Wednesday, March 29, 2017

Special Education and the Quantum of Solace by Jonathan D. Glater

Difference creates challenges.  Treating people who are different the same can be unfair; treating people who are similar differently can be unfair.  The trick is determining what fairness requires under given conditions.

Special education inevitably demands this determination.  Under federal law, the Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.) or “IDEA,” schools that receive federal support must provide a “free appropriate public education” or “FAPE” to students with disabilities.  But just what is “appropriate” – how much a school must do to support a disabled student – has been a subject of controversy for many years.

Last week the Supreme Court waded into this area for the first time in decades in Endrew F. v. Douglas County School Dist. RE-1.  The unanimous opinion was cogently analyzed in a prior post produced virtually instantly by Professor Mark C. Weber at DePaul University College of Law; this follow-up reflects on the implications of the Court’s words.

The justices decided explicitly for the first time that students whom IDEA aims to assist must receive a benefit that is more than “minimal.”  The Court held that the lower courts, which had ruled that the public school defendants had provided an adequate education to the plaintiff because he had made “some progress” – i.e., any progress – had used the wrong standard to reach their conclusion.

The correct standard, according to the Court, is this: the school must provide an individualized education plan that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Perhaps because Endrew F. could have come out very differently, Education Week reported that advocates for children with disabilities viewed the Court’s opinion as a “clear win.”  The Court could have espoused the view that any amount of progress, however small, constituted progress and thus would satisfy the FAPE mandate.  Certainly that is the direction the majority opinion in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the Court’s last tussle with IDEA, pointed. 

In Rowley, a majority of the justices rejected the notion that IDEA required states to “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’”  458 U.S. 176 at 189-90 (internal citations omitted).  The opinion, authored by Justice Rehnquist, instructed that schools had to provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” 

From this language, it is easy to see how the lower court judges who heard Endrew F.’s case might have thought that any benefit at all satisfied the Rowley standard.

While the Court’s opinion in Endrew F. provides clarification and reassures that a standard higher than de minimis does apply, it does a bit more besides.  Most importantly, the justices appear to have accepted Rowley’s limited aspiration; the Court has accepted that requiring perfect equality of opportunity is too much to ask.

There are practical reasons not to require schools to take whatever steps, provide whatever support, is necessary to give a child with a disability or multiple disabilities the same opportunities as a student who lacks them.  The Court could have alluded to this practical constraint, instead of suggesting that the (unattainable) target sought through the law should be lowered, and then struggled with the question of how close schools must get to the ideal.  The justices did not take this path.

The path that they did choose looks like it may give schools more say in determining when a student receives an adequate education.  Why?  Because officials at the school are best placed, the Court instructs, to assess what progress is appropriate in light of a child’s circumstances. 

The Court, in the penultimate paragraph of its decision, speaks of “deference... based on the application of expertise and the exercise of judgment by school authorities,” and suggests that a “reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions.” 

If lower courts hearing parents’ challenges to schools’ proposed individualized education plans do show schools greater deference, it seems likely that those challenges will become more difficult and more expensive.  Children whose parents are less sophisticated, less well-off, and/or have less access to expertise may be correspondingly less able to mount a successful challenge.

However, the efforts of relatively empowered parents will have “ripple effects” that improve the educational experiences of other students, too, as Professor Weber has pointed out.  Educational opportunity is not necessarily in limited supply, whatever the Court’s limited conception of “adequacy.” 

Now we will see what the lower courts do with Endrew F. on remand.

March 29, 2017 in Special Education | Permalink | Comments (0)

Tuesday, March 28, 2017

Court Orders New York to Release School Improvement Funds to Schools by Education Law Center

In a major victory for parents, a New York appeals court has ordered the State Division of Budget to immediately release over $37 million in improvement grants to 20 needy schools across the state. A year ago, the grants were frozen by Governor Andrew Cuomo's Budget Director, Robert Mujica, triggering a lawsuit by parents of students in three of the affected schools.

"I am most happy for the children who would benefit from these funds as it shows them that there are people other than their parents who care about their future," said Curtis Witters, a parent plaintiff in the lawsuit. "I hope the schools will utilize these funds to help our students be as successful and progressive as possible."

Education Law Center represents the parents of students in the three schools: Hackett Middle School in Albany, Roosevelt High School in Yonkers, and JHS 80 Moshulo Parkway Middle School in the Bronx.

In an order issued today, the appeals court "vacated," or lifted, a "stay" of a December 28, 2016, decision by Judge Kimberly O'Connor in Albany finding Mr. Mujica had acted illegally in withholding the grants. Judge O'Connor directed the Budget Director to immediately release the impounded grant funds.

An appeal of by the Cuomo Administration triggered an automatic stay of Judge O'Connor's ruling. The parents then asked the appeals court to lift the stay, citing the urgent need to release the funds so needed programs could be implemented in the upcoming (2017-18) school year. Today's order clears the way for the funds to be released so the schools can begin their planning process.

"We are pleased the Appellate Division ordered the immediate release of the grant funds," said Wendy Lecker, ELC Senior Attorney. "These grants were frozen illegally, forcing the schools to discontinue vital academic and support services in the current school year. These schools can now plan to restore these programs to improve performance and help their students succeed."

"Mr. Mujica had no legal basis for impounding these grants in the first place," said ELC Executive Director David Sciarra. "It's tragic that the Cuomo Administration would waste time and money to defend their illegal action in court, rather than working cooperatively with local educators to improve outcomes for vulnerable children."

In addition to vacating the stay, the appeals court also granted the parents' motion to expedite consideration of the merits of the appeal, placing it on the court's May 2017 calendar.

For more information about Cortes v. Mujica, visit these pages on the Education Law Center website.

March 28, 2017 in School Funding | Permalink | Comments (0)

Washington State School District Settles Race Discrimination Suit

Washington State's University Place School District settled a lawsuit filed by three black students who alleged racial discrimination by teachers at Curtis High School, reportedly for $450,000. The student-plaintiffs in the suit alleged in 2015 that they were subjected to racial name-calling by students and discriminatory grading practices and other forms of harassment by teachers and staff. In one instance, one of the students was called racial epithets in the school's hallway, and when he reported the abuse to teachers, he was told that it "would make him stronger." Another student alleged in the lawsuit that when a teacher gave her home address (during a sign language lesson) and students joked that they might egg the teacher's house, the teacher replied that “no one would do that, except for [the plaintiff], because he’s black.” according to court documents. The district denied the allegations in the suit and pointed out that the teacher who made the remark about the black student has resigned from the school. Tacoma's News Tribune reports that just under 10 percent of Curtis High's 1,400 students are black.

