Friday, February 12, 2016
Kansas Supreme Court Distinguishes Itself by Once Again Declaring the State's Funding System Unconstitutional
Yesterday, the Kansas Supreme Court in Gannon v. Kansas once again struck down the state's school funding practices. The Kansas Supreme Court has declared the state's various permutations of a school funding formulas unconstitutional so many times in the past five or six years that I am not even going to attempt to count them up here. It suffices to say that the Kansas Supreme Court has held strong in the face of a recalcitrant legislature and outright hostile government, even during the darkest hours of the recession. The legislative branch, however, dismayed by orders to comply with the constitution, has gone so far as to threaten the judiciary itself, indicating that it would reduce its budget and change the appointment process for judges. Many, including the Education Law Center and the New York Times, saw those as direct attempts to scare the Supreme Court away from school funding issues and to threaten the most basic principles of separation of powers. The legislature's gamble, moreover, stood a good chance of success. School funding historians remember all to well the removal by popular vote of supreme court justices in Alabama and Ohio after they ruled in favor of plaintiffs in their respective states.
Surely, the Kansas Supreme Court knows these and other stories and did not take its own legislature's threat as idle. That is what makes this decision so uniquely important, not just to Kansas, but to the future of school finance. The Kansas Supreme Court's willingness to stand up, time and time again, for the constitution under such extreme circumstances may only be matched by the New Jersey Supreme Court, which for more than three decades has called its legislature to action. Yet, Kansas Supreme Court may be even more courageous, as New Jersey's politics are far more favorable. In a few weeks, I will be posting a law review article that digs deeper into the troubling national trends in school finance litigation over the past decade. For now, an excerpt from the Kansas Supreme Court is in order:
Under the facts of the case, the district court panel unnecessarily joined certain state officials in their official and personal capacities under K.S.A. 2015 Supp. 60- 219(a)(1)(A) because complete relief can be accorded among the existing parties in the state officials' absence. 2. It is axiomatic that on remand for further proceedings after a decision by an appellate court, the district court must proceed in accordance with the appellate court mandate. The district court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces, and it has no authority to consider matters outside the mandate. 3. To determine compliance with the equity requirement in Article 6, the education article of the Kansas Constitution, Kansas courts do not require adherence to precise 2 standards of equality. Instead, school districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort. 4. When it is apparent from the record the district court was aware of the proper legal test to be applied, an appellate court presumes the district court applied the proper test. 5. Under the facts of this case, the district court panel properly applied the equity test adopted in Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014). 6. Under the facts of this case, the district court panel correctly held the State has not carried its burden to show it has cured capital outlay's unconstitutional inequities that were affirmed to exist in Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014). 7. Under the facts of this case, the district court panel correctly held the State has not carried its burden to show it has cured supplemental general state aid's unconstitutional inequities that were affirmed to exist in Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014). 8. The Kansas Constitution receives its force from the express will of the people and serves as the supreme and paramount law of the state. 3 9. Through Article 6 of their constitution, the people of Kansas expressly assigned duties to the legislature that both empower and obligate it to make suitable provision for finance of the educational interests of the state. Under this article, the legislature must perform its duties in compliance with the requirements the people have established. 10. Determining whether an act of the legislature is invalid under the people's constitution is solely the duty of the judiciary. The judiciary is not at liberty to surrender, ignore, or waive this sworn duty. 11. The judiciary has the power to order remedies to enforce its holdings.
Thursday, February 11, 2016
Report: Thousands of Wisconsin Students Continue to Be Placed In Seclusion Or Restraints Despite 2012 Ban on Such Practices
Disability Rights Wisconsin (DRW), along with two other community organizations, reports that seclusion and restraints continue to be used in Wisconsin’s public schools, despite the passage of a law in 2012 intended to reduce such measures. The report, called Seclusion & Restraint in Wisconsin Public School Districts 2013-2014: Miles to Go, "details how families continue to report instances in which children, even those as young as five, are being secluded and restrained repeatedly, sometimes daily," according to DRW. Eighty percent of the 3,585 Wisconsin students who were restrained or secluded were students with disabilities. Overall, Wisconsin's school districts reported 20,131 incidents of seclusion and restraint in the 2013/14 school year.
The Southern Education Foundation released this announcement earlier this week, which may be of interest to law students and recent graduates.
