Take a wild guess as to which party might make funding Advanced Placement classes illegal in Oklahoma…

Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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98 Responses

  1. Kazzy says:

    I’ll confess to not having a full understanding of the relationship between state DOEs and legislatures but this feels like a pretty blatant end run around of the former by the latter. If the government wants to commission a panel to evaluate and implement curriculum… well, that is a primary function of the DOE. But to tie the DOEs hands in this way is… well, frankly, it is scary given the shape our political world is taking.

    It’ll be damn near impossible to completely divorce education from politics. But this attempt seeks to marry the two in a really dangerous way.Report

    • Kazzy in reply to Kazzy says:

      I’m also curious how effective this bill will be. It only bars state funds from being used. But given how fungible money is, I have to assume this would only prevent schools from filing grants or spending requests with the state specifically asking for money earmarked for AP tests. This is almost assuredly as much about signaling and grandstanding as it is about actually impacting the curriculum.Report

      • Barry in reply to Kazzy says:

        Depending on the details, it can get rather sticky, because the state might interpret using anything paid for in any way as ‘using state funding’. If a school wanted to teach AP history, they’d have to use segregated facilities, etc.Report

    • Chris in reply to Kazzy says:

      A popular form of political theater in certain states for legislators and governors is to claim that curricula are liberally biased and intervention is necessary to bring them back to reality via legislation or other intervention (in Texas, it’s via the state school board). For example, we need to teach the contest, talk about how Christianity gave birth to America, and make sure children that, while slavery was wrong, it wasn’t that bad, and if the teachers and liberals in Washington won’t do that, the legislature Damn sure will (until the bill dies in committee).Report

      • Kazzy in reply to Chris says:

        I’m familiar with some of Texas’s unique brand of crazy on this matter. Didn’t they want certain Presidents/Founding Fathers played up or down based on where they fit in contemporary politics?

        Still… it is one thing if the state school board — which I assume is formally charged with things like determining curriculum — is engaged in such idiocy. At the very least, those people are supposed to have a certain acumen for the topic. Though this probably varies based on the mechanism for appointment. I believe Texas’s members are elected meaning the process is highly politicized.

        But for folks elects to positions having nothing to do with education to try to throw their hat in the ring… oy…Report

      • Brandon Berg in reply to Chris says:

        So they’re implementing affirmative action?Report

      • Brandon Berg in reply to Chris says:

        No, I guess that’s not quite right. Affirmative action would be having different thresholds for passing based on race.Report

      • A Compromised Immune System in reply to Chris says:

        Texas’s brand of crazy isn’t really unique @kazzy it’s echoed by Louisiana, Arkansas, Oklahoma, Kansas, Tennessee, Alabama, Mississippi, and I’m sure at least a few other states as well. This is how gerrymandering that allows the GOP to take over local state legislatures has started to be an immense harm to the country over the past few decades.Report

      • Kolohe in reply to Chris says:

        @saul-degraw we shouldn’t 2nd guess the decisions of the Board of Eduction, they are the experts.

        The super blue Montgomery County, Maryland school board just fired their superintendent because he couldn’t close the achievement gap. If one had a long term plan for closing the achievement gap, it’s going to look somewhat like Florida’s plan with intermediate years that include a gap, but a closing one.Report

      • Kolohe in reply to Chris says:


        This is the Martin O’Malley’s plan, with his signature on the coversheet

        from page 27 2010 goals Basic or Above Average in reading for 4th graders

        White 83%, Black 75%, Hispanic 75%

        But I guess we only pay attention to the details when the Republicans are in charge, and can use the same methodology that most states use to attack the GOP. Because, you know, unmitigated evil.Report

      • Kolohe in reply to Chris says:

        I also note that all y’all ready to slam the OK legislature for jettisoning AP history ain’t seeming too big yerselves on primary sources.Report

      • Glyph in reply to Chris says:

        @kolohe – I’m also kinda wondering why an article from 2012 is being forwarded around Facebook today.

        Actually, no, I don’t wonder. Gotta feed that outrage machine somehow, and I guess leftovers are better than nothing.Report

      • Burt Likko in reply to Chris says:

        @kolohe :

        …we shouldn’t 2nd guess the decisions of the Board of Eduction, they are the experts.

        What, are you new here? Second-guessing subject matter experts is what the internet is all about!Report

      • Saul Degraw in reply to Chris says:


        I didn’t even notice that! There is a way that the Internet can bring up old articles. I once posted an article from the Guardian about the discovery of curtain from Shakespeare’s Globe. Someone pointed out that the article was a few years old. I didn’t check the date. I just thought the information was cool and it was new to me.


        As a litigator, you should know that I have my Daubert experts and you have your Daubert experts.Report

        • Burt Likko in reply to Saul Degraw says:

          My Daubert experts are well-studied and seasoned practitioners, respected by their peers, and have published numerous scientific papers in prestigious journals documenting their innovations in their respective fields of study. The jury should hear what they have to say. Your experts, by contrast are inexperienced, unknown, and peddle little but junk science. Were their unreliable testimony and spurious speculation to be admitted, it would surely constitute prejudicial, reversible error.Report

      • Chris in reply to Chris says:

        I’m cool with race-based goals as long as a.) those goals increase as a means to bridging the gap, as Kolohe describes, and b.) the different goals don’t result in holding back kids who are achieving at higher levels already (in other words, they don’t teach down to kids just because they’re black or hispanic, but instead focus on teaching underperforming black and hispanic kids up).

        You’ll have to monitor it really closely, of course, since the way incentives work means that at least some schools with mostly non-white kids will be tempted to do less.Report

      • Saul Degraw in reply to Chris says:


        Your Daubert experts are nothing more than corporate hacks who always find for the defense as long as the grant money keeps coming in.Report

      • morat20 in reply to Chris says:

        Basic or Above Average
        Actually….as weird as it sounds to say “80% are Above Average”, it’s not wrong. (Or doesn’t necessarily have to be).

        Look, say you have a set of widget factories. They produce 200 widgets, on average, a day. Perfect bell curve distribution. That’s your baseline — so those above 200 widgets are ‘above average’ and those that produce less are ‘below average’.

        Now you say “I want things to be better! I want 90% of factories producing more than the average!”. What you mean by that is “More than the average established by my baseline” — that is, you want to get the 50% or so producing less than 200 to get to 200 or more a day.

