Friday, December 8, 2017
The Strange Ideas Found in Voucher Schools' Textbooks Are a Problem Reaching Well Beyond Just the Students Learning Them
Huffington Post's study of the curriculum offerings in private schools that participate in state run voucher and tax credit programs has set the internet ablaze. Huffington Post identified all of the private schools that receive voucher or tax credit funding--no small task. It then collected information on the textbooks those schools use. The results were startling in many respects. The study turned up books that promote some pretty sensational ideals:
- In the 1800s, Satan hatched “the ideas of evolution, socialism, Marxist-socialism (Communism), progressive education, and modern psychology” to counter America’s increased religiosity.
- Women's right to vote and increased participation in the workforce coincided with women acting in increasingly anti-Christian ways, such was disobedience "to their own husbands.”
- The books sympathize with the South in regard to the Civil War or “war between the states," as they phrase it, and while the acknowledge that slavery was likely a factor in the war, they emphasize other explanations.
These types of ideas were promoted in three particular textbooks/curriculums. The charts below reveal the frequency with which voucher and tax credit schools use these textbooks.
The implications of the ideas that these books promote cannot be contained simply to the schools in which they are taught. As I emphasized in 2013 in Charter Schools, Vouchers, and the Public Good,
Increasingly forgotten in these conversations [about school choice] is that the purpose of receiving an education, at least a public education, goes far beyond the teaching of information and skills and the interests of individual students. Public education includes the transmission of social values that lead to social cohesion and the overall betterment of society. Test scores tell us nothing of these values, and private markets are ill suited to deliver them. Whereas private markets respond to consumer preferences, public education seeks to create public preferences. Additionally, given the nature of the democratic values our public education seeks to promote, individually responsive education makes little sense. Public education entails the provision of common experiences under conditions consistent with equal protection, due process, free speech, and religious neutrality. A consumer-based system allows for too much educational variation and opens the door to individual biases that are contrary to public education.
Based on their track record thus far, charters and vouchers, on the whole, are not operating in furtherance of the public good. Rather than promote the public good, they tend to promote the individual good and operate in ways that actively undermine the public good.
I further explain:
Consider, for instance, an individual-orientated education system that includes elements of school choice. Such a system potentially caters to antisocial behaviors by permitting students with shared antisocial values to choose to coalesce in particular schools or programs. Over the long term, this type of system would undermine social cohesion and counteract the effect of social pressures that might otherwise produce common values.
In contrast, many of the specific values a collective-based concept of education seeks to facilitate are those that mitigate and limit individuals' tendency to adopt antisocial or group mindsets and act on them. For instance, collective-based education promotes the individual's commitment to enhancing the public sphere and common good. Because individuals tend toward self-interest, collective-based education seeks to counteract the tendency toward self-serving interests and affirmatively promote the opposite. Unsurprisingly, collective-based education can generate significant controversy in promoting these values, as doing so only highlights the tension between competing concepts of the public good. Some theorists define the common good not as a society with an expansive public sphere but one with unfettered individual liberty. Collective-based education generally agrees that a core set of individual liberties must be protected, but collective education limits individualism at the point that it seriously threatens group interests.
This is not to say that collective-based education would deny individuals the freedom to adopt antisocial values. If our First Amendment jurisprudence teaches anything, it is that arriving at collective wisdom requires us to protect all individual's ideas, regardless of how repugnant we might find those ideas. And the Court has held that the same principles extend to public schools. Protecting individual freedom, however, is far different from requiring the state to adopt policies and structures that might facilitate and support antisocial values and behavior. At most, the state is obligated to allow individuals to opt out of the public system when their individual values are at odds with public values, but, even then, the state can place limits on the private pursuit of individual values when the private pursuits pose a significant threat to societal well being.
Thus, the irony in Huffington Post's findings is not only are these schools teaching ideas that are at odds with the justifications for providing public education, the public is actually funding these ideas. Moreover, in doing so, these programs have the potential to undermine public education itself. I argued in 2013 that these programs could not just further individual choice, but give private individuals the ability to dissent and, as a practical matter, veto larger public policy agendas. For more, see the full article.
Thursday, December 7, 2017
As I was checking to confirm that my colleague Colin Miller's Evidence Prof Blog deservedly made the ABA Journal's new Top 100 list just as it had for the last several years, I was shocked to see the Education Law Prof Blog right next to it. I assume that one of my friends or regular readers out there nominated the blog rather than the ABA coming up with it on its own. I am pretty confident in that assumption, so thank you to whoever made the nomination. And thanks to those who read the blog. It is only the idea that the blog is useful to others that motivates me to write posts. The idea that someone thinks it is useful enough to nominate to the ABA motivates me to try harder to post more regularly.
Wednesday, December 6, 2017
New Report on Racial Bias in School Discipline Offers Great Prelude for Confirmation Hearing for the Head of the Office for Civil Rights
The NAACP Legal Defense and Educational Fund, Inc. (LDF) released a new report last week on implicit bias in school discipline. It is a particularly efficient and straightforward report that should be easily accessible to the educators and the general public. They, more than attorneys and policy wonks, seem to be the intended audience. It also includes some clear "how to" steps, aimed at minimizing the effects of bias. LDF offered this in their press release:
The report not only explains the ways in which implicit bias – subtle, subconscious beliefs on race – held by teachers, administrators, and school resource officers (SROs) leads to the over-disciplining of students of color, but offers a range of recently developed interventions that have been effective in limiting the harmful effects of implicit bias.
“Addressing implicit bias in schools is essential to dismantling the school-to-prison pipeline, which wreaks havoc on students of color,” said Ajmel Quereshi, Senior Counsel at LDF and co-author of the report. “Instead of readily excluding students from the learning process, educators should heed our recommendations to create an environment that promotes social belonging for all students regardless of race.”
Civil rights advocates, as well as the general public, have long been aware of racial disparities in school discipline. As early as 1974, civil rights advocates highlighted that Black students were two to three times more likely to be suspended than white students. Sadly, little progress has been made in reducing these disparities. In 2012, for example, Black students made up only 17 percent of students in the United States but accounted for 40 percent of out-of-school suspensions and were three times more likely than white students to be suspended or expelled from school. While six percent of all K-12 students received one or more out-of-school suspensions during the 2013-14 school year, the percentage was 18 percent for black boys; 10 percent for black girls; five percent for white boys; and two percent for white girls. This wide racial disparity persists despite gender and age differences.
The disparate punishment for Black students in our nation’s schools can have dire consequences beyond their K-12 school experiences. Once a Black student is suspended, the chances that he or she will drop out of school, become unemployed, and enter the criminal justice system rises dramatically.
New interventions that put more attention on student-teacher relationships and the social and psychological factors contributing to these relationships have begun to lessen the extreme levels of discipline administered to Black children. The report discusses a number of these strategies, including the “wise feedback” intervention, which focuses on providing clear feedback in a manner that prevents students from believing that the teacher may harbor a negative bias against them. Another technique detailed in the report is the “empathic discipline” intervention, which exposes teachers to their kids’ personal stories so that they can gain insight into the experience of racially stigmatized students in school. This exposure encourages teachers to use discipline as a chance to build a relationship with the student and cultivate a learning opportunity.
“The over-disciplining of students of color presents a crisis for our young people, our schools, and our criminal justice system,” said Jason Okonofua, Assistant Professor of Psychology at the University of California, Berkeley and co-author of the report. “The interventions and recommendations offered in our report could significantly improve the fairness of school discipline, helping to ensure that every student has a meaningful opportunity to succeed.”
Beyond these interventions, the report also offers specific recommendations for school districts on how to better address implicit bias, and how to mitigate the harm caused by discretionary offenses and school resource officers. These recommendations have already shown promise in ameliorating the over-disciplining of students of color, and in creating a safer learning environment where all students feel inspired to succeed.
The report was published with the guidance of the Legal Strategies Collaborative, a group of 15 organizations that focus on limiting the school-to-prison pipeline, and was made possible by a grant from the Open Society Foundations.
Read the full report here.
