Tuesday, July 25, 2017
Scholarship: Re-Conceptualizing the Response to Campus Sexual Violence in a Closed Institutional System
Campus sexual assault is being discussed in the mainstream media recently following Education Secretary Betsy DeVos's statement that the ED's current guidelines to campuses are not adequately protecting students accused of sexual assault and statements by the acting assistant secretary for civil rights stating that Title IX rules result in false accusations. In their essay, Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, authors Hannah Brenner (California Western) and Kathleen Darcy (Michigan), raise a different aspect of the problem: that the closed institutional nature of higher education settings add to the difficulty of holding people accountable for campus sexual assault. The authors view campuses through the characteristics of prison and the military, and conclude that colleges' quasi-closed system may hinder "crafting better remedies to both prevent and reform the response to sexual violence." The essay is Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, 102 Cornell L. Rev. Online 127 (2017), and is available here.
Wednesday, July 19, 2017
The Association of American Law Schools' Education Law Section has announced a call for papers for its 2018 Annual Meeting session, “Law, Politics, and the Public University,” co-sponsored by the Sections on Constitutional Law and State and Local Government Law. The selected paper will be presented during AALS at a panel addressing topics such as the First Amendment, sanctuary campuses, student debt and higher education financing, for-profit colleges, admissions policies, and the demographics of higher education.
The selected paper will be chosen by the Education Law Section executive committee, and presented during AALS on Thursday, January 4, 2018, from 1:30 to 3:15 pm. The paper selected may have the option of publishing with the Fordham Urban Law Journal, although publication in that journal is not a requirement of participation. Authors interested in this opportunity should so note on their submission. Submissions should be emailed to Professor Eloise Pasachoff at email@example.com by Friday, August 25, 2017.
Monday, July 17, 2017
In my forthcoming article, The Constitutional Compromise to Guarantee Education,
Stanford Law Review, I argue that, contrary to popular belief, our federal constitution does protect a right to education. I base the argument on congressional debates, state constitutional conventions, and the new state constitutional amendments that states passed in the conjunction with ratifying the Fourteenth Amendment to the U.S. Constitution.
On one hand, the right lays in plain sight. On the other, it has been overlooked due to the complexity of the ratification process and subsequent historical events that sought to overturn the substance and effect of the Fourteenth Amendment.
The abstract offers this summary:
Although the Supreme Court refused to recognize education as a fundamental right in San Antonio v. Rodriguez, the Court in several other cases has emphasized the possibility that the constitution might afford some protection for education. The Court, however, has never explained why the constitution should protect education.
New litigation is attempting to capitalize on the Court's sympathy toward education, but convincing the courts will still require a compelling affirmative constitutional theory. This Article offers that theory, demonstrating that the original intent of the Fourteenth Amendment was to guarantee education as a right of state citizenship. This simple concept has been obscured by the unusually complex ratification of the Amendment. But this article, relying on primary sources, reveals that providing public education was a condition of southern states' readmission to Union and was incorporated into the meaning of the Fourteenth Amendment. As a right of citizenship, this Article also theorizes that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity--some of which have continued to this day.
Read the full draft here.
Friday, July 14, 2017
There is a certain irony in the choice of tactics in last week’s lawsuits filed in response to the Education Department’s effort to back away from Obama-era rules that created a process for indebted students to get out of their loan repayment obligations if the institution they attended made false or misleading statements. The 19 states that filed a federal lawsuit in Washington, D.C., are making the same kind of argument that for-profit higher education providers used in their lawsuit against prior efforts to regulate in this area.
In their complaint, the states, which include Massachusetts, California, and New York, charge that the Department’s effort to postpone implementation of the rules violates the Administrative Procedures Act, or APA.
While the Department justified the decision to delay implementation of the rules by citing pending litigation filed by the California Association of Private Postsecondary Schools, the states argued in their complaint that not every rule subject to delay had been targeted in the trade group’s lawsuit.
According to the states, the Department’s delay of the rule must itself be subject to notice and comment, like any new rule, and the Department’s failure to do so constitutes a violation of the APA. Through litigation, the states hope to have a judge order implementation of the rules.
To appreciate the irony, you have to let your mind wander way back to 2011. That’s when the Association of Private Sector Colleges and Universities sued the Education Department to block implementation of the “gainful employment” rules, which among other things would have imposed penalties on institutions if the ratio of their students’ debt to income exceeded a specified level. The trade group’s lawsuit succeeded in delaying full implementation of the rules; if you want the gory details, the trial court decision was Association of Private Colleges and Universities v. Duncan, 870 F.Sup. 2d 133 (2012).
The Department re-developed the rules, which the trade group immediately sued to block. The new version of the gainful employment rules survived a set of legal challenges by the trade group, culminating in an opinion by the D.C. Circuit Court of Appeals (Association of Private Sector Colleges and Universities v. Duncan, 640 Fed. Appx. 5 (2016)).
The irony arises because in both sets of challenges to those rules, what provision of what law did trade group rely on? You guessed it: The same provision of the Administrative Procedures Act.
The trade group argued that each version of the gainful employment rules was “arbitrary and capricious,” the magic phrase from the Act, which at 5 U.S.C. §706(2) requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be… (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The states contend that the delaying of the rules is arbitrary and capricious and otherwise flawed. So to protect a more recent regulatory effort, the states are using the same tactic that was used to attack a prior one.