        The new average might be 220 a day, but when you say “Above average” you’re still talking about your scale calibrated in the beginning.

        School goals like math attainment and reading level are generally phrased as improvements against a certain past baseline. So the “average” was the average “pre improvements”. It’s the measuring stick to see how much (or little) things have changed.Report

      • Burt Likko in reply to Chris says:

        College students! If my exchange with @saul-degraw leaves you saying “Damn, that looks like fun! I want to join in!” then law school may be for you. That sort of thing is really what we litigators do all day long (and the actual qualifications of the experts doesn’t matter a bit, we always do the same thing)! Sign up for the LSAT today!Report

  2. Damon says:

    Everyone that I’ve ever spoke to about AP classes that has any connection to them has told me that the classes don’t offer any more depth but just accelerate the information in flow. So i kinda wonder how valuable they actually are, other than to say you’re “special” like almost every other snowflake and putting a notch on your student resume.Report

    • Morat20 in reply to Damon says:

      Well, for starters, they cover the information for the relevant AP exam. Which, if you take it and pass, allows you to test out of college classes. 100 dollar test, for an English, History, Government, Economics, Physics, Chemistry, Biology (you get the point) class you have to take in High School anyways and you have a chance to test out of 3 or 6 hours of college? A test that virtually every college accepts?

      How useless. I started college a sophomore because of AP tests. Obviously the AP classes were of no value.

      That aside, you say “accelerates the information flow” and then conclude it’s just a ‘special label’. Do you think think the classes just stop in February, having covered the material the regular classes will cover over the full school year? I’m not sure how you can teach more information per day for the same length of time, and not cover more information.

      About ten seconds of thought or 5 seconds of googling would have saved you there.Report

      • Kolohe in reply to Morat20 says:

        To be fair, there’s a lot of skating in AP classes after the tests are administered. It’s why many state teacher associations are trying to push for a pre-labor day start date to the school year against the wishes of the state tourism industries because the effective end date for learnin’ is the AP (and the like) test date.Report

      • Morat20 in reply to Morat20 says:

        Still doesn’t really change the point — the AP tests are considerably more in depth and cover more material than the standard classes, because they’re aimed at covering all the material for an associated college class.

        Claiming it’s some pointless label is, well,– honestly, it meant Damon didn’t read the original post actually, since it’s spelled out in black and white up there what the AP program is about. Unless he thinks the standard classes happen to cover the material in sufficient depth to pass the equivalent of a final in it’s college counterpart.Report

      • dhex in reply to Morat20 says:

        “A test that virtually every college accepts?”

        sadly (or not), this is no longer always the case.

        many will accept it, given some other caveats are reached; the trend tends to be either to using ap credit as a baseline hurdle to test out of 101 classes, or as an additional indicator of admission-worthiness.Report

      • Morat20 in reply to Morat20 says:

        I dunno –six or seven thousand accept it, and I can’t think of many (or any, really) major colleges or universities that don’t. The College Board ain’t small peanuts.

        But yeah, it’s 101 and 102 classes. Cal I and II. Government I and II. World and US history. Economics 101 and 102. Physics (Mechanics). Chem 101, Biology 101….

        They’re all degree-required classes, though, even if introductory. (They SHOULD be introductory, AP students are kids working a year ahead — not halfway through a degree). They’re not the pre-reqs to the required classes.

        So my kid, offhand, came in with Cal I and II, English Lit, both Governments, and a History class. (And Chemistry, I think?). All of them fulfilled requirements for pretty much any BS — there’s a required number of college level hours for English, Government, History, Economics, Science, and Math…Report

      • dhex in reply to Morat20 says:

        bluntly: the college board is in the business of selling tests. (well, in the business of selling in the information of the kids who take their tests)

        the reality is slightly more complicated, and generally caveated to varying degrees of stringency. it was different 20 something years ago. that said, almost always worth the money to take if the kid can get a 3 or higher.Report

      • Will Truman in reply to Morat20 says:

        Dartmouth doesn’t accept them, and I’ve read that a lot of colleges are becoming particular about when they will accept them. It’s something schools like Dartmouth and Harvard can get away with, while schools that have to sell themselves to quality students(which is the vast majority of them) risk running them off if they try. So most schools will accept them because they want the students that come with them.Report

      • Alan Scott in reply to Morat20 says:

        Which isn’t really surprising.

        An AP test is sort of an indication that the student has mastery of a level suitable for someone who’s completed a typical introductory course.

        When a school considers their courses well past typical, it’s understandable that they have higher standards of what counts as a pass, or that they’ll accept the test as GE credit but not as credit for major-required courses.Report

      • Damon in reply to Morat20 says:

        Accelerate the info = more dates and places
        More depth = more critical thinking and analysis

        I think I was pretty clear here.

        The folks I know that tutor this stuff tell me that the PACE is very fast with little time to actually digest and understand the information. If all you’re doing is shoving more data into the same time period and aren’t thinking about the info or analyzing, you really aren’t LEARNING anything are you? Isn’t that what education is for, learning?

        Also, there’s not just AP classes anymore. There’s all kinds of “advanced” classes. I don’t recall their names, but there’s now at least 3 types. They all seem to overlap but it seems distinctions must be made between the smart, the smarter, and the super smart. Everyone is special and everyone has to be in some class to show that they are special.Report

      • Kimmi in reply to Morat20 says:

        IB and whatever NY does (I seem to recall they had something specific) and AP appear to be functionally equivalent. You take course, you get out of college class.

        As for getting more dates and less out of it? Yes and no. I don’t think most historians are terribly qualified to discuss history in the first place (depending on the period, you get more out of an economist or a psychologist — or if you must, a proper military tactician, who can tell you exactly how foolish Robert E. Lee was).Report

      • Alan Scott in reply to Morat20 says:

        @damon , over the past several years many of the AP tests have been revised to focus less on the names/dates type of knowledge and more on critical analysis. The revised History AP curriculum being debated here is part of that revision.Report

      • Damon in reply to Morat20 says:


        All I can tell you is what I’ve heard over the last year from folks who work with / have kids in these type of classes.Report

      • Chris in reply to Morat20 says:

        I remember people gauging the quality of a school by the AP score it’d take (3, 4, or 5). I guess now it’s gonna be by whether they take ’em at all.Report

      • Guy in reply to Morat20 says:

        It really depends on the course and the institution. JHU*, for instance, will take most engineering and hard science AP tests (on a 5), but rejects humanities-type APs because it doesn’t really have an equivalent course. Some times this is a mistake – physics majors probably shouldn’t be able to get credit for E&M from an AP test, but they can because of a quirk in how Hopkins handles majors in the relevant school. In other cases, the school makes the opposite mistake. Most notably, JHU does not give credit for AP Psychology, and all the psych majors complain because the first course in their curriculum is essentially a repeat of the AP course.

