Tuesday, November 21, 2017
This past Friday was on of the saddest days in a long time for education rights in the state of South Carolina. In a short five-paragraph order, the state supreme court dismissed Abbeville v. State, a school adequacy and funding case first filed in the late 1990s. The case includes two prior victories before the Supreme Court--one in 1999 allowing the case to proceed to trial and another in 2014 order the state to remedy the inadequacies demonstrated in the case. Those two highlights, however, belie a curious history of judicial enforcement, with the court proceeding at a snail's pace in most instances, but all the while proceeding nonetheless. As I describe in Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education--an analysis of national trends in school litigation--
The [South Carolina Supreme Court’s] 2014 decision ordering the state to act came more than two decades after plaintiffs first filed their case. This delay, in large part, was due to the court’s refusal to decide the case. The court took more than two years to decide whether plaintiffs could proceed to trial in 1999. When the case returned to the court in 2008, the court waited nearly six years to issue an opinion on the merits of a potential remedy—so long that at one point it scheduled rehearing to update itself on the case.
At the very least, the case represents a court reluctant to enforce education rights until well after the recession had passed. If justice delayed is justice denied, the decision is surely a loss. Moreover, the long delayed final decision was ambiguous in its mandate, indicating that “the Defendants and the Plaintiff Districts must identify the problems facing students in the Plaintiff Districts, and can solve those problems through cooperatively designing a strategy to address critical concerns and cure the constitutional deficiency . . . .” The court then allowed almost another full year to pass before issuing a timetable for the parties to devise a remedy, which it inexplicably withdrew just weeks later. In September 2016, notwithstanding its original demand that the state “design a strategy to address critical concerns and cure the constitutional deficiency evident in this case,” the court in September 2016 found the state had complied with its order by simply issued an order indicating that the legislature’s efforts to studying educational deficiencies in the state and approving recent minor increases in resources were sufficient to comply with the court’s expectations.
Friday's opinion may ironically be the most definitive in the long running case. In a 3-2 opinion, the Court wrote that "[f]or the following reasons, we vacate the Court's continuing jurisdiction over this matter." The very next sentence explained: "we are convinced Abbeville II was wrongly decided as violative of separation of powers." This, particularly as the first explanation, is troubling as it suggests the case is dictated by a change in court composition rather than reasoned analysis under the controlling law of the cast. The following paragraph offers additional factual justifications, finding that the state had acted in good faith to comply with the Court's prior order.
Monday, November 20, 2017
Under state law, the answer is apparently yes in some places. A Time.com story reports that "Iowa is one of only five states that allow seclusion or restraints when there’s no physical threat, according to the ACLU. Twenty-nine states have banned the use of seclusion or restraints to discipline or punish a child." Apparently, Iowa City Schools had made more than an infrequent practice of it. It had sent "students to seclusion rooms for having a bad attitude, using foul language or being out of instructional control, among other reasons. The [state education] department reviewed more than 450 incidents involving more than 60 students were sent to these rooms over a one-year period starting in December 2015." The district now says it will discontinue the practice.
A handful of seclusion room stories have broken in other schools over the past year or two and districts have similarly been quick to change their practices once the stories came to light. Part of the pressure comes from the fact that many of the students subjected to this treatment have or many have disabilities, which brings federal law and limits into play.
Unfortunately, a corrective response is rarely quick or forthcoming at all for regular education students subjected to harsh school discipline. Writing of school exclusion (rather than seclusion) in Ending Zero Tolerance, I wrote:
Over the past two decades, school discipline has grown increasingly harsh and impersonal. Many schools and states are willing to exclude—temporarily and permanently—students for almost any type of behavior. Even when students’ behavior poses no real danger to school and involves the type of immature mischief parents expect of normally developing kids, schools dig in their heels and insist that they must banish students. Local communities and policy advocates have pushed back and managed some important successes in recent years, but the seriousness and scope of the problem demands a systematic long-term check.
I argue that courts are the check of last resort. "[C]ourts must reengage on issues of discipline and enforce students’ rights. Courts cannot simply abandon students to school boards and the political process. Too often, both schools and politicians have shown themselves to be irrational and willing to sacrifice students in the expedient pursuit of other goals."
But even when courts engage, some schools cannot imagine another way of handling kids. Zero tolerance, seclusion rooms, corporal punishment and the like are examples of schools, at best, throwing their hands up in despair or, at worst, believing courts are the niavely meddling.
The Iowa City School plans moving forward do not inspire confidence. "It’s unclear what method or practice will be used in place of the rooms. [Superintendent] Murley said in his email that 'the district recognizes the role of restraint and seclusion in providing a free and appropriate public education for all students in a least restrictive environment within our schools and is seeking ways to improve our practices.'"
Part of the answer lies in understanding that student misbehavior is not just misbehavior. It is often a warning cry for help in some other area of the child's life or education. As I write here:
Normal human development can explain a lot of misbehavior. Younger children, for instance, lack the capacity to always behave; no matter the rules, elementary school students occasionally talk out of turn, push each other and disrupt class. Older students sometimes push boundaries in other, more serious, ways. Making and learning from these mistakes is simply part of growing up.
Disabilities, academic struggles, poverty, homelessness and family crises can also affect behavior. For students in these situations, misbehavior is often a sign of unmet needs – not a character flaw.
Until school officials begin to understand misbehavior for what it is, our discipline problems will continue to plague us and stories of this sort shock us.
Wednesday, November 15, 2017
Can Tennessee Schools Replace Teachers with Computers? Not If the Constitution and Facts Have Anything to Say About It
The Tennessee Court of Appeals has taken up a fascinating issue regarding students' access to teachers. The problem could only arise in the brave new world of computers. In short, a student at a Tennessee high school had fallen behind in algebra and end-of-grade assessments were looming. The school pulled the student out of the class and placed the student in a computer based credit recovery program. Apparently, this occurred with several other students. The student claims that the school did this to help increase its standardized test scores.
The disputed issue in the case seems to be a narrower one: do students have the right to access a teacher? The plaintiff says yes. The school's attorney says no.
Melissa Roberge, a Metro lawyer, argued Tuesday that a student's right to education does not extend to the education's components, such as how classes are delivered or the specific classes themselves.
"Miss Jones does not have a property interest in the most appropriate education as determined by her," she argued. "Stated differently, there's no property interest in remaining in a specific class or being entitled to any particular test."
Roberge noted that Jones was not excluded from Metro Schools nor removed from all of her classes.
@RachelAnne Levy asked for my thoughts on Twitter. First, the case is fascinating on any number of practical and policy levels. Manipulating who shows up for tests is nothing new, but doing it this way and arguing that it is completely above the board, normal, and legitimate is different. Second, using recovery programs as a supplement to regular instruction or as an option for students who have no others is reasonable. Using it as a first option is really bad policy (unless the program is demonstrated to be of exceptional quality and help to the student) and creates obvious perverse incentives.
As to the law, the case is not nearly as interesting because I think the answer is easy. Unless they have some very specific evidence of which I am unaware, schools cannot just do this simply because no statute exist to specifically prohibit it.
While the district is correct that students typically do not have a property right in any particular class, this line of defense misses much larger and more important legal precedent and rights.
The Supreme Court in Tennessee Small School Systems v. McWherter, 851 SW2d 139 (1993), held that students have a constitutional right to "substantially equal educational opportunities." The underlying facts in the case involved disparities in teacher salaries across the state. Consistent with the overwhelming social science consensus, the court indicated that "teachers, obviously, are the most important component of any education plan or system." Because salary disparities resulted in students having unequal access to teachers, the Court ordered the state on more than one occasion to remedy is system of funding teacher salaries across the state.
