Maryland State Department of Education must rise to its challenge

Every president who served during the decades-long struggle to enact an open government law — primarily Dwight Eisenhower, John Kennedy and Lyndon Johnson — opposed it. They asserted a law opening up government records to the public would infringe on exclusive presidential power under the Constitution to control access to government information.

History has proved them wrong. The president does not possess such exclusive power.

Now, another president and his agencies are forcing a new struggle, to test whether the 51-year-old Freedom of Information Act (FOIA) can still be effective in lifting a veil of secrecy over the actions of the Executive Branch.

The use of FOIA has dramatically increased in the first year of the Trump administration. Requests for government records, including letters, speeches, notes about meetings, appointment calendars, memoranda and emails rose to a recordsetting 823,000 in Fiscal Year 2017, an increase of over 30,000 in one combative year.

Government efforts to withhold records and government censorship (known as “redaction”) rose even faster. According to a recent Associated Press report, 78 percent of all citizen and press requests for records resulted in documents that were censored (often heavily), or no documents produced at all.

The most egregious examples of government censorship and secrecy come from the Environmental Protection Agency. It is charged by President Donald Trump with leading his administration’s effort to repeal or delay many regulations intended to protect the air, water and land from toxic and often deadly contamination.

One means of denial: EPA officials have stopped releasing information about schedules and agency meetings with regulated industries, according to a comprehensive review by Margaret Talbot in the New Yorker. In addition, waiting times for responses to FOIA requests are up over 20 percent in the last year, as reported by George Washington University’s FOIA Project.

The press and public are clearly contesting this new effort at official secrecy. In almost one-third of government-wide cases of internal agency appeals due to denials or partial responses (FOIA requires such administrative appeals before a lawsuit) agencies backed down and found the files.

Not surprisingly, lawsuits by news- EPA Administrator Scott Pruitt removes his glasses as he testifies at a hearing of the House Appropriations subcommittee on Capitol Hill Thursday. papers, individual reporters and non-profit groups such as the American Civil Liberties Union and the Natural Resources Defense Council over FOIA denials have skyrocketed. Total lawsuits to enforce the act rose 26 percent in the first year of the Trump administration, as summarized by the FOIA Project. The largest percentage increase was cases against EPA — a stunning increase of 250 percent (35 cases) in one year.

Why the surge in lawsuits targeting EPA, a relatively small federal agency? Perhaps because EPA Administrator Scott Pruitt has announced that he intends to repeal as many as 30 major environmental protection rules. These include the long-awaited Clean Power Rule limiting air pollution from coal-fired power plants, the coal ash discharge rule, as well as the methane leakage, toxic metals release and ozone contamination rules.

Lawsuits are nothing new to Mr. Pruitt. As attorney General of Oklahoma he sued EPA 14 times, usually with oil, gas and mining industry support and cooperation. Mr. Pruitt lost many of these cases in court. President Trump has now put him in charge of the agency he attacked.

Environmental groups and the press are using FOIA to challenge the questionable actions of an administrator who had apparently made up his mind on key issues before being appointed.

FOIA-released data reveals that among other issues, Mr. Pruitt has failed to provide the names of the members of EPA’s Deregulatory Advisory Committee set up by presidential executive order. FOIA requests show that the identities of industry representatives who have met with EPA officials over deregulation proposals are largely undisclosed. The texts of Mr. Pruitt’s speeches to representatives of the oil, coal and natural gas industries have not been released.

But Mr. Pruitt’s efforts to repeal or delay environmental regulations appear to be slowing under an intense wave of challenges.

For example, a decision by the D.C. Court of Appeals reversed EPA’s attempt to delay the methane gas discharge rule by “reconsidering” it indefinitely. Mr. Pruitt then backed off another effort to delay a pending rule, limiting ozone releases. At least 17 states have now sued to reverse agency’s suspension of the Obama administration Clean Power Plan which would limit cancer- causing air emissions.

