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The California Department of Education has threatened to sue two prominent Stanford University education professors to prevent them from testifying in a lawsuit against the department — actions the American Civil Liberties Union of Southern California calls an attempt to muzzle them.
The ACLU, in turn, is threatening a lawsuit of its own — against CDE for infringing their and other researchers’ First Amendment rights.
Observers say the dispute has the potential to limit who conducts education research in California and what they are able to study because CDE controls the sharing of data that is not available to the public.
At issue is a restriction that CDE requires researchers to sign as a condition for their gaining access to nonpublic K-12 data. The clause, which CDE is interpreting broadly, prohibits the researcher from participating in any litigation against the department, even in cases unrelated to the research they were doing through CDE.
“It keeps education researchers from weighing in on the side of parties who are adverse to the California Department of Education. So it’s really skewing the information and expertise that can come into courts,” said Alyssa Morones, an ACLU attorney involved with the case. “Individuals and students seeking to vindicate their rights no longer will have access to these education experts, and the court can no longer hear what they have to say.”
Professors Sean Reardon and Thomas Dee had signed separate and unrelated data-partnership agreements with the department, and both were asked by attorneys in an ongoing lawsuit, Cayla J. v. State of California, to testify on behalf of students filing the case. The lawsuit, against the California Department of Education, the State Board of Education and State Superintendent of Public Instruction Tony Thurmond, charges the state with failing to prevent the deep learning loss imposed by the pandemic on low-income students and other high-needs students.
Reardon, who had co-authored landmark nationwide research on pandemic learning, said he would have considered providing expert testimony. But warned this month by CDE that he’d be breaching his contract, Reardon declined — even though his learning loss research did not involve the data obtained through his agreement with CDE.
Dee, a professor at the Graduate School of Education at Stanford, agreed to serve as an expert witness for the plaintiffs in the Cayla J. case on the effects of Covid-19 on enrollment, chronic absenteeism and student engagement in California. This month, he was one of a half-dozen nationally prominent education professors who filed briefs in the case.
In it, Dee cited data on enrollment declines and chronic absenteeism. He concluded, “Because of both its comprehensive data systems and its powerful fiscal and operational capacities, the state of California is in a unique position to provide leadership in better understanding and meeting the serious challenges of academic recovery. However, to date, the state has not clearly demonstrated such leadership, instead emphasizing responses by local school districts.”
CDE moved against Dee even though the data contract he had signed on behalf of a Stanford program was for research unrelated to the Cayla J. case.
On Feb.24, after CDE discovered that Dee had filed the brief, the department warned Dee that he had violated the contract he had signed in February 2022 as the chief investigator for the John W. Gardner Center for Youth and Their Communities at Stanford. As a result, the letter said, CDE was suspending the data partnership and demanding that Dee “mitigate further damage.” The department would consider seeking an injunction to prevent him from participating in the Cayla J. case along with a $50,000 fine.
“Also, be aware,” wrote Cindy Kazanis, the director of CDE’s Analysis, Measurement, and Accountability Reporting Division, “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.” The letter was copied to Stanford.
The contract that Dee signed with CDE is to examine how the California School Dashboard was affecting alternative schools serving those at risk of dropping out and those with motivation and behavior issues. He said he signed the contract in his capacity as faculty director of the Gardner Center, but had not actually looked at any of the data.
Dee said he relied on publicly available data in writing his brief for the Cayla J. case. He declined to comment further on the case.
The dispute is now in the courts. The plaintiffs’ attorneys in Cayla J., the public interest law firm Public Counsel and Morrison Foerster, a San Francisco-based law firm doing pro bono work, are asking a Superior Court judge to allow Dee’s participation in this case and protect him from CDE’s penalties — but only in this particular lawsuit. A hearing is scheduled early next week in Alameda Superior Court.
The ACLU filed a brief on Feb. 27 supporting Dee’s participation in the Cayla J. case. But meanwhile, it took the first steps toward a larger lawsuit to eliminate CDE’s litigation prohibition.
Michael Jacobs, an attorney with Morrison Foerster, said he was disappointed that the state would attempt to block education experts from giving their expertise. “The futures of the least advantaged schoolchildren in California are at issue. The data these experts utilized are all public.”
“What are state officials afraid of?” Jacobs said. “That their performance in running the school system during the pandemic in fact aggravated the achievement gap? That notwithstanding their protestations, they haven’t done enough to address that problem?”
CDE declined to comment on the need for the litigation ban in data contracts or its threats and actions against Dee or Reardon. Researchers told EdSource they were unaware of similar prohibitions in other states, but EdSource could not verify that.
