Friday, March 7, 2014
One of our recent posts noted the publication of R. George Wright's article, Post-Tinker, 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). Considering one of Professor Wright's points-- that we could dispense with Tinker in favor of allowing public schools' to control student speech based on (in part) their responsibility to teach civility and mutual forbearance-- a recent Ninth Circuit case might present a question of if wearing an American flag t-shirt is a breach of civility? In Dariano v. Morgan Hill Unified Sch. Dist., the Ninth Circuit upheld a school official's decision to require high school students wearing t-shirts bearing images of the American flag during a school-sanctioned celebration of Cinco de Mayo to turn the shirts inside out or go home after the school principal learned of threats of violence against the students. During a Northern California school's Cinco de Mayo day, several students wore American flag t-shirts to school, prompting comments from other students who viewed the students' shirts as a slight against Mexicans and Mexican-Americans. A year earlier, there had been threats and obscenities exchanged between a group of predominantly Caucasian students and a group of Latino students when the Caucasian students hung an American flag on a school tree and chanted “USA,” in response to a group of students who had been walking around with a Mexican flag. The day of the flag t-shirt incident a year later, an assistant principal was told that some students were expressing displeasure about the American flag t-shirts. The assistant principal met with the students wearing the U.S. flag shirts and asked them to turn the shirts inside out or remove them, explaining that he was concerned that they may be attacked by students who supported the Cinco de Mayo celebration. The students acknowledged that the shirts might start fights, but refused to take them off. They were sent home with excused absences and stayed home two additional days after receiving threatening text messages. (Two other students were allowed to return to class because the shirts because they were wearing "TapouT," shirts that had a muted version of the U.S. flag.) The students who were sent home sued, alleging that the school violated their rights to freedom of expression, equal protection, and due process. In upholding the district court's grant of summary judgment for the assistant principal, the Ninth Circuit found that given the history of violence at the school, the school officials stopping the display of the t-shirts was a "tailored response" to "anticipated violence or substantial disruption of or material interference with school activities," and therefore the school's response was justified under Tinker. The Ninth Circuit found that the school's response was appropriately tailored under Tinker because while it suppressed the message on the clothing, they students were not punished for it and also allowed students wearing clothing with a less prominent message to wear their shirts. Read Dariano v. Morgan Hill Unified Sch. Dist. here.
The Office for Civil Rights has completed its compliance review of Indianapolis Public Schools and found a violation of Title IX in regard to its athletics program. OCR's resolution letter to the District is a model in terms of applying the three prong standard. A district is in compliance if it can show a) proportional participation in sports, b) a continuing history of program expansion, or c) that current offerings meet student interest and ability. The letter sets out and applies each very clearly and could easily be used to teach the subject matter in class.
On the first prong, OCR found that one of the district's high schools was in compliance, but the rest were not. Girls are 50.5% of the overall student population, but only 35.5% of the student athletes. To the district's defense, it is rare that an institution meets the first prong, and that one of the district's high schools did is noteworthy.
On the second prong, the district's athletic programs had been stagnant for some time and, thus, there was no history of efforts to expand offerings in ways that might have improved the disparity.
On the third prong, "OCR considers whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team in the school’s normal competitive region. If all three conditions are present, then OCR will find that the school has not fully and effectively accommodated the interests and abilities of the underrepresented sex." The district, however, had made no attempt to assess student interest and, thus, could not avail itself of this prong either. In short, the second and third prongs provide schools with a "safe harbor" for disparities, but they have to do something to take advantage of this safe harbor. Indianapolis had done nothing.
Beyond the raw number of opportunities offered, OCR also found evidence of qualitative inequalities, with the district affording different resources and support to those female programs that were available. In particular, it found inequalities in equipment and supplies and the scheduling of games and practices.
As a result, the district entered into a resolution agreement with OCR that provides:
- the District will provide participation opportunities for girls and boys . . . that effectively accommodate the athletic interests and abilities of both sexes. . . . In particular, the District will conduct a comprehensive assessment during the 2013-2014 school year to determine whether female students (who are the underrepresented sex in the District’s athletics program) have unmet athletic interests and abilities. . . . If through the assessment, the District identifies a sport or sports in which there is sufficient but unmet interest and (if applicable) ability of female students to participate at the interscholastic level at a particular high school, the District will add athletics opportunities (including new sports or new levels of existing sports by the next competitive season) at the high school(s) until such time as either (1) the high school is fully and effectively accommodating the expressed interests and abilities of female students (i.e., there remains no unmet interest and ability); or (2) the participation rate for female students in the high school’s interscholastic athletics program is substantially proportionate to their rate of enrollment at the high school. . . .
