This fall, in a courtroom in Oakland, lawyers will reexamine the pandemic’s impact on K-12 schools in California—a subject many people might prefer to forget about but can’t because, like Covid itself, the effects are inescapable.
The state of California defends itself over accusations that it mishandled remote learning during COVID, starting in the spring of 2020, and then failed to alleviate the harm its most vulnerable children experienced then and still experience.
Alameda County Superior Court Judge Brad Seligman denied the state’s request to dismiss the case outright earlier this month. There’s no dispute that low-income students of color, in particular, had less access to remote learning during the nine-plus months they learned from home, Seligman wrote in a 12-page ruling. The question that needs answering, he said, is whether the state’s level of response is so insufficient that it violated the children’s right to an equal opportunity for an education under California’s constitution.
The case is Cayla J. v. the State of California, the State Board of Education, the California Department of Education, and State Superintendent of Public Instruction Tony Thurmond. Cayla J., a Black 8-year-old twin in third grade in Oakland when the lawsuit was filed in November 2020, is the lead of 15 unnamed student plaintiffs from Oakland and Los Angeles. The trial is scheduled to begin Nov. 13.
The plight of Cayla J. offers insight into the pandemic’s disruption of education. As her mother, Angela J., said in a declaration for the case, Cayla and her sister had remote classes only twice between March and the end of school in 2020. Their teacher told Angela J. that because some of the students in the class lacked the equipment for remote learning, classes were canceled for the other students.
In the fall of 2021, the girls were on their own every day of remote learning, except for a 45-minute video class and a half-hour small group session with peers, Angela said. She did not receive guidance from the district on how to run the platform for remote learning, she said.
Living in a one-bedroom apartment with four children, three old enough to attend Los Angeles Unified school, Maya O., a Latina, described in her April 2021 declaration how remote learning “has been very rough for my family.” The kids found it hard to concentrate in such a confined space, she said. Initially, LAUSD provided laptops that failed to work. The children competed for an overloaded internet node, communication with the school was poor, and the kids’ interest in school flagged, she said.
“There is so much that the school could and should be doing that it is not,” she said.
Both Angela J. and Maya O. turned to nonprofits — Oakland REACH and Community Coalition of South Los Angeles — for computer help, tutoring, and summer and enrichment programs to fill the vacuum created by the schools. Both organizations are also plaintiffs in the case.
In filing the lawsuit, the public interest law firm Public Counsel and the San Francisco law firm Morrison Foerster charged that the state failed to show “any meaningful strategy or execution to ensure that the disparate impacts experienced by students of color and low-income students were addressed, much less remediated.” A prominent Harvard University education researcher charged the Department of Education understated state test results that clearly showed widening disparities by race and income.
In briefs accompanying its motion to dismiss the lawsuit, the Department of Education cited its “robust and wide-ranging efforts to remediate the impact of the pandemic” and said the plaintiffs were unable to establish that a state policy “caused a disparate impact on plaintiffs because of their race or income status.”
The case took a well-publicized detour this month after the Department of Education threatened punitive action, including a $50,000 fine, against two Stanford University education professors whom Public Counsel/Morrison Foerster asked to submit briefs on behalf of Cayla J. against the summary judgment motion.
Thomas Dee and Sean Reardon had signed separate research agreements that conditioned access to the nonpublic student data on a commitment not to testify in lawsuits adverse to the department. Dee submitted his brief on the pandemic’s effects on chronic absences anyway; Reardon decided not to submit his, although other researchers cited his research, on the impact of test scores during the pandemic, in their briefs.
Faced with a public backlash and a likely ruling against it by Seligman, the department backed down last week, confirming in writing on Tuesday that it would not retaliate against Dee and not enforce the litigation restriction in Dee’s and others’ contracts.
The briefs filed by Dee and other prominent researchers, as well as declarations by top department administrators, will be key to the case, in which Seligman must weigh conflicting evidence and contrasting arguments on the extent to which the state must intervene in an unexpected crisis in education.
In agreeing that the case should move ahead, Seligman made it clear what would not be relevant at the trial. The lawsuit does not question the appropriateness of the state’s response to COVID, emergency orders to close schools or decisions over vaccinations or masking. It is not about pre-existing inequities facing Black, Latino, and poor students; it will be about whether the inequalities and gaps in learning widened.
The “narrow focus,” Seligman wrote, is the period when schools were physically closed and remote learning was the only option, and whether the state’s remediation efforts were “reasonable.”
What will also implicitly be on trial is local control.
Caught off guard
When Covid hit, and Gov. Gavin Newsom issued an emergency medical order on March 4, 2020, to close schools, most school districts were caught unprepared, and had to pivot immediately, without prior planning or enough learning devices to send home.
Initially, there was no extra state funding for this. The Legislature, expecting a recession, passed a K-12 education budget for 2020-21 with cuts contingent on state revenue. According to testimony, the state was short of devices and connectivity for between 800,000 to 1 million students, which would have cost the state $400 million to $500 million. In response, Thurmond launched an effort to persuade tech companies and internet providers to donate money and equipment. They did but only enough, Seligman noted, to raise $18 million and deliver 45,884 Chromebooks.
An unprecedented torrent of federal Covid funding for schools soon followed in late 2020 and 2021 — about $36 billion including $7.9 billion in state funding from unexpected state revenue, due to a fast economic rebound. Using the federal Title I poverty formula and the Local Control Funding Formula’s equity focus, most of the funding was directed to low-income students, English learners, and students with disabilities.