The report could not be more timely given that Kenneth Marcus, the nominee for Assistant Secretary in the Office for Civil Rights at the U.S. Department of Education, had his confirmation hearing yesterday. Edweek reports that he was thoroughly grilled on school discipline issues. The Office issued guidance a few years ago that spelled out a clear framework for evaluating racial disparities in school discipline. Pursuant to that guidance, the Office forced corrective change in a number of school districts. The question now is whether Marcus would continue that policy. Here are a few exchanges from the hearing.
"If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?" asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.
"In general, the answer is yes," Marcus said.
Murphy said he "would argue that we have a school discipline crisis in this country." He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. "If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?" he asked.
"Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern," Marcus responded. "Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions."
"I will just share my view with you," Murphy responded. "I don't believe there's any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn't find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?"
Marcus said his "experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are." He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.
"I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences," said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.
His answers were relatively moderate all things considered. He was not hostile to the guidance at all, which sets him apart from many others on the right. And the fact that DeVos did not rescind the guidance during her recent hatchet job on education regulations is somewhat comforting.
With that said, Marcus is extremely sophisticated and previously served in the Office during the Bush administration. I would not expect him to make a fool of himself during a hearing or even invite confrontations that he could avoid. Unlike so many other nominees, he actually understands government and what this Office is supposed to do. Marcus clearly understands the law and it is not his mission to undermine it or the Office.
He and I have debated before and we, of course, disagree on the substance of any number of important issues. Once we get past basic threshold questions or the application of the law, we begin to diverge. And the way he dealt with anti-Israel protests on college campuses a decade ago raises major red flags and has drawn a lot of letters in opposition to him, including from professors. To be fair, however, the legal rationale that he relied on with the anti-Israel protests was the same rationale that he and the Office used to protect Sikh and other religious minorities from harassment in school following the 9/11 attacks, although the harassment of Sikh's was far more direct and clear. This leads many to believe that while Marcus won't undermine the Office, he will, from time to time, use it for his own ends.
Am I happy that he will lead the Office? Absolutely not. Do his pet projects bother me? Absolutely yes. Is he competent, generally reasonable, and better than a host of other people I might have expected Trump to nominate? Absolutely yes. In short, he is a mixed bag.
Tuesday, December 5, 2017
Public school funding has shrunk over the past decade. School discipline rates reached historic highs. Large achievement gaps persist. And the overall performance of our nation’s students falls well below our international peers.
These bleak numbers beg the question: Don’t students have a constitutional right to something better? Many Americans assume that federal law protects the right to education. Why wouldn’t it? All 50 state constitutions provide for education. The same is true in 170 other countries. Yet, the word “education” does not appear in the United States Constitution, and federal courts have rejected the idea that education is important enough that it should be protected anyway.
After two decades of failed lawsuits in the 1970s and ‘80s, advocates all but gave up on the federal courts. It seemed the only solution was to amend the Constitution itself. But that, of course, is no small undertaking. So in recent decades, the debate over the right to education has mostly been academic.
The summer of 2016 marked a surprising turning point. Two independent groups – Public Counsel and Students Matter – filed lawsuits in Michigan and Connecticut. They argue that federal law requires those states to provide better educational opportunities for students. In May 2017, the Southern Poverty Law Center filed a similar suit in Mississippi.
At first glance, the cases looked like long shots. However, my research shows that these lawsuits, particularly in Mississippi, may be onto something remarkable. I found that the events leading up to the 14th Amendment – which explicitly created rights of citizenship, equal protection and due process – reveal an intent to make education a guarantee of citizenship. Without extending education to former slaves and poor whites, the nation could not become a true democracy.
Why a federal right to education matters
Even today, a federal constitutional right to education remains necessary to ensure all children get a fair shot in life. While students have a state constitutional right to education and it has made a real difference in many states, too many state courts have been ineffective in protecting those rights. Some courts claim they lack the authority to demand reform. Others simply struggle to cajole legislative compliance with court orders.
Without a federal check, education policy tends to reflect politics more than an effort to deliver quality education. In many instances, states have done more to cut taxes than to support needy students.
And a federal right is necessary to prevent random variances between states. For instance, New York spends US$18,100 per pupil, while Idaho spends $5,800. New York is wealthier than Idaho, and its costs are of course higher, but New York still spends a larger percentage on education than Idaho. Tennessee and Kentucky make the point even clearer. Kentucky is a little poorer than Tennessee, but spends far more on education—$8500 per pupil compared to Tennessee’s $7300. In other words, geography and wealth are important factors in school funding, but so is the effort a state is willing to make to support education.
And many states are exerting less and less effort. Recent data show that 31 states spend less on education now than before the recession – as much as 23 percent less.
States often makes things worse by dividing their funds unequally among school districts. In Pennsylvania, the poorest districts have 33 percent less per pupil than wealthy districts. Half of the states follow a similar, although less extreme, pattern.
Studies indicate these inequities deprive students of the basic resources they need, particularly quality teachers. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low-income students completing nearly a year of additional education. This additional education wipes out the graduation gap between low- and middle-income students. A Kansas legislative study showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.”
These findings are just detailed examples of the scholarly consensus: Money matters for educational outcomes.
The new lawsuits
While normally the refuge for civil rights claims, federal courts have refused to address these educational inequalities. In 1973, the Supreme Court explicitly rejected education as a fundamental right. Later cases asked the court to recognize some narrower right in education, but the court again refused.
After a long hiatus, new lawsuits are now offering new theories in federal court. In Michigan, plaintiffs argue that if schools do not ensure students’ literacy, students will be consigned to a permanent underclass. In Connecticut, plaintiffs emphasize that a right to a “minimally adequate education” is strongly suggested in the Supreme Court’s past decisions. In Mississippi, plaintiffs argue that Congress required Mississippi to guarantee education as a condition of its readmission to the Union after the Civil War.
While none of the lawsuits explicitly state it, all three hinge on the notion that education is a basic right of citizenship in a democratic society. Convincing a court, however, requires more than general appeals to the value of education in a democratic society. It requires hard evidence. Key parts of that evidence can be found in the history of the 14th Amendment itself.
The original intent to ensure education
Immediately after the Civil War, Congress needed to transform the slave-holding South into a working democracy and ensure that both freedmen and poor whites could fully participate in it. High illiteracy rates posed a serious barrier. This led Congress to demand that all states guarantee a right to education.
In 1868, two of our nation’s most significant events were occurring: the readmission of southern states to the Union and the ratification of the 14th Amendment. While numerous scholars have examined this history, few, if any, have closely examined the role of public education. The most startling thing is how much persuasive evidence is in plain view. Scholars just haven’t asked the right questions: Did Congress demand that southern states provide public education, and, if so, did that have any effect on the rights guaranteed by the 14th Amendment? The answers are yes.
As I describe in the Constitutional Compromise to Guarantee Education, Congress placed two major conditions on southern states’ readmission to the Union: Southern states had to adopt the 14th Amendment and rewrite their state constitutions to conform to a republican form of government. In rewriting their constitutions, Congress expected states to guarantee education. Anything short was unacceptable.
Southern states got the message. By 1868, nine of 10 southern states seeking admission had guaranteed education in their constitutions. Those that were slow or reluctant were the last to be readmitted. The last three states – Virginia, Mississippi and Texas – saw Congress explicitly condition their readmission on providing education.
The intersection of southern readmissions, rewriting state constitutions and the ratification of the 14th Amendment helps to define the meaning of the 14th Amendment itself. By the time the 14th Amendment was ratified in 1868, state constitutional law and congressional demands had cemented education as a central pillar of citizenship. In other words, for those who passed the 14th Amendment, the explicit right of citizenship in the 14th Amendment included an implicit right to education.
The reasoning of both Congress and the state conventions was clear: “Education is the surest guarantee of the … preservation of the great principles of republican liberty.”
The rest is history. Our country went from one in which fewer than half of states guaranteed education prior to the war to one in which all 50 state constitutions guarantee education today.
The new cases before the federal courts offer an opportunity to finish the work first started during Reconstruction – to ensure that all citizens receive an education that equips them to participate in democracy. The nation has made important progress toward that goal, but I would argue so much more work remains. The time is now for federal courts to finally confirm that the United States Constitution does, in fact, guarantee students the right to quality education.
