Doesn't pass the sniff test - Part 2

In our prior post on the California Dept. of Education's policy with regard to researchers' access to its data, we noted a bad smell. We also noted State Superintendent of Education Thurmond has some responsibility for the policy and that blog readers might want to keep that in mind if his name appears on future ballots. (He will be termed out.) 

You can now add Attorney General Bonta to that list. See below. And, as the item below notes, the governor has yet to clarify his position. From EdSource:

Critics pan state's justification for threatening Stanford education professor over breach of data contract

8-7-23  John Fensterwald

In its first public statement on the issue, the California Department of Education last week defended its right to pursue a breach of a data partnership agreement against a Stanford University education professor for participating in a lawsuit against it. CDE’s rationale failed to persuade numerous critics and attorneys who are challenging the agency’s action in court; they say the department’s defense ignored the harm to the public by restricting independent researchers’ use of state data.

“It seems pretty clear that a state agency here is trying to hold public data hostage to coercive demands on researchers’ free speech rights,” said John Affeldt, managing attorney for Public Advocates. This public interest law firm has filed successful lawsuits against CDE over several decades including the landmark Williams case, which guarantees that low-income schools are equipped with adequate facilities, sufficient textbooks and well-trained teachers. 

CDE has threatened to fine Thomas Dee, a prominent education researcher, up to $50,000 and to seek other sanctions against him and potentially the John Gardner Center for Youth and Their Communities at Stanford, where Dee is a faculty adviser. The conflict was the subject of legal wrangling last week in Alameda County Superior Court. 

The department is alleging Dee violated a data partnership contract by filing a brief for the plaintiffs in an unrelated lawsuit, Cayla J. v. CDE, the State Board of Education and State Superintendent of Public Instruction Tony Thurmond. The lawsuit contends the state and its leaders collectively mismanaged remote learning during Covid, disproportionately harming the state’s neediest students. Dee’s brief, documenting dramatic student enrollment declines in California during the pandemic, used public data that was widely reported, including by EdSource.

The nonprofit law firm Public Counsel and the San Francisco law firm Morrison Foerster, representing the plaintiffs, are seeking a judge’s order protecting Dee from CDE’s reprisal. They argue that the department’s standard contract restriction that bans researchers who signed a data partnership contract from participating in lawsuits “adverse to CDE” violates researchers’ free speech rights. And, by denying Cayla J. and other student plaintiffs the ability to hear expert testimony from a willing witness, the department is violating their rights as well.

Judge Brad Seligman didn’t rule on Public Counsel’s motion last week, He invited more arguments and scheduled a full hearing later in August.

Working ‘for or on behalf of CDE’

The California Attorney General’s Office defended the department’s position in a brief it filed in the case last week. Deputy Attorney General Elizabeth Lake wrote that Dee and other researchers who agree to participate in a data partnership become authorized representatives who perform research studies “for or on behalf of CDE” to improve instruction.

In the course of doing research, researchers will “discover previously unknown defects and deficiencies.” Researchers who then use that knowledge “to profit by testifying as an expert witness in litigation” would violate the terms of the data partnership and have the effect of “chilling CDE’s incentive” to enter into research partnerships, Lake wrote.

What they should be doing, Lake continued, is to “work cooperatively with CDE through publishing papers, engaging in public dialogue and developing further research questions.”

But researchers and public interest attorneys say the actual impact of the litigation restriction is to strong-arm researchers. They charge that the state’s attempts to exert control over how researchers use education data are unconstitutional.

“CDE’s justification for blocking experts from testifying makes no sense,” said Michael Jacobs, a partner with Morrison Foerster. “The only ‘chilling’ going on here is the state’s effort to intimidate experts into silence.”

Nothing in the statute on data partnerships cited by CDE says that a research organization must be in a fiduciary role, acting in CDE’s interests, Jacobs said. Nor does it say that a research organization cannot be adverse to the department, or anything about barring researchers from testifying in litigation against it, he said. 

“The state can’t conscript independent researchers into its testifying ranks by dangling access to taxpayer-funded data as an inducement to toe their line,” Jacobs said.    

Dee didn’t toe the line, although he said he hadn’t foreseen a problem with submitting his brief, because he hadn’t intended to use any of the data that the Gardner Center collected through its data partnership; its research on pre-pandemic student achievement in alternative high schools was not relevant to his Cayla J. brief, he said.

But Dee was critical of the state in the brief about the department’s failure to address learning challenges during the pandemic. Partly because of its comprehensive data capacity, “the state is in a unique position to provide leadership” for academic recovery, he wrote, but hasn’t exercised it, relying instead on local control.

Second Stanford professor pressured

A second prominent Stanford education researcher and professor at the Graduate School of Education, Sean Reardon, did feel the chill. Faced with a similar threat from CDE — a potential $50,000, the rescinding of data he had obtained and the loss of future access to state data — he declined to submit a brief to the Cayla J. case. 