So while state statutes may not create any specific property interest in access to a teacher, the state constitution creates a right to equal educational opportunities, which teachers are the most important part of. To be clear, however, underlying the discussion of teachers in McWherter and, now this new case, is educational opportunity itself. The basic right is to educational opportunity. Violations of that right occur when students are deprived of the resources and learning necessary to achieve that opportunity. This leads to the factual question of whether the offerings in one class or one school are substantially equal to others across the state.
Just because one district has higher credentialed teachers than another does not automatically mean the students' rights have been violated. The same is true of minor variations in class size. The same line of reasoning could theoretically extend to computer based learning versus human based teaching. If both were "substantial equal," a student would not necessarily have a claim.
But that is a preposterous theory when one considers the real world. I am not aware of any research (although I allow I may have missed it) that suggests that computers are equal to or can replace human instruction. If any research is on point, it would seem to be the research and practical push back against several technologies that undermine learning--particularly the most valuable types of learning that occur through personal interaction, motivation, and feedback. I don't doubt that artificial intelligence may drastically close this gap at some point, but for now it is hard to argue that computer based learning standing alone is equivalent to teacher based instruction. This is even more so for the struggling student who needs to be engaged.
Where does this leave us? The question of computer based learning is new territory and should not be dismissed out of hand. At some point, it may play an incredibly large and legitimate role. Thus, the law should not cut it off. But that is all speculation and remaining open to future possibilities. But in the here and now, we know how important teachers are and we know that students have a right to substantially equal educational opportunities in Tennessee. Thus, schools should carry a very heavy evidentiary burden with any sort of experimentation that would deprive students of substantially equal access to the key competent of education.
Tuesday, November 14, 2017
The Washington Post recently reported on a mass campus lock down at Worth County High School in Georgia. Over the course of four hours,
40 uniformed officers — the entire staff of the Worth County Sheriff’s Office — fanned through the school in Sylvester, ordering students against the walls of classrooms and hallways, demanding the students hand over their cellphones.
All 900 students were searched, part of a drug sweep ordered by Sheriff Jeff Hobby, according to court documents.
He did not have a warrant. He had a “target list” of 12 suspected drug users. Only three of the names were in school that day, April 14.
When all was said and done, no drugs were found. And when controversy later arose, the attorney for the Sheriff's Department argued that the searches were legal because they were carried out while school administrators were present. "In a statement released on April 18, Hobby elaborated that in 'the weeks leading up to April 14, the Sheriff’s Office received information and complaints from the citizens of Worth County regarding illegal drugs at the high school. The Sheriff contacted the Superintendent of the Worth County School District and the Principal of the high school to inform them of the situation and the Principal and the Sheriff agreed on the day of the pat down.'”
As crazy as that sounds, it was not a bad lob, as courts have vacillated on whether searches require reasonable suspicion or probably cause, depending on schools' involvement with these searches. Regardless, school officials have since pushed back on the idea that they were participants in the searches. And now a grand jury has indicted the sheriff and two deputies for their role in the searches.
Courts have recently begun recognizing limits on police and school practices in cases such as these, but such outcomes are never a given. Victims lose these cases more often than the win them. Yet, this mass search offers another confirmation in a long line of examples of my basic thesis in Ending Zero Tolerance: Courts must reengage on issues of school discipline and the school-to-prison pipeline. Courts have stood on the sideline for the past four decades. In their absence, students have been deprived of their last line of defense--the one that is supposed to stand strong and politics waiver--their constitutional rights.
Friday, November 3, 2017
According to Edweek, Congress's proposed tax plan would allow families to pull up to $10,000 a year out of their 529 college savings account and spend it on K-12 private school tuition (as well as other educational expenses). The proposal appears to be more an act of desperation than rationality in pursuing public support for private choice in K-12 education. The Trump administration's earlier proposal to take federal funding for public schools and drive it toward vouchers and charters never got any serious traction. If anything, DeVos's support for privatizing education made that proposal less popular with the public.
This new tax provision looks like a pointless attempt to save face or give a very small tax break to a subset of wealthy families. By design, College savings accounts/529s are a mechanism for saving money in advance to pay for something else later that might otherwise be affordable. The assumption is that families might not be able to afford college later, particularly since college costs are incurred during a balloon period of just a few years. Not even a regular savings plan is enough for most families. The 529 tries to close some of the college cost gap by allowing families to save over the course of their kids' entire pre-college lifetimes, invest that money, grow that money, and be exempt from taxes on that growth. Most states sweeten that pot a little bit by giving families a small deduction for their initial contributions, which typically caps out at a tax savings of a few hundred dollars each year.
In comparison to the shielded growth, this state tax benefit is small. Consider a family that contributed $10,000 a year for 18 years to a 529. Depending on the state, the family would save around $5000 to $10,000 in total taxes total over the collective period. No small sum, but spread across that many years, no life changer either--at least for families who can afford to contribute $10,000 a year.
That $180,000 investment, however, with compound growth, should rise to a value of somewhere between $320,000 to $500,000 (assuming a growth rate of 5 to 9 percent). That growth is tax-exempt.
So if 529s are such a good deal for college, why do they signal desperation in the context of k-12. First, for many people, using 529s for K-12 would be equivalent to robbing Peter to pay Paul. If a family is already contributing as much as it can to a 529, this new measure is not going to expand their financial capacity. Instead, it allows them to spend college money on K-12. That flexibility may be meaningful for some families, but on the averages makes very little sense, which leads to point two.
Second, if 529s are funding K-12 education, families are necessarily getting less financial benefit out of the 529s. Families will be putting money in one year (or one month) just to take it out the very next. The amount of growth they see will be small at best and there will be no compounded growth (the real benefit of the 529s). The only families that this new plan would likely benefit would be those who can contribute $20,000 a year to a 529 just as easily as they can contribute $10,000. And unless states raise their deduction caps, this additional investment in 529s would not produce a change in state tax liability.
These high wealth families do not sound like those the Administration has been talking so much about when it discusses choice--those who are trapped in failing public schools and need help exploring other options. So, at worst, this is just another measure to hand out tax breaks to those who need to the least, but done so under the guise of some noble object. At best, this is a face saving attempt to get any type of victory the Administration can. This just so happens to be one of the few school choice policies that can plausibly get through Congress.
Thursday, November 2, 2017
Politico just published an in-depth story on Betsy Devos, which includes several quotes from a candid interview with her. The part getting the most coverage is the possibility that she may step down soon. Thomas Toch, the director of think tank in DC, said “in Washington education circles, the conversation is already about the post-DeVos landscape, because the assumption is she won’t stay long. And for my money, I don’t think it would be a bad thing if she left. I think she’s been probably one of the most ineffective people to ever hold the job.”
Given my commentary/speculation on the Department, it was a fascinating read. But before I get carried away, I admit that a typical flaw in commentators is that they always focus on the things they get right, but ignore their errors. So I will offer a little of both, which will admittedly bring my power of projection down to something akin to the value of a coin flip. With that caveat, let's start with the reasons why I said DeVos never made sense as Secretary to begin with.
Before DeVos was confirmed as Secretary, I began writing a series of posts querying why she would even accept the job. In my first post, I wrote "It is not clear whether Betsy DeVos really knows what her job will be as Secretary of Education." If she did, she would have ran full-speed away from it.
Once she actually landed the job, I wrote "Even if Betsy DeVos understood her job, she could not have taken over the Department of Education at a worse time. The busiest and most complex process that any Secretary of Education will likely see over the next several years is beginning. States are set to submit their brand new implementation plans for the Every Student Succeeds Act."
The other big problem was that DeVos would not have anyone to help her close that knowledge gap. "These [ESSA] plans include lots of moving parts and policy choices within a much larger regulatory structure. The people who understand those parts just exited the Department of Education building." Competent people were not lining up to take their place.