        Point is, the quality and utility of any given AP is variable. AP US History is notoriously a class about passing a particular test, and not really a college level course. However, it is often a vastly better history course than the typical high school history course. AP Literature suffers a similar problem – it blocks students who want AP credit from taking more specialized high school literature courses, if they are offered. AP Physics B is also notable for not actually being a college level physics course. However, most of the AP math and science courses really are equivalent to the first semester or year of introductory courses by the same title, at least for non-majors, much as the relevant departments wish it wasn’t so.

        *Quick, any admin, check out the suffix on the email I’m using.Report

      • Kim in reply to Morat20 says:

        our AP English class was Tragedies and World Lit by any other name. (we tested for AP Composition).Report

    • A Compromised Immune System in reply to Damon says:

      @damon ‘s anecdotes don’t match the reality I’ve seen. AP classes move faster because they have more material to cover but they also cover much more depth in both the math/science courses where an accelerated pace necessarily leads to the more robust concepts in a field and in the history, language and social sciences courses where a clear understanding of not just dates and places but of the dominant theories, case studies, and historical perspectives is necessary to write a worthwhile essay about the potential topics to be presented in the tests. The 2015 AP History essay contest involves writing a critical essay regarding a subset of foundational documents throughout the history of the USA. https://www.collegeboard.org/writing-prize/theme

      The AP History test involves historical thinking skills and requires students to not just answer multiple-choice questions but to justify their answers in the form of short-answer and long essay questions. There is no way to “teach the test” for non multiple choice questioning without giving students a thorough grounding and depth in the subject.

      Knowing what I’m talking about it, it sounds to me like Damon’s just repeating common right-wing arguments without regard to whether or not they are true.Report

      • “Damon’s anecdotes don’t match the reality I’ve seen”

        Compare to: “The reality that Damon has seen don’t match my anecdotes”Report

      • Dave in reply to A Compromised Immune System says:


        Shhhhh…look at the last paragraph. He claims he knows what he’s talking about so it must be so.

        How dare you question internet expertise.Report

      • Kimmi in reply to A Compromised Immune System says:

        um, I did European History as an AP. We didn’t really read much in the way of Marxist thought — and for all that you say you get historical perspectives, this is one that we really would have benefited from learning about.Report

      • For what it’s worth, European History has a lot more “that’s not Marxist thought! How dare you!” than Marxist thought.Report

      • morat20 in reply to A Compromised Immune System says:

        He is right that the way the AP tests are structured, you can’t really ‘teach the test’ the way you can standardized tests.

        It’s as close to a comprehensive final for 100% of your grade for a college class as you can get for a nationwide test. (That’s why the College board publishes those curriculum guides and such. It’s based on input FROM colleges on what they teach in the relevant history class and what they expect people who pass that class to know and be able to do).

        You can’t really pass it without knowing the material.

        I mean, the Cal I and Cal II AP exams? It was a bunch of Cal I and Cal II problems. You not only had to do them, you had to show your work.

        The Physics AP exam was the same way. The English Lit one was a great deal of “Did you read and understand this work”, some “Read this short work/poem and show you’re capable of analyzing and understanding it” and a fair bit of writing. The English Comp test was about 6 hours of essays.

        Whereas, oh, the required Math/Reading/Whatever tests for high schools are tons of scantron “fill in the best answer” stuff with an essay on the back end if it’s the English one.Report

      • Damon in reply to A Compromised Immune System says:


        Yeah, living in a solid blue state, interacting with women who live in the MOST LIBERAL county of that state, many who actively campaigned for Obama, and who self describe themselves as “VERY LIBERAL”. Somehow I don’t think what they are telling me are “right wing talking points”. They could be wrong on the information, but they aren’t spouting Republican memes they got from watching Fox News.Report

      • @morat20
        Oh yes you can. I took the AP US History exam in 2011. I was drilled on multiple choice until I could correctly answer 65-80% of typical AP US multiple choice questions, taught what was essentially a regular expression for generating a top-scoring DBQ essay answer, and enough random facts to generate a cogent answer to one of the four provided free essay responses. I was advised that I should take a nap on the other essay question, because by that point I would already have earned a 5. My US history class was excellent because I had a good teacher, but that had nothing to do with the expectations of the AP test.Report

      • @morat20

        Reread your comment, so I’m going to provide a more general response –

        You’re right for most of the other APs I took. AP chem essentially taught the test, but according to everyone I know who took intro chem here it was still essentially the same as that course.

        I have met nobody who has enjoyed a 100-200 level chem course, by the way. My friends all hated them, for various reasons, and I see no need to take them.Report

      • Guy,
        did your friends get poisoned while taking them?
        … yeah, there are some classes taking at a community college is not recommended.Report

  3. Kolohe says:

    the itemized list isn’t terrible.

    I mean, imagine the hullabaloo were a Democratic state legislature include a speech by Malcolm X in the required reading list.Report

    • Kazzy in reply to Kolohe says:


      I’d like to see them flesh out how the AP course fails to meet the criteria or why they otherwise feel it insufficient. I didn’t read the entirety of the bill, but I didn’t see that actually addressed other than the bill simply asserting it.

      Regardless, we should be letting educators determine curriculum, not legislators. Social studies/history will inevitably be the most politicized.

      Of course, this dunderhead doesn’t seem to recognize the difference between content and skills. You could use any or all of the listed documents and still construct a pretty strong anti-American curriculum.Report

      • Kolohe in reply to Kazzy says:

        At what point does small-d democratic accountability touch the functions of the State? One could easily say that we should be letting the military determine what countries to bomb, not congress, but that would be wrong.

