Thursday, August 21, 2014
The determinative facts are hard to confirm at this point, but based on news accounts, a student in Summerville, SC made a series of fictional story posts on Facebook as part of a class assignment just before the school year started. His fictional story was about killing a pet dinosaur and buying a gun to do it. School officials reported him to the police. On the first day of class, the police then detained him and searched his locker and backpack. They did not find anything, but according to the police, the student became irate over the search. News reports indicate he was arrested and charged with disorderly conduct under the state's Disturbing Schools Act, although I have not confirmed the arrest and charge. The school also suspended him for the week. Whether the school suspended him for the facebook posts, the purported disorder, or both is unclear.
Based on the current facts as presented, the case seems to raise free speech, substantive due process, search and seizure, and statutory infraction issues. The devil is in the detail, but it may well be an example of breaching the "Constitutional Limits of Zero Tolerance," which I explain here. For more on the facts of this individual student's case, see here.
Wednesday, August 20, 2014
A Louisiana judge yesterday enjoined Gov. Bobby Jindal's move to block the implementation of the Common Core standards in Louisiana. The judge's grant of a preliminary injunction in favor of a New Orleans charter school group and the state Board of Elementary and Secondary Education comes after Gov. Jindal threatened to cancel the state procurement contract with with the Partnership for Assessment of Readiness for College and Careers (PARCC), the testing group that develops exams based on the standards. In the suit, Jindal argued that the BESE violated state procurement law in its contract with PARCC and delegated its authority to set education policy to an outside party. Gov. Jindal's position conflicted with that of state education superintendent Jim White, who is a Jindal appointee. Gov. Jindal became a staunch critic of the Common Core standards this year, saying that the standards reflected the federal government meddling in state education. Judge Todd Hernandez cited the disruption to education at the start of the school year as influencing his decision, writing that "[t]he loss of time is irreparable. With each passing day teachers and parents lose time preparing students for high stake testing, and there is a lot riding on the student's successful performance on these tests." Gov. Jindal's staff told the New Orleans Times-Picayune that he will appeal. Read the opinion here.
Education Law Center Calls on New Jersey to Assess Effect of Charters on Segregation and School Funding
The following is a repost of an Eduction Law Center press release:
In comments filed today, Education Law Center is calling on the NJ Department of Education (DOE) to issue rules requiring the State Education Commissioner to assess the impact of NJ charter schools on both student segregation and local school district budgets.
"The New Jersey Supreme Court has made clear the Commissioner's obligation to assess whether a proposed or operating charter school is causing student segregation or depriving district schools of necessary funding, both of which would violate the right of district students to a thorough and efficient education under our State Constitution, " said David Sciarra, ELC Executive Director.
"The State's failure to properly codify this obligation in the rules governing New Jersey's charter school program is a violation of constitutional law," Mr. Sciarra added.
In several rulings, most recently in December 2013, the NJ Supreme Court firmly established the responsibility of the State Commissioner to determine whether a proposed charter school would exacerbate racial segregation and/or deprive students in district-run schools of essential funding.
Erika Wilson's new article, Toward A Theory of Equitable Federated Regionalism in Public Education, 61 UCLA L. Rev. 1416 (2014), is now available on westlaw. It is sure to catch the attention in future scholars, hopefully policy makers as well. Her abstract offers this summary:
School quality and resources vary dramatically across school district boundary lines. Students who live mere miles apart have access to disparate educational opportunities based on which side of a school district boundary line their home is located. Owing in large part to metropolitan fragmentation, most school districts and the larger localities in which they are situated are segregated by race and class. Further, because of a strong ideological preference for localism in public education, local government law structures in most states do not require or even encourage collaboration between school districts in order to address disparities between them. As a result, the combination of metropolitan fragmentation and localism in public education leads to the exclusion of poor and minority students from access to high-quality school districts, which are largely clustered in more affluent and predominately white localities.
