Thursday, September 3, 2015
Pennsylvania had long been one of those states that somehow managed to distribute money to its public schools without an actual funding formula. Rather than distributing money based on head counts, locality cost, special need students and the like, Pennsylvania funded schools through what I call the "Pittsburgh ought to get this and Philly that" method. During Governor Rendell's administration, the state, for the first time, passed a formula, which seemingly improved things a little. But during Governor Corbett's time in office, the state abandoned the formula. This in, no small part, led to the horror stories in Philadelphia, including school nurses being told they could only work one or two days a week. In 2013, on a day when the school nurse was told to stay home, a girl began exhibiting symptoms at school, which later that day would lead to her death. This along with other atrocities led the civil rights community to uncharacteristically descend on the state.
Over the past half year or so, a commission on school funding has traveled the state to seek input from districts and stakeholders on what should be done. This summer the commission submitted a proposal to the legislature, which has yet to act. But whatever legislation might come out of the state house the legislature has proven unable to keep its word in the past. The abandonment of the funding formula is case in point one. Case in point two is the crisis in Chester right now. A few years ago, teachers had to work for free because the district was so upside down in its payments to charter schools. The district is right back in the same position.
Surely some of the blame falls on the district, but the larger state statutory and funding structure is the primary culprit. As Peter Greene remarked, the state is going through its yearly ritual of abusing schools by refusing to pass a budget in time to get the necessary funds to schools. In addition, the state has a perverse system of funding charter schools, which requires the local district to reimburse the charters for tuition.
Putting aside for the moment whether this reimbursement system is appropriate, the reimbursement rate is not. The state gives traditional public schools $16,000 per special education student, whereas charters get $40,000. Reimbursement at this rate is what drove Chester to brink of bankruptcy in 2012. See Chester Upland School Dist. v. Pennsylvania, 284 F.R.D. 305 (E.D.Pa. 2012). And the problem has not gotten any better because the local charters seem to be cherry picking special education students. Those that are the hardest to educate and cost the most--autistic students, for instance--are drastically under-enrolled in the charter schools, whereas the easier to educate special need students--speech and language impaired--are way over-represented in charters. In other words, the charters seem to be scooping up special education students for whom they can make a profit based on district reimbursements.
For an analysis of why this type of free market does not serve the public good and requires a series of checks, see here.
For more on Chester, see here.
Wednesday, September 2, 2015
Shelby County School District in Memphis, Tennessee, sued the state Monday, alleging the state's failure to properly fund schools violated both the state constitution and state statutes. The lawsuit is interesting on several counts. First, Shelby County has, by a significant margin, the largest population in the state. Thus, the funding problems it faces cannot be written off as random. As Shelby County goes, so to does the state.
Second, the state experienced three rounds of school finance litigation a decade ago. That litigation was brought by the small school systems in the state. The argument there was that salaries were so low in rural communities that they could not attract teachers. Shelby County's complaint, in effect, suggests the problem is statewide and not limited to just teacher salaries. It touches almost every aspect of education.
Third, the prior litigation in the state was what school finance gurus would call "equity" litigation. The analysis in those prior cases was primarily in regard to making salaries equitable across the state. Shelby County is raising both adequacy and equity claims. In other words, the state's funding of schools is inequitable, but even putting that inequity aside, the funding level in Shelby County is too low to provide a basic or adequate level of education. Plaintiffs have increasingly taken this approach over the past decade to make sure all the bases are covered (assuming state law makes this approach colorable).
Shelby County's primary factual allegation is that the state has increased the financial burden that districts must shoulder while reducing its own. In doing so, it has failed to comply with its own state statutes, which mandate that the state provide a certain level of funding for schools. As a result of this funding failure, Shelby County has lost a large number of teachers and had to increase class sizes to 30 to 35 students in many instances, including in core classes needed for graduation. As a district with a student population that is nearly 90% at risk, this underfunded and over-staffing is untenable.
Get the complaint here.
