Monday, February 20, 2017
Even if Betsy DeVos understood her job, she could not have taken over the Department of Education at a worse time. The busiest and most complex process that any Secretary of Education will likely see over the next several years is beginning. States are set to submit their brand new implementation plans for the Every Student Succeeds Act. They have been operating under No Child Left Behind plans since 2002 and are now transitioning to entirely new schemes.
These plans include lots of moving parts and policy choices within a much larger regulatory structure. The people who understand those parts just exited the Department of Education building. New staffers are coming into the building and, as evidenced by the confirmation hearing, their boss does not understand the basic rules that have been in place for decades, much less the new ones.
To make things worse, DeVos just added to the confusion. On February 10, DeVos sent a letter to states telling them that the timeline for submitting their implementation plans remains in place, but everything else is up in the air. In November, the Department enacted final regulations outlining what should be in those plans, but DeVos indicates states should not worry about complying with those regulations. She points to a letter from White House staff and the possibility that Congress might disapprove the regulations. In such case, "these regulations 'shall have no force or effect.'" In other words, turn your state plans in on time, but forget the rules.
This letter creates a host of problems, none of which have anything to do with partisan politics. White House staff cannot repeal or stay regulations once they become final--certainly not with a memo. Final regulations can be repealed through the legislative process, but only if the House, Senate, and President act together. While the House has voted to repeal the regulations, the vote was largely symbolic. During the Obama administration, the House passed several similar resolutions regarding non-education regulations, but the Senate never acted. Senator Lamar Alexander has made rumblings about repealing these regulations, but one has to think they are largely rumblings. Congress recessed last week having taken no action. Quite simply, the Senate has much bigger fish to fry right now: agency confirmations, a Supreme Court Justice, and repealing the Affordable Healthcare Act. The last time Congress debated the ACA it led to nearly a decade-long delay in the reauthorization of the Elementary and Secondary Education Act. In short, my money is on the regulations remaining in effect for some time.
Regardless, repealing the regulations in whole will create a huge vacuum, leaving states with no detailed guidance regarding an entirely new process. Surgically removing some of the regulations is equally problematic because it requires that someone actually understand the regulatory substance and structure. Consider, for instance, just one issue like the difference between student proficiency and student growth. Who is Congress going to ask about regulations that go much deeper than proficiency versus growth? Besty DeVos?
If any of the regulations are repealed, the Department will presumably want to replace them. That takes time--often lots of time. The Department must go through the notice, comment, and finalization process. The regulatory vacuum will persist while this drags out.
Even if time were not an issue, new regulations require a sense of where the Every Student Succeeds Act should go. Betsy DeVos standard line is to let states decide. But states do not want to decide everything. They need some sense of the parameters. More important, so does Congress. While the Every Student Succeeds Act gives states a lot of discretion, Congress did not just pass a 400 page bill so that states would be left with no rules or regulations at all. Congress could have done that in a page.
The current regulations are the law whether the Secretary likes it or not. Secretaries may defer enforcement of certain matters on a case by case basis, but Secretaries lack the authority to skip the entire administrative process through letters that repeal or disregard entire regulatory structures.
These problems make the lower level political appointments at the Department more important than ever. Someone who understands education and administration needs to steer the ship. If someone does not figure this out soon, the Every Student Succeeds Act will be dead on arrival.
As a way of limiting the Secretary’s power, the Act includes a provision that automatically approves state plans if the Secretary does not reject them within 120 days of receiving them. So if Department’s leadership does not figure out the Act quickly, any state plan that comes through the door will be approved. If a state wants to rate schools on how often they clean their windows, and punish those who clean too infrequently with mandatory ice cream breaks on Fridays, those plans will set the course for education reform.
Thursday, February 16, 2017
The Civil Rights Project has released a new report on school segregation in Washington D.C. The report is particularly interesting because it reveals the ways in which segregation in D.C. is more nuanced than in other major cities like New York and Los Angles. White enrollment in the D.C. Public Schools is up over the last two decades and its total school enrollment is relatively steady. In other words, white flight from DC ended some time ago, and has now reversed to some extent. Likewise, overall "private school enrollment has plummeted in spite of tuition vouchers," although white enrollment in private school remains steady. Public apartheid schools--those with 99%-100% non-white enrollments--have also dropped significantly. Ninety percent of African Americans attended an apartheid school in 1992, but that number dropped to 71% by 2013. Yet, notwithstanding those trends, charter schools have seemingly gone in the other direction. "The charter schools overall have a less diverse and more segregated enrollment than the public schools."
To be clear, however, segregation in the public schools remains extremely high and the report focus on missed opportunities that could have achieved significant integration in D.C. The report also contrast D.C. to the surrounding districts, noting that across the river Arlington's schools are predominantly white, while "[t]he relatively small Alexandria district showed positive potential by enrolling a balanced number of each racial group: whites (27%), blacks (33%), and Latinos (32%). The segregation level in the district was the lowest among the six immediate metro districts."
Get the full report here.
Wednesday, February 15, 2017
A new story at the Daily Beast tells Gavin Grimm's story in a way that no other I have seen thus far does. It is not really about the legal issues, but about the personal journey of Gavin and his mother to stand up. It is about her evolution and Gavin finding his own mature and civil voice while controversy swirls around them:
“He’s supposed to be thinking about senior skip day,” she told The Daily Beast. “That’s not what he’s thinking about. He’s thinking, ‘I’m going to the Supreme Court so they can discuss my genitals and bathroom use some more.’"
It is a surreal position for a mother to be in, which makes Deirdre’s grace under fire even more otherworldly. The hostility directed at her son used to get under her skin. (“I would hear these nasty comments and it would make me mad and I would want to lash back out at these people,” Deirdre said.)
But now, she’s trying to follow Gavin’s advice: Ignore the blatant opponents of transgender equality and “set a positive example and educate in a positive way” for everyone else instead.
