Monday, October 20, 2014
The U.S. Department of Education published the final regulations for the Violence Against Women Reauthorization Act of 2013 (VAWA) amendments to the Clery Act today. Below is the Clery Center's summary of college campuses' expanded obligations to report, investigate, and resolve incidents of sexual assault, domestic violence, dating violence, and stalking under the new regulations, which require colleges to:
- agree on the law enforcement agencies that will investigate alleged criminal offenses;
- include statements in campus written policies about sexual assault, domestic violence, dating violence, and stalking;
- provide prevention and awareness programs for incoming students and new employees and provide written information to victims;
- allow victims and accused persons to have an advisor, including an attorney, accompany them to meetings;
- establish procedures to follow when an incident of sexual assault, domestic violence, dating violence, or stalking is reported; and
- set procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking;
- disclose in their annual statistics the total number of crimes that were "unfounded”;
- include gender identity and national origin as two new categories of bias for a determination of a hate crime; and
- use updated sex offenses definitions that more closely align with the FBI’s updated definitions and terminology.
In the past months, I have commented on school finance litigation in New York, Colorado, New Mexico, Kansas, Texas, Connecticut, New Jersey, and Mississippi; reports decrying the state of funding in Georgia and Wisconsin; and steps by the Alabama Department of Education to propose constitutional changes to education funding in the state. For those wondering whether suing the state is just what education advocates do or if there is some underlying fundamental problem, a new report by the Center on Budget and Policy Priorities offers a simple explanation (although the report is about data, not school finance litigation). The title of the report, Most States Still Funding Schools Less Than Before the Recession, belies the conclusion. The analysis found that:
- At least 30 states are providing less funding per student for the 2014-15 school year than they did before the recession hit. Fourteen of these states have cut per-student funding by more than 10 percent. (These figures, like all the comparisons in this paper, are in inflation-adjusted dollars and focus on the primary form of state aid to local schools.)
- Most states are providing more funding per student in the new school year than they did a year ago, but funding has generally not increased enough to make up for cuts in past years. For example, Alabama is increasing school funding by $16 per pupil this year. But that is far less than is needed to offset the state’s $1,144 per-pupil cut over the previous six years.
The report pointed out four major consequencies of this underfunding:
- State-level K-12 cuts have large consequences for local school districts. Some 46 percent of total education spending in the United States comes from state funds (the share varies by state).
- Local school districts are hard pressed to replace large reductions in state aid on their own. Property values fell sharply after the recession hit, making it difficult for local school districts to raise significant additional revenue through the property tax without raising rates, a politically challenging task even in good times.
- The cuts have slowed the economy’s recovery from the recession. Federal employment data show that school districts began cutting teachers and other employees in mid-2008, when the first round of budget cuts began taking effect. By 2012, local school districts had cut about 330,000 jobs. Since then they’ve added back a portion of the jobs, but still are down 260,000 jobs compared with 2008.
- The cuts undermine education reform and hinder school districts’ ability to deliver high-quality education, with long-term negative effects on the nation’s economic competitiveness. Many states and school districts have undertaken important school reform initiatives to prepare children better for the future, but deep funding cuts hamper their ability to implement many of these reforms.
In real dollar terms, funding is down around a thousand dollars or more per pupil in Alabama, Wisconsion, Idaho, Kansas, Oklahoma, and North Carolina. Those numbers are simply mind boggling, particularly if one allows that some of those states may not have even been delivering an adequate education prior to the recession. It is no wonder that the Alabama Department of Education is contemplating changes to its state constitution. There is bad precedent in Alabama, but one wonders whether litigants will wait.
The DC Office of Human Rights' (OHR) report on bullying in DC schools is now available. Its particular focus is an assessment of schools' compliance with the District's 2012 anti-bullying law, which required that schools adopt specific policies.
Based on school responses to OHR's survery, the report found:
- 57 of 61 (93.4 percent) of DC Public Charter LEAs as well as DC Public Schools submitted a bullying prevention policy to the DC Office of Human Rights by September 30, 2014.
- 42 of 61 DC Public Charter LEAs (70.5 percent) and DC Public Schools had policies compliant with the Youth Bullying Prevention Act of 2012 by September 30, 2014.
- 17 charter school policies were deemed compliant upon submission, all of which adopted the mayor’s Bullying Prevention Task Force’s model policy (“model policy”). The remaining 25 compliant policies were revised and resubmitted.