Tuesday, September 1, 2015
Eighth Circuit Upholds District's Decision to Opt Out of School Choice Law To Comply With Desegregation Mandates
The Eighth Circuit has affirmed a district court's ruling that an Arkansas school district acted properly in opting out of the state's school choice statute because to comply with its efforts to remedy the effects of past racial segregation. Derek has followed the related litigation over the 2013 Arkansas Public School Choice Law, which allows students to transfer to schools outside their district, but also allows districts to claim an exemption from the Act if the district was subject to a desegregation order or mandate of a federal court. The plaintiffs in yesterday's Eighth Circuit decision were parents in the Blytheville School District who were prevented from sending their children to another district because the district resolved, for the 2013–2014 school year, to opt out of the School Choice Law because it would conflict with its obligations under a federal court desegregation order. The plaintiffs sued in federal court, arguing that the district violated their due process and equal protection rights under § 1983 and Arkansas' civil rights law by using race as the reason for its exemption and nullifying the 2013 Act "on the pretense that it was subject to a desegregation order" even though that case was closed in 1978. The Eighth Circuit affirmed the summary judgment order of the U.S. District Court for the Eastern District of Arkansas in favor of the district. The circuit court held that the district had a rational basis for believing that the desegregation suit and the related federal agency oversight meant that the district could not take any action that could result in returning to the dual-school system dismantled by the federal desegregation order. The Eighth Circuit also rejected arguments that a parent's ability to choose where his or her child is educated within the public school system is a fundamental right of liberty; nor did the Act create a property interest in exercising public school choice because the parents did not have more than "a mere subjective expectancy of school choice under the Act" since receiving nonresident districts retain discretion to accept or reject transfer students. The circuit court also held that the parents failed to prove that the district had a disparate purpose in claiming the exemption, in part because the parents had no evidence that African-American students were allowed nonresidential transfers on the basis of race. Thus, the circuit court concluded, the proper test for the district's action was rational basis, and the district had a rational basis for believing it was subject to a federal court desegregation order or federal agency mandate which it would violate if it failed to claim the exemption. Read Adkisson, et al v. Blytheville School District #5 here.
In the spring of 2008, shortly after it became pretty clear that Barrack Obama would secure the democratic nomination for president, the then-dean of Howard Law School, Kurt Schmoke, convened a lunch time town hall at the school to discuss the upcoming election and the potential history it would make. I posed the question of whether it was possible that Obama's election might spell a step backward on several of the issues that we held most dear. The response suggested that my question bordered on blasphemy, but fortunately I was surrounded by lawyers and bright students who politely moved on to the euphoria of the times.
I fully supported his presidency and served in the administration's transition team after the election, but I had a sneaking suspicion that we were too optimistic. What we needed was a good dose of Derrick Bell-style skepticism. He was not there, so I played the inadequate fill-in. My concern was not that Obama would lack the conscience of our convictions but that he would face political and cultural opposition that a white candidate pushing those same convictions would not.
Seven years later, I realize that I underestimated how hard progress on issues like integration would be. My Derrick Bell-style skepticism is too shallow most of the time. I do not know if the reason why we have seen so little progress is because the administration lacked our convictions, decided pursuing them was futile, or thought it would undermine other policies that it favored more. Regardless, it has been disappointing, particularly for groups like the National Coalition on School Diversity, which has consistently pushed these issues before the administration. As we near the end of the Obama administration, the media is finally taking stock. The New York Times has run a few stories and editorials in the past year on school integration, but none as pointed as The American Prospect this weekend:
Many advocates had hoped to see the Obama administration take steps to address rising school segregation, but so far its record has not been great. While the Department of Education has paid lip service to the need to promote integrated schools, and has included modest diversity incentives within a handful of federal grants, it refused to use larger education initiatives like Race to the Top to encourage states and districts to prioritize school diversity. In some cases, the department actually pushed policies that made segregation worse.
Read the full article here.
Does the IDEA Obligation to Prepare Students for "Independent Living" Include Preparation to Live in a Religious Community? by Maria Blaeuer
A special education case of note, M.L. ex rel. Leiman V. Starr, PWG-14-1679, was filed last month in Maryland. It involves tuition reimbursement under the Individuals with Disabilities in Education Act. The parents' filed for a due process hearing after they unilaterally placed their child, who has Down Syndrome, in an Orthodox Jewish special education school. They lost the due process hearing and then filed a claim in federal district court, where they again lost, this time after cross-motions for summary judgment.
The parents' essential argument is that because of their child's disability, he requires explicit instruction in the traditions and practices of Orthodox Judaism at school if he is to be able to live independently in his Orthodox community after his time in public school ends. The parents argue that this instruction is not available in the public school and, therefore, the school district must pay for his education at an Orthodox special education school. A straight forward and typical argument in these cases, except for the inclusion of the words "Orthodox Judaism".