- In addition, during the 2013-2014 school year, the District will develop a plan to ensure that it provides equal athletic opportunities . . . for members of both sexes in the provision of locker rooms, practice and competitive facilities . . .
- Finally, the District will create during the 2013-2014 school year a comprehensive policy, subject to OCR’s review and approval prior to implementation, to regulate booster club funding and any other private donations flowing into the athletic programs at each high school to ensure that if booster clubs or other outside sources provide funding that results in disparities in benefits and services favoring athletes of one sex over the other sex, then the District will take action at the high school to ensure that the benefits and services are equivalent for both sexes.
Thursday, March 6, 2014
In 1998, California passed a ballot measure to ban bilingual education in public schools. Similar initiatives followed in Colorado, Arizona, and Massachusetts, passing in the latter two states. The ban in California led to litigation in Valeria v. Davis, 307 F.3d 103 (9th Cir. 2002), in which plaintiffs alleged the ban was motivated by discriminatory intent. The Ninth Circuit disagreed, finding the state had a legitimate non-discriminatory explanation: its educational judgment that English immersion is the better pedagogy.
A decade and a half after banning bilingual education, the state may be poised to reverse course. State senator Sen. Ricardo Lara has introduced a bill to repeal the ban on bilingual education. He intends to put the issue before voters on the 2016 ballot. Some believe that the politics have sufficiently changed in the state and the bill may pass. Researchers also point out that bilingual education is not just a cultural or individual interest issue. Rather, bilingualism is a valuable economic resource that the state needs to be able to tap. While the economy has become global over the past 15 years, California's education system has effectively demanded that it remain local. For more on the bill and research, see here and here.
Wednesday, March 5, 2014
Obama's 2015 Equity Initiative: Quality Teachers, Funding Fairness, School Climate, and Concentrated Poverty
Notwithstanding all the claims that the President's budget is dead on arrival, his new budget is important in the policies and values it is putting forward, particularly since this President has shown his ability to push his policies administratively, even when Congress does not act. The 2015 budget includes "a new initiative called Race to the Top-Equity and Opportunity (RTT-Opportunity), which would create incentives for states and school districts to drive comprehensive change in how states and districts identify and close opportunity and achievement gaps." The initiative focuses on the equitable distribution of school funding, hiring quality teachers, and improving school climate. Tagged on at the end is a new message from the President: "identify and carry out strategies that help break up and mitigate the effects of concentrated poverty." It is unclear whether the President intends to promote integration strategies, try to make separate equal, or both. The President's own description of his plan states:
Grantees would enhance their data systems to place a sharp focus on the districts, schools, and student groups with the greatest disparities in opportunity and performance, while also being able to identify the most effective interventions. They would develop thoughtful, comprehensive strategies for addressing these gaps, and use the data to continuously evaluate progress. Grantees would invest in strong teaching and school leadership, using funds to develop, attract, and retain more effective teachers and leaders in high-need schools, through strategies such as individualized professional learning and career ladder opportunities.
States would collect data on school-level expenditures, make that data transparent and easily accessible, and use it to improve the effectiveness of resources and support continuous program improvement. Participating districts would be required to ensure that their state and local funds are distributed fairly by implementing a more meaningful comparability standard based on this school-level expenditure data.
RTT-Opportunity funds also would be used, for example, to provide rigorous coursework; improve school climate and safety; strengthen students’ non-cognitive skills; develop and implement fair and appropriate school discipline policies; expand learning time, provide mental, physical, and social emotional supports; expand college and career counseling; and identify and carry out strategies that help break up and mitigate the effects of concentrated poverty.