Monday, December 4, 2017
Every twenty years, a commission meets in Florida to consider changes to its constitution. The last time it met the commission proposed important improvements to the state constitution's education clause, specifically adding that the public school system should be "high quality." This language situated Florida's education clause as one of the most forceful in the country (even thought its courts have not seen fit to enforce the clause). This education clause, however, caused some problems for school choice advocates. In Bush v. Holmes in 2006, the state supreme court struck down the state's school voucher program, finding that the education clause prohibited the state from using public education dollars to fund private vouchers.
Now, the commission is proposing constitutional changes to eliminate that limitation. The old constitutional mandates are left in place, but the commission would add one important sentence: "Nothing herein may be construed to limit the legislature from making provision for other educational services that benefit the children and families of this state that are in addition to the system of free public schools."
This precise language is interesting and somewhat of an odd fit. Appreciating the oddness requires a little background on why Florida and a few other courts have struck down voucher programs. The reason is not that they or the constitutional language are anti-voucher. The reason is that the constitutions are so pro public education. As of today, all fifty state constitutions protect education. The specifics of each differ, but the general thrust is the same in all of them: the state has an absolute duty to provide an equal and/or adequate system of public education. In this respect, education holds a unique place in state constitutions. It is the singular thing that states must do. Unlike roads, health care, parks, and jobs programs, they have no choice in the matter with education. And as such, they cannot put other policy agendas before public education, nor can the rob Peter (with Peter being education) to pay Paul. There are, of course, caveats, but this general idea is rule through which all education conflicts must run. Thus, the Florida Supreme Court held that a voucher program that siphoned public education dollars out of the public education fund was unconstitutional.
At first blush, the Florida commission's new proposal would seemingly allow Florida to do what its Supreme Court previously indicated it could not. If so, it is a dangerous provision indeed. The public education system might loose its first order status. The state could enact any additional education systems it saw fit, so long as they were in addition to rather than in place of public education. Recent events in Florida would suggest that this is exactly what the power brokers in Florida want. But is this what the people of Florida want? I doubt it. They have a public education clause in their constitution for a reason.
A more technical read of this provision, however, might render it pointless unless the state of education in Florida changes substantially in the coming years. This technical reading appreciates that there is a relationship between the "addition" and "the system of free public schools." Logically speaking, an addition can only occur when the system of public education schools is in place. The question then becomes whether the appropriate system is in place. Not just any old system will do.
The constitution still provides that funding the system is "a paramount duty of the state." And the system has to be "uniform, efficient, safe, secure, and high quality."
It stands to reason that if the state is not providing sufficient funds for an efficient and high quality education, this new proposed constitutional language would not allow the state to fund voucher programs. It is not until the state meets its paramount public education duty that it can do something in addition to it.
Current data strongly suggests Florida is not anywhere close to meeting its obligation. Its funding levels are 41st in the nation and its funding mechanisms are regressive--meaning it gives more money to the students and districts who need it the least. Districts serving larger shares of low-income students actually have less money per pupil that their sister districts. And as I detail in Preferencing Choice (forthcoming Cornell Law Review), Florida has been running choice programs at the expense of the public education system for several years now. Its charter and neo-voucher tax credit system have rapidly expanded each of the last several years while the commitment to public education dwindles. At the statewide level, one might dismiss the trend as minor, but these programs do not really operate on a statewide level. They are heavily concentrated in a handful of districts like Broward County. These districts were already struggling and now the effects of choice are heavy concentrated there. The practical result is often to create new constitutional deprivations in educational opportunity, not cure old ones.
If Florida is sincerely interested in updating its constitution, it should save school choice for another day. Its prior commission specifically refrained from addressing the question of whether courts can enforce the education clause against the state legislature. It was, in short, agnostic. This agnosticism, however, has been treated as a negative and courts have refused to require the state to live up to its constitutional obligations. What is the point of a constitution if the state can breach it at will? Recognizing the problem, most state courts have enforced their education clauses. The best thing this commission could do is make clear that Florida's constitution gets with the times. It is twenty years overdue.
Tuesday, November 28, 2017
Three Years After Demanding Reform, South Carolina Supreme Court Retreats from the Constitutional Right to Education
The following essay first appeared in The State.
In 1999, the S.C. Supreme Court issued a monumental decision in Abbeville v. South Carolina. It held that “the South Carolina Constitution’s education clause requires the General Assembly to provide the opportunity for each child to receive a minimally adequate education.” The trial that followed made national headlines. After reviewing the trial record in 2014, the Supreme Court found that the state had “failed in (its) constitutional duty to ensure that students … receive the requisite educational opportunity” and ordered it to remedy its failures.
By a vote of 3-2 this month, the court terminated this landmark case without even bothering to offer a reasoned explanation.
The majority’s driving motivation appears to be the belief that the court should never have been involved in the first place because it lacks authority to require the state to improve our public schools. This very same argument was rejected by the court in 2014. The only difference now: The justices on the court have changed. The majority also pointed to numerous “good faith efforts” by the state to comply with the 2014 order.
These explanations are inconsistent and flat wrong. If the court lacks authority to rule on the education rights of S.C. school children, the state’s efforts are irrelevant. Either the court can adjudicate the case or it cannot. The court cannot have it both ways, justifying its refusal to further entertain the case with the notion that it does not matter anyway because the state has made what the majority characterizes as “good faith” efforts.
Inconsistencies aside, the belief that an earlier decision in the case was wrong is not enough to justify dismissing the case later. The 2014 Abbeville decision is the settled constitutional law of this state and specifically controls this case.
In our court system, the scales are heavily weighted toward respecting settled law and outcomes in prior proceedings. Any divergence from this presumption requires compelling new evidence and fully explained justifications. In ending the Abbeville litigation, the court offers no such evidence or justification.
Our Supreme Court now stands as an outlier. The brief dismissal reads as though courts do not generally get involved in cases regarding inadequate resources and outcomes for public school children. Yet a majority of state courts have affirmed their role in ensuring that states fulfill their education duties under the constitution. Our own court said the same thing twice in the past.
Just a few weeks ago, the Pennsylvania Supreme Court, in stirring language, explained that cases implicating the education rights of children are at the heart of an independent judiciary: “It is fair neither to the people of the Commonwealth nor to the General Assembly itself to expect that body to police its own fulfillment of its constitutional mandate (in education). This is especially so in light of the many competing and not infrequently incompatible demands our legislators face to satisfy non-constitutional needs, appease dissatisfied constituents, and balance a limited budget in a way that will placate a majority of members in both chambers despite innumerable differences regarding policy and priority.”
The only evidence before our Supreme Court since its 2014 order for the state to fix our broken education system was the state’s own progress reports. Those reports have yet to be subjected to rigorous scrutiny. Simply filing a report — any report — appears enough for this Court.
Were these reports tested, the state would have to account for evidence that school funding remains far below prerecession levels, even though tax revenues have rebounded and produced substantial surpluses in recent years. It would also have to explain how little it has done to expand access to high-quality teachers and preschool education.
But this evidence will never see the light of day. Our court has left students’ right to a quality education solely in the hands of the Legislature. As the Pennsylvania Supreme Court makes clear, legislative self-policing is a far more dangerous proposition to our children and South Carolina’s future than the possibility of judicial overreach.
Tuesday, November 21, 2017
This past Friday was on of the saddest days in a long time for education rights in the state of South Carolina. In a short five-paragraph order, the state supreme court dismissed Abbeville v. State, a school adequacy and funding case first filed in the late 1990s. The case includes two prior victories before the Supreme Court--one in 1999 allowing the case to proceed to trial and another in 2014 order the state to remedy the inadequacies demonstrated in the case. Those two highlights, however, belie a curious history of judicial enforcement, with the court proceeding at a snail's pace in most instances, but all the while proceeding nonetheless. As I describe in Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education--an analysis of national trends in school litigation--
The [South Carolina Supreme Court’s] 2014 decision ordering the state to act came more than two decades after plaintiffs first filed their case. This delay, in large part, was due to the court’s refusal to decide the case. The court took more than two years to decide whether plaintiffs could proceed to trial in 1999. When the case returned to the court in 2008, the court waited nearly six years to issue an opinion on the merits of a potential remedy—so long that at one point it scheduled rehearing to update itself on the case.