While this case sounds narrow, it could have a broader impact because of IDEA's mandate to prepare students for independent living, further education and employment. It has the potential to speak to, and define, what obligations school districts have to meet the needs of students with disabilities regarding their participation in their community, and specifically who gets to define what that community is.
The parents have now filed notice of intent to appeal. Their attorney took Schaffer v. Weast--a case dealing with the burden of proof in individual education plan cases--to the Supreme Court in 2005, so it may be one to watch.
Monday, August 31, 2015
ACLU Challenges Nevada's School Voucher Program; Is The State's Poor Funding of Public Schools Relevant?
The ACLU along with the Americans United for Separation of Church and State filed a lawsuit last week challenging the state's voucher program that will send public dollars to private, religious schools. This, they say, violates the state constitution's proscriptions on the expenditure of public dollars. “Parents have a right to send their children to religious schools, but they are not entitled to do so at taxpayers’ expense. The voucher program violates the Nevada Constitution’s robust protections against the use of public funds for religious education,” said Tod Story, executive director of the ACLU of Nevada. “This program allows public money to be spent at intuitions which operate with sectarian missions and goals and impart sectarian curricula. This is exactly what the Nevada Constitution forbids.” The press release offers this further summary:
Under the program, parents of students enrolled in public school for at least 100 days may transfer their children to participating private schools, including religious schools, and are eligible to receive thousands of dollars in public education funds to pay for tuition, textbooks, and other associated costs. The funds will be disbursed through so-called “Education Savings Accounts,” and there are no restrictions on how participating schools can use the money.
The lawsuit argues that the funding scheme violates Article XI Section 10 of the Nevada Constitution, which prohibits the use of public funds for any sectarian purpose. The lawsuit also claims that the program runs afoul of Article XI, Section 2, which requires the legislature to provide for a uniform system of common schools.
. . .
Gregory M. Lipper, senior litigation counsel for Americans United, added, “Nevada’s Constitution makes clear that the state may not fund religious instruction or religious discrimination. The voucher program flouts this constitutional prohibition. Nevada’s parents, students, and taxpayers deserve better.”
Some may recall that a similar challenge to North Carolina's voucher program failed recently, but because the challenges are based on the state constitution, not the U.S. Constitution's 1st Amendment, North Carolina's decision will have no direct effect.
What should loom large, however, is the fact that Nevada is also currently facing school funding challenges. As shown in these reports by the Education Law Center, Nevada's support of public schools is absolutely abysmal. The amount of effort that Nevada exerts to raise funds for public schools (measured as a function of how much wealth the state possesses) is among the very worst in the nation. What little the state raises, it then distributes very unequally among districts, ranking as the nation's worst on this measure. In 2012, districts with less than 10% poverty spent an average of $13,632 per pupil, those with less than 20 percent poverty spent $10,668, those with less than 30% spent $8,349, and those with 30% poverty or more spent only $6,534. That spending level in high poverty districts represents only 48% of what is spent in the lowest poverty districts.
That the state would see fit to direct more money to vouchers during a time in which it is funding its public schools so poorly is obscene. As I have written of the Ohio voucher program that went to the Supreme Court in Zelman v. Simmons-Harris, voucher programs under these circumstances are sad excuses for remedies to the constitutional violations occurring in regular public schools and cynical attempts to "buy-off" a percentage of families in struggling school districts, who might otherwise be the pushing the hardest for reform in their public schools.
See here for the complaint.
This from the National Coalition on School Diversity:
On behalf of the National Coalition on School Diversity, we invite you to attend our third national conference, "21st Century School Integration: Building the Movement for Diversity, Equity, and Inclusion,"which will take place in DC on September 24-25th.
The National Coalition on School Diversity (www.school-diversity.org) is a network of nearly 30 national civil rights organizations, university-based research centers, and state and local coalitions working to expand support for government policies that promote school diversity and reduce racial isolation. We also support educators, parents, and students working to create and sustain integration at state and local levels. Our work is informed by an advisory panel of scholars and academic researchers whose work relates to issues of equity, diversity, and desegregation/integration.
NCSD’s conferences consistently engage a diverse group of 250-300 key stakeholders—advocates, researchers/scholars, educators, integration program directors, parents, students, and activists—in dialogue with policymakers and one another about K-12 school integration. While it's rarely a top reform priority, many organizations share our concern about racial and socioeconomic isolation in our nation's K-12 public schools. We convene to publicly recognize our collective support for proactive integration strategies. For practitioners seeking support and training to be more effective in their integration efforts, NCSD’s conferences are one of few spaces where integration-specific professional development is available.
