Friday, July 3, 2015
On Tuesday, California Governor Jerry Brown signed legislation eliminating personal and religious belief exemptions from public school vaccinations. The new law makes California's vaccination law one of the most stringent laws in the country. The new law, taking effect January 1, 2016, mandates all children provide proof of vaccination for communicable diseases in order to attend school in California. The only exemptions are for medical reasons and must be approved by the State Department of Health.
California is only the third state to eliminate religious and personal belief exemptions for vaccinations. The legislation comes in the aftermath of a measles outbreak linked to Disneyland in California earlier this year. Supporters of the new law advocate that it will protect those children too young or sick to be vaccinated, while opponents of the law say it unfairly restricts parental choice.
I used a similar fact pattern to test the fundamental right to control the upbringing of one's children and free exercise of religion in my constitutional law class this spring. The first question under either is whether the law substantially impairs the constitutional right. For most families the answer would be no (although it is possible it might substantially impair the rights of some). Even assuming a substantial impairment, courts have moved away from applying strict scrutiny to the impairment. Courts have tended to apply rational basis review to upbringing claims. The only way to get to strict scrutiny is to show that the upbringing claim also intersects with religious beliefs. But with religious beliefs, the court has also scaled back the ability to get to strict scrutiny.
In Oregon v. Smith, the Court held that generally applicable laws that infringe on religion are only subject to rational basis. In other words, so long as the law is not directed at religion it is unlikely to trigger strict scrutiny. Here, the law is not aimed at religion. One might, however, argue that the law is not generally applicable because it retains an exemption for medical reasons. The rationale here is that if the state is already granting exemptions to some groups, the First Amendment might also require that it also grant religious exemptions while is at it. Otherwise, the government is disfavoring religious groups in comparison to others. The precedent on this point is not extensive, but I would still tend to see this as generally applicable law. A medical exemption in a medical vaccination statute does not appear to be an instance of a state granting an exemption to one group that it denies to religion. Rather, the statute attempts to safely apply the law to all students. Per this reasoning, California's law would be subject to rational basis, which it would easily pass.
Thursday, July 2, 2015
The Supreme Court granted certiorari Monday to hear Friedrichs v. California Teachers Association, the case about compulsory teachers' union dues that some observers say will threaten union financing. Friedrichs challenges California's “agency shop” laws, which require public employees to pay union dues as a condition of employment, Friedrichs argues that state's agency shop laws violate the First Amendment particularly when the union's positions conflict with individual teachers' on-the-job interests or personal beliefs. Friedrichs' certiorari petition presents two issues:
(1) whether Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements (that require teachers to join the union or pay the equivalent of union dues) should be invalidated under the First Amendment; and
(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
In Abood, the Supreme Court held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but employees could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” Because Abood controlled the outcome of Friedrich's claims, the Ninth Circuit summarily affirmed the district court's ruling against Friedrich.
Wednesday, July 1, 2015
On Monday, the Supreme Court of Colorado in Taxpayers for Public Education v. Douglas County School District struck down a voucher program in Douglas County, finding that the Choice Scholarship Pilot Program violated separation of church and state doctrine under the state's constitution. The ruling reversed the decision in Taxpayers for Public Education v. Douglas County School District, a 2013 Colorado Court of Appeals decision upholding Douglas County’s voucher program.
The voucher program awarded taxpayer money to students who could use that money to pay for private schools, including some religious schools. The court found that, in doing so, the voucher program facilitated students attending religious schools and amounted to aid of religious institutions. This violates the state constitutional provision that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.” The Supreme Court of Colorado remanded the case, directing the lower courts to reinstate an order permanently enjoining the program.
This holding based on state law is, of course, in contrast to the U.S. Supreme Court holding in Zelman v. Simmons-Harris. There the Court held that voucher program in Cleveland, Ohio, did not violate the First Amendment, notwithstanding the fact that the program almost exclusively sent kids to private religious school. Many state constitutions have provision that are more restrictive of the flow of public money to religious institutions.