March 28, 2017 in Cases, Discrimination | Permalink | Comments (0)

Monday, March 27, 2017

Recent Scholarship on Anti-Bullying and Anti-Gay Curriculum Laws

Recently posted articles on SSRN this month address First Amendment concerns in crafting anti-bullying laws and surveys anti-gay anti-gay provisions exist in the curriculum laws of twenty states, and in several provisions of a federal law that governs the distribution of $75 million in annual funding for abstinence education programs. Links to the articles and descriptions are below:

Emily Suski (South Carolina), A First Amendment Deference Approach to Reforming Anti-Bullying Laws, Louisiana Law Review (2017):

This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying by exploring the complicated nature of the problem, the interventions called for in response, [and] by examining the rationales for public school deference to suppress student speech.

Clifford Roski (Utah), Anti-Gay Curriculum Laws, Columbia Law Review (2017):

Now that anti-gay sodomy and marriage laws have been declared unconstitutional, anti-gay curriculum laws look anachronistic—remnants of a bygone era in which official discrimination against LGBT people was both lawful and rampant. Yet these laws remain on the books, they are still being enforced, and no court has had an opportunity to determine whether they are constitutional. This article develops the framework for a nationwide campaign to invalidate them. This article [also] introduces a new term to clear up the confusion surrounding this subject: anti-gay curriculum laws. In particular, this article identifies two types of anti-gay curriculum laws that scholars and advocates have overlooked: “promo hetero” laws and “abstinence until marriage” laws. The article concludes by explaining why LGBT advocates have waited until now to launch a campaign against anti-gay curriculum laws—and why they should not wait any longer.

March 27, 2017 in Scholarship | Permalink | Comments (0)

Friday, March 24, 2017

California's Suspensions Are Down, But Racial Disparities Persist By Jonathan D. Glater

 

While school suspension rates have fallen sharply in recent years in California, the racially disproportionate impact of this form of punishment has persisted.  That is the headline conclusion of the latest report on education in the United States from the Brookings Institution’s Brown Center on Education Policy.  The important and difficult questions are why and what can be done.

The study, one chapter in the final volume of a multiyear series, examined possible relationships between rates of suspension and (1) size of the school, (2) poverty at the school, and (3) share of the student body that is African American, among other variables.  Overall, the rate of suspensions of black students is higher at larger schools than at smaller schools; higher at schools attended by more students receiving free and reduced price meals, and higher the larger the share of the student body that is black.

California presents a useful case study because state lawmakers have acted to reduce use of suspension, defined for purposes of the study as suspension off-campus.  In 2014 the legislature passed Assembly Bill No. 420 (“AB 420”) which prohibited schools from expelling students because they engaged in acts of “willful defiance.”  That catchall term was the most common offense leading to suspension, especially for minority students. 

Rates of suspension were already declining when AB 420 was enacted and such decreases have continued.  Between 2013 and 2015, suspension rates fell by nearly one-third for all students and for each major racial/ethnic group (the categories are white, black, Hispanic and Asian). 

But the rate for black students remains more than triple that of Hispanic students, who constitute the group suspended at the next-highest rate.  In 2015, for every 1,000 black students in California schools, black students received 178 out-of-school suspensions, while the comparable number for Hispanic students was 52; for white students, 44; and for Asian students, 12. 

The report breaks schools into two groups, those with high rates of suspension of African American students, and those with low rates of suspension of African American students, and then examines characteristics of the schools to identify correlates of suspension rates.  In 2015, there were 1,930 schools with high suspension rates, defined as a rate of 5 percent or more, and there were 3,546 schools with low suspension rates, defined as a rate below 5 percent. 

Although there were fewer schools with high rates, those schools imposed 35,424 suspensions, compared to 139 at the low rate schools.  (I am leaving out, although the report discusses them, the schools that did not report precise numbers.)

Then the water gets murky because it is difficult to determine the dynamics at work.  Although larger schools tended to have higher suspension rates, larger schools also tended to be middle and high school, and institutions serving adolescents are “prone to more suspensions” relative to schools serving younger children. 

Although higher poverty schools tend to have higher rates of suspension, that only holds until 89 percent or more of students qualify for free and reduced priced meals.  The report concludes that poverty is a weaker correlate than school size.

Finally, suspension rates are higher at schools where black students form a greater share of the student body – which, in precise terms, means schools where black students are more than 16 percent of the total student population.  This suggests that racial isolation itself is not driving the rate of suspension, because 16 percent does not seem like such a high share of the student population.

Drawing firm conclusions about causation is not easy and the report is cautious.  But it does appear that smaller schools and schools serving younger students manage discipline differently from larger schools serving older students, that poverty plays a role in the frequency of suspension, and not surprisingly, that race continues to be powerfully salient.

March 24, 2017 in Discipline | Permalink | Comments (0)

Thursday, March 23, 2017

Study Finds Court Ordered Funding Reforms Produce Five Percent Increase in Graduation Rates

A new study by Chris Candelaria and Ken Shores adds another major finding in the debate over school funding.  In their paper, Court-Ordered Finance Reforms in the Adequacy Era: Heterogeneous Causal Effects and Sensitivity, they find that school funding remedies have a significant impact on graduation rates in high poverty districts.  In those districts, a ten-percent increase in per-pupil funding "causes a 5.06 percentage point increase in graduation rates."  As I calculate it, that means that if a southeastern state spending about $7,000 per-pupil in a high poverty district bumped funding to $7,700, it would likely bump its graduation rate from 65% to 70%.  In a high school with 1200 students, that means it would graduate 210 students each year rather than 195.

This finding comes on top of Kirabo Jackson and his colleagues' recent finding that a twenty percent increase in per pupil funding, if maintained over the course of students' education careers, results in low income students completing .9 more years of education.  This increased learning wipes out two-thirds of the gap in outcomes between low- and middle-income students. 

Not too shabby for a little extra money.  Incredibly impressive when compared to what data tells us about vouchers and the average charter school.  

These studies should give Congress serious pause when they look over Trump's proposed budget, which would leave funding for low-income students flat, save the $1 billion aimed at prompting school choice, charters, and vouchers.

These studies should also give the public heartburn in the 30 states that, in real dollar terms, continue to fund education at a lower level today than they did before the recession.  As I detail here, many states issued cuts of 10 to 20 percent in education funding during the recession and have still yet to fully replace the funds.  The above studies would strongly suggest these states are driving down student achievement and graduation rates; it will just take a few years for the data to bear it out.

 

March 23, 2017 in School Funding | Permalink | Comments (0)

Supreme Court Requires Opportunity for Special Education Students to Make Progress, Not Just Receive Minimal Benefits by Mark Weber

On March 22, the Supreme Court decided Endrew F. v. Douglas County School District RE-1. The Court overturned a lower court decision that had applied a “merely more than de minimis” test to the duty to provide appropriate education to children with disabilities in public schools. The case involved a child with autism whose parents placed him in a private school because they were dissatisfied with the progress he was making under his fourth grade individualized education program (IEP) and thought he was unlikely to achieve much more under a similar IEP proposed for fifth grade. He continued to have severe behavior problems in his public school setting, including screaming in class, climbing over furniture and classmates, and running away, and manifested extreme fear of commonplace aspects of his environment. His parents believed his academic progress had stalled. In the private school, he made rapid progress with a behavioral intervention plan, and the improved behavior allowed him to make academic gains. His parents sought tuition reimbursement, as permitted under the Individuals with Disabilities Education Act (IDEA), which requires that states receiving federal funds for special education guarantee each child with a disability a free, appropriate public education. The administrative law judge, the district court, and the Tenth Circuit all ruled against the parents. The Tenth Circuit interpreted the Supreme Court’s sole case on the appropriate education standard, Board of Education v. Rowley, 458 U.S. 176 (1982), to require simply that the child be offered some educational benefit, interpreted as merely more than de minimis.