At the very least, the case represents a court reluctant to enforce education rights until well after the recession had passed. If justice delayed is justice denied, the decision is surely a loss. Moreover, the long delayed final decision was ambiguous in its mandate, indicating that “the Defendants and the Plaintiff Districts must identify the problems facing students in the Plaintiff Districts, and can solve those problems through cooperatively designing a strategy to address critical concerns and cure the constitutional deficiency . . . .” The court then allowed almost another full year to pass before issuing a timetable for the parties to devise a remedy, which it inexplicably withdrew just weeks later. In September 2016, notwithstanding its original demand that the state “design a strategy to address critical concerns and cure the constitutional deficiency evident in this case,” the court in September 2016 found the state had complied with its order by simply issued an order indicating that the legislature’s efforts to studying educational deficiencies in the state and approving recent minor increases in resources were sufficient to comply with the court’s expectations.
Friday's opinion may ironically be the most definitive in the long running case. In a 3-2 opinion, the Court wrote that "[f]or the following reasons, we vacate the Court's continuing jurisdiction over this matter." The very next sentence explained: "we are convinced Abbeville II was wrongly decided as violative of separation of powers." This, particularly as the first explanation, is troubling as it suggests the case is dictated by a change in court composition rather than reasoned analysis under the controlling law of the cast. The following paragraph offers additional factual justifications, finding that the state had acted in good faith to comply with the Court's prior order.
Monday, November 20, 2017
Under state law, the answer is apparently yes in some places. A Time.com story reports that "Iowa is one of only five states that allow seclusion or restraints when there’s no physical threat, according to the ACLU. Twenty-nine states have banned the use of seclusion or restraints to discipline or punish a child." Apparently, Iowa City Schools had made more than an infrequent practice of it. It had sent "students to seclusion rooms for having a bad attitude, using foul language or being out of instructional control, among other reasons. The [state education] department reviewed more than 450 incidents involving more than 60 students were sent to these rooms over a one-year period starting in December 2015." The district now says it will discontinue the practice.
A handful of seclusion room stories have broken in other schools over the past year or two and districts have similarly been quick to change their practices once the stories came to light. Part of the pressure comes from the fact that many of the students subjected to this treatment have or many have disabilities, which brings federal law and limits into play.
Unfortunately, a corrective response is rarely quick or forthcoming at all for regular education students subjected to harsh school discipline. Writing of school exclusion (rather than seclusion) in Ending Zero Tolerance, I wrote:
Over the past two decades, school discipline has grown increasingly harsh and impersonal. Many schools and states are willing to exclude—temporarily and permanently—students for almost any type of behavior. Even when students’ behavior poses no real danger to school and involves the type of immature mischief parents expect of normally developing kids, schools dig in their heels and insist that they must banish students. Local communities and policy advocates have pushed back and managed some important successes in recent years, but the seriousness and scope of the problem demands a systematic long-term check.
I argue that courts are the check of last resort. "[C]ourts must reengage on issues of discipline and enforce students’ rights. Courts cannot simply abandon students to school boards and the political process. Too often, both schools and politicians have shown themselves to be irrational and willing to sacrifice students in the expedient pursuit of other goals."
But even when courts engage, some schools cannot imagine another way of handling kids. Zero tolerance, seclusion rooms, corporal punishment and the like are examples of schools, at best, throwing their hands up in despair or, at worst, believing courts are the niavely meddling.
The Iowa City School plans moving forward do not inspire confidence. "It’s unclear what method or practice will be used in place of the rooms. [Superintendent] Murley said in his email that 'the district recognizes the role of restraint and seclusion in providing a free and appropriate public education for all students in a least restrictive environment within our schools and is seeking ways to improve our practices.'"
Part of the answer lies in understanding that student misbehavior is not just misbehavior. It is often a warning cry for help in some other area of the child's life or education. As I write here:
Normal human development can explain a lot of misbehavior. Younger children, for instance, lack the capacity to always behave; no matter the rules, elementary school students occasionally talk out of turn, push each other and disrupt class. Older students sometimes push boundaries in other, more serious, ways. Making and learning from these mistakes is simply part of growing up.
Disabilities, academic struggles, poverty, homelessness and family crises can also affect behavior. For students in these situations, misbehavior is often a sign of unmet needs – not a character flaw.
Until school officials begin to understand misbehavior for what it is, our discipline problems will continue to plague us and stories of this sort shock us.
Wednesday, November 15, 2017
Can Tennessee Schools Replace Teachers with Computers? Not If the Constitution and Facts Have Anything to Say About It
The Tennessee Court of Appeals has taken up a fascinating issue regarding students' access to teachers. The problem could only arise in the brave new world of computers. In short, a student at a Tennessee high school had fallen behind in algebra and end-of-grade assessments were looming. The school pulled the student out of the class and placed the student in a computer based credit recovery program. Apparently, this occurred with several other students. The student claims that the school did this to help increase its standardized test scores.
The disputed issue in the case seems to be a narrower one: do students have the right to access a teacher? The plaintiff says yes. The school's attorney says no.
Melissa Roberge, a Metro lawyer, argued Tuesday that a student's right to education does not extend to the education's components, such as how classes are delivered or the specific classes themselves.
"Miss Jones does not have a property interest in the most appropriate education as determined by her," she argued. "Stated differently, there's no property interest in remaining in a specific class or being entitled to any particular test."
Roberge noted that Jones was not excluded from Metro Schools nor removed from all of her classes.
@RachelAnne Levy asked for my thoughts on Twitter. First, the case is fascinating on any number of practical and policy levels. Manipulating who shows up for tests is nothing new, but doing it this way and arguing that it is completely above the board, normal, and legitimate is different. Second, using recovery programs as a supplement to regular instruction or as an option for students who have no others is reasonable. Using it as a first option is really bad policy (unless the program is demonstrated to be of exceptional quality and help to the student) and creates obvious perverse incentives.
As to the law, the case is not nearly as interesting because I think the answer is easy. Unless they have some very specific evidence of which I am unaware, schools cannot just do this simply because no statute exist to specifically prohibit it.
While the district is correct that students typically do not have a property right in any particular class, this line of defense misses much larger and more important legal precedent and rights.
The Supreme Court in Tennessee Small School Systems v. McWherter, 851 SW2d 139 (1993), held that students have a constitutional right to "substantially equal educational opportunities." The underlying facts in the case involved disparities in teacher salaries across the state. Consistent with the overwhelming social science consensus, the court indicated that "teachers, obviously, are the most important component of any education plan or system." Because salary disparities resulted in students having unequal access to teachers, the Court ordered the state on more than one occasion to remedy is system of funding teacher salaries across the state.
So while state statutes may not create any specific property interest in access to a teacher, the state constitution creates a right to equal educational opportunities, which teachers are the most important part of. To be clear, however, underlying the discussion of teachers in McWherter and, now this new case, is educational opportunity itself. The basic right is to educational opportunity. Violations of that right occur when students are deprived of the resources and learning necessary to achieve that opportunity. This leads to the factual question of whether the offerings in one class or one school are substantially equal to others across the state.
Just because one district has higher credentialed teachers than another does not automatically mean the students' rights have been violated. The same is true of minor variations in class size. The same line of reasoning could theoretically extend to computer based learning versus human based teaching. If both were "substantial equal," a student would not necessarily have a claim.
But that is a preposterous theory when one considers the real world. I am not aware of any research (although I allow I may have missed it) that suggests that computers are equal to or can replace human instruction. If any research is on point, it would seem to be the research and practical push back against several technologies that undermine learning--particularly the most valuable types of learning that occur through personal interaction, motivation, and feedback. I don't doubt that artificial intelligence may drastically close this gap at some point, but for now it is hard to argue that computer based learning standing alone is equivalent to teacher based instruction. This is even more so for the struggling student who needs to be engaged.
Where does this leave us? The question of computer based learning is new territory and should not be dismissed out of hand. At some point, it may play an incredibly large and legitimate role. Thus, the law should not cut it off. But that is all speculation and remaining open to future possibilities. But in the here and now, we know how important teachers are and we know that students have a right to substantially equal educational opportunities in Tennessee. Thus, schools should carry a very heavy evidentiary burden with any sort of experimentation that would deprive students of substantially equal access to the key competent of education.
Tuesday, November 14, 2017
The Washington Post recently reported on a mass campus lock down at Worth County High School in Georgia. Over the course of four hours,
40 uniformed officers — the entire staff of the Worth County Sheriff’s Office — fanned through the school in Sylvester, ordering students against the walls of classrooms and hallways, demanding the students hand over their cellphones.