In a July 7 letter, the ACLU gave the department 10 days to expunge the restriction from all contracts with researchers. In a one-sentence defense a week later, Len Garfinkel, general counsel for CDE, stated, “In our view, the Department’s data protection agreements are compliant with law.”
ACLU hasn’t revealed when it might take its next step.
ACLU’s focus was a separate five-year research contract that the department signed in 2018 and updated in 2020 with the Learning Policy Institute, a Palo Alto-based nonprofit education research organization.
The next-to-the-last clause in the 11-page document, titled “Interests adverse to the California Department of Education,” states that as long as the contract is in effect, “LPI’s employees, executives, and other representatives shall not voluntarily testify for, consult with, or advise a party in conjunction with any mediation, arbitration, litigation, or other similar legal proceeding where LPI knows that party is adverse to the CDE, the State Superintendent of Public Instruction or the State Board of Education.”
In addition, if anyone covered by the contract does become involved in litigation, CDE can immediately revoke the contract and demand all the data be returned or destroyed. LPI and signers of the agreement would be subject to a fine. That’s the same wording as in Dee’s contract through the Gardner Center.
Reardon, professor of poverty and inequality in education at the Stanford Graduate School of Education as well as a senior research fellow at LPI, signed that contract, along with 15 others, mainly LPI employees and researchers. Signing as the principal investigator was Linda Darling-Hammond, LPI’s president and CEO. She also is the president of the state board and an adviser to Gov. Gavin Newsom. She signed the original agreement a year before Newsom nominated her to the state board.
The ACLU, acting on its own, asserted the provision is clearly unconstitutional. A government can set restrictions for granting access to nonpublic data for research purposes, but not to limit a researcher’s First Amendment right of free speech, it said in its nine-page letter to the department.
What’s “even ‘more blatant and more egregious,’” the ACLU wrote, citing a 2015 U.S. Supreme Court decision, is the department’s “viewpoint discrimination.” The contract doesn’t ban an education researcher from testifying for the department in a lawsuit; it just can’t testify against it.
“Viewpoint discrimination is poison to a free society,” U.S. Supreme Court Justice Samuel Alito wrote in a different high court opinion in a 2019 case that the ACLU also cited in its letter.
Morones, who wrote the ACLU letter, said the prohibition is far more broad than the government needs to protect its data. As shown by the department’s response in the Cayla J. lawsuit, the department could apply the provision to thwart LPI and anyone who signed the contract from participating in any litigation against the department, the state board and the state superintendent, Thurmond, she said.
The Education Recovery Scorecard, the learning loss research that Reardon co-authored, relies on publicly available data from California and 39 other states, and, Reardon said, does not use any data provided to the LPI for its research project. Reardon’s project with LPI is focused on the pre-pandemic success of English learners in California from 2006 to 2019.
Researchers seek agreements with the department to access nonpublic data, especially student-level data that detail the demographic information and the performance records over time of California’s 5.8 million students but without any names or identifying information. That data is the gold standard for accurate research. A partnership contract details the department’s commitments and researchers’ responsibilities, including strong assurances they will have security protections in place to protect students’ privacy and anonymity.
The dispute does not involve the disclosure of any student-level information.
Maria Clayton, the director of communications for CDE, said the agreement “is standard language that CDE has used for years in these types of data-sharing agreements.”
Reardon said in an email, “It’s perfectly appropriate – even necessary – that CDE or any state agency ensure student privacy and factual correctness when the state’s data is used by external researchers. It is unclear to me, however, how restricting researchers’ freedom to testify in a lawsuit, even an unrelated one, serves the interests of California’s students.”
“The restriction does not make research better,” he added, “and does nothing that I can see to protect student privacy. It may limit which researchers are willing or able to work with the state, leaving the state without access to some of the best researchers; and it may limit the effectiveness of litigation that might benefit California’s students.”
The contract does not impose any restrictions on researchers’ ability to independently report what they learn from the data.
Patrick Shields, the executive director of LPI, said the department doesn’t interfere in how researchers report on their findings. And since LPI is a research organization that does not engage in litigation, it is not affected by the restriction not to testify against the state.
“We don’t feel restrictions on portraying data as it is. There have been no internal discussions (with the department) that we can’t say this or that,” he said.
But researchers seek access to analyze data without knowing what they will discover. LPI’s contract with the department, which it calls the California Equity Project, covers a range of topics that have already generated and will produce dozens of studies on teacher shortages, teacher and administrator professional development, homeless students, English learners, foster youths and K-12 achievement and funding gaps.
Studies using a wide swath of data could lead to legislation, or it could also prompt advocacy organizations like Public Counsel and the ACLU to pursue remedies through the courts to fix flaws in state laws or address poor student performance or inequities in funding.
