The SCOTUS Edition

Disparate impact, Obamacare and ESEA, union agency fees, and how academic instruction affects students’ brains.

Amber's Research Minute

SOURCE: Yuliya N. Yonchevaa, Jessica Wiseb, and Bruce McCandlissc,"Hemispheric specialization for visual words is shaped by attention to sublexical units during initial learning," Brain and Language, Volumes 145–146, (July 2015).

Mike:               Hello this is your host Mike Petrilli at the Thomas B. Fordham Institute here at the Education Gadfly show in online at Now, please join me welcoming my co-host, the Carli Lloyd of education reform, Brandon Wright!

Brandon:         Yeah, so they just beat the Germans, right. They're going to the finals?

Mike:               Yes. You sound so tentative about this Brendan. You did not watch this amazing game?

Brandon:         I didn't see it.

Mike:               Yes, and Carli Lloyd has turned into the star three goals in three games. This one was a penalty kick and she also had the assist on this amazing second goal that they scored. I have to say the Petrilli boys, young Niko and Leandro were watching. They were very excited. You can look on Facebook, a little video of them waving the American flag and doing a little victory dance.

Brandon:         Patriotism, I like it.

Mike:               We're going to the finals and yes, we beat Germany. Is it okay that I love it when we beat Germany in anything?

Brandon:         Sure. Yeah.

Mike:               I mean, that's still ... I know sometimes I'm a little late on what's politically correct these days. The fact that Germany was our enemy in World War 1, World War 2, and let's face it, did all kinds of horrendous things, I just find a special joy any time we beat Germany.

Brandon:         I'm fine with it.

Mike:               They're also an economic rival. They are our friends as well. They are an important ally. But man I like it.

Brandon:         Sure they do somethings well. Education they're pretty good at.

Mike:               We're recording this on Wednesday. I know when people are listening necessarily, the Japan England game hasn't happened yet and I'm kind of hoping England, again so we can re-fight the revolutionary war. Plus we have played Japan before in a world cup final so this would be kind of fun to play England. The Japanese will probably win then. All right. That's enough on world cup soccer. This is a podcast about educational reform, not about sports Brandon.

Brandon:         Yeah, that's right about that. Yeah.

Mike:               I'm very excited because today we have a special Supreme Court addition of the Education Gadfly Show, though I don't want to disappoint people. We're not going to tackle every Supreme Court decision, including the one that's probably gotten the most attention. This last week right, the gay marriage case. That's not on the docket.

Brandon:         No, it's not.

Mike:               We have three other case we're going to talk about. Dominique, help us start. Let's play Pardon the Gadfly.

Dominque:      All right. As you mentioned, Mike will be focusing on the Supreme Court and it's recent and forth coming decisions. Question one: last Thursday the court held that the Fair Housing Act includes [disparate 00:02:41] impact liability. How will this affect education?

Mike:               All right, so disparate impact Brandon. I have to admit that I was hoping the Supreme Court might find that disparate impact analysis was not constitutional because the only way you can enforce this is by paying a whole lot attention to racial categories, classifications, and that would violate the fourteenth amendment. In this decision, this was a housing decision, did not explicitly mention education but they did leave the door open to that constitutional question.

Brandon:         Sure.

Mike:               Really all they said was that the Fair Housing Act, it is quite clear that Congress intended to allow the regulatory agencies, the civil rights agencies to consider these disparate impact findings. Brandonwhat disparate impact is is basically saying that an agency can look at statistics. They can look at outcomes in terms of, in this case it was housing. In education it might be how many kids are getting suspended or disciplined, and look at racial differences along those lines. They can look at those statistics and infer that there may be discrimination happening even if they can't prove that there was an intent to discriminate directly.

Brandon:         Right.

Mike:               What do you think, what's your take on this case? Does this mean that the office of civil rights, the department of education is going to be able to continue using disparate impact analysis to go after school districts or colleges, universities?