- On initial submission, LEAs were most often non‐compliant on:
- Coverage of electronic bullying off‐campus that interferes with students’ participation in or benefit from schools’ services,
- Having the verbatim definition of bullying as defined in the YBPA,
- Stating that consequences are to be applied in a flexible manner based on students’ developmental age, the nature of the incident, and disciplinary history, and
- Providing a consistent appeals process as defined in the YBPA.
Friday, October 17, 2014
The Center for Budget and Policy Priorities does not frame it exactly the way I did in this post title, but its new report, Creating Opportunity for Children: How Housing Location Can Make a Difference, makes a strong case for housing vouchers as a method for increasing students' academic opportunities and outcomes. Housing vouchers change social and environmental factors, which are equally important in educational outcomes. Moreover, because taking advantage of them requires moving or, at least, has a geographic trigger, they more easily avoid one of the major charges against education vouchers, which is that they can become mechanisms for reducing educational costs for advantaged families that would have opted out of the local public school in any event.
Protestors blocked Philadelphia's Broad Street this week to object to the Philadelphia School Reform Commission's unilateral cancellation of teachers' union contacts earlier this month over whether teachers must pay for their health care. Teachers say that they do not necessarily object to sacrifices to service the district's $81 million debt, but believe that SRC acted unilaterally to end the teachers' union as a part of a contining effort to dismantle Philadelphia's schools, including the district's "doomsday budget," nurse and counselor shortages, and school closings. Unilateral action means that the SRC did not have to prove that ending healthcare coverage justifies cancelling teacher contracts, even if it is true that the district will save a predicted $44 million. SRC Chair William J. Green told media that the SRC participated in 21 months of negotiations with the Philadelphia Federation of Teachers, and other unions had made similar concessions.
Thursday, October 16, 2014
Forthcoming testimony for the Education Law Center suggests the answer is "no" to the question in this post's title. If that is the case, New Jersey may have revealed itself to be the prime example of inadequate governmental oversight of charters. Forget monitoring the education program and outcomes of a charter, the state has to first know it exists. The Center issued the following statement today:
NJ COULD HAVE OVER 130 CHARTER SCHOOLS, NOT 87
ELC Calls on Legislature to Investigate
Following the revelation by the Attorney General in a court hearing last week that New Jersey has many more charter schools than the 87 in the Department of Education's (DOE) official count, a preliminary investigation by Education Law Center shows that the number of operating charter schools is well over 100 and could exceed 130.
ELC will present this information today to the Senate Education Committee, which is holding a hearing on the status of New Jersey's charter school program.
ELC will testify to the Committee that it is impossible to know "exactly how many charter schools are now open in New Jersey districts. The DOE does not make this information public. All we know is that the DOE lists 87 charters on its website, a number the Attorney General concedes is not accurate. We also don't know how the DOE approved these additional charter schools, and whether they were authorized in compliance with existing law."
Earlier this year, I applauded the Departments of Justice and Education for their stated policies in their new discipline guidance. The question there (and with the recent resource equity guidance) was whether they would enforce the policies. Since then, the Office for Civil Rights at the Department of Education appears to have stayed the course. As just one more example, OCR recently reached a settlement agreement with Tupelo, Mississippi. The press release follows my comments below.
Pay particular attention to the steps the district is required to take. The steps are explicitly aimed at reducing harsh discipline overall, which presumably will bring down the disparities, and improve the educational climate. Now that several of these settlements are in place and OCR is monitoring the data in these districts, OCR should be in a position within the next year to emphasize the efficacy of their efforts. A report comparing pre-settlement and post-settlement outcomes not just in discipline, but in overall educational outcomes, could be a powerful tool in convincing more districts to act.
Alabama's Department of Education is considering changing the way funds are distributed to schools throughout the state. The current approach does not take need into consideration. Rather, all students and districts are treated the same, with each receiving an equal per pupil allotment. The new formula under consideration would distribute the money based on need, meaning "both poor districts and districts seeking to teach special classes of students, including English Language Learners, at-risk students and those in special education." Since "such a change would require a major political effort that would almost certainly require a constitutional amendment," the Department is proceeding cautiously and not pushing the formula change yet. These first steps, however, are generating significant discussion and research within the department.
