Thursday, July 21, 2016
New Transgender Discrimination Case Against Wisconsin School District Could Be Quick Repeat of Grimm or Present Several Wrinkles
Ashton Whitaker, A transgender high school student in Wisconsin, has filed suit against Kenosha School District. He alleges that the district has denied him access to male restrooms consistent with his gender and continues to refer to him by the female name on his birth certificate. He argues that this treatment violates Title IX and the U.S. Constitution. His factual and legal claims are nearly identical to those in Grimm v. Gloucester, in which the Fourth Circuit earlier this year sided with the student. Whitaker's case could be a simple repeat or move the law and courts in new directions.
Will the school district contest the question of whether Title IX protects transgender students in access to restrooms or will it simply contest Whitaker's version of the facts? If it concedes the facts and only contests the law, Grimm is the only case on point at the moment. Thus, the district court would a) rule quickly in favor of Whitaker, b) affirmatively counter the reasoning in Grimm or c) take the route the 6th Circuit did in the gay marriage cases, holding that until the Supreme Court or its own circuit speaks, it will rule in favor of the district. The same options would presumably exist for the Seventh Circuit Court of Appeals in reviewing the district court.
Option A would create two circuits firmly aligned in favor of transgender students and make the grant of cert in Grimm or Whitaker's case less likely (Grimm is currently pending before the Supreme Court). Option B or C would eventually create a circuit split and, even if the Court denies cert in Grimm, make a grant of cert in Whitaker's case more likely a couple of years from now.
Also interesting in Whitaker's case will be questions of qualified immunity. The district officials may argue that regardless of what the law requires moving forward that the law was unclear at the time they acted. This is after all new law. This was attempted in several cases dealing with sexual orientation claims over the past decade or two. On the other hand, the Office for Civil Rights has held a firm position for longer on this issue. And in Title IX cases, the Court has tended to rely heavily on OCR policy guidance to provide the necessary notice of illegality to school districts.
One thing, however, is clear: Whitaker is represented by exceptional counsel. Relman, Dane & Colfax has taken his case. The firm has been nationally recognized for its civil rights work and victories for decades.
Wednesday, July 20, 2016
New Study Confirms the Role Race Plays in School Choice, But Past Experience and Common Sense Offer a Solution
A recent study of school choice by Steven Glazerman and Dallas Dotter reveals the lingering cold-hard truth that race still matters far too much in parents' decision of where to send their child to school. In their paper, Market Signals: Evidence on the Determinants and Consequences of School Choice from a Citywide Lottery, they find that:
- Parents trade off school demographics and academic performance with distance when choosing schools.
- Parents tend to prefer schools where their children have at least some peers of the same race or ethnicity, but some parents also prefer a diverse school to a homogeneous one.
Preferences vary by race, income, and grade level.
- Simulations suggest that parent preferences, if allowed to dominate school assignment (with no capacity constraints), translate into more racial and economic integration and higher enrollment in high-performing schools.
Coupled with what half a century of social science has demonstrated about the negative effects of concentrated poverty in schools, this new study confirms why the various choice programs proposed at the federal and state level are such a bad idea.
The million dollar question, then, is how we might make race matter less. The answer may be surprising to some: consciously consider race from the outset. Controlled choice plans that account for race and place caps on racial and poverty concentrations have proven extraordinarily effective in creating and maintaining integration. And, as detailed in In Defense of Voluntary Desegregation, once districts achieve some level of demographic balance in the earlier years of a choice program, parents are then forced to begin making school choice based on factors other than race. In other words, race cannot factor in a parent's school choice because demographic are consistent across all the schools they might consider. Within this context, geography, academic programs, and other relevant factors will weigh more heavily. In this way, schools consideration of race is actually the way to make race no longer matter.
Monday, July 18, 2016
elow is the press release on this crucially important bill:
WASHINGTON – U.S. Senator Chris Murphy (D-Conn.), member of the U.S. Senate Health, Education, Labor and Pensions (HELP) Committee, and Congresswoman Marcia L. Fudge (Ohio-11), Ranking Member of the Subcommittee on Early Childhood, Elementary and Secondary Education of the U.S. House Committee on Education and the Workforce, on Tuesday introduced the Stronger Together School Diversity Act of 2016 to promote diversity in schools. The bill builds on President Obama’s FY 2017 Stronger Together budget proposal, and consists of a voluntary program to support the development and expansion of new and existing community-driven strategies to increase diversity in America’s schools. In June, Murphy joined U.S. Education Secretary John B. King Jr. at an event in the U.S. Capitol to discuss the opportunity for increased diversity in schools and communities to drive positive student outcomes in school and in life.
An April 2016 Government Accountability Office report found that the number of socioeconomic and racially segregated schools is increasing, negatively impacting students nationwide. The data shows that poor, segregated schools receive fewer resources, offer students fewer educational opportunities and take more disciplinary actions. Expanding socioeconomic and racial diversity in schools will reverse these troubling trends and help future generations of students receive the education they deserve. In fact, students from low-income households who attend diverse schools are nearly 70 percent more likely to attend college than students from low-income households who attend high-poverty schools. TheStronger Together School Diversity Act of 2016 provides planning and implementation grants to help school districts find voluntary local solutions, implement new strategies, and expand existing diversity initiatives.