The resegregation of public schools over the past two and a half decades is not news to most of the readers of this blog. Numerous reports demonstrate that our public schools are now as racially and socioeconomically segregated as they were when mandatory desegregation began in earnest in the early 1970s. What may be news is the new trend of "school district secession." Historically, many of the most effective school desegregation plans covered large school districts in metropolitan areas. Now that those districts have been released from court ordered desegregation, smaller wealthier neighborhoods are attempting to secede from their districts to form their own independent and isolated schools. Businesweek reports:
In Alabama, which makes it relatively easy to create districts, two Birmingham suburbs have left the countywide system in the past two years. After the majority-black Memphis schools merged last year with the majority-white county district, Tennessee's Republican-dominated legislature lifted a decades-old ban on creating new systems, and six suburbs seceded, approving sales tax increases to pay for their schools. Parent groups in Atlanta and Dallas are considering similar proposals.
A similar move is being pushed in Baton Rouge, Louisiana, where a parent leader of secession comments that "We are tired of basically being a cash cow for the rest of the parish." If secession occurs, per pupil spending in the Baton Rouge district would drop from $9,635 to $8,870. The new affluent district would have per pupil expenditures of $11,686. In other words, secession would create a $2,000 per pupil gap overnight. In an average elementary school, this would be the difference of nearly a $1,000,000 a year.
This trend raises important causal questions. Are these secession movements the lingering effects of school systems that never became substantively unitary? Are they the result of the "invidious value" that Kevin Brown argues segregation fostered and integration never cured? (See Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1 (1992)). Or are they the result of bringing market ideas to public schools and fomenting the idea that education, rather than a public good, is consumer resource? I would suspect the trend stems from all three. In so far as it is connected to the third, it also demonstrates my point in Charters Schools, Voucher, and the Public Good, where I argue that charters and vouchers are not inherently good or bad. Rather, they are the policies through which good or bad values can flow (most often bad at the moment). But laws permitting school district secession allow these same bad values to flow through traditional public schools.
For Jan Resseger's analysis of the trend, see here.
Tuesday, March 4, 2014
In the Spring of 2011, Capital High School in Santa Fe, New Mexico, subjected students entering the high school prom to random, suspicionless pat-downs. The goal of the searches were to prevent students from bringing drugs, alcohol, or other contraband to the prom. One of the students testified that:
[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.
Other students testified similarly. Four students brought suit against the school district and the principal. In its latest opinion, the district court in Herrera v. Santa Fe Public Schools, 956 F.Supp.2d 1191 (D. New Mexico 2013), held that search violated students' rights, but the principal was entitled to qualified immunity.
The school had attempted to extend the rationale of Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822 (2002)-which upheld suspicionless drug testing of students participating in sports and extracurriculars--to these pat-down searches. The district court reasoned that those cases were inapposite because they involved a special needs exception to the general reasonable suspicion requirement in schools. Moreover, the searches in those cases applied to a subsection of the student body, whereas the prom search potentially applied to any student in the school. Applying the reasonable suspicion test from New Jersey v. TLO, the court easily found it lacking and the searches unconstitutional. In an earlier opinion, the court had also catalogued other lower courts applying similar rationales to suspicionless searches. See Herrera v. Santa Fe Public Schools, 792 F.Supp.2d 1174 (D.N.M. 2011). This earlier opinion was particularly revealing in showing that several recent courts have pushed back against random student searches.
The school district had also argued that the students consented to the searches, but the court applied the unconstitutional conditions doctrine to find that consent was invalid.
Immigrant Children File DOJ Complaint Challenging Barriers to Enrollment in Two N.C. School Districts
A civil rights complaint was filed with the Justice Department last month alleging that two North Carolina school districts are discouraging immigrants from enrolling in public school. Cribbing from the complaint, plaintiff “C.V.,” a 17-year-old Honduran immigrant, attempted to enroll in high school in Buncombe County, N.C. But school officials twice application telling her that she was too old, even though North Carolina law says all students under 21 are entitled to a public education in the school district in which they live. Plaintiff “F.C.,” a 17-year-old native of Guatemala tried to enroll in high school in Marshville, N.C. last year, but was told that he was too old and was referred to a GED program at a local community college. The community college told F.C. he was too young and suggested that he try enrolling in high school again. At the high school, F.C. was told that he could not enroll until after he took an ESL exam even though his English-speaking skills were limited at the time. Unable to pass the ESL exam in Marshville, F.C. eventually enrolled in the Union County school district. The Southern Poverty Law Center, which is co-counsel for the plaintiffs, says that the two incidents are symptomatic of a larger problem in school districts across the state. Immigrant children – who arrive in the United States without a parent or legal guardian and are placed in the care of a sponsor, such as a family member – are being discouraged from enrolling in public school because of limited English proficiency, age or national origin. The plaintiffs are asking the Justice Department to require the districts to adopt a nondiscrimination policy and to provide training to ensure that the civil rights laws and the constitutional protections in Plyler v. Doe are being followed. Read the complaint, filed jointly by the Southern Poverty Law Center, Legal Services of Southern Piedmont, the North Carolina Justice Center, and the Southern Coalition for Social Justice, here.