Not all of these challenges have been based on the Freedom of Information Act. But the evidence disclosed through requests under FOIA of bias by the agency and undue influence by energy industries, undermines the legitimacy of many EPA deregulatory actions.

FOIA may not be enough by itself to restrain a new veil of secrecy arbitrary government action. But even 51 years after it went into effect, FOIA is still a weapon for public information about what its government is up to.

That was the original purpose of the law. As FOIA’s author and inveterate champion, Congressman John E. Moss said, “Are we better off since the Freedom of Information Act was passed? Of course we are; but it is a never ending battle.”

Education commentators have been gnashing their teeth since the recent release of the “gold standard” 2017 National Assessment of National Educational Progress (NAEP) test scores. The scores were flat nationwide. What’s more, as one expert wrote, the scores have been “inexcusably stuck in the mud” over the past eight years.

That sounds pretty awful for our nation, and it is. But the news for Marylanders is even worse. Our state had the largest decline in test scores nationwide from 2013 through 2017, according to analyst Michael J. Petrilli, president of the prominent Thomas B. Fordham Institute.

Once upon a time, Maryland schools had a different reputation. From 2009 through 2013, our public schools were number one in the rankings of the national newspaper Education Week. Since then, we’ve slipped to sixth.

Moreover, we have been in the middle, not near the top, on the more telling NAEP scores. And even those scores were inflated because, as exposed in 2013, we had failed to test large numbers of students with disabilities. That practice has been corrected, accounting for part of our decline but not all.

Yet, is this anything we didn’t know before? After all the Maryland Commission on Innovation and Excellence in Education (known as the Kirwan Commission, on which I serve) is already much in the news. Its preliminary report in December minced no words about the urgency of bold reforms and the need for a lot more money to pay for them.

Still, the new NAEPdata showing that we are going in the wrong direction, shines additional light on a lesser-known challenge before the commission. Yes, more money is critical. But there must also be recommendations for strong accountability measures to assure that the money is well spent. The commission recognizes this, but finding a solution is difficult.

There are two big inter-tangled stumbling blocks. One is the weak management capacity of the Maryland Department of Education (MSDE), which must set standards for spending and monitor compliance. The second is the folly of the nation’s enduring love affair with local control of public schooling.

Local control is a complex subject, but here are some basics. The virtues of local control include providing local educators with great flexibility in the employment and training of staff, teaching methods and general administration. On the other hand, how does it make sense for 24 school systems to go their ownway instead of using evidence-based best practices in, for example, early childhood programs, interventions for struggling learners, and career and college readiness? The state should prescribe practices should be used, subject to (a) exemptions for good cause and (b) wide local latitude in the best practices are implemented.

That balance shouldn’t be hard to accomplish. Other countries with topperforming school systems do it through national policies, whereas in the U.S., there is much more fractionalization and tension among federal, state and local policymakers.

Still, the state/ local tension can be overcome in Maryland if locals trust the state to do the job right. Right now, they have good reason for skepticism. MSDE preaches partnership, but the process too often results in a blizzard of regulatory paperwork that is of questionable guidance and assistance.

Why hasn’t MSDE been more up to the challenge? Is it because of lack of management skills and resources to develop and monitor sound regulations in collaboration with local educators? Is it because of lack of political will to risk local wrath — from local elected officials as well as educators — if it takes stronger stands? And have local educators met MSDE half-way? Probably it’s all of the above. One certain step should be to bolster MSDE’s shrinking staff, which has been asked to do more with less in recent years.

The worst possible scenario would be for the state to diminish local accountability just as accountability nationwide — in the wake of the demise of the No Child Left Behind Act — is backtracking. The Kirwan Commission knows it must convince the governor, legislature and public that MSDE will be empowered to hold local districts more accountable for how more money is spent, while being held more accountable itself. MSDE flunked that test following the Thornton Commission recommendations and funding increases more than 15 years ago.

Wemust get it right this time. There must be fresh resolve and accountability structures to assure that MSDE and local school systems work together to improve implementation of evidence-based and costeffective best practices. Our schools will continue to slide unless this happens.