“Diverse schools help students. That’s the bottom line,” said Murphy.“We’re introducing this bill because districts need the resources to enact voluntary measures that will make schools more diverse and reduce the economic and racial isolation that sadly exists in places like Hartford and Bridgeport. Looking back, some of the proudest moments in our nation's history have come when the federal government prioritizes racial integration in our schools. That’s why Washington cannot sit on the sidelines as racial and socioeconomic divisions in our schools get worse and our kids’ schools suffer.”
“Brown v. Board ruled more than 60 years ago that ‘separate is not equal,’ yet it is obvious that many schools are suffering from the effects of “de facto” segregation,” said Fudge. “As Ranking Member of the House Subcommittee on Early Childhood, Elementary and Secondary Education, increasing diversity in staff, resources, and student populations in our public schools is a top priority. That’s why I am pleased to be the House sponsor of The Stronger Together School Diversity Act of 2016. This bill will help bring parity of access and resources to schools across the nation, provide a platform to address inequities within our current education system, and help give all of our students a chance to succeed.”
“Today, diversity is not a nicety but a necessity,” Secretary King said.“Diversity is critical, not just for some students, but for all of our students. There are communities and neighborhoods and schools all over this country where educators, parents, and students understand this and are pushing for more diversity in their schools. The legislation introduced by Senator Murphy and Congresswoman Fudge will support and expand these efforts.”
Philip Tegeler of the National Coalition on School Diversity said,“School integration isn’t just important for academic achievement, although the evidence on achievement is very strong. Bringing children of different backgrounds together also helps to reduce racial prejudice and teaches children how to live and work together across racial and class lines. This bill is an important step toward reversing the trend of resegregation of our public schools that was recently documented by the Government Accountability Office, and it will provide funding for cities and towns that have recognized the importance of bringing their communities back together. What is unique about this bill is that it relies on substantial financial incentives to encourage progress on school integration.”
The Stronger Together Diversity Act has been endorsed by the National Education Association, American Federation of Teachers, the National Urban League, National Women’s Law Center, National Coalition on School Diversity, Association of University Centers on Disabilities, Magnet Schools of America, Lawyers’ Committee for Civil Rights Under Law, Poverty & Race Research Action Council, Civil Rights Project - UCLA, National Council of Jewish Women, and Girls Inc..
The Stronger Together School Diversity Act:
- Authorizes $120 million to provide planning and implementation grants to support voluntary local efforts to increase socioeconomic and racial diversity in schools.
- Supports school districts, independently or in collaboration with neighboring districts, as well as regional educational authorities and educational service agencies.
- Grants could fund a range of proposals, including (but not limited to):
- Studying segregation, evaluating current policies, and developing evidence-based plans to address socioeconomic and racial isolation;
- Establishing public school choice zones, revising school boundaries, or expanding bussing service;
- Creating or expanding innovative school programs that can attract students from outside the local area;
- Recruiting, hiring, and training new teachers to support specialized schools.
Wednesday, July 13, 2016
The State of Mississippi is being sued by parents who contend that a recent law unconstitutionally district public tax dollars from public school districts revenues to charter schools. Under the Mississippi Charter School Act of 2013 (CSA), charter schools in a public school district are entitled to a share of that district's state ad valorem tax revenue. The lawsuit's plaintiffs contend that a provision of the Mississippi Constitution forbids funding any school that is not a "free" school under the control of either the State Department of Education or district officials. (Mississippi's charters are instead supervised by an independent governing board.) The plaintiffs allege that the Jackson school district has already given $1.8 million of its funding to the two currently operating charter schools. A third charter is set to open in the coming school year,and the Jackson district school could be required to give up to $4 million to charter schools, resulting in shortfalls in personnel and education quality. The plaintiffs are represented by the Southern Poverty Law Center, and the complaint in Arujo v. Bryant may be viewed on scribd here.
Monday, July 11, 2016
Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016) - The Ninth Circuit Court of Appeals recently held in that a school district's offers to place an autistic student in a small classroom rather than a mainstream one did not deny the student a free appropriate public education (FAPE). Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016). The student and his guardian sued the school district under the Individuals with Disabilities Education Act (IDEA) after the district determined that he would benefit from a small class for students with mild to moderate disabilities rather than a mainstream classroom and refused to reimburse the cost of the student's private education during the following two school years. The plaintiffs had previously sued the district for failing to provide a FAPE and won; the Ninth Circuit affirmed in 2011 holding that the student was entitled to full reimbursement of his private tuition costs because the public school did not meet his educational needs. In this most recent decision, the Ninth Circuit deferred to the school district's decision that the smaller classroom would be better for the student's academic needs even though he may have benefited socially from a typical classroom setting.