. . .
Taking the high road is a strategy that Deirdre says she learned from Gavin who, at that fateful December 2014 school board meeting, countered his adult critics with a heartfelt plea that could go down in the history books: “I’m just a human. I’m just a boy. Please consider my rights when you make your decision.”
Education law cases pose a different set of ethical and personal issues than most other cases. A few years ago, a mother told me the story of her daughter's long term suspension from public school and assignment to alternative school. I told her that the facts, as she relayed them to me, were the ones that I had been imaging for some time. They did not involve dramatic events, but simply ostracizing a high-achieving student for everyday misbehavior--misbehavior that students cannot really resist because it is part of growing up and being social. These facts drove to the forefront the irrationality of zero tolerance. I saw them as a vehicle through which I believed a lower court, and potentially the Supreme Court, could put teeth to a substantive due process review of school discipline.
I told the mother all of that. I also told her that filing this lawsuit might not be something she wanted to do. Her daughter's education was ongoing. She lived in a small community with a single high school. Even if she sued the district and won, the remedy might not come for some time. But at the moment she sued, her child might face subtle and or explicit retaliation. Her daughter would certainly draw a lot of attention, which is not necessarily the best thing for a teenage student. Her educational career might be worse off. Ultimately, the family decided to suffer the injustice quietly and enroll the daughter in another school system. I never second guessed that. I simply said I am happy to help whatever they decided.
This is what makes Gavin Grimm's story so courageous. He and his mother had far more privacy on the line than a suspended or disciplined student, which is the typical type of case we see in court, and they pressed forward anyway. From what I can tell, they pressed forward with full knowledge. Gavin Grimm and his mother seem to be standing up because they understand this is about far more than just him. He is willing to make the type of sacrifice that Oliver Brown, Linda Brown (daughter), and countless others during school desegregation made so that other children might go to integrated schools. Their sacrifice was real. As History.com indicates:
After the lawsuits were filed, a number of plaintiffs lost their jobs, as did members of their families, and other plaintiffs had their credit cut off. The retaliation was arguably most severe in South Carolina, where whites burned down the house and church of a particularly energized plaintiff, the Reverend Joseph A. DeLaine, and reportedly fired gunshots at him one night. DeLaine ended up fleeing the state, never to return. Judge Waring was also forced out. Facing death threats, he retired from the bench in 1952 and moved to New York City.
Three cheers for Gavin Grimm and his mother, Deirdre.
Tuesday, February 14, 2017
Trans Students' Bathroom Rights: Will DeVos & Sessions Follow Candidate Trump's Common Sense? Not Likely by Diane Klein
On Tuesday, February 7, 2017, the Senate confirmed Betsy "But What About The Grizzlies?" DeVos as Secretary of Education; Jeff "Elizabeth Warren and The Ghost of Coretta Scott King Are Bullying Me" Sessions was confirmed and sworn in the next day; and by week's end, the Sessions-led DOJ had reversed course on an important Title IX case relating to the rights of transgender students.
This may be the first (and only!) time I wish Trump's Cabinet would take their lead from candidate Trump's public statements on an issue. Unfortunately, recent events suggest the opposite: that DeVos and Sessions will be targeting one of our nation's most vulnerable groups, in a needless and cruel policy offered as a sop to the most deplorable, ignorant part of the electorate.
Nearly a year ago, on February 22, 2016, the Charlotte (NC) City Council voted 7-4 to expand an existing nondiscrimination ordinance to cover LGBT people. The ordinance, which would have gone into effect April 1, 2016, included a provision permitting people to use the bathroom of the gender with which they identify.
On March 23, 2016, North Carolina, in a response that makes the Pearsall Plan look progressive and open-minded, enacted HB2, undoing Charlotte's ordinance, and requiring use of bathrooms corresponding to a person's "biological sex," defined in the bill as "The physical conditions [sic] of being male or female, which is stated on a person's birth certificate." Under HB2, schools were specifically prohibited from allowing students to use any other bathroom than the one matching birth-certificate sex. It stated, "Local boards of education shall require every multiple occupancy bathroom or changing facility...designated for student use to be designated for and used only by students based on their biological sex."
HB2 became hugely controversial, and prompted boycotts of North Carolina by various businesses (like PayPal) and organizations. (For example, the NCAA has pulled its championship games out of the state.) It was in the context of that business impact that candidate Trump responded to queries about the bill. When, on April 20, 2016, Matt Lauer of the "Today" show asked Trump about the issue, Trump pointed to "the strife and the economic punishment" suffered by North Carolina because of HB2. He suggested, admittedly vaguely, that the state simply "Leave it the way it is," meaning, presumably, continue to allow transgender Americans to use the bathroom associated with the gender with which they identify. Should Caitlyn Jenner, one of the best-known trans women in America, visit Trump Tower, he intimated, she could use the restroom of her choice.
While Trump's response was hardly a resounding affirmation of trans rights, he responded as many fair-minded Americans do to this entirely manufactured issue: in essence, who cares what bathroom someone uses? And what sort of people do care?
A closer look makes clear that the real intent of these "bathroom bills" is not to protect anyone. Opponents of transgender bathroom access have a long and sordid history of casting trans people as sexual predators instead of what they actually are: the frequent victims of hate crimes, including sexual crimes. A person who intends to carry out an assault in a restroom will hardly be deterred by the gender marker on the door. There is obviously something else going on.
That something else is a frontal assault on transgender identity and existence. While the benefits of such bills are non-existent, the harmful effects on trans kids in school are staggering. Requiring trans kids in schools to use the bathroom associated with the sex on the student's birth certificate (which generally cannot be changed until adulthood) may not seem like a big deal. But stigmatizing a child who wishes to present in a gender different from their assigned gender is a way to deter that child from outwardly transitioning at all (in other words, a trans girl identified at birth as a boy will be forced to continue to present as a boy, and use the boys' restroom), on pain of being set up for abuse, or even driven out of school. A law requiring that bathroom use be dictated by the sex assigned at birth will increase the trans student's discomfort (including physical discomfort) and marginalization at school, inviting state-sanctioned bullying, and even violence - without making anyone safer.
