Wednesday, January 28, 2015
Suzanna E. Eckes, Aaron N. Butler, and Natasha M. Wilson's article, Brown v. Board of Education's 60th Anniversary: Still No Cause For a Celebration, 311 Ed. Law Rep. 1 (Jan. 15, 2015), is now on westlaw. The article discusses how far the United States has come in integrating students and how far it has have left to go to achieve the goal of Brown v. Board. The article begins by presenting a history of "civil rights legislation, constitutional protections, and Supreme Court decisions related to racial integration." Next, the authors turn to more recent court decisions signifying the end, or at least the slowing, of integration in schools. The last two sections discuss other types of segregation and the importance of broad diversity in public schools.
Regarding other types of segregation, the authors cite to cases in which schools had segregated students based on "gender, ability, language, religion, and sexual orientation." Since the 2006 amendments to the Title IX regulations "mak[ing] public single-sex educational programs more accessible in public school[,]" the number of single-sex classrooms and schools has been on the rise. As compared to only three single-sex public education programs in 1995, "[t]oday there are approximately 500 schools in 40 states that offer single-sex classes and 90 single-sex public schools in the U.S." In addition to the spread of single-sex schools across the country, public schools have opened to cater to LGBT students. "These schools are designed to serve as safe havens for LGBT students who have been bullied or harassed in their traditional public schools." However, some have argued that, while sparing LGBT students hurtful and damaging harassment, these separate schools may result in unnecessary segregation.
Finally, some school systems also separate students based on disabilities. An investigation conducted by the Office of Civil Rights recently found that one New Jersey school district had placed over 60% of its students with disabilities into "self-contained classrooms." And these instances of segregation are not limited to traditional public schools. Charter school and voucher programs face similar challenges, from "enthocentric or culturally-oriented niche charter schools" leading to greater racial segregation, to private/religious voucher-receiving schools discriminating against LGBT students, students with disabilities, or religious minorities. The authors conclude by presenting evidence of the harms segregation can cause and the need for integration in schools.
Tuesday, January 27, 2015
Last week, the trial of a federal class action lawsuit against Birmingham police challenging officers' use of pepper spray on students in eight of the city's nine high schools. The suit alleges that Birmingham police, serving as school resource officers, used Freeze + P, a spray made up of Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC), that causes “strong respiratory effects" and "severe pain" to break up fights, to disburse bystanders, and to spray students who were verbally disrespectful but not physically violent. The plaintiffs are represented by the Southern Poverty Law Center. Commenting on the suit, a SPLC attorney told the Marshall Project, “We have not been able to locate a school district anywhere that uses chemical spray in the way that Birmingham does, meaning on a routine basis." Interestingly, the lead defendant, Police Chief A.C. Roper, might agree in principle, as he told the Birmingham News in 2009 that the school system has "over-relied on our officers, and our officers have responded ... The current system is dysfunctional, and that's putting it mildly." The complaint is available on the SPLC's website here.
For those left wanting more after my quick post two weeks ago, Molly Hunter got her hands on the full opinion and offers the following summary:
On December 30, 2014, a three-judge District Court panel, in Gannon v. State, declared that the Kansas "approach to funding the K-12 school system" violates the Kansas Constitution because funding is "inadequate from any rational measure or perspective."
In March 2014, the Kansas Supreme Court, also in the Gannon case, reiterated the fact that the Kansas Constitution requires both equity and adequacy in school funding and set out clear definitions and tests to determine whether the state was complying with each requirement.
After the Supreme Court found the Kansas system was violating the equity standard in March, the Legislature adjusted state funding to remedy that finding.
On the adequacy requirement, also in its March decision, the Supreme Court remanded plaintiffs' claim of inadequacy to the panel of trial court judges. The Court instructed the District Court panel to determine whether the state's school funding system was providing sufficient funding, separate from the resolved issue of equitably distributing the funding, and whether that funding was sufficient using the "Rose factors," enumerated below.
The District Court panel already had an extensive record from the 2012 trial in Gannon, and obtained and took judicial notice of additional information in 2014. In its ruling, the District Court summarized some of the evidence and explained how the facts support its conclusions.
