry, who serves as chair of the House Education Committee, to explain the situation and see if she could help. Their subsequent discussions resulted in H.B. 568, which Landry filed during this year’s regular legislative session.

State Rep. Nancy Landry (R – Lafayette), is chair of House Education Committee and has clashed with the Governor over education policy.

The bill sought to carve out an exception to the overly broad changes lawmakers made in 2014 by allowing data to be shared (in accordance with standard data privacy protection procedures) with researchers at any college or university in the United States accredited and recognized by the U.S. Department of Education. In short, H.B. 568 was limited in scope and non-controversial, as evidenced by the fact that it passed by large margins in both the House (95-3) and Senate (27-7).


Read more about how researchers use student data:

Student data privacy and education research must be balanced

Last week, the U.S. House Committee on Education and the Workforce held a hearing on data privacy protections for students. Michael Hansen highlights the gravity of the debate around how Congress will update the Family Educational Rights and Privacy Act (FERPA) for use in the modern age where big data is king.


So what’s with the veto?

Which brings us to the question of why Governor Edwards vetoed the legislation, especially when it had broad bipartisan support. Let’s start with the “official” rationale provided by the Governor in his veto message:

“The legislation requires LDOE to enter into a memorandum of understanding in which the person conducting such academic research agrees to be civilly liable for any fine imposed as a violation of authorized uses of the student information. Under current law, a person who violates authorized uses of the student information is subject to both criminal and civil penalties. House Bill 568 references civil penalties only relative to the memorandum of understanding. However, it does not create an exception to the criminal liability provisions in current law. Because of these drafting concerns, I have vetoed House Bill 568.”

The contention that the Governor felt compelled to veto the bill over a technicality – i.e., it didn’t create an explicit exception to the criminal liability provision in the current law – is unconvincing. Even though H.B. 568 didn’t specifically address criminal liability, it’s not at all clear that it necessarily needed to do so. In any case, from a practical standpoint, it is highly unlikely that a prosecutor would pursue a misdemeanor conviction – as opposed to a civil fine – against an employee of an out-of-state research institution. In fact, to my knowledge, no one has ever faced criminal charges in Louisiana for violating the state’s student data privacy law. It’s also worth noting that the Governor’s Office never raised this concern as H.B. 568 was winding its way through the legislature and could have been amended.

The Governor’s Office never raised concerns about H.B. 568 as it was making its way through the legislature.

When taken together, the facts suggest that the decision to veto House Bill 568 had little to do with the content of the legislation and more to do with its author. Rep. Landry has clashed with the Governor repeatedly over education policy in recent years and several of the Governor’s school-related proposals have died in the House Education Committee, which Landry chairs. Although Edwards would not be the first governor to use his veto pen to punish lawmakers who opposed his agenda, it makes no sense to apply it to a bill as innocuous and apolitical as H.B. 568, especially seeing that Rep. Landry had nothing to gain by sponsoring the legislation.

Nevertheless, Governor Edwards did just that. Thanks to his veto, Louisiana’s overly broad and mind-numbingly parochial student data privacy law remains in force. Out-of-state academics who want to study our public schools will be told to look elsewhere. And as a result, our public education system won’t be able to benefit from the knowledge and insights their research would provide.


Read House Bill 568:


Read the Governor’s Veto Message:

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All About The Kids? Calcasieu Teacher Plays Politics At The Expense Of Students, Taxpayers

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For more than a year, Calcasieu Parish special education teacher Ganey Arsement has been on a self-appointed crusade against education reform in Louisiana. He has blasted charters, standardized testing, Common Core, teacher evaluation, and yours truly on his blog, as well as on social media. He has worked to coordinate his attacks with the state’s teachers unions, particularly the Louisiana Association of Educators, and has sought to ingratiate himself with anti-reform politicians like Gov. John Bel Edwards and former State Rep. Brett Geymann.

Arsement with Gov. John Bel Edwards and former State Rep. Brett Geymann.

Arsement has also become an increasingly visible presence in Baton Rouge, where he has spent untold hours attending meetings of the Board of Elementary and Secondary Education (BESE) and lobbying in the hallways of the State Capitol. In recent months, Arsement has turned his guns on State Superintendent of Education John White – the bête noire of Louisiana’s reform opponents – whom he wants replaced. After failing to convince legislators that the law required them to reconfirm White (who has been on a month-to-month contract since the beginning of 2016), Arsement filed a petition in state court late last month that seeks to remove him from office.

Through it all, Arsement has portrayed himself as a selfless defender of public education who is fighting the nefarious schemes of greedy “corporate” reformers. However, a closer examination reveals that his political adventures have instead come at the expense of students and taxpayers.

Unethical and possibly worse

Official attendance records provided to me by Calcasieu Parish Schools Superintendent Karl Bruchhaus show that Arsement missed 16.5 days of work – more than three weeks of school – over the course of the 2016-17 school year.

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Arsement's absences and Calcasieu Parish School Board holidays.

According to Bruchhaus, all but one of these days (May 9, 2017) were recorded as sick leave. State law permits teachers to take two days of personal leave per year without loss of pay. The law also allows teachers to take ten days of sick leave per year due to illness or other emergencies without loss of pay. Unused sick leave can be carried over from one year to the next.

In Arsement’s case, it is clear that he took paid sick leave on many days when he was actually playing politics in Baton Rouge. Moreover, you don’t have to take my word for it, as he admits as much several times on his blog. Here are just a few examples…

What this means is that Arsement was off doing political advocacy while his special needs students were left with a substitute (who also had to be paid) and taxpayers foot the bill. I would venture to guess that most people would find that unacceptable, especially the parents of his students.

Missing absences?

If that’s not bad enough, I’ve also identified at least one day – and possibly two days – where his attendance record says he was working, but he was actually in Baton Rouge.

Several sources have confirmed that Arsement was at the Capitol during school hours on May 2nd. Nevertheless, his attendance record does not mark him absent on that date. Why that absence is missing is unclear, but since teachers verify their timesheets, the error should have been corrected.

The second day in question is May 8th when, by his own admission, he proudly delivered a petition calling for the removal of John White to the office of Senate President John Alario. Although he does not indicate when he made that delivery, one assumes he didn’t hop in his car immediately when school ended at 3:10pm to drive two hours to Baton Rouge to drop it off. In any case, Arsement is not marked absent on May 8th, either.

Exactly why reform is needed

When Arsement claims education reform supporters “demonize” teachers, what he means is that they actually expect teachers to do the work they’re paid to do. While this may seem draconian to someone who can apparently skip entire days of work and get away with it, this is not a radical concept to most of us. When taxpayers hand over their hard-earned money to pay for public education, they expect teachers to teach. When parents send their children off to school, they expect their kids will actually spend the day learning. When Arsement instead takes a bunch of sick days to lobby lawmakers for lower standards and less accountability, he’s breaking that social contract and possibly the law. Worst of all, he’s doing a tremendous disservice to the young people in his classroom – kids who need the most help.

In his effort to rollback Louisiana’s education reform policies, Arsement has inadvertently provided a real-life illustration of why they are so desperately needed. For that at least, I thank him.

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