The Supreme Court vacated and remanded. In a unanimous opinion by Chief Justice Roberts, the Court read Rowley as steering a middle course between no enforceable appropriate education standard at all and the standard endorsed by the lower courts in that case, an education affording the child an opportunity to achieve her full potential commensurate with the opportunity provided children without disabilities. The Endrew Court stressed Rowley’s language requiring a substantively adequate education as well its proviso that its analysis was limited to the facts of that case and did not establish a universal test. Endrew said that Rowley pointed to a rule that the school has to offer an IEP reasonably calculated to enable the child to make progress in light of the child’s circumstances. Though this focuses on the reasonable, not the ideal, the standard keys into student progress; moreover, the program must be individualized to afford progress given the child’s unique needs. The Court reaffirmed Rowley's conclusion that for a child being educated in the general education classroom, passing marks and advancement from grade to grade through the general curriculum will ordinarily satisfy the IDEA standard (though the Court cautioned in a footnote that “This guidance should not be interpreted as an inflexible rule,” to be applied automatically). But it rejected the standard of the Tenth Circuit and courts like it that for children not in the regular classroom, offering merely de minimis progress is enough.

The Court rejected the parents’ position that in light of amendments to IDEA since Rowley, children are entitled to an education that affords opportunities to attain self-sufficiency and contribute to society substantially equal to opportunities afforded children without disabilities. The Court did not see the amendments to the Act over the years as adopting the proportional maximization standard that Rowley rejected. The Court also cited a need for deference to school authorities’ educational judgment. Nevertheless, parents, their advocates, and many other observers are likely to be pleased that the Court has rejected the low standard applied by the Tenth Circuit and many, many other courts and clarified that the law imposes a more demanding standard oriented towards the child’s progress and the child’s individual needs.

The decision is found at https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf

March 23, 2017 in Special Education | Permalink | Comments (0)

Wednesday, March 22, 2017

Will Accepting GRE Scores Improve Law Schools' Assessment of Candidates? by Jonathan D. Glater

Harvard Law School’s readiness to accept the GRE in place of the LSAT raises a host of important questions – most importantly, what will the effect be? 

In explaining the move, Jessica Soban, assistant dean and chief admissions officer, told The New York Times that it would “encourage more students in the United States and internationally from a greater degree of disciplines to apply,” and the law school’s dean, Martha Minow, suggested that the law school would be able to admit a more diverse class as a result.

Whether such goals are realized will depend on numbers other than GRE scores.  The results matter, because other law schools likely will follow the lead of Harvard and the University of Arizona, which announced the same move last year.

Many more students take the GRE each year than take the LSAT: 584,677 worldwide, including 326,957 United States citizens, in the 2015-2016 cycle, according to Educational Testing Service (ETS), which administers the GRE.  In contrast, 84,771 people took the LSAT (and 56,500 applied to law school) in roughly the same period, according to the Law School Admission Council (“LSAC”), which administers the LSAT. 

The larger pool of potential applicants could indeed produce greater racial and ethnic diversity at law schools.  According to ETS, 55 percent of the U.S. citizens taking the GRE were white, 6 percent were Asian American, 7 percent were African American, 3 percent were Mexican American, and 4 percent were classified as “other Hispanic,” a category excluding Puerto Rican citizens, who accounted for 1 percent.

In contrast, about 61 percent of law school applicants were white, 15 percent were Asian American, 15 percent were African American, and 13 percent were Latino.  (I did not find precisely analogous data, so please note that these percentages reflect two different sets of numbers:  GRE test takers who are U.S. citizens, on the one hand, and law school applicants, on the other.)

Average GRE scores of different racial and ethnic groups vary across the population of U.S. citizens who took the test, according to ETS.  White and Asian American test takers earned higher average scores than black, Mexican American or “other Hispanic” test takers.  White test takers tended to score higher on the verbal reasoning component of the exam and Asian American test takers tended to score higher on quantitative reasoning. 

As with the LSAT, on which LSAC reports similar patterns, if admissions processes at relatively more selective institutions continue to weigh test scores heavily, the greater size of the pool may have less of an effect on student diversity at law schools.  The selection process, committed to a particular definition of merit, may get in the way.

Just how important is the LSAT, or GRE, for that matter, in predicting who will do well in law school?  To ask that question is to raise another, which is, how good should it be in order to play the powerful role in admissions decisions that it does.  According to an ETS report for the University of Arizona last year, “scores for all GRE subtests, individually or composited, are both highly reliable and valid for use in law school admissions.”

The study was based on a sample of 78 people, and took into account GRE, LSAT, undergraduate GPA and first term law school GPA.  The study did not capture how students did in the second and third years of law school. 

The ETS study presented the data in different ways but the most intuitive may be this:  54 percent of students in the top third of GRE composite scores had a first semester law school GPA in the top third of their class, while 23 percent were in the bottom third.  Of students in the bottom third of GRE scores, 48 percent were in the bottom third of their law school class and 16 percent were in the top third.  That means that 52 percent – more than half – of the students in the bottom one-third on the GRE did not land in the bottom one-third of their law school class.

To put that finding in context, the studies mentioned in the report for the University of Arizona found that the GRE verbal and quantitative sections “almost always predicted graduate [school] grade point average (GGPA) in general and first year GGPA at least as strongly as [undergraduate] GPA.” 

A recent study, available here, suggests that the LSAT itself is not a great predictor of law school performance.  While an LSAT score is a statistically significant predictor of law school GPA (twice as accurate in the first year than overall), the effect is not overwhelming. Each additional LSAT point predicts an increase in law school GPA of 0.016 – a bigger deal, the bigger the LSAT score difference between two applicants, but nonetheless a “modest” effect “compared to how heavily schools weight LSAT scores.”

So both tests predict law school performance, but to a limited degree. 

Where should this leave us?  Frankly, uncertain.  The tests do not predict a lot.  The ETS report for the University of Arizona does not look beyond the first semester of law school.  Average performance on both LSAT and GRE appears to vary with the race of the test-taker. 

Law schools have been using an imperfect tool and two are now moving toward incorporation of a complementary but also imperfect tool.  While predictions are always risky, especially about the future, it seems highly likely that results of adoption of the GRE will be imperfect, too.