Monday, March 3, 2014
Office for Civil Rights Reaches Voluntary Resolution of Kentucky School District’s Discipline Disparities
The Office for Civil Rights, Department of Education, had been investigating Christian County Public Schools' discipline system. It found basic due process flaws on the front end and significant racial disparities on the back end. "[B]lack students were consistently more likely than white students to be assigned in-school suspension and out-of-school suspension when their first disciplinary referral was for violations that were subjective in nature, such as Deliberate Classroom Disruption, Disorderly Conduct, Failure to Follow Directives, and Profanity/Vulgarity. For example, in school year 2010-2011, black students were nearly 3.5 times more likely than white students to receive out-of-school suspension for Profanity/Vulgarity."
Under the final resolution agreement reached last week, the District agreed to:
- Ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school;
- Collaborate with experts on research-based strategies designed to prevent discrimination in the implementation of school discipline;
- Provide students who engage in disruptive behaviors with support services designed to decrease behavioral difficulties;
- Review and revise the disciplinary policies, and implement disciplinary practices that will effectively promote the fair and equitable administration of discipline;
- Provide training for staff and administrators on the disciplinary policies, and implement programs for students and parents and guardians that will explain the district’s disciplinary policies and behavioral expectations;
- Effectively address school climate issues;
- Improve the disciplinary data collection system in order to evaluate discipline policies and practices.
The full press release and resolution agreement is here. I believe this is the first discipline resolution reached since the Department's new discipline guidelines. Those guidelines seem to be reflected in this resolution, particularly the agreement to use less harsh and discriminatory alternatives to the current discipline policy.
Friday, February 28, 2014
The dramatic rise in suspensions and expulsions over the past two decades is unlikely to be news to anyone reading this blog, but what may be interesting is the near complete disengagement of courts from reviewing school discipline, including the expulsion of otherwise innocent students and those who have engaged in trival behavior. My new article, The Constitutional Limit of Zero Tolerance in Schools, argues that basic principles of substantive due process, when taken seriously, limit the zero tolerance. The full article is available here. I would welcome thoughts and feedback from anyone cares to offer it.
Thursday, February 27, 2014
I have to admit to not keeping up with research on class size in recent years. A decade ago or so, I was under the impression that social science had reached a consensus that teacher quality mattered more than class size and that, with a high quality teacher, class size did not matter much at all. The only caveat, I thought, was that at-risk students did see some benefit from class-size reduction, even if others did not. Leonie Haimson, Class Size Matters' Executive Director, offers a strong retort. Below is a summary of her rebuttal of the 7 myths about class size reduction.
1. Myth: Class size is an unproven or ineffective reform.
She points to the conclusion of the Institute of Education Sciences at the United States Department of Education that
class size reduction is one of only four, evidence-based reforms that have been proven to increase student achievement through rigorous, randomized experiments -- the "gold standard" of research. (The other three reforms are one-on-one tutoring by qualified tutors for at-risk readers in grades first through third; life-skills training for junior high students, and instruction for early readers in phonics -- and not one of the policies that the corporate reformers are pushing. )
2. Myth: There is a threshold that has to be reached before class size reduction provides benefits.
The most comprehensive study of classroom size was in Tennessee. A recent reanalysis of the data in that study found that
for the control group of students who were in the "larger" classes and found that within this range, the smaller the class, the better the outcome.
Indeed, esteemed researchers such as Peter Blatchford have found that there is no particular threshold that must be reached before students receive benefits from smaller classes, and any reduction in class size increases the probability that they will be on-task and positively engaged in learning.