Tuesday, June 30, 2015
On June 19, Texas enacted a law, S.B. No. 507, calling for video surveillance of special education classrooms. The law applies to all public schools, including open-enrollment charter schools, that receive a request from a parent, trustee, or staff member, and within those schools to all self-contained special education classrooms and classrooms in which a majority of the students in regular attendance are provided special education and assigned to a self-contained class or other special education setting for at least half of the instructional day. The schools have to retain video recordings for six months. The video is not to be regularly or continually monitored, and the video is not to be used for teacher evaluation or any uses other than promotion of student safety. But the otherwise confidential recordings must be released for viewing on request by school district employees or parents of students involved in an incident for which a complaint has been reported to the district. It must also be released to Department of Family and Protective Services personnel conducting investigations, police, human resources staff members, and several other designated categories of individuals.
Supporters of the law cited physical injuries and abuse of students with disabilities, particularly students who are nonverbal or uniquely vulnerable in other ways, and said video monitoring will deter the incidents. Opponents were preoccupied with costs – the new law does not create a state funding stream for the equipment, its installation, and operation. Given the pervasiveness of video monitoring in modern society, privacy concerns do not appear to have been paramount, though the singling out of special education is troubling. A better solution surely would be video monitoring in all classrooms. After all, video cameras are now found in vast numbers of stores, public transit facilities, and other public places, and students without disabilities are vulnerable to abuse and mistreatment.
Video monitoring has appeared in the special education caselaw in recent years. In Phipps v. Clark Cnty. Sch. Dist., No. 2:13:00002-GMN-PAL (D. Nev. Apr. 23, 2014), the court refused to dismiss constitutional claims brought by a nonverbal child with autism who alleged that he was abused in a classroom in which the school district had installed surveillance cameras and the video showed abuse of the child by teachers, but no school personnel witnessing events live or on video intervened. In B.A. v. Missouri, No. 4:09CV1269, 2010 WL 1254655 (E.D. Mo. Mar. 24, 2010), the court denied a motion to dismiss an action brought under the Individuals with Disabilities Education Act in which a student alleged serious physical and verbal abuse and asked as a remedy that the school install audiovisual monitoring of all classrooms and hallways.
Monday, June 29, 2015
The Supreme Court granted certiorari today in Fisher v. Univ. of Texas to revisit race-conscious admissions policies at the University of Texas at Austin. The Supreme Court remanded the Fisher case in 2013 for the Fifth Circuit to conduct a "searching examination" of whether UT's policies were narrowly tailored to serve a compelling government interest. The Chronicle of Higher Education reports that in addition to the Fifth Circuit's upholding UT's policy, the justices may also consider new evidence that then-UT Austin President William C. Powers Jr. intervened on behalf of well-connected applicants (the elephant in the room for racial diversity policies in college admissions). The Chronicle of Higher Education's story is here.
State Court Holds That Pennsylvania Department of Education Must Investigate Curricular Deficiencies in Philadelphia
In September 2013, a group of parents filed a lawsuit in state court against the Pennsylvania Department of Education, alleging the Secretary of Education violated her mandatory regulatory duties by failing to carry out her duty to “receive and investigate allegations of curriculum deficiencies.” 22 Pa. Code § 4.81. Last week, the trial court in Allen v. Dumaresq issued an opinion agreeing in large part.
The lawsuit arises out of parents previous attempts to have the Secretary intervene in Philadelphia's under-resourced schools. Parents had previously filed 825 complaints with the Department regarding the reduction of thousands of staff positions and expenditures in Philadelphia schools. The complaints ranged from overcrowded classrooms, inadequate counselor staffing, numerous reductions in art, foreign languages, and physical education in the curriculum, and unsanitary toilet conditions. Petitioners claim that these conditions impede the delivery of the curriculum and students’ ability to learn it. The lawsuit claims that the Secretary never responded to many of those complaints. Those to which she did respond revealed a failure to carry out her duty. The Secretary simply sent out letters calling the allegations a “local matter” and that their allegations would be forwarded to the District.