March 22, 2017 in Higher education | Permalink | Comments (0)

Tuesday, March 21, 2017

Court Upholds Prayer at School Board Meetings, Overlooking Their Judicial and Executive Functions That Suggest a Different Result

The Fifth Circuit Court of Appeals in American Humanist Association v. Birdville Independent School District has upheld a First Amendment challenge to student prayer at school board meetings.  The court offered this summary of the facts:

BISD’s board holds monthly meetings in the District Administration Building, which is not located within a school. The meetings include sessions open to the public. Attendees are free to enter and leave at any time. Most attendees are adults, though students frequently attend school-board meetings to receive awards or for other reasons, such as brief performances by school bands and choirs. Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students,2 are given one minute. BISD officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But according to AHA and Smith, they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.” AHA and Smith claim that sometimes the prayers are directed at the audience through the use of phrases such as “let us pray,” “stand for the prayer,” or “bow your heads.”

From 1997 through February 2015, the student-led presentations were called “invocations” and were delivered by students selected on merit. In March 2015, in an apparent response to AHA’s concerns about the invocations, BISD began referring to them as “student expressions” and providing disclaimers that the students’ statements do not reflect BISD’s views. BISD began randomly selecting, from a list of volunteers, the students who would deliver the expressions.

The court recognized that two different lines of precedent potentially controlled the case--one dealing with legislative prayer and the other with school prayer.  

Like [the legislative precedent], this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like [the school prayer cases], this case is about school-district-sanctioned invocations delivered by students on district property. We agree with the district court that “a school board is more like a legislature than a school classroom or event.”

The court also cited to other courts that had reached a similar conclusion in the past--Coles ex rel. Coles v. Cleveland Board of Education, 171 F.3d 369, 383 (6th Cir. 1999), and Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011).

The court's mechanical analogies to legislative versus school prayer cases, however, overlooks the fact that school board meetings do not really fit into either category.  The problem with pigeonholing school board meetings is that school board perform all three functions of government.  When they debate and vote on school board policies, they operate as legislative bodies, just like a city council.  In this context, Town of Greece v. Holloway held that can be permissible prayer.  

In contrast, when a student appeals an expulsion to the school board, the board functions as an adjudicative body, much like a court (albeit under different rules).  In a court setting, the mere posting of the Ten Commandments is unconstitutional, to say nothing of prayer.  See McCreary County v. American Civil Liberties Union of Ky.  

When school boards deal with business issues, such as hiring a superintendent, dealing with teacher issues, entering into contracts for services, they perform an executive function.  Moreover, the school board is the employer of countless citizens who may feel that their positions would in some way be compromised depending on whether they participate in the religious ceremonies that precede school board meetings.  In the carrying out executive functions, Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), indicates that even clever processes that allow students to make the decision regarding whether to lead prayer does not insulate a district from the limits of the First Amendment.  In short, if the school sets up a process that leads to school sponsored prayer, it is unconstitutional.

This differing contexts suggest the question could be whether a different rule applies depending on what the business of the day is for the school board.  Yet, this level of nuance is problematic because it would mean sometimes school boards can have prayer and sometimes they cannot.  Clarity likely outweighs nuance here.  The more sensible approach would be to ask whether the executive and adjudicative functions of school boards are substantial enough overall to subject school boards to the constitutional limits that apply to those functions.

 

March 21, 2017 in First Amendment | Permalink | Comments (0)

Monday, March 20, 2017

Baltimore's New Struggle to Move Past Segregated Schools

A new four-part series in the Baltimore Sun offers a sobering look at the politics of school integration.  Nikole Hannah-Jones' work over the last couple of years has helped make school integration a topic of public conversation.  This new work by Liz Bowie and Erica Green show how integration actually does or does not come about.  It explores Baltimore County's recent efforts to redraw school attendance lines.  The opening lines begin with Jeff Sanford, a father of two African-American boys in the schools who had volunteered to represent his local community in the process.  He "went to the debate at the high school cafeteria with an open mind.  The boundary lines for 11 schools in the Catonsville area had to be redrawn to relieve overcrowding. But there was a chance to achieve something more, something that could help improve the lives of all children: integration."

What he and the school district found was that although demographic maps showed a perfect opportunity to diversify some schools, old boundaries and biases were as deep as ever.  Many saw integration as a zero sum game where some would win at others expense.  This fear opened new wounds that made integration as tough as it was decades ago.  An integration plan that would have reassigned 2100 students was voted down and eventually whittled down to one that would only reassign a couple hundred.  Read the full story here.

As a follow-up to the debate, The Sun, Maryland Humanities Council and Loyola University of Maryland's Center for Innovation in Urban Education will be hosting a community dialogue about the path forward for school integration.

The forum will be held Wednesday, March 29 from 6:30 - 8 p.m. at Loyola University. For more information and to RSVP go to www.loyola.edu/join-us/bridging-divide.

 

March 20, 2017 in Racial Integration and Diversity | Permalink | Comments (0)

Can Title VI Offer Students More Equitable Access to Teachers?

A new student note by Noah B. Lindell, Old Dog, New Tricks: Title VI and Teacher Equity, 35 Yale L. & Pol'y Rev. 189 (2016), attempts to use Title VI as a lever for forcing more equitable access to teachers.  The introduction offers this summary:
What can the law do to improve teacher quality? In answering this question, one can be forgiven for thinking about regulation rather than litigation. At the federal level, most litigation-heavy education laws are antidiscrimination statutes, focused on protecting certain categories of students rather than on enforcing high teaching standards. Meanwhile, teacher quality has become a central aspect of education “policy” statutes. Lax teacher preparation standards and poor hiring policies, in particular, create challenges for the education system. Good teachers not only increase students' scores on standardized tests; they also can lower students' teen pregnancy rates, increase their likelihood of going to college, and raise their lifetime incomes. Replacing poor teachers with average ones can have similar effects. Yet white and wealthy students are far more likely to be taught by high-quality educators than are minority and economically disadvantaged students. The teacher quality crisis in the United States is real, and it contributes greatly to the broader woes of the American education system.
 
Title VI of the Civil Rights Act of 1964--which is over half a century old, and which is primarily understood as an antidiscrimination provision--may offer a solution to this crisis. Title VI forbids racial discrimination in the provision of resources in federally funded programs. The U.S. Department of Education has recently made clear that teacher quality is, in fact, a resource covered by Title VI. This Note argues that Title VI complaints, investigations, and lawsuits can encourage (or force) districts to pursue policies that are designed to provide minority students with better teachers. While other scholars have discussed Title VI in relation to school discipline, assignment of students to special education, school finance, school reconstitution, and general educational discrimination, this is the first piece of legal scholarship to discuss Title VI in any depth in relation to teacher quality and teacher assignment.
 