3. Myth: Large scale programs such as class size reduction in California didn't work.
She indicates that control groups in California were hard to find because the entire state reduced class size, but every controlled study of California did find significant gains for students in smaller classes.
Wednesday, February 26, 2014
The district court has issued a new opinion in Lewis v. Ascension Parish Sch. Bd., 2014 WL 556677 (M.D. La. 2014), a case involving allegations that the district discriminated in the rezoning of its schools. Like Spurlock v. Fox, 716 F.3d 383 (6th Cir.2013) and Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir.2011), the court in Lewis had to navigate the complex post-Parents Involved in Community Schools v. Seattle world, in which racial intent, racial classifications, and racial considerations all of different doctrinal relevance and potentially conflicted precedents.
The district court in Lewis had previously issued a summary decision granting the school district's motion for summary judgement, which was summarily overturned by the Fifth Circuit and remanded. The Fifth Circuit had intimated that the Third Circuit's holding in Lower Merion--that Justice Kennedy's opinion in Parents Involved was controlling and that assignment plans are subject to rational basis so long as they do not rely on individual racial classifications--was incorrect. The Fifth Circuit, however, indicated it need not reach those doctrinal question because certain factual issues needed to be addressed first.
In its new decision on remand, the district court offers what may be the most cogent post-Parents Involved analysis to date. Plaintiff's basic claim is that the district's new assignment plan segregates African Americans and provides them with unequal educational opportunities. The district court analyzes his claim based on three distinct doctrines. First, it asks whether a racial classification was employed in the assignment plan. If so, Parents Involved's strict scrutiny applies. Here, the court indicates there is no evidence of a racial classification. Awareness or consideration of race, alone, are insufficient to trigger strict scrutiny. Thus, the rational basis approach of Lower Merion would apply. On the one hand, this holding is another validation of districts' ability to voluntarily desegregate. On the other hand, the plaintiffs in Lewis were alleging segregation and, thus, this court makes clear that those claims still must meet the higher burden of Village of Arlington Heights v. Metro.
Second, the court analyzes the disparate impact of the plan and the extent to which it potentially gives rise to a claim of intentional discrimination per Arlington Heights. It finds that the assignment plan does.
Third, the court analyzes the school district's consideration of racial demographics, etc., in drawing the assignment zones. The court finds that these considerations, along with the impacts, create a triable issue of fact as to whether intent existed. The Court elaborated:
Here, the School Board also does not contest that the majority of the non-white students in the District are in the East Ascension High School feeder zone and that the majority of the white students in the District are in the Dutchtown High School and St. Amant High School feeder zones. With regard to the factors considered by the School Board when it adopted Option 2f, the School Board does not contest that its members considered race and socioeconomic status when they developed, evaluated, and adopted Option 2f. Unlike the students in Lower Merion, non-white and white students in the District have each been affected by Option 2f (i.e. assigned to different schools). Indeed, the School Board does not contest this fact. Further, the School Board does not contest that Option 2f assigns all students to schools based on their geographic location.
Unlike the court in Lower Merion, this Court is unable to consider all of the evidence presented until after a full trial on the merits. See Lower Merion, 665 F.3d at 542. However, given the evidence presented here, context of this matter, and factors considered by the School Board when it adopted Option 2f, the Court concludes that Varando and Child B are, in fact, similarly situated to white students in the Dutchtown High School and St. Amant High School feeder zones. Accordingly, the School Board's request that the Court dismiss Lewis' remaining Equal Protection claim on this basis is DENIED.
In short, the district court agreed with Lower Merion (and rejected plaintiffs argument for applying strict scrutiny), but found there are sufficient facts on which discriminatory purpose could be inferred (which would trigger strict scrutiny) and set the case for trial.