Whether a new sheriff in town can impose new rules will thus depend on whether the courts find that the new sheriff played by the rules.
Tuesday, July 11, 2017
Scholarship: A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty
Nancy Cantalupo, and William Kidder have posted their article, A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty on SSRN. (Utah Law Review, forthcoming). From the Abstract:
This article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment.
The 2017 Central States Law Schools Association invites law faculty to submit proposals to present papers or works in progress for its 2017 Scholarship Conference. CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. The Scholarship Conference will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. The deadline for registration is September 2, 2017. More information about CSLSA and the 2017 Annual Conference is available at CSLSA’s blog. Click here to register.
This month marks the 30th anniversary of the U.S. Supreme Court’s decision in Edwards v. Aguillard, a groundbreaking case that ruled it unconstitutional to require creationism to be taught in public schools.
Though much has changed in 30 years, the broad questions raised by this case remain timely. Who gets to decide what knowledge will be transmitted to the next generation – parents? Elected officials? Academic experts? What role (if any) should the courts play in policing such decisions?
As a scholar of education law and First Amendment law, I’ve seen these very questions animate curricular controversies over climate change, American history, and more.
While recent debates seem to share a common structure with controversies about the teaching of evolution, there’s a key difference: Edwards v. Aguillard stands not for the broad idea that it’s unconstitutional for public schools to teach “bad science,” but for the narrower idea that it’s unconstitutional for them to teach religion as truth.
A century of science and religion
Some conservative religious believers – mainly fundamentalist or evangelical Protestants – have long viewed Darwin’s ideas as incompatible with their faith. Consequently, they’ve resisted the undiluted teaching of evolutionary theory in public schools.
Early resistance took the form of statutes criminalizing the teaching of evolution, most famously the Tennessee ban at the heart of the famous “Scopes Monkey Trial” of 1925.
In the next four decades, the legal playing field changed dramatically. The Supreme Court applied the Constitution’s Establishment Clause to the states in 1947, initially reading the clause to require the “separation of church and state.” In the early 1960s, cases banning school-sponsored classroom prayer and devotional Bible reading interpreted the separation of church and state to mean that schools could teach about religion, but they couldn’t constitutionally teach religion as true.
It followed that teaching the biblical creation story as a true account of human origins was out of the question. The Supreme Court put a categorical end to Tennessee-style “monkey laws” in its 1968 decision in Epperson v. Arkansas.
In 1971’s Lemon v. Kurtzman, the Supreme Court solidified its views on church-state separation by adopting a three-prong “test” to determine whether laws violated the Establishment Clause. To be constitutional:
- A law must have a secular legislative purpose.
- Its primary effect must neither advance nor inhibit religion.
- It must not foster excessive government entanglement with religion.
Lemon’s support on today’s Supreme Court is much weaker than it was 40 years ago, but it has been the dominant test employed in the case law on creationism and evolution.
Can we teach a bit of each?
Why, then, didn’t the Supreme Court’s adoption of the Lemon test close the book on creationist teaching once and for all? The answer, in a nutshell, is that creationism went underground.
Once the state could neither teach biblical creationism nor categorically forbid the teaching of evolution, creationists turned to new strategies.
The first post-Epperson wave of resistance involved a number of state legislatures that required the “balanced treatment” of both evolution and “scientific creationism” in the science classroom. Students would be presented with two “scientific” accounts side by side and could make up their own minds.
Yet, for this strategy to succeed, proponents needed to convince courts that “scientific creationism” was more than just Sunday school in disguise. In McLean v. Arkansas (1982), a federal district court struck down Arkansas’s balanced treatment law, ruling that it merely omitted biblical references without actually changing the religious purpose of the law. The court also developed a definition of “science” and concluded that “creation science” did not satisfy it.
Edwards v. Aguillard
In 1981, Louisiana passed the “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act.” Though similar to the law struck down in McLean v. Arkansas, Louisiana lawmakers took extra steps to attempt to cleanse religion from their law after Arkansas’s balanced treatment act had been challenged in court.
Under the law’s terms, no school was required to teach either evolution or creation science, but if one were taught, the other had to be taught as well. The declared purpose of the law was protecting “academic freedom.”
On June 19, 1987, the Supreme Court ruled 7-2 in the case of Edwards v. Aguillard that the Louisiana law was unconstitutional. Writing for the court, Justice Brennan explained that the act had no secular purpose – and thus violated the first prong of the “Lemon test.” Further, Brennan rejected the act’s purported purpose of protecting academic freedom:
“The Act actually serves to diminish academic freedom by removing the flexibility to teach evolution without also teaching creation science, even if teachers determine that such curriculum results in less effective and comprehensive science instruction.”
‘Teaching the controversy’
Like Epperson v. Arkansas, the Edwards case was a decisive Supreme Court defeat for anti-evolution forces.
As creationists came to understand that the Supreme Court would not approve laws with religious agendas so close to the surface, many shifted their focus to more subtle tactics, which involved some version of “teaching the controversy” regarding evolution. One strategy was to adopt disclaimers explaining to students that evolution was a “theory, not a fact” or that teaching evolution was “not intended to influence or dissuade the Biblical version of Creation.” Courts uniformly ruled against these disclaimers.
Kitzmiller v. Dover School District (2005), the best-known post-Edwards case, addressed the strategy of substituting “intelligent design theory” for “scientific creationism.” A Pennsylvania school district’s evolution disclaimer included the suggestion that students consider the theory of “intelligent design” as developed in the textbook, “Of Pandas and People.”