The new Politico story, by Tim Alberta, would seem to confirm most of these projections. DeVos basically admits to not knowing what she was getting into, although she does not assign herself blame:
I think I was undercoached. The transition group was very circumspect about how much information they gave me about then-current policy and … it was in their view a balance between being prepared for a confirmation hearing and not having well-formed opinions on what should or shouldn’t change, so as not to get caught in a confirmation hearing making commitments that then I wouldn’t want to or be able to keep. And in hindsight, I wish I had a whole lot more information.
And then she figured out the complexity of the Department a little too late, which again is an admission that she did not know the job and does not like what she found. Alberta writes:
When I ask what has surprised her most about the job, DeVos does not hesitate. “The bureaucracy is much more formidable and difficult than I had anticipated—and I expected it to be difficult,” she says. “It’s even worse. And you know, in talking to a lot of the great career staff, it’s like everybody nods their heads when you talk about this … yet it seems like everyone is powerless to do anything about it.”
And then, no one came to help her:
She has yet to fill senior staff positions, and it’s widely known that numerous prominent Republicans having turned down offers. She has struggled to acclimate to the proverbial big ship that turns slowly. Perhaps most significant, she failed to persuade the committees of jurisdiction in Congress to approve her and the department’s budget request, which would have slashed funding to other initiatives in the name of expanding DeVos’ pet cause, school choice. It amounted to an embarrassing repudiation of a president and a secretary in their first year, when there is traditionally the most political capital to spend—especially considering Republicans control both the House and Senate.
Does all of this mean that she is about to quit and I was correct that she would not want the actual job she was accepting? DC insiders say yes, although Alberta is not sure. He writes, "instead of planning her exit strategy, DeVos appears to be hunkering down and mapping out where she can maximize her impact." That impact, however, is relatively small and amounts to "a cheerleading campaign" for "rethinking school, innovation, creativity, entrepreneurial activity around education."
Again, I pointed out earlier that this was the most she could hope for as Secretary. Since then, I have also admitted that, in places like Arizona and Texas, her cheerleading may have emboldened some states to take action of their own volition. Whether this is enough for DeVos to stay on, time will only tell.
Okay, so what did I get wrong? I never really anticipated that instead of proactive steps, the Department might just focus on committing itself to doing less. After all, how could it do more on choice while doing less? Wouldn't it be a logically inconsistent view of the federal role in education to push states to do more for charters and vouchers while at the same time asking less of them on special education, discriminatory discipline, and integration?
With a change in administrations, there is always a change in the way regulations are enforced. For instance, that Rod Paige and Margaret Spellings did not actually enforce the Department's disparate impact regulations, as best as I can tell. Conversely, the Obama Administration did enforce disparate impact in certain important contexts. I did not expect the Trump administration to continue the Obama administration's approach, but I assumed the hard break would stop at relatively high level policies such as disparate impact and would only amount to under-enforcement, not changing the rules of the game itself. I was wrong and I should have seen it coming.
Trump issued an Executive Order for DeVos to scour the Department's regulations for signs of federal overreach. I said it was a fool's errand. The Every Student Succeeds Act was an explicit under-reach, so what would DeVos find? Not much, according to me. I incorrectly assumed that the only deregulation that would come from the search for federal overreach would be with actual federal overreaches. Oh, how naïve the professors are.
DeVos has used the Executive Order to target basic special education guidance, competitive grant preferences for diversity, and higher education regulation, to name just a few. At least my co-blogger, Jonathan Glater, was catching the higher education angle.
By deregulating, she is also establishing the predicate for shrinking the Department, at least in her own mind. Again, Alberta gets the story straight from DeVos:
DeVos tells me she will recommend a “significantly lighter footprint.” This hints at what some career employees fear: that the new secretary wants to eliminate entire offices within the department, which would both lighten her bureaucratic burden and free up resources for lawmakers to potentially redirect toward her ultimate objective: expanding school choice.
That second point about choice, however, leads me to wonder whether DeVos still does not understand the job of Secretary. She thinks that now that she has figured out a few things, she will make lemonade out of lemons she has found. The problem is that she thinks she is holding a bunch of over-sized lemons when she is really holding grapefuit.
There is a reason why you don't see much grapefruit on the shelf. There is also a reason why you see loads of orange juice. When Congress passed the Every Student Succeeds Act, it made sure that states got to keep all the oranges. DeVos cannot do anything about that.
I give up on projecting what this means for her tenure on the job.
Tuesday, October 31, 2017
The National Coalition on School Diversity issued this statement:
DeVos Eliminates School Diversity Priorities in New Competitive Grant Program Priorities
On October 13th, the Department of Education published new Proposed Supplemental Priorities and Definitions for Discretionary Grant Programs.
In these new proposed priorities, Secretary DeVos continues to weaken federal support for diverse schools, eliminating supplemental priorities for programs that work to increase racial and socioeconomic diversity in schools while emphasizing school choice. During the Obama Administration, NCSD advocacy played a key role in the promulgation of supplemental priorities for school diversity in 2014, and socioeconomic diversity in 2016.
Comments on the proposed priorities are due November 13th.
NCSD is currently formulating a strong response to the Secretary's latest attack on programmatic support for diverse, equitable schools. We encourage our membership and readers to contact NCSD staff at firstname.lastname@example.org to join our efforts.
New York Appellate Court Says Evidence of Education Deprivations Is There; Trial Court Just Needs to Examine It
A New York appellate court in Maisto v. State has reversed the lower court decision in the "Small Cities" school funding litigation. Litigants had put on extensive evidence of various deprivations in education resources and their connection to student outcomes. In 2016, however, the trial court dismissed the case with rather summary logic. The trial court reasoned that because current funding levels exceeded those previously proposed and sanctioned by the courts in 2006, there was no constitutional violation. As the new appellate decision emphasizes, that logic is extremely misguided. The real question is whether students in the plaintiff districts are receiving a sound basic education, which requires an assessment of inputs and outputs, which the trial court did not do.
This distinction between the validity of the old remedy and the current provision of a sound basic education is key and confirms a curious issue I raise in my casebook, Education Law: Equality, Fairness, and Reform. In the 2006 Campaign for Fiscal Equity decision, New York's highest court had evaluated the differing assessments of the cost of providing an adequate education in New York. A commission had proposed one number, the governor another, and the legislature another. The court ultimately deferred to the state's proposed number, even though it was lower than others, concluding that the state's number was not unreasonable. Readers are often struck by the fact that after all the prior tough decisions in CFE, the court ends the case on a reasonableness standard. In the notes following the case, I try to lead readers to the logic of the reasonableness standard. I ask: "Do the plaintiffs have the right to return to the court if these estimates later prove to be insufficient, or is it enough that the state acted in good faith or within reason?" The logical answer has to be the later.
The reasonable approach in CFE is akin to the approach of school desegregation: the state gets the first shot at a remedy and is permitted to move forward with reasonable remedies, even if the court of experts might prefer others. But this has no bearing at all on plaintiffs ability to bring future cases. Moreover, if those so called "reasonable" remedies do not work, plaintiffs have the right to return to court and establish that fact.
In desegregation, failed prior remedies also provide a basis for less deference toward state remedies in future remedies. In fact, the state's past "good faith" compliance with desegregation is an explicit factor in court's authority to find new violations and enjoin them. The new curious question will be the extent to which New York courts should afford less deference to the state's estimates of an adequate education.