As 2016 picks up steam, the Southern Education Foundation (SEF) is preparing for a progressive and productive year. We will continue to work across three program areas critical to advancing equity and excellence in education and improving the quality of life for each and every child in the South: promoting early learning opportunities, advancing public education and improving college access and completion. This year's efforts are slated to include research, policy analysis, convening opportunities, and sharing this vital work across multiple communication platforms. These endeavors will support, engage, and amplify stakeholders' efforts in achieving justice across the education pipeline.
RACIAL EQUITY FELLOWSHIP
We are particularly excited to announce the launch of our Racial Equity Fellowship, a significant five-year leadership development initiative supported by Atlantic Philanthropies. It will focus on building the capacity of education leaders to carry a racial equity lens forward into local policy and practice.
Wednesday, February 10, 2016
The Network for Public Education (NPE) has published a report called Valuing Public Education: 50 State Report Card. From the introduction:
The Report Card looks at whether a state's current policies and laws---in six key areas---make public schools stronger or undermine them. This approach stands in opposition to reports released by conservative political organizations like the American Legislative Exchange Council (ALEC), which generally applaud states for privatizing public education.
The Report Card measures the policies of each State and the District of Columbia on:
- School Finance
- Spending Taxpayer Resources Wisely
- Professionalization of Teaching
- No High Stakes Testing
- Resistance to Privatization
- Student Chance of Success
The school finance portion of the report relies on information in "Is School Funding Fair? A National Report Card," by Bruce Baker, David Sciarra, and Danielle Farrie.
Amy Stuart Wells, Lauren Fox, and Diana Cordova-Cobo have released a new report, How Racially Diverse Schools and Classrooms Can Benefit All Students, through The Century Foundation. Their introduction states:
A growing number of parents, university officials, and employers want our elementary and secondary schools to better prepare students for our increasingly racially and ethnically diverse society and the global economy. But for reasons we cannot explain, the demands of this large segment of Americans have yet to resonate with most of our federal, state, or local policymakers. Instead, over the past forty years, these policy makers have completely ignored issues of racial segregation while focusing almost exclusively on high-stakes accountability, even as our schools have become increasingly segregated and unequal.
This report argues that, as our K–12 student population becomes more racially and ethnically diverse, the time is right for our political leaders to pay more attention to the evidence, intuition, and common sense that supports the importance of racially and ethnically diverse educational settings to prepare the next generation. It highlights in particular the large body of research that demonstrates the importanteducational benefits—cognitive, social, and emotional—for all students who interact with classmates from different backgrounds, cultures, and orientations to the world. This research legitimizes the intuition of millions of Americans who recognize that, as the nation becomes more racially and ethnically complex, our schools should reflect that diversity and tap into the benefits of these more diverse schools to better educate all our students for the twenty-first century.
The advocates of racially integrated schools understand that much of the recent racial tension and unrest in this nation—from Ferguson to Baltimore to Staten Island—may well have been avoided if more children had attended schools that taught them to address implicit biases related to racial, ethnic, and cultural differences. This report supports this argument beyond any reasonable doubt.
In the forward to the report, Richard Kahlenberg emphasizes how timely and important the report is to moving forward an integration agenda:
Today, however, school integration—using new, more legally and politically palatable approaches—is getting a second look as an educational reform strategy.
For one thing, policymakers and scholars across the political spectrum are beginning to realize that ignoring the social science research on the negative effects of concentrated school poverty is not working to close large achievement gaps between races and economic groups. Diane Ravitch and Michelle Rhee—who represent opposite ends of our polarized debates over education reform—have both recently advocated new measures to promote school integration to raise the achievement of disadvantaged students.
What can give integration real political momentum, however, are not the documented benefits to low-income students, but the emerging recognition that middle- and upper-class students benefit in diverse classrooms.
Kahlenberg is not just blowing smoke. On Monday, Edweek reported that Secretary of Education, John King, and President Obama and proposing that Congress allocate new funding to help schools increase integration. Alyson Klein writes:
While scholars have studied the racial “achievement gap” for several decades, the mechanisms that produce this gap remain unclear. In this article, we propose that school discipline is a crucial, but under-examined, factor in achievement differences by race. Using a large hierarchical and longitudinal data set comprised of student and school records, we examine the impact of student suspension rates on racial differences in reading and math achievement. This analysis—the first of its kind—reveals that school suspensions account for approximately one-fifth of black-white differences in school performance. The findings suggest that exclusionary school punishment hinders academic growth and contributes to racial disparities in achievement. We conclude by discussing the implications for racial inequality in education.