        And I ain’t that big of an opponent of technocratic government. But the legislature setting curriculum decisions and limits is very much in its purview. And even if delegated to a commission or board (like, for example, the Empire State does, the appointment process in a solidly red (or solidly blue) state will attain in short order an amenable supervisory element that bends towards the will of the political party that dominates the legislature. Unless you want to just go full Marxist and consider the people too stupid to take care of themselves so they must be dictated to by their betters.Report

    • Michael Cain in reply to Kolohe says:

      Separate from any issues about the content, I object to the disrespect shown to the people of Oklahoma by the process used. It’s a strike below amendment that replaces the entire content of whatever the original bill was. Assuming Oklahoma’s legislative process is typical, the content of an amendment is regarded as secret until the moment that the sponsor actually introduces it. So there would be no publicity, no opportunity for the public to know it was coming and be present to offer testimony.Report

      • Kolohe in reply to Michael Cain says:

        It’s only a 9 page bill and the committee substitute is largely the same as the original one submitted. (and both the original bill and the amendment that replaces the original text in its entirety are sponsored by Fisher.)

        After Obama jettisoned his pledge to allow time to read the bill very early in his administration, (much less doing the complete rewrite amendment thing for PPACA) I’m not very bullish on parliamentary procedure criticisms.Report

      • Kimmi in reply to Michael Cain says:

        not like reading PPACA would have helped, anyway. Considering all the industry involvement in setting “standards” after the fact…Report

      • Kolohe in reply to Michael Cain says:

        Yes, a good deal of the real work of legislating (at the national level*) is done via the Federal Register now, because of Congressional abdication and the sheer complexity of modern society. But that just makes the ‘no time to read the bill’ even more of a red herring.

        *at the state level, there’s still a lot done in the literal lobby of the capitol.Report

      • Jaybird in reply to Michael Cain says:

        The suggestion that I read the other day that said “if a judicial body’s review of a law isn’t unanimous, the law should be tossed out” is one that I kinda like.

        (The justification was that if seasoned legal professionals couldn’t agree on how a law was to be interpreted, the population couldn’t be expected to understand how it should be interpreted and, as such, it needed to be rewritten.)Report

      • The justification was that if seasoned legal professionals couldn’t agree on how a law was to be interpreted, the population couldn’t be expected to understand how it should be interpreted and, as such, it needed to be rewritten.

        I’d be willing to bet a pint that if you ran the enormous mass of Colorado state statute past the Colorado supreme court, the vast majority of it would get unanimous agreement on how it should be interpreted. Certainly >95%, probably >99%. Most bills introduced in the legislature each year are clear and unambiguous — in part because they are drafted by hard-working professionals whose job is to make them clear [1]. Yes, you have to learn the “language” that’s used, but heck, Fortran is clear and unambiguous and completely opaque to 99% of the population.

        The conflicts generally arise over things in the constitution, which are often intentionally vague, and stuff done by initiative, where there’s no requirement to run it past Legislative Legal Services for an opinion first. For example, Lobato v. Colorado spent most of a decade bouncing up and down the court system deciding whether some hundreds of pages of clear and unambiguous state school financing statute was consistent with the constitutional phrase “thorough and uniform system of free public schools”.

        [1] Every bill, including those drafted by the lobbyists, is at least reviewed by Legislative Legal Services, part of the permanent non-partisan legislative staff. If LLS says a bill is ambiguous, that’s going to be brought up in committee hearings and on the floor.Report

      • Jaybird in reply to Michael Cain says:

        Awesome. I have no problem getting rid of the other 1%-5%. We can even be pleased by how little impact it’d actually have in practice.Report

      • Brandon Berg in reply to Michael Cain says:

        The suggestion that I read the other day that said “if a judicial body’s review of a law isn’t unanimous, the law should be tossed out” is one that I kinda like.

        This gives every individual judge on the supreme court of the jurisdiction in question veto power that, in practice, can be exercised for any reason. They’re called supreme courts for a reason, namely that nobody has the legal authority to second-guess them, short of a constitutional amendment, which they can then “reinterpret” as they see fit.

        In Gonzales v Raich, not one, not two, but five members of the Supreme Court ruled that Congress’s authority to regulate interstate commerce extends to activity that is neither interstate nor commerce. You’re assuming good faith, and history shows that to be a sucker’s bet.

        Now, I’m all in favor of making it harder to pass and uphold new laws, but giving each of nine people an absolute veto over any law might be a bit much.Report

      • @jaybird , Just for the record, I can’t agree with your “I have no problem getting rid of the other 1%-5%”. Much of that statute is required by the constitution, is clear and unambiguous (eg, the school financing statute I mentioned), and is only subject to opinion because the constitution is vague. Of course, I also belong to the school of thought that says constitutions ought to be vague — I am terrified at the thought of something as detailed as the annual school finance act, with its assorted revenue sources and allocation formulas, being embedded in the constitution and changeable only by the voters in a general election.Report

      • Jaybird in reply to Michael Cain says:

        Depends on whether you think that more of our problems lie in the lack of a law than in how we apply the inconsistent interpretation of our laws.

        I’m pretty sure that the areas in which a law is obviously required should be able to result in unambiguous laws being written in response.Report

      • Jaybird in reply to Michael Cain says:

        Michael, for what it’s worth, I’d be fine with saying that cases of whether a law is constitutional probably ought to bounce around the courts for a while as they chew on whether a law is or is not indicative of uniformity.

        I’m not really talking about questions of constitutionality. I’m talking about looking at a law and saying “wait, what do they mean by ‘must not include X’ and being unable to figure out whether that means whether X can be included” at the extreme and, in a more likely sense, dealing with actual laws that are, in fact, ambiguous.

        If a law is unambiguous but of questionable constitutionality, that’s another kettle of fish. (And, as you’ve demonstrated, happens *NOW*.)Report

      • We’re probably talking past each other somewhat. I say that the state constitution “obviously requires” that the school finance act be passed each year: “The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.” Plus some other stuff about the minimum number of schools per district, etc. I think I hear you saying that, since the supreme court can’t decide unanimously on whether a particular school finance bill — a bill that they all agree is clear and unambiguous — satisfies the “thorough and uniform” part, there shouldn’t be a school finance bill. Or that the “thorough and uniform” phrase should be dropped. Or that the public school system should be dropped.Report

      • Oops, comments crossing in the mail. Disregard my last one.Report

      • To pick a different example where there is ambiguity, consider the police listening in on voice conversations carried by some form of technology. Wiretap laws, written in response to court rulings on privacy, were clear and unambiguous for 50 years, when all there was was wireline telephony. Then we got short-range wireless phones that used simple modulation schemes on known frequencies. Then we got scrambled versions of those. Then we got much longer range cell phones. Then encrypted digital cell phones. Then the internet and strong encryption for real-time audio transmission, with no way to determine if two parties are using their computers as phones or if they’re simply transferring copies of files of random numbers.