Tuesday, February 25, 2014
The New Jersey Department of Education agreed to settle a disability rights lawsuit last week involving claims that special education students were assigned to educational settings that were not the least restrictive environments required under the Individuals with Disabilities Education Act (IDEA) and Section 504. The plaintiffs, a collection of statewide advocacy agencies acting on behalf of children with disabilities, sued the NJDOE in 2007, charging that the state placed special education students in restrictive settings at a rate that was twice as high as twenty-six other states. Data from NJDOE also showed that while 3.8% of the nation’s students receiving special education services were in New Jersey, the state had 9% of students nationally in restrictive placements. NJDOE agreed in the settlement to conduct a least restrictive needs assessment for about 75 school districts and to train, monitor, and support those districts for compliance with special education laws. View the settlement in Disability Rights v. NJ Dept. of Ed., No. 3:07-cv-02978 (D. N.J.) here.
R. George Wright's article, Post-Tinker, is now available at 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). The article argues that
the rise of computer communication by means of portable technologies [does not] necessarily condemn Tinker to irrelevance. It has recently been argued, for example, that "Tinker remains functional, and if properly applied to students' online expression, it can vindicate students' free expression interests while still allowing schools to properly regulate day-to-day student discipline and the educational process." And when we add in the options of modifying Tinker, as by abandoning either the first "disruption" prong or else the second "rights of others" prong, contemporary support for some version of Tinker is even broader.
At this point, however, it is fair, and indeed important, to ask about the likely consequences of radically abandoning Tinker. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion below pursues this question and eventually endorses just such a radical abandonment of Tinker. This is not an anti-student speech conclusion. It is instead a recognition of the importance of allowing public schools, if they so choose and within other constitutional and statutory bounds, to focus more on educational outcomes, equality, or other dimensions of the vital basic mission of contemporary public schools.
Dan Losen, UCLA Civil Rights Project, is guest editing the upcoming peer reviewed issue of the Journal of Applied Research on Children. The journal is currently seeking submissions. Below is the call for papers.
Call For Papers
Journal of Applied Research on Children: Informing Policy for Children at Risk
Volume 5, Issue 2
Legal Safety Nets: The Law as a Change Agent for Children
Editors-in-Chief: Angelo Giardino (Texas Children's Hospital)
Robert Sanborn (CHILDREN AT RISK)
Guest Editor: Daniel Losen, J.D., M. Ed (Director, Center for Civil Rights Remedies,
The Civil Rights Project, University of California, Los Angeles)
Published by the Texas Medical Center Library and edited by the CHILDREN AT RISK
Institute, the Journal of Applied Research on Children (JARC) serves to inform policy affecting
children by providing applicable research to the public, child advocates, and policymakers on
timely children’s issues. Providing practical case studies and research on the transformative
potential of policy change, JARC issues provide a powerful link between data and policy
solutions to strengthen the arguments of child advocates across the country.
For the ninth issue, Legal Safety Nets: The Law as a Change Agent for Children, the
CHILDREN AT RISK Institute invites research on the transformational power of laws and
the legal system for our children. How does the law both promote child well-being and, at
other times, actively work against the best interests of children? The CHILDREN AT RISK
Institute is seeking articles that include data-oriented evidence on the issues within our legal
system and articles with strong policy implications. Possible issue areas include but are not
The Journal of Applied Research on Children is available online in an open-access format
(jarc.childrenatrisk.org) and is indexed in CINAHL and SocINDEX, making it available to
child advocates, researchers, practitioners, and policymakers across America. Since its
launch, journal articles have been downloaded over 67,000 times. The submission and
peer review process are completed entirely online. Authors are encouraged to take
advantage of the journal’s online format by including videos, interactive charts, or links to
To view past issues of the journal or to submit a piece, please visit jarc.childrenatrisk.org.
The final submission deadline for papers is June 1, 2014. Prospective authors are
encouraged to contact Marissa Madsen, Managing Editor at email@example.com.
Monday, February 24, 2014
The University of South Carolina School of Law is seeking a visiting professor to teach Constitutional Law in Spring 2015. The ideal candidate will have strong academic credentials, and an excellent record in teaching and scholarship.
Applicants should submit a letter of interest and a curriculum vitae. Please state in your cover letter what courses you would be willing to teach. Applications should be submitted electronically to the Associate Dean for Academic Affairs, Danielle Holley-Walker (firstname.lastname@example.org). The initial screening of applications will begin March 10, 2014. Positions will remain open until filled.
The University of South Carolina is an affirmative action, equal opportunity employer. Applications from underrepresented minority groups and women are encouraged.