Intelligent design proponents argue that mutation and natural selection cannot adequately explain the emergence of “irreducibly complex” biological structures; such structures must have been designed. Officially, the “designer” could have been anyone – a space alien, perhaps – thus “intelligent design” is claimed not to be religious in character.
The district court, however, soundly rejected these arguments. As had the court in McLean v. Arkansas, the Kitzmiller court discussed the nature of science and concluded that intelligent design was not science.
The legacy of Edwards today
Courts have been remarkably consistent in rejecting creationist efforts to undermine the teaching of evolution. It’s tempting to see these cases as a sign that courts will protect the integrity of science and of academic judgments generally. (One might think, for example, that courts would just as readily step in when political actors reject the teaching of mainstream climate science in public schools.) But the cases don’t sweep so broadly.
Even in cases where courts explicitly state that creationism/intelligent design is not science, they make this point only as a step toward the critical point that creationism is religion. In other words, courts do not weigh in on whether science lessons must be supported by mainstream scientific experts, only that religious views can’t be taught as science.
Respect for academic expertise is incredibly important. One might argue, as Robert Post has done, that the expertise fostered by academic disciplines deserves First Amendment protection. But the courts aren’t there yet.
Recent efforts to undermine the teaching of evolution have mainly taken the form of so-called “academic freedom” or “science education” bills, which have been proposed in a number of states and have passed in Louisiana (2008) and Tennessee (2012).
These bills exploit an opening left by Edwards v. Aguillard: Teachers are not required to teach creation alongside evolution; rather, they’re given the “academic freedom” to emphasize critiques while teaching evolution in their science classes. The bills downplay religion by not mentioning the topic of evolution or by mentioning it alongside other controversial topics like climate change.
Legal precedent would not allow public school teachers to explicitly use this “academic freedom” to undermine science education in favor of religion. However, it’s difficult to know how many teachers are choosing to do so – and whether those choices have anything to do with the legislation.
Edwards v. Aguillard struck an important blow for science education, and it fundamentally reshaped the tactics available to creationists. Its influence on these fronts has been significant and laudable, but its reasoning is heavily reliant on historical links to old-school creationism and on a conception of the separation of church and state that’s stricter than the likely views of current Supreme Court justices. These points limit the case’s ability to speak to the full range of curricular problems we confront today.
Monday, July 10, 2017
Scholarship: Reconciling Liberty and Equality Interests in Education Cases; Applying O'Bannon v. NCAA
Joshua Weishart (West Virginia) encourages state courts to balance both liberty and equality in addressing state constitutional claims of education disparities. The article is available on SSRN here. Excerpted from the abstract:
This Article proposes that courts analyze the state constitutional right to education as a claim for “equal liberty” and subject it to a new standard of review. State court adjudication of the right to education over the past five decades reflects ambivalence with heightened scrutiny in favor of an ad hoc means-ends review. That review confers substantial deference to legislative judgment and has excused persistent educational disparities based on the “reasonableness” of legislative efforts. To overcome these shortcomings and lingering justiciability concerns, courts need a principled methodology for reconciling liberty and equality interests.
Against tradition calling for these interests to be “balanced,” I contend that equality and liberty can yet maintain a positive, directly proportional relationship in the law. Applying direct-proportionality review, the judicial lens should focus on whether the state’s actions advance both equality and liberty interests in tandem and whether the margin between these ends is proportional so as to protect children from the harms of educational disparities.
Matt Mitten, Why and How the Supreme Court Should Have Decided O'Bannon v. NCAA (Antitrust Bulletin)
Matt Mitten (Marquette) suggests ways to apply the Ninth Circuit's decision in O'Bannon v. NCAA after the Supreme Court failed to grant certiorari in the case to resolve confusion about how antitrust law constrains the NCAA’s governance of intercollegiate athletics. Below is an excerpt from the abstract, which is available on SSRN here:
Despite requests by both parties, the United States Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates section 1 of the Sherman Act. This article makes some recommendations for applying section 1 to NCAA student-athlete eligibility rules and input market restraints, which will better promote consumer welfare, protect student-athletes’ economic rights, and permit the NCAA to promote the unique features of intercollegiate sports without unwarranted judicial micromanagement.
Deliberate Indifference to a Hostile Environment: A Call for Attorneys to Protect Vulnerable Students By Nancy Willard
Public school districts violate federal civil rights laws when discriminatory harassment of students based on race, color, national origin, sex, or disability is sufficiently serious to create a hostile environment that is interfering with the students’ rights to receive an education, and school staff encourage, tolerate, do not adequately address, or ignore such harassment.
An unacceptably high number of students in public schools in the U.S. are suffering from daily bullying and harassment by their peers--and sometimes school staff. This emotional, and sometimes physical, abuse is known to have a life long harmful impact and to significantly interfere with the targeted students’ ability to receive an education.
While bullying and harassment of students has received a higher degree of focus in recent years, there is no evidence of any significant decrease in the number of students reporting being bullied and harassed. In fact, in some states, it appears that the approach promoted by the state’s anti-bullying statute is having an opposite effect.