All 900 students were searched, part of a drug sweep ordered by Sheriff Jeff Hobby, according to court documents.
He did not have a warrant. He had a “target list” of 12 suspected drug users. Only three of the names were in school that day, April 14.
When all was said and done, no drugs were found. And when controversy later arose, the attorney for the Sheriff's Department argued that the searches were legal because they were carried out while school administrators were present. "In a statement released on April 18, Hobby elaborated that in 'the weeks leading up to April 14, the Sheriff’s Office received information and complaints from the citizens of Worth County regarding illegal drugs at the high school. The Sheriff contacted the Superintendent of the Worth County School District and the Principal of the high school to inform them of the situation and the Principal and the Sheriff agreed on the day of the pat down.'”
As crazy as that sounds, it was not a bad lob, as courts have vacillated on whether searches require reasonable suspicion or probably cause, depending on schools' involvement with these searches. Regardless, school officials have since pushed back on the idea that they were participants in the searches. And now a grand jury has indicted the sheriff and two deputies for their role in the searches.
Courts have recently begun recognizing limits on police and school practices in cases such as these, but such outcomes are never a given. Victims lose these cases more often than the win them. Yet, this mass search offers another confirmation in a long line of examples of my basic thesis in Ending Zero Tolerance: Courts must reengage on issues of school discipline and the school-to-prison pipeline. Courts have stood on the sideline for the past four decades. In their absence, students have been deprived of their last line of defense--the one that is supposed to stand strong and politics waiver--their constitutional rights.
Friday, November 3, 2017
According to Edweek, Congress's proposed tax plan would allow families to pull up to $10,000 a year out of their 529 college savings account and spend it on K-12 private school tuition (as well as other educational expenses). The proposal appears to be more an act of desperation than rationality in pursuing public support for private choice in K-12 education. The Trump administration's earlier proposal to take federal funding for public schools and drive it toward vouchers and charters never got any serious traction. If anything, DeVos's support for privatizing education made that proposal less popular with the public.
This new tax provision looks like a pointless attempt to save face or give a very small tax break to a subset of wealthy families. By design, College savings accounts/529s are a mechanism for saving money in advance to pay for something else later that might otherwise be affordable. The assumption is that families might not be able to afford college later, particularly since college costs are incurred during a balloon period of just a few years. Not even a regular savings plan is enough for most families. The 529 tries to close some of the college cost gap by allowing families to save over the course of their kids' entire pre-college lifetimes, invest that money, grow that money, and be exempt from taxes on that growth. Most states sweeten that pot a little bit by giving families a small deduction for their initial contributions, which typically caps out at a tax savings of a few hundred dollars each year.
In comparison to the shielded growth, this state tax benefit is small. Consider a family that contributed $10,000 a year for 18 years to a 529. Depending on the state, the family would save around $5000 to $10,000 in total taxes total over the collective period. No small sum, but spread across that many years, no life changer either--at least for families who can afford to contribute $10,000 a year.
That $180,000 investment, however, with compound growth, should rise to a value of somewhere between $320,000 to $500,000 (assuming a growth rate of 5 to 9 percent). That growth is tax-exempt.
So if 529s are such a good deal for college, why do they signal desperation in the context of k-12. First, for many people, using 529s for K-12 would be equivalent to robbing Peter to pay Paul. If a family is already contributing as much as it can to a 529, this new measure is not going to expand their financial capacity. Instead, it allows them to spend college money on K-12. That flexibility may be meaningful for some families, but on the averages makes very little sense, which leads to point two.
Second, if 529s are funding K-12 education, families are necessarily getting less financial benefit out of the 529s. Families will be putting money in one year (or one month) just to take it out the very next. The amount of growth they see will be small at best and there will be no compounded growth (the real benefit of the 529s). The only families that this new plan would likely benefit would be those who can contribute $20,000 a year to a 529 just as easily as they can contribute $10,000. And unless states raise their deduction caps, this additional investment in 529s would not produce a change in state tax liability.
These high wealth families do not sound like those the Administration has been talking so much about when it discusses choice--those who are trapped in failing public schools and need help exploring other options. So, at worst, this is just another measure to hand out tax breaks to those who need to the least, but done so under the guise of some noble object. At best, this is a face saving attempt to get any type of victory the Administration can. This just so happens to be one of the few school choice policies that can plausibly get through Congress.
Thursday, November 2, 2017
Politico just published an in-depth story on Betsy Devos, which includes several quotes from a candid interview with her. The part getting the most coverage is the possibility that she may step down soon. Thomas Toch, the director of think tank in DC, said “in Washington education circles, the conversation is already about the post-DeVos landscape, because the assumption is she won’t stay long. And for my money, I don’t think it would be a bad thing if she left. I think she’s been probably one of the most ineffective people to ever hold the job.”
Given my commentary/speculation on the Department, it was a fascinating read. But before I get carried away, I admit that a typical flaw in commentators is that they always focus on the things they get right, but ignore their errors. So I will offer a little of both, which will admittedly bring my power of projection down to something akin to the value of a coin flip. With that caveat, let's start with the reasons why I said DeVos never made sense as Secretary to begin with.
Before DeVos was confirmed as Secretary, I began writing a series of posts querying why she would even accept the job. In my first post, I wrote "It is not clear whether Betsy DeVos really knows what her job will be as Secretary of Education." If she did, she would have ran full-speed away from it.
Once she actually landed the job, I wrote "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."
The other big problem was that DeVos would not have anyone to help her close that knowledge gap. "These [ESSA] 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." Competent people were not lining up to take their place.
The new Politico story, by Tim Alberta, would seem to confirm most of these projections. DeVos basically admits to not knowing what she was getting into, although she does not assign herself blame:
I think I was undercoached. The transition group was very circumspect about how much information they gave me about then-current policy and … it was in their view a balance between being prepared for a confirmation hearing and not having well-formed opinions on what should or shouldn’t change, so as not to get caught in a confirmation hearing making commitments that then I wouldn’t want to or be able to keep. And in hindsight, I wish I had a whole lot more information.
And then she figured out the complexity of the Department a little too late, which again is an admission that she did not know the job and does not like what she found. Alberta writes:
When I ask what has surprised her most about the job, DeVos does not hesitate. “The bureaucracy is much more formidable and difficult than I had anticipated—and I expected it to be difficult,” she says. “It’s even worse. And you know, in talking to a lot of the great career staff, it’s like everybody nods their heads when you talk about this … yet it seems like everyone is powerless to do anything about it.”
And then, no one came to help her:
She has yet to fill senior staff positions, and it’s widely known that numerous prominent Republicans having turned down offers. She has struggled to acclimate to the proverbial big ship that turns slowly. Perhaps most significant, she failed to persuade the committees of jurisdiction in Congress to approve her and the department’s budget request, which would have slashed funding to other initiatives in the name of expanding DeVos’ pet cause, school choice. It amounted to an embarrassing repudiation of a president and a secretary in their first year, when there is traditionally the most political capital to spend—especially considering Republicans control both the House and Senate.
Does all of this mean that she is about to quit and I was correct that she would not want the actual job she was accepting? DC insiders say yes, although Alberta is not sure. He writes, "instead of planning her exit strategy, DeVos appears to be hunkering down and mapping out where she can maximize her impact." That impact, however, is relatively small and amounts to "a cheerleading campaign" for "rethinking school, innovation, creativity, entrepreneurial activity around education."
Again, I pointed out earlier that this was the most she could hope for as Secretary. Since then, I have also admitted that, in places like Arizona and Texas, her cheerleading may have emboldened some states to take action of their own volition. Whether this is enough for DeVos to stay on, time will only tell.
Okay, so what did I get wrong? I never really anticipated that instead of proactive steps, the Department might just focus on committing itself to doing less. After all, how could it do more on choice while doing less? Wouldn't it be a logically inconsistent view of the federal role in education to push states to do more for charters and vouchers while at the same time asking less of them on special education, discriminatory discipline, and integration?