        I believe that there damned sure ought to be a law that limits the police’s ability to intercept my communications. But short of “The police may not intercept real-time audio communications between two or more people”, there’s no way to write a law that doesn’t have wiggle room in there somewhere.Report

      • Jaybird in reply to Michael Cain says:

        There isn’t a way to say “if Police are going to use technology to listen in on conversations between two or more people, it must require a warrant” unambiguously?

        (“Does a hearing aid count as using technology? Because if it doesn’t, it discriminates against our undercover police officers infiltrating deaf culture gangs.”)Report

      • Some judges will say there’s an implicit “The police are allowed to listen in on any audio communications if they have a warrant” in there, some won’t. Some judges will say there’s a difference between putting a tap on an unencrypted phone loop in the telco central office, and putting an audio tap on the headset I use with my computer. The latter is necessary if you and I use strong encryption, a one-time pad system for random keys, then burn the paper and stir the ashes. You are unlikely to get unanimous approval from an arbitrary panel of judges over which audio channels can be tapped, and when.Report

      • @jaybird FWIW, in the realm of criminal statutes there’s already a doctrine that effectively takes the approach you’re suggesting. The doctrine is called the “rule of lenity.” Essentially, the doctrine holds that if there is any ambiguity whatsoever in a criminal statute, it needs to be construed against the state and in favor of the criminal defendant. That of course leaves open the question of whether something’s ambiguous, but if the judges can’t agree on how a given criminal statute should be interpreted, in most instances I suspect you’ll find that the rule of lenity winds up being the deciding factor. Theoretically, if the question is whether or not the statute is ambiguous, then the judges will at least roughly agree on how the statute is supposed to be interpreted. This doctrine is important and appropriate, and in my view probably isn’t invoked enough.

        But I’m not thrilled with the idea of expanding this doctrine beyond the criminal realm, though, since it is not at all clear whose interests are at stake in any given such instance, and since, as @brandon-berg points out above, it creates a huge incentive for judges to act in bad faith. Outside the criminal realm, construing an ambiguity against the government is problematic because it’s not often going to be clear what “against the government” really means. In the King case, for instance,* it’s not at all hard to envision a scenario in which President Romney’s Administration took the view that it would be inappropriate to recognize credits for federally-purchased insurance and was sued by someone who was denied their tax credit and thus hit with a bill from the IRS when they filed their taxes on April 14. Interpreting the hypothetical ambiguity “against” the government there would result in precisely the opposite result of interpreting the ambiguity “against” the government now.

        Even if, instead of an extension of the rule of lenity, we used the proposal of “any dissent to an interpretation should require the statute to be stricken and redrafted,” we still wind up with a situation where the “government’s” interest may well be to assert that the statute is ambiguous such that it must effectively be repealed, especially if that statute was signed by a previous administration.

        Nor would this only come up in cases of partisan attempts to effectively veto established legislation. It would also come up in cases where the Executive branch took issue with one of the precious few restraints left that Congress has imposed on it. To say the least, an out of control Executive would love to have a situation where getting one judge to disagree with the other judges (whether in favor or against the Executive’s interpretation) revokes the restraining statute entirely.

        *This should not be regarded as me opining on the merits of the King case, just on whether it’s clear that overturning the statute as ambiguous would be “against the government.” I haven’t read the briefs and haven’t followed it closely enough to have any kind of an opinion on the proper interpretation of the law. I will say that the Plaintiffs’ argument is far from crazy here, though it seems to me that Chevron deference is broad enough that the Administration should probably win.Report

      • You are unlikely to get unanimous approval from an arbitrary panel of judges over which audio channels can be tapped, and when.

        To take that farther, my own opinion is that almost any law that touches on modern technology is going to fail Jaybird’s test eventually. Communications, medicine, pollution… consider this sentence (from memory so probably not exact, but the statute is equally blunt): “The agency shall regulate any stationary source that emits more than 250 tons per year of any pollutant.” Last year the SCOTUS split into three groups, each with a different interpretation of what that sentence meant. One group said that “any source” didn’t actually mean all sources; one group said that “any pollutant” didn’t actually mean all pollutants; and one group said that because no time frame was indicated, the agency could regulate big sources first, smaller sources later (with a sort of implied “as much later as they want”). In the various concurrences and dissents, though, all of them said that the EPA couldn’t start a rule making to do what the statute said, clearly and unambiguously, that they were required to do.Report

      • morat20 in reply to Michael Cain says:


        Plaintiff’s brief falls apart when the isolated clause is viewed as part of the statute as a whole. The plaintiff’s interpretation is contradicted by both the intent and clear language of the rest of the law. Courts are supposed to view the language in context — this really shouldn’t have passed the smell test, because the rest of the statute is clear that federally created exchanges are the same as state exchanges.

        There’s a few other serious problems (for instance — plaintiff’s briefs require Congress to have acted in a way that would cause serious impact on the states, but that requires clear warning to the states — which didn’t happen. Texas, for instance, filed an brief on behalf of the US government stating just that — that they were given no such warning that the federally backed exchanges wouldn’t allow tax credits) that are pretty damning.

        The whole case falls apart under inspection. There’s literally no there there — the isolated clause is ambiguous at best and standard judicial practice is to (1) let the administration resolve it and (2) if possible, resolve it in such a way as to salvage the intent of the law.

        But really all you need to know is this: The plaintiff’s claim that the lack of subsidies to the states was done as a threat to force the state’s to make exchanges. Except no one was ever threatened with that, or made aware of the threat. In short, the claim that Congress whispered the threat alone in the forest where nobody could hear.

        That’s not a winning claim.Report

      • @morat20 As I said, my sense is that the administration should probably win the case on Chevron deference grounds. As I’ve read at least some of the briefs now, I’ll also say that my sense is that, unlike in past cases where I’ve been critical of their approach, the Administration took this case seriously in terms of its arguments.