James v. D.C., No. 14-CV-02147 (APM), 2016 WL 3461185 (D.D.C. June 21, 2016) -- The federal district court found that the District of Columbia Public School (DCPS) system did not comply with an intellectually disabled student's individualized education program (IEP) requiring her to receive specialized instruction, even though the school did not have a special education teacher to provide it. The district court found the student's guardian, her grandmother, was apparently unaware that the school was not carrying out student's IEP, and thus allowed her to remain enrolled in the school throughout the school year even though the school was not able to implement the IEP. The district court remanded the issue of whether the student had a speech and language disability to the Hearing Officer to determine whether DCPS failed to provide a timely speech-language evaluation as required by the IDEA.
Friday, July 8, 2016
Kansas Legislature Meets Court's Equitable Funding Duty Deadline, Allowing Schools to Open in the Fall by Molly Hunter
On June 27, 2016, four days prior to the Kansas Supreme Court's July 1 deadline, the parties in the Gannon educational opportunity lawsuit filed a stipulated agreement with the Court. They documented the Legislature's commitment to distribute funding to low-wealth school districts so as to comply with the state constitution.
The Kansas Supreme Court issued an order the next day indicating that the State -- in adopting Substitute for House Bill 2001 -- had complied with the Court's most recent order and could use the revised system to fund the public schools.
"Plaintiffs are extremely pleased that schools will be opening in the fall," said Alan Rupe, co-counsel for plaintiffs, "and that funding will be distributed in a manner that comports with the Kansas Constitution's equity requirement."
The Legislature's failure to maintain a fair and adequate state school funding system almost led to a constitutional crisis. But in a special session called to address the fair distribution issue, the Legislature found a way to add $38 million to the state aid total and allocate it to the underfunded districts.
Nonetheless, the Gannon case is not resolved because the Kansas Constitution also requires adequate school funding. The three-judge Gannon Trial Court Panel heard the evidence on adequacy and ruled that the State is underfunding its schools. The State appealed to the Kansas Supreme Court, which recently scheduled oral argument on this question for September 21.
Each side will have 60 minutes to present argument to the Court on two issues: (1) whether the Legislature has met its duty under Article 6 of the Kansas Constitution regarding adequacy; and (2) what remedy would be appropriate if the Court affirms the Panel's previous holding that the current funding levels are inadequate.
Education Law Center Press Contact:
Molly A. Hunter
Education Justice, Director
973-624-1815, x 19
Texas, Joined By Eleven States, Seeks Nationwide Injunction To Block DOE's Transgender Anti-discrimination Policy
Texas Attorney General Ken Paxton is seeking a nationwide preliminary injunction to stop the enforcement of the Department of Education's Dear Colleague letter to schools directing them not to discriminate against transgender students, particularly in students' choice of bathrooms. Paxton, along with Alabama, Arizona, Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, applied for the injunction on Tuesday asking the Northern District of Texas to enjoin the DOE's transgender-inclusive policy nationwide because the policy applies all of the nation's public schools. To persuade the district court that it has to the power to enjoin the policy nationwide, Paxton is relying on the Fifth Circuit's ruling last year granting injunctive relief that halted enforcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which provided for legal presence for illegal immigrants who were parents of citizens or lawful permanent residents. See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016). The states' preliminary injunction motion is here and the original report at the Texas Tribune is here.
The growing common refrain, urged on by no less than candidates for the presidency, has been to contrast our nation's investments in education versus incarceration. Civil rights advocates have, likewise, lamented the school-to-prison pipeline that is, no doubt, affected by these investments. Yesterday, the U.S. Department of Education released some cold hard facts substantiating these notions. Quite frankly, the numbers were shocking even to me.
Among the highlights were the following:
- From 1979–80 to 2012–13, public PK–12 expenditures increased by 107 percent (from $258 to $534 billion),4 while total state and local corrections expenditures increased by 324 percent (from $17 to $71 billion) ― triple the rate of increase in education spending.
- Over the same 33-year period, the percentage increase in state and local corrections expenditures varied considerably across the states, ranging from 149 percent in Massachusetts to 850 percent in Texas. PK–12 expenditure growth rates were considerably lower, but still varied widely across states, ranging from 18 percent in Michigan to 326 percent in Nevada.
- All states had lower expenditure growth rates for PK–12 education than for corrections, and in the majority of the states, the rate of increase for corrections was more than 100 percentage points higher than the rate for education.
- From 1989–90 to 2012–13, 46 states reduced higher education appropriations per full-time equivalent (FTE) student. On average, state and local higher education funding per FTE student fell by 28 percent, while per capita spending on corrections increased by 44 percent.
The study also drew on social science literature to suggest the effects of these funding trends:
Researchers have found connections between poor educational outcomes and incarceration. Among state prison inmates, available data suggests that two-thirds have not completed high school (BJS 2009). . . . Researchers have estimated that a 10 percent increase in high school graduation rates may result in 9 percent decline in criminal arrest rates (Lochner and Moretti 2004). A variety of studies have suggested that investing more in education, particularly targeted toward at-risk communities, could achieve crime reduction without the heavy social costs that high incarceration rates impose on individuals, families, and communities (Belfield et al. 2006; Reynolds et al. 2001; Heckman et al. 2010).