In its December ruling, the District Court found the positive impact of increases in school funding on Kansas schools illuminating. For instance, the court panel recounted increased funding in the form of grants won by certain schools, how they used the funding effectively, and the significant achievement gains that it generated.
Against such examples, the court juxtaposed the major cuts in the state's school funding and the negative impacts those cuts caused. The court pointed to the Kansas Department of Education's statewide 2013 Report Card, which "reflects a substantial downshift in all scores," including drops for all categories of students.
The District Court concluded that "inadequacy ... persists in the State's approach to funding the K-12 school system." After discussion of the Rose factors and the evidence of Kansas educators and outside experts, the court stated that the educational goals articulated in the Rose standards "are not met [and] will not be met by the current level of state supported educational funding."
As expected, the state Attorney General said recently that the State will appeal this ruling to the Kansas Supreme Court.
The Rose Factors
To meet the Kansas Constitution's adequacy standard, the state supreme court explained that "the public education financing system provided by the legislature for grades K-12---through structure and implementation---[must be] reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose and as presently codified in [Kansas statute]." Rose is the name of a Kentucky Supreme Court case decided in 1989.
In the years since 1989, several state courts and legislatures, including those in Kansas, have adopted the Rose factors, which require instruction to be designed to provide each child with these seven capacities:
- sufficient oral and written communication skills to enable students to function in a complex and rapidly changing society;
- sufficient knowledge of economic, social and political systems to enable the student to make informed choices;
- sufficient understanding of governmental processes to enable students to understand the issues that affect the community, state and nation;
- sufficient knowledge for students' mental and physical wellness;
- sufficient grounding in the arts to enable each student to appreciate his/her cultural and historical heritage;
- sufficient training or preparation for advanced training in either academic or vocational fields...to enable each child to choose and pursue life work ... ;
- sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics and the job market.
In summary, the District Court panel wrote, "we find the Kansas public education financing system provided by the legislature for grades K-12 -- through structure and implementation -- is not presently reasonably calculated to have all Kansas public education students meet or exceed the Rose factors." (emphasis in original)
Monday, January 26, 2015
Yesterday, the Washington Post ran Jay Mathews' commentary on changes in neighborhood schooling. As the National Center for Education Statistics' chart shows below, the percentage of students attending a public school of choice has risen significantly since the 1990s. Based on his personal experience, which he allows is biased, Mathews laments the decline in neighborhood schooling. However, he notes that technology and other modern innovations make neighborhood schools less important than in prior eras. He ultimately suggests the change may be a good thing.
|Percentage distribution of students in grades 1–12, by type of school: 1993, 2003, and 2007|
Type of school
|Private, not church-related||1.6||2.4||2.6|
Mathews' commentary, however, ignores the more important issues involved in neighborhood schools: racial and socio-economic politics and equality. Mathews largely equates "assigned" school with "neighborhood" school and "chosen" school with "non-neighborhood. Neither is necessarily true. Districts operating voluntary desegregation plans often incorporate some form of choice, but the school a parent chooses is not necessarily non-neighborhood. The student assignment plan in Louisville that went to the Supreme Court in Parents Involved v. Seattle, for instance, drew larger neighborhood attendance zones and allowed parents the opportunity to choose among neighborhood schools. Sometimes that was the school closest to a family, sometimes not. As a general principle, choice plans fall into two categories: those designed to foster integration and those designed to allow parents to escape integration.
Likewise, for political and other reasons, school districts may draw attendance zones in ways that assign students to schools that are not the closest to their home. This zoning can be integrative or segregative, although we rarely see the former outside the context of a mandatory school desegregation order. Instead, as Myron Orfield has noted in numerous presentations across the country, some of the most oddly shaped, non-choice attendance zones he has seen are those designed to keep the "wrong" people out of a school, or in a school of their own. In short, one cannot have a conversation about neighborhood schools without considering the racial and socio-economic context in which they operate. That conversation here would show that choice has the capacity to mitigate much of the racial and socio-economic inequality in our schools, but more often has been used to exacerbate it.