        But just because I think the Administration should win and, from what I’ve read thus far (still woefully incomplete), made the stronger argument, doesn’t mean that the Plaintiffs’ position is absurd.

        There’s a couple of problems with relying on legislative intent here. First, legislative intent is pretty much irrelevant no matter which way you slice it, or at least it should be. True, both sides try to use it to bolster their positions, but in the end I don’t think it’s going to make much difference, nor should it. The reason for that is the fact that even if you believe legislative intent is discernible (count me amongst those who are skeptical that it is, with the exception of official committee reports)*, you ordinarily don’t even reach the question of legislative intent unless there’s an actual ambiguity.

        But since we’re in the realm of administrative law, pretty much any ambiguity here means that the Administration should win on Chevron deference grounds. And I increasingly agree that it’s ambiguous or at the very least self-contradictory in a way that makes it ambiguous.

        However, I can’t say that it’s a ridiculous argument to say the opposite – the language in the statute is abnormal in its specificity: an “Exchange established by the State under Section 1311.” That seems pretty clear in a vacuum, and the Plaintiffs have a pretty good response to the claim that this language has to be interpreted the way the government wants with respect to the section on “qualified individuals.” Namely, they respond, applying the Plaintiffs’ interpretation to that section does not have nearly the effect that the government says it would, and for several pretty strong reasons. That argument is the government’s strongest argument, and the Plaintiffs’ rebuttal is pretty direct, even if I think they still fall short.

        Context definitely still causes problems for the Plaintiffs’ argument, but the thing is that context also undermines the government’s argument – usually context requires that language not be read as being superfluous, yet the government’s reading effectively says that the language “Exchange established by the State under Section 1311” can be read as no more and no less than just “Exchange,” rendering everything that comes thereafter superfluous.

        There’s a couple of reasons I think the government still should win, though: (1) the Plaintiffs’ interpretation would likewise render language of the statute superfluous; (2) the language on which the Plaintiffs hang their hat doesn’t explicitly limit subsidies to any particular class of individuals – it just sets forth a formula for subsidies where certain factors are present; and (3) the fact that statute requires states to set up Exchanges using “shall” language, even if it ultimately lets them off the hook for Constitutional reasons, which to me provides significant support for the government’s “legal fiction” type argument.

        As a side note, one thing I haven’t seen addressed in either brief strikes me as being potentially decisive in the government’s favor, but since I haven’t seen anyone else mention it, maybe I’m missing something here. Basically, the definition on which the Plaintiffs’ entire argument hinges – the definition of a “coverage month” – applies by its terms only “For purposes of this subsection.” (My emphasis). The language providing the formula for calculating the tax credit/subsidy is contained in the same section but a different subsection. If that’s the case, then the term “coverage month” is undefined for purposes of the subsidy, and the IRS is left to its own devices to interpret that phrase, end of story.

        On the other hand, there’s an argument that I don’t see in the Plaintiffs’ briefs that would seem stronger than what they argued. Namely, the part of the subsection discussing the formula for calculating the tax credit says that the formula is the “lesser of” the premium paid by the taxpayer when enrolled “through an exchange established by the State under 1311 of the [ACA]” or an amount based on the second-lowest cost silver plan. If the Plaintiffs’ interpretation of “exchange established by the Statue under 1311” is at all correct, then this amount would always be zero, but they don’t make that argument.

        *I’ve found that when you go outside of official committee reports, it’s almost always possible to find something that supports any position that you want. Legislation, particularly legislation that is narrowly passed, is almost always the result of a boatload of horse-trading and compromises (and the ACA is certainly no exception, even if the compromises were almost all intra-party in this case), not to mention cajoling, puffery, and individual salesmanship.Report

      • @morat20 I’ll just add this, quickly – it seems pretty likely to me that the “established by the State” language was mistakenly included and no one picked up on it at the time. But courts aren’t typically in the habit of changing the language used in a statute just because there was a mistake.Report

      • Morat20 in reply to Michael Cain says:


        Well, one standard interpretation rule is the one against superfluous statements — that is, if there are two meanings and one renders other aspect superfluous — you take the one that gives the otherwise invalidated bit meaning. (Hence the problem with the plaintiff’s claim — it renders a number of requirements that are detailed to federal exchanges superfluous. Why require the Feds to set up a state exchange that can have no eligible insurance plans?),

        Then there’s the clear statement rule — that’s violated clearly under the plaintiff’s view. (To wit: The bill strips non-participating states of subsidies, a rather substantial policy that was not elucidated at the time the decision was made on whether to make their own exchanges. The state briefs cover this extensively),

        As for the last bit — court’s won’t construct an unambiguous statement against itself, even to save that portion of the law. But given an ambiguity, they will move to unify that ambiguity with the rest of the statute and legislative intent.

        Which is where, again, the plaintiff’s falter. They have to prove the statement is unambiguous — which is why they spend so much time pounding the table claiming Congress always intended to deny the subsidies. Because if the courts accept that it’s ambiguous, their standard approach would be to resolve the ambiguity in favor of making it harmonious with both the rest of the law (or call it Chevron. Same diff in the end).

        The congressional brief is pretty good. As is the government’s brief

        Basically there’s two legs to the plaintiff’s case — one, the straightforward argument that the language isn’t ambiguous at all (ambiguity loses for them) followed by a lot of “This is proof that Congress meant it our way” that’s light on, well, anything. Because they’ve got to prove it’s unambiguous in their favor. (There’s a third leg, a claim Chevron shouldn’t apply, but I don’t think that’s particularly strong and that only comes into play AFTER determining if the ambiguity exists, and if it does, does the rest of the statute clear up the ambiguity? If not, then Chevron comes into place).

        Anyways, the briefs are really worth a read.Report

  4. kenB says:

    I think we’re missing some context — there’s apparently a controversy specifically about changes made to the AP US History test for 2014 — see e.g. here. The proposed bill is saying that funding should be cancelled until such time as the College Board reverts to the prior version. Whether or not the objections to the changes are reasonable, the idea that he’s objecting to AP tests in general seems wildly overblown.Report

    • Morat20 in reply to kenB says:

      Oh yeah, I read that. It was pretty hilarious.