The trial court reasoned that complaints regarding facilities and staff were non-curricular and, thus, the Secretary was not bound to investigate them. But allegations of reduced access to art, foreign language courses, and physical education were curricular matters. Thus, the Secretary was obligated to receive, investigate and correct these allegations if necessary.
On June 24, the New York Times published an op-ed piece by Paul Morgan and George Farkas with the headline Is Special Education Racist? in which the authors argue that although children who are African American are 1.4 times more likely to be placed in special education than other races and ethnicities combined, the high number is not caused by racial bias. Instead, they contend, black children are underrepresented in special education classes when compared to white children who have comparable levels of academic achievement, behavior, and economic resources. They believe a federal standard for overrepresentation would be a bad move, one that would cause children who need special education to miss out on valuable services.
Overrepresentation has been a major topic among writers on special education law in recent years. I tried to take on the topic in a paper called The IDEA Eligibility Mess, which appeared in the Buffalo Law Review in 2009. My view has something in common with that of Morgan and Farkas. I am very concerned that if artificial limits on eligibility under the Individuals with Disabilities Education Act are imposed on the basis of racial disparities, that step will harm children who need both services and the procedural protections the law provides against suspension and other school discipline when the students’ misconduct results from their disabilities. But the critics who emphasize the statistical disparity have an important point: special education in some instances does not represent extra benefits, but rather means being shunted into isolated programs and placements in which services are of poor quality and the expectations for the students are low. African American children are particularly likely to be in special education settings that are self-contained or have low levels of integration into the mainstream. Schools need to act on the premise that special education is a bundle of extra services to help the child succeed, rather than a place to put the child. If they do not, special education will not provide the benefits that it ought to, and the racial overrepresentation will remain a problem to be addressed.
Thursday, June 25, 2015
Study: No Empirical Support for Common Belief that Minorities are Overrepresented in Special Education
A UC-Irvine-Penn State study released this week refutes some conventional wisdom that minority students are overrepresented in special education classes. The federal government currently requires school districts to allocate funds for early-intervention efforts that are designed to minimize overidentification of minorities in special education programs. The recent study, Minorities Are Disproportionately Underrepresented in Special Education: Longitudinal Evidence Across Five Disability Conditions, suggests that the government's special education policy may be misdirected. The study's researchers found that "minority children were consistently less likely than otherwise similar white, English-speaking children to be identified as having (a) learning disabilities, (b) speech or language impairments, (c) intellectual disabilities, (d) health impairments, or (e) emotional disturbances. Language-minority children were less likely to be identified as having (a) learning disabilities or (b) speech or language impairments." The study's authors explain that the seemingly conflicting empirical studies about disproportionate minority representation in special education is often tied to what disability is being measured. The authors partly attribute this contradictory findings to previous studies failing "to account for potential confounding factors prior to estimating minority children’s risk of being identified as disabled," such as low birth weight, poverty, and state of residence. Other significant factors were obstacles resulting in minority families being less likely than White families to make use of special education services; an aversion by minority families to the stigma associated with disability identification; and less health care access. Instead, the authors' conclude that "federal legislation and policies may be inadvertently exacerbating educational inequities by reducing access to special education services for schoolchildren who are racial, ethnic, or language minorities."
The Foundation for Individual Rights in Education has released it annual report on the state of free speech on college and university campuses. The Foundation examined 437 schools and "found that more than 55 percent maintain severely restrictive, 'red light' speech codes—policies that clearly and substantially prohibit protected speech. Last year, that figure stood at 58.6 percent; this is the seventh year in a row that the percentage of schools maintaining such policies has declined." Only five percent of schools, however, actually affirmatively protect speech.
One of the worst offenders was Missouri, where "over 85 percent of schools surveyed received a red light rating." Virginia and Indiana were among the best, with "only 31 percent and 25 percent of schools surveyed . . .receiv[ing] a red light rating." The Foundation attributes Virginia's numbers to recent legislation "designating outdoor areas on the Commonwealth’s public college campuses as public forums. Under the law, Virginia’s public universities are prohibited from limiting student expression to tiny 'free speech zones' or subjecting students’ expressive activities to unreasonable registration requirements."