Wednesday, October 15, 2014
Process versus Substance in Affording Students with Behavioral Disabilities a Free Appropriate Public Education
Susan C. Bon and Allan G. Osborne's new article, Does the Failure to Conduct an FBA or Develop a BIP Result in a Denial of a FAPE Under the IDEA?, 307 Ed. Law Rep. 581 (October 5, 2014), is now available on westlaw. The article analyzes a number of recent cases "decided in the federal trial courts in New York over the question of whether school boards' failure to conduct [functional behavioral assessments (FBAs)] or implement [behavioral intervention plans (BIPs)] denied children the free appropriate public educations (FAPEs) guaranteed by the IDEA." Currently, the IDEA requires that school administrators ensure that FIPs are completed and that BIPs are implemented whenever students with disabilities are removed from their programs for more than 10 days due to disciplinary measures. A number of states, however, including New York, have expanded on these federal requirements and "[e]ven though these cases were primarily concerned with state requirements, which are more comprehensive and specific than the IDEA, there are important implications that can be garnered from this litigation."
Tuesday, October 14, 2014
A report by the Georgia Budget & Policy Institute, 2014 Schoolhouse Squeeze, finds that cuts in state aid to public school have totaled $8.4 billion in recent years. In inflation-adjusted dollars, this has amounted to a 12% reduction between 2002-2015. Local funding, which provides 41% of school district revenues, has not made up the difference. In 89 districts that enroll 80% of the state’s students, school tax revenues have actual dipped an average of 20% in inflation-adjusted dollars, due to continued low property values resulting from the effects of the 2007 recession. Compounding the problem, the proportion of economically disadvantaged students in Georgia has increased 17% percent since 2002, and now represents 62% of the state’s student population. This growth means schools need more money, not less.
Justice Department Intervenes in Case of Female Student Who Was Sexually Assaulted While Being Used as "Bait" to Catch Male Student Suspected of Sexual Misconduct
The Department of Justice filed an amicus brief at the Eleventh Circuit Court of Appeals last month in the case of a female special needs student who was used as "bait" to try to catch a male student suspected of sexual misconduct at an Alabama middle school. In the case, a teacher's aide at Sparkman Middle School convinced a 14-year-old female special needs student to agree to a plan to enter a bathroom with a 16-year-old male student with a history of sexual and violent misconduct. According to the plan, other teachers would be present in the bathroom to catch the male student “in the act” of sexual misconduct before anything happened. The plan was devised to gather proof after the school received reports of the 16-year-old trying to convince girls on the school's "special needs corridor" to have sex with him. The school also had some reports of sex attacks by the male student, but the number is unknown as the school had a policy of destroying documentation of reported attacks later found to be "uncorroborated." The female student was initially reluctant to participate in the plan, but was eventually persuaded by a teacher's aide, June Simpson. Tragically, when the female student met the 16-year-old in the bathroom, no teachers were present to intervene, and the student was violently sexually assaulted. Because there was authorities decided that there was no proof of a forcible assault because the female entered the bathroom voluntarily (although the student was found to have anal bleeding and tearing), the male student was not prosecuted. (He was suspended for five days, but later returned to Sparkman.) One school administrator later testified in a federal court that the female student was "responsible for herself" once she entered the bathroom.
The female student withdrew from school and sued the Madison County school district in federal court. Last December, the district court granted summary judgment for the school district, concluding that school administrators lacked actual notice of sexual harassment and misconduct by the male student and that administrators were not deliberately indifferent to male student’s history of sexual and violent misconduct under Title IX. The student appealed. The DOJ has intervened as amicus on appeal challenging the district court's findings. In its brief, the DOJ takes the school system to task for its policy of destroying records of proven offenses by a student after the close of a current school year and all complaints found to be unsubstantiated regardless of when they occurred. "As a result," the DOJ brief notes, "school administrators could not consider patterns of prior accusations and were forced to rely largely on memory, which they admitted was “flawed” when deciding appropriate corrective measures for repeat offenders[.]" Read the DOJ brief here.
Monday, October 13, 2014
Last week, the Gay-Straight Alliance Network and Crossroads Collaborative released a set of reports on bullying and harrassment based on sexual orientation in schools. The reports also addressed whether LGBTQ are subject to disparate discipline. Unfortunately, bullying based on sexual orienation is not new, but what was surprising was that LGBTQ youth are subject to disparate discipline and often blamed for their victimization. A set of policy recommendations by the Advancement Project accompanies the reports.