Tuesday, August 19, 2014
At the surface level, California's new funding formula is impressive in its structure. It sets a base per pupil grant for all students, adds 20 percent to that base for each disadvantaged student a school enrolls, and allots a 50 percent bump per pupil for schools enrolling more than 55 percent high needs students. In other words, it ensures that all schools receive some supplemental resources for every disadvantaged student, but focuses the most resources on high poverty schools, where research shows that concentrated poverty depresses academic outcomes. Implicit in this framework is the notion that low-poverty schools do not need significant funds to support low-income students. Hence, the basic 20 percent bump is below the additional funding that most research says high needs students need. Conversely, high poverty schools need an exponential bump, which this formula aims toward. This type of formula is generally consistent with the formula that I have argued Congress should adopt for federal funds (see here for more). If a critique of California's formula is to be had, it may be in regard to the base amount itself.
Monday, August 18, 2014
NPR's piece yesterday on the Atlanta cheating trial touches on broader points of how educators can find themselves moving from an accountability culture to academic rationing of time to meet standardized test expectations. NPR discusses how we may think of cheating as outlandish behavior but that high-stakes testing at any level (bar exam passage rates, anyone?) can lead educators to adopt tactics that fall short of cheating but are also educationally ineffective. From the NPR article:
Daniel Koretz, the Henry Lee Shattuck Professor of Education at the Harvard Graduate School of Education and an expert in educational testing, writes in Measuring Up: What Educational Testing Really Tells Us, that there are seven potential teacher responses to high-stakes tests:
1. Working more effectively (example: finding better methods of teaching)
2. Teaching more (example: spending more time overall)
3. Working harder (example: giving more homework or harder assignments)
4. Reallocation (example: shifting resources, including time, to emphasize the subjects and types of questions on the test)
5. Alignment (example: matching the curriculum more closely to the material covered on the test)
6. Coaching students (example: prepping students using old tests or even the current test)
Strategies 1 through 3 pretty much describe what high-stakes testing is supposed to do: raise standards, ignite harder effort from teachers and students, and produce more learning.
Strategies 6 and 7 clearly undermine the effectiveness of tests as a metric of learning, and hurt students in the process. Perhaps 95 percent of educators will never go there.
Strategy 4 (reallocation) and 5 (alignment) are ambiguous. If the test is high quality — if it captures all the most important subjects students need to know — then changing school to prioritize those subjects is, again, exactly what we want to see. In other words, if the test is excellent, then "teaching to the test" can be a very good thing.
On the other hand, if the test captures only a few of the subjects students need to know, or emphasizes, say, memorization over comprehension, then reallocation and alignment can cause students to miss out on other important parts of learning.
Read more here.
Four states--Michigan, Missouri, Ohio and Florida--have been particularly receptive to for-profit management companies running charter schools. In Michigan, nearly 80 percent of charters are run by for-profits. Many states prohibit for-profit companies from running charters. Many others fall in-between, neither encouraging nor discouraging for-profit management. This grey area comes from the fact that for-profit companies are generally ineligible to receive charters from states. A federal statute, for instance, heavily incentivizes states to adopt this approach, prohibiting charters owned by for-profits from receiving federal fund grants. But the non-profit charter in "grey-area" states is free to contract out services. Thus, while the non-profit receives the charter, it can pay a for-profit entity to run the school. I imagine, although I have not investigated, for-profit companies might directly set up non-profits, which can then receive the charter and pass on the work and money to the for-profit.
Friday, August 15, 2014
Whiteboard Advisors recently conducted a survey of education policy insiders. The insiders do not believe that a reauthorization of the Elementary and Secondary Education Act (ESEA) is anywhere on the horizon. A shocking 20 percent say the Act will never be reauthorized. I am not sure what that response implies: that the federal role in education will move toward competitive grants or that the Secretary will perpetually run federal policy by conditioning waivers of existing law. Neither of those seems plausible to me. 72 percent allow that the ESEA will be reauthorized, but not until 2016 at the earliest. Only 32 percent believe the Act with be reauthorized by the end of next year.
To put these delays in perspective, the Act was due for reauthorization in 2008. A 2016 reauthorization would mean that the Act doubled its normal lifespan. In other words, the law is very outdated. Moreover, the flaws were evident as early as 2004, when scholars, organizations, and policy makers began putting forward constructive proposals for legislative revisions.
The full results of the survey are here.
Thursday, August 14, 2014
In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games. Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech. The school district agreed and prohibited the banners. The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech. A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.