Friday, January 23, 2015
In 1997, North Carolina Supreme Court recognized a state constitutional right to "the opportunity to obtain a sound basic education" in a long-running education equity lawsuit, Leandro v. State, 346 N.C. 336, 354 (1997). The job of monitoring the state's compliance with Leandro fell to N.C. Superior Court Judge Howard Manning Jr. Yesterday, Judge Manning questioned whether the state was trying to lessen its responsibility to meet Leandro’s guidelines by redefining student achievement. In March 2014, the North Carolina Board of Education expanded its definition of student readiness to include students who still needed substantial remedial help in the classroom as ready to advance to the next grade. In an earlier order, Judge Manning questioned whether the added level was “academic double speak” that indicated improved student outcomes on paper that were not actually occurring. Yesterday, Deputy State Superintendent for Public Instruction Rebecca Garland explained that the changed definition is in line with higher proficiency requirements and more challenging courses. Nevertheless, Judge Manning concluded the hearing by observing, “The system is not on track” and “is not producing any substantive gains whatsoever.” Read more at here and here.
Whether one supports state statutes that require schools to include student test scores in teacher evaluations or not, a new report detailing the extent to which some schools have failed to implement the pertinent California law is shocking. The Ed Voice Institute's new report, Student Progress Ignored: An Examination of California School Districts' Compliance with the Stull Act, finds:
- The majority of districts do not formally assess whether or not a student is actually learning when considering the job performance of that student’s teacher.
- The San Ramon Valley and Upland Unified School Districts are in violation of the law by explicitly prohibiting the use of mandatory measures of pupil progress.
- Overall, 86.5% of evaluations did not include a connection to pupil progress in their comments. Even in the best district, only 36% of district’s teachers had an evaluation that included any mention of pupil progress.
- In one district, 100% of teachers received a rating of “meets standards”; however, the overwhelming majority of actual evaluations provided no evidence that students in the teacher’s classroom made any progress in reaching grade level expectations.
A key policy question is whether this is akin to massive resistance or just another example of the slow uptake of new education policies. My guess is that it is a little of both.
Thursday, January 22, 2015
Last year, the Maine Supreme Court upheld a legal challenge by a transgendered student who argued that her exclusion from the girl's bathroom violated Maine's Human Rights Act. On remand, she was also awarded $75,000 in damages. Earlier this month, the ACLU filed administrative complaints with the Department of Education's Office for Civil Rights and the Department of Justice, alleging that a similar exclusion in the Gloucester County Public Schools in Virginia amounts to sex discrimination in violation of Title IX. Because the Maine case was decided on state law, it had no direct impact elsewhere. A positive finding by OCR, however, would prompt change across all states. OCR has been aggressive in enforcing the law under Assistant Secretary Lhamon, but given the new ground this complaint might break, I would expect this complaint to proceed slowly to allow for careful investigation and deliberation.
Wednesday, January 21, 2015
Over the past few years, states have begun revamping their teacher evaluation systems and heavily relying on data driven assessment. Prior to Illinois' new system, a pilot program in Chicago Public Schools relied on highly structured classroom observations in evaluating teachers. A new study analyzes the impact those observations had on teacher and student performance, and emphasizes the continuing importance of those observations, notwithstanding the new rush to have data systems dominate teacher evaluations. The study concludes:
The implementation of the EITP [ Excellence in Teaching Project] pilot in Chicago occurred prior to the nationwide shift toward more rigorous teacher-evaluation systems. These new teacher-evaluation systems incorporate multiple measures of teacher performance, including value-added metrics based on standardized tests or teacher-designed assessments and, in some cases, student feedback on teacher performance and peer evaluations. Unlike these systems, the EITP was focused solely on classroom observation. What is notable about the version of teacher evaluation systems currently evolving in districts throughout the nation, however, is the continued emphasis on classroom observations, with many systems employing the same observation tool used in CPS under the EITP initiative.
Tuesday, January 20, 2015
Ed. note: Professsor Dan Subotnik's short essay below calling for a reexamination of university tenure echoes themes heard in recent discussions of the role of tenure in K-12.
