California Walks Back Decision to Muzzle Researchers Testifying in Pandemic Lawsuit

As noted in this space recently, there’s been a recent trend in California’s state government toward secrecy – restricting the flow of information to media and the public about what officialdom is doing.

A prime example of that trend was a harsh warning from the Department of Education to education researchers that they could be punished if they testified in any lawsuit against the department.

A clause in research contracts banned such testimony, even if the researcher was not using data obtained from the department. The warning, which officials partly walked back, was issued because the state was being sued by students whose schooling was interrupted and damaged by shutdowns during the COVID-19 pandemic.

Attorneys for the plaintiffs sought expert testimony from academic researchers about the effects of the shutdown and the evidently haphazard efforts to instruct students online, known colloquially as “zoom school.”

Several studies have demonstrated that not only did academic achievement among California’s nearly 6 million public school students suffered mightily, but that the already yawning achievement gap between poorer and English-learner students and their more privileged contemporaries became even wider.

For example, the Public Policy Institute of California found that, before the pandemic, 51% of students met standards in English language arts, or ELA, and it had dropped to 47%. In mathematics, proficiency declined from 40% to 33%.

“Only 35% of low-income students met state standards in ELA and 21% were proficient in math,” PPIC reported, “compared to 65% of higher-income students in ELA and 51% in math.”

Teacher Union Influence on School Reopenings

California tended to keep its schools closed longer than those in other states, largely due to reluctance of powerful teacher unions to reopen. So the loss of learning found by PPIC and others is – or should be – embarrassing to officialdom, from Gov. Gavin Newsom down. That’s why, one suspects, the Department of Education initially wanted to shut down researchers who would testify about negative impacts.

When the efforts to muzzle researchers became known, thanks to dogged reporting by EdSource, there was widespread condemnation from the media and free speech advocates. Last week, the criticism, and the possibility of an adverse judicial ruling, paid off – more or less. The education agency sent letters to researchers saying they could testify about the effects of school closures, but only if they did not use data obtained through contract work with the state.

“These limitations still preclude recipients’ testimony in legal proceedings to the extent it relies on or uses proprietary CDE Data, including Derivatives, as defined in the standard research agreement,” the letters to researchers said.

“We’re glad wisdom has prevailed, and the state recognized that the provisions (in data partnership agreements) are highly problematic,” Michael Jacobs, a San Francisco-based lawyer, told EdSource. “We regret that it took all this legal process to protect the rights of researchers to participate in the public sphere.”

It’s a semi-victory for free speech, but the ban on using certain data continues, for reasons that defy rationality.

If the lawsuit’s purpose is to clarify how pandemic shutdowns affected the educations of millions of young Californians – with potential effects on the rest of their lives – then any information that bears on that purpose should be included.

The state seems to be attempting to bolster its assertion that its handling of the pandemic did not have the adverse effects it obviously had.

That attitude is a continuation of the state’s long-held position that local school officials have the sole responsibility for academic outcomes, even though state law governs how schools are financed, how money is to be spent and the curricula that schools must follow.

About the Author

Dan Walters has been a journalist for nearly 60 years, spending all but a few of those years working for California newspapers. He began his professional career in 1960, at age 16, at the Humboldt Times. CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more columns by Dan Walters, go to calmatters.org/commentary.

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