For example, in the state of New York, the much-touted Dignity Act for All Students (DASA) was enacted in 2010. On the Youth Risk Behavior Survey in 2011, 18% of New York students reported being bullied. By 2015, this rate had increased to 21%. Under DASA, schools are required to make annual public reports of the number of bullying incidents--a black-mark on the school. In the 2015-16 school year, 71% of New York City schools reported zero bullying incidents.
The approach incorporated into state statutes has created the misperception that all educators must do is have rules in place against bullying, tell students to report, and have the principal investigate, respond with discipline if appropriate, and keep records. This approach has been set into place at the same time that schools are under strong pressure to reduce disciplinary consequences. Thus, there is strong pressure on principals and staff to avoid ever considering hurtful acts of students to constitute “bullying.”
Students and their parents do not know how to retain data and report these incidents in accord with the tight definition in the statutes. Students who are being treated badly, sometimes on a daily basis, are too often told they are overreacting and there is nothing the school can or will do. It is no wonder that the majority of students who are harassed have often gotten to the point where they will not report these incidents. They know from experience that there is nothing the school will do--or reporting could make things far worse.
Under federal civil rights regulations, if a hostile environment is known to exist, schools are required to both investigate and intervene in the specific instances of which they have knowledge and to take necessary steps to correct the hostile environment that underlies the hurtful behavior.
An excellent publication is by the U.S. Department of Education’s Office for Civil Rights (OCR), entitled Protecting Students from Harassment and Hate Crime: A Guide for Schools (now out of date due to changes in the approach to gender role stereotyping). OCR did an excellent job in explaining the importance of a focus on school climate and outlining recommended steps a school should take.
The National School Board Association (NSBA), in an endorsement statement, was in full agreement:
Research indicates that creating a supportive school climate is the most important step in preventing harassment. A school can have policies and procedures, but these alone will not prevent harassment. This is the kind of good preventive work the field needs to help ensure that schools provide a safe and welcome environment for all students.
The leading Supreme Court case addressing student-on-student harassment is Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999). In this case, SCOTUS stated:
Schools can be held financially liable if they are deliberately indifferent to known acts of student-on-student harassment and the harasser is under the school’s authority so long as the harassment is so severe, pervasive, and objectionably offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
In an early case, Vance v. Spencer Cnty. Pub. Sch. Dist. 231 F.3d 253, 261 (6th Cir. 2000), the Sixth Circuit enunciated helpful guidelines:
Although no particular response is required, and although the school district is not required to eradicate all sexual harassment, the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.
Unfortunately, a recent trend in the case law has been to dismiss cases upon a showing that every time the student reported, the principal investigated and applied discipline, if deemed appropriate. Stiles v. Grainger County, Tenn. MiLW, No. 01-91360 (6th Circuit, March 25, 2016) and S.B. v. Harford County, No. 15-1474 (4th Circuit, April 8, 2016).
In these two cases, despite evidence of ongoing, extensive harassment, which the students occasionally reported, all the principals did was respond to the specific reported instances. The interventions by the principals were clearly ineffective in stopping the ongoing harassment and no comprehensive steps were taken to correct the hostile environment that clearly existed.
At this time, the NSBA has switched from its prior clear statement of the ineffectiveness of sole reliance on policies and procedures and now argues that if the principal responds in any way to the incidents the harassed student has bravely reported, the school should not be considered deliberately indifferent or be held liable.
In ongoing harassment situations, this level of response by the school principal will generally be ineffective in correcting the specific hurtful situations and does nothing to correct the hostile environment that is fueling the ongoing harassment. In these kinds of cases, greater attention must be paid to the failure of the principals to follow up to ensure effectiveness of their interventions, as well as their failure to engage the school community in comprehensive efforts to correct the evident hostile environment.
The regulations and evidence that raises the importance for a more comprehensive approach, that incorporates ongoing assessment of effectiveness, is readily available in the civil rights regulations and OCR guidance, as well as current academic research and guidance for schools--along with the above NSBA quote.
Unfortunately, at this point in time, there appears to be no other mechanism to exert influence on schools to take the concerns of discriminatory harassment more seriously than increased successful litigation against school districts.
Nancy Willard, M.S., J.D., has advanced degrees in special education and law. For over the last decade, she has focused her professional attention on concerns of digital safety and bullying. She has prepared a 90-minute video training for attorneys, which may, depending on the state, qualify for CLE credit. More information is available here.
Thursday, July 6, 2017
Pa. Supreme Court: District's Policy to Appeal Tax Assessments of Apartment Complexes Instead of Single-Family Homes Violates the State Constitution
The Pennsylvania Supreme Court recently held that commercial property owners stated a valid claim that school districts' decision to selectively appeal only commercial property assessments, such as apartment complexes, while choosing not to appeal the assessments of other types of property, such as single-family residential homes, violated the state constitution's tax uniformity clause (Pa. Const. art. VIII, §1). The state supreme court reversed the dismissal of the commercial property owners' complaint and remanded the case for further proceedings. In Valley Forge Towers v. Upper Merion SD, No. 49 MAP 2016 (Pa. Jul. 5, 2017), commercial property owners sued the Upper Merion School District when the district, in appealing the value of under-assessed property, targeted apartment complexes because commercial property would produce more tax-revenue than under-assessed single-family homes. The district also acknowledged that it wished to avoid upsetting parents (and potential voters) by appealing single-family home assessments, even though eighty percent of the district's single-family homes were under-assesssed. The commercial property owners' complaint was dismissed on a demurrer. On appeal, the Pennsylvania Supreme Court noted that the state constitution's tax uniformity clause incorporates the same equal protection analysis as the Equal Protection Clause of the United States Constitution. The court rejected the school district's argument, however, that it needed only to provide a rational basis for the deliberate and selective discrimination between commercial and single-family properties. The supreme court held that the district's appeal policy violated the Uniformity Clause, which "prohibits disparate treatment of sub-classifications of property in order to avoid political accountability employed by a taxing district lies within its discretion." Because the commercial property owners sufficiently alleged such discrimination, the court found that their complaint set forth a valid claim that the school district’s appeal policy violated the Uniformity Clause. Valley Forge Towers v. Upper Merion SD, No. 49 MAP 2016 (Pa. Jul. 5, 2017) is available here.