Untenuring Tenure by Dan Subotnik (Touro Law)
A specter haunting the academy today is of an intellectually wizened white male professoriate refusing to step aside for au courant, energetic, ambitious, and of course diverse younger faculty. Part of a larger concern with tenure itself, the fear in question is that tenured old-timers, of which I am one, are holding fast to financial and administrative perks, limiting institutional control and stifling institutional development in the process.
Sometimes the fear is expressed openly. Intractable seniors, according to a recent, widely debated Chronicle Review post (“The Forever Professors”) often “crush the young” through their “selfish[ness].” A law school colleague argues that, having enjoyed our share of university bounty, responsible seniors should facilitate succession by quickly and gracefully exiting the stage. Such a development might be contrasted with what is actually happening today: seniors in effect extorting rich buyouts to retire.
More of the time, of course, the critique is not explicit. Yet who among us seniors has not felt the sting of “what are you still doing here, gramps” looks from junior law faculty and deans?
A visceral response to critics may be tempting here, but we must show our maturity. Beating up the young for impertinence would show both ignorance and hypocrisy. Inter-generational, oedipal struggle, we have learned, is the way of the world, and, it must be admitted, many of us felt the same way 30 years ago about our predecessors in law. They would never have gotten their jobs in the competitive environment of 1985, we self-righteously told ourselves, just like we would not get ours in today’s environment, when two good law review articles are required just for a job interview.
We must also admit that the young are not wrong to be concerned about their future. Well known is that law schools are experiencing budgetary upheaval. Our schools are hurting badly. There are many more law school seats and 50 more law schools now for the same number of students as attended law school 40 years ago. In this harsh setting, it is not surprising that senior faculty make up an ever larger fraction of faculty, that raises are skimpy or nonexistent, and, above all, that the risks of dismissal fall most heavily on those with least seniority. Tenure may lie at the very heart of academic freedom, but the foregoing problems are fairly laid at its doorstep. Dismissal “for cause,” as is usually required, has proved an exceedingly heavy burden for academic institutions.
Monday, January 19, 2015
Professor Banks (Maryland) on The Unfinished Journey-Education, Equality, and Martin Luther King, Jr. Revisited
Although we have mentioned this article before, reposting part of Professor Taunya Lovell Banks's (Maryland) lecture at Villanova School of Law on King and education seemed appropriate on MLK Day. Below is a short excerpt from The Unfinished Journey-Education, Equality, and Martin Luther King, Jr. Revisited, 58 Vill. L. Rev. 471, 484-85 (2013):
In 1994 I celebrated the King Holiday in Honolulu, Hawaii, and witnessed the first celebration I thought truly represented Dr. King's dream. This celebration bore little resemblance to the token ceremonies I witnessed on the mainland. Those ceremonies treat the King birthday as a “black” holiday. In Honolulu the audience was large, and given that state's multi-racial and multi-ethnic composition, diverse. There was singing by a black church choral group from the military base, music by the Royal Hawaiian Band and dancing by elderly Japanese-American women. Various groups representing other components of the Island's community also participated. The Honolulu celebration seemed to capture Dr. King's thoughts that “[a]n individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.” ... This is why we must strive for equally resourced, racially and economically diverse public schools classrooms throughout America. We are naïve, however, if we believe that achieving educational equality is a simple task capable of easy fixes. Looking backward it becomes apparent that, like governance in general, with public education “[t]here is no equilibrium. [[Rather, t]here's just a process of critique and mobilization and activism that dynamically inches you toward something better."
Friday, January 16, 2015
The Justice Department filed suit against the Chicago Board of Education in late December, alleging that an elementary school principal discriminated against pregnant teachers in violation of Title VII of the Civil Rights Act of 1964. The complaint alleges that, from 2009 to 2012, a principal at a Chicago elementary school lowered the performance evaluations and moved to terminate eight teachers who announced their pregnancies. The principal also made negative comments to and about pregnant teachers at Scammon Elementary, including: “responding to a teacher's announcement of her pregnancy by saying, “I can't believe you are doing this to me. You are going to be out right before [mandatory] testing!;” asking a Scammon staff member if a teacher who had been pregnant was pregnant again; ignoring a teacher after the teacher announced her pregnancy; ignoring a teacher's request to meet regarding her upcoming maternity leave; repeatedly asking a teacher who was nursing and expressing breast milk questions such as, “That isn't over yet?” and “When will you be done with that?”; and stating that a teacher who requested an accommodation to express breast milk complained too much and was too high maintenance.” The complaint filed December 23, 2014, can be found at United States v. Chicago Board of Education, et. al, 2014 WL 7384980 (N.D.Ill.)