Part I of the Note provides background on the racial and socioeconomic gaps that plague American education generally and access to good teachers in particular. Teacher quality is one of the most important factors contributing to student academic growth, yet recent attempts to alleviate these disparities through legislation have failed. Part II charts out a different course: the U.S. Departments of Education and Justice should make more aggressive use of Title VI to end unequal access to quality teachers. Part II explains the mechanics of Title VI and illustrates how Title VI investigations might play out in the teaching context. Parts III and IV then discuss a number of concerns that this new use of Title VI could generate. Part III lays out and resolves two issues related to the Title VI doctrinal test: how to measure teacher quality and how to handle state and school district defenses to allegations of discrimination. Part IV then tackles two larger concerns: (1) how to ensure that private parties will submit complaints to the Department of Education, as Title VI requires, while also guaranteeing that the potential flood of new claims will be promptly resolved; and (2) how the agencies can protect their Title VI guidance, and their disparate impact regulations, from legal challenge.
 

March 20, 2017 in Teachers | Permalink | Comments (0)

Friday, March 17, 2017

Kentucky Legislation Would Resegregate Schools against the Will of Local Families

Members of the Kentucky legislature are taking aim at school integration.  If its new legislation succeeds, it will degrade the educational opportunities available to thousands of kids and, ironically, move in the opposite direction of the stated positions of the new Secretary of Education.  

After the Supreme Court held in Parents Involved in Community Schools v. Seattle that Jefferson County's voluntary integration plan was unconstitutional, the school board reworked its student assignment plan.  The problem with the old plan, according to the Court, was that the district had not shown that the consideration of race was necessary to achieve integration.  At least in Jefferson County, maybe the Court was right.  The district came up with a new plan that relies on race-nuetral factors and appears to work relatively well.  And like the old plan, it remains popular among families there.  As Barrett Holmes Pitner reports, "[a]s of 2011, 89 percent of Jefferson County residents supported the school system’s desegregation policies (PDF)."

A constitutional plan, a popular plan, local prerogative, and the benefits of integration apparently are not enough to dissuade those in the state legislature from monkeying with education policy.  Kentucky House Bill 151 would "provide that those residing within the shortest travel distance to a school be given first priority in cases where the capacity of the school may be exceeded; permit a child to attend a school other than the one closest with permission of the district."  The logical inconsistency of this legislation with other education policies and research findings is astounding.  

Both of Kentucky's U.S. Senators just voted in favor of Betsy DeVos as Secretary of Education.  DeVos stands on two major policy positions: more local control and more student choice.  Just this week, DeVos told the Council of the Great City Schools, a coalition of 68 big-city school districts, of which Jefferson County is a member, that “When Washington gets out of your way, you should be able to unleash new and creative thinking to set children up for success.”  Although this statement does not reference state government, it is implied.  After all, she was talking to districts, not states.  In other words, let local districts unleash their creative thinking.  

As far as creativity goes, Jefferson County is in the top one percent.  It found a way to make integration work, make it popular, and make it voluntary in a place that was once mandated to desegregation under force of court order because those in power staunchly opposed it.  This new bill would crush this creativity and allow the resegregation of schools, even though that result is not what most families there want.  So much for respecting parents and local control.

The bill is equally problematic in terms of choice.  Jefferson County's current plan does not involve compulsory integration.  It works because it allows parents choice of where they will go to school, imposing only a few constraints around the edges when those choices threaten to tip a school toward resegregating.  But by giving parents an absolute veto and priority for local neighborhood schools, this new bill would strip many families of the right to choose an integrated school.  

This bill does not line up with voucher ideology either.  The bill would, in effect, tell families that if you want to exercise school choice outside of your neighborhood, you need to look for a voucher.  In your traditional public schools, we will preference neighborhoods.  How can choice be a generally desirably things, but bad when it produces integration.

I, however, would rather just put politics aside and have us think about what works to improve educational opportunity.  Half a century of research shows that integration is incredibly effective in closing achievement gaps.  The reason largely lies in the harms that students suffer in predominantly low-income schools.  As I detail here, "It is not just that a student’s individual demographic characteristics make him or her less likely to succeed; rather, high-poverty schools have a negative impact on a student’s educational outcomes regardless of the student’s individual socioeconomic status. In at least six major academic categories, predominantly poor and minority schools cause harm or deliver inferior educational opportunities to students."  Access to integrated middle-income schools does the opposite.  And to be clear, middle-income and white students receive significant educational benefits from attending integrated schools as well.  Contrary to popular belief, the benefits of integration are not a one-way street.

 Fortunately, the bill currently appears to have stalled, in part, because of the effect it might have on charter schools, not due to any of the other above concerns.

 

March 17, 2017 in Racial Integration and Diversity | Permalink | Comments (0)

Thursday, March 16, 2017

Trump's Proposed Education Cuts Are Headscratchers

President Trump has released his blueprint for the  budget.  It includes a number of cuts and program eliminations across various sectors.  He would not spare the Department of Education.  Here is the USA Today's summary of the cuts:

Supporting Effective Instruction State Grants program ($2.4 billion): The White House says the program is "poorly targeted and spread thinly across thousands of districts with scant evidence of impact."

21st Century Community Learning Centers program ($1.2 billion): The formula grants to states support before- and after-school and summer programs. "The programs lacks strong evidence of meeting its objectives, such as improving student achievement," the budget says.

Federal Supplemental Educational Opportunity Grant program ($732 million): This financial aid program, known as SEOG, help give up to $4,000 a year to college students based on financial need. The Trump administration says it's a "less well-targeted" program than Pell Grants.

Striving Readers Comprehensive Literacy Program ($190 million): The grants are targeted toward students with disabilities or limited English proficiency. 

Teacher Quality Partnership ($43 million): A teacher training and recruitment grant program.  

Impact Aid Support Payments for Federal Property ($67 million): Obama also proposed the elimination of this program, which reimburses schools for lost tax revenue from tax-exempt federal properties in their districts.

International Education programs ($7 million): This line item funds a variety of exchange programs, migrant schools and special education services abroad.

My knowledge is thin on most of these programs, but the biggest cuts strike me as the most curious.  Funding for before and after school programs may or may not be improving student achievement.  That, however, should be beside the point if those programs provide a safe place and child care for needy students.  Cutting this out only places more pressure on the child care issues that Ivanka Trump has been raising.  Likewise, the Federal Supplemental Educational Opportunity Grant helps needy students pay for college.  Trump may be correct that it is not as targeted as it could be, but this begs the question of how it might be better targeted, not whether the funding should be cut.

Finally, the Impact Aid Support seems like a particularly odd target.  Those funds have a significant impact in communities that serve our military families.  Those families, for a variety of reasons, do not pay the same taxes as others in those communities.  No one has any qualms with giving our service members those benefits.  The downside, however, is that the schools their children attend do not have the same tax base as other schools with fewer military members.  To offset this oddity, the federal government makes a direct payment bumps to those schools.  This cut is a hard one to figure out.