ACLU argues that preventing researchers from sharing their expertise with the plaintiffs would be prior restraint and deny the public a full and fair presentation of the issues.
For this and other reasons, David Plank, the retired executive of Policy Analysis for California Education or PACE, a collaborative research and policy organization based at Stanford and several other universities, said he “would never have signed a contract in which we agreed to protect the interests or reputation of the agency with which we would have signed.”
To do so, he said, would be “contrary to the fundamental norms of academic research.”
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Comments (18)
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Keith Carmona 9 months ago9 months ago
While the professors' work is admirable, it's clear there was a breech of contract. And to join a lawsuit (even as an expert witness) against the very department and state that supports (and continues to support) your work seems...precarious. As an educator, I would find another way to support the cause and bring the issue to the forefront but stop short of any litigious activism unless I would be willing to resign my position. Also … Read More
While the professors’ work is admirable, it’s clear there was a breech of contract. And to join a lawsuit (even as an expert witness) against the very department and state that supports (and continues to support) your work seems…precarious. As an educator, I would find another way to support the cause and bring the issue to the forefront but stop short of any litigious activism unless I would be willing to resign my position. Also interesting is that the ACLU has yet to decide what to do.
Beth 9 months ago9 months ago
What is happening in California?!? Get your kids out of the public schools system.
Andrew 9 months ago9 months ago
Education is a cornerstone of society, and it's crucial that policymakers and stakeholders actively engage with research to address the complex issues faced by our schools and students. I hope that California will reconsider its decision and recognize the importance of supporting education research, even when the findings might be uncomfortable or challenging. Embracing research and using it as a foundation for informed policies will lead to a brighter and more equitable future for California's … Read More
Education is a cornerstone of society, and it’s crucial that policymakers and stakeholders actively engage with research to address the complex issues faced by our schools and students. I hope that California will reconsider its decision and recognize the importance of supporting education research, even when the findings might be uncomfortable or challenging.
Embracing research and using it as a foundation for informed policies will lead to a brighter and more equitable future for California’s education system and, ultimately, its students. Let’s encourage open dialogue and the pursuit of knowledge for the greater good!
Creighton Sneetly 9 months ago9 months ago
Why does California even need a Department of Education? There are far too many people in California eating at the “education trough.” California needs to clean its education house. Abolish CDE and the US Department of Education as well. They both do nothing.
Kelley N 9 months ago9 months ago
It's painfully obvious that the CDE is more interested in the public's perception of them than actually helping the students they teach. When CDE blatantly withholds data that shines a light on their poor decisions toward students' education, which is their only job, then they're openly admitting to failing at their job. They're telling the public (and parents) that they don't care about their students and don't think that they're under any obligation to care … Read More
It’s painfully obvious that the CDE is more interested in the public’s perception of them than actually helping the students they teach. When CDE blatantly withholds data that shines a light on their poor decisions toward students’ education, which is their only job, then they’re openly admitting to failing at their job. They’re telling the public (and parents) that they don’t care about their students and don’t think that they’re under any obligation to care or do better.
Lisa Disbrow 9 months ago9 months ago
Thanks to the author for this article. As a veteran bilingual teacher, the absence of CDE accountability has undermined the actual academic success of all CA students and instilled fear of legal retaliation. It seems that favorably reporting the data is more protected than protecting the students and the truth once again.
It’s no surprise that the Newsom/Thurmond CDE opposes open examination of data. Supt Thurmond’s creative license over his actual Chino Valley conduct as recorded on video is a recent example.
JudiAU 9 months ago9 months ago
Very impressive. Thank you Edsoucrce for bringing this to our attention. Great reporting.
Dawn A Gagnon 9 months ago9 months ago
This information is vital to the future of California's students. Whether in public or private school, the data is valuable when assessing our state's overall effectiveness in educating our children. This data drives future curriculum and policy. It shows what is and is not working. If the state is afraid to share this data, I would ask them to explain exactly what they are afraid of the public learning. As an analyst and an educator, … Read More
This information is vital to the future of California’s students. Whether in public or private school, the data is valuable when assessing our state’s overall effectiveness in educating our children. This data drives future curriculum and policy. It shows what is and is not working. If the state is afraid to share this data, I would ask them to explain exactly what they are afraid of the public learning.
As an analyst and an educator, I want to be able to rely on the information we are given. As a parent, I want to be able to determine the best educational path for my child. These are not exclusive of one another. We are the wealthiest state in the nation yet we are not even in the top 10 for educating our children. We are currently ranked #40 in public education ( https://scholaroo.com/report/state-education-rankings/) according to this study.
