Thursday, July 24, 2014
Professor Dan Subotnik (Touro Law) sent us An Anti-Rape Measure Too Far? analyzing a bill in the California legislature, which, if it becomes law, is likely to become as noteworthy as Antioch College’s Sexual Offense Prevention Policy. California SB 967 would require college students to secure “affirmative consent” from their partners before having sex. "Affirmative consent” is defined in the bill as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill’s author, California state senator Kevin de Leon, told the Washington Times that SB 967 “will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.’” The bill’s supporters describe SB 967 as providing “clearer guidance” on rape prevention and providing justice and adequate services to victims. Opponents criticize the bill as “unnecessary, misdirected and vague” and likely to “result in the unfair treatment of men,” as noted in its synopsis here. If the bill becomes law, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid. Readers may recall the deep controversies that campus rape laws and sexual assault policies can engender, including concerns about privacy, due process, and the rights of victims’ and the accused.
In his piece, Prof. Subotnik concludes that the reality and psychology of sexual encounters confounds attempts to regulate sex through campus affirmative consent laws. Read An Anti-Rape Measure Too Far after the jump.
Chile has one of the most robust school voucher programs in the world. A new peer reviewed study, Understanding How Universal Vouchers Have Impacted Urban School Districts’ Enrollment in Chile, looks to the effects of Chile's massive voucher program on public education to draw lessons for the United States. In short, Chile provides a test case for the claims that vouchers will spur competition and improve public schools, while also providing choice. Julian Vasquez Heilig summarizes the 39 page study:
in a market where the voucher is distributed equally and to everyone, the final result is a complex scenario of education stratification where differences and segregation primarily functions as an advantage for high-SES students. Prior peer-reviewed research on vouchers in Chile, and the current study, demonstrate that specific family and student characteristics, as well as, the family/student´s area of residence jointly determine the spectrum of educational choices available in a universal voucher system.
The study found, however, that even with a robust voucher program opportunities were not spread equally. Rather, there was significant variation across localities.
Wednesday, July 23, 2014
Seventeen Louisiana legislators have filed suit, alleging that Louisiana State Board of Elementary and Secondary Education's adoption of the Common Core Curriculum did not comply with the necessary process required by the state's Administrative Procedures Act. This case is the inverse of the one dismissed last week by the Oklahoma Supreme Court. There, the legislature had repealed the Common Core and the state board argued that the legislation violated the board's constitutional authority to supervise education. In Louisiana, the legislature is claiming the board acted unlawfully in adopting the common core.
The Common Core, teacher assessment changes, and NCLB waivers--which prompted the first two reforms, are producing schizophrenic litigation. Almost every week has brought new litigation,
Tuesday, July 22, 2014
Much of the federal government's interest in creating accountability standards for higher education focuses on the cost and student loan debt. The media has recently highlighted the rising amount of student debt. However, a recent report gives a different perspective to the student loan debate: that the rising interest in protecting students against substantial loan debt is a factor of more upper and middle class students needing to take out loans. A recent post at Brookings Institution states "findings [that] suggest that the recent surge in attention paid to student loans may
stem in part from increasing debt among high-income households." The author, Matthew M. Chingos, explains:
An era in which students from low-income families used loans to supplement grants has given way to a system dominated by the wealthiest Americans, many of whom were born to affluent parents. This trend supports the theory that the intensification of the public debate over student loans may be due in part to the increased prevalence of debt among more affluent households. Given the unlikely reversal of this trend, political pressure on policymakers to offer broad-based “relief” to borrowers, such as a reduction in interest rates, may continue to intensify. Absent credible evidence that such a policy would have a large “trickle-down” effect on the broader economy, policymakers should instead focus on the core mission of the federal loan program: promoting access to higher education on terms that are fair to both students and taxpayers.
Read Why Student Loan Rhetoric Doesn’t Match the Facts here.