 

 

March 16, 2017 in Federal policy, School Funding | Permalink | Comments (0)

Case Challenging Segregation As a Violation of State Right to Education Heading to Minnesota Supreme Court

On Monday, the Minnesota Court of Appeals in Cruz-Guzman v. Minnesota ruled that plaintiffs' challenge to segregation in public schools was non-justiciable under the state constitution.  Plaintiffs, among other claims, argued that segregated schools deprive students of an adequate education.  While the court recognized that the state has a duty to provide a uniform, thorough, and efficient education under the state constitution, the court reasoned that the constitution does not include any qualitative standards or judicially manageable standards.  Thus, it lacked a basis upon which to find that segregation did not or did not deprive students of the requisite level of education.  The court wrote:

Appellants argue that the Minnesota Constitution does not provide textual support for respondents’ assertion of a constitutional right to an “adequate” education. As appellants note, “[T]he word ‘adequate’ does not appear in Minnesota’s Education Clause.” Instead, the Education Clause sets forth the legislature’s duty to establish a “general and uniform system of public schools” and to secure, “by taxation or otherwise,” a “thorough and efficient system of public schools.” Minn. Const. art. XIII, § 1. The clause does not state that the legislature must provide an education that meets a certain qualitative standard. Moreover, assuming without deciding that the Education Clause requires the provision of
an education of a certain quality, the clause does not set forth the relevant qualitative standard.

Respondents’ request for relief therefore requires the judiciary to both read an adequacy requirement based on a qualitative standard into the language of the Education Clause and to define the qualitative standard. Respondents have a different view, arguing 9 that the judiciary merely needs to determine whether appellants have violated the purported constitutional duty to provide an adequate education. We disagree: to determine whether appellants have violated the purported obligation to provide an adequate education, we must also define “adequate” and the attendant qualitative standard.

The problem of justiciability is not new to adequacy claims.  Nearly ever court in a school funding and quality cases has had to confront the problem.  A majority of courts, when entertaining similar claims, have held that their constitution includes a quality or adequacy competent and that courts could define its rough outlines. 

The plaintiffs' lead attorney, Dan Shulman, has already said they will appeal to the state Supreme Court. Dan Shulman, an attorney for the plaintiffs, said he will appeal the decision to the Supreme Court.  As Twin Cities Pioneer Press reports,

“Courts all over the country have said that an adequate education is something that courts can determine, and in our view that includes the Minnesota Supreme Court,” he said in an interview Monday.  Shulman noted that in a 1993 ruling on a school-funding lawsuit, the Supreme Court established that Minnesota children have a fundamental right to an adequate education.

This case is definitely worth watching.  As some may recall, Shulman represented plaintiffs in a segregation case two decades ago that alleged segregation violated the state education clause.  The case was successful on multiple counts, so much so that the state settled the case before the state supreme court could rule on it.  That settlement handed plaintiffs a desegregation remedy, but failed to establish precedent on which later plaintiffs could rely.  Thus, the issue still remains one of first impression in Minnesota.

Get the full opinion here.  Also, for a full explanation of how segregation can amount to a violation of state constitutional rights to an adequate and equal education, see here.

March 16, 2017 in Racial Integration and Diversity | Permalink | Comments (0)

Wednesday, March 15, 2017

Battleground in the Fight over Voucher Expansion Opens in Texas

While Betsy DeVos has almost no current power as Secretary of Education to push vouchers, her public stance in favor of them may be emboldening state legislatures to take action on their own.  Texas has moved quickly and the battle lines are being drawn.  Even Senator Cruz is getting involved.

"I usually stay out of fights in Austin. We've got plenty of fights in Washington," Cruz said Saturday night at the Dallas County Republican Party Reagan Day Dinner. "This is the best opportunity we've had in the history of the state of Texas to pass meaningful school choice legislation in the Texas Legislature."

As Lt. Gov. Dan Patrick listened, Cruz told Texas legislators in the room to take a "bold and courageous stand."

"School choice is the civil rights issue of the 21st century," Cruz said. "Do the right thing for the kids, and the history of Texas will vindicate your courage and principles."

Teachers and religious leaders are coming out just as strong in opposition.  The Dallas Morning News reports:

Teachers and pastors on Monday rallied against the Senate's school vouchers proposal, even as its author announced the bill will be heard Thursday.

"It is a sin before God," Charles Foster Johnson led hundreds in chanting, "to make commodities out of our children and to make markets out of our classrooms."

Lt. Gov. Dan Patrick and GOP Senate leaders would harm public schools and impermissibly lend government support to religion if their self-styled "school choice" bill becomes law, Johnson warned at a Capitol rally organized by the state affiliate of the American Federal of Teachers union.

"Generally, the House of Representatives is holding firm," he said to teachers and school district employees who used the first day of spring break to travel to Austin for a lobby day. In the House, Democrats and rural Republicans traditionally have blocked voucher-like proposals.

"But brothers and sisters, our Senate members need a lot of help from you," said Johnson, a Fort Worth-based Baptist pastor who heads Pastors for Texas Children. It is a group of about 1,000 pastors, rabbis and imams who work to support public schools.

The polemics of this debate are troubling.  As a historical matter, major education policy tends to garner bipartisan support.  That was true of the Improving America's Schools Act, the No Child Left Behind Act, and the Every Student Succeeds Act.  Bipartisanship, of course, does not guarantee wise legislation, but it does promote earnest discussion and compromise. Betsy DeVos's polemic positions, lack of knowledge with which to have an earnest debate, and embittered nomination may have shifted the landscape, at least in the short term.  She survived by the narrowest margins and those who side with her may see this is an opportunity to pursue an agenda consistent with her while they can.  Of course, that provokes a similarly aggressive response.  It is probably wishful thinking that the battle will be limited to Texas.

March 15, 2017 in Charters and Vouchers | Permalink | Comments (0)

Tuesday, March 14, 2017

DeVos Says the Real Problem in Education Is the Federal Government

The structure the Every Student Succeeds Act creates for supporting, monitoring, and improving public schools is, in the collective, incoherent.  The Every Student Succeeds Act is the popular title of the most recent reauthorization of the Elementary and Secondary Education Act.  The Every Student Succeeds Act, however, stands apart from its predecessors.  All prior versions have been premised on improving educational opportunities for disadvantaged students by promoting equality in inputs, equality in outputs, or both.  The Every Student Succeeds Act proceeds as though we can improve educational opportunities for disadvantaged students without equality in inputs or outputs.  This would be quite a novel, if not incoherent, thesis.

In a lecture last week, I remarked that the more forgiving thesis I might ascribe to the Act is that if the federal government would get out of the way of states states would devise their own new theories by which to achieve equality or would simply achieve input and/or output equality of their own volition.  Yesterday, Betsy DeVos confirmed my speculation was correct. At the annual legislative conference of the Council of the Great City Schools, a coalition of 68 big-city school system, DeVos remarked “When Washington gets out of your way, you should be able to unleash new and creative thinking to set children up for success.”