Thursday, January 15, 2015
NPR ran an interesting story this morning about how parents choose schools. It was based on a new report on school choice in New Orleans, which is, of course, all charter now. This unique characteristic, along with various other local circumstances, may or may not make the findings of national significance, but they are certainly surprising, if not controversial. NPR offered this summary of the report's findings:
- Parents care about academics, but not as much as they say they do. "The role of academics seemed somewhat lower [than in other studies]," says Douglas Harris, lead author on the report. And because of the nature of the study, which shows where families actually enroll, "we're actually able to quantify that in ways that other studies couldn't."
- Distance matters. A lot. Schools in New Orleans are ranked by letter grades, depending mostly on their scores on state tests. What the researchers found was that three-quarters of a mile in distance was equal to a letter grade in terms of family preferences. In other words, a C-grade school across the street was slightly preferable to a B-grade school just a mile away.
- Extended hours matter. Parents of younger children preferred extended school hours and after-school programs.
- Extracurriculars matter. Especially for high school students. And perhaps, even more so in this city famous for its music and its love of the Saints. A C-grade school with a well-known football and band program could beat out a B-grade school without them. (Of note: In traditional public school systems, most high schools offer these extracurriculars; New Orleans has many smaller specialized schools that don't.)
- Poorer families care more about other factors — and less about academics. The study split families up into thirds based on the median income in their census tract. What they found was that the lowest-income New Orleans families were even more likely to pick schools that were close by, that offered extended days, and had football and band in high school — and conversely, they had a weaker preference for schools based on test scores.
Wednesday, January 14, 2015
Over the past year, numerous posts on this blog have analyzed the highest profile charter scandals. As one post emphasized, traditional public schools are not immune to scandal either. Thus, the point of this post is not beat up on charters. Rather, the relevant points and questions are whether the rate of scandal is any different in charter schools and whether the nature of the scandals in charters differs from public schools. My general observation is that there seems to be a higher rate in charters, but the scandals in charters tend to be different in character than those in traditional public schools. If this is so, the problem is potentially easier to fix, as there are aspects of charter school structure that may allow for or incentivize scandal, rather than the concept of a charter itself. Jeff Bryant, at Salon.com, offers a comprehensive rundown of charter school scandals and reports on them. He catches far more than you would have read on this blog.
Cary Coglianese, Professor of Law and Director of Penn Law's Program on Regulation, has brought together a series of commentators on the Common Core. Over the next two weeks, a series of commentators will publish essays here. The topics and commentators include:
- Common Core Creates Professional Possibilities, Maddie Fennell
- The Common Core is a Remedy Worse than the Disease, Anthony Cody
- Stay the Course, or Turn the Page?, Michael J. Petrilli
- The Common Core is Passable in Theory but Problematic in Reality, Frederick Hess
- Common Misperceptions, Annice Brave
- The Good, the Bad, and the Ugly of the Common Core, Josh Stumpenhorst
- Testing is Destroying the Common Core, Anna Baldwin.
Tuesday, January 13, 2015
Conference at UCLA Law: Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning
UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) will present a one-day conference called "Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning" on February 28, 2015 in Los Angeles, California. The conference will include five workshop sessions presented by teachers featured in What the Best Law Teachers Do. Participants will learn concrete ideas for enhancing participation and inclusion in law school classrooms to take back to their students, colleagues, and institutions. Learn more about the conference here. Thanks to Emily Grant (Washburn Law) for the tip.