Wednesday, July 5, 2017
The Fifth Circuit held last week that requiring that students perform the Mexican Pledge of Allegiance as an assignment for a Spanish language class, and the school's actions afterwards, did not violate the First Amendment. In Brinsdon v. McAllen Independent Sch. Dist., 15-40160 (5th Cir. 2017), a teacher required students to memorize and recite in Spanish the Mexican Pledge of Allegiance. A student, Brinsdon, objected to reciting the Mexican Pledge because she felt pledging allegiance to a foreign country was wrong. The student was allowed to substitute an alternative writing assignment, for which she received a "C" grade. Because students who did the recited the Mexican Pledge received "A"s, Brinsdon suspected that her grade was retaliatory. Brinsdon surreptitiously filmed her fellow students reciting the Mexican pledge in class, using a spy pen given to her by her father. The father then sent the filmed footage to media outlet The Blaze, which in turn posted the recording to YouTube. Brinsdon and her family were subsequently interviewed by Fox News and Glenn Beck, which brought national publicity to the school, much of it hostile. She was removed from Spanish class for the rest of the semester and completed the class assignments in the school office. Brinsdon, who graduated in 2014, filed suit in the Southern District of Texas, claiming that her First Amendment rights were violated when she was compelled to recite the pledge and that she was retaliated against when she was removed from class and that she suffered disparate treatment under the Equal Protection Clause when she was removed from class. The federal district court below allowed the equal protection and compelled speech claims to proceed to trial and later found granted the district a judgment as a matter of law. On appeal, the Fifth Circuit held that the school officials were entitled to qualified immunity as they did not ignore "clearly established law when compelling a non-operative recitation of the Mexican pledge." The court distinguished this case from West Virginia State Bd. of Educ. v. Barnette (1943), which rejected state law requiring daily recitation of the U.S. Pledge of Allegiance in class, by noting that Brinsdon's assignment did not require allegiance to Mexico or suppressed her ability to express her beliefs by adopting those of others. Simply put, the circuit court relied on Tinker v. Des Moines (1969) to permit schools to require recitation of alternative beliefs for "legitimate pedagogical reasons." Turning to the retaliation claims, the court determined that the timeline of Brinsdon's removal was unclear on the record, but the reason for the underlying disruption of school activities was not Brinsdon's media appearances, but the publication of the unauthorized video of the students, which is not a protected First Amendment right. The court also found that the teacher and principal were entitled to qualified immunity. The case is available here.
Friday, June 30, 2017
Eighth Circuit Holds That Private School Student with Special Needs Entitled to FAPE Under Minnesota Law
Although the Individuals with Disabilities Education Act (IDEA) does not guarantee a right to special education services for private school students with disabilities, the Eighth Circuit recently held that Minnesota law does require public school districts to provide a free appropriate public education (FAPE) for private school students, as well as the right to dispute the provisions of special education services in an impartial due process hearing. In Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017), R.M.M., a student who attended a Catholic private school in Minneapolis, received an evaluation from the Minneapolis Public Schools (Special School District No. 1), in the fifth grade for special education services in reading, written expression, and math. After the Catholic school informed her parents that it could not provide the special education services that the student needed, the student transferred to Minneapolis Public Schools (MPS). The student sued MPS for failing to provide appropriate special education services while she was enrolled in private school. The Administrative Law Judge concluded that R.M.M. had been denied a FAPE; the federal district court dismissed the FAPE claims again the school system, but held that Minnesota law granted private school students the right to under the state law counterpart to FAPE. The district court also ruled for R.M.M. on the issue of whether private school students in Minnesota are entitled to a due process hearing to dispute whether they have received a FAPE. On MPS' appeal to the Eighth Circuit, the appeals court held that Minnesota's provision went beyond the minimum requirements of the IDEA, and when comparing Minnesota's statute with language in IDEA, the Eighth Circuit found that the Minnesota legislature intended to provide private students the right to a FAPE, even though the statute does not use the term. The applicable statute, known as the shared-time statute, provides that “No resident of a district who is eligible for special instruction and services under this section may be denied instruction and service on a shared time basis . . . because of attending a nonpublic school.” Id. § 125A.18. The appellate court also affirmed the district court on the issue of R.M.M.'s parents' ability to to an impartial due process hearing under state law. The parents did have such a right under Minnesota law, the court held, rejecting MPS' argument that only the school district could pursue such remedies when a child was enrolled in a non-public school. The case, Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017), is available here.