Indiana School District Not Entitled to Summary Judgment on Discretionary Immunity Claim In School Shooting Case
The Indiana Court of Appeals recently ruled that a negligence claim could go forward against a school district for failing to protect two victims of a school shooting. The case arises from a shooting in Martinsville West Middle School, Indiana, after a student, Phelps, shot two students, C.J. and B.K. The two injured students, through their parents, sued the Martinsville Metropolitan School District claiming that the district failed to protect the students from Phelps by negligently leaving a school door unlocked that allowed Phelps to enter with a gun. The students alleged that the district failed in its duty of care by failing to warn staff that Phelps posed a threat and failed to tell staff to look for Phelps on school grounds after he was suspended and to call 911 if Phelps was spotted on school property after he had been banned from school grounds. The school district lost its motion for summary judgment before an Indiana state court and appealed. The Indiana Court of Appeals affirmed the lower court’s denial of summary judgment, finding enough evidence to show that the district was not immune from liability under the Indiana Tort Claims Act and that the School District did not breach its duty to C.J. and B.K. The Court of Appeals also rejected the district’s argument that C.J. was contributorily negligent for failing to alert school authorities that Phelps had made a threat against him. The Court of Appeals concluded that the school principal’s safety plan did not entitle the district to discretionary function immunity under the Indiana Tort Claims Act because the school district was the ultimate policy-making body. While the school principal had authority over the operation of the school, the principal had no policy-making authority. The appellate court further determined that the case had genuine issues of material fact on the negligence claims because the district did not prove as a matter of law that the shooting was unforeseeable. The court noted that “Phelps had a lengthy history of serious misbehavior in school; threatened to blow up the school; and was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting, ... and had made threats against C.J., of which at least one  teacher was aware.” Given these facts and the court’s stated reluctance to find summary judgment in fact-intensive negligence claims, the Court of Appeals held that that the question of breach of duty was best left to a jury. Read Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014) here.
Alderman Latasha Thomas, chairman of Chicago City Council's Education Committee, is calling for race to be considered in the admission process at Chicago's elite public high schools. The District was previously under a desegregation consent order, but since it was vacated in 2009, the admission process for the elite schools has been race blind. The result has been a significant increase in white enrollment and decrease in African American enrollment. Thomas makes an argument for reversing that trend that seems to fit squarely within the Supreme Court's narrow tailoring requirement:
Now that you’ve taken race out for four years and saw [the adverse impact], race can be one of the factors. Before, it was one of two factors. Now, race can be one of six or maybe seven factors you use, so it’s not weighted as heavily as it was before. Your legal consultants should be exploring that with the idea that, when you took race out, we were falling backwards. Now, we have justification.
The district's director of student enrollment committed to raise the issue internally and consult with the district's law firm regarding legally permissible options.
Monday, July 21, 2014
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen’s books, “The 5,000 Year Leap” and “The Making of America,” in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that “if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates.” Professor Garret Epps, University of Baltimore School of Law, explains that “parts of [Skousen's] major textbook … present a systematically racist view of the Civil War” with a “long description of slavery in the book” arguing that slavery was “beneficial to African-Americans and that Southern racism was caused by the ‘intrusion’ of Northern abolitionists and advocates of equality for the freed slaves.” The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did.”
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown
Preston Green, Bruce Baker, and Joseph Oluwole's new article, How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown, is now available on westlaw at 53 Washburn L.J. 439 (2014). The introduction summarizes it as follows:
After the Brown v. Board of Education decision, black students have primarily used school desegregation and school finance litigation to attain equal educational opportunity. School desegregation litigation has focused primarily on breaking down the official barriers that prevented black students from attending public schools with white students. School finance litigation has sought “to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes.” This Article explains how the failure of the two legal strategies to address racial funding disparities in the aftermath of Brown enabled the Kansas legislature to create a school finance formula that disadvantaged the school districts affected by that famous decision. This Article also explains how Kansas's recent school finance litigation may provide insight as to how state education clauses might be used to enable students in high-black-concentration school districts to obtain equal educational opportunity.
Friday, July 18, 2014
Utah Considering Forgoing NCLB Waiver Extension and Questioning Constitutionality of Current Process
The Utah State School Board has been mulling over its options (or rather the option) regarding the state's waiver from the No Child Left Behind Act (NCLB), and remains divided over what to do. The deadline for for waiver extensions is mid-August. Without a waiver extension, the state must comply with all provisions of the act, "including requirements to divert funds intended for the assistance of at-risk students, the hiring of third-party consultants, faculty and administrative shakeups, and potentially the closing of traditional public schools to be reopened as charters." According to a presentation by the vice chair of the board, if the state were to abandon its waiver, costs would rise $26.5 million and all 1,067 Utah schools would fail under the law in the coming year. Some in the state are also hashing through the issues I have been raising here and here regarding the constitutionality of the Department's actions under the waivers.
More on the Utah story here.
