Education Week - March 30, 2016 - (Page 15)
High Court Weighing
By Mark Walsh
The U.S. Supreme Court appeared
sharply divided last week in a major
showdown over whether religious
schools, colleges, and other groups
must take action if they seek to opt
out of providing contraceptive care
to their female employees or students under the Affordable Care Act.
During oral arguments in the
case, Chief Justice John G. Roberts
Jr. repeatedly referred to the federal
government as "hijacking" the insurance plans of religious employers to
force them to be complicit in the
"It seems to me that that's an accurate description of what the government wants to do," Roberts said.
When Justice Anthony M. Kennedy, late in the March 23 arguments,
picked up on the idea of a government
"hijack" of religious employers' health
plans, it appeared the court, with the
vacancy left by the death of Justice
Antonin Scalia, was headed for a 4-4
tie in the group of cases known as
Zubik v. Burwell (No. 14-1418).
That would leave lower-court rulings in place. All but one of the nine
federal appeals courts to have ruled
on the issue have sided with President Barack Obama's administration
by holding that an accommodation offered to religious employers does not
violate their religious-freedom rights.
The case stems from the Affordable Care Act's requirement that
most large employers must offer
group health plans with "minimum
essential coverage," which has been
interpreted by the U.S. Department
of Health and Human Services to
include coverage of contraception.
Churches and some other religious
organizations (church auxiliaries and
the religious activities of religious orders) are exempt from the contraceptive mandate, but HHS declined to
exempt many other religious employers, including schools, colleges, nursing facilities, and other nonprofits.
Under the disputed accommodation, those organizations must opt out
of the program by informing the federal government in writing of their
religious objections or face fines.
The religious groups, which have
moral objections to offering certain
forms of contraception, contend that
the government's accommodation
would make them complicit in providing such care.
"The problem is, we have to fill
out a form, and the consequence of
filling out that form is that we are
being treated differently" from the
churches and other groups that are
categorically exempt, Paul D. Clement, the lawyer representing the
Little Sisters of the Poor Home for
the Aged, a religious employer that
is not exempt, told the justices.
Eight members of the Little Sisters order were present in the courtroom for the 90-minute argument,
and hundreds more nuns demonstrated outside the court building,
along with a smaller number of supporters of the administration.
Noel J. Francisco, the lawyer repre-
Religious schools battling federal provision
Nuns with the Little Sisters of the Poor, including Sister Celestine, left, and Sister Jeanne Veronique, center, rally
outside the U.S. Supreme Court as it hears arguments on the birth-control mandate in health-care plans.
senting Roman Catholic schools in the
dioceses of Washington, Pittsburgh,
and Erie, Pa., sought to point out an
inconsistency in how the government
treats such schools for the purposes
of either the exemption or the accommodation.
The point, as explained in his brief,
is that some Catholic schools have to
comply with the mandate and others
don't, based on how they are organized within their dioceses. (Some are
part of the main organizational structure of the diocese, and some aren't.)
Roberts returned to that point by
noting that Catholic Charities of
Pittsburgh had to comply with the
contraceptive mandate, while Catholic
Charities of Erie was exempt.
U.S. Solicitor General Donald B.
Verrilli Jr., defending the mandate,
said: "The government made a judgment that as a categorical matter, it
wasn't willing to extend the exemption to all religious nonprofits, as
was requested, but it, instead, would
use this accommodation, which we
thought was the best way that we
could ... protect their religious liberty."
Justice Samuel A. Alito Jr. also
was sympathetic to the religious
'A Compelling Interest'
"This is a case in which a great
array of religious groups ... have
said that this presents an unprecedented threat to religious liberty
in this country," Alito said, referring
to the opt-out requirement.
Justice Clarence Thomas didn't
ask any questions, but his past positions on the Affordable Care Act in
the 2014 decision known as Burwell
v. Hobby Lobby Stores Inc., which allowed closely held companies to opt
out of the contraceptive mandate,
suggest he would side with the religious employers as well.
The court's liberal bloc, which dissented in Hobby Lobby, appeared to
side with the government.
"I thought there was a very strong
tradition in this country, which is
that when it comes to religious exercises, churches are special," Justice Elena Kagan told Francisco.
"And if you're saying that every
time Congress gives an exemption
to churches and synagogues and
mosques, that they have to open
that up to all religious people, then
the effect of that is that Congress
just decides not to give an exemption at all."
Justice Ruth Bader Ginsburg said
the government "has another interest at stake."
"As you know, the original healthcare plan did not provide these
covered services for women, and
[the government] saw a compelling
interest there, a need that was marginally ignored up until then," she
said, referring to the HHS rules that
require contraceptive coverage.
A ruling is expected by late June.
ESSA Rule Negotiators Grapple With Issues of Flexibility, Equity
By Alyson Klein
Should advocates, educators, and
others writing rules on tests and
spending under the Every Student
Succeeds Act hew closely to the new
law and preserve as much flexibility as possible for states? Or should
they use the opportunity of "negotiated rulemaking" to help advance an
agenda focused on educational equity?