Since the start of the new year, discussions regarding the reauthorization of No Child Left Behind (NCLB) have become part of the daily news cycle. This much substantive discussion of reauthorization has not occurred since the presidential election of 2008. These signals are strengthening the possibility that Republicans can and will pass a reauthorization bill. At least, they are clearly indicating they will. Whether President Obama would veto the legislation is less clear, but based on yesterday's comments by Secretary Duncan, the likelihood of veto also seems likely, unless the two sides mediate their positions.
Republicans are discussing legislation that would significantly unravel the current role of the federal government in education and turn education leadership back to the states. While consistent with traditional Republican values, such a move is surprising on several levels. First, No Child Left Behind was one of President George W. Bush's signature pieces of legislation. John Beohner was also heavily involved in its drafting, and the bill passed with heavy bipartisan support. Second, while NCLB significantly expanded the federal role in education, the federal role had been growing steadily over the previous decades. Few seemed to mind. Many, of course, disliked the substance of No Child Left Behind and the recent waivers issued under it, but the federal role in education (and the money it brought) was not normatively problematic to the mainstream. As I pointed out in an article in 2012, NCLB was a smashing success in terms creating and cementing the accountability structures for federal leadership on education. In short, the federal role in education was no longer new or controversial.
Monday, January 12, 2015
I doubt it, but Friday the New York Times Editorial Board decried the segregation in the state, citing it as the nation's worst. This, of course, is not news to most readers of this blog. Back in March I posted on the Civil Rights Project's new report labeling New York as such. And the Times itself has published various editorials over the past few years by the likes of Gary Orfield and john powell. It has also done a few background stories. But I cannot recall the Editorial Board taking an affirmative stance on integration itself. Such a stance is important, and comes on the heels of an announcement the previous week by New York that it would offer pilot program grants to school districts seeking to promote socioeconomic integration in schools. Let us hope that the pendulum is beginning to swing. The full oped is here.
South Carolina legislators have put forth two bills to require gun safety and Second Amendment curriculum in schools. Putting aside the fact that South Carolina's school system was declared constitutionally inadequate this winter, these bills are hard to appreciate. First, while it is important for state legislatures' to lead on education issues, rather than devolving all discretion to local school districts, anytime any one toys with the curriculum for political purposes it creates educational and legal problems. See here, here, here, and here. As I teach educational law each year, I often remind my students that we see so many religion and speech cases in education because adults cannot seem to help themselves from using education as their playground.
Second, one of the sponsors of the bill said he was prompted to write it after learning of a local student who was suspended and arrested over a story he wrote for class about shooting a dinosaur. This, says the legislature, was a travesty under both the First and Second Amendments. He is probably correct about the former. (See here for my earlier post on the suspension.) If there was any reason to believe that weapons curriculum might mitigate the use of zero tolerance policies against students, the bill might be innovative. But the more obvious solution would seem to be to address zero tolerance policies themselves or train teachers on students' First Amendment rights.
Friday, January 9, 2015
Just before the end of the year, a three judge state district court panel held that Kansas public schools have been unconstitutionally underfunded. The court found insufficient "provision allowing localities to provide funding to equalize the gap between rich and poor districts . . . because it did not guarantee that the playing field would be leveled." This decision marks jut one more in a line of lower and supreme court opinions consistently finding that the Kansas legislature is failing to provide sufficient educational funding to meet the state constitution's requirement of "'suitable provision[s] for finance of the educational interests of the state.'" The panel refrained from indicating what specific amount of additional funding would be sufficient, citing separation of powers concerns. The panel did, however, suggest that somewhere between $4,654 - $4,980 per student would be constitutional. This suggestion also comes on top of 2013 ruling that an additional $440 million would be necessary statewide to meet constitutional requirements. The state previously agreed gradually increase per pupil funding to $4,492 and nearly got there in 2008, but since then, let per pupil funding dwindle back down to $3,852 per student. Recent tax cuts in the state, commitments to teachers' pension plans, and a projected $278 million shortfall in the state budget for 2015 will make reversing this trend a political challenge, but the constitution offers no quarter to such politics.
Unfortunately, I have been unable to read the opinion itself and have had to rely on media reports. I will update this post with a link to the opinion when it becomes available. I did, however, find an excellent time line of school finance battles in the state here.