Thursday, June 29, 2017
Kevin Woodson's recent article, Why Kindergarten Is Too Late: The Need for Early Childhood Remedies in School Finance Litigation, 70 Ark. L. Rev. 87 (2017), recommends that funding for early childhood education in low-income districts should be included in states' education clause responsibilities. Excerpted (and slightly altered) from Prof. Woodson's article:
The case for early childhood programs as remedies for inadequate educational opportunity is now more compelling than ever. Scores of scientific and social science studies over the past ten years have made increasingly clear the extent to which differences in the quality of care and enrichment that children experience in their earliest years powerfully shape their future educational careers and thereby reinforce intergenerational cycles of inequality. [T]his Article aims to resurrect, and reinvigorate, [Harvard School of Education Dean Jim] Ryan's argument in favor of preschool as an essential remedy in education adequacy litigation. But whereas Ryan--based in part on his reading of the existing social science literature--focused specifically on adding one additional year of pre-kindergarten schooling, this Article argues for an even more robust expansion of early childhood-focused efforts. Relying upon a mounting body of research on the importance of children's home literacy environments and development experiences during infancy and toddlerhood--as well as empirical findings from a number of controlled field experiments--this Article also argues that states should implement and fund programs to provide developmental support for economically disadvantaged children in the first years of life.
Wednesday, June 28, 2017
On Tuesday, the New York Court of Appeals dismissed most of the claims in two lawsuits that alleged that the state has failed to adequately fund New York City public schools and thus violated the state constitution's education article's requirement to provide schoolchildren with a "sound basic education." The suits' plaintiffs contended that NYC schools received millions less than they were entitled after the legislature failed to fully fund the education formula it devised to comply with court orders in the long-standing equity suit, Campaign for Fiscal Equity, Inc. v State of New York. New York state froze education funding in the 2008 recession and reduced it thereafter, creating a nearly two billion dollar education funding deficit since the freeze. The plaintiffs in one of the suits, New Yorkers for Students' Educational Rights (NYSER), an educational advocacy group, sought relief for schoolchildren across the state. NYSER's funding adequacy claim survived, but the Court of Appeals limited the claim to NYC and Syracuse, where the plaintiffs had provided specific allegations of a causal link between budget cuts and education impact. The other plaintiffs, a coalition of parents (Aristy-Farer), argued that New York's withholding of $290 million in 2012 to the NYC school district as a penalty when the city failed to comply with state law requiring districts to conduct performance reviews of teachers and administrators violated the education article. The Court of Appeals held that this allegation did not state a cognizable claim as the education article does not require a particular amount of state funding. The remainder of the Aristy-Farer plaintiffs' claims were found to be inadequately pled as there was no specific allegation linking the failure to fund public schools with deficiencies in the city's education program. The Court of Appeals affirmed the Appellate Division's decision to allow two of NYSER's claims--one challenging the adequacy of the State's education funding accountability mechanisms and another the inadequate funding of NYC and Syracuse's school districts--to proceed. The decision in Aristy-Farer v. State (NY Ct. of App., June 27, 2017) available at FindLaw here.
Friday, June 16, 2017
The price of shares of for-profit higher education provider Apollo Education Group, owner of the University of Phoenix, rose nearly 7 percent the day after the election of Donald Trump, and kept rising in the following weeks. The price had been trending downward in 2015.
Various news organizations have written about similar post-election, upward bumps in the sector. Now comes the announcement on Wednesday from the Education Department that the Trump Administration intends to delay implementation of Obama-era rules aimed at curbing misconduct in the for-profit sector.
So we have some evidence that investors’ expectations were accurate.
Betsy DeVos, the education secretary, in a statement described the move as part of a “regulatory reset.” She did not explain precisely the reason for the reset, but more on that in a moment.
The rules, slated to take effect on July 1st, were already the product of a negotiated rulemaking process. The Education Department announced a new negotiated rulemaking on the regulations, which addressed borrower defenses to repayment and the “gainful employment” requirement.
The defense to repayment regulations sought to incorporate student borrowers’ ability to repay in the assessment of institutional eligibility for participation in federal student aid programs. The idea was, if a significant share of student borrowers struggled with their debts, perhaps the educational program should not be eligible to participate. A description of the rules is here.
What was wrong with these rules? They were “overly burdensome and confusing for institutions of higher education,” according to the Education Department statement.
The borrower defense to repayment rules create a procedure for student borrowers to contest the obligation to repay, if they can show the education provider made a misrepresentation or that the provider failed to perform on its contract with a student. The description is here.
On these, Secretary DeVos cited college and university concerns about the “excessively broad definitions of substantial misrepresentation and breach of contract, the lack of meaningful due process protections for institutions and ‘financial triggers’ under the new rules.”
Basically, it seems that neither set of rules was popular with the regulated industry, hence the “reset.”
Prior to the election, there was good reason to believe that a Trump Administration might be sympathetic to the for-profit education sector. After all, then-candidate Trump was associated with Trump University, which shortly after the election last fall settled civil lawsuits filed on behalf of former students. That settlement was approved by a court a few months ago.
But this week’s announcement is public executive action explicitly beneficial to the for-profit sector.
All of this is putting aside the question of whether the Education Department can unilaterally put the brakes on the rules. In its press release, the Department cites section 705 of the Administrative Procedures Act – do not worry, that is not a rabbit hole this post will explore in depth. But note the language of that provision, 5 U.S.C. §705, here in full:
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
Postponement is discretionary, not mandatory, under this provision. (The “pending judicial review” is a challenge to the defense to repayment rules filed less than a month ago by an association of private postsecondary schools, including for-profits; a link to the complaint is here.)