With a change in administrations, there is always a change in the way regulations are enforced. For instance, that Rod Paige and Margaret Spellings did not actually enforce the Department's disparate impact regulations, as best as I can tell. Conversely, the Obama Administration did enforce disparate impact in certain important contexts. I did not expect the Trump administration to continue the Obama administration's approach, but I assumed the hard break would stop at relatively high level policies such as disparate impact and would only amount to under-enforcement, not changing the rules of the game itself. I was wrong and I should have seen it coming.
Trump issued an Executive Order for DeVos to scour the Department's regulations for signs of federal overreach. I said it was a fool's errand. The Every Student Succeeds Act was an explicit under-reach, so what would DeVos find? Not much, according to me. I incorrectly assumed that the only deregulation that would come from the search for federal overreach would be with actual federal overreaches. Oh, how naïve the professors are.
DeVos has used the Executive Order to target basic special education guidance, competitive grant preferences for diversity, and higher education regulation, to name just a few. At least my co-blogger, Jonathan Glater, was catching the higher education angle.
By deregulating, she is also establishing the predicate for shrinking the Department, at least in her own mind. Again, Alberta gets the story straight from DeVos:
DeVos tells me she will recommend a “significantly lighter footprint.” This hints at what some career employees fear: that the new secretary wants to eliminate entire offices within the department, which would both lighten her bureaucratic burden and free up resources for lawmakers to potentially redirect toward her ultimate objective: expanding school choice.
That second point about choice, however, leads me to wonder whether DeVos still does not understand the job of Secretary. She thinks that now that she has figured out a few things, she will make lemonade out of lemons she has found. The problem is that she thinks she is holding a bunch of over-sized lemons when she is really holding grapefuit.
There is a reason why you don't see much grapefruit on the shelf. There is also a reason why you see loads of orange juice. When Congress passed the Every Student Succeeds Act, it made sure that states got to keep all the oranges. DeVos cannot do anything about that.
I give up on projecting what this means for her tenure on the job.
Tuesday, October 31, 2017
The National Coalition on School Diversity issued this statement:
DeVos Eliminates School Diversity Priorities in New Competitive Grant Program Priorities
On October 13th, the Department of Education published new Proposed Supplemental Priorities and Definitions for Discretionary Grant Programs.
In these new proposed priorities, Secretary DeVos continues to weaken federal support for diverse schools, eliminating supplemental priorities for programs that work to increase racial and socioeconomic diversity in schools while emphasizing school choice. During the Obama Administration, NCSD advocacy played a key role in the promulgation of supplemental priorities for school diversity in 2014, and socioeconomic diversity in 2016.
Comments on the proposed priorities are due November 13th.
NCSD is currently formulating a strong response to the Secretary's latest attack on programmatic support for diverse, equitable schools. We encourage our membership and readers to contact NCSD staff at email@example.com to join our efforts.
New York Appellate Court Says Evidence of Education Deprivations Is There; Trial Court Just Needs to Examine It
A New York appellate court in Maisto v. State has reversed the lower court decision in the "Small Cities" school funding litigation. Litigants had put on extensive evidence of various deprivations in education resources and their connection to student outcomes. In 2016, however, the trial court dismissed the case with rather summary logic. The trial court reasoned that because current funding levels exceeded those previously proposed and sanctioned by the courts in 2006, there was no constitutional violation. As the new appellate decision emphasizes, that logic is extremely misguided. The real question is whether students in the plaintiff districts are receiving a sound basic education, which requires an assessment of inputs and outputs, which the trial court did not do.
This distinction between the validity of the old remedy and the current provision of a sound basic education is key and confirms a curious issue I raise in my casebook, Education Law: Equality, Fairness, and Reform. In the 2006 Campaign for Fiscal Equity decision, New York's highest court had evaluated the differing assessments of the cost of providing an adequate education in New York. A commission had proposed one number, the governor another, and the legislature another. The court ultimately deferred to the state's proposed number, even though it was lower than others, concluding that the state's number was not unreasonable. Readers are often struck by the fact that after all the prior tough decisions in CFE, the court ends the case on a reasonableness standard. In the notes following the case, I try to lead readers to the logic of the reasonableness standard. I ask: "Do the plaintiffs have the right to return to the court if these estimates later prove to be insufficient, or is it enough that the state acted in good faith or within reason?" The logical answer has to be the later.
The reasonable approach in CFE is akin to the approach of school desegregation: the state gets the first shot at a remedy and is permitted to move forward with reasonable remedies, even if the court of experts might prefer others. But this has no bearing at all on plaintiffs ability to bring future cases. Moreover, if those so called "reasonable" remedies do not work, plaintiffs have the right to return to court and establish that fact.
In desegregation, failed prior remedies also provide a basis for less deference toward state remedies in future remedies. In fact, the state's past "good faith" compliance with desegregation is an explicit factor in court's authority to find new violations and enjoin them. The new curious question will be the extent to which New York courts should afford less deference to the state's estimates of an adequate education.
For now, it is worth reviewing what the current court held. It provided a nice overview of the relevant precedent and standards and clear directions to the trial court moving forward:
The Education Article declares that “[t]he [L]egislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (N.Y. Const, art XI, § 1). To that end, the Court of Appeals has held that the Education Article “ ‘requires [defendant] to offer all children the opportunity of a sound basic education. Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury’. The sound basic education guaranteed by the [NY] Constitution requires [defendant] to provide students with the ‘opportunity for a meaningful high school education, one which prepares them to function productively as civic participants' and ‘compete for jobs that enable them to support themselves'.
To establish a violation of the Education Article, a plaintiff must “establish a causal link between the present funding system and any proven failure to provide a sound basic education to [the affected] school children”. This burden may be met by proof regarding the “ ‘inputs' children receive—teaching, facilities and instrumentalities of learning—and their resulting ‘outputs,’ such as test results and graduation and dropout rates”, and, where inputs and outputs are both deficient, a causal link between the two, which may be established by showing that increased funding would provide better teachers, facilities and instrumentalities of learning that improve student performance. With respect to causation, the Court of Appeals specifically rejected the argument that poor socioeconomic conditions excuse poor outputs or results.
. . . .
In response to the [Campaign for Fiscal Equity] cases, Foundation Aid was enacted to increase school aid funding on a statewide basis by approximately $5 .5 billion annually when fully implemented over a four-year period. Foundation Aid was distributed as originally planned in the 2007–2008 and 2008–2009 budget years; however, aid to education was reduced in the 2009–2010 budget in response to the “largest budget gap ever faced by the State,” which was caused by the global financial crisis. Specifically, Foundation Aid was frozen at then-existing levels and the phase-in period was extended from four years to seven years. In addition, the 2010–2011 state budget introduced a “[g]ap [e]limination [a]djustment” (hereinafter GEA), which reduced formula-based school aid by $1.4 billion in that budget year. The GEA was continued in the 2011–2012 through 2015–2016 budgets, but was not continued in the 2016–2017 or 2017–2018 budgets.
Although a claim based solely upon the allegation that Foundation Aid was reduced is insufficient to state a cause of action for violation of the Education Article, plaintiffs did more than simply put forth that conclusory assertion. Plaintiffs' causes of action—grounded in the assertion that the actual funding levels provided following the CFE cases were insufficient to provide the affected students with a sound basic education—were based on detailed, district-specific allegations of insufficient inputs, deficient outputs and causation. More to the point, plaintiffs' proof at trial, which Supreme Court acknowledged established a prima facie case that defendant failed to fulfill its constitutional obligation, was more than sufficient to require analysis under the CFE II framework on a district-by-district basis. Indeed, by noting that changes in educational funding provided by defendant must still “deliver on its obligation to ensure that schoolchildren are provided the opportunity for a sound basic education”, the court acknowledged that any reductions in funding must pass constitutional muster, which is an inquiry that can be answered only through CFE II analysis.
The next key paragraph in the decision provided:
Thus, Supreme Court erred by proceeding directly to the “remedy” stage set forth in CFE III and affording deference to the Legislature without first applying the framework established in CFE II to determine whether plaintiffs had established a constitutional violation. No deference is due the Legislature when applying the CFE II factors to determine whether there is a violation in the first instance.
On that basis, the Court of Appeals remanding the case to the trial court and was clear that the plaintiffs had already presented extensive evidence on the relevant factual issues to be addressed. Thus, the task is merely for the trial court to apply the law. The Court of Appeals closed with a final directive:
For any district where the court finds that inputs were insufficient, it must determine—on a district-by-district basis—whether plaintiffs have established causation by showing that increased funding can provide inputs that yield better student performance.