Under a bill like HB2, a trans student presenting in their self-defined gender faces an impossible dilemma in using any school restroom. Entering the boys' restroom while presenting as a girl, as the law would require of a trans girl, would invite abuse, while using the girls' restroom despite possessing male external genitalia would create a paralyzing fear of discovery. A trans student who was not "out" to their school and classmates would in fact be required to out him- or herself, in order to avoid breaking the law by using the prohibited bathroom. It is degrading, humiliating and cruel to draw attention to a student in this way, and force them to choose between outing themselves and breaking the law, and it is hardly better to put teachers or school personnel in a position to police student restroom use. It is indecent to require teachers to think like child molesters or peeping Toms, more concerned about what is in a student's pants than what's in their head.
A day or so after Trump's reasonable, if uninspiring, remarks, Fox News' Sean Hannity attempted to corral Trump back into the right-wing "state's rights" fold, by re-interpreting Trump's ambiguous comment that "I think that local communities and states should make the decision." Trump, it's safe to say, was probably unaware that HB2 emerged precisely from a conflict between a community (Charlotte) determined to practice nondiscrimination, and a state legislature that felt otherwise. Because, again, I just don't think he cares that much. "If it's bad for business, why do it?," seems to pretty much sum up his view.
With controversy roiling over HB2, the Obama Administration sent out the "Dear Colleague Letter on Transgender Students" on May 13, 2016. This guidance document, which went out over the signatures of Catherine Lhamon, Assistant Secretary for Civil Rights (DOE) and Vanita Gupta, Principal Assistant Attorney General for Civil Rights (DOJ), required schools, upon notice from a student, parent, or guardian, to treat students in a way "consistent with the student's gender identity," regardless of the student's sex or gender in previous records. The letter further stated, "A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns." Crucially, the letter states, "When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity."
These new guidelines were promulgated under Title IX, a 1972 civil rights law that provides, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." It is sweeping in scope, covering 16,500 local school districts in all 50 states, as well as 7,000 postsecondary institutions.
Although the "Dear Colleague" letter set new nationwide standards, the substantive policy it imposed was hardly novel. The Los Angeles Unified School District (LAUSD), the second-largest district in the nation with 640,000 students (more populous than Vermont though only 1/10 the size), implemented a policy protecting the rights of transgender and gender non-conforming students in 2005 (updated in 2011). This policy, copied by other districts, has operated entirely without incident.
Maybe that's why, when candidate Trump addressed it, he rightly saw it as a non-issue.
But on Friday, February 10, 2017, the DOJ quietly withdrew from the case, using language suggesting they may drop the appeal entirely. That leaves the nationwide injunction in place, even as another case involving the Title IX Dear Colleague letter is set to be heard by the Supreme Court March 28, 2017. Despite hopeful language from some trans rights groups, without the threat of DOE enforcement, the Dear Colleague letter is more like a dead letter.
On October 28, 2016, just a few weeks after Judge O'Connor clarified his injunction, the U.S. Supreme Court granted cert. in G.G. (Gavin Grimm) v. Gloucester County School Board, another case involving transgender student access to bathrooms. The Fourth Circuit found in favor of the student, employing Auer deference to the Title IX Dear Colleague letter in interpreting Title IX to cover gender identity, and 34 C.F.R. 106.33, the "comparable facilities" requirement for single-sex school facilities, to require giving trans students access to bathrooms consistent with their gender identity.
Those of us who care about the civil and human rights of trans students everywhere will be watching both cases attentively, hoping for the best but prepared for the worst from the DeVos DOE and the Sessions DOJ. The grizzly bears are the least of our worries.
Monday, February 13, 2017
The President of South Africa offered Nelson Mandela his freedom if he would renounce violence and then remain silent upon his release. Mandela rejected the offer, saying "Only free men can negotiate; prisoners can't enter in contracts.” The concept of forced and unfair negotiation rings true in today’s education reform debates. The new Secretary of Education promises to continue that trend.
Over the past two decades, major education reforms have been forced upon disadvantaged students without the slightest recognition of the enormous power differential between the state and its disadvantaged students. These students and their families have, time and again, been asked either to accept the deplorable state of their current education or try out some new reform—a reform that would not be aimed at deplorable school conditions.
Public schools in the United States are demonstrably separate and unequal, and both measures are on the rise. Take New York, for instance. A recent report by the Civil Rights Project shows that two-thirds of African American students in New York attend a school that is ninety percent or more non-white. Another recent study shows that in New York schools with higher levels of concentrated poverty, the state only spend 90 cents for every dollar it spends in other schools. Nevada is even worse. It only spends 60 cents on the dollar in schools with higher percentages of low-income students. And the racial isolation of Latino and African American students in Nevada is among the worst in the nation.
In the midst of segregation and inequality, education reform continues to demand that these disadvantaged communities make concessions, but state and federal government rarely, if ever, offer integrated or equal schools. Instead, the state offers charters and vouchers. New York has been a hotbed for charter school expansion. Two years ago, Nevada adopted an aggressive voucher plan. The hypocrisy of these responses is not new. In the late 1990s, the Ohio Supreme Court declared the state’s funding system constitutionally inadequate. A large portion of the state’s schools were so poor that the buildings were crumbling around the students. The air in classrooms was not safe to breath and the floors not safe to walk on. Elsewhere, schools simply did not offer parts of the curriculum because no one could teach it. Rather than fix the problem, the state bought off its most segregated and unequal city—Cleveland. It offered a select few in the city a way out in the form of vouchers. Tellingly, the overwhelming majority of voucher students wound up in religious schools, but indicated they did not embrace the religion of their school. They simply had to get out.