Wednesday, June 24, 2015
The U.S. Department of Education, responding to a complaint filed by the Education Law Center, has found that New Jersey failed to meet the conditions of its NCLB waiver. Interestingly, the Department does not indicate what if any sanctions will follow from this violation, but it does indicate that this violation will affect the Department's review of New Jersey's pending waiver renewal request. Reading between the lines, this means that New Jersey has placed itself at risk of loosing its waiver and becoming subject to the sanctions originally included in NCLB. Here is the Education Law Center's summary of the background and the Department's findings:
Responding to a complaint filed by Education Law Center (ELC), the U.S. Department of Education (USED) has found the New Jersey Department of Education (NJDOE) failed to comply with requirements of its Elementary and Secondary Education Act (ESEA) waiver by not intervening to improve 28 low performing schools in Newark.
By letter dated June 19, Acting Assistant Secretary Heather Reiman details USED’s investigation of ELC’s complaint that, in 2012, then-Commissioner of Education Chris Cerf improperly gave into a demand from Newark’s State-appointed Superintendent, Cami Anderson, to allow her to retain full control over 28 low-performing schools classified by NJDOE as “priority” and “focus” schools. Superintendent Anderson wanted to prevent qualified staff from the NJDOE’s Regional Achievement Center (RAC) for Hudson/Essex Counties from intervening to improve the schools, as is required for all priority and focus schools statewide under New Jersey’s ESEA waiver and State “school turnaround” regulations.
Things are looking up in Pennsylvania. Earlier this year, I posted on the state forming the Basic Education Funding Commission to study how the state might distribute education funds more fairly across school districts. The Commission released its recommendations last Thursday. It proposed a new funding formula that weighs student and community factors such as poverty levels, number of English language learners, charter school enrollment, school district size, average income per household, and a district’s ability to raise funds. The formula would use a three-year average to account for student population to help account for school district growth as well.
This week, the Senate Education Committee voted unanimously to approval the Commission’s formula. The formula will now move to the Senate for consideration and hopefully a vote. The state is still a long way from the finish line, but in a state that distributed education funds without any formula for years, that repealed a short-lived formula when its newest governor took office, and that has allowed Philadelphia schools to languish with huge budget shortfalls and basic resource needs over the past two years, this is a big step forward. Stay tuned.
Tuesday, June 23, 2015
Last weekend, Texas Gov. Greg Abbott signed legislation ending Texas' criminal penalties for the "failure to attend school" law. The controversial law made Texas one of two states that prosecuted schoolchildren (and their parents) when students skipped school or class without a valid excuse. Last year, for example, Texas reportedly prosecuted 100,000 children and their parents for truancy. Now, instead of treating truancy as a Class C misdemeanor, the new law requires schools to address students’ truancy problems, such as homelessness, illness, or other difficulties, before referring students to court. Additionally, truancy matters will now be referred to civil rather than criminal court. With a coalition led by legislators and Texas Appleseed, H.B. 2398 received broad-based support from Texas Association of School Boards, the Texas Association of Business, the Juvenile Justice Association of Texas, Texas Justices of the Peace & Constables Association, and the Texas PTA. Texas was under investigation by the Department of Justice for the truancy law this spring, and a class action suit was filed challenging the law. Read more about the bill at the Courthouse News Service here and H.B. 2398 here.
Well, it's not quite as simple as the title suggests, but a new study by two graduate students from Rice and Duke finds
"that the legacy of slavery contributes to black-white education disparities through greater public-private school racial segregation". . . . Using regression analysis to explain differences in the degree of attendance disparities across most counties in the South, researchers found a correlation between historical geographic slave concentration and modern day K-12 school segregation. An increase in slave concentration is related to greater underrepresentation of white students in public schools.
In other words, the more slaves who lived in a particular geographic location the more likely white students are to attend private school today.