Reardon was among 15 researchers who had signed a massive, multi-year data partnership agreement through the Learning Policy Institute, where he is also a senior research fellow. LPI, a Palo Alto-based nonprofit education research organization, is headed by retired Stanford Graduate School of Education Professor Linda Darling-Hammond, who is also an advisor to Gov. Gavin Newsom and president of the State Board of Education. The disputed clause in the data partnership contract prohibiting litigation against CDE would also shield the state board.

Reardon would have been asked to testify about the Education Recovery Scorecard, the learning loss research that he co-authored. It too 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.

Jacobs and Public Counsel cited Reardon’s experience as evidence for Judge Seligman to prevent CDE from taking punitive action against Dee for testifying in the Cayla J. case.

Morgan Polikoff, associate professor of education at the USC Rossier School of Education, said he appreciates the dilemma that colleagues like Reardon face. He personally is starting a new research center at USC focusing on school districts in Southern California. “There is a chance we may want access to state data; the way the state is acting, if you are critical of the state, they could be vindictive in the future,” he said.

“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,” he said. “And because these court cases are typically brought on behalf of the most underserved students, it undermines access to quality education for the very students the state claims it cares most about.”

Working around CDE

Heather Hough said that as the executive director of PACE, an independent research center led by faculty at Stanford, USC, UC Davis, UCLA and UC Berkeley, she’s been aware of the litigation clause. She said it has already deterred partnership agreements. “I know it’s a reason why some universities and organizations just won’t sign it,” she said.

“The contract language is part of a larger culture in California — a hesitancy around making data available, around sharing evidence. It’s especially problematic because California’s policy framework is dedicated to the idea of continuous improvement,” she said. But that cannot happen if the state and independent researchers are unable to turn out “a lot of research evidence and data analysis about what’s working under what conditions.” 

In response to an onerous process of getting data from CDE, PACE helped found a new data alliance, the CORE Data Collaborative. Since 2015, it has enabled districts to share student data and respond more openly and quickly to questions, Hough said. It encompasses 1.4 million students in 93 districts and charter school organizations.

“I think CDE has gotten better over time,” Hough said, “but it’s still not easy to get data access, so we created a completely different approach.”

It’s difficult to know for sure, but CDE’s litigation restriction in data partnership agreements appears rare, if not unique, for education agencies in California and nationwide. 

Education researchers EdSource contacted said they aren’t aware of similar clauses. Tyrone Howard, a professor of education in the School of Education & Information Studies at UCLA, and the current president of the American Education Research Association, a national research society founded in 1916, said the organization is currently surveying members and may issue a statement. But the word from people he has spoken with is, “No, this sounds completely foreign to us.”

“I did not know that there were so many stipulations when it comes to accessing data from CDE,” he said. “I was shocked. It really caught me off guard.”  

If this provision remains, he said, “you’re going to see a lot of researchers who will think twice before they engage in important work that helps the state, helps the students across the state of California.” 

Amy Palmer, deputy secretary of the Government Operations Agency, which oversees more than 150 agencies and departments in California, said GOA doesn’t know whether any of the state agencies have a similar provision, because each is responsible for creating its own data partnerships.

Responding to EdSource’s inquiry, representatives of both the California State University and the University of California said their contracts for data partnerships contain no similar restriction banning researchers from involvement in litigation. The California Commission on Teacher Credentialing reported it patterned its data-sharing agreement after CDE’s but that the agreement is now under review and will likely be updated.

“It is too early to tell what the review will yield, but your story raises interesting issues that we will look into,” said Mary Vixie Sandy, the commission’s executive director.

California is 20 years behind states like Texas and Florida in terms of making education data accessible, Hough said. “We don’t have a big research and analytics department. We rely on independent researchers to do that work.” 

California is trying to catch up by establishing the California Cradle-to-Career Data System, an initiative Newsom announced in his first term. If built as Newsom envisioned, it will link disparate data systems from preschool through higher education, with connections to financial aid and state health and social service agencies and departments. Parents and teachers will be able to explore data through a public portal, and researchers and advocacy organizations should be able to collect data from multiple sources in ways they could only imagine before.

What the multidepartment data partnership contracts will look like will become an important issue, including whether CDE’s litigation restriction will continue as a hindrance and deterrent for researchers, Hough said. The issue has been raised to the cradle-to-career staff and governing board, but nothing has been decided, said Hough, who serves on an advisory committee.

A Newsom administration spokesperson declined to say whether the governor has a view on CDE’s contract clause barring litigation and whether it should be included in cradle-to-career partnership agreements.

At some point in the coming months, though, Newsom will have to make his position clear.

Source: https://edsource.org/2023/critics-pan-states-justification-for-threatening-stanford-education-professor-over-breach-of-data-contract/695208.