State tries to bar Stanford researchers from testifying against it
An interesting new expert witness controversy has broken out; this time in California. A group of parents are suing the state over the learning losses that that the state's pandemic response imposed on children. Plaintiff attorneys recruited expert witnesses from Stanford University to support their case. The California education department claims that the researchers signed an agreement to not testify against the state as a condition of accessing the state's data on k-12 schools during the pandemic. The prohibition, the state argues, extends to any testimony against the state, even when that testimony does not rely on the state's own data.
From the state's letter to one of the researchers:
This letter is to remind you of your obligations as the CDE's authorized representative performing research for and on behalf of the CDE. As CDE's authorized representative, in both paragraph 16 of the Agreement and paragraph 6 of the confidentiality provisions in Exhibit D, you agreed that you would not "testify, advise or consult" for any party other than the CDE or the State Board of Education. This prohibits any work for Plaintiffs in Cayla J.
The ACLU is now involved, arguing that any such provision in the data access agreement would amount to an unconstitutional condition.
The California Department of Education has issued a warning of potential legal action against two well-known education professors from Stanford University. This move is aimed at preventing their participation as witnesses in an ongoing lawsuit involving the department. The American Civil Liberties Union of Southern California has criticized this action, viewing it as an effort to silence the professors.
Consequently, the ACLU is considering taking legal action against the California Department of Education, asserting that such actions infringe upon the professors' and other researchers' First Amendment rights.
This situation is being closely watched by observers, who believe that the outcome could have significant implications for the field of education research in California. The dispute's impact could extend to who is permitted to conduct research in the state and the scope of topics they are allowed to investigate. This is due to the fact that the California Department of Education retains control over the sharing of data that is not publicly accessible.
The focal point of the matter revolves around a stipulation imposed by the California Department of Education (CDE), which mandates researchers to agree to a specific condition in order to access nonpublic data related to K-12 education. This provision, interpreted broadly by the CDE, includes a clause that forbids researchers from participating in any legal proceedings against the department, even if the litigation is unrelated to the research they were conducting under CDE.
Alyssa Morones, a lawyer from the ACLU who is involved in the case, pointed out, “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,”
Professors Sean Reardon and Thomas Dee had each separately entered into distinct data-partnership arrangements with the California Department of Education (CDE). Subsequently, both were approached by legal representatives involved in an ongoing lawsuit titled Cayla J. v. State of California. These attorneys requested their testimony in support of the students who initiated the lawsuit. The legal action is directed against the California Department of Education, the State Board of Education, and State Superintendent of Public Instruction Tony Thurmond. The lawsuit alleges that the state failed to adequately address the significant learning setbacks experienced by low-income students and other vulnerable student groups due to the pandemic.
Sean Reardon, who had played a role in co-authoring influential nationwide research concerning pandemic-related learning disruptions, expressed his willingness to provide expert testimony. However, despite his learning loss research not being linked to the data acquired through his agreement with the CDE, he chose not to testify. This decision was prompted by a warning from the CDE earlier this month that testifying would constitute a breach of his contractual obligations.
On the other hand, Thomas Dee, a professor affiliated with the Graduate School of Education at Stanford, accepted the role of an expert witness on behalf of the plaintiffs in the Cayla J. case. He offered insights into the impacts of Covid-19 on enrollment, chronic absenteeism, and student engagement within California. This month, Dee joined a group of nationally recognized education professors in submitting legal briefs as part of the case.
Sean Reardon, a professor specializing in poverty and educational inequality at Stanford Graduate School of Education and a senior research fellow at LPI, was one of the signatories of the mentioned contract, which included 15 others, primarily comprising employees and researchers associated with LPI (Learning Policy Institute). The contract was also signed by Linda Darling-Hammond, who serves as the principal investigator. She holds the positions of President and CEO at LPI, President of the state board, and an advisor to Governor Gavin Newsom. Notably, she had signed the initial agreement a year prior to her nomination to the state board by Governor Newsom.
The ACLU, acting independently, argued that the stipulation in question is clearly unconstitutional. While a government can impose restrictions on granting access to nonpublic data for research purposes, it cannot curtail a researcher's First Amendment right to freedom of speech. The ACLU communicated this stance in a detailed nine-page letter addressed to the California Department of Education.
Furthermore, the ACLU highlighted what it termed as "even 'more blatant and more egregious'" viewpoint discrimination on the part of the department, referencing a 2015 ruling by the U.S. Supreme Court. The contract does not prohibit an educational researcher from testifying in favor of the department in a lawsuit; it solely prohibits them from offering testimony against it.
Maria Clayton, who holds the position of Director of Communications at the California Department of Education (CDE), mentioned that the agreement "constitutes standard language that CDE has consistently employed for years in similar data-sharing arrangements."
In correspondence via email, Reardon expressed, "It is entirely appropriate, and even essential, for the CDE or any state agency to safeguard student privacy and ensure the accuracy of facts when external researchers utilize the state's data. However, what remains unclear to me is how limiting the ability of researchers to provide testimony in a lawsuit, even if it's unrelated, aligns with the best interests of California's students."
What is clear is that studies utilizing comprehensive datasets have the potential to catalyze legislative actions. Moreover, they could serve as a catalyst for advocacy groups such as Public Counsel and the ACLU to explore legal avenues for rectifying deficiencies within state regulations or addressing issues related to subpar student achievement and disparities in funding.
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