Unfortunately for Apollo Group shareholders, they voted way back in May 2016 to take the company private, in a transaction completed in February. Perhaps they should have held on.
Wednesday, June 14, 2017
In 2014, plaintiffs filed two different lawsuits challenging New Mexico's education system. The first alleged that ELL and economically disadvantaged students are receiving a substandard education under the state's funding scheme and A-F grading system. The state's education funding formula, the plaintiffs alleged, fails to allocate sufficient supplemental funds for areas were the needs are greatest for at-risk and special needs students. The funding inequity, combined with the teacher evaluation system, results in experienced teachers avoiding lower-ranked schools. The second lawsuit raises similar issues and emphasizes that the outcomes for students in the state have fallen to the bottom of nation.
The trial started this week. The AP reports:
"These failings are costing students the opportunity to succeed," said Marisa Bono, a lead attorney for the plaintiffs, in opening statements to the court. "The state is pumping hundreds of thousands of students into the state economy who are wholly unprepared for college or career."
Education officials under Republican Gov. Susana Martinez say spending is more than adequate, and that the state has added specialized programs to help struggling students while holding teachers and school leaders more accountable for students' academic progress.
In opening statements Monday, an attorney for the state said high levels of poverty across New Mexico have a major impact on the results of student testing — something that won't be addressed by funneling more money toward public schools.
"The evidence will show that additional spending will have virtually no effect on student test scores," attorney Jeff Wechsler said. "The defendants cannot show that spending more will impact them in any meaningful way."
. . . .
The plaintiffs called on Santa Fe Public Schools Superintendent Veronica Garcia — a former state public education secretary — to testify about what she described as shockingly low levels of proficiency in math and reading among graduating students.
Garcia noted that many schools are not included in new programs that intercede at an early age by expanding pre-school to 4-year-olds and lengthening the school day and school year through third grade. She faulted the overall level of state funding for public schools, as well as limited funds for programs tailored toward the students from low-income households where English is not the primary language.
It will be interesting to see what evidence Wechlsler uses to defend his claim that additional money is inconsequential. Maybe, he hopes to focus on "virtually" no "meaningful" effect, rather than suggest there is no effect. But even then, past research is not on his side. As detailed in Averting Educational Crisis, new research findings shoe a particularly compelling connection. For instance, Kirabo Jackson's study of three decades of data "found that a 20% increase in per-pupil funding, if maintained over the course of a students’ education career, results in low-income students completing almost a full additional year’s worth of education. That additional learning eliminates two-thirds of the gap in outcomes between low- and middle-income students." Likewise, the Kansas Supreme Court emphasized a recent study by the state itself that "concluded, with ‘99% confiden[ce],’ that the relationship between student performance and district spending was positive, i.e., that a 1% increase in student performance was associated with a .83% increase in spending."
Tuesday, June 13, 2017
Articles on teacher tenure evaluations and appointment of attorneys for sexual assault survivors on campus were recently published in Drake Law Review. Summaries are below:
Jodi Wood Jewell (La Verne College of Law), From Inspection, Supervision, and Observation to Value-Added Evaluation: A Brief History of U.S. Teacher Performance Evaluations, 65 Drake L. Rev. 363 (2017)
In this article, Jewell explores the history of teacher tenure and the challenges in adopting new teacher evaluation methods. Excerpted from the abstract:
This Article shows the slow development of teacher performance reviews over time; it begins with a history of teacher evaluation from the colonial era to the present, discusses the introduction of Valued Added Modeling (VAM) to ensure student achievement, provides an overview of current teacher evaluation models and concludes by identifying policy considerations in creating accurate, comprehensive and fair evaluation systems.
Kelly Alison Behre (UC Davis Law), Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys, 65 Drake L. Rev. 293 (2017)
Behre proposes providing victims' attorneys to promote sexual assault survivors' choice and voice throughout overlapping legal processes of a campus sexual assault investigation to mitigate the secondary trauma felt by survivors. Excerpted from the abstract:
Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and college adjudicatory system--all sources of secondary trauma. This Article suggests that access to victim-centered, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings. Specifically, the Article argues that student victims would benefit from access to victims' attorneys at four distinct stages following a sexual assault: (1) the pre-reporting stage-to provide sufficient information and legal advice to ensure reports to law enforcement and colleges are intentional and provided with victims' informed consent; (2) the investigation stage--to ensure that student victims maintain agency throughout the investigation, help prevent unprofessional investigation techniques, and promote access to interim measures necessary to meet safety, privacy, and educational needs; (3) the hearing stage--to enforce victims' safety rights, amplify victims' voices in the proceedings, and reduce secondary trauma from victim-blaming questions and arguments; and (4) the post-hearing stage, including appeals and civil lawsuits--to provide representation in internal college appeals, lawsuits filed by the respondent or victim against the college, and retaliatory complaints or lawsuits filed against the victim, including defamation and harassment.
Case Challenging Segregation as Violation of State Constitutional Right to Education Gains Support of National Scholars and Advocates
The Minnesota Supreme Court has previously recognized a fundamental right to an adequate education in the context of school funding challenge brought under the Education Clause of the state’s constitution. Now it is faced with the issue of whether a claim that Minneapolis-area schools are unlawfully segregated is appropriate for determination – or “justiciable.” – under that same Education Clause.