Brandon:         Sure. I mean, the disparate impact that OCR uses in education falls under title six of the Civil Rights Act. It's a bit of a different issue. Currently there is a regulation that says that they can do it but obviously that regulation is an agency interpretation of the title six. Somebody could challenge it. If the Supreme Court heard that challenge, it would be a question whether disparate impact is actually covered by title six. This decision signals that the court would probably be okay with that. It's kind of an open question. It definitely doesn't mean that OCR's going to stop. It definitely will continue for sure.

Mike:               Certainly green lights it for now. Okay. Topic number two, or shall we say case number two.

Dominque:      On the same day as the aforementioned decision, the court upheld an embattled Obamacare provision. How will this affect education?

Mike:               So our friend Rick Hess had a post the other day arguing that Obamacare was going to slash the chances that the elementary and secondary education act is going to reauthorized because conservatives and Congress are going to see what the court did on Obamacare. They're going to be very nervous that if there's any kind of opening in yes, yay, to allow the department of education to muck around in things they shouldn't muck around in, a Supreme Court would not reign them in. Is that, you think, a fair reading of what happened with Obamacare as it applies to ESCA Brandon?

Brandon:         No I think his fears are pretty overblown. It's a different law, right? The reason why the court interpreted this Obamacare statute as it did was essentially because they thought it made sense in the context of the entire statute. If it was decided the other way, it would have had these calamitous effects which they felt that Congress couldn't have possibly intended. It was an ambiguous part of Obamacare. If you look at ESCA, the only way this would actually happen is if they write a completely ambiguous law or parts of it are ambiguous, don't assign it to an agency.

Mike:               let's play this out. There's been this question for example, about whether Arnie Duncan had the authority under his wavier authority to require states to do things like create teacher evaluation systems if they wanted flexibility from ESCA. I think we have both written that we think there is no way that you can find that in this statute. Although some people would point to the language in the waiver authority about how he is able to set the parameters for, that maybe some of that language is ambiguous enough. If a state sued the Department of Education, like the state of Washington because they lost their wavier because of that, and that case went to the Supreme Court, the question would then be whether the Supreme Court would itself try to interpret the statute like it did with this Obamacare case and make a decision on whether that was allowable or not, or whether they would say well it's ambiguous so therefore we will defer to the agency. It's a close enough call that we don't think what the Department of Education did was unreasonable.

Brandon:         Right. That's a pretty open question in light of the Obamacare case and the Fair Housing case. If anything, the court has actually signaled that they're becoming increasingly uncomfortable with agencies interpreting statutory ambiguities.

Mike:               Right. That they basically are saying, and John Roberts said this, the Obamacare decision, it's the court's job to interpret these statues. We are going to do so. To Rick we'd say, look. You don't know how the court would necessarily rule depending on how this law is, but it certainly is not saying that we are going to defer to agencies more so than we have in the past.

Brandon:         Yeah, it seems to be the opposite. It's important to note that in both the Fair Housing case and the Obamacare one, there wasn't a single justice who had a problem with not deferring to the agency. They were all okay with the court interpreting, the descending ones just didn't like the interpretation. It's definitely kind of going against agencies going forward. Or it seems to be.

Mike:               All right. Rick Hess, sorry. You're going to lose on this one.

Brandon:         Yeah.

Mike:               Denied. Okay, topic number three.

Dominque:      The court also took up a case for the October 2015 term that concerns teacher's union agencies. What does this mean for unions?

Mike:               Oh this means that the unions are in trouble. Let me say, I'm having a hard time not showing my happiness and enthusiasm. I do a little happy dance every time I think about this. It's a big deal, this Friedrich's case. It is basically saying that in California, as in many of these states that have, what do you call it. It's the opposite of right to work.

Brandon:         Agency fees.

Mike:               Agency fees. Basically in these states where teachers have to either be in part of the union, or if they opt out, and they are allowed to opt of out the union-

Brandon:         It's kind of hard to do.