      It starts by assuming that ONLY the AP material is taught (it’s not. That’s the material required for the test, which is a substitute for what colleges commonly cover for the equivalent class).

      It’s honestly the sort of dumb crap you get when someone scans a top-level document, compares it to whatever vague recollections they have on the topic from 40 years ago, and declares it wrong. The history version of ‘We need to get back to teaching the 3 Rs!” even though they didn’t actually spend that much time on them 40 years ago, either, that’s just all you remember of your primary education because it’s been 40 years and also you’ve not thought about school since you left.

      And, of course, the fact that it’s (by definition) covering college level material. Real history is complex.

      The Revolutionary War wasn’t fought over a tax on tea, you can’t discuss slavery without talking about industrialization and economics, and the US Constitution was a compromise document by people who argued about it bitterly — in short, it was made in exactly the same way any political bill is. Lots of people argued, horse-traded, negotiated, and settled on vague language they hoped they could spin later…..

      I don’t know why history seems to be one of those areas where black and white thinking is so common. “History is written by the winners” is a ridiculously old cliche, for God’s sake. Why some people want it taught as myth is beyond me, and why others think it’s just a recitation of dates and names is just as crazy.

      History is life. It’s messy, and complicated, and has a million moving parts, and is what happens when economics, social trends, cultural trends, random events, etc come slamming together. And then explode.Report

      • Brandon Berg in reply to Morat20 says:

        It starts by assuming that ONLY the AP material is taught (it’s not. That’s the material required for the test, which is a substitute for what colleges commonly cover for the equivalent class).

        Are you saying that teaching to the test isn’t a problem because the class can always cover more material? Do you think the same about Common Core?

        That aside, is it actually true that there’s enough slack in the AP History curriculum to allow spending a lot of time on additional material? According to this, the modal score is 2, with just a little over half of students passing with 3 or higher.Report

      • Kimmi in reply to Morat20 says:

        we certainly had enough time in AP biology to cover things that are grad student work.
        AP Western Civ? Yeah, we covered more than what was on the test, but that’s more of an “in depth” rather than “different subject”Report

      • morat20 in reply to Morat20 says:

        Are you saying that teaching to the test isn’t a problem because the class can always cover more material? Do you think the same about Common Core?
        No. I said that the AP requirements are not a requirement for the history class itself — it is the material and requirements tested for the AP test itself, which itself is effectively a comprehensive final for a introductory level college history class.

        That is the required material for the AP test. Which is not the same thing as the required material for the state history classes. Perhaps there’s 100% overlap, perhaps there’s not.

        And you can’t really ‘teach the test’ for AP tests. They’re not standardized tests in that sense. Again, they’re more akin to a final exam. They’re not testing basic math or reading skills, they’re testing whether students have learned the material for, say, US History 101 for college credit. Different methodologies entirely.

        That aside, is it actually true that there’s enough slack in the AP History curriculum to allow spending a lot of time on additional material? According to this, the modal score is 2, with just a little over half of students passing with 3 or higher.
        Yes. First, whatever the state requirements are they’re going to be easier, simpler, and cover less than the college level ones. The AP material will cover the vast bulk of the high school material in passing.

        In fact, AP classes generally run as “high school plus” — that is, they teach the standard state-mandated material PLUS the AP stuff. There is no “AP curriculum” that’s handed down that teacher’s adhere to. There’s just the “this is the stuff we’re testing and what we’re expecting” and AP classes integrate that into their existing curriculum.

        Texas’, for instance, has their underwear in a knot because they’ve got a bunch of Texas-specific Civil War stuff they want that’s not part of a standard US history class. (Because, you know, in a regular US history class there’s just not a state-specific focus). For students in an AP class, if that adds two days to the curriculum I’ll eat my hat.

        As for the scores — honestly, they should be low. It’s juniors and seniors trying to test out of college classes. Classes which may or may not be foundational to their education, depending on their major. They SHOULD be hard enough to ensure that students who get the credit really know the material.Report

  5. Brandon Berg says:

    To be honest, I would have guessed Democrats, because inequality and underrepresented minorities. But if the headline had specifically indicated American History, I probably would have guessed Republicans.Report

    • Kimmi in reply to Brandon Berg says:

      Dude, think about it. It’s freaking Oklahoma. The democrats have no power to do anything there.
      This isn’t Oregon, where Republicans and Democrats both ride crazy horses and do whatever they feel strongly about.Report

  6. Burt Likko says:

    I have suggested evolution of the advanced placement courses, although not for these reasons, and not without a replacement coming into existence. My concern arrested rested on a cocktail of grade inflation and concern about overreliance on memorization and insufficient development of integrative learning skills due to the broader context of dumping dozens of hours a week of homework on high school students.

    Getting rid of advanced placement classes because they might teach students that there are things in American history that were not unremittingly positive is asinine.

    (Edited post facto to correct voice recognition error.)Report

    • morat20 in reply to Burt Likko says:

      I’m pretty fond of dual-credit classes myself. If they were around as an option versus AP tests, I’d have probably gone that route. They’re harder to set up though, and cost more.Report

      • Kimmi in reply to morat20 says:

        it was pretty easy to get classes at the local community college (though I needed a car for transportation). I think they were around $300 apiece, or something crazy cheap (state subsidized).

        Since most schools will accept transfer credits easily, they work a bit better than ap.Report

      • morat20 in reply to morat20 says:

        Dual credit stuff means your high school accepts the class for your high school graduation requirements. It’s also often done during your school day (you’re either bussed over, walk over if you’re close, have a professor come to the school, or do it right after school — again with transportation).

        A dual credit US history class is a US history college class taught by a professor, with whatever additional information is needed to cover the high school requirements in addition to the college’s own requirements. (Like, for instance, Texas’ has some Texas-only stuff it wants covered in a given history class as part of it’s official state curriculum).

        You end up with an official class at that college, and when you ‘go off to college’ you bring along your transcript from whatever college your school is partnering with.

        Some community colleges will also let high schoolers take some classes at night or during the summer for college credit, if they meet certain criteria, but it’s easier for everyone involved if it’s done dual credit. But it DOES require you pay the cost of the college class either way.

        I prefer it because the class can be a pretty good bridge between the requirements and expectations of high school and college, and you’re not banking it all on a single test. (Some people are just poor test takers.)Report

  7. Patrick says:

    During discussion and debate, however, it was suggested that AP courses are similar to Common Core, in that they could be construed as an attempt to impose a national curriculum on American schools.