The rational choice of families forced to attend segregated and unequal schools is to take the charter school or voucher. Even if that choice does not lead to better education, they cannot be blamed for trying to escape segregation and inequality. We should, however, blame the state for putting them in this position.
In the weeks and months ahead, we need not debate the merits of vouchers or charters. The response to the offer of vouchers and charters should be: give our disadvantage students integrated schools and equal funding and then we can talk about vouchers and charters. Then we can talk about whether money matters.
The new Secretary of Education, Betsy DeVos, has shown no interest in fundamental education issues like this. She proposes charters and vouchers, but has said nothing of ensuring equal funding or integration. The sad truth is that it is not really fair to single DeVos out on this score. Senators who narrowly secured her nomination are the same ones seeking to reverse the prior Secretary's efforts to ensure equal funding. If DeVos does not reverse the regulations, these Senators plan to do it themselves by statute.
In one of the most poignant passages written by a court, the New Jersey Supreme offered a rejoinder to segregation, inequality, and the politics of reform aimed at other issues: “[E]ven if not a cure, money will help, and [disadvantaged] students are constitutionally entitled to that help. If the claim is that additional funding will not enable [poorer students to achieve at higher levels], the constitutional answer is that they are entitled to pass or fail with at least the same amount of money as their competitors.”
In the logic of Nelson Mandela, only students free from segregation and inequality can exercise school choice. Give them freedom. Only then can they exercise choice that their more privileged peers already have.
Friday, February 10, 2017
When Words Are the Weapons: Using Tinker, Bell, and Premises Liability to Keep Schools Safe in a Digital Age
Bethany Poppelreiter, a former special education teacher and current law student, writes on "balancing off-campus student speech with the problems it can cause on campus." Part of the article's abstract is below; the article is available on ssrn here.
This Article suggests for the first time that much of the confusion can be eliminated by utilizing a framework for analyzing off-campus student speech based on the well-rooted doctrine of premises liability coupled with relevant portions of Tinker and Bell. This approach calls for an emphasis based on the identity of the speech target. Such an approach not only ensures essential protections to student speech, but also safeguards the institution of education through protecting the most important aspects of the school environment: teachers and students.
Restorative Justice from the Margins to the Center: The Emergence of a New Norm in School Discipline
Thalia Gonzalez has posted an article on the transformation of restorative justice in school discipline. An excerpt of the introduction is below, and the article is available on ssrn here.
[I]f restorative justice was once characterized as highly localized and aimed at addressing specific behavioral issues, this construction has transformed. Restorative justice is now understood as a philosophy and practice shown not only to address disproportionality in discipline and dismantle zero tolerance, but as importantly to, “create a climate that promotes healthy relationships, develops social-emotional understanding and skills, increases social and human capital, and enhances teaching and learning.” Thus, the purpose of this Article is two-fold: (1) to characterize how restorative justice has moved from the margins of education policy to the center, and (2) to explore the emergence and cascade of restorative justice though the norm life cycle as understood through the lens of theories of normative change.
Thursday, February 9, 2017
For those looking for the basics of charter school law or to just pick up CLE credits, there is a good opportunity coming up:
Live CLE Video Broadcast | March 2, 2017
2 HR CLE (3:00 pm - 5:00 pm Eastern)
This course, presented by a nationally recognized education attorney, will provide a comprehensive overview of the laws applicable to charter schools, including general education students, special education students, and discipline.
The course is for charter school administrators and governing board members, school attorneys, parent attorneys, and attorneys in other practice areas who have an interest in school law and school choice. In this seminar, our experienced faculty will walk you through the laws that govern charter schools. Learn how to handle with issues, matters and cases involving charter schools.
Learn more / Register online...
Key topics to be discussed:
• School Choice, Charter Schools and Constitutionality
• Sources of Charter School Law
• Legislative and Case Law Updates
• Complying with Federal Laws
• Special Education and Charter Schools
• Discipline of Special Needs Students
• Avoiding Exclusionary Practices
• Navigating the Application, Approval and Renewal Process
• Accountability Standards
• Funding Sources
Presented by Hope N. Kirsch
Hope N. Kirsch is a 20+ year attorney with the law firm of Kirsch-Goodwin & Kirsch, PLLC, in Scottsdale, Arizona. She represents and advises students and their families throughout the state of Arizona in all school related matters and disputes, including IEPs, due process, discipline, bullying, and restraint and seclusion.
Two years ago, working as pro bono counsel with the Education Law Center, Greg Little led a major litigation effort to force the state of New York to fairly fund education in its small cities. At the time, Greg was a partner at White and Case. Greg must have caught the education bug. He is stepping down from his lofty position at White and Case and joining the Education Law Center to serve as its chief trial counsel. Good news for education rights. Bad news for states that fail to honor their constitutional obligations to their students. I would also imagine that his unique experience will well situate him to secure even more pro bono assistance from law firms. No one can accuse him of asking for something he was not willing to do himself. The Education Law Center released this notice yesterday:
Gregory G. Little, a former partner at the international law firm of White & Case, has joined Education Law Center to serve as Chief Trial Counsel. Among the nation's most experienced trial lawyers, Mr. Little will lead ELC's efforts to enforce the education rights of public school children through legal advocacy and litigation.
Mr. Little has served as lead counsel in more than 50 trials in state and federal courts throughout the country and has achieved favorable outcomes in some of the most challenging and high profile commercial disputes in the U.S.
During Mr. Little's 35-year career as a trial lawyer he has represented major companies operating in the financial services, pharmaceutical, automobile, banking, tobacco, energy and utility industries, both from the U.S. and countries across the globe.
In addition to his work in the courtroom and at the negotiating table, Mr. Little has represented his clients in crisis management and has dealt extensively with media outreach in the U.S. and throughout the world. Mr. Little has also served as Senior Trial Counsel for the Securities & Exchange Commission (SEC) and Associate General Counsel for Philip Morris.