Mike:               They still have to pay agency fees, which are basically saying, Hey. It's not fair for people who are part of a union to benefit from the unions, collective bargaining and other activities, and not pay for it. That would be a free-rider problem if people were allowed to do that. Nobody would pay to be in the union. That wouldn't work. Therefore the courts in the past have allowed the unions to charge these agency fees to nonmembers. The case is saying, hey. As the teachers that are in this case are saying, hey you are violating our first amendment rights because some of this money we're spending on free agency fees is going to promote political activity with which we disagree, including the fundamental activity of collectively bargaining with elected school boards. What's your take on this Brandon? Is this, do you think the court is likely to rule in favor of the teachers and against unions? What is this going to mean for the future teacher unions?

Brandon:         The question is whether what they're talking about is protected speech. Whether it's speech of a public concern. In the past the court has essentially implied that it could differentiate between the collective bargaining that a union does and the political speech that unions do and that these agency fees only apply to the bargaining. In a recent case, they plainly said that the bargaining process includes protected speech, period. It wasn't for teacher unions, it was for home health care employees.

Mike:               To be clear, it's collective bargaining for public sector unions, right because if you're collectively bargaining in the private sector then you're not bargaining with a public entity. In the public sector, the other side of the table is the public. It is some political body in there. Not to mention there's all kinds of other things agency fees can pay for like communications between the unions and their members, a variety of things that may not be explicitly politically. They can't use this for contributing to campaigns or for paying for political advertising but it could, some of that speech could certainly have political ramifications. They lines are not super clear here. Right now the current law allows the unions to decide where to draw that line.

Brandon:         Yeah. It doesn't look good. The example that they gave in the recent case was that their bargaining for income, for paychecks. That includes public funds. That is inherently a public concern. If it is protected speech, which it seems to be, the court seems to apply a bar that the state probably couldn't leap. In which case, these agency fees would be unconstitutional under the first amendment.

Mike:               If that happens, basically every state becomes a right to work state in the public sector. What do we know about that? Well it doesn't mean the unions will go away. We see unions where sometimes it's just called associations in those other states. They still do have political influence, some power. They still can raise money from their members to fight different political fights. However, we do know that the membership in those unions or associations tends to be dramatically lower. A bunch of teachers will opt out and say great. I don't have to pay for this anymore. I don't want to pay for it. I'm no longer a member. We know from our own studies of teacher union influence that those states do tend to have unions that have less interest, influence. There are a few counter examples like Alabama, but by and large this is likely to significantly weaken the unions. Certainly that's what happened in Wisconsin recently with the reforms there under Scott Walker is that the union has shrunk. It's got less money. It's got less members. It's got less political influence, all of which is good for education reform in my opinion.

Brandon:         Yeah. Plus I mean you, the case shouldn't come down to whether it's going to expand the unions or contract them, right. It should come down to what the constitution says. If it's protected speech, then it seems to be unconstitutional.

Mike:               There it is. That's what I like Brandon. Brandon, a lawyer by training. Sticking to the law and to the constitution. All right. Thank you very much Brandon. Thank you Dominique for our Special Supreme Court Edition of Pardon the Gadfly!

Brandon:         Thanks Mike.

Mike:               Boy now that we have more people listening to the podcast, I get a little nervous sometimes. I'm like, I don't know. Who are these people out there? Who are you listening? We're trying to serve you good stuff. Now, it is time for everyone's favorite: Amber's research minute. Amber, welcome back to the show.

Amber:            Thank you Mike.

Mike:               You've been watching the world cup women?

Amber:            I watched the highlights this morning. Missed it last night but I watched the highlights this morning and just fantastic. Right? Just gives you all that little patriotic feeling inside.

Mike:               It does. We were talking about that. Especially because it's Germany. I love beating Germany.

Amber:            That's right.

Mike:               I've been doing happy dances a lot this week.

Brandon:         It's been a good week.

Mike:               We beat Germany. The unions are going to have stake in their hearts thanks to Friedrichs. I mean, so much good stuff.

Amber:            Indeed.

Mike:               Okay Amber, what you got for us this week?