Tuesday, February 9, 2016
Nancy Chi Cantalupo (Barry, Dwayne O. Andreas School of Law) has posted her essay, For the Title IX Civil Rights Movement: Congratulations and Cautions (January 22, 2016), Yale Law Journal Forum, Forthcoming on SSRN here: From the abstract:
The Yale Law Journal's Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
This push to criminalize Title IX is evident in three groups of recent state and federal legislative proposals, including efforts
(1) to import criminal due process requirements into campus disciplinary and grievance proceedings,
(2) to mandate that school officials refer all reports of sexual violence, including through the school's Title IX system, to law enforcement, and
(3) to require colleges and universities to adopt "affirmative consent" or so-called "yes means yes" policies. The first two proposals conflict with and dangerously undermine Title IX's equality mandate, but the effect of the third is more equivocal. This Essay considers closely each one of these criminalization efforts and briefly propose two methods of retaining the benefits of affirmative consent policies while minimizing the damage they could do to Title IX rights.
Middle School Boy Told to Take Off "Elsa" Dress on Spirit Day, Raising Free Speech and Sex Discrimination Issues
According to local news outlet, Ethan Chase Middle School in Menifee in South California held a spirit day last week and students were encouraged to wear Disney costumes. One boy, Austin Lacey, dressed up as Elsa from the movie "Frozen." Apparently, he was a big hit with his friends and several asked to have their picture taken with him. The school principal, however, told him to take the costume off. According to Austin's mom, the principal felt that the costume was inappropriate for boys. Whether the principal entirely disputes that claim or believes he had the authority to make Austin change in any event is a little unclear. The superintendent released a statement in support of the principal, indicating that: "This action was taken in accordance with district policies. At no time was there an indication that the student was expressing any particular message. The Principal's action was based upon the need to stop a general disruption to the school environment."
The statement sounds as though it came straight out of the First Amendment playbook for school officials: the action was not "viewpoint based" and was intended to prevent a "substantial disruption," which Tinker v. De Moines, 393 U.S. 503 (
Here, if Austin had worn the costume on some random day, the district's action would easily stand up to scrutiny because it likely would be disruptive. The fact that Austin wore it on a spirit day makes the response far more questionable. Spirit day itself causes some level of disruption--disruption which the school has affirmative made the decision to tolerate it believing that it serves some great value. In that context, it would seem that the school would need to show that Austin's dress caused some disruption/excitement above and beyond what was already occurring. Otherwise, it would appear that he was being singled out.
Monday, February 8, 2016
Celebrating the Brave Citizens of South Carolina Who Fought for Justice and Equality through the Briggs v. Elliott Litigation
On February 17, 2016, the historic Dock Street Theatre in Charleson will run a production of the play The Seat of Justice, which chronicles the story of Briggs v. Elliot, the South Carolina case that was consolidated as part of Brown v. Board of Education. This play will also count toward continuing legal education and feature a panel discussion led by SC Supreme Court Chief Justice Costa Pleicones and featuring US District Judge Richard Gergel and Circuit Court Judge Clifton Newman. The professional production features actors from New York and around the country.
For Information and to Reserve Your Seats, Contact Brian Porter, Director of Administration (843) 647-7373, firstname.lastname@example.org.
Louisiana to Drop Lawsuit Against U.S. Department of Education over Common Core, But Major Issues Remain over Secretarial Authority
Last week, Louisiana Governor John Bel Edwards indicated that he intends to end the state's legal challenges against the U.S. Department of Education regarding Common Core education standards. Former Governor Bobby Jindal had brought the original suit in 2014, arguing that the Department had unconstitutionally coerced states to adopt Common Core standards and tests through the Race to the Top Program. He later included the conditions the Department imposed on states to receive a No Child Left Behind waiver in his claims. This past fall, the federal district court rejected those claims, reasoning that there was no evidence to indicate that Louisiana had been coerced to adopt Common Core standards or tests. In full disclosure, I was a witness for the state in that case.
The immediate stakes of that litigation dropped precipitously when Congress reauthorized the Elementary and Secondary Education Act a little over a month ago in the form of the Every Student Succeeds Act. The practical result was to void the NCLB waivers. The Act also specifically prohibited the Secretary from imposing similar requirements on states in the future. As to curriculum and academic standards, states no longer even have to submit them to the Department and the Department cannot deny state applications based on the content of their standards. In numerous different provisions, the Act severely restricts the Secretary from doing much of anything that is not specifically enumerated by the statute. In other words, the new Act gives Louisiana much of what it had sought through the litigation. Given this reality, Governor Edwards indicated it was better to spend the money on education than litigation.