Investments in education can reduce criminal activity by altering student behavior and improving labor market outcomes (CEA 2016). Investments in early childhood education can lead to reduced incarceration later in life, in part through improving educational attainment (Currie 2001). . . .Evidence also shows that education provides a pathway to help justice-involved people restore full participation in their communities. For example, one study found that incarcerated individuals who participated in high-quality correctional education — including post-secondary correctional education — were 43 percent less likely to return to prison within three years than those who did not participate in correctional education programs (Davis et al. 2013). Furthermore, researchers estimate that for every dollar invested in correctional education programs, four to five dollars are saved on three-year recidivism costs (Davis et al. 2013).
This study also dovetails perfectly with yesterday's post about the NEA's policy position on school discipline. At its core, that policy statement makes two points: current discipline policy is devastating educational outcomes for millions of students each year, and reversing that course requires specific investments in education, most notably teacher training and development. If you buy that proposal, it is no surprise what the Department of Education's study suggested the money spent on incarceration ought to be put to:
Though many factors contribute to student success, research indicates that teacher effectiveness is perhaps the most important in-school factor related to students’ success in school (Rivkin et al. 2005). Further, research suggests that investing more in teacher salaries could result in an overall improvement in the quality of the teaching workforce and that higher salaries are associated with higher teacher retention (Dee and Wyckoff 2015; Kelly 2004; Guarino et al. 2006).
In other words, not only are we driving money toward incarceration, the money we drive is likely a key factor in why we have unresolved discipline challenges in schools. Those unresolved education issues fuel the school-to-prison pipeline, creating a vicious circle that we cannot seem to escape. This vicious circle lies at the core of the final chapters of my book, Ending Zero Tolerance, and my forthcoming article, Reforming School Discipline. In them, I argue that school quality conversations and school funding litigation must incorporate school discipline concerns. We cannot continue to discuss them as separate issues. Social science firmly demonstrates how closely connected discipline and school quality are. One cannot be improved without the other. Unfortunately, this new federal study suggests our funding patterns are making both worse. It is time to finally start connecting the dots.
Thursday, July 7, 2016
Nation's Largest Teacher Union Adopts Policy Statement on School Discipline and the School-to-Prison Pipeline, Rebalancing the Politics of Reform
Yesterday, the Nation's largest professional employee organization and largest teacher union, the National Education Association (NEA), adopted an official policy position on school discipline and the school-to-prison pipeline. The prefatory language of the policy appropriately recognizes the major issues:
The school-to-prison pipeline disproportionately places students of color, including those who identify as LGBTQ, have disabilities, and/or are English Language Learners, into the criminal justice system for minor school infractions and disciplinary matters, subjecting them to harsher punishments than their white peers for the same behaviors. The school-to-prison pipeline diminishes their educational opportunities and life trajectories. All educators—which includes every school employee—are key to ending the school-to-prison pipeline.
NEA’s Resolutions state NEA’s firm belief that schools must be safe and welcoming for all students, discriminatory toward none, and focused on educational practices that reach the whole child and disciplinary policies that emphasize prevention and rehabilitation over punishment (see, e.g., Resolutions B-6, B-14 (f – h, k) B-71, C-7, C-28, C-39). NEA’s Resolutions also reflect NEA’s belief “that all education employees must be provided professional development in behavior management, discipline, [and] conflict resolution,” (D-18) and that both education employees and parents need training “to help students deal with stress and anger.” (C-7). NEA also believes that equally important is deepening educator awareness about their actions and the impact on students. The purpose of this Policy Statement is not to modify existing NEA Resolutions, but to explain how NEA will act on its already stated beliefs to end the school-to-prison pipeline.
It then goes on to indicate that the "NEA and its members are committed to changing the policies and practices of the schools in which we work to end the school-to-prison pipeline." It says that work will focus on five major points: "Eliminating Disparities in Discipline Practices; Creating a Supportive and Nurturing School Climate; Professional Training and Development; Partnerships and Community Engagement; and Student and Family Engagement."
The NEA's official adoption of this policy is key for several reasons. First, teachers are regularly caught between the demands of ending harsh discipline and doing their job well. As I emphasize in Ending Zero Tolerance, it is not enough for districts to just adopt policies that limit harsh discipline. They must also support teachers with the training and alternative processes that make this possible at the classroom level. If schools simply prohibit harsh discipline and do nothing else, they may very well make matters worse, as untrained teachers may feel that their only option is to overlook misbehavior. The NEA policy statement acknowledges this and asks school districts to take the steps necessary to allow teachers to manage discipline appropriately.