Thursday, July 17, 2014
A mysterious group called Cal200 has filed class action lawsuits against 3 dozen California school districts for failing to providing students with the 200 minutes of PE every 10 days required by state law (an average of 20 minutes a day). Cal200 has no apparent connection to education or the school districts that it is suing, which include Los Angeles Unified — the second-largest school district in the nation — San Francisco Unified, Riverside Unified, San Bernardino City Unified, Palm Springs Unified, and Desert Sands Unified. Cal200's president has refused to provide details about its membership or history. Little information is available on Cal200's website, leading the president of the Palm Springs Teachers Association to conclude that "this lawsuit is low-hanging fruit. Everybody knows that PE has been pushed aside. People saw this coming, and it was avoidable." In April, a risk management organization warned California school districts about Cal200 -- that the organization requests teachers' lesson plans through a public records request, then sues based on the information provided. The Desert Sun reports:
A few years ago, as the economic recession whittled away at state education funding, many elementary schools shifted more of the responsibility for PE onto classroom teachers. Under this system, students would spend a limited amount of time with a specialized PE teacher once or twice a week, and then their regular teacher would add more physical activity into the classroom routine.
The plan works on paper... but in reality, many teachers are stretched too thin to provide the PE minutes. Teachers are under constant pressure to produce high-testing students, so some have sacrificed PE minutes so they could have extra time for English or math[.]
Read more at the Desert Sun here.
The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.
The Oklahoma Board of Education brought suit claiming that the legislative repeal of Common Core in the state violated the Board's constitutional authority over the "supervision of instruction in the public schools." On Tuesday, the state supreme court heard oral arguments in the case. Four hours later, they issued their decision, Pack v. State, remarkable in its brevity. It stated the issue in one sentence, declared jurisdiction over the case in two sentences, and reached its holding in one sentence: "HB 3399 does not violate art. 13, §5 or art. 4, §1 of the Oklahoma Constitution."
Wednesday, July 16, 2014
The Times Union ran this commentary by David Sciarra and Billy Easton yesterday. Thanks to David for sharing.
Sound Education Child's Right
With much fanfare, a novel lawsuit filed in Staten Island alleges teacher tenure, due process and lay-off procedures violate the constitutional right of New York school children to a "sound basic education."
Without offering specifics, the complaint baldly asserts that these procedures result in classrooms filled with "incompetent" teachers, especially in schools serving at-risk students.
The complaint also presents no evidence to suggest that ending tenure or altering due process protections for teachers will somehow improve student outcomes. Nor could it because there is none.
In a Holistic Review of Holistic Admissions, Fifth Circuit Upholds University of Texas Admission Plan
For those who missed it, the 5th Circuit issued its opinion late yesterday in the remand from the Supreme Court in Fisher v. Texas. The Court of Appeals, by a 2-1 vote, upheld the admissions plan. The opinion is here. The University of Texas victory was unexpected by many close to the case. I personally thought the panel would still be predisposed toward the Texas plan, but there was a strong chance it would remand to the district court to further develop the facts to help bolster the narrow tailoring case. So my surprise was the Court of Appeals' willingness to defend the plan as narrowly tailored on the facts already before.
On my initial read of the opinion, I was most struck by the court's framing of the admissions plan. It analyzed the admissions plan in full context. This is something it had done in its previously decision, but it went even further this time and framed the facts in a way that offered a more definitive defense of the notion that the plan was narrowly tailored. First, it accounted for where diversity had been for several years prior to the current admissions plan to show that the Top Ten Percent Plan alone did not work nearly as well as race neutral advocates would have us believe. Second, it was insistent on analyzing the use of race not in the narrow context of the holistic admissions review process in which Texas used it, but in the broader admissions context. This allowed it to show how race has the potential to be a factor in only a small percentage of overall admissions program. Top Ten Percent Plan dominates the admissions process and the holistic review operates in the few remaining seats up for grabs. In that respect, the consideration of race is much narrower in Texas than it was in Grutter v. Bollinger.
The Toledo Public School District has added itself to the ranks of large school districts revisiting their approach to student discipline. The district has implemented a preventive approach. Its plan was to to be more proactive than reactive and have an open dialogue with students about what they did wrong and how they can behave better in the future. If the numbers reflect reality, it appears to be working. Under the new system, the number of suspensions at one school dropped from 260 to 41, and no students have been expelled.
Limiting the amount of time students spend outside the classroom was one of the main goals of the program, but the district also removed its detention and the demerit system. Now, students are
Tuesday, July 15, 2014
Per my early posts, opting out of Common Core and keeping a No Child Left Behind waiver is no easy chore. As a new Edweek article details, those states that opted out are working with a very short deadline for coming up with an alternative to the Common Core. Given the complexity of developing academic standards, they cannot really do that within their current time frame. The easy option for some is to adopt the Common Core, with slight revisions, under a different name. This allows politicians or state departments of education to create the illusion that they rejected the Common Core. South Carolina's legislature, however, claims to even reject that illusion. Their legislation indicates that if the state department of education adopts any curriculum that was not created locally--"home grown"--the legislature itself must approve the curriculum.