We can and must do better, and one way to figure out how to do that, what is needed, and where it is needed, is to have access to all available Data. And as the state’s Department of Education, its leadership should know and understand the value of the data and welcome it as a way to make better choices for our students.
I am very disappointed that our educational leadership would try to oppress such valuable data and those analyzing it. Mr. Thurmond, our Superintendent of Education, will not get my vote again unless this is addressed and the lawsuit is dropped.
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John Fensterwald 9 months ago9 months ago
Thanks for writing, Dawn. To reiterate, the article did not say that CDE was trying to suppress the publication of findings from research; the issue was CDE’s broad attempt to prevent researchers from participating in any litigation against the state – CDE, the state board and the superintendent of public instruction – as a condition for any data agreement with CDE.
Dr. Bill Conrad 9 months ago9 months ago
A big thanks to the EdSource team for taking on a complex research/data issue and making it understandable. Consider a small donation.
So whatever happened to data-driven improvement? When the culture is one of self over service, there will be strong incentive to clamp down on researchers who find problems in how the state handled student support during the pandemic.
The K-12 education system works hard to protect the adults from accountability.
Protecting the children? Not so much!
Eric Premack 9 months ago9 months ago
Superb reporting on a complex set of actors, legal issues, and circumstances.
MICHAEL W RISNEY 9 months ago9 months ago
I understand individual children’s names not being released. The raw data is not private data. This is a taxpayer-funded operation and not state secret government-type stuff.
The good or bad situation in our schools should be able to be discussed publicly.
Michael Alan 9 months ago9 months ago
Looks like the CDE has succumbed to being a political pawn to cover up the mistakes of California/Newsom pandemic policies that hurt students.
Jim 9 months ago9 months ago
“Newsom devoted much of his 22-minute inaugural address to depicting California as a model of tolerance and freedom and Republican-led states as bastions of repression.”
Steve Rees 9 months ago9 months ago
The CDE threatening to sue researchers is a new low mark. But the CDE has been taking steps in the wrong direction for five years. The last year they published class-size data: 2018-19. Ditto for teacher demographics, course-taking and more. I believe the Thurmond administration is abandoning its responsibility for stewarding the data that districts have been shoveling their way via CALPADS, and acting as if the data belongs to them alone. Read my … Read More
The CDE threatening to sue researchers is a new low mark. But the CDE has been taking steps in the wrong direction for five years. The last year they published class-size data: 2018-19. Ditto for teacher demographics, course-taking and more. I believe the Thurmond administration is abandoning its responsibility for stewarding the data that districts have been shoveling their way via CALPADS, and acting as if the data belongs to them alone. Read my blog on the topic of disappearing Calif K-12 data: https://schoolwisepress.com/data-about-california-schools-vital-signs-been-vanishing/
Replies
Dr. Bill Conrad 9 months ago9 months ago
Excellent blog post. It seems as though the state is moving away from data that supports academic achievement to data that supports social-emotional learning. I agree we now have a fog of education. In fact I wrote a book about it called The Fog of Education.
Todd Maddison 9 months ago9 months ago
Great point about the lack of data. I've been attempting to get staff demographic data for two years. Multiple calls and emails to the CDE went unanswered, I even visited Sac and stopped in at the CDE headquarters - they would not let me speak to anyone. Ended up sending a certified letter to Thurmond's office and got a response. They're blaming it on issues with the CalPads software, not a deliberate attempt … Read More
Great point about the lack of data.
I’ve been attempting to get staff demographic data for two years. Multiple calls and emails to the CDE went unanswered, I even visited Sac and stopped in at the CDE headquarters – they would not let me speak to anyone.
Ended up sending a certified letter to Thurmond’s office and got a response. They’re blaming it on issues with the CalPads software, not a deliberate attempt to hide data. I guess a software problem that takes years to resolve is about par for the course in California government…
I was told they intended to go all the way back to 2019 when they are able to post the data, though…
Todd Maddison 9 months ago9 months ago
Great reporting, thanks! Seems like a pretty transparent move to, as the ACLU points out, restrict how CDE data can be used. Given that data is collected using our tax dollars, it seems pretty clear cut that it should be available for use to researchers for any purpose they see fit - even if that purpose is justifying a position or legal case in opposition to the CDE itself. I hope this can be fought to the point … Read More
Great reporting, thanks!
Seems like a pretty transparent move to, as the ACLU points out, restrict how CDE data can be used.
Given that data is collected using our tax dollars, it seems pretty clear cut that it should be available for use to researchers for any purpose they see fit – even if that purpose is justifying a position or legal case in opposition to the CDE itself.
I hope this can be fought to the point of removing those restrictions. We need more transparency and accountability in our government, not less.