For now, it is worth reviewing what the current court held. It provided a nice overview of the relevant precedent and standards and clear directions to the trial court moving forward:
The Education Article declares that “[t]he [L]egislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (N.Y. Const, art XI, § 1). To that end, the Court of Appeals has held that the Education Article “ ‘requires [defendant] to offer all children the opportunity of a sound basic education. Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury’. The sound basic education guaranteed by the [NY] Constitution requires [defendant] to provide students with the ‘opportunity for a meaningful high school education, one which prepares them to function productively as civic participants' and ‘compete for jobs that enable them to support themselves'.
To establish a violation of the Education Article, a plaintiff must “establish a causal link between the present funding system and any proven failure to provide a sound basic education to [the affected] school children”. This burden may be met by proof regarding the “ ‘inputs' children receive—teaching, facilities and instrumentalities of learning—and their resulting ‘outputs,’ such as test results and graduation and dropout rates”, and, where inputs and outputs are both deficient, a causal link between the two, which may be established by showing that increased funding would provide better teachers, facilities and instrumentalities of learning that improve student performance. With respect to causation, the Court of Appeals specifically rejected the argument that poor socioeconomic conditions excuse poor outputs or results.
. . . .
In response to the [Campaign for Fiscal Equity] cases, Foundation Aid was enacted to increase school aid funding on a statewide basis by approximately $5 .5 billion annually when fully implemented over a four-year period. Foundation Aid was distributed as originally planned in the 2007–2008 and 2008–2009 budget years; however, aid to education was reduced in the 2009–2010 budget in response to the “largest budget gap ever faced by the State,” which was caused by the global financial crisis. Specifically, Foundation Aid was frozen at then-existing levels and the phase-in period was extended from four years to seven years. In addition, the 2010–2011 state budget introduced a “[g]ap [e]limination [a]djustment” (hereinafter GEA), which reduced formula-based school aid by $1.4 billion in that budget year. The GEA was continued in the 2011–2012 through 2015–2016 budgets, but was not continued in the 2016–2017 or 2017–2018 budgets.
Although a claim based solely upon the allegation that Foundation Aid was reduced is insufficient to state a cause of action for violation of the Education Article, plaintiffs did more than simply put forth that conclusory assertion. Plaintiffs' causes of action—grounded in the assertion that the actual funding levels provided following the CFE cases were insufficient to provide the affected students with a sound basic education—were based on detailed, district-specific allegations of insufficient inputs, deficient outputs and causation. More to the point, plaintiffs' proof at trial, which Supreme Court acknowledged established a prima facie case that defendant failed to fulfill its constitutional obligation, was more than sufficient to require analysis under the CFE II framework on a district-by-district basis. Indeed, by noting that changes in educational funding provided by defendant must still “deliver on its obligation to ensure that schoolchildren are provided the opportunity for a sound basic education”, the court acknowledged that any reductions in funding must pass constitutional muster, which is an inquiry that can be answered only through CFE II analysis.
The next key paragraph in the decision provided:
Thus, Supreme Court erred by proceeding directly to the “remedy” stage set forth in CFE III and affording deference to the Legislature without first applying the framework established in CFE II to determine whether plaintiffs had established a constitutional violation. No deference is due the Legislature when applying the CFE II factors to determine whether there is a violation in the first instance.
On that basis, the Court of Appeals remanding the case to the trial court and was clear that the plaintiffs had already presented extensive evidence on the relevant factual issues to be addressed. Thus, the task is merely for the trial court to apply the law. The Court of Appeals closed with a final directive:
For any district where the court finds that inputs were insufficient, it must determine—on a district-by-district basis—whether plaintiffs have established causation by showing that increased funding can provide inputs that yield better student performance.
Monday, October 30, 2017
This is the subject of my forthcoming paper in Cornell Law Review. In Preferencing Educational Choice: The Constitutional Limits, I make two primary arguments. The first that some states' statutory programs preference choice in relation to public education and that doing so in logically inconsistent with their constitutional duties. The second argument is that the proper frame of analysis for examining the effects of charters and vouchers is at the district level, not the state level. At the district level, advocates can identify effects that likely do amount to violations of state's duty to deliver adequate or equal educational opportunities. The abstract offers this summary:
Rapidly expanding charter and voucher programs are establishing a new education paradigm in which access to traditional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trajectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to public education embedded in all fifty state constitutions.
Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past arguments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they endanger statewide education systems. Unsurprisingly, litigation and scholarship based on a flawed premise have thus far failed to slow the growth of charter and voucher programs. Without a reframed theory, several recently filed lawsuits are likely to suffer the same fate.
This Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies two limitations that state constitutional rights to education place on choice policy. The first limitation is that states cannot preference private choice programs over public education. This conclusion flows from the fact that most state constitutions mandate public education as a first-order right for their citizens. Thus, while states may establish choice programs, they cannot systematically advantage choice programs over public education. This Article demonstrates that some states have crossed this line.
The second limitation that state constitutions place on choice programs is that their practical effect cannot impede educational opportunities in public schools. Education clauses in state constitutions obligate the state to provide adequate and equitable public schools. Any state policy that deprives students of access to those opportunities is therefore unconstitutional. Often-overlooked district level data reveals that choice programs are reducing public education funding, stratifying opportunity, and intensifying segregation in large urban centers. Each of these effects represents a distinct constitutional violation.
Download the full article here.
Thursday, October 19, 2017
New Federal Court Decision Should Be a Warning to Schools and Police Departments That Arrest Students
Last week, in S.R., v. Kenton County Sheriff's Office, 2017 WL 4545231 (E.D. Ky. Oct. 11, 2017), a U.S. District Court in Kentucky issued a decision that should drastically change schools' and resource officers' thinking in regard to handcuffing students. Students often lose these types of cases and when they win, the facts are so unique or egregious that other schools and officers might distinguish them or write them off. This is not to suggest that the harms the students suffered in Kenton County were minimal. They were handcuffed in painful ways. The kids also represent sympathetic plaintiffs because they were particularly small.
But in other respects, the cases were more run of the mill and suggest a court drawing a line in favor of many students. These were not entirely "innocent" students. The students had engaged in protracted violent behavior--albeit not all that dangerous. And the school officials did not jump straight to handcuffing the kids. They, as well as the officers, had attempted several deescalation techniques and even let some behavior go, so to speak. And the cases did not involve pepper spray, head locks, brute force, or other forms of generally outrageous conduct by officers. In short, they involved handcuffing students whom the school and officers had not found any clear way of calming.
The fact that the court was willing to intervene here, thus, suggests the general problem with handcuffing kids, particularly small ones. The court emphasized that officers simply are not trained to engage in this type of behavior with young children and no one recommends it. Kentucky itself recognizes as much.
Kentucky Board of Education regulations provide that "school personnel may not use physical restraints as 'punishment or discipline,' to 'force compliance or to retaliate,' as 'a routine school safety measure,' or as 'convenience for staff.'” 704 KAR 7:160 § 3(1). The regulation also prohibits school personnel from using "'mechanical restraints' on students at any time." The preamble to the regulation, however, states that the regulation "does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.”
Yet, the details in these sorts of cases will always matter.
The case involves a few different incidents. The first involved an eight-year old boy who was approximately 4 feet tall and weighed 54 pounds. He "had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD)," but he "attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability." He had engaged in some hitting and kicking incidents toward his teachers. The school's deescalation efforts included holding him in a cradle restraint and locking him in an office. When that did not work, they called the Sheriff's office. By the time Officer Sumner arrived, the student was on the phone talking to his mother. When the officer engaged him, however, things escalated and the student took an elbow swing at the officer.
Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.
Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.”
S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs.
The second student, L.G, was a nine-year old girl who weighed about 56 pounds. "L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. The plan did not address any behavioral issues or problems." She also engaging in some hitting and kicking toward adults, as well as blowing snot and attempting to bit. The school attempted deescalation techniques with her as well, including placing her in a calm room. On one occasion when Officer Sumner arrived, he
decided to place her in handcuffs. Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition.
Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. Mills put his arm around L.G.'s shoulders to comfort her while Sumner removed the handcuffs. Mills hugged L.G. and she hugged him back. Mills sat and talked with L.G. in the ambulance on the way to Children's Hospital. Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.'s mother arrived. L.G. was discharged later that morning without any physical injury.
On another occasion, L.G. would not go to her assigned location in the school and ran away from a school employee.
Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria.
When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees. She then pulled up his pants leg and tried to scratch him. L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold.
Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back.
Assistant Superintendent Wilkerson contacted L.G.'s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.
Plaintiffs later filed suit against the Sheriff and Officer Sumner, alleging "(1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff's Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff's Office only)."
The district court focused on the excessive force and found:
the severity of the “crime” committed by S.R. and L.G. – assault – weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”
The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.'s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.
This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.
Nonetheless, the age and stature of these children is highly relevant to this analysis.
Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.'s torso, the video belies that assertion. Where a witness's version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact.
Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method – which, it is undisputed, was the same method by which L.G. was cuffed – was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.
Plaintiff's handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method.
Even defendants' handcuffing expert, William A. Payne – who has been conducting handcuffing training for law enforcement for over 20 years –testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.
. . .
Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner's manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.
On the question of qualified immunity, however, the court was far more forgiving: "plaintiffs have not shown that it was “clearly established” in 2014 that Sumner's handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity." The court also granted the defendants' motion for summary judgment on the ADA claims.
Plaintiffs most significant victory was against the county. The court found that Sheriff "Korzenborn has not implemented any changes in the training of his SROs since these incidents. Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner's unlawful handcuffing of S.R. and L.J."
Wednesday, October 18, 2017
Missouri Schools Suspend Black Students More Than Four Times As Often As Whites, While Disparities Curiously Drop with Other Forms of Punishment
The ACLU of Missouri has released a new report on school discipline and the school to prison pipeline there. The report finds:
The racial discrepancy in school discipline isn’t limited to teens. Our youngest and most vulnerable students in preschool and elementary grades are subject to excessive and harsh punishment. Nationwide, Black preschoolers are 3.6 times more likely to be suspended one or more times than White preschool students. Missouri has the eighth highest expulsion rate for preschoolers. From the very start of their education, the youngest students of color already face an uphill battle to stay in school.
The reality that specific students are punished more frequently and with greater severity is deeply troubling. A recent report from the U.S. Department of Education’s Office for Civil Rights found during the 2013-2014 school year, Black students across the nation are nearly four times as likely to be suspended than White students. During the same school year in Missouri, Black students were 4.5 times more likely to be suspended than White students. In Missouri, students with documented learning or behavioral disabilities under the federal Individuals with Disabilities Education Act (IDEA) were given out-of-school suspensions more than three times as often as non-IDEA students.
Despite making up only 14 percent of the student population in Missouri, Black, non-IDEA students represented about 17 percent of all referrals to law enforcement and 18 percent of all school-related arrests in the 2013-2014 school year.
In-school referrals to law enforcement are not trivial. A 2015 report from the Missouri Juvenile and Family Division found referrals from schools represent 21 percent of all law
referrals in Missouri for youth. Black children account for 26 percent of all referral types in the state. We also found an alarming increase of students in Missouri expelled from school. Between 2011 and 2014, the expulsion rate in Missouri doubled. This resulted in a greater number of expulsions for Black students, who faced expulsion at a higher rate than White students.
Another great concern is Missouri’s continued use of corporal punishment in school. Across the nation, few states continue to use corporal punishment, yet, in Missouri, Black students are almost twice as likely to be hit in school as their White peers.
This disparity between enrollment rates and discipline rates is not reflected among White students, a population in which discipline rates are consistently below enrollment rates.
Disproportionate discipline has both physical and mental consequences for young people. Beyond missed classroom time, when students, particularly younger students, are singled out for discipline, they are taught that they are “bad.” Their peers and educators internalize the same message. Studies show that by the time students move from pre-K to kindergarten, children can identify which of their peers exhibit “problem behaviors.” This perception is consistently shared between peers and teachers, creating a label for specific students that follows them throughout their academic careers.
What I found most interesting, however, may have been the report's data on in-school suspensions. This has traditionally been the most unreliably and difficult data to get. The report found that the in-school suspension rate for African American students received special education services was 26%. For other African Americans it was nearly 19%. Interestingly, however, the racial disparity between African Americans and whites was smaller in regard to in-school suspension and expulsions than it was in regard to suspensions. This raises a few interesting possibilities: 1) that schools are more likely to skip past in-school suspension for African Americans and just suspended them and 2) so as to avoid high expulsion rates, schools may be just handing out more suspensions. Both possibilities could be wrong, but something appears to be occurring with suspensions that is not occurring with other forms of discipline.
The disparity in regard to corporal punishment is also very low, but it is used so infrequently that conclusions may be less reliable there.
Tuesday, October 17, 2017
Michael Heise's forthcoming article in Columbia Law Review, From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism, is available on SSRN. He offers this abstract:
When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a federalism standpoint, the Every Student Succeeds Act may have reset education federalism boundaries to favor states, far exceeding their position prior to 2001.
While federal elementary and secondary education reform efforts since 2001 may intrigue legal scholars, a focus on educational federalism risks obscuring an even more fundamental development in educational policymaking power: its migration from governments to families, from regulation to markets. Amid a multidecade squabble between federal and state lawmakers over education policy authority, efforts to harness individual autonomy and market forces in the service of increasing children’s educational opportunity and equity have grown. Persistent demands for and increased availability of school voucher programs, charter schools, tax credits programs, and home schooling demonstrate families’ desire for greater agency over decisions about their children’s education. Parents’ calls for greater control over critical decisions concerning their children’s education and schooling options may eclipse state and federal lawmakers’ legislative squabbles over educational federalism.
Michael and I agree on a lot in this article. The title of my article, Abandoning the Federal Role in Education: The Every Student Succeeds Act, largely speaks for itself. That article traces the federal role in education from the 1960s until today, arguing that the Every Student Succeeds Act entirely reverses the expansion of the federal role in education, which had been building for decades.
Heise's article, however, goes beyond mine in certain respects, focusing on a factor absent from my analysis: the role of individual autonomy. In other words, from Heise's perspective, it is not just a fight between the feds and the states. It is a fight over family decisionmaking as well. Thus, the return of power to states is not just to serve the interests of state, but that of families.
Interestingly, more recent events add new wrinkles that may require updating of both Heise and my thoughts. Recent surveys and reports indicate that some family autonomy policies are unpopular, at least to the majority. The shift is abrupt in some instances. A new survey shows that charter support has plummeted by 12 percent in the last year. Other reports indicate strong opposition to the current administration's push for more vouchers and charters.
Disaggregating these shifts is difficult. It could be that the public dislikes the messenger but not necessarily the message. Or it may be that the public supports the expansion of choice, but not when it is perceived as being at the expense of traditional public education. The latter, however, presents an implementation challenge. To what extent can private choice expand without harming public education? Minimal to moderate expansions may pose little risk, but a tipping point likely exists, as I detail in a forthcoming article titled, Preferencing Private Choice.
Thursday, October 12, 2017
Zachary Liscow has posted an incredibly informative and complex analysis of the interplay between school finance litigation victories and legislative action. While analysis in this general area is not new, his approach is much deeper. Liscow attempts to measure not just whether school finance decisions affect per pupil expenditures, but how they affect tax policy, the differential burdens of that tax policy, and the redistribution of governmental resources. These inquiries are really aimed at identifying macro-level trends, whereby school finance litigation potentially produces a redistribution of resources or, more bluntly, an overall reduction in inequality. Do legislatures increases taxes on the wealthy while at the same time driving more state resources to the needy through schools?