In Guzman v. Minnesota, a trial court judge ruled the plaintiffs’ segregation claim justiciable. The State appealed and the court of appeals reversed. The case is now before the Minnesota Supreme Court.
To support the Guzman plaintiffs, Education Law Center and over twenty of the nation’s leading education and constitutional law scholars have filed a “friend of the court” or amicus curiae brief before the Minnesota high court. The brief argues that, under the state constitution’s mandate for the legislature to maintain a “general and uniform system of education,” plaintiffs’ claims of racial and socio-economic segregation are proper for adjudication by the trial court.
The amicus brief cites to the landmark Booker v. Plainfield and Sheff v. O’Neill rulings by the New Jersey and Connecticut Supreme Courts, along with the numerous decisions from high courts in peer states on school finance and other equity issues, to demonstrate the responsibility of courts to decide education rights claims. The brief also emphasizes Minnesota court precedent supports allowing the segregation claim in Guzman to proceed to trial.
In a powerful call for the Supreme Court to permit the case to go forward, amicus argue that:
a claim that an education system is segregated by race is justiciable because, as state supreme courts have long and properly recognized, education clauses in a state constitution not only prohibit intentional segregation that is unlawful under Brown v. Board of Education, 347 U.S. 483 (1954), but also protect students against the negative effects of segregation when they are unintentional. Segregated schools are unequal schools and therefore do not provide a “general and uniform,” “thorough and efficient” system of education, as required by the Minnesota State Constitution.
The amicus also argue that the Minnesota Supreme Court’s 1993 ruling in Skeen v. State found a claim of inadequate school finance justiciable as a violation of the Legislature’s duty under the state constitution to provide a “general and uniform” system of education to all Minnesota children. Amicus argue that the segregation claim raised the Guzman plaintiffs is “no different:”
There is no principled basis for treating a challenge to school segregation differently than a challenge to school financing. The Education Clause does not single out one or the other for special treatment, but is phrased in broad terms. Moreover, as in most lawsuits challenging compliance with a constitutional standard, it is a court’s proper role to apply and, in the context of individual cases such as this one, give meaning to the standard—and that is exactly what this Court did in Skeen. That is not making “policy,” as the Court of Appeals stated, but judging.
The amicus also bring to the Minnesota justices attention the “robust body of research” demonstrating “that segregated schools—especially hyper-segregated schools as alleged by Plaintiffs in their Complaint—severely disadvantage minority and economically disadvantaged students, in terms of academic performance and other crucial measures of achievement.” Further, the amicus emphasize the research showing integrated schools “provide educational and other benefits to all students—white students and minorities alike.” Because these benefits are central to students’ ability to effectively participate in civil life, workplaces, and global economy in the future, diverse education settings are a necessary component of an adequate education.
ELC and the Constitutional and Education Law Scholars were represented pro bono by Todd R. Geremia, James M. Gross and Christina Lindberg at the Jones Day law firm in New York and Minneapolis, and by Derek Black, a professor at the University of South Carolina School of Law and David Sciarra, ELC Executive Director.
Monday, June 12, 2017
A federal class action suit has been filed alleging that Worth County (Ga.) Sheriff’s Office employees conducted a suspicionless search of 900 students at Worth County High School on April 14, 2017. Acting on information that a "target list" of thirteen students at the high school possessed drugs, Worth Co. Sheriff John Hobby placed the high school on "lockdown" for four hours while deputies conducted body searches, including feeling inside students' clothing and underwear. Although only three of the students on the target list were at school the day of the search and those students were brought to the administrative offices upon the Sheriff's arrival, the sheriffs searched all students, had dogs sniff their cars and belongings, and temporarily seized their cellphones during the four-hour search. Several students alleged that the deputies touched the students' genitalia while they were being searched. No illegal controlled substances or drug paraphernalia were discovered during the mass search. Apparently, neither the school administrators nor the assigned school resource officer (who was away from the school at the time of the search) knew of or agreed to the search. The plaintiffs allege that the Sheriff violated clearly established law by conducted a mass, physically intrusive searches without individualized suspicion. Crystal Redd, an attorney at the Southern Center for Human Rights said in a statement, “[The student-plaintiff] is going to court to hold the Sheriff accountable for treating public school children like suspected criminals.”A copy of the complaint, K.A. v. Hobby (M.D. Ga., filed Jun. 1, 2017) filed by the Southern Center for Human Rights is here.
Wednesday, June 7, 2017
A federal district court judge has decided that Gardendale – a predominantly white city in the suburbs of Birmingham, Alabama – can move forward in its effort to secede from the school district that serves the larger county. The district Gardendale is leaving is 48 percent black and 44 percent white. The new district would be almost all white.
The idea that a judge could allow this is unfathomable to most, but the case demonstrates in the most stark terms that school segregation is still with us. While racial segregation in U.S. schools plummeted between the late 1960s and 1980, it has steadily increased ever since – to the the point that schools are about as segregated today as they were 50 years ago.
As a former school desegregation lawyer and now a scholar of educational inequality and law, I have both witnessed and researched an odd shift to a new kind of segregation that somehow seems socially acceptable. So long as it operates with some semblance of furthering educational quality or school choice, even a federal district court is willing to sanction it.
While proponents of the secession claim they just want the best education for their children and opponents decry the secession as old-school racism, the truth is more complex: Race, education and school quality are inextricably intertwined.