Posturing aside, the practically reality appears to be that the "opt-out" states will operate under a curriculum that mirrors the Common Core in the immediate future and reserve major changes for a future multi-year process. Even then, they are likely to only make those changes necessary to be able to claim that their curriculum is not the common core.
Supreme Decision Probably Makes Student Cell Phone Searches Off Limits in the Average Student Discipline Case by Jason Nance
The United States Supreme Court recently issued a watershed decision that limited the reach of police officers to conduct searches under the Fourth Amendment. In Riley v. California, the Court unanimously held, overturning a prior California Supreme Court decision, that police officers generally must obtain a search warrant before searching through digital information that may be accessed on the cell phone of someone who has been arrested. In issuing this ruling, the Court declined to extend a warrantless search exception that allows police officers to search the area within arrestees’ immediate area of control to ensure the officers’ safety and prevent the loss of evidence. This decision has been hailed as a monumental victory by privacy rights activists who are concerned with the government’s growing ability and inclination to search digital information. Although its full ramifications are unclear, it undoubtedly will affect how searches of digital information are evaluated in other contexts, including how courts will evaluate searches by school officials of information stored on students’ smartphones.
Monday, July 14, 2014
An interesting new student note, taking an international comparitive law approach to the right to education, is now available on westlaw. See Yanet Marisol Beniteza, The Right to Education: Comparing Educational Rights in Japan, El Salvador, and the United States, 36 Hous. J. Int'l L. 749 (2014). The introduction states:
Education is fundamental in the developmental stages of children and is generally referred to as “the key which allows people to move up in the world, seek better jobs, and ultimately succeed in their lives.” The subject of education in the United States is one that is widely discussed, and calls for education reform have been made. Not only is this the case in the United States, but also in countries around the world. This is such a high-priority topic in the international community that several international instruments guarantee the right to basic education. The right to education was included in the Universal Declaration of Human Rights, the Convention on the Rights of a Child, and the International Covenant on Economic, Social and Cultural Rights. This Comment will analyze the right to education as found in these three international instruments; the interpretation of the right to education by signatories of these treaties; and the steps that nations have taken in order to ratify the treaties.
DOJ Reaches Agreement with Jefferson County, La. Parish Schools to End Discriminatory Practices Against Latino Students
The Jefferson Parish Public School System in Louisiana (JPPSS) reached an agreement with the Departments of Justice and Education last week to ensure that students can enroll in school regardless of their or their parents' national origin or immigration status. The agreement follows the suggestions in the agencies' May 18 Dear Colleague Letter reminding districts of the permissible means to verify a student's age, residency, and immunizations without discouraging enrollment based on national origin or immigration status. The case arises from a 2012 civil rights complaint filed by the Southern Poverty Law Center alleging discrimination in Jefferson Parish against Latino students, including one school telling a high school student that she could not graduate unless she showed proof of a social security number before her graduation, not providing interpreters for Spanish-speaking parents at parent-teacher conferences, and allowing school staff to use racial slurs when referring to students. The SPLC noted then that Latino students made up about 17 percent of the Jefferson Parish school district's students, and limited English proficiency students were about eight percent of the enrollment. Among the terms of the three-year agreement between the DOJ/DOE and JPPSS, the district has agreed to revise enrollment and registration materials and policies to ensure they do not exclude or discourage students from enrolling based on citizenship or immigration status; ensure that parents and students are not asked to produce any document that requires proof of citizenship or immigration status in order to enroll or graduate; and implement a translation and interpretation policy to ensure that LEP parents receive essential information in a language they understand. More information on the agreement is at the DOJ's site here.
Friday, July 11, 2014
This spring and summer, the Illinois legislature has been working to reform the way it funds schools. This move is rather remarkable given that the state has been sued so many times for its inequitable funding, the courts have dismissed the claim as nonjusticiable each time, and, for the past few decades, the state has had one of the most inequitable funding systems in the country.
A bill reforming the funding formula has passed the state senate, but did not make it to the house in time for full consideration prior to the summer recess. A special session may be called to deal with the bill. If not, it will be at the top of the agenda for the next session. Either way, there is significant optimism that it will eventually pass.
The current bill would consolidate the current funding formulas into one that prioritizes funding based on student need. Several districts stand to substantially benefit. The state board of