Those questions undergirded
some of the discussion during last
week's negotiated-rulemaking sessions here. The process allows advocates, practitioners, and others to
get in a room and hash out proposed
rules for parts of ESSA, the new
version of the Elementary and Secondary Education Act. If the process
fails, which it often does, the U.S.
Department of Education will write
rules through the regular process.
Importantly, negotiators aren't
considering the whole law-or even
what's arguably the most controversial part: accountability.
Instead, they are fleshing out
rules for a highly technical provi-
sion known as "supplement-notsupplant" (which deals with how
federal dollars interact with local
spending). They also are negotiating rules on assessment, which covers a host of testing topics, including
computer-adaptive tests, as well as
tests for special populations of students, such as students in special
education, English-language learners, and more.
Tough to Monitor
The panel, which will reconvene
in April, is made up of educators, including a state schools chief, classroom teachers, a nationally recognized district superintendent, and
other local leaders. Additional members include advocates for the civil
rights community, English-learners,
students with disabilities, and others. Members were nominated by
the public and selected by the Education Department.
There was a spirited debate on
how the regulations should handle
language in ESSA that says that no
more than 1 percent of all students
statewide can take tests intended
for those with severe cognitive disabilities.
Some advocates have worried that
cap will be hard to monitor district
by district. Liz King, the director of
education policy at the Leadership
Conference on Civil and Human
Rights, argued it makes sense to
have a definition of the 1 percent
cap, in part to deal with that issue.
But Tony Evers, the state chief in
Wisconsin, noted that there has long
been a 1 percent requirement in the
law, without additional parameters.
And he suggested the panel refrain
from defining "significant cognitive disabilities"-in part so that it
sticks as closely as possible to congressional intent.
Another key point in negotiations:
What should constitute a "nationally
recognized test" that districts could
substitute for the state exam when it
comes to high school accountability?
Kerri Briggs, the education program officer at Exxon Mobil, who is
representing the business community
on the panel, said she thinks states
should be able to use their best
judgment in figuring out what qualifies as a "nationally recognized test."
Most experts expect that ESSA
would allow districts to use the ACT
or the SAT, but there's nothing in
the law that requires those tests to
be in the mix, said Delia Pompa, a
negotiator and senior fellow at the
Migrant Policy Institute, a think
tank in Washington that deals with
issues facing migrants.
She and others voiced concern
about the lack of accommodations
for students in special education
and English-language learners in
using those college-entrance tests.
Another ESSA provision lets 8th
graders who are taking advanced
math courses (such as algebra, geometry, or Algebra 2) use a test in that
subject for accountability purposes,
instead of the state assessment.
In high school, those students
must take a test corresponding to
the level of math they are in.
The department wants to make it
clear that the advanced math tests
must meet the rigorous requirements for assessment-and that the
state makes sure that all students
have the opportunity to pursue advanced math coursework.
While nearly everyone on the
panel liked the idea of equitable access to advanced classes, some negotiators were in different places-at
least rhetorically-on how far they
should go to make it happen.
ESSA, like its predecessor, the No
Child Left Behind Act, also calls for
states to assess newcomers to the
United States in their native language, to get a sense of what they
know and can do. Specifically, states
must "make every effort" to have
native-language tests for any language that a "significant number" of
But while that requirement had
been in the NCLB law, fewer than a
dozen states have native-language
tests, according to the Education
Pompa would like the department
to provide parameters to help states
come up with a definition of what
constitutes a high-quality test.
EDUCATION WEEK | March 30, 2016 | www.edweek.org | 15
Table of Contents for the Digital Edition of Education Week - March 30, 2016
Education Week - March 30, 2016
State Boards Feel New Need To Flex Muscles
Distress Call Issued On K-12 Facilities
Can ‘Micro-Credentialing’ Salvage Teacher PD?
Sanders Gets Educators’ Attention Despite Limited Specifics on K-12
Table of Contents
DAVID GAMBERG: What Makes a School?
News in Brief
Common Core: Is Its Achievement Impact Starting To Dissipate?
ACT’s New 10th Grade Test Provides Competition for PSAT
N.C. Law Restricts Transgender Student Restroom Access
DIGITAL DIRECTIONS: Group Probes Ed-Tech Pricing, Buying
Home Schooling Gains Popularity With Military Families
Blogs of the Week
‘Teach to Lead’ Projects Face Uphill Climb at State Level
Hearing Weighs Student-Data Privacy Concerns
High Court Weighing Birth-Control Mandate
ESSA Rule Negotiators Grapple With Issues of Flexibility, Equity
ROBERT EVANS: Principals, Get Your Irish On
PATRICK O’CONNOR: Why Good Teachers Don’t Have to ‘Like’ Teaching
JONATHAN ECKERT: Finding Joy in Teaching
TopSchoolJobs Recruitment Marketplace
Education Week - March 30, 2016