Second, teachers who do not feel supported on these issues have pushed back against changes in central administration's changes to discipline policy. The most notable examples of this have been in Los Angeles, Minneapolis, and Philadelphia. In the Philadelphia, the local union formally came out against the district's new discipline policy. In Minneapolis, a teacher's story of the horrors he was forced to watch in the classroom went viral. The NEA's new policy now provides a huge counterweight to teachers' skepticism. It articulates a way forward that serves both the interests of teachers and students.
Third, this statement now aligns the federal government, grassroots communities, and the nation's largest teacher union against harsh discipline. This could leave those who would oppose reform as the so-called "odd-men-out." But as the NEA makes clear, ending harsh discipline in a way that improves education for all students and teachers will not happen by simply writing new rules or issuing statements. It requires states and districts to invest in better discipline systems and supports. In this respect, it places the ball in the court of legislative bodies, implicitly asking whether they will commit resources to reform.
Thursday, June 30, 2016
Scholarship: Gerber On Justice Thomas And Fisher; Gomez-Velez On Philanthrocapitalism And Education Reform
Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education
Scott D. Gerber (Ohio Northern Univ.) examines Justice Thomas' Fisher I opinion in an recent article (50 Rich. L.R. 4, (2016)). From the abstract posted on ssrn.com: This article originated as a paper for an affirmative action symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association. The article places Justice Thomas’s concurring opinion in Fisher v. University of Texas (“Fisher I”) in the larger context of his voluminous writings on race in general and affirmative action in particular. The article also discusses the commentary on Justice Thomas’s Fisher I opinion because the reaction to what he writes, especially on matters of race, is almost as important as the opinions themselves. The article concludes with some brief comments on Schuette v. Coalition to Defend Affirmative Action, a 2014 case about the constitutionality of a 2006 amendment to the Michigan state constitution banning racial preferences in Michigan, and on Fisher v. University of Texas (“Fisher II”), which the Court will be deciding by the end of June 2016. Justice Scalia’s recent death figures prominently in the concluding section.
Common Core State Standards and Philanthrocapitalism: Can Public Law Norms Manage Private Wealth’s Influence on Public Education Policymaking?
Natalie Gomez-Velez (CUNY) examines "the phenomenon of philanthrocapitalism in current education reform, with a focus on the Common Core State Learning Standards initiative" in a forthcoming article in the Michigan State Law Review, posted on ssrn.com. From the abstract: Part I describes the role that a small group of philanthropists played in setting and catalyzing the Standards development and implementation. This description includes private philanthropists’ interactions with federal, state, and local government actors and other stakeholders. It also examines their work in the political process and the public discourse. Part II then considers the Common Core initiative over the last five years, including the role of philanthrocapitalists, nonprofits, and the state and federal governments, and the recent public backlash against and reconsiderations of the Standards. Part III considers the proper scope and limits of private philanthropists’ role in public education policymaking from the perspective of public law norms, governance, and policymaking. Drawing upon structural governance models designed to support robust public engagement in education policymaking, as well as those designed to prevent agency capture, the Article closes by considering methods for placing appropriate boundaries on the influence of philanthrocapitalists. At the same time, it acknowledges the difficulty of imposing meaningful limits in a political environment dominated by the influence of private wealth.
Tuesday, June 28, 2016
Charlotte-Mecklenburg Schools (CMS) announced a new regulation last week advising principals this fall to honor students' choices about their gender identity in restrooms, locker rooms, yearbooks, and graduation ceremonies, school officials told the Charlotte Observer. CMS said that the new guidance follows the Fourth Circuit's holding in G.G. v. Gloucester County Sch. Bd. (see our coverage here) and is not intended to defy North Carolina's law HB2, which, among other things, requires students to use public school restrooms and locker rooms based on the gender on their birth certificates. In G.G., the Fourth Circuit held that the U.S. Dept. of Education's interpretation that Title IX applies to transgender students was entitled to deference in light of the ambiguity of the meaning of "sex" in the statute. The new CMS regulation will require schools to identify and address students according to their preferred identity and will eliminate "gender-based activities that have no educational purpose, such as having a girls’ and boys’ line to go to recess."The Charlotte-Observer's story is here.
And speaking of G.G. v. Gloucester County Sch. Bd., on remand from the Fourth Circuit, last week the district court granted the preliminary injunction to allow the plaintiff to use the boys' restroom at Gloucester High School. The district court did not extend that access to any other school facilities, such as locker rooms, because the plaintiff's suit only sought bathroom access. The June 23 order of the Eastern District of Virginia is here.
Friday, June 24, 2016
Harpalani On Fisher II: The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani (Savannah) shared his take on Fisher II below, which he writes "was the clearest victory for affirmative action" since Grutter and now gives universities clearer guidance on how race may be evaluated in admissions policies.
The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani, J.D., Ph.D., Associate Professor of Law, Savannah Law School
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.
In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.