Mr. Little will utilize his extensive experience as a litigator and legal strategist to advance ELC's mission of ensuring equal educational opportunity for all public school children. Founded in 1973, ELC is among the most prominent and effective advocates for education equity in the U.S., especially for the millions of public school children at risk from family and community poverty, those who need to learn English, students with disabilities, and students of color.
At White & Case, Mr. Little coordinated the firm's substantial pro bono commitment to ELC, which currently includes serving as lead counsel in the New York "Small Cities" school funding litigation and in a class action lawsuit against the State of Michigan over the special education needs of children poisoned by lead in the drinking water in Flint. He has also served on the ELC Board of Trustees since 2013.
"We are thrilled that Greg is joining ELC as our Chief Trial Counsel," said ELC Executive Director David Sciarra. "Children in New Jersey, Michigan and New York have already benefited from his outstanding legal representation in cases involving egregious violations of their rights to education. Greg will be instrumental as we gear up to defend public education from coming efforts to delegitimize, destabilize and defund our public schools."
"I have been incredibly fortunate throughout my career to be in the right place at the right time, and this is certainly one of those times," said Mr. Little. "Joining ELC as Chief Trial Counsel at a time when public schools are under unprecedented attack is a great honor and I look forward to working with ELC to pursue legal remedies whenever and wherever legislators, governors and/or the Trump Administration attempt to undermine the education rights of our nation's public school students."
Wednesday, February 8, 2017
New Report Focuses on Connection Between Criminal Justice and Education Policies, But the Real Problem is Education Quality
The Economic Policy Institute recently released a new report arguing that criminal justice policy is education policy. The main thrust of the report is to point out the poor educational outcomes for students who have an incarcerated parent. Its main findings include:
- An African American child is six times as likely as a white child to have or have had an incarcerated parent. A growing share of African Americans have been arrested for drug crimes, yet African Americans are no more likely than whites to sell or use drugs.
- Independent of other social and economic characteristics, children of incarcerated parents are more likely to:
- drop out of school
- develop learning disabilities, including attention deficit hyperactivity disorder (ADHD)
- misbehave in school
- suffer from migraines, asthma, high cholesterol, depression, anxiety, post-traumatic stress disorder, and homelessness
Those points are almost too obvious. Of course, students with parents in jail will tend to perform worse than others, just as a students with millionaire parents will tend to graduate high school at much higher rates and go to more expensive colleges. The report acknowledges that the school-to-prison pipeline is a problem, but emphasizes that adult incarceration is making matters worse. That is surely true, but if legislatures are not willing to fix the direct causes of poor educational outcomes, why would they address these ancillary causes? And will addressing these ancillary causes substantially alter educational opportunity?
None of this is to disagree with or critique the suggestions in this new report. They are on target. But they jump a key point: states need to address problems in schools first. Those are ultimately the ones that lead to adult incarceration and create a negative feedback loop, not the other way around.
The source of the education problem is twofold: punitive approaches to school discipline and inadequate educational opportunities in low-income communities. In fact, these two problems are intertwined. As I argue here and here, school quality is, in large part, a function of discipline policy. Until we recognize this connection, school quality will continue to lag and the school-to-prison-pipeline will proceed at full steam. Everything else obscures the problem and prompts polemic, knee-jerk reactions.
Teachers' Bid to Roll Back Attack on Teacher Tenure in Kansas Fails, But the Overall Resistance Remains Strong
In 2014, the Kansas legislature significantly changed teachers' due process and tenure rights. The new law "amended the Teacher Due Process Act, K.S.A. 72–5436 et seq., to remove many elementary and secondary public school teachers from long-standing statutory protections regarding the termination or nonrenewal of their annual employment contracts." Of particular note was the elimination of notice to teachers of how they might improve any teaching deficiencies and an opportunity to actually do so.
Rather than directly challenge the substance of the new law, teachers argued that it violated a constitutional rule in the state that prohibits legislation from addressing more than one subject. The bill stripping teachers of rights was also an appropriations bill. Thus, teachers argued it violated the one subject rule. The Kansas Supreme Court disagreed, reasoning that the appropriations related to education as well and, thus, did not violate the one subject rule. Kansas Nat'l Educ. Ass'n v. State, No. 114,135, 2017 WL 242658 (Kan. Jan. 20, 2017):
[The teachers' union] decries the adverse impact it alleges results to its members and public education in general by H.B. 2506's tampering with the Teacher Due Process Act. But the wisdom of the public policy choices reflected in any individual part of a bill is irrelevant to whether the legislation as a whole contains more than one subject. In this instance, H.B. 2506 does not “ ‘embrace[ ] two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other.’
Of course, several other states have attempted to undermine teacher rights and tenure in recent years. Teachers efforts to resist those changes through litigation have been relatively successful. See New Jersey, North Carolina. Courts have also finally begun to turn against those lawsuits that have argued that teacher rights and tenure deprive students of their constitutional right to education. See Minnesota, California. For more on the overall attack on teacher rights and its fundamental flaws, see here.
Tuesday, February 7, 2017
Scholarship on The Failure of Education Federalism and Procedural Due Process Rights of the Accused in Title IX Cases
Kristi Bowman: The Failure of Education Federalism
Tamara Rice Lave: Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases
With Ninth Supreme Court Justice Waiting in the Wings, Lawsuit Revives Movement to Eliminate Mandatory Teacher Union Dues
A little over a year ago, teacher unions across the nation were bracing for a serious blow. The Supreme Court had granted certiorari in Friedrichs v. California Teachers Association. The case involved a challenge to a California statute that required all teachers to contribute to the union. Non-union members could opt-out of certain fees, but all teachers were required to pay those fees associated with the basic negotiation of the teachers' contract because all teachers benefit from that contract. Plaintiffs argued that these forced union dues violates their First Amendment rights. While the Ninth Circuit had upheld the fees, oral argument strongly suggested the Court would strike down the statute. Before the Court could issue a decision, however, Justice Scalia passed away. The Court came to a 4-4 tie, the effect of which was to leave the lower court decision in place. The Orange County Register reports:
Eight California teachers filed a federal lawsuit Monday against their school districts and the California Teachers Association, challenging mandatory union membership and the union dues that come with it.