The money imposed requirements, Chris Ferguson, the head of the California Department of Education’s K-12 budget team, said in his declaration. Learning loss mitigation funds had to be spent on extending the school year, providing additional student academic services, paying for devices and connectivity, and identifying gaps in skills. Districts were to spend the $4.6 billion for Expanded Learning Opportunities grants on summer school, tutoring, and mental health services, among other goals, he said. In Senate Bill 98 which the Legislature passed in June 2020 accompanying the state budget, districts were required to consult the public in spelling out how they would use their money.
CDE officials emphasized that the department met its constitutional and statutory responsibilities, which involved setting guidelines and providing technical support for districts and charter schools that best knew their priorities.
A hands-off approach
Unlike some other states’ “top-down approaches” in distributing state and federal funding the department, said Deputy State Superintendent Malia Valla, CDE offered “tools and resources on best practices” to help local districts “meet local needs” around student mental health, learning acceleration and other efforts. The state held more than 20 webinars on remote learning and learning recovery, she said. The department and Thurmond arranged with publishers to provide free access online to millions of books during summers.
But Mark Rosenbaum, lead attorney for Public Counsel, said the state must be more than a dispensary and advisor to meet its constitutional obligations to prevent education inequality.
“The state cannot just write big checks and then say, ‘We’re not paying attention to what happens here,’” he said. “The buck stops with the state. The state’s duty is to ensure that kids get basic educational equality and that the gaps among the haves and the have-nots do not widen.”
Education experts who filed briefs with the plaintiffs said the state abdicated its responsibility, with little monitoring or accountability for their spending and their commitments in plans.
“Our decentralized school system in California, and the minimal guidance that was received from the state appears to have left many (districts) to their own devices,” wrote Lucrecia Santibañez, professor at UCLA’s School of Education & Information Studies. Because of the state’s “low-touch approach” to support and accountability, “data collection was minimal to non-existent, and monitoring of the learning and continuity plans was superficial at best.”
Senate Bill 98 established statewide standards for remote instruction with requirements for connectivity and devices for all students, minimum instructional minutes, attendance, and “daily, live interaction with certificated employees and peers.” But the state failed to monitor districts’ adherence. Oakland Unified had among the fewest live instructional minutes in the state. Both Los Angeles Unified, where students missed 205 in-person days, and Oakland, which missed 204 days, were among the last districts to return to in-person learning.
“Quality remote learning instruction, as codified in SB 98, was not delivered in an equitable fashion for many California students, especially the plaintiffs in this case,” wrote Professor Joseph Bishop, founder of the Center for Transformation of Schools, at UCLA’s School of Education and Information Studies, and Tyrone Howard, a faculty director at the center as well as the president of the American Education Research Association. Citing EdSource reporting, they wrote that half of the students in the state were still learning remotely in April 2021, and students from low‐income communities were three times less likely to have returned to in‐person instruction.
Dee’s research cited soaring chronic absenteeism during COVID, with the highest rates among low-income Black and Latino students living in communities ravaged by unemployment and the highest rates of infection. Santibañez cited the disproportionate mental and social-emotional effects of the pandemic on those students.
But a successful decision will depend on the plaintiffs’ ability to show Covid’s disproportionate impact on learning – particularly through an objective measure of test scores.
Dispute over test scores
CDE’s data for the Smarter Balanced results in English language arts and math in 2021-22, the first post-Covid results, showed roughly similar drops of between five and seven percentage points between low-income and non-low-income students and among white, Black, and Latino students, with the highest declines in math.
“A difference of one or two percentage points is not significant given the large size of the data set,” Mao Vang, the director of CDE’s Assessment Development and Administration Division, said in her declaration. The similar declines suggest that the achievement gap did not widen during the pandemic, as measured by the percentages of students meeting and exceeding standards.”
EdSource and other news sources and education groups relied on the state’s methodology in reporting the test results.
But in a biting rebuttal, Harvard University Education Professor Andrew Ho, a nationally respected psychometrician, accused the state of choosing “a biased calculation of achievement gaps that leads to an incorrect conclusion that achievement gaps have stayed the same through the pandemic.”
Instead of comparing the percentages of student groups that met a single pre- and post-pandemic target – scoring at or above meeting standards from one year to the next– the state should have compared individual students’ losses and gains in scale points, a more refined measure that other states use. Using that methodology, Ho wrote, “California test scores show that racial inequality increased in almost all subjects and grades. Economic inequality also increased
Ho wrote that he was “disappointed that the state has the ability to conduct these state-level longitudinal analyses but does not report them widely” nor do district analyses so that parents and teachers can understand the depth of the pandemic’s impact.
“In my review of transcripts from depositions of state officials, I find numerous responses that indicate to me a lack of awareness of or interest in data that could enable accurate estimates of academic learning loss,” he wrote.
He took issue with Chief Deputy Superintendent Mary Nicely’s statement that she was not aware of research that estimates learning loss in California and thinks that “it would be hard even for researchers to come to any conclusions.”
“As I have shown and other researchers have demonstrated, estimating academic learning loss is, in fact, possible from California’s available data,” Ho said.
As with the other experts, Ho called for more action by the department and state officials. “The state should recognize this as the educational emergency that it is and rise to meet this challenge armed with all appropriate data and support: Substantial and growing proportions of California students are not on track.”
This story was produced and originally published by EdSource.