Thursday, June 23, 2016
This morning, the Supreme Court in Fisher v. Texas upheld the long contested admissions program at the University of Texas. In an opinion by Justice Kennedy, the Court reasoned that the consideration of race was narrowly tailored, meaning that it was necessary, that without it a critical mass would not be achieved, and that the University had considered race neutral alternatives. One of the most telling lines to me, however, was "[t]hat race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality." As I have long emphasized, the very limited role that race plays in Texas admissions was the point that was getting lost. In the overall scope of things, race plays a role across a very small number of applications and, within those applications where it does play it role, it is considered alongside several other factors. In other words, it is a factor within a factor within a factor.
Only by ignoring the larger scope and narrowing one's view down to the precise instance in which race plays a role can one offer a reasonable argument that Texas's use of race is inconsistent with what the Court previously sanctioned in Grutter v. Bollinger. I argue here that race plays a smaller role in admission decisions at Texas than it did at Michigan in Grutter. Thus, what Fisher was really about was an attempt to reverse Grutter itself. But that could be achieved only by elevated form over function (i.e. making the question of whether race was considered more important than the question of how it was considered). Unfortunately, form has consistently triumphed over function in most recent race cases, which is why many have been so concerned about the final outcome in Fisher over the past few years. That form did not triumph in Fisher today is victory not just for Texas or diversity, but for the more realistic assessment of race cases before the Supreme Court in the future.
The case may also signal a shift for Justice Kennedy. In the past, Justice Kennedy has held out the theoretical notion that he approved of race conscious action, but he had never upheld an actual plan. This led many commentators and scholars to muse that he was toying with litigants, presenting himself as progressive in theory by staunchly conservative in practice. Today, Justice Kennedy proved them wrong. Then again, maybe this decision is just the productive of a perfect storm in which only 7 justices decided the case, Justice Scalia is no longer on the Court, and Justice Kennedy's role as the swing vote may be nearing its end.
Get the full opinion here. See the pertinent parts of the Court's syllabus below:
Fisher II Upholds UT Austin's Policy That Includes Race As Relevant (Though Indirect) Factor In Some Admissions
Readers are doubtless poring over Fisher II this morning upholding the University of Texas at Austin's admissions policy that includes race as a relevant feature in a consideration of "special circumstances" for a quarter of the university's admissions. If you need a link, it is here: Fisher v. Univ. of Texas at Austin, 579 U.S. __ (Jun. 23, 2016).
Wednesday, June 22, 2016
The New Orleans Advocate reports that a high school student, through his mother, has sued the St. Tammy Parish School Board (Louisiana) alleging that a deputy sheriff and school officials illegally searched the student's cellphone. According to the news story, on Jan. 8, 2016, a deputy sheriff and school officials searched 16-year-old Fontainebleau High School sophomore Matthew DeCossas for evidence of marijuana possession. Finding no contraband on DeCossas' person, bag, or locker, officials asked DeCossas to unlock his cellphone, which was searched. They found a text conversation between DeCossas and another student about Vyvanse, a stimulant used to treat ADHD. After an investigation, DeCossas was expelled for four semesters. At the end of April, DeCossas sued the officials and the board under sec. 1983, alleging that they violated his Fourth and Fifth Amendment rights by illegally searching him and pressuring him to make a statement before his parents were contacted. What makes DeCossas' case potentially different from student cellphone search cases such as this California case involving an on-campus search for firearms, is that if facts in the Advocate's report are correct, law enforcement and school officials had little basis for searching DeCossas' phone after failing to find anything incriminating during the initial search and that the object of the search, marijuana, is less alarming than the more obvious threat posed by guns at school. But we have not yet read the papers from the parish school board, so right now we only have the suit's allegations, available on Scribd. here.
Last week, the Nashville's school board decided join Chattanooga, Memphis, and a handful of other school districts in suing Tennessee over its school funding formula. While the other districts have filed broader complaints that focus on whether the state or local districts should pay for things like the majority of teachers’ salaries, Nashville is specifically suing over the costs to educate English language learners who compromise about 43 percent of the district’s student body. While the state has made some boosts to the education budget recently, such as adding $14 million to ELL spending, the increase do not fully address the global funding problems that the other districts have raised in their lawsuits.
In both the Shelby and Hamilton County Schools suits, the school systems claim all areas of the schools are underfunded and not just ELL funding. The school districts allege that the State is violating its own statutes by not funding the requisite amount of classroom costs and instead making the districts cover the difference. More on the Memphis lawsuit here; More on Hamilton County here.
Earlier in the year, I discussed here the potential difficulties of having more than one school funding lawsuit proceeding in the state at the same time and a trial court's refusal to certify one of the earlier lawsuits as a class action. Now, with three of the state’s larger school districts on board, consolidating the cases into one is even more compelling. A remedy in regard to any one of these districts will significantly impact the entire state's education budget. A remedy in regard to all three would likely require the state to start from scratch in rethinking its formula and budget. With that in mind, other districts are likely to join or intervene at some point. But so long as the cases remain separate, the question would remain as to which lawsuit to join. Then again, maybe the plaintiffs are playing a more complicated strategy, hoping to put more pressure on the state by starting several smaller fires. I have not seen that before, but it is a plausible strategy.