“Our basic goal is to regain our power, our speech and our right to not associate with an organization that harms us and our students,” said Ryan Yohn, 38, lead plaintiff and an eighth-grade American history teacher at Stacey Middle School in the Westminster School District.
The Center for Individual Rights, a nonprofit libertarian law firm, filed the lawsuit in federal court Monday in Los Angeles on behalf of Yohn and other teachers, including Allen Osborn with the Riverside Unified School District, against various school district superintendents and unions.
They suit aims to resurrect issues raised in an earlier case that ended last year with a 4-4 deadlock before the U.S. Supreme Court.
“It’s really the same case with different plaintiffs,” said Terence Pell, the center’s president.
. . . .
Union leaders, meanwhile, said a decision against them could impact government workers beyond the teachers’ groups, threatening union membership across the country.
“Unions are made up of teachers, firefighters and other working people,” said Claudia Briggs, spokeswoman for the California Teachers Association. “Whatever happens to us happens to everybody else.”
“If a politically driven agenda trumps that hard work, the ones who suffer will be our children and others who benefit from the service of public employees,” she said.
Monday, February 6, 2017
Lotteries Then Pot: The Continuing Evolution of States' Attempts to Fund Education through Anything Other Than General Revenues
The Washington Supreme Court has hammered the state legislature hard in recent years over its failure to rationally fund public education. Most recently, it imposed daily fines on the state for its failure to come up with a plan to comply with the court's prior decisions declaring the financing system unconstitutional. The court also struck down the state's attempt to set up a new charter school system, again reminding it that the state constitution obligates to to fund its traditional public schools. The Seattle Times now reports that the state is looking to fill its education funding gap with taxes on marijuana. The Seattle Times offers this report:
It’s a question that Republican senators have asked during state budget battles from time to time: Why can’t Washington, flush with marijuana tax revenue far outpacing old projections, use that money to help solve the state’s school-funding crisis?
Well, it can. To a small extent it already does. And there is at least surface-level bipartisan agreement that maybe the state should look at pot money as a partial solution to the education-funding gap that the Supreme Court has ordered the Legislature to fill.
But, Democrats are quick to point out, there’s not a big pile of marijuana tax money just sitting around — it’s already being spent in other ways.
Gov. Jay Inslee, a Democrat, thinks it will cost $2.75 billion above current funding levels, over the next two-year budget period, for the state to fully fund the public schools.
Legislative Democrats would bump current levels by $1.6 billion.
Legislative Republicans won’t say what they think it will cost. So far, they won’t say when they’ll release a proposal, although they promise it will be soon.
Sen. Ann Rivers, R-La Center, served on that task force, and at a news conference earlier this month was more strident on rededicating marijuana tax money than on when her party would present a full education funding plan.
“Marijuana revenue needs to go to education, I think it should be devoted,” Rivers said. “I think it’s absolutely appropriate to take the money, set it aside, and say this is only education.”
Using marijuana revenues seems far more human than past legislative schemes to use lottery revenues. It is likely far more lucrative as well. But the optics and the inference that the state lacks a serious commitment to education give me pause.
Get the full story here.
The Department of Education recently released its findings of its study of the impact of school improvement grants (SIG) to districts. The results were not that promising. First, the districts receiving grants did not seem to adopt reform at a significantly higher rate than other schools. They did implement certain reforms, but so did other schools. In other words, they may have received grants to do things they would have done anyway. Second, the specific reforms implemented did not appear to affect student achievement. To be clear, however, the problem may have simply been in the reform models preferred by the SIG grants. Spending money on the wrong policies surely will have no positive effect. Unfortunately, this is not new. Benjamin Superfine wrote a similarly interesting article on the Race to the Top grants. See Benjamin Michael Superfine, Stimulating School Reform: The American Recovery and Reinvestment Act and the Shifting Federal Role in Education, 76 Mo. L. Rev. 81 (2011). In any event, the Department offered this summary of its new findings:
- Although schools implementing SIG-funded models reported using more SIG promoted practices than other schools, we found no evidence that SIG caused those schools to implement more practices. Our descriptive analysis found that schools implementing a SIG-funded model used significantly more SIG-promoted practices than other schools (22.8 of the 35 practices examined [65 percent] versus 20.3 practices [58 percent], a difference of 2.5 practices). Our more rigorous RDD analysis found a similar ES-2 difference of 3.3 practices, but it was not statistically significant. Therefore, we are unable to conclude that SIG caused the observed difference in use of practices.
- Across all study schools, use of SIG-promoted practices was highest in comprehensive instructional reform strategies and lowest in operational flexibility and support. In the comprehensive instructional reform strategies area, study schools reported using, on average, 7.1 of the 8 SIG-promoted practices examined (89 percent). In the operational flexibility and support area, study schools reported using, on average, 0.87 of the 2 SIG promoted practices examined (43 percent).
- There were no significant differences in use of English Language Learner (ELL)- focused practices between schools implementing a SIG-funded model and other schools.
- Overall, across all grades, we found that implementing any SIG-funded model had no significant impacts on math or reading test scores, high school graduation, or college enrollment.
- When we compared student achievement gains from different models in elementary grades (2nd through 5th), we found no evidence that one model was associated with larger gains than another. For higher grades (6th through 12th), the turnaround model was associated with larger student achievement gains in math than the transformation model. However, factors other than the SIG model implemented, such as baseline differences between schools implementing different models, may explain these differences in achievement gains.
Get the full study here.