Friday, October 10, 2014
On October 7, 2014, over 100 civil rights, disability, rural, youth, higher education, principal, and education advocacy organizations, under the banner of the Coalition for Teaching Quality, urged Congress and the Obama Administration to ensure that every school and classroom in the nation has well-prepared and effective educators.
At House and Senate briefings hosted by Sen. Patty Murray (D-WA) and Rep. David Reichert (R-WA), the Coalition explained the important role teachers and principals play in advancing educational opportunity.
The Coalition is pushing for policy solutions that address the reality students in many high-need schools face. They do not have the same access to great educators that their better-off peers have.
The Coalition also urges policymakers to move beyond a narrow focus on test scores and to embrace a comprehensive vision of teaching quality that begins during college preparation courses and extends through leadership roles for veteran teachers.
Releasing its "Roadmap to Transforming the Teaching and Principal Professions," the Coalition calls for measures to strengthen the recruitment pipeline for teachers and principals, build more robust preparation programs, and cultivate opportunities for continuous growth and leadership.
The U.S. Chamber of Commerce has released its "Leaders & Laggards Report," grading state school systems on a variety of metrics, including State Academic Achievement, Academic Achievement Low-Income/Minority, Return on Investment, Truth in Advertising: Student Proficiency, Postsecondary and Workforce Readiness, 21st Century Teacher Force, Parental Options, Data Quality, Technology, International Competitiveness, and Fiscal Responsibility. The report uses those factors to produce a composite grade. The report's color coded map shows a sharp contrast between the North and South. Excluding southern border states, North Carolina and Florida are the only southern states to not receive a grade of D or F on the report card. But another gradiation in quality extends above the north-south divide. The only state to not receive an A or B on the Canadian border was New York (and Idaho by way of its narrow panhandle). The center spine of the country is mixed, with states earning grades ranging from F to A.
Thursday, October 9, 2014
Utah's Attorney General Reasons That U.S. Department of Education Lacked Authority to Impose NCLB Conditions
Utah's Governor asked its Attorney General to issue an opinion on various issues surrounding common core. The Attorney General's opinion indicates that the state of Utah followed the appropriate state procedures for adopting the Common Core, but questions the legality of the U.S. Department of Education conditioning NCLB waivers on adopting college and career ready standards. He summarizes his reasoning as follows:
[A] recent law review article by . . Derek Black entitled "Federalizing Education by Waiver?" persuasively maintains that the U.S. Department of Education (USDOE) has effectively coerced states by imposing ESEA waiver conditions which require states to develop and implement "college and career-ready standards" like the Common Core standards. The article further asserts that the 2001 No Child Left Behind Act (NCLB), from which these waivers are derived, does not require these "college and career-ready standards." Thus, the USDOE, by imposing these waiver conditions, has infringed upon state and local authority over public education. States have consented to this infringement, through federal coercion, because they fear severe NCLB consequences to most Title I schools not meeting Adequate Yearly Progress (AYP) requirements.
On that basis, he indicates Utah has the authority to withdraw from the Common Core, although there will be AYP issues to sort through if it does.
Wednesday, October 8, 2014
Supreme Court Requests Brief from Solicitor General on School Districts' Financial "Stay Put" Obligations
Hat tip to the Disability Scoop blog, which posted this news from the U.S. Supreme Court: On Monday, the Supreme Court asked the Solicitor General to address a pending certiorari petition on the issue of school districts' responsibility to pay private school tuition while special education disputes are litigated on appeal. Under the Individuals with Disabilities Education Act’s “stay-put” provision, school districts are responsible for paying for a student to remain in an existing educational placement while disputes related to the child’s special education services are resolved. At issue in the petition before the Court, M.R. v. Ridley School District, is whether a school district's financial responsibility dissolves if the parents do not request reimbursement for their out-of-pocket private school costs until after an administrative decision in their favor has been reversed by a court upon further review. The Third Circuit held this February in the case that the Ridley School District (Philadelphia area) had to pay private school tuition for the student while the child’s family continued to appeal their dispute, even though a lower court found in favor of the district -- that the public school provided an appropriate education. A circuit split has developed about whether the stay-put provision applies during the pendency of appeals, with the D.C. Circuit, Sixth Circuit, and district courts in Delaware and the Eastern District of Pennsylvania holding that a school district "need not continue to fund a student's pendent placement beyond district court review," and the Ninth Circuit and a N.J. district court allowing reimbursement through appeal. The National Association of State Directors of Special Education, the National School Boards Association and the Pennsylvania School Boards Association have filed amicus briefs at the Supreme Court arguing that schools should be relieved of the responsibility to pay for private school placements once a court finds in a district’s favor. The Third Circuit decision is M.R. v. Ridley Sch. Dist., 744 F.3d 112, 119 (3d Cir. 2014).