Maryland Judge Ensures Poptart Bandits Suffer the Consequences, But Undermines Education in the Process
Three years ago, Maryland schools suffered a debilitating rash of pop-tart bandits. From elementary school through middle and possibly high school, public school students were chewing their pop-tarts into guns, talking about guns, and doing darn near anything they could to think about and fantasize about guns. Maryland schools thought they would set the bandits straight. They began suspending them. In the process, they also made national news. One of those elementary school boys eventually sued and last week the Maryland trial judge in the case also set the boy straight. According to the Washington Post,
Anne Arundel County Circuit Court Judge Ronald A. Silkworth ruled that the school system could reasonably consider that the boy’s actions in March 2013 were disruptive and that “a suspension was appropriately used as a corrective tool to address this disruption, based on the student’s past history of escalating behavioral issues,” according to his 11-page ruling. He upheld an earlier ruling that supported the two-day suspension from the Maryland State Board of Education.
Wait a minute. Pop-tart bandits. Elementary school students. The straw that broke the camel's back. Suspension. Expulsion. In my forthcoming book Ending Zero Tolerance, I use the story of suspending this student and others for pop-tarts as a prime example of how irrational discipline policy has gotten in so many jurisdictions. First, while this young boy may have been disruptive in the past, it is far from clear that gnawing a pop-tart into a gun amounts to disruptive behavior or, even if it does, that it warrants suspension.
Second, even if the behavior was disruptive, suspending the boy is not likely to improve his behavior. To the contrary, suspending this young boy, or any other for minor misbehavior, just makes it more likely that he will be suspended again. He suffers a psychic break with school that undermines his incentive for good behavior. And once the school labels him through suspension, it will have no hesitation to suspend him again. Forty percent of suspension each year are actually second, third, and fourth suspensions.
Third, getting rid of one pop-tart bandits does not scare others straight. Instead, it makes other pop-tart bandits more likely and degrades the overall learning environment for everyone, even the innocent bystanders. Studies show that when discipline is overly harsh or punitive, student respond negatively. They, in fact, become more likely to rebel. The pop-tart bandit saga proves this point well. It is no stretch to infer that Maryland schools suffered a rash of bandits because students learned of the first punishment, thought it crazy, and decided to push the boundaries themselves.
Finally, schools with overly harsh discipline undermine student learning rather than improving it. Studies show that well behaved students in these schools achieve at lower levels as a result. In other words, rather than protecting the students that schools say they want to help, they hurt them.
The solution is not for schools to do more of the same or courts to turn a blind eye. The solution is for schools to alter their approach to discipline and, when they will not, for courts to engage. More here.
Monday, June 20, 2016
Court Overturns Zero Tolerance Punishment Based on Stand Your Ground Law, But New Book Details Even Bigger Problems
In a battle of absurd public policies, a Georgia stand your ground law has trumped a school discipline policy of zero tolerance toward fighting. Last week, a Georgia court found that school administrators violated the state’s “stand your ground” self-defense law when they expelled a student for fighting. Matt Smith writes that
S.G. . . . threw the first punch in the January 2014 scuffle — but only after her antagonist had pursued her across the school’s parking lot and backed her up against a brick pillar, according to court records. Her lawyers argued that the resulting expulsion violated state law, which lets someone use force to respond to a threat without having to retreat first.
Georgia’s Court of Appeals has agreed, ruling that the student had the right to defend herself. State law “did not require S.G. to be hit first before defending herself; nor was S.G. required to have lost the fight in order to claim self-defense,” the judges concluded. And they found school officials in Henry County, in the Atlanta-area suburbs, have a policy of expelling students “regardless of whether the student was acting in self-defense.”
The irony here is that courts so often upheld suspensions and expulsions for equally, if not more, compelling circumstances. In other words, only a student availing him or herself of a stand your ground law has a reasonable chance of challenging zero tolerance and overly harsh discipline policies. A student who just accidentally does the wrong thing, misbehaves in the exact way we expect of young students, or even tries to do the "right" thing can be thrown out of school with no recourse. Take Benjamin Ratner, for instance. As I detail in my forthcoming book Ending Zero Tolerance,
in the outer suburbs of our nation’s capital, an average thirteen-year-old boy named Benjamin Ratner received a note from one of his friends. In the note, Benjamin’s friend told him that she had felt suicidal over the weekend and had contemplated slitting her wrists with a knife. Apparently, the feelings persisted. She told Benjamin she brought a knife to school that morning in her bookbinder.
Benjamin took the note seriously. He knew his friend had previously attempted suicide and had even been hospitalized to deal with ongoing issues. Benjamin was worried she would use the knife to hurt herself that morning. Benjamin was smart enough to know that a real solution for her long term well-being was beyond him. He planned to tell both her family and his own about the incident at the end of the school day and let them determine what to do in the coming days and hours. But in the short-term, he was not going to leave her safety—and in his mind possibly her life—to chance. So Benjamin asked his friend if he could take the bookbinder from her locker and put it in his own for safekeeping. She agreed.