The case is particularly fascinating for three reasons. First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes. Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners. I recall them sitting on the gym room floor acting freely. It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.
The Journal of Law & Education is currently accepting manuscripts for publication in its 2015 volume. Manuscripts should be sent to the Journal at email@example.com. Questions about possible submissions may also be directed to Professor Josie Brown, Co-Executive Editor of the Journal, at Brownjf@law.sc.edu.
Josie F. Brown
Co-Executive Editor, Journal of Law & Education
Associate Professor of Law
University of South Carolina School of Law
Columbia, SC 29208
Wednesday, August 13, 2014
An extremely troubling movement is brewing in Ohio. The Ohio Constitutional Modernization Commission is considering changes to the state constitution's education clause. In particular, it is considering eliminating the language that requires the state to provide a "thorough and efficient" system of public schools. According to Chad Readler, the chairman of the education committee at the Commission, his intent is not to undermine education or reduce services, but to eliminate the courts' ability to intervene and enforce the education provision. He claims that the current education clause has been used by advocates to get their way in court when they cannot get it through the legislature. He is, of course, referencing the DeRolph v. State of Ohio line of cases, in which the state supreme court found the state's financing system unconsitutional based on its irrational distrubution of funds and the wildly unequal results it produced.
For those who have not read the DeRolph cases, I recall--without rereading--state policies that forced school districts to take out loans to cover the budget shortfalls they incurred every year and repay the loan the following year, which caused a vicious cycle of underfunded and debt-strapped school districts. The court identified, at least, five other irrationalities and flaws in the
Tuesday, August 12, 2014
New York State Department of Education just released "Parents' Bill of Rights for Data Privacy and Security." It is based on the U.S. Department of Education's "Model Notification of Rights." In essence, it is a reiteration of the rights contained in the Family Educational Rights and Privacy Act. The document, however, came with a certain amount of fanfare given the recent concerns over data privacy. The reiterated rights include the right to
- inspect and review a student's records
- request corrections of inaccurate information in the records
- prevent disclosure of personal records to third parties
- refuse to let the school include a student in it directories
- file a complaint with the U.S. Department of Education for violations of the Act
At the risk of sounding grumpy, it strikes me as preposterous to use the term "Bill of Rights" in regard to this document, even though it is qualified by "Privacy." As a basic descriptive term, bill of rights is fitting enough, but "Bill of Rights" is rarely invoked descriptively. Most often, it is used to liken a document to the broad, fundamental rights included in the first eight amendments of the U.S. Constitution. In that respect, it is meant to declare something monumental.
NPR reports this week on New Orleans officially becoming the first major city with an all-charter school district, as we posted earlier this summer. While the Recovery School District's reports of significant gains is encouraging - student performance on standardized math and reading have increased from 23 percent in 2007 to 57 percent in 2013 performing at grade level - other districts have remained cautious about ditching traditional public schools. First, the city's school system was in deep crisis pre-Katrina, prompting a state takeover of New Orleans' schools two years before the hurricane. And the RSD has been supported by federal and private funds and support in amount that the traditional schools did not have. Further, RSD continues to face troubling accusations about what it had to do to get those gains, including charges that its charters suspend and expel students for minor infractions, that some charter schools have not served special education students well, and that the city may have to pay $1.5 billion to compensate the public school teachers fired after Katrina. While traditional school districts face the same problems, those districts may not have the same freedom to be selective about students or the levels of financial and political support that RSD has received. Listen to the NPR story here.
Monday, August 11, 2014
Phil Tegeler, Executive Director of the Poverty and Race Research Action Council, has a new article set to go to print in the Michigan Journal of Law Reform titled The "Compelling Interest" in School Diversity: Rebuilding the Case for an Affirmative Government Role. He convincingly takes the Department of Education, and the Obama Administration overall, to task for its failure to promote integration. The Administration has made supportive statements at times, but when it comes to money and affirmative support, it has done nothing, turning its support to charter schools and other "innovations." The introduction of the article is as follows:
The strong endorsement of the "compelling government interest" in school integration by five members of the Supreme Court in Parents Involved in Community Schools stands in surprising contrast to the Obama Administrations's tepid support for affirmative measures to expand school diversity initiatives. Although the Department of Education formally endorsed the Supreme Court plurality's position on school integration in a 2011 guidance to local districts, its funding programs have not followed suit. Since 2009, spending on magnet schools, the only Department of Education funding program that sponsors school integration, has declined relative to other departmental programs, while funding for charter schools, which are generally even more segregated than regular schools, has expanded.