Monday, October 30, 2017
This is the subject of my forthcoming paper in Cornell Law Review. In Preferencing Educational Choice: The Constitutional Limits, I make two primary arguments. The first that some states' statutory programs preference choice in relation to public education and that doing so in logically inconsistent with their constitutional duties. The second argument is that the proper frame of analysis for examining the effects of charters and vouchers is at the district level, not the state level. At the district level, advocates can identify effects that likely do amount to violations of state's duty to deliver adequate or equal educational opportunities. The abstract offers this summary:
Rapidly expanding charter and voucher programs are establishing a new education paradigm in which access to traditional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trajectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to public education embedded in all fifty state constitutions.
Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past arguments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they endanger statewide education systems. Unsurprisingly, litigation and scholarship based on a flawed premise have thus far failed to slow the growth of charter and voucher programs. Without a reframed theory, several recently filed lawsuits are likely to suffer the same fate.
This Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies two limitations that state constitutional rights to education place on choice policy. The first limitation is that states cannot preference private choice programs over public education. This conclusion flows from the fact that most state constitutions mandate public education as a first-order right for their citizens. Thus, while states may establish choice programs, they cannot systematically advantage choice programs over public education. This Article demonstrates that some states have crossed this line.
The second limitation that state constitutions place on choice programs is that their practical effect cannot impede educational opportunities in public schools. Education clauses in state constitutions obligate the state to provide adequate and equitable public schools. Any state policy that deprives students of access to those opportunities is therefore unconstitutional. Often-overlooked district level data reveals that choice programs are reducing public education funding, stratifying opportunity, and intensifying segregation in large urban centers. Each of these effects represents a distinct constitutional violation.
Download the full article here.
Thursday, October 19, 2017
New Federal Court Decision Should Be a Warning to Schools and Police Departments That Arrest Students
Last week, in S.R., v. Kenton County Sheriff's Office, 2017 WL 4545231 (E.D. Ky. Oct. 11, 2017), a U.S. District Court in Kentucky issued a decision that should drastically change schools' and resource officers' thinking in regard to handcuffing students. Students often lose these types of cases and when they win, the facts are so unique or egregious that other schools and officers might distinguish them or write them off. This is not to suggest that the harms the students suffered in Kenton County were minimal. They were handcuffed in painful ways. The kids also represent sympathetic plaintiffs because they were particularly small.
But in other respects, the cases were more run of the mill and suggest a court drawing a line in favor of many students. These were not entirely "innocent" students. The students had engaged in protracted violent behavior--albeit not all that dangerous. And the school officials did not jump straight to handcuffing the kids. They, as well as the officers, had attempted several deescalation techniques and even let some behavior go, so to speak. And the cases did not involve pepper spray, head locks, brute force, or other forms of generally outrageous conduct by officers. In short, they involved handcuffing students whom the school and officers had not found any clear way of calming.
The fact that the court was willing to intervene here, thus, suggests the general problem with handcuffing kids, particularly small ones. The court emphasized that officers simply are not trained to engage in this type of behavior with young children and no one recommends it. Kentucky itself recognizes as much.
Kentucky Board of Education regulations provide that "school personnel may not use physical restraints as 'punishment or discipline,' to 'force compliance or to retaliate,' as 'a routine school safety measure,' or as 'convenience for staff.'” 704 KAR 7:160 § 3(1). The regulation also prohibits school personnel from using "'mechanical restraints' on students at any time." The preamble to the regulation, however, states that the regulation "does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.”
Yet, the details in these sorts of cases will always matter.
The case involves a few different incidents. The first involved an eight-year old boy who was approximately 4 feet tall and weighed 54 pounds. He "had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD)," but he "attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability." He had engaged in some hitting and kicking incidents toward his teachers. The school's deescalation efforts included holding him in a cradle restraint and locking him in an office. When that did not work, they called the Sheriff's office. By the time Officer Sumner arrived, the student was on the phone talking to his mother. When the officer engaged him, however, things escalated and the student took an elbow swing at the officer.
Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.
Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.”
S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs.
The second student, L.G, was a nine-year old girl who weighed about 56 pounds. "L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. The plan did not address any behavioral issues or problems." She also engaging in some hitting and kicking toward adults, as well as blowing snot and attempting to bit. The school attempted deescalation techniques with her as well, including placing her in a calm room. On one occasion when Officer Sumner arrived, he
decided to place her in handcuffs. Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition.
Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. Mills put his arm around L.G.'s shoulders to comfort her while Sumner removed the handcuffs. Mills hugged L.G. and she hugged him back. Mills sat and talked with L.G. in the ambulance on the way to Children's Hospital. Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.'s mother arrived. L.G. was discharged later that morning without any physical injury.
On another occasion, L.G. would not go to her assigned location in the school and ran away from a school employee.
Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria.
When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees. She then pulled up his pants leg and tried to scratch him. L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold.
Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back.
Assistant Superintendent Wilkerson contacted L.G.'s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.
Plaintiffs later filed suit against the Sheriff and Officer Sumner, alleging "(1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff's Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff's Office only)."
The district court focused on the excessive force and found:
the severity of the “crime” committed by S.R. and L.G. – assault – weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”
The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.'s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.
This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.
Nonetheless, the age and stature of these children is highly relevant to this analysis.
Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.'s torso, the video belies that assertion. Where a witness's version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact.
Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method – which, it is undisputed, was the same method by which L.G. was cuffed – was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.
Plaintiff's handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method.
Even defendants' handcuffing expert, William A. Payne – who has been conducting handcuffing training for law enforcement for over 20 years –testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.
. . .
Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner's manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.
On the question of qualified immunity, however, the court was far more forgiving: "plaintiffs have not shown that it was “clearly established” in 2014 that Sumner's handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity." The court also granted the defendants' motion for summary judgment on the ADA claims.
Plaintiffs most significant victory was against the county. The court found that Sheriff "Korzenborn has not implemented any changes in the training of his SROs since these incidents. Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner's unlawful handcuffing of S.R. and L.J."
Wednesday, October 18, 2017
Missouri Schools Suspend Black Students More Than Four Times As Often As Whites, While Disparities Curiously Drop with Other Forms of Punishment
The ACLU of Missouri has released a new report on school discipline and the school to prison pipeline there. The report finds:
The racial discrepancy in school discipline isn’t limited to teens. Our youngest and most vulnerable students in preschool and elementary grades are subject to excessive and harsh punishment. Nationwide, Black preschoolers are 3.6 times more likely to be suspended one or more times than White preschool students. Missouri has the eighth highest expulsion rate for preschoolers. From the very start of their education, the youngest students of color already face an uphill battle to stay in school.
The reality that specific students are punished more frequently and with greater severity is deeply troubling. A recent report from the U.S. Department of Education’s Office for Civil Rights found during the 2013-2014 school year, Black students across the nation are nearly four times as likely to be suspended than White students. During the same school year in Missouri, Black students were 4.5 times more likely to be suspended than White students. In Missouri, students with documented learning or behavioral disabilities under the federal Individuals with Disabilities Education Act (IDEA) were given out-of-school suspensions more than three times as often as non-IDEA students.
Despite making up only 14 percent of the student population in Missouri, Black, non-IDEA students represented about 17 percent of all referrals to law enforcement and 18 percent of all school-related arrests in the 2013-2014 school year.
In-school referrals to law enforcement are not trivial. A 2015 report from the Missouri Juvenile and Family Division found referrals from schools represent 21 percent of all law
referrals in Missouri for youth. Black children account for 26 percent of all referral types in the state. We also found an alarming increase of students in Missouri expelled from school. Between 2011 and 2014, the expulsion rate in Missouri doubled. This resulted in a greater number of expulsions for Black students, who faced expulsion at a higher rate than White students.
Another great concern is Missouri’s continued use of corporal punishment in school. Across the nation, few states continue to use corporal punishment, yet, in Missouri, Black students are almost twice as likely to be hit in school as their White peers.
This disparity between enrollment rates and discipline rates is not reflected among White students, a population in which discipline rates are consistently below enrollment rates.