The North Carolina Court of Appeals has issued a set of decisions in companion cases dealing with charter schools' access to locally raised funds. In Charter Day School, Inc. v. New Hanover County Bd. of Educ., 2014 WL 619562 (2014), and Northeast Raleigh Charter Academy, Inc. v. Wake County Bd. of Educ., 2014 WL 640976 (2014), charters schools alleged that they were underfunded for the past several years, relying on a North Carolina statute that provides, “[i]f a student attends a charter school, the local school administrative unit in which the child resides shall transfer to the charter school an amount equal to the per pupil local current expense appropriation to the local school administrative unit for the fiscal year.” N.C. Gen.Stat. § 115C–238.29H(b) (2007). The Court of Appeals in both cases held that the charter school was entitled to a pro rata share of the local current expense fund of the school district in which they are located. The local expense fund is, in effect, the district's rainy day fund. Funds not spent in one year are saved there for a later date.
This holding, while a reasonable interpretation of the statute, may create some awkward deliberations for school districts. Regardless of whether they save or do not save money, charter schools' allotment is the same. If the district decides to save, charter schools would get their money now, whereas traditional public schools would be deferring their funds. Theoretically, it all evens out in the end, but the notion that a charter school down the street is getting funds for the current school year that traditional public school is not will not be received well by many.
Friday, February 21, 2014
Magnet schools have been stagnate for some time. For instance, as Erica Frankenberg and Genevieve Siegel-Hawley detail in Choosing Diversity: School Choice and Racial Integration in the Age of Obama, 6 Stan. J. C.R. & C.L. 219, 244 (2010), federal funding for magnet schools has been flat since the late 1980s. At the same time, charter school funding has been exponentially increasing.
Many districts perceive charters as non-public schools or anti-public schools. Motoko Rich's story in the New York Times indicates that some school districts are now re-embracing magnet schools as a way to fight back or push back against the pressures of charter schools. She points to Chicago, Dallas, Denver, Los Angeles, Newark and Washington as examples, but focuses on Miami, where the number of students attending magnet schools has increased 35 percent in the last four years.
For those who follow the segregation debate, this pushback is more important than just charters versus magnets or public schools. Various reports charge charter school with exacerbating school segregation (although I have argued their point may be exagerated). In the past, the primary purpose of magnet schools, however, has been to increase integration. In fact, federal funding for magnet schools has been explicitly conditioned on their ability to help districts meet mandatory desegregation obligations or voluntarily desegregate.
Beyond the differing roles that they play in segregation and their differing public school status (perceived or real), magnets and charters share a tremendous amount in common. This commonality, however, begs the question of why the federal government and reformers have placed so much support behind charters and so little behind magnets in recent years. Is it that they object to integrated or public schools? My article Charter Schools, Vouchers, and the Public Good, 48 Wake Forest L. Rev. 445 (2013), explores theses issues further. It refrains from labeling charters, magnets, and vouchers as inherently "good" or "bad" schools and instead asks whether they have been implemented in ways that can promote or have promoted the overall public good, which I posit is the primary question of public education.
For the New York Times story on magnets, see here.
Thursday, February 20, 2014
The Guilford County Board of Education recently voted to challenge a new North Carolina law requiring the board to choose teachers who will get new contracts in exchange for tenure. The North Carolina law requires school district leaders to choose 25% of its teachers and offer them new four-year contracts in exchange for tenure and $500 compounding salary increases over four years. Jill Wilson, the attorney for the Guilford County school board members told the Greensboro News-Record that the law is unconstitutional because “state law protects teachers from having their status changed or salary reduced without due process.” A board member objected to the law because it “represents yet another thinly veiled attack on public education and educators.” The board says that it will refuse to recommend which of the county’s teachers should be offered contracts and instead will sue to challenge the law. Although twenty states have passed laws restricting teacher tenure, local boards suing to opt out of such laws is uncommon.