School districts have physical restraint and seclusion policies to protect students from harming themselves or others, but may have quite different standards for when restraint or seclusion is necessary. Last week, the Deparment of Education's Office for Civil Rights concluded that one district in Prince William County, VA, too often used restraint and seclusion as a strategy to control student behavior rather than employing alternative strategies. Responding to a complaint filed on behalf of students who were restrained or secluded while attending a Prince William County program for students with disabilities, OCR found that the program denied students with disabilities a free appropriate public education under the IDEA. The program's schools, called PACE (Positive Attitude and Commitment to Education) East and West, reportedly logged 115 instances of restraint and 147 instances of seclusion to control student behavior during 2011-12. As part of a resolution agreement, OCR recommended that PACE change its practices to offer students educational opportunities when they are restrained or secluded and consider different intervention approaches. OCR declined to find that PACE's restraint practices had a disparate impact on black and Hispanic students. Read OCR's letter, posted by the Legal Aid Justice Center, here.
Friday, August 8, 2014
New York Times Magazine ran an interesting story last week, focusing on two children with autism, one who was "cured" through "applied behavioral analysis" and the other who was not. It also offered a quick synopsis of recent research:
In the last 18 months, however, two research groups have released rigorous, systematic studies, providing the best evidence yet that in fact a small but reliable subset of children really do overcome autism. The first, led by Deborah Fein, a clinical neuropsychologist who teaches at the University of Connecticut, looked at 34 young people . . . . She confirmed that all had early medical records solidly documenting autism and that they now no longer met autism’s criteria, a trajectory she called “optimal outcome.” She compared them with 44 young people who still had autism and were evaluated as “high functioning,” as well as 34 typically developing peers.
Thursday, August 7, 2014
The Journal of Law and Education's upcoming Fall issue includes a particularly timely set of articles dealing with the new era of teacher evaluation and the ethics of education leadership. The abstract for each is below. I cannot help but mention that this is the third article by Preston Green that I have posted in the last few weeks. Kudos to Professor Green
An Analysis of the Policy, Research, and Legal Issues Surrounding the Exclusion of Charter Schools from the Teacher Evaluation Revolution by Preston Green, John and Carla Klein Professor of Urban Education, University of Connecticut
Abstract: Analysts such as Diane Ravitch have pointed out that charter schools try “to have it both ways” by obtaining public funding under state constitutional law while having private school autonomy with respect to student and teacher rights. This article contributes to the national discussion by analyzing the legal and policy implications of exempting charter schools from the teacher evaluation policies that apply to traditional public schools.
Evaluating Evaluation: Assessing Massachusetts School Districts' Implementation of Educator Evaluation Requirements by Ranjini Govender Dowley, Policy and Government Affairs Director, Stand for Children Massachusetts
Tuesday, August 5, 2014
Preston Green, Bruce Baker and Joseph Oluwule have been very productive over the past year. They have another forthcoming article in Emory Law Journal titled Having it Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools. For those following Bruce Baker or me on twitter, this new article provides depth to the discussion Bruce Baker and I had via twitter two weeks ago regarding an Arizona charter school that is purportedly promoting a mix of racism and religion through its history readings. Bruce had asked whether the First Amendment applied to them. I was quite certain it did, but per many of the issues raised in this new article, charters will make various arguments that it does not. The article abstract summarizes it as follows:
Monday, August 4, 2014
New York City's mayor has backed off of his attack on charter schools, but the city council is stepping up. Daniel Dromm, a member of the city council and its education committee, sent a let to the state's charter authorizer, asking that it not charter any more schools in the city “until you address the lack of oversight and accountability in this rapidly growing sector.” Charter advocates respond that the letter is just political posturing to deflect attention from the traditional public schools poor practices and defend the status quo bureaucracy.
Even if charter advocates are correct about Dromm's motivations, their claim is unresponsive. A certain amount of oversight and accountability is necessary in every public program--school's in