Amber:            Hopefully some more good stuff. We have a new study out in a scientific journal called Brain and Language. It examines how the brain responds when presented with two different methods of reading instruction. Yeah, it's kind of cool. It's a small sample, got to say that. Sixteen adults average age of twenty-two. They're native English speakers without reading disabilities, okay. They did some recruiting here. Participants are trained over two days where by they learn an artificial script or inventive language based on hieroglyphics. Each participant was taught two ways to associate a set of words read aloud to a corresponding set of visual characters of glyphs. The first method was a phonics based approach which focused on letter sound relationships. The second was a whole word approach that relied on memorization. They basically taught them a new language, right, that looked like these Chinese characters or something. Okay?

Mike:               Okay.

Amber:            After the training the participants were instructed at the beginning of the testing sessions to approach their reading relative to one strategy or the other. As they were tested they were hooked up to an EEG machine which reads your brainwaves so they had some output on how their brainwaves were reacting to how they were being told to process these glyphs. Okay. Scientists found, bottom line. Scientists found that when participants used the phonics approach to read their inventive words, the left side of the brain was activated, which is where the visual and language regions of our brain lie. It's been shown in prior studies to support later word recognition. Thus activating this part of the brain helps to spur on beginning readers. This approach also enabled participants to decode words they had previously not been exposed to in the training. Yet the whole word approach did not activate the left brain hemisphere but rather the right hemisphere, which is obviously completely different circuitry. It's typically not associated with firing in the brains of skilled early readers. I mean, in the end I just think it adds more solid evidence that phonics instruction is effective instructional practice. The national reading panel told us this many years ago. Now we can say, hey, by the way it also stimulates the brain which might help explain why it's effective.

Mike:               You know, little know is the fact of the reading words go back to ancient Egypt and the hieroglyphics. No, just kidding.

Amber:            I'm like, okay?

Mike:               All right. Amber, here's what I'm so curious about. Why couldn't they do this with five year olds actually learning to read English? Why did they feel like they had to do this with adults?

Amber:            It's a really good question, right? I have no idea actually why they did it with adults. Yeah. When you look at on the page, they have an example of these made up stuff, and I'm like oh my gosh. I would never be able to do that. You know what I mean? They actually interviewed people on when they were given the memorization. Can you imagine trying to study something say okay when the line goes to at an angle and to the right and know when it's situated, ninety degrees or whatever, that means cat. You know? I don't know whether it would have been just too difficult for a child at that age? It's a great question.

Mike:               It raises all kinds of questions, right. First of all, is the brain different at five then twenty two?

Amber:            That's right.

Mike:               Does it matter that five year olds, they might not know how to read but they've heard these words a gazillion times. Real words. Or they have meaning. I don't know if they talked about sort of how sure are we that this is-

Amber:            Applicable.

Mike:               Yeah that it tells us something about teaching reading to little kids.

Amber:            It's a great question. You know, they do not deal with that at all in this study. This is, by the way, if you think an NBR study is difficult to get through, try a scientific journal. Try brain and language. I mean, oh my god. I sent Brandon the title of the article. I'm like, I don't even know what this title means.

Brandon:         I don't either.

Amber:            All these references to the brain.

Mike:               Next time we should hook you up to an EKG machine and we can see what parts of your brain are being activated by reading this stuff.

Amber:            Thank goodness, I think it was Stanford news that originally covered it and you sent it along. No way would we have ever picked this up with the title.

Mike:               No, but it's fascinating. Well good, well look. It is yet more evidence. It's not like this is, it just seems to reconfirm. Hey, here's a big success story in American education. As far as I can tell, we are not fighting the reading words anymore, that this one is pretty much settled and that we've dramatically improved reading instruction in this country. I think it demonstrates that it is possible to turn the ship around when it comes to something like important, instructional like early reading. Now we'll see if we can do the same on other subjects as well.

Amber:            Yeah. You raise a great question. You know, we should follow up. I think that this research is really encouraging the way that it's come out in the press. I would imagine that it's not the last study we're going to see on this topic.

Mike:               All right. Thank you Amber. Thank you Brandon. Thanks again for joining us for this Special Supreme Court Edition of the Education Gadfly Show. Until next week.

Brandon:         I'm Brandon Wright.

Mike:               And I'm Mike Petrilli at the Thomas B. Fordham Institute signing off.