REGISTER TODAY! (There is a special reduced rate for students)
Thursday, August 27, 2015
Last week’s en banc 13-3 decision in Bell v. Itawamba County School Board, ---F.3d. ---, 2015 WL 4979135 (5th Cir. 2015), focused on a high school student suspended for Facebook and YouTube postings of a rap he had composed and performed. The rap presented allegations that coaches at Bell’s school had sexually harassed several female students. These allegations were interwoven with repeated expletives and allusions to potential violent reactions that the coaches’ alleged behavior could spark. Bell produced his recordings entirely at home, using no school resources, and he never accessed the material while on campus. When one of the coaches named in Bell’s rap heard about the recording, the coach viewed it at school on a student’s phone. After the recording was brought to the attention of school administrators, Bell was suspended and placed in an alternative school for the six weeks remaining in the nine week grading period. At the school and school board level, officials characterized Bell’s message as threatening, harassing, and intimidating toward the teachers named in the rap. School officials did not, however, feel they needed to immediately remove Bell from the premises after they saw the recording, and no criminal investigation was sought or initiated. (The main change is school operations engendered by the video seems to have been a perhaps necessary modulation of the two named coaches’ behavior when interacting with female athletes.) Bell had not previously been disciplined for any offense other than tardiness. Oddly, what efforts the school district made to investigate the substance of Bell’s allegations remains unclear. Bell had introduced four female students’ supporting affidavits at his school board hearing, and, given that another coach at the high school had been arrested in 2009 after he was alleged to have sent sexually explicit texts of a minor student, one would anticipate that such accusations would be taken seriously. Bell’s First Amendment challenge to his punishment had failed in federal district court, but he had prevailed on appeal before a divided Fifth Circuit panel. The school district then sought en banc review.
To the en banc majority, this was an easy case. School officials could, from a layperson’s perspective, reasonably perceive the language of Bell’s rap, particularly its references to guns, to be threatening, harassing, and intimidating to the teachers named in the video. The majority stressed that Bell intentionally directed his speech at members of the school community by posting it on the web, and school officials could reasonably forecast a substantial disruption of school activities as a result of Bell’s on-line speech. Although Tinker’s disruption standard was originally formulated to address student speech at school, the Bell majority noted that five out of six federal circuits to address the question have concluded that Tinker could be used to sustain the exercise of school authority over off-campus speech insofar as that speech could adversely affect school operations. In a concurring opinion, Judges Walker Elrod and Jones cited the cautionary note sounded in Morse v. Frederick to head off misuse of the en banc ruling. They underscored that school officials could not base discipline on their perception of student off-campus speech as offensive when such speech was “non-threatening political or religious speech.”
Writing the principal dissent, Judge Dennis offered a vigorous and effective critique of the en banc majority’s analysis. Judge Dennis had written the panel opinion concluding officials could not properly punish Bell because they could not have reasonably forecast substantial disruption from Bell’s video, encountered no actual disruption attributable to the video, and could not have regarded the speech as a true threat. In his en banc dissent, Judge Dennis chastised the majority for failing to consider Bell’s speech as that of a student whistleblower addressing a matter of urgent public concern, a mistake that could facilitate self-serving concealment of individual and/or institutional misdeeds. He then questioned the majority’s casual transplantation of Tinker’s standard for the regulation of student in-school speech into the off-campus context and highlighted how such an approach paves the way for a roving and inadequately constrained exercise of school authority outside the schoolhouse gates. Finally, he took the majority to task for allowing school officials for overstate or distort the record as to the actual or foreseeable in-school disruption attributable to Bell’s recording. Judge Graves offered a separate dissent to propose refining Tinker’s formula to include a specific articulation of the nexus between the off-campus expression targeted for punishment and legitimate pedagogical interests.
The events recounted in Bell implicate several important questions to which available student speech precedents have not yet offered satisfying responses: what authority school officials should have to punish students for off-campus cyber-speech, how to factor the artistic dimension of a student’s speech into an analysis of student rights and school responses, how to consider a student’s developmental immaturity when assessing whether speech presents a credible threat of violence, and how to ensure that a student can voice legitimate grievances about school practices. What would emerge from the Supreme Court if these questions came before it is hard to predict, and the Court declined to wade into the challenge of tackling the student cyber-speech puzzle when it denied certiorari in Blue Mountain School District. v. J.S. and Kowalski v. Berkeley County Schools in 2012.