Within a few hours, Roberta Griffith, the assistant principal, heard rumors that Benjamin’s friend “had brought a knife to school and . . . may have given it to [Benjamin].” Griffith alerted the dean of the school, Fanny Kellogg, who called Benjamin to the office to question him. Benjamin told her that he had the binder in his locker, although it is unclear that he had actually seen or touched the knife inside the binder. What was clear, however, was that Kellogg knew that Benjamin did not pose any real threat to himself or others. Kellogg sent Benjamin by himself to go get the binder and bring it back to the office. When Benjamin returned, Kellogg acknowledged that Benjamin “acted in what he saw as the girl’s best interest and that at no time did Ratner pose a threat to harm anyone with the knife.” But from then on, the school system’s thoughtfulness ended and its disciplinary process took over.
The school’s policy approach to weapons was zero tolerance. Regardless of the danger his friend faced, his desire to protect her, or any other circumstances, Benjamin’s possession of a knife was deemed a violation of school policy. The assistant principal responded to his admittedly good deed by suspending him for ten days. The principal of the school then escalated the situation and referred Benjamin to the superintendent for potential further punishment. Both the superintendent and two different school district hearing panels decided to increase his punishment. No one questioned Benjamin’s story, but they all insisted they must suspend him for the remainder of the semester—approximately three months. Benjamin would later ask the court system to reverse his punishment as irrational, but no court ever took his case seriously, claiming their hands were tied.
The U.S. Court of Appeals for the Fourth Circuit, however, saw nothing unreasonable about the Ratner's expulsion. It held it was well within the school's power and there was nothing it could do. The thrust of my forthcoming book is to unravel the irrationality of school policies like these and the courts' response to them.
Friday, June 17, 2016
Chalkbeat reports that the Denver school board has voted unanimously for a new bond package and mill levy override that would raise an additional $628 million in taxes for school construction and other education programs. To take effect, it has to be approved by the voters in November. It would "allow Denver Public Schools to build new schools, renovate old ones, install heat mitigation systems such as air conditioning in its hottest schools and increase the number of schools able to provide devices such as computers to every student." In addition, the Board approved the creation of two new charter schools and to allow three others to take over space in current school district facilities. The charter expansion in Denver has been all over the news as of late and raises a whole new host of issues. I won't rehash those here, but rather leave them to the problems outline here and here. The point of this blog is to contrast Denver's package with the one South Carolina just turned down.
South Carolina is currently under order from the state supreme court to comply with its constitutional mandate to ensure minimally adequate public education. Denver is under no such order. To the contrary, the Colorado Supreme Court, albeit under weak reasoning, has recently rejected two different constitutional challenges to the state's failure to fund education. Yet, Denver is poised to come up with $628 million in new funds just for its school district alone. The South Carolina Senate just turned down a $200 million bond package that would have covered the entire state. Denver has approximately 79,000 students. South Carolina has in excess of 700,000. While the South Carolina House already approved the bond package, the South Carolina Senate indicated it needed more time to consider it. It now adjourns for the year, which means it will, at best, consider it in 2017, more than two decades after the lawsuit against the state was first filed.
Wednesday, June 15, 2016
Scholarship: Black on Teacher Quality, Parker on School Segregation, and Robinson on Education Federalism
Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.
This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.
Sixty years ago the Supreme Court announced, “In the field of public education, the doctrine of ‘separate but equal’ has no place.”1 In 1954, no one doubted the significance of that command, even among those who actively resisted it.
Brown v. Board of Education 2 has now outlasted Plessy v. Ferguson, which for 58 years sanctioned “separate but equal”. Does that necessarily mean, however, that Brown has eclipsed Plessy in significance? Has the power of Brown instead waned in its advancing age? Granted, few publically decree Plessy as the best guide to race relations in the twenty-first century; yet, our schools are still segregated and unequal in ways reminiscent of Plessy. That naturally leads one to question the lasting significance of Brown, particularly as it turns 60.
This chapter examines the legacy of Brown through the lens of two sets of school desegregation cases. The first are four cases that the Supreme Court considered in its Brown v. Board of Education decision — cases from Delaware, Kansas, South Carolina, and Virginia. The second are school desegregation cases litigated in the Middle District of Alabama.
The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation’s education goals. One of the nation’s unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform, I argue that disrupting the nation's longstanding approach to education federalism – which I define as the balance of power between federal, state, and local governments that emphasizes substantial state autonomy over education – is necessary for a successful national effort to achieve this goals. I then provide a foundational theory for strengthening the federal role in education by analyzing the essential elements of a successful reform effort based upon research regarding the strengths of federal education policymaking and upon identification of the missing elements of current reforms. Finally, I respond to many of the potential arguments against disrupting education federalism. For Instance, I argue that National Federation of Independent Business v. Sebelius continues to provide ample room for Congress to expand the federal role in education in ways that are needed to build a more equitable education system. I also explain that although strengthening the federal role in education will reduce some forms of state and local control over education, it also will provide states and localities new forms of control.