To be clear, several factors influence white enrollment in private schools, but the correlation between the concentration of African American students and white enrollment in private schools is strongest "in states where slavery was most strongly rooted. . . . The study found that the black population concentration relationship only holds in the original Confederate States, or Deep South: Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina and Texas." In the Deep South, when African Americans near and cross fifty percent of the student population, white enrollment plummets, with whites' eventually attending private school at more than twice the rate as minorities. The same disparities are not true in the upper south.
Download the full study here.
Monday, June 22, 2015
The Supreme Court decided Ohio v. Clark last week, a case that we discussed earlier in the summer here, holding that a three-year-old's statements to his preschool teachers that his mother's boyfriend had hit him could be admitted at trial even though the child did not testify. The Court found that the child's statements were not "testimonial" under the Sixth Amendment because they were made in response to his teachers' questions about his injuries and not for the purposes of criminal law enforcement. The Court also indicated that in most instances, statements of non-testifying young children to daycare workers or teachers can be admitted at trial without violating the Confrontation Clause. Read the opinion here.
Earlier this month, Colorado Governor, John Hickenloper, signed into law a bill that expands public schools’ liability in regard to school shootings. The bill waives government immunity for schools if the school is deemed to have failed to exercise “reasonable care” to prevent “reasonable foreseeable” harm. Advocates of the bill say that the bill ensures that schools will take student safety seriously and do as much as they can to prevent harm. Opponents of the bill point out that school safety is far more complicated than the bill would suggest and invites juries to retrospectively second guess schools. Juries might determine that a shooting was “reasonably forseeable” or could have been anticipated, when such a conclusion is only possible after the fact. The new law permits claims up to $350,000 per victim or 900,000 per incident. The bill was named after 2013 Arapahoe High School shooting victim Claire Davis. Before the passage of this bill, Colorado public schools were only liable for willfully negligent actions and ignoring threats to student and staff safety.
The 9th Circuit Court of Appeals has issued a new decision in Flores v. Arizona, the long running English Language Learner ("ELL") litigation in Arizona. The Ninth Circuit upheld the district court’s finding that the state was taking “appropriate action” to meet the educational needs of ELLs and, thus, in compliance with the Equal Educational Opportunities Act. This recent litigation stems from the remand by the Supreme Court in Horne v. Flores in 2009, where the Court had found that the lower court erred in failing to sufficiently consider whether changed circumstances entitled the state to an equitable modification of the existing consent decree in the case.
In this recent round of litigation, the plaintiffs challenged the State’s newest ELL program. The new program requires ELLs to be separated from their classmates for four hours per day to focus solely on learning English. Plaintiffs argue this violates the Equal Educational Opportunities Act because students do not get to make up the subject matter they miss while in regular education while they are in their English acquisition classes. In other words, they receive less academic content than their classmates. The Ninth Circuit disagreed and also indicated the challenge was premature in any event: while "[t]he Flores Plaintiffs appear to be challenging the four- hour model as facially violating the EEOA,” they are actually “attacking the implementation of the four-hour model” after just one year of the program. The relevant three-prong standard for evaluating ELL programs includes a timing element, under which states and districts are afforded an opportunity to demonstrate that the program works. See Castenada v. Pickard, 648 F.2d 989 (5th Cir., 1981).
Friday, June 19, 2015
Yesterday, thirty six civil rights groups released a letter to the Senate on ESEA reauthorization. The signatories included all the major organizations, including the Leadership Conference on Civil and Human Rights, the NAACP, NAACP LDF, MALDEF, Lawyers' Committee for Civil Rights, National Urban League, and Ed Trust. This is not the first time civil rights organizations have weighed in on reauthorization in the past year or so, but it may be the most significant.
That they penned the letter yesterday is probably indicative of the growing sense that we could be on the verge of reauthorization. As noted earlier this week, the House has revived their earlier bill. The letter is also significant in the poignancy and substance of its recommendations. Overall, the letter reflects a fear of erosion of the federal role in education, which is the general effect in the current bills before the House and Senate.
The letter makes four points: keep accountability for all schools, keep disaggregated demographic data, ensure resource equity, and maintain the Secretary's authority to enforce the law. Keeping accountability and disaggregated data are really just requests that Congress not throw the baby out with the bathwater in reauthorization. Mend it, don't end it. The last two points, however, have a lot of depth to them.