Friday, February 5, 2016
The United Nations’ Working Group of Experts on People of African Descent has released a statement regarding its recent visit to the United States. The visit heavily concentrated on the criminal justice system's treatment of African Americans, but it raised concerns regarding education several times. For instance, it wrote:
- The persistent gap in almost all the human development indicators, such as life expectancy, income and wealth, level of education and even food security, among African Americans and the rest of the US population, reflects the level of structural discrimination that creates de facto barriers for people of African descent to fully exercise their human rights.
- The cumulative impact of racially-motivated discrimination faced by African Americans in the enjoyment of their right to education, health, housing and employment, among other economic, social, cultural and environmental rights, has had serious consequences for their overall well-being. Racial discrimination continues to be systemic and rooted in an economic model that denies development to the poorest African American communities. More than ten million (26%) of African Americans remain mired in poverty and almost half of them (12%) live in what is known as “deep poverty”. The Working Group is particularly concerned about the fact that 48% of the households headed by African American women live under the poverty line.
- The zip code can determine to some extent the future development of young African Americans. People from Black poor neighbourhoods are more likely to face lower education achievements, more exposure to violence and crime, a tense interaction with the police, less employment opportunities, environmental degradation and low life expectancy rates as well.
OCR Finds Melrose Schools Failed to Adequately Respond to Teacher's Statement That a Student Should Not Act Like He Is on the "Plantation"
The Office for Civil Rights has completed its investigation of racial harassment in Melrose Public Schools in Massachusetts and entered into a settlement agreement with the school system. The investigation arose out of allegations that a teacher at Melrose Veterans Memorial Middle School had reprimanded an African American student and made a reference to "the plantation" or needing to "come back to the plantation." When meeting with the administration later, the teacher indicated she could not remember exactly what she said, but it was something to the effect of "don't talk to me like you're on a plantation." Of special note is also the fact that the student was attending Melrose as part of Boston's METCO program. The program allows students from the city to attend suburban schools, with the purpose being to increase diversity.
OCR investigated the matter and confirmed the incident. It found that the administration did not document the incident, but the did arrange a meeting in which the teacher would apologize to the student. In the meeting, the teacher "apologized for any misunderstanding that may have upset the Student, and she also told the Student that he should not feel subservient to her or demean himself, and described the Student's 'coming [teacher]' comment as akin to a remark that a 'slave' would make to a 'master.'"
Thursday, February 4, 2016
Boston Latin School is in the news again. Some of you may know it for its prestige, others for its tendency--good or bad--to be at the center of issues of race and education. The school's consideration of race in the 1990s led to the famed decision in Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998). The court offered this background:
Wednesday, February 3, 2016
In Transgender Student Rights Case, Two of Three Judges Have Interesting Track Records on Related Issues; Sparks Will Surely Fly
The Fourth Circuit Court of Appeals heard oral arguments last week in G. G. v. Gloucester County School Board. Gloucester involves Gavin Grimm's claim that the school board's refusal to permit transgender students to use the restrooms consistent with their gender violates Title IX, which prohibits sex discrimination. As a case of first impression, it has garnered national attention and been discussed various times on this blog. The case also includes high profile attorneys, with the ACLU representing Mr. Grimm, six states filing amici briefs in support of Gloucester, and the U.S. Department of Justice filing a brief in support of Grimm.
Last week offered the first glimpse of the three judges who will decide the case. This panel will surely produce fireworks behind closed doors and potentially in their final opinion. The three judge panel includes judges Paul Niemeyer, Henry Floyd, and Andre Davis. Niemeyer and Floyd are the most interesting. Niemeyer wrote the 2-1 opinion by the Court of Appeals upholding Virginia Military Institute's refusal to admit women. The Supreme Court, of course, reversed, holding that the Virginia's exclusion of women failed intermediate scrutiny. More recently, Niemeyer dissented in a 2-1 opinion that struck down Virginia's ban on same-sex marriage. He reasoned that Virginia could stick to its traditional definition of marriage without violating anyone's fundamental rights. He added that he was concerned with the ramifications of forcing Virginia to recognize a broader definition of marriage. He wrote:
Tuesday, February 2, 2016
Students of color are underrepresented in gifted programs relative to White students, but the reasons for this underrepresention are poorly understood. We investigate the predictors of gifted assignment using nationally representative, longitudinal data on elementary students. We document that even among students with high standardized test scores, Black students are less likely to be assigned to gifted services in both math and reading, a pattern that persists when controlling for other background factors, such as health and socioeconomic status, and characteristics of classrooms and schools. We then investigate the role of teacher discretion, leveraging research from political science suggesting that clients of government services from traditionally underrepresented groups benefit from diversity in the providers of those services, including teachers. Even after conditioning on test scores and other factors, Black students indeed are referred to gifted programs, particularly in reading, at significantly lower rates when taught by non-Black teachers, a concerning result given the relatively low incidence of assignment to own-race teachers among Black students.