In his abstract, he writes:
I find that the court orders’ distributional impacts do stick. The education spending is financed by tax increases that do not target the largest beneficiaries of the increased education spending, the poor and those with children. Thus, since the main beneficiaries of the school spending do not pay a disproportionate share of the costs, advocates for school finance reform are effective at transferring resources to poor families. The results suggest that welfare analysis of these legal rules should take into account not only efficiency but also distribution, in a departure from traditional economic analysis of legal rules.
In his more nuanced discussion later, he indicates that states do not typically redistribute existing resources in other areas toward education, they just raise taxes. Those tax increases are pretty evenly felt across all households. He conclude with the following:
This paper’s results are difficult to square with this underlying political economy assumption that that legislatures, even in the long-run, optimize the distribution of taxes and spending. This paper presents evidence of “zombie legislatures”: courts dramatically change the distribution of spending, and the legislature does nothing to offset those acts. Instead, the legislatures drift. Determining how much legislatures optimally should respond is beyond the scope of this paper, but the fact that there is no evidence of any offset at all suggests at least the possibility that a different background assumption about whether legislatures achieve the socially optimal distribution of taxes and spending may be appropriate. Of course, the paper says little about whether taxes and spending redistribute too much or too little and thus little about what that appropriate assumption should be. An important subject of future work is determining the impact of legislative drift on deviations from the optimal distribution of taxes and spending. And, more generally, the implications for policy design without a background assumption of an optimal distribution of taxes and spending are an important subject for future work.
Get the full paper here.
Monday, October 9, 2017
A new investigative report by Heather Vogell suggests that alternative charter schools are enrolling as many students as possible, collecting checks for students who may not even be there, and providing less in return than other public schools. By alternative charter school, she refers to charter schools that enroll students who are at risk of dropping out of school. Vogell focuses most heavily on those alternative schools run by for-profit management companies.
Vogell's findings are troubling any way you cut them. In isolation, the results in these alternative charter schools are so objectively low that they look wrong on their face. In comparison to other public schools serving students at risk of dropping out, the charter school results still look problematic, lagging well behind traditional public schools.
The first problem appears to be inflated enrollment numbers. Speaking of an alternative charter high school in Ohio, Vogell writes:
Only three of the more than 170 students on Capital’s rolls attended class the required five hours that day, records obtained by ProPublica show. Almost two-thirds of the school’s students never showed up; others left early. Nearly a third of the roster failed to attend class all week. . . [But] the no-shows didn’t hurt the school’s revenue stream. Capital billed and received payment from the state for teaching the equivalent of 171 students full time in May.
If these charters have the corner on any market, it is enrolling no-shows. They are dominating in Ohio. "After pulling in students long enough to tap public money, many of the schools fail to keep them in class. In Ohio in 2016, for-profit companies ran nearly one-third of the state’s 94 charter schools for dropouts — but three-fourths of the 20 with the highest absenteeism rates."
Both the inputs and outputs are lower in these schools. On the inputs, they provide substantially less access to counselors--potentially the most important resource for students struggling with issues both in and outside of school. Only 58% of the alternative school students attend a school with a counselor. Class size are larger and their rate of inexperienced teachers is also more than twice the rate of other schools.
With poor attendance rates and lower inputs, achievement in these schools is predictably low. "About 40 percent of the schools failed to meet state standards in 2015-2016. While Capital High passed overall, meeting state testing and other goals, its students didn’t make satisfactory academic progress. At 92 percent of Ohio’s dropout recovery schools in 2015, the graduation rate was below 50 percent. Capital’s was 23 percent. In 18 schools, including Capital, students skipped at least once every two days."
Two plausible explanations come to me. First, states have essentially given up on these students and would rather enroll them in a charter than a traditional public school because the costs are lower. While I don't doubt some have given up on these kids, I am not sure the cost-saving theory fits with these particular charter schools. The state could just let them drop out of traditional public school and not be tasked with paying anyone for them. The second explanation is that with some legislators favorable toward privatizing education in general and another group of legislators asleep at the wheel, no one is really noticing. I am sure I am overlooking other explanations, but I find it had to believe that this is what states are paying these schools for.
For those looking for more detailed data on particular alternative charter schools, the story includes a comprehensive list and info-graphic here.
Monday, October 2, 2017
Last year, the Education Law Center and the ACLU of Michigan filed an important special education case on behalf of 30,000 students against the Flint School System and the Michigan Department of Education. They alleged that the defendants had placed students at risk of developing disabilities by exposing them to elevated levels of lead in the water. Rather than wait years for the problems to manifest themselves or ignore those that already have, plaintiffs argued that the school system should be identifying affected students and providing services. They argue the failure to do so violates the IDEA and other disability laws.
The defendants moved to dismiss the complaint under the standard defense in special education class actions: the students did not exhaust their administrative remedies. Plaintiffs concede they did not exhaust remedies, but argued the rule did not apply in this case. They just won on that point.
Last week, the district court wrote:
The two principle exceptions to this requirement of exhaustion of administrative remedies are where the administrative procedures “would be futile or inadequate to protect the plaintiff’s rights,” or where “plaintiffs were not given full notice of their procedural rights under the IDEA.” Id. at 917. Courts have applied the futile or inadequate exceptions to exhaustion when plaintiffs seek relief that is not otherwise available through the administrative process, i.e. allegations of “structural or systemic failure.” Jackie S. v. Connelly, 442 F. Supp. 2d 503, 518 (S.D. Ohio 2006) (citations omitted).
Speaking of the Flint students, the court wrote:
Plaintiffs are seeking systemic relief in the form of injunctive relief on behalf of a large class. The challenge is to the very framework and processes that the school district undertakes for every child, rather than individuals contesting their IEPs. The Court agrees with the logic in J.S. that challenges such as these are incapable of correction in the individual administrative exhaustion procedure, and instead, are of a systemic nature that is properly addressed by the Court.
. . . .
The complaint alleges four systemic violations: failure to develop and implement child find procedures; failure to provide a free appropriate public education that confers a meaningful educational benefit in the least restrictive environment; failure to protect students’ procedural due process protections in the disciplinary process; and discrimination on the basis of disability with accompanying denial of access to educational services.
. . . .
It is clear from Plaintiffs’ complaint that the remedy they are seeking is a systemic change in the very way that Defendants identify, place, and educate all children in the Flint School District. The relief they are seeking is plainly not individual and could not be remedied by individual exhaustion since Plaintiffs are challenging the very efficacy of the system employed within the Flint District. Further, the representative Plaintiffs have emphatically illustrated that the alleged violations are widespread across the Flint schools and repetitive in nature. Thus, these systemic violations cannot be adequately exhausted through the administrative procedure and the systemic violation exception applies.
The case marks a major victory for students in Flint, as exhaustion defenses often derail special education claims, but it also marks another important precedent for allowing these types of cases to proceed.
Friday, September 29, 2017
Pennsylvania Supreme Court Makes Momentous Leap Forward for School Funding: Does It Also Signal a New Trend?
On three prior occasions, the Pennsylvania Supreme Court has been asked to consider the possibility that school funding and other inequities in the state violate the state constitutional provision that the General Assembly "provide for the maintenance and support of a thorough and efficient system of public education.” Each time the Supreme Court has said no. The net result for students is one of the most arcane school funding systems in the nation. For a long time, the state did not even have a school funding formula, instead funding schools randomly, inequitably, and inadequately.