Last year, Kimberly Robinson organized a conference on the 40th anniversary of San Antonio v. Rodriguez. A collected works book arising out of that conference will be published soon with Yale University Press. A few law review articles from the conference were also recently published with the Richmond Journal of Law and the Public Interest. Links to those articles are here. Charles J. Ogletree, Jr. is included among those authors. He wrote The Implications of San Antonio Independent Sch. Dist. v. Rodriguez, 17 Rich. J.L. & Pub. Int. 515 (2014). The article offers a lot of then versus now comparisons, but of particular note, given his criminal justice expertise, is a section on school funding versus prison funding. He writes:
Despite the steps that have been taken to reduce the funding inequalities between poor and wealth school districts, there has yet to be a diminution in one other important funding disparity: that between prison spending and education spending. State criminal corrections spending has outpaced growth in spending on education, transportation, and public assistance, and, after adjusting for inflation, state spending on criminal correction has tripled over the past three decades and has become the fasting-growing budgetary expense after Medicaid. Indeed, according to a review of data from the Department of Justice and the National Education Association, many states spend three to four times more per capita on incarceration than on education. California, the most populous state in the union, spends about $47,000 per inmate while spending approximately $9,000 per student. New York spends roughly $56,000 per prisoner and about $16,000 for its students, while Georgia and Michigan each spend about a third of the amount on their public school students as they do on their prison populations.
The same dichotomy between criminal corrections spending and public school spending can be found between criminal corrections spending and higher education spending. Research has shown that, adjusting for inflation, over the twenty-year period from 1987 to 2007 states' corrections spending grew more than the six times more than spending on higher education. Regionally, the differences between higher education and prison spending were more pronounced. During the same time period, inflation-adjusted prison spending in the Northeast rose sixty-one percent while higher education spending in the region dropped 5.5 percent. In the West, the amount of money allotted to prisons grew 205 percent while money spent on postsecondary education only grew twenty-eight percent. Analysis on the spending disparity between prison and higher education at the state reveals an even more staggering divide. In 2011, California's postsecondary education received thirteen percent less inflation-adjusted dollars than in 1980 while criminal corrections received a 436 percent expansion in funding during the same period.
In all, the growth in state spending on prisons and criminal corrections has outpaced the growth in education spending. However, unlike the push for funding parity between rich school districts and poor school districts that occurred during the aftermath of Rodriguez, there does not seem to be a concerted, serious push to reverse the trend of the growth in prison spending outpacing the growth in education spending. The policy discussion surrounding the growth in funding of incarceration and education presents a zero-sum proposition, because, unlike the federal government, most states have to balance their budgets. As a result, a dollar spent in one area is a dollar that can no longer be spent in another. The effects of this decision could have significant consequences for the future of the children from poor areas whom Rodriguez litigation aimed to benefit and who have benefitted from the education funding cases post-Rodriguez litigation. Children from low-income areas are at a distinct disadvantage when increases in prison spending result in slower growth or a reduction in education spending. Research has shown that significant concentrations of people going to prison came from poor neighborhoods of color, and in these neighborhoods millions of dollars are being spent to incarcerate its residents. As a result, money spent on incarceration is often the predominant public investment in those communities while education opportunities are dwindling with repeated budget cuts. According to researchers, completing school is a critical protective factor for adolescents who come from troubled neighborhoods. Yet, money is diverted from this resource to incarceration, preventing low-income youth in many areas of the country from having quality access to an effective tool for betterment.
Wednesday, February 19, 2014
The state of Washington is now in danger of losing its No Child Left Behind Waiver. The Department of Education has granted waivers on a one year basis, requiring that states reapply in subsequent years to show progress on the conditions in their previous year's waiver. For Washington, that meant using statewide tests in evaluating teacher's and principal's effectiveness. The Washington state senate just voted down a bill that would have implemented that requirement. The no vote came from the Democrats in the Senate and seven Republicans. Democrats charged that the evaluation metrics are just a means to bash teachers. As a result of the state's legislative timing rules, there appears to be no obvious way to come up with an alternative solution before the Department of Education makes its decision on the waiver.
The Olympian reports that
Losing the waiver would mean school districts throughout the state would have to redirect an estimated $38 to $44 million in federal education funding toward private tutoring efforts, rather than spending the money on district programs for poor and disadvantaged students.
It also would mean nearly every school in the state would be labeled as failing, and school administrators would have to send letters home to parents notifying them of their schools' failing status.
It is possible that the Deparment of Education might still extend the waiver based on compliance in other respects, but to do so would also send a negative message to other states regarding their need to comply.