The Second Circuit issued a major decision on January 20 in T.K. v. New York City Department of Education, No. 14–3078–CV, 2016 WL 229842, --- F.3d --- (2d Cir. Jan. 20, 2016). The court ruled that the city school system denied a child free, appropriate public education (FAPE) by refusing to discuss severe bullying that she experienced at school, when her parents raised the issue in meetings in connection with her individualized education program (IEP). The child made academic progress and performed at close to grade level in a public school class that had both a special education and a general education teacher. But staff who assisted in the instruction testified that the child’s classmates constantly bullied her. She was tripped, had her toes stomped on, was pinched hard enough to cause bruising, and was routinely called ugly, stupid, and fat. She came home crying almost on a daily basis. The teachers did not intervene, nor did they punish the harassers. Writing for a unanimous court, Judge Lohier reasoned that the refusal to discuss the bullying and address it in the education program was a procedural violation of the Individuals with Disabilities Education Act (IDEA) that denied the child the right to appropriate education. Relying on a concession by the defendant, the court assumed without deciding that bullying is a proper consideration when it substantially restricts child’s learning opportunities. The court stated, “Here, Plaintiffs were reasonably concerned that bullying severely restricted L.K.'s educational opportunities, and that concern powerfully informed their decisions about her education. By refusing to discuss that bullying during the development of the IEP, the Department significantly impeded Plaintiffs' ability to assess the adequacy of the IEP and denied L.K. a FAPE.” (at *5). The court affirmed an award of tuition reimbursement for the private placement the parents made for the child when they did not succeed in having the public school address their concerns.
Monday, February 1, 2016
Parents of a Long Island teenager indicate that they will sue Valley Stream School District for failing to prevent an attack on their son--an attack that they say was racially motivated. Their son was apparently hospitalized and needed 32 stitches to close a wound on his head. Their attorney said that the student suffered "a concussion, a skull fracture that required an emergency craniotomy; which means they basically had to relieve the pressure and the pain that was building up on top of his brain.” To bolster their claim, they also point out that that their son was attacked two years earlier while at school.
News outlets report that the aggressor plead guilty to a misdemeanor charge in the most recent assault. While the severe injuries and the misdemeanor charge certainly lend sympathy to the parents' claims, these types of lawsuits are notoriously hard to win absent special circumstances. Those circumstances may be present here and the public just is not aware of them, but typically a school is under no duty to "prevent injuries" to students. To sustain a torts claim in most states, a plaintiff would need to show that the district failed to reasonably supervise its students and the bar for reasonable supervision is generally low. Another option may be to raise a Title VI claim regarding a racially hostile environment. This claim also has its drawbacks. The parents would need to show that the district had failed to reasonably respond to racial discrimination of which it had been put on notice. As long as the district took some sort of progressive response to dealing with the problem, the fact that the student was later more seriously injured would not mean the district had acted unreasonably.
In short, until we see an actual complaint, the case is hard to predict, but plaintiffs will certainly need to show more than just an injury to sustain a claim. Legal merits aside, however, the story is troubling.
On Friday, the Texas Supreme Court held that a group of high school cheerleaders can proceed in their challenge to Kountze Independent School District's former prohibition on displaying banners at football games with Bible verse on them. The case has gotten national attention and generated several judicial opinions.
After prohibiting the banners and being sued, the District later changed its policy to provide that the District is “not required to prohibit messages on school banners . . . that display fleeting expressions of community sentiment solely because the source or origin of such message is religious,” but “retains the right to restrict the content of school banners.” This policy change allowed the cheerleaders to once again display their banners. The district had hoped this would end the matter, but the cheerleaders persisted in their legal challenge.
The most recent decision from the Texas Supreme Court simply holds that this change in policy does not moot the case and the plaintiffs can proceed in seeking an injunction. This seems like a pretty obvious result, rather than a substantive victory for the plaintiffs. The above stated policy clearly leaves the district enormous discretion to prohibit the banners should they see fit. Thus, the plaintiffs still have a basis to seek an injunction.
The case is now on its was back to the Court of Appeals to deal with the merits of whether the district violated the students' free speech rights. The merits are particularly fascinating. See my earlier post on the issues here.
Get the full opinion here.