California Ed Department backs down on punishing education researchers who testify against it

Photo by Carolyn Jones / EdSource

Stanford Graduate School of Education professor Thomas Dee can breathe a lot easier; so, too, can other researchers who could imagine themselves in the same conflict with the California Department of Education.

Lawyers for CDE notified Dee on Wednesday that it won’t carry out a threat to retaliate against him for providing testimony in litigation against the department. Responding to widespread condemnation that the department was violating Dee’s First Amendment rights, the state said it had dropped a controversial clause that banned him from participating in any lawsuit “adverse” to the department, as a condition for access to non-public education data. The ban would have continued as long as the contract was in effect.

A department spokesperson verified Thursday that the department had sent a letter, identical to Dee’s, to all researchers who had similar contracts with it.

“We’re glad wisdom has prevailed, and the state recognized that the provisions (in data partnership agreements) are highly problematic,” said Michael Jacobs, a partner in the San Francisco-based law firm Morrison Foerster. “We regret that it took all this legal process to protect the rights of researchers to participate in the public sphere.”

The firm had asked Brad Seligman, an Alameda County Superior Court Judge, to prevent the Education Department from taking punitive action against Dee. Seligman had scheduled a hearing on the request for next Tuesday. The department’s capitulation may make that issue moot, although Jacobs said that he hopes Seligman will clarify several points about what happens to Dee and others moving forward.

And Dee said he too would withhold final judgment until he understands all aspects of the department’s concession.

“I’m pleased the state’s decision appears to clear the way for me to testify. However, I also note that the state may still seek to enforce possibly unconstitutional restraints on other researchers who use the data they have,” he said Thursday.

“Setting those issues aside, I hope the conversation can now shift back to where it really belongs: understanding the serious challenges of California’s academic recovery from the pandemic,” he added.

Lawsuit over the impact of remote learning

In July, Dee submitted a brief for the plaintiffs in the 2020 lawsuit Cayla J. v. California, which Morrison Foerster and the public interest law firm Public Counsel filed against the state on behalf of students from Los Angeles and Oakland unified districts. It charged that policies by the California Department Education, the California State Board of Education and State Superintendent of Public Instruction Tony Thurmond during remote learning caused by Covid disproportionately harmed low-income, Latino and Black students. They then failed to act effectively to remedy the subsequent impact on learning, the suit claims.

Dee filed a brief with data on high chronic absence rates that EdSource and many other news outlets cited. The department responded that submitting the brief violated its 2021 data-sharing agreement with the John Gardner Center for Youth and their Communities at Stanford that Dee had signed as faculty adviser. The department threatened to sue Dee for $50,000 for a breach of contract and to demand that he delete data that he and the Gardner Center had obtained. The department implied the alleged violation damaged prospects for future partnerships.

“Also, be aware,” Cindy Kazanis, the director of the department’s analysis, measurement, and accountability reporting division, wrote Dee, “that your actions have adversely impacted your working relationship with CDE, and your response to this letter is critically important to existing and future collaborations between us.”

Dee expressed surprise at that response because he personally had not seen any data from the Gardner project, which was unrelated to the Cayla J. case. It involved evaluating pre-pandemic student performance at alternative high schools serving incarcerated and other at-risk students.

The department issued the same threat to another prominent Stanford University education researcher, professor Sean Reardon. He had signed a separate data partnership agreement with the department as a senior research fellow with the Learning Policy Institute, based in Palo Alto and Washington, D.C. Also signing the contract was Linda Darling-Hammond, LPI’s founder and CEO, as well as the current president of the state board and an adviser on education to Gov. Gavin Newsom.

The Learning Policy Institute contract contained the same clause against participating in any litigation against the state. The prohibition, in effect, prevented the organization’s researchers from joining a lawsuit filed against the state board, Thurmond and the department. Darling-Hammond signed the original agreement a year before Newsom nominated her to the state board.

The plaintiffs’ attorneys had asked Reardon to consider submitting a brief on the impact of the pandemic on California students’ test scores from a national study he co-authored. Just as with Dee, the brief would have contained data unrelated to what he collected through LPI’s partnership. Under pressure from the state department, Reardon declined to write the Cayla J. brief. He could be not be reached for a comment on Thursday.

Widely condemned restriction

In effect for at least five years, the litigation restriction appears to be novel, if not unique, among states. It was widely criticized by researchers and First Amendment advocates once it became known over the past month.

“It’s absolutely ridiculous for the state to be in the role of policing what academics can say in court cases; it’s antithetical to academic freedom,” Morgan Polikoff, associate professor of education at the USC Rossier School of Education, told EdSource. Laurence Tribe, a professor emeritus at Harvard University and author of an influential text on constitutional law, and Martha Minow, a professor and former dean of Harvard Law School, both signed a friend-of-the court brief asking Judge Seligman to protect Dee from the department’s retaliation.

In a Wednesday letter notifying Jorge Ruiz de Velasco, deputy director of the Gardner Center, of its decision not to enforce the litigation ban, the state’s attorney, Len Garfinkel, acknowledged the application of the restriction “may be overbroad.”

But the next paragraph warned him — and presumably researchers with other data contracts that received a similar letter — that the department would continue to enforce words elsewhere in its data agreements that “prohibit unauthorized use of data” subject to the agreement.

“These limitations still preclude recipients’ testimony in legal proceedings to the extent it relies on or uses proprietary CDE Data, including Derivatives, as defined in the standard research agreement,” the letter said.

This appears to indicate that the department would continue to consider researchers who testify in lawsuits against the state, using data that they obtained explicitly through a data partnership with CDE, to be violating the contract. In the case of LPI’s data partnership, that would cover a large swath of subjects involving 15 researchers. Called the California Equity Project, it covers topics in dozens of studies on teacher shortages, teacher and administrator professional development, homeless students, English learners, foster youth and K-12 achievement and funding gaps.

This is the concern that Dee alluded to in his statement.

Whether this piece of the ban also would violate researchers’ rights might have to be answered in future litigation. But Alyssa Morones, an ACLU of Southern California attorney also involved with the case, said she wants to make sure the department applies its interpretation uniformly. The original prohibition didn’t say researchers couldn’t testify for the department, only against it in litigation.

“We want to make sure it will be applied evenhandedly, however the state interprets it,” she said.