As Judge Dennis’s forceful dissent demonstrates, the en banc majority in Bell may have misapprehended where danger lurked in this controversy. By accepting the school district’s overstated claims about how Bell’s on-line speech could harmfully affect the school community, the majority regrettably dismissed the potentially valuable and protectable message at the core of Bell’s rap. (My 2012 article, Inside Voices: Protecting the Student-Critic in Public Schools, 62 American U. L. Rev. 253, examined how current doctrine allows this regrettable devaluing of the student speaker to go unchecked.) In Bell, there is ample basis for questioning whether the Mississippi school district’s translation of constitutional values deserved a passing grade.
Wednesday, August 26, 2015
The Education Research Alliance for New Orleans (Tulane) has released a report, Significant Changes in the New Orleans Teacher Workforce, on the city's attempts to attract teachers. Many of the city's veteran teachers were fired post-Hurricane Katrina; they lost their suit to regain their positions. Those teachers were replaced, in large part, by short-term teachers from outside of the area who planned to move on after a few years. New Orleans is now trying to recruit minorities and local teachers who may better reflect the city's student population. The report discusses the city's efforts to do that and why it matters. The report is available here.
Edward Smith and Shaun Harper have released a new study focusing on suspensions and expulsions in the South. Most of it is sadly par for the course, but the enormous portion of the nation's suspensions and expulsions that come from the South was shocking. "Nationally, 1.2 million Black students were suspended from K-12 public schools in a single academic year – 55% of those suspensions occurred in 13 Southern states. Districts in the South also were responsible for 50% of Black student expulsions from public schools in the United States." The racial disparities also seemed to track consistently higher than than other regions. "In 132 Southern school districts, Blacks were disproportionately suspended at rates five times or higher than their representation in the student population." Expulsion disparities were high as well, although slightly lower the suspension disparities. "In 77 Southern school districts, Blacks were disproportionately expelled at rates five times or higher than their representation in the student population."
The study also includes a nice set of tables with the data for individual school districts, so one can easily see what is occurring in their own community, region, and state.
Get the full report here.
Tuesday, August 25, 2015
In 2012, Arizona law enacted legislation providing that “no school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.” This fall a sticker on the front of a biology textbook that promotes that agenda is raising eyebrows. Gilbert Unified School District placed this message on it biology textbooks:
The Gilbert Public School District supports the state of Arizona’s strong interest in promoting childbirth and adoption over elective abortion. The District is also in support of promoting abstinence as the most effective way to eliminate the potential for unwanted pregnancy and sexually transmitted diseases. If you have questions concerning sexual intercourse, contraceptives, pregnancy, adoption or abortion, we encourage you to speak with your parents.
The same group that pushed for this sticker was part of the push for the anti-gay legislation that made national news in Indiana, which brings us to anti-gay sex education in South Carolina.
In the late 80s, South Carolina passed legislation providing that sex education "may not include a discussion of alternate sexual lifestyles including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted diseases.” This provision is just one part of a larger section of the code dealing with sex education. The code includes a provision that requires school districts to send a letter to parents each year outlining what will be taught in the class. This year, the letter focused directly on homosexuality, parroting the statute. The letter informed parents:
The program of instruction for this unit may not include discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted infections.
The timing of this shift in focus in the letter left some scratching their head. A major purpose of the legislation had been to promote sex within marriage, not outside of it. Of course, homosexual couples now have the right to be married in South Carolina, which begs the question of whether the state can intentionally exclude conversations of their sexual relationships.
The answer would seem to be no, but not necessarily because of the recent gay marriage case. The First Amendment should prohibit this type of specific exclusionary language, regardless of the same sex marriage decisions, because schools are not allowed to be the "idea police." Schools can certainly choose to promote certain messages, but what they cannot do is intentionally shut down ideas for political or other discriminator reasons, nor can they enact overly broad and vague restrictions on speech that quells protected speech. South Carolina's provision would appear to violate both principles. Just this year, the Ninth Circuit followed this exact reasoning in striking down Arizona's ban on ethnic studies in Arce v. Huppenthal.