Last week in the Bronx, the story of a 5 year old special needs student being restrained with his hands behind his back in velcro handcuffs for 15 or more minutes because of his outburst in gym class came to light. The school responded by emphasizing his misbehavior: yelling and throwing things because he did not want gym class to end, and allegedly biting the person who subsequently restrained him. The NYPD responded by emphasizing that velcro restraints are softer alternatives to handcuffs. Sorely missing from their thinking, however, was any substantive explanation for using this type of intervention to deal with a kindergarten student, particularly one with special needs. The boilerplate explanation that "he was a danger to himself and others" glosses over a lot of nuance and ignores the emotional, psychological, and physical danger that this restraint may pose to him. Similar concerns were raised last year with the use of a padded cell at New York City charter school. As one local attorney aptly pointed out, "If that's the system, we need to change that system to make it more friendly to the family and the parents."
Tuesday, October 7, 2014
Federal Court Orders Hawaii to Provide Compensatory Special Education Services After Age Eligibility Law Found to Violate the IDEA
Last month, a U.S. District Court ruled that Hawaii must provide compensatory educational services to all students with disabilities who were barred under a 2010 state law from remaining in school after the age of 20. The district court’s decision implements E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ., 728 F.3d 982 (9th Cir. 2013), that we discussed on the blog here and here. The federal district court’s latest ruling requires the state to provide “compensatory services to make up for the services missed as a result of that improper determination of eligibility.” R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436, slip op. at 2-3 (D. Haw. Aug. 22, 2014). To do this, the district court ordered the parties to determine the members of plaintiffs’ class, including the names and contact information for the students who might have been affected by the Hawaii DOE’s “age out” rule.
The Individuals with Disabilities Act restricts the power of states to establish age limits on special education eligibility until age 22, but exempts states that do not provide general education services after age 18 from that restriction. Hawaii provided education for students older than 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten Community Schools for Adults, but a state law barred students from attending public school after the last day of the school year in which they turned 20. The Ninth Circuit held that the Hawaii law setting the age limit on public education violated the IDEA by eliminating special education eligibility for 20 and 21 year olds when general education students of those ages could attend free GED and competency based education programs. The Ninth Circuit had previously ruled that when a child is denied the Free Appropriate Public Education under the IDEA, a court may provide additional services to “make up for lost time” to remedy the violation. R.P ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125-26 (9 Cir. 2011).
New Legal Scholarship: The Business of Charter Schools, NCLB Waivers, Expanding Vouchers, and Transgendered Student Legislation
The new issue of BYU's Education and Law Journal is out and includes the following articles:
Patrick J. Gallo, Jr., Reforming the "Business" of Charter Schools in Pennsylvania, 2014 B.Y.U. Educ. & L.J. 207 (2014).
Gallo addresses the current state of the charter school system in Pennsylvania and the need for reform. Summarizing some of the serious issues facing the charter system in Pennsylvania, the author states:
There are now more than 175 charter schools in Pennsylvania with over 105,000 students and approximately 44,000 more students on waiting lists. In addition, roughly 25 percent of the student population in the Philadelphia School District attend public charter schools. Moreover, government financed charter schools present a significant opportunity for profiteers looking to cash in on this modern day "gold rush," and, with very little oversight, Pennsylvania public charter schools have become fraught with "chicanery and greed . . . [,] excessive executive salaries . . . [,] nepotism, and [dubious] financial and real-estate transactions.
Monday, October 6, 2014
Last week, the Supreme Court granted cert in Ohio v. Clark, a case involving whether teachers' obligation to report suspected child abuse makes them law enforcement for purposes of the Confrontation Clause. If so, a student's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse would qualify as “testimonial” statements subject to Confrontation Clause restrictions. Colin Miller, at EvidenceProf Blog, offers this summary and analysis of the case: