California moves to silence Stanford researchers who got state data to study education issues

The California Department of Education building in Sacramento. CREDIT: LOUIS FREEDBERG / EDSOURCE

The California Department of Education has threatened to sue two prominent Stanford University education professors to prevent them from testifying in a lawsuit against the department — actions the American Civil Liberties Union of Southern California calls an attempt to muzzle them. 

The ACLU, in turn, is threatening a lawsuit of its own — against CDE for infringing their and other researchers’ First Amendment rights. 

Observers say the dispute has the potential to limit who conducts education research in California and what they are able to study because CDE controls the sharing of data that is not available to the public.

At issue is a restriction that CDE requires researchers to sign as a condition for their gaining access to nonpublic K-12 data. The clause, which CDE is interpreting broadly, prohibits the researcher from participating in any litigation against the department, even in cases unrelated to the research they were doing through CDE.  

“It keeps education researchers from weighing in on the side of parties who are adverse to the California Department of Education. So it’s really skewing the information and expertise that can come into courts,” said Alyssa Morones, an ACLU attorney involved with the case.

“Individuals and students seeking to vindicate their rights no longer will have access to these education experts, and the court can no longer hear what they have to say.”

Professors Sean Reardon and Thomas Dee had signed separate and unrelated data-partnership agreements with the department, and both were asked by attorneys in an ongoing lawsuit, Cayla J. v. State of California, to testify on behalf of students filing the case. The lawsuit, against the California Department of Education, the State Board of Education and State Superintendent of Public Instruction Tony Thurmond, charges the state with failing to prevent the deep learning loss imposed by the pandemic on low-income students and other high-needs students. 

Reardon, who had co-authored landmark nationwide research on pandemic learning, said he would have considered providing expert testimony. But warned this month by CDE that he’d be breaching his contract, Reardon declined — even though his learning loss research did not involve the data obtained through his agreement with CDE.

Dee, a professor at the Graduate School of Education at Stanford, agreed to serve as an expert witness for the plaintiffs in the Cayla J. case on the effects of COVID-19 on enrollment, chronic absenteeism, and student engagement in California. This month, he was one of a half-dozen nationally prominent education professors who filed briefs in the case. 

In it, Dee cited data on enrollment declines and chronic absenteeism. He concluded, “Because of both its comprehensive data systems and its powerful fiscal and operational capacities, the state of California is in a unique position to provide leadership in better understanding and meeting the serious challenges of academic recovery. However, to date, the state has not clearly demonstrated such leadership, instead emphasizing responses by local school districts.”

CDE moved against Dee even though the data contract he had signed on behalf of a Stanford program was for research unrelated to the Cayla J. case. 

On Feb. 24, after CDE discovered that Dee had filed the brief, the department warned Dee that he had violated the contract he had signed in February 2022 as the chief investigator for the John W. Gardner Center for Youth and Their Communities at Stanford. As a result, the letter said, CDE was suspending the data partnership and demanding that Dee “mitigate further damage.” The department would consider seeking an injunction to prevent him from participating in the Cayla J. case along with a $50,000 fine. 

“Also, be aware,” wrote Cindy Kazanis, the director of CDE’s Analysis, Measurement, and Accountability Reporting Division, “that your actions have adversely impacted your working relationship with CDE, and your response to this letter is critically important to existing and future collaborations between us.” The letter was copied to Stanford. 

The contract that Dee signed with CDE is to examine how the California School Dashboard was affecting alternative schools serving those at risk of dropping out and those with motivation and behavior issues. He said he signed the contract in his capacity as faculty director of the Gardner Center, but had not actually looked at any of the data. 

Dee said he relied on publicly available data in writing his brief for the Cayla J. case. He declined to comment further on the case. 

The dispute is now in the courts. The plaintiffs’ attorneys in Cayla J., the public interest law firm Public Counsel and Morrison Foerster, a San Francisco-based law firm doing pro bono work, are asking a Superior Court judge to allow Dee’s participation in this case and protect him from CDE’s penalties — but only in this particular lawsuit. A hearing is scheduled early next week in Alameda Superior Court. 

The ACLU filed a brief on Feb. 27 supporting Dee’s participation in the Cayla J. case. But meanwhile, it took the first steps toward a larger lawsuit to eliminate CDE’s litigation prohibition. 

Michael Jacobs, an attorney with Morrison Foerster, said he was disappointed that the state would attempt to block education experts from giving their expertise. “The futures of the least advantaged schoolchildren in California are at issue. The data these experts utilized are all public.”

“What are state officials afraid of?” Jacobs said. “That their performance in running the school system during the pandemic in fact aggravated the achievement gap? That notwithstanding their protestations, they haven’t done enough to address that problem?”

CDE declined to comment on the need for the litigation ban in data contracts or its threats and actions against Dee or Reardon. Researchers told EdSource they were unaware of similar prohibitions in other states, but EdSource could not verify that. 

In a July 7 letter, the ACLU gave the department 10 days to expunge the restriction from all contracts with researchers. In a one-sentence defense a week later, Len Garfinkel, general counsel for CDE, stated, ”In our view, the Department’s data protection agreements are compliant with law.”

ACLU hasn’t revealed when it might take its next step. 

ACLU’s focus was a separate five-year research contract that the department signed in 2018 and updated in 2020 with the Learning Policy Institute, a Palo Alto-based nonprofit education research organization.

The next-to-the-last clause in the 11-page document, titled “Interests adverse to the California Department of Education,” states that as long as the contract is in effect, “LPI’s employees, executives, and other representatives shall not voluntarily testify for, consult with, or advise a party in conjunction with any mediation, arbitration, litigation, or other similar legal proceeding where LPI knows that party is adverse to the CDE, the State Superintendent of Public Instruction or the State Board of Education.”

Hoover Tower at Stanford University on March 7, 2020. Photo by Yichuan Cao, Sipa USA via Reuters

In addition, if anyone covered by the contract does become involved in litigation, CDE can immediately revoke the contract and demand all the data be returned or destroyed. LPI and signers of the agreement would be subject to a fine. That’s the same wording as in Dee’s contract through the Gardner Center. 

Reardon, professor of poverty and inequality in education at the Stanford Graduate School of Education as well as a senior research fellow at LPI, signed that contract, along with 15 others, mainly LPI employees and researchers. Signing as the principal investigator was Linda Darling-Hammond, LPI’s president and CEO. She also is the president of the state board and an adviser to Gov. Gavin Newsom. She signed the original agreement a year before Newsom nominated her to the state board. 

The ACLU, acting on its own, asserted the provision is clearly unconstitutional. A government can set restrictions for granting access to nonpublic data for research purposes, but not to limit a researcher’s First Amendment right of free speech, it said in its nine-page letter to the department. 

What’s “even ‘more blatant and more egregious,’” the ACLU wrote, citing a 2015 U.S. Supreme Court decision, is the department’s “viewpoint discrimination.” The contract doesn’t ban an education researcher from testifying for the department in a lawsuit; it just can’t testify against it.

“Viewpoint discrimination is poison to a free society,”  U.S. Supreme Court Justice Samuel Alito wrote in a different high court opinion in a 2019 case that the ACLU also cited in its letter.

Morones, who wrote the ACLU letter, said the prohibition is far more broad than the government needs to protect its data. As shown by the department’s response in the Cayla J. lawsuit, the department could apply the provision to thwart LPI and anyone who signed the contract from participating in any litigation against the department, the state board and the state superintendent, Thurmond, she said.

The Education Recovery Scorecard, the learning loss research that Reardon co-authored, 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. Reardon’s project with LPI  is focused on the pre-pandemic success of English learners in California from 2006 to 20-19.

Researchers seek agreements with the department to access nonpublic data, especially student-level data that detail the demographic information and the performance records over time of California’s 5.8 million students but without any names or identifying information. That data is the gold standard for accurate research. A partnership contract details the department’s commitments and researchers’ responsibilities, including strong assurances they will have security protections in place to protect students’ privacy and anonymity.

The dispute does not involve the disclosure of any student-level information.

Maria Clayton, the director of communications for CDE, said the agreement “is standard language that CDE has used for years in these types of data-sharing agreements.”

Reardon said in an email, “It’s perfectly appropriate – even necessary – that CDE or any state agency ensure student privacy and factual correctness when the state’s data is used by external researchers. It is unclear to me, however, how restricting researchers’ freedom to testify in a lawsuit, even an unrelated one, serves the interests of California’s students.” 

“The restriction does not make research better,” he added, “and does nothing that I can see to protect student privacy. It may limit which researchers are willing or able to work with the state, leaving the state without access to some of the best researchers; and it may limit the effectiveness of litigation that might benefit California’s students.”

The contract does not impose any restrictions on researchers’ ability to independently report what they learn from the data.

Patrick Shields, the executive director of LPI, said the department doesn’t interfere in how researchers report on their findings. And since LPI is a research organization that does not engage in litigation, it is not affected by the restriction not to testify against the state.

“We don’t feel restrictions on portraying data as it is. There have been no internal discussions (with the department) that we can’t say this or that,” he said.   

But researchers seek access to analyze data without knowing what they will discover. LPI’s contract with the department, which it calls the California Equity Project, covers a range of topics that have already generated and will produce dozens of studies on teacher shortages, teacher and administrator professional development, homeless students, English learners, foster youths and K-12 achievement and funding gaps.

Studies using a wide swath of data could lead to legislation, or it could also prompt advocacy organizations like Public Counsel and the ACLU to pursue remedies through the courts to fix flaws in state laws or address poor student performance or inequities in funding. 

ACLU argues that preventing researchers from sharing their expertise with the plaintiffs would be prior restraint and deny the public a full and fair presentation of the issues.

For this and other reasons, David Plank, the retired executive of Policy Analysis for California Education or PACE, a collaborative research and policy organization based at Stanford and several other universities, said he “would never have signed a contract in which we agreed to protect the interests or reputation of the agency with which we would have signed.” 

To do so, he said, would be “contrary to the fundamental norms of academic research.”

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