Yesterday, in William Penn School District v. Pennsylvania, the court entered a new era and took the position of most other state supreme courts--that it had the authority and duty to determine whether "the General Assembly imposes a classification whereunder distribution of state funds results in widespread deprivations in economically disadvantaged districts of the resources necessary to attain a constitutionally adequate education." It added: "We cannot avoid our responsibility to monitor the General Assembly’s efforts in service of its mandate and to measure those effects against the constitutional imperative, ensuring that non-constitutional considerations never prevail over that mandate."
As momentous as this step is for the children of Pennsylvania, the logic is over 200 years old. The Pennsylvania constitution sets out a specific legislative duty in education. That basic fact implicates the courts as well.
It is settled beyond peradventure that constitutional promises must be kept. Since Marbury v. Madison, 5 U.S. 137 (1803), it has been well-established that the separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements. That same separation sometimes demands that courts leave matters exclusively to the political branches. Nonetheless, “[t]he idea that any legislature . . . can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions.” Smyth v. Ames, 169 U.S. 466, 527 (1898). Thus, we must be skeptical of calls to abstain from a given constitutional dispute. We hold that this is not a case that requires such abstention.
The decision also serves as an important counterpoint to recent trends among the courts. As I detail in Averting Educational Crises, the Great Recession may have motivated several state supreme courts to give legislatures a pass for the massive education cuts they have imposed over the past decade. There were no direct reversal of prior precedent but a seeming unwillingness to enforce it. This new decision in Pennsylvania, particularly given the negative precedent in the state, may be reason to hope that the troublesome trend of the past decade is nearing a trend. For now, it is too early to project. Regardless, as I emphasize in the article, the ebb and flow of constitutional enforcement is a dangerous game for the judiciary to play--one that will not serve education or the general institutional authority of the courts well in the long run. As I argue here, courts and constitutional enforcement in education are best served by prompting state legislatures to plan for educational crisis--because they will necessarily occur--not by giving states a pass when they do occur.
Thursday, September 28, 2017
The title of this essay is more rhetorical than anything. Laws and courts, not students, shrink or expand free speech rights. Yet, student attitudes about free speech and other constitutional rights certainly have real world impacts and, in some instances, have incidental effects on legal doctrine. A new study by Brookings reveals that college students have a relatively narrow view of free speech rights. Students were asked if the First Amendment protects hate speech and here are their responses:
These opinions are having spillover effects on the policies that universities do and do not adopt. Universities are struggling to balance the interests of free speech against the anti-harassment concerns and student demands that some speakers simply not come to campus.
The Foundation for Individual Rights in Education (FIRE) has made it its business to challenge policies that restrict speech. That business appears to be growing. Two years ago, they filed a lawsuit against my University regarding its policies on free speech zones and the investigation of harassment claims, alleging those policies infringe on free speech rights. Interestingly, that case did not get to the merits. The University changed its policies and the district court dismissed the case as moot. Plaintiffs are now appealing the issue as to whether they are still entitled to an injunction against future actions by the University. This case is not unique. A quick look at FIRE's docket reveals a number of analogous cases have been filed and are pending in several other jurisdictions.
The point of this post is not to analyze the doctrine but to point out students' role in these shifts. This free speech shift reminds me of an article Jason Nance authored a couple of years ago about the increase in suspicionless searches in public schools. His empirical research strongly suggested that schools were regularly violating students' privacy rights.
The Supreme Court defines the scope of students' privacy rights, in part, based upon their reasonable expectations. So what happens when schools violate students' rights so often that they no longer expect privacy? Does that actually shrink their right to privacy? If so, Nance's research is extremely troubling.
In the case of free speech, what happens when students become so unable to countenance opposing points of view that they are actually wounded or harmed by those views? The First Amendment is tougher on this issue than the Fourth, but it warrants consideration because it is true that students have the right to be free from racially, sexually, and other forms of hostile environments. Thus, schools can restrict speech that crosses that line. I strongly defend the existence of that line and am sympathetic toward Universities that enforce it appropriately. Yet, the factual question of when an environment becomes hostile may very well be one that could move based on student attitudes.
Monday, September 25, 2017
Court Rejects Plaintiffs' Bid to Hold Local County Accountable for Its Role in Inadequate and Unequal Education
The North Carolina Court of Appeals affirmed the dismissal of plaintiffs' complaint in Silver v. Halifax County Board of Commissioners. The case involved a claim that the Board's maintenance and operation of three distinct school districts within the county violated students' right to a sound basic education under the state constitution. The claim focused on the fact that the districts were racially identifiable, unequally funded, and qualitative disparate. Moreover, these facts were attributable to local, not state level, decisions.
Plaintiffs argue that as delegates of the state, the local authorities are obligated to provide a constitutionally appropriate education. To the extent their actions deprive plaintiffs of that education, plaintiffs are entitled to relief. The Court of Appeals read precedent far more narrowly, reasoning that prior state supreme court decisions had only directed the state to comply with the constitution. Thus, if plaintiffs have a gripe with the education in Halifax, they should take it up with the state: "the correct avenue for addressing plaintiffs’ concerns in the present case would appear to be through the ongoing litigation in Leandro I and Leandro II [the longstanding school adequacy suit against the state]."
The court, however, seemingly missed two distinctions. The first is causation. While the harms that plaintiffs in Silver suffer may be the same as the harm in Leandro--inadequate education--plaintiffs allege a different cause. To say plaintiffs must nonetheless sue the state is akin to saying that a victim of a car accident cannot sue the driver of the car that hit him because a manufacturing defect may have also existed and superceded the negligence of the driver. There may very well be a superceding defect, but that possibility does not preclude the negligence suit as a prima facie matter. Rather, the case must be litigated to determine the actual causes of the harms.
Second, the court assumes that prior case law placing the constitutional duty on the state means that the duty exclusively rest there. As the dissent in Silver points out, however, those prior decisions did not raise the question of local duties. Thus, there is no reason to infer those prior cases exclude a local duty. Moreover, as I detail in an article on access to middle income peers, some constitutional duties logically flow to local districts. Certain decisions, such as student assignment, are made at the local level and would be impracticable at the state level. The problem is not with state policy, but local implementation. The state may very well be responsible for those local failures. Often it is, but that does not mean this is always the case.
School discipline makes this point even clearer. The state has a constitutional duty to deliver education to students, but it is often the local principal or district that makes the decision to take that education away. Taken to its extreme, the opinion in Silver might suggest that those students should sue the state rather than their district. The reams of lawsuits against local districts reveal they are appropriate defendants.
Wednesday, September 20, 2017
Parents Involved v. Seattle Schools is back in the news again, although for different reasons. This time involves a judicial nominee’s interpretation of the case. Earlier this month, President Trump nominated Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals. Thus far, Senator Franken is exercising his right under traditional senate rules regarding home-state senators to block Stras’ appointment. One of the topics of conversation is Stras’ approach to civil rights issues, including an essay he wrote on Parents Involved v. Seattle Schools.
Parents Involved is the most recent and potentially last decision our Supreme Court will ever decide on school integration. As such, the holding in Parents Involved may be the final door through which all future efforts toward integrated schools must past. It is, in effect, the book end to Brown v. Board of Education. Brown began as a challenge to the intentional segregation of students by race. In Parents Involved, the school districts had not engaged in intentional segregation. Rather, they had more recently taken race into account to try to eliminate school segregation that stemmed from housing patterns. The question was whether they could do so.
Although involving very different factual circumstances, both cases establish basic and wide ranging principles of school integration law. And for that reason, both cases also implicate a struggle over the fundamental vision of equality in schools and attempt to articulate a vision to an audience far broader than the lawyers. To be clear, Parents Involved is no Brown v. Board of Education, but it is no ordinary case either. It requires the careful attention of jurists, education leaders, and communities.