When reauthorization was being seriously debated in 2007 to 2008--the time it should have been reauthorized to begin with--a tremendous amount of focus was on how irrationally Title I dollars are distributed and how little current standards do to actually ensure comparability in resources across schools. Most notable is the fact that teacher salaries are about 80% of schools' budgets, but are exempted from any real dollar comparability. It is an enormous loophole. While we can and will debate substantive theories about how to improve educational outcomes for decades to come, equity is reality simple and should not require debate. Racial and socioeconomic equity of resources was one of the founding pillars of the Elementary and Secondary Education Act. Yet, it has been increasingly lost in recent reauthorizations. The current conversation suggests it will happen again this time. See here for more on this point.
The last point about the Secretary's authority is an outgrowth of the legal and political contests surrounding NCLB waivers. As I explain here, the conditions that the Secretary imposed on NCLB waivers were either beyond his statutory authority or unconstitutional. And legalities aside, the authority the Secretary exercised during the waiver process enraged many. The backlash has prompted a legislative move to strip the Secretary of much of his or her power. It has also prompted what I would call a minimization of the federal role in education, which appears to be more of an overreaction than a reasoned reaction.
One can only hope this messages do not fall on deaf ears.
Thursday, June 18, 2015
The New York Immigration Coalition’s newest report shows systemic failures to offer translation and interpretation services for parents in New York City’s schools. Such failures, of course, would be potential violations of several federal education laws, including Title VI, the Equal Education Opportunities Act, and the Individuals with Disabilities in Education Act.
The report finds that:
- Half of parents are missing critical information because it’s not translated or because they don’t have an interpreter.
- More parents report never receiving services now than in 2007.
- Parents are relying on children to interpret on a large scale despite the DOE’s own regulations prohibiting this practice in most settings.
- Almost a decade after the Chancellor codified parental language access rights and formed a special unit, a large percentage of parents still don’t know that they can get translation and interpretation.
- Lack of access to translation and interpretation greatly impedes parents’ ability to be engaged in their children’s education.
The Southern Poverty Law Center and Flagler County Schools in Florida a reached a settlement to resolve a claim of discriminatory discipline. The original complaint had alleged that "African-American students accounting for 31 percent of all out-of-school suspensions during the 2010-11 school year even though they were only 16 percent of the student population." Under the agreement, the School Board adopted a wide-ranging plan to eliminate racial disparities in school discipline . Rather than permitting unilateral school level decision, the school district itself will have to approve suspensions of five or more days this upcoming school year, and suspensions for three or more days in the next school year. In addition, staff will receive cultural competency and implicit bias training. A committee will monitor discipline data on a regular basis to monitor progress. The district will consider abolishing suspensions altogether once it develops an alternative school program, peer mediation, and restorative justice practices. The district also committed to work with law enforcement to reduce in-school arrests.
SPLC is still pursuing federal civil rights complaints in Escambia, Bay, Okaloosa and Suwannee county school districts.
Wednesday, June 17, 2015
Last year, the Second Circuit Court of Appeals held that the claims against the New York Board of Education could move forward. Plaintiffs had alleged the Liberal Arts and Sciences Test (“LAST”) had a disparate impact on African Americans, was not validated as job related, and, thus, the state's use of it violated Title VII. The case was remanded back to the trial court. Earlier this month, the trial court in Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 2015 WL 3536694 (S.D.N.Y. June 5, 2015), found:
After reviewing all of the evidence offered by Dr. Outtz and the parties, including expert opinions and the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures, . . . that the BOE unfairly discriminated against African–American and Latino applicants by requiring them to pass the LAST–2. Like its predecessor, the LAST–2 had a disparate impact on African–American and Latino test takers. And like its predecessor, the LAST–2 was not properly validated as job related, because the exam's designers did not employ procedures to identify the specific areas and depth of knowledge of the liberal arts and sciences that any competent teacher would need to understand. The BOE's use of the LAST–2 was thus unfairly discriminatory under Title VII.