I knew it.  Washington is the problem and the Every Student Succeeds Act has cured it.  States did not really need the couple hundred billion dollars that the federal government gave to states during the recession to keep their education budgets from falling off a cliff and teachers being wholesale dismissed.  It was really the federal government that made states cut education by 20 or so percent once they exhausted federal stimulus funds.  It was really the federal government that forced some states to slash taxes rather than fund education. It was really the federal government that has insisted that over half of the states continue to fund education at levels below the pre-recession years, even though their tax revenues exceed pre-recession levels.  It was really the federal government that insisted that states spend more money in schools that do not serve low-income students than in those that do.  

If only President Obama had appointed Betsy Devos eight years ago, we could have avoided this mess.

Or maybe the flawed logic of the Every Student Succeeds Act and Betsy DeVos are just window dressing for the fact that many no longer believe equality is possible or a virtue worth pursuing.  This is an idea that would likely cause many educators and families to revolt, just as they did in opposition to DeVos, which is why the window dressing is necessary.

For more on the federal role in education and the Every Student Succeeds Act, see here.

March 14, 2017 in ESEA/NCLB, Federal policy, School Funding | Permalink | Comments (0)

Robert Post on Free Speech and Academic Freedom

The University of South Carolina School of Law is hosting a lecture by Robert Post, dean of Yale Law School, titled “Freedom of Speech and the Modern University.  The lecture is March 23 at 5 p.m.  Of course, South Carolina has faced its own challenges on the subject in recent years.  Here is the announcement:

 

In February 2014, the University of South Carolina, USC Upstate, and the College of Charleston were at risk of losing state funding because of certain textbooks and courses. In 2016, two professors at Clemson University were among more than 200 across the nation who were put on the “Professor Watchlist,” which says it names instructors who “advance a radical agenda in lecture halls.” And more recently, faculty and staff at the College of Charleston have grappled with where the line between freedom of speech and being a respectful instructor blur.

After the 2016 election, the school’s provost and vice president of academic affairs, Brian McGee, reported several complaints from students who had “perceived that election discussions in a class meeting were not relevant to course content, were inappropriately one-sided, or were crudely partisan.” Following those reports, the school’s president, Glenn McConnell, enacted a new online presence that would “offer students a way to express their concerns, as well as provide faculty, staff, and administrators an excellent tool for improvement.”
 
But what startled faculty was the quickness at which the school had reacted to student’s complaints without stopping to check their validity. Professors wondered what role the complaints would play in the promotion and tenure of faculty. It also sparked a discussion state-wide about when and how to teach subjects that are innately political.

In a January article in the Charleston City Paper, Professor W. Scott Poole said, “In my class today, we are reading a section of a book that talks about the pro-Nazi ‘American First’ movement in the 1930s represented by Charles Lindbergh. I would be remiss as a teacher if I did not point out that this phrase was used in [President Trump’s Inaugural Address] as a kind of mantra. Is this crudely partisan or am I simply stating a historical fact for my students to then discuss and analyze?”
 
Put another way, if fact is couched as opinion, how does one teach without bias, and how does one learn without discrimination? In a deeply divided nation and an era of “alternative facts,” those types of questions are being asked even more frequently by students and professors alike.
 
For Post, the answers go all the way back to 1791, when the First Amendment was ratified. It created a culture that enjoyed and encouraged freedom of speech, and until the 1930s, courts had little to no role in protecting those rights. But as World War I began, judges had to rethink their role as freedom of speech transitioned into an “organized sway of public opinion.”

Post is an expert of constitutional law, First Amendment rights, legal history, and equal protection. Before his time as dean and professor at Yale Law, he taught at the University of California, Berkley School of Law. He has written and edited numerous books, including Citizens Divided: A Constitutional Theory of Campaign Finance Reform. Much of his knowledge has been learned over a career spent on college campuses, where discussions about freedom of speech frequently arise.
 
In his lecture, Post will explore the growth of the First Amendment from the perspective of the law, as well as practical application as an educator, and a student. He looks to examine the challenge between freedom of speech and freedom of expression, and why more than ever, free speech on college campuses should be preserved, allowing schools to exist as the “marketplace of ideas.”

The lecture is free and open to the public.

March 14, 2017 in First Amendment | Permalink | Comments (0)

Monday, March 13, 2017

Is the Historic Role of the Department of Education's Office for Civil Rights in Jeopardy or Simply Undergoing an Expected Shift?

James Murphy's new article in the Atlantic offers a excellent and compelling overview of the Office for Civil Rights.  He details the various people who have headed the Office over the last fifty years and the major policies they have pursued.  He also contrasts the policies of the administrations that have transitioned into and out of the office.  With this backdrop, he suggests that major changes from the new administration are the norm for this Office.  How far those changes will or will not go, however, is not yet clear.

Under DeVos, the guidance on sexual violence will almost certainly be modified, if not withdrawn, as will the transgender guidance law. So, too, might the guidance on discipline, seclusion, and restraint, in particular. Seclusion (removing a student from a classroom and putting her in isolation) and restraint (restricting a student’s movement, often by pinning him to the floor) have been used disproportionately against students with disabilities and African American students. President Trump’s rhetoric about “American carnage” and “bad dudes” suggests he is more likely to embrace the “zero-tolerance” policies.

Justice is slow, childhood is fleeting, and the task of the Department of Education’s Office for Civil Rights is to make those schedules match. Information and transparency are key to attaining that goal. In addition to making its resolutions part of the public record so other school leaders could learn from them and increasing its outreach to schools through technical assistance (through, for example, workshops, flyers, and community meetings), the OCR under Obama made the data it is required to collect about civil rights in primary and secondary schools more easily accessible, comprehensive, and public-facing. Now, state and local governments, schools, community organizations, journalists, and citizens could use them. The OCR has used it biennial CRDC reports to highlight disparities in such areas as discipline, college and career readiness, and absenteeism.

Repeatedly in interviews, civil-rights stakeholders expressed their support of the OCR’s decision to make the CRDC more public-facing and to use it as a tool for shining a light on civil-rights issues. Liz King of the Leadership Conference points to this change as evidence that “leadership matters. From Arne Duncan, we saw a huge premium on data transparency” and a “strong emphasis on CRDC.” They also expressed concern that this could change in the Trump administration. Monique Dixon, the deputy director of policy and senior counsel at the NAACP Legal Defense Fund, praised the Obama administration’s transformation of the CRDC into a mechanism for confirming the scale of civil-rights abuse, but she worries that the new administration could mean a “return to inactivity.”

The staff that created the reports will remain in place at the OCR, but it will be up to Secretary DeVos and her assistant secretary for civil rights whether they will carry out that task. It is easy to imagine the argument from the incoming administration: that the extent of the data collection places an unreasonable burden on schools, and so it needs to be scaled back. When I asked Gerard Robinson, an adviser to Trump's education-policy team, about this possibility, he suggested that the changes made to the CRDC were part of Secretary Duncan’s “data-driven vision,” which he attributed to his having been a superintendent. Robinson asserted that Trump “is also a data guy. Betsy DeVos is also a data person.” No data were provided to back up these claims.

March 13, 2017 in Federal policy | Permalink | Comments (0)

Senate Rescinds Education Regulations, Clearing the Way for Additional State Discretion, Disparate Accountability Schemes, and Vast Inequality

Last week, in two separate votes, the Senate voted to rescind to different aspects of the regulations the Obama administration had passed to implement the Every Student Succeeds Act. On Wednesday, the Senate voted to rescind teacher training and evaluation regulations.  On Thursday, the Senate voted to rescind regulations regarding the identification and assistance of struggling schools.  Previously, I was skeptical that it would come to this, primarily because the Department of Education itself lacked a leader who understood the regulatory structure and could provide an alternate vision moving forward.  Regardless, without a new vision, the regulation rescission opens the way for the Wild Wild West of state implementation plans.

The statutory text of the Every Student Succeeds Act extends an enormous amount of discretion to states.  Absent regulatory guidance, states lack any clear starting point for developing plans to implement the Act's accountability system.  For instance, the Act indicates that states must consider proficiency tests, measures of growth, and graduation rates, but does not indicate how much any of these factors must count in a state's accountability plan, nor does it explain how each one of these measures is to be calculated.  The only directive in the statute is that together these objective factors much count for more than other factors that a state might consider.  Moreover, a state is free to consider almost any other factors its deems appropriate for assessing schools.  The Obama administration's regulations did not eliminate this flexibility, but attempted to provide some guidance.  With the rescission, it is altogether possible that the Department of Education will receive fifty entirely distinct approaches to implementing the Act and assessing school effectiveness.  And the Secretary is going to be obligated to approve them.

If one sees states as engines of educational equality and improvement, this flexibility is a good thing.  But if is history is any guide, this flexibility portends serious problems.  States' historic resistance to desegregation, racial equality, and funding fairness is well-documented.  Some, including the Secretary of Education, assume these are problems of the past, but as I detail in Abandoning the Federal Role in Education, the past is repeating itself, particularly in school funding:

Between 2008 and 2012, nearly every state in the country imposed large budget cuts in education. Some were more than $1000 per pupil and enacted in multiple years. The most obvious results were teacher lay-offs, pay cuts, increases to class size, and a downgrading of teacher quality among new hires. Sometimes less obvious was the fact that these cuts were targeted at or felt most directly in the highest need districts.

These budget cuts cannot simply be written off to the Recession. To the contrary, states regularly enacted cuts in excess of what was necessary and maintained most of them after tax revenues returned to pre-recession levels. States also cut traditional public school budgets at the same time that they were doubling funding for charters and sometimes tripling and quadrupling funding for vouchers. As of 2014, two-thirds of states were still funding education at a lower level than they did in 2008. Some states were a full 20 percent or more below the pre-recession levels. In short, states’ willing and active decisions enact deep cuts to education and maintain them over several years is troubling evidence of what, at best, is ambivalence to equality and adequacy and, at worst, hostility.

In sum, returning massive educational discretion to states through ESSA is inconsistent with the goals of educational equality and adequacy. States have historically served as an impediment to racial equality and meeting the needs of disadvantaged students. The federal government and ESEA have served as an important counterweight. In the absence of that counterweight, history offers no basis to believe states will improve educational opportunities for those in need. Moreover, historical trends aside, this return of power occurs at the same time when states are regressing in their commitment to adequate and equal educational opportunities. In this context, the fact that states have welcomed ESSA should be cause for alarm.

While some extol state and local flexibility as a normative value, it has the potential, in many states, to become synonymous with inequality, just as states' rights once were synonymous with segregation.  Whether anyone intends this result is beside the point.

 

March 13, 2017 in ESEA/NCLB | Permalink | Comments (0)

Friday, March 10, 2017

What Is an "Appropriate" Education for Students with Disabilities?; The Court Will Tell Us Soon by Jonathan D. Glater

 

Just how much must a school district do to support the educational opportunity of a disabled student?  Just enough to enable that student to get something, anything, out of the education provided?  Or enough to enable that student to thrive, to excel?

The question has confronted courts for years, as parents of disabled children have demanded that school districts do more to provide their children a “free appropriate public education.”  But the meaning of this phrase, typically abbreviated as “FAPE,” has eluded precise definition.  When the Supreme Court addressed the question, in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), a majority concluded that

[A] “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's [individualized education program – more on that below]. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.

The Court’s language suggests that any benefit is sufficient to satisfy the requirement that schools provide FAPE; Justice Rehnquist, who wrote the majority opinion, took a very literal and formal approach to the language of the law to reach this Court’s conclusion.

Congress imposed the FAPE mandate in the Education for all Handicapped Children Act of 1975, Public Law 94-142, subsequently re-enacted as the Individuals with Disabilities Education Act (“IDEA”).  The meaning of FAPE is before the Court again this year.

The plaintiff in Endrew F. v. Douglas County School District RE 1 was diagnosed at age two with autism and attention deficit/hyperactivity disorder (“ADHD”).  As a result of these conditions, he “struggles with the ability to communicate personal needs, emotions and initiations [sic], and does not engage or interact with others in social routines or play.”  Endrew F. v. Douglas County School District RE 1, 2014 WL 4548439, *1. 

During his fourth grade year, his parents removed him from his public school in Douglas County, Colo., and placed him in a private school specializing in education of children with autism.  His parents sued, claiming that the school district in prior years had failed to provide the boy with a FAPE and demanding that the district reimburse them for the cost of attending the private school.

An administrative law judge ruled against Endrew F.’s parents, finding that he received a FAPE, and so concluded that his family was not entitled to reimbursement of expenses.  The trial court judge, who reviewed Endrew F.’s progress in public school before he switched, concluded that Endrew F. had received some educational benefit under the individualized education program (“IEP”), the kind of plan called for under IDEA.  The district had developed Endrew F.’s IEP in an effort to comply with the FAPE mandate. 

A panel of the Tenth Circuit Court of Appeals affirmed the district court, and the Supreme Court granted certiorari.  The precise question that the case presents to the Supreme Court, which heard oral argument in January, is this: 

What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.?

The deeper issue is the meaning of equality.  A demand for equal treatment is not satisfied by providing light for the seeing and the blind student alike. 

IDEA seeks to “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living,” 20 U.S.C. §1400(d)(1)(A).  But how are we to know that a given level of support has leveled the playing field for a disabled student?

Answering will only grow more difficult as we recognize students’ incredible diversity; students’ ability to take advantage of educational offerings lies along a spectrum.  So the assumption that a one type of education serves nearly all will become one type serves some, and then, one type serves a few.  Whether schools’ offerings evolve in response will likely be a political question rather than a doctrinal one.

Still, depending on how broadly the Court rules, the decision in Endrew F. could have far-reaching consequences, imposing clearer obligations on school districts to support disabled students or putting another hurdle in the way of parents seeking the best for their children.  By June we will know whether a majority of the justices prefer the limited and formalistic interpretation of the majority in Rowley or a more idealistic interpretation that may impose greater costs on schools and would afford appropriate benefits to students.

March 10, 2017 in Special Education | Permalink | Comments (0)