    I’ve had this argument before, and I guess I’ll have it again:

    Common Core is not a national educational framework. Common Core is not a top-down curriculum design.

    Common Core:

    “The state-led effort to develop the Common Core State Standards was launched in 2009 by state leaders, including governors and state commissioners of education from 48 states, two territories and the District of Columbia, through their membership in the National Governors Association Center for Best Practices (NGA Center) and the Council of Chief State School Officers (CCSSO). State school chiefs and governors recognized the value of consistent, real-world learning goals and launched this effort to ensure all students, regardless of where they live, are graduating high school prepared for college, career, and life.”

    AP is also a private entity.

    These people can’t even get their bugaboos straight any more. If it’s bad, it must be the Federal Government Doing It. Even when it isn’t.Report

    • Burt Likko in reply to Patrick says:

      Is this something you find yourself having to address again and again on the campaign trail, @patrick ? What kind of resistance to Common Core are you finding in your canvassing?Report

      • morat20 in reply to Burt Likko says:

        There is a strange conflation with Common Core and the Federal government, even though the latter has nothing to do with it.

        Which is odd, as it’s states voluntarily working together to create a uniform standard, which is being objected to by the people who normally scream ‘State’s Rights!’ about everything.

        It’s weird.Report

      • Saul Degraw in reply to Burt Likko says:


        There are plenty of people on the left who also dislike or at least are currently suspicious of the common core as well. I am not talking about far-left types but mainstream liberals like me who think the Common Core is largely a product of the corporatization of American Education and getting rid of anything that might encourage non-STEM intellectualism. Common Core feels like it is from the Michelle Rhee/Campbell Brown school of “education reform” and this is an issue that drives the Democratic Party apart. I am firmly on the anti-Rhee and anti-Brown side.Report

      • morat20 in reply to Burt Likko says:

        Oh yeah, I’ve seen that too. They’re just not the ones conflating common core with the heavy hand of the US government.

        Education is a weird policy area. Everyone thinks they’re an expert, because they all attended school. Which means actual experts and people who teach are discounted, because teaching is easy.

        You just teach kids kid stuff. You know, like high school math or reading. It’s not like you’re teaching hard stuff. If it was hard, you’d learn it in college! So teacher is therefore easy, and your experience as a 16 year old 30 years ago is equal to, say, a 20 year teacher or an education expert.Report

      • Kimmi in reply to Burt Likko says:

        in our society, we conflate the role of teacher and entertainer, by minimizing the consequences of pupils’ inattention.

        Try telling most folks that the real job of a high school teacher is keeping randy teenagers focused on dusty history or cold mathematics.

        There are other ways one can teach, ones that penalize inattention more severely.Report

      • Patrick in reply to Burt Likko says:

        Actually, most folks on the campaign trail either don’t mention Common Core at all, or they ask fairly specific and reasonable questions about whether or not I think the district is implementing Common Core well.

        But on Facebook, I see a lot of ranting about Common Core that isn’t really about Common Core at all… people attribute all sorts of weirdness to Common Core particularly because it is new and different (and, for some, because the Evil Federal Gubmit is imposing it)

        There are some particularly cogent arguments for or against certain parts of Common Core, but those are usually buried under hysteria.Report

      • A Compromised Immune System in reply to Burt Likko says:

        These people can’t even get their bugaboos straight any more. If it’s bad, it must be the Federal Government Doing It. Even when it isn’t.

        There is a strange conflation with Common Core and the Federal government, even though the latter has nothing to do with it.

        I’ve gotten this directly from people I know. Whatever bothers them is always a federal government plot. Or it’s a plot to keep them from inserting bibles into the biology curriculum or something.

        I can’t keep their arguments straight and it’s not really worth trying to. Trying to reason with them is like playing chess with a pigeon and usually what they’re complaining about is all in their sorry heads. The few times I’ve tried it just ends in them screaming a lot and making a scene while everyone else around wishes that they’d shut up and curses whoever tried to talk sense into the screamers.Report

    • Chris in reply to Patrick says:

      System 2 —> System 2 —> System 2 —-> Buzz Word —> SYSTEM 1!! —> SYSTEM 1!!! — [System 2 tries to jump back in] BLOCKED! SYSTEM 1!!!Report

  8. Anne says:

    Looks like after subjecting our state to National ridicule, yet again…..the bill is being not withdrawn but reworked (sigh) from the article linked to below

    “We’re trying to fix the bill,” Fisher said. “It was very poorly worded and was incredibly ambiguous, and we didn’t realize that, so it’s been misinterpreted. We’re going to clear it up so folks will know exactly what we’re trying to accomplish, and it’s not to hurt AP. We’re very supportive of the AP program.”

    Republican House Floor Leader Jason Nelson said the rewritten bill will not call for elimination of AP history, but will merely ask the state Board of Education to conduct a review.


    • Chris in reply to Anne says:

      Well, at least they respond to this kind of pressure, don’t simply view it as a sign they’re doing something right. If that were the case, they’d be Texas Republicans instead.Report

      • Will Truman in reply to Chris says:

        I’ve thought from the start that they were going to have to back down. There are a lot of Republican parents who want their AP classes.Report

      • Chris in reply to Chris says:

        Yeah, I was trying to suggest as much with “until it dies in committee” above. These things are political theater, not any actual attempt at policy. I’m sure that when these folks are up for reelection, at least one of their ads will mention their attempts to make Oklahoma schools teach how great America is.Report

      • morat20 in reply to Chris says:

        I’ve thought from the start that they were going to have to back down. There are a lot of Republican parents who want their AP classes.
        That’s not restricted to this issue, or Republicans.

        It’s human nature to get all worked up about SOMETHING in the general and then go “Oh wait” when the specific comes home to roost.

        NIMBYism, “Get your government hands off my Medicare”, etc. Lots of things sound great in theory and are supported right up until the actual “in practice” part gets spelled out.Report

  9. Michael Cain says:

    The school board in Jefferson County, Colorado has decided to drop its own review of the AP US History curriculum and defer to the district’s standard review process. Jefferson County was the scene of large student protests after the board initially proposed changing the AP curriculum last October (no link so the spam filter doesn’t eat this).Report