Friday, February 3, 2017
When news broke a couple of days ago that two republican senators would vote against confirming Betsy DeVos as the next Secretary of Education, speculation over the possibility that she might not be confirmed went into hyper-drive. If just one more senator defected, DeVos would fail and there were five or more republican senators who, due to politics in their home states, might very well vote against her. Given that opposition to her was not just political, but basic competency, picking off just one senator seemed possible. After all, some major charter school advocates had even come out against her. If her confirmation died, it is not clear that anyone other than Donald Trump would be personally bothered (although those whose bundle campaign contributions might feel the pain). The past two days seemed to dash those hopes, however, as one, after another, Senators Rubio, Toomey, Heller, Fischer and others have indicated support for her.
This morning at 6:30 a.m., the full Senate began the process of voting on her. For procedural reasons, the final vote will not happen until Monday or Tuesday. I would not rule out a last minute surprise, but odds are that she will be confirmed. Some will see this as a loss, but at this point, the vote does not really matter. Those who want to protect education have already won. Here's why.
First, Trump is not going to nominate anyone that public education supporters will like. He has all but called public schools cesspools of financial waste and failure. If Betsy DeVos fails, Trump would double down on undermining education, not moderate. So a no vote on DeVos would be a moral victory, but not necessarily a practical one.
Second, Trump would be unlikely to make the same mistake twice in terms of appointing an incompetent Secretary. Often times, blocking a nominee draws a concession of sorts, but because the problem with DeVos is competency, the concession--if there was one-would be on credentials. Trump's second nominee would likely have some education experience and knowledge. If so, that person would sail through and look strong by comparison. Finding such a person would be easy. As I pointed out, Betsy DeVos may be in the top one percent in terms of wealth, but she is probably in the bottom twenty-five percent in terms of education knowledge.
Third, someone with competency would be more dangerous than DeVos. As I pointed out here, DeVos does not appear to really understand the nature of the Secretary's job. If she does not understand her job, it is reasonable to predict she might not be able to do much with it. True, she offers no hopes for those who want to see improvements in education, but it is possible she might just be irrelevant.
Fourth, and here is the key to why she might become entirely irreverent, this bruising confirmation and the possibility of only being confirmed by virtue of Mike Pence casting a tie-breaking vote has mortally wounded Betsy DeVos. She may become Secretary of Education, but she will not have a bully-pulpit or political support. So many groups have come out against her publicly that she has lost what would have been her presumptive base. And everyone is now clear that she is unqualified for the job. Why would they listen to her? And she has fired teacher unions and supporters who would normally take a measured approach. Even those senators who vote for her are unlikely to stick their necks out for her in the future.
The skeptic might say, yeah, but if she wins, she has power and can do what she wants. Fortunately, that is just not true. As a reaction to Secretary Duncan's overreach with No Child Left Behind waivers, the Every Student Succeeds Act severely restricted the powers of the Secretary. As I explain here, the Act shifted an enormous amount of power and discretion back to the states, reducing the Secretary to a paper-pusher.
The Secretary, as paper-pusher, is free to cheer-lead for the policies he or she likes, but that is about it. The silver-lining of this confirmation is that DeVos is a cheerleader that half of the Senate wants to tar and feather and another third wants to just go away and not be seen any more. After all, her nominal supports are smart enough--I hope--to remember they have already taken away the Secretary's power, so what difference does it make if she is incompetent.
For a number of reasons, including symbolism and leadership, I think competence does matter and my idealism still wants to see her voted down because it just is not right to have someone who lacks basic qualifications to rise to this level. But given the way things are shaking out, those who support schools and competency may have already won.
Thursday, February 2, 2017
Yesterday, I wrote about how Secretary of Education John King worked until the final days and helped push through the Department's guidebook on racial diversity and integration in public schools. Tuesday also brought news of a major desegregation breakthrough in Mississippi for the Department of Justice. This one, however, is even more surprising and comes on top of another major Department of Justice desegregation victory in Mississippi last year.
The new victory involves the Cleveland School District. It had been operating a freedom of choice student assignment plan that had been producing significant racial imbalance between its two high schools and two junior high schools. One high school, for instance, was forty percent white while the other high school could count its white students on one hand. The district court had ordered the school district to merge its schools per the Department of Justice's proposal. The school district appealed that ruling and the Court of Appeals issued a stay, blocking the order to desegregation. Somehow on Tuesday the Department of Justice managed to secure an agreement with the district, whereby it would drop its appeal and consolidate the schools anyway. The Clarion Ledger reports:
[T]he Cleveland School Board announced at Monday’s school board meeting that it had reached a settlement in the desegregation lawsuit and would drop its petition, which sought to maintain the district’s current open enrollment system.
District lawyer Jamie Jacks said the decision by the board was unanimous.
“It felt moving forward with a solid plan would serve the district, its students, faculty, parents and community best in the long run,” Jacks said in a statement. “The district is looking forward to making 2017-18 a successful year as we all move forward together.”
The work of enforcing decades-old desegregation cases in small little districts across the country easily goes unnoticed. And even when these little districts act entirely contrary to law, it is probably easy enough for some, including our courts, to look the other way. At least, that is my take on a number of desegregation decisions over the past decade. A lot of credit goes to the Department of Justice for pushing this case from the start and seeing it through, even as the keys to the White House changed hands. It is also worth acknowledging that this school board agreed to do the right thing. It is altogether possible it could have avoided doing so.
On a more global level, this case also offers a pristine example of why the leadership in the Department of Justice matters so much.
Wednesday, February 1, 2017
Former Secretary of Education John King said the Department would work until the last moment, as it had important work still to do. January 19th, 2017 did not disappoint. The Department released a guide for improving diversity in public schools. The introduction states:
This brief provides information to support school districts and stakeholders seeking to improve student diversity in their schools through voluntary, community-led programs as part of an overall effort to increase equity and excellence for all students. Diversity can include many factors, such as race, national origin, disability, socioeconomic status, and language proficiency. What follows is an action-oriented summary of considerations when embarking on efforts to increase student diversity, starting with possible steps to consider when conducting a diversity needs assessment and planning for implementation. Potential diversity strategies and a few examples from the field are included, as well as thoughts on efforts to sustain an inclusive environment once diversity strategies are being implemented.