So what exactly did the Court hold? The most popular answer among law students is that the Court held that the voluntary integration plans in the case were unconstitutional. They are correct on that score, but the real question is why they are unconstitutional. Most students assume that the Court refused to find a compelling interest to pursue integration. That is not true. The Court held that the plans were not narrowly tailored.
Five Justices found that the districts had a compelling interest to pursue diversity and integration. If they did not have a compelling interest, there would have been no reason to move to the second question of narrow tailoring.
Justice Kennedy is the swing vote on both points. Justice Kennedy was emphatic that school districts have a compelling interest in pursuing integrated schools, but they were not careful enough in doing so. Four justices agreed with him that schools have justifications for integrating.
Four different justices agree that the school districts’ methods were flawed. All told, five votes support every position that Justice Kennedy took and no more than four votes support any other position on any other issue. In short, there is no way to get around the fact that his opinion represents the holding of the court.
All three Courts of Appeals that have taken up the issue, along with U.S. Departments of Education and Justice, agree that Justice Kennedy’s opinion is controlling.
This uniform judgment, particularly on a case of such importance, is what makes David Stras’ prior essay on Parents Involved curious. He wrote “many in the media and blogosphere are putting way too much emphasis on Justice Kennedy’s separate opinion in these cases.” First, he reasons that there was not “that much distance between the [Chief Justice Robert’s opinion striking down the integration plans] and Justice Kennedy on most of the important issues in this case.” Second, “Justice Kennedy’s opinion is only controlling to the extent that it differs from” certain parts of Roberts’ opinion. He then offers his third and main point: commentators inappropriately “assume the constitutionality of race-conscious alternatives on the basis solely of Justice Kennedy’s separate opinion.” He goes so far as to call this assumption “especially dangerous.”
Stras’ perspective is curious because it overlooks key details in the Court’s opinions and does so with a skepticism of school integration. His point appears to be to minimize the importance of Kennedy’s crucial decision, rather than accept its’ import: racial diversity and integration are compelling interests and states are free to pursue them under a number of different circumstances.
Kennedy’s own words negate Stras’ argument that there is not much distance between the plurality opinion and Kennedy’s. Justice Kennedy indicates that he is perplexed that the plurality would seemingly bar the consideration of race in all contexts and require districts to ignore de facto resegregation in schools. Thus, Kennedy writes the plurality is “too dismissive of the legitimate government interest” school districts have in pursuing integration and he “cannot endorse” the plurality's opinion, which he calls “profoundly mistaken.” He writes that “diversity . . . is a compelling educational goal a school district may pursue,” as is “avoiding racial isolation.” The plurality, in contrast, writes that the only compelling interests are remedying past discrimination and pursuing diversity in higher education. In short, the difference between Kennedy and the plurality could not be further on the key issue of whether a district can pursue voluntary integration.
Stras’s second point, arguing that there was not much controlling analysis in Justice Kennedy’s opinion, is wrong if one carefully reads the case. Stras’ essay may miss nuanced points because he over-interprets the plurality opinion by Chief Justice Roberts (the parts that Kennedy did not join) and under-interprets Justice Kennedy’s opinion.
The plurality opinion is held together by a single precise phrase: “individual racial classifications.” On first read, one might not notice that the plurality uses this phrase, as its opinion is otherwise broad and sweeping. But the reason the plurality uses this phrase is that Justice Kennedy uses that phrase. Justice Kennedy is willing to strike down the desegregation plans in Parents Involved not because they consider race, but because they rely on individual racial classifications. Had they pursued other race conscious means to integrate, Kennedy’s own opinion indicates he likely would not have struck down the plans. He would have agreed with the dissenters and, in doing so, those dissenters would have become the majority with five votes. Thus, the distinction between individual race classification and general race classification is central to the holding and rationale of the case. The entire case turns on Justice Kennedy’s articulation of this line and his judgment that the plans had crossed it.
To be fair, Stras acknowledges that Justice Kennedy’s opinion is controlling in most respects, but that only leads Stras to his third point that following Justice Kennedy’s in all respects is dangerous. Following Justice Kennedy’s opinion might seem dangerous if Stras missed the nuanced distinctions regarding individual racial classifications. This type of error on such an important issue is one that some would argue indicates that Stras is not careful enough to be on the Eighth Circuit.
Or it might be that Stras thinks Justice Kennedy’s opinion is dangerous because Stras simply disagrees, as a matter of substance, with Justice Kennedy and is stretching to read Justice Kennedy’s opinion as narrowly as he can. It is hard to say what drove Stras’ essay, but if it is the latter, those who are generally committed to civil rights are understandably wary of his nomination.
Thursday, September 14, 2017
When State Discretion Turns Against State Superintendents of Education; Another Flaw of the Every Student Succeeds Act
In Abandoning the Federal Role in Education: The Every Student Succeeds Act, I detail the numerous ways in which the Act eliminates federal leadership in education and leaves states to implement almost any sort of accountability system they can dream up. The shift in power is so significant that Act does not, as a practical matter, demand accountable. Instead, it demands the appearance of accountability. This, I argue, allows states to manipulate the system.
The article did not consider the possibility of in-fighting within state bureaucracies. The paper, for the most part, speaks of the "state" as a monolithic unit. It focuses on the worst case scenario in which the legislature, state department of education, and powerful school districts are all in favor of an accountability system that covers up their failures. Not all states, however, will fit this framework. Recent events in Alabama suggest that, once one moves beyond that framework, curious disagreements can happen at the state level.
Edweek reports that
[Michael] Sentance was hired by the [Alabama state] board in August of last year to replace longtime Superintendent Tommy Bice who retired after a years-long battle over the expansion of charter schools and a dispute between the state and local officials over how to rank the state's districts and schools.
. . . .
Sentance quickly ran into political turmoil as he traversed the mostly rural, economically deprived, ethnically diverse and politically conservative state to gather thoughts on what the components of the state's ESSA plan should be. Meanwhile, the state's department began to take over Montgomery Public Schools, one of the largest districts in the state, a process Sentance said would bring stability, autonomy and school choice, but which parents and school officials called unfair.
He sided with district superintendents in a debate over whether the state should keep or get rid of its A-F letter grades of schools' performance.
But in an evaluation sprung on him by the state board last month, district superintendents and board members took issue with his leadership style and policymaking.
"I do not take this situation lightly, and as President of the State Board of Education, I will ask the Board to accept his resignation," Ivey said in a statement. "Over the past two years, Alabama has experienced far too many changes in state government. As with previous changes in leadership positions, we will use the pending resignation of the state superintendent as an opportunity to move forward and begin a new chapter in public education.
The article also indicates that the national average tenure for state superintendents of education is barely two years. As a result, there is no continuity between the development, submission, and implementation of ESSA plans.
The lesson I take from this story is the possibility that the ESSA may have made some state superintendents' jobs a lot harder. Under NCLB, there was far less flexibility. Beneath the surface, a state superintendent was able to game the state's results, but the metrics and methods of the accountability system were set by federal law. Putting aside the question of whether NCLB was a normatively good law, it set clear parameters for state superintendents. They knew what their job was and had legal cover if legislators or other state political actors criticized them.
The ESSA, in contrast, offers states and their superintendents a universe of options. It is almost entirely up to them how they approach school improvement, ranking, accountability, and quality. As a result, there is very little cover for superintendents who might want to do what they think is best for schools and students, but in the process might make the state look "bad." If a state board or state legislature wants to manipulate its accountability system and a state superintendent does not, the superintendent can easily find herself as the odd person out.
If these respects, the ESSA accomplishes two distinct and problematic devolutions of power. First, it cedes power to states, which I demonstrate is highly problematic here. Second, even if state power is not inherently problematic, the ESSA incentivizes power struggles and instability at the state level.
The first was the specific intent of the Act. The second is likely an unintended negative consequence.