Disproportionate discipline has both physical and mental consequences for young people. Beyond missed classroom time, when students, particularly younger students, are singled out for discipline, they are taught that they are “bad.” Their peers and educators internalize the same message. Studies show that by the time students move from pre-K to kindergarten, children can identify which of their peers exhibit “problem behaviors.” This perception is consistently shared between peers and teachers, creating a label for specific students that follows them throughout their academic careers.
What I found most interesting, however, may have been the report's data on in-school suspensions. This has traditionally been the most unreliably and difficult data to get. The report found that the in-school suspension rate for African American students received special education services was 26%. For other African Americans it was nearly 19%. Interestingly, however, the racial disparity between African Americans and whites was smaller in regard to in-school suspension and expulsions than it was in regard to suspensions. This raises a few interesting possibilities: 1) that schools are more likely to skip past in-school suspension for African Americans and just suspended them and 2) so as to avoid high expulsion rates, schools may be just handing out more suspensions. Both possibilities could be wrong, but something appears to be occurring with suspensions that is not occurring with other forms of discipline.
The disparity in regard to corporal punishment is also very low, but it is used so infrequently that conclusions may be less reliable there.
Tuesday, October 17, 2017
Michael Heise's forthcoming article in Columbia Law Review, From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism, is available on SSRN. He offers this abstract:
When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a federalism standpoint, the Every Student Succeeds Act may have reset education federalism boundaries to favor states, far exceeding their position prior to 2001.
While federal elementary and secondary education reform efforts since 2001 may intrigue legal scholars, a focus on educational federalism risks obscuring an even more fundamental development in educational policymaking power: its migration from governments to families, from regulation to markets. Amid a multidecade squabble between federal and state lawmakers over education policy authority, efforts to harness individual autonomy and market forces in the service of increasing children’s educational opportunity and equity have grown. Persistent demands for and increased availability of school voucher programs, charter schools, tax credits programs, and home schooling demonstrate families’ desire for greater agency over decisions about their children’s education. Parents’ calls for greater control over critical decisions concerning their children’s education and schooling options may eclipse state and federal lawmakers’ legislative squabbles over educational federalism.
Michael and I agree on a lot in this article. The title of my article, Abandoning the Federal Role in Education: The Every Student Succeeds Act, largely speaks for itself. That article traces the federal role in education from the 1960s until today, arguing that the Every Student Succeeds Act entirely reverses the expansion of the federal role in education, which had been building for decades.
Heise's article, however, goes beyond mine in certain respects, focusing on a factor absent from my analysis: the role of individual autonomy. In other words, from Heise's perspective, it is not just a fight between the feds and the states. It is a fight over family decisionmaking as well. Thus, the return of power to states is not just to serve the interests of state, but that of families.
Interestingly, more recent events add new wrinkles that may require updating of both Heise and my thoughts. Recent surveys and reports indicate that some family autonomy policies are unpopular, at least to the majority. The shift is abrupt in some instances. A new survey shows that charter support has plummeted by 12 percent in the last year. Other reports indicate strong opposition to the current administration's push for more vouchers and charters.
Disaggregating these shifts is difficult. It could be that the public dislikes the messenger but not necessarily the message. Or it may be that the public supports the expansion of choice, but not when it is perceived as being at the expense of traditional public education. The latter, however, presents an implementation challenge. To what extent can private choice expand without harming public education? Minimal to moderate expansions may pose little risk, but a tipping point likely exists, as I detail in a forthcoming article titled, Preferencing Private Choice.
Thursday, October 12, 2017
Zachary Liscow has posted an incredibly informative and complex analysis of the interplay between school finance litigation victories and legislative action. While analysis in this general area is not new, his approach is much deeper. Liscow attempts to measure not just whether school finance decisions affect per pupil expenditures, but how they affect tax policy, the differential burdens of that tax policy, and the redistribution of governmental resources. These inquiries are really aimed at identifying macro-level trends, whereby school finance litigation potentially produces a redistribution of resources or, more bluntly, an overall reduction in inequality. Do legislatures increases taxes on the wealthy while at the same time driving more state resources to the needy through schools?
In his abstract, he writes:
I find that the court orders’ distributional impacts do stick. The education spending is financed by tax increases that do not target the largest beneficiaries of the increased education spending, the poor and those with children. Thus, since the main beneficiaries of the school spending do not pay a disproportionate share of the costs, advocates for school finance reform are effective at transferring resources to poor families. The results suggest that welfare analysis of these legal rules should take into account not only efficiency but also distribution, in a departure from traditional economic analysis of legal rules.
In his more nuanced discussion later, he indicates that states do not typically redistribute existing resources in other areas toward education, they just raise taxes. Those tax increases are pretty evenly felt across all households. He conclude with the following:
This paper’s results are difficult to square with this underlying political economy assumption that that legislatures, even in the long-run, optimize the distribution of taxes and spending. This paper presents evidence of “zombie legislatures”: courts dramatically change the distribution of spending, and the legislature does nothing to offset those acts. Instead, the legislatures drift. Determining how much legislatures optimally should respond is beyond the scope of this paper, but the fact that there is no evidence of any offset at all suggests at least the possibility that a different background assumption about whether legislatures achieve the socially optimal distribution of taxes and spending may be appropriate. Of course, the paper says little about whether taxes and spending redistribute too much or too little and thus little about what that appropriate assumption should be. An important subject of future work is determining the impact of legislative drift on deviations from the optimal distribution of taxes and spending. And, more generally, the implications for policy design without a background assumption of an optimal distribution of taxes and spending are an important subject for future work.
Get the full paper here.
Monday, October 9, 2017
A new investigative report by Heather Vogell suggests that alternative charter schools are enrolling as many students as possible, collecting checks for students who may not even be there, and providing less in return than other public schools. By alternative charter school, she refers to charter schools that enroll students who are at risk of dropping out of school. Vogell focuses most heavily on those alternative schools run by for-profit management companies.
Vogell's findings are troubling any way you cut them. In isolation, the results in these alternative charter schools are so objectively low that they look wrong on their face. In comparison to other public schools serving students at risk of dropping out, the charter school results still look problematic, lagging well behind traditional public schools.
The first problem appears to be inflated enrollment numbers. Speaking of an alternative charter high school in Ohio, Vogell writes:
Only three of the more than 170 students on Capital’s rolls attended class the required five hours that day, records obtained by ProPublica show. Almost two-thirds of the school’s students never showed up; others left early. Nearly a third of the roster failed to attend class all week. . . [But] the no-shows didn’t hurt the school’s revenue stream. Capital billed and received payment from the state for teaching the equivalent of 171 students full time in May.
If these charters have the corner on any market, it is enrolling no-shows. They are dominating in Ohio. "After pulling in students long enough to tap public money, many of the schools fail to keep them in class. In Ohio in 2016, for-profit companies ran nearly one-third of the state’s 94 charter schools for dropouts — but three-fourths of the 20 with the highest absenteeism rates."
Both the inputs and outputs are lower in these schools. On the inputs, they provide substantially less access to counselors--potentially the most important resource for students struggling with issues both in and outside of school. Only 58% of the alternative school students attend a school with a counselor. Class size are larger and their rate of inexperienced teachers is also more than twice the rate of other schools.
With poor attendance rates and lower inputs, achievement in these schools is predictably low. "About 40 percent of the schools failed to meet state standards in 2015-2016. While Capital High passed overall, meeting state testing and other goals, its students didn’t make satisfactory academic progress. At 92 percent of Ohio’s dropout recovery schools in 2015, the graduation rate was below 50 percent. Capital’s was 23 percent. In 18 schools, including Capital, students skipped at least once every two days."
Two plausible explanations come to me. First, states have essentially given up on these students and would rather enroll them in a charter than a traditional public school because the costs are lower. While I don't doubt some have given up on these kids, I am not sure the cost-saving theory fits with these particular charter schools. The state could just let them drop out of traditional public school and not be tasked with paying anyone for them. The second explanation is that with some legislators favorable toward privatizing education in general and another group of legislators asleep at the wheel, no one is really noticing. I am sure I am overlooking other explanations, but I find it had to believe that this is what states are paying these schools for.
For those looking for more detailed data on particular alternative charter schools, the story includes a comprehensive list and info-graphic here.