The guide goes through the nuts and bolts of data collection, decision making, and funding for diversity programs--the basic things a school needs to look at to determine what is or is not necessary. It then focuses on five specific types of programs and policies that schools can use to diversify: magnet schools; controlled choice; open enrollment; high-quality charter schools. The guide also offers suggestions for maintaining an inclusive environment in diverse schools: culturally relevant instruction, detracking/expanding access to advanced coursework within schools; diversifying the teacher workforce; and teacher development.
There is nothing particularly new in the document, but it offers good resources and a strong vote of confidence for districts considering positive changes.
Get the full report here.
New Jersey Supreme Court Denies Gov. Christie's Bid to Change Teachers' Rights by The Education Law Center
This from the Education Law Center:
The NJ Supreme Court issued an order yesterday denying Governor Christie's motion to reopen the landmark Abbott v. Burke litigation. ELC, counsel to the plaintiff school children, vigorously opposed the Governor's action.
In the September filing, Governor Christie asked the Court to modify prior Abbott rulings by giving the Commissioner of Education unlimited authority to over-ride terms of teacher collective bargaining agreements and the law requiring teacher layoffs by seniority. The Governor also asked the Court to "freeze" state aid at current levels under the funding formula - the School Funding Reform Act (SFRA) which was upheld and enforced by the Court in the 2009 and 2011 Abbott XX and XXI - while the Executive and Legislature developed a new wholly undefined formula to be adopted at some indeterminate future date.
In denying the Governor's motion, the Court noted the challenges to collective bargaining and seniority in layoffs "have not been subject to prior litigation in the Abbott line of cases."
The Court, in its order, "declines to exercise original jurisdiction" to hear the motion "in the first instance," thus deciding not to consider the merits of the Governor's request.
"We are pleased the Court has turned down the Governor's request. Issues related to collective bargaining and teacher layoffs were never in the Abbott case, which has been singularly focused on ensuring adequate funding and resources for students in New Jersey's poorest schools," said David Sciarra, ELC Executive Director and lead Abbott counsel.
Denying the Governor's request to freeze school funding means that the Court's directives in the Abbott XX (2009) and Abbott XXI (2011) rulings requiring the State to continue to use the SFRA formula to fund New Jersey's public schools remain in full force and effect.
"With this ruling, we anticipate the Governor will follow the Abbott rulings and SFRA statute by using the formula to determine state aid for school districts in the FY18 State Budget," Mr. Sciarra added. "We're prepared to work with the Governor and Legislature to ensure the budget includes a long overdue increase in state aid, targeted to districts most in need."
Tuesday, January 31, 2017
In his proposed 2017-18 budget, Governor Andrew Cuomo is calling for repeal of New York's Foundation Aid Formula, the 2007 law responding to the landmark case, Campaign for Fiscal Equity v. State (CFE).
The Formula was carefully designed to deliver funding for the essential resources all New York school children need to achieve the state's academic standards, including additional resources needed for students in poverty, English language learners and students with disabilities. The Formula was also designed to drive increases in state aid to high need schools across the state, addressing New York's longstanding disparities between high poverty, low wealth and low poverty, high wealth school districts.
In the 2003 CFE ruling, New York's highest court declared the state's method of funding schools violated New York City students' constitutional right to a "sound basic education." The Court of Appeals sharply criticized the funding system, calling it a "political process" that allocates funds to schools in a way that "does not bear a perceptible relation to the needs of" public school children.
In the wake of CFE, the Legislature enacted the Formula to move the state from funding schools based on available dollars and raw politics to year-to-year determinations based on student and school need. The Formula also allocated school aid based on district fiscal capacity to raise local revenue from property taxes. To accomplish this objective, the Formula provided for a four-year phase-in of increases in state aid, or $5.5 billion statewide, the vast majority targeted to the poorest urban and rural districts.
In 2009, the state froze and then subsequently cut Formula aid. Since taking office, Governor Cuomo has staunchly resisted increasing aid to move districts towards full Formula funding. The Formula remains underfunded by over $4 billion.
The result of the state's failure has fallen hard on students, especially those in high need schools. Many districts have reduced or eliminated teachers, support staff and other programs deemed essential in CFE for a constitutional education. Yet support for full Formula funding remains strong. Parents, teachers, board members and legislators have stood behind the Formula, demanding Governor Cuomo re-commit to a multi-year phase- in of full Formula aid.
The Governor's announcement that he wants to eliminate the Formula is a stunning reversal of his 2010 campaign position when he made clear the state's responsibility for full Formula funding. The Governor recognized the state "is supposed to equalize or come close to equalizing" school funding, declaring that "the state has yet to fully fund" CFE.
Governor Cuomo is following the playbook of Governors in Mississippi and Georgia, states where the existing funding formulas are, like New York, chronically and substantially underfunded. Rather than fully funding the Formula, the Governor wants to wipe it off the books, and with it the current $4 billion shortfall in state foundation aid. By dumping the Formula, the Governor is attempting to avoid accountability for meeting the needs of New York's school children, needs that the Governor, no matter how hard he tries, cannot pretend don't exist.
Even worse, repeal of the Formula would be a major step backwards. The Governor wants to turn the clock back to the days when school funding was decided by "three men in a room," a crass political process soundly rejected by the CFE rulings. We're confident that legislators will continue to stand behind the Formula and demand that it be fully funded to ensure the needs of school children remain prominent, paramount and fully effectuated in the annual state budget.
David G. Sciarra is Executive Director of Education Law Center. ELC advocates for fair and adequate school funding for New York school children.