Monday, August 24, 2015
Earlier this summer, California eliminated religious exemptions from school vaccinations, making it only the third state to do so. In my previous post on the legislation, I noted that on its face it might raise freedom of religion concerns, but one close examination it probably need only pass rational basis review. Dorit Rubinstein Reiss has posted a new article on ssrn, Vaccines, School Mandates, and California's Right to Education, that offers a much deeper analysis. The abstract offers this summary:
California recently enacted Senate Bill 277, which abolishes the personal-beliefs exemption to school immunization requirements. One possible challenge to the law’s constitutionality is that it impermissibly limits the right to education. This Essay rebuts such positions. California’s jurisprudence regarding access to education applies to protected categories; it does not limit the ability of the state to impose health and safety regulations such as immunization requirements. Moreover, the requirement would withstand even strict scrutiny, if applied, because disease prevention in the school context is a compelling interest and there is no alternative that is as effective. Finally, the law actually protects the right of access to education for those whose parents do not have the luxury of choice, such as immune-compromised children, while still reasonably preserving parental choice overall.
Friday, August 21, 2015
A new study by Seth Gershenson, Stephen Holt, and Nicholas Papageorge finds a disturbing trend of racially disparate expectations for students based on race. The abstract offers this summary:
Teachers are an important source of information for traditionally disadvantaged students. However, little is known about how teachers form expectations and whether they are systematically biased. We investigate whether student-teacher demographic mismatch affects high school teachers’ expectations for students’ educational attainment. Using a student fixed effects strategy that exploits expectations data from two teachers per student, we find that nonblack teachers of black students have significantly lower expectations than do black teachers. These effects are larger for black male students and math teachers. Our findings add to a growing literature on the role of limited information in perpetuating educational attainment gaps.
More specifically, they find that "relative to teachers of the same race and sex as the student, other-race teachers were 12 percentage points less likely to expect black students to complete a four-year college degree. Such effects were even larger for other-race and other-sex teachers, for black male students, and for math teachers. In addition to being statistically significant, these effects are arguably practically significant as well, as they constitute more than half of the black-white gap in teacher expectations."
Read the full study here.
Thursday, August 20, 2015
As ofAugust 2015, school funding litigations seeking better educational opportunities for underserved students continue in state trial courts and supreme courts across the country, including in Arizona, Colorado, Connecticut, Florida, Kansas, New Jersey, New Mexico, New York, Pennsylvania, South Carolina, Tennessee, Texas and Washington.
In the latest development, the Washington Supreme Court imposed a $100,000 per day sanction on the State, in the ongoing McCleary case.
Both the South Carolina and Washington Supreme Courts declared their states' school funding systems unconstitutional, in Abbeville v. State (S.C. 2014) and McCleary v. State (Wash. 2012). Both supreme courts retained jurisdiction. After the Abbeville decision, the South Carolina Senate and House established task forces to study the situation and recommend remedial measures in time for their 2016 session.
In the face of a huge tax cut, Kansas slashed funding to its schools, which led to the Gannon v. State of Kansas lawsuit. Plaintiffs claimed and state courts have agreed that the cuts made the state's school funding system inadequate and inequitable, in violation of the Kansas Constitution. The state resolved the equity problem in 2014, but made additional changes in the 2015 session. After a hearing, the district court found the state funding system is now violating both the adequacy and equity requirements of the constitution. That decision is on appeal to the Kansas Supreme Court.
Wednesday, August 19, 2015
A growing number of reports reveal that schools are starting to more systematically monitor their students' social media. The most recent report is from Orange County in Florida, where the school district has purchased software that allows it to do keyword searches across multiple social media platforms for all students. Some have raise privacy concerns about this trend. Orange County, at least, does not appear to be crossing any privacy lines because it is only monitoring public posts. They are not attempting to gather students' passwords or anything of the like. The software simply allows the district to achieve efficiently what any other person with an internet connection could, if the person just had the time and energy to sift through everything.
The more important issues are what exactly districts do with this information. First, sometimes too much information is a bad thing. Consider the student who simply complains about his teacher online--something students have been doing in hallways, in cafeterias, on telephones, and in handwritten notes since forever. That information has had a very short shelf-life and rarely made it to the subjects of the complaints. It would be a bad thing if now that information got passed along. The likelihood that it could interfere with relationships is significant, while the harm that sharing that information would ward off is almost non-existent.
Tuesday, August 18, 2015
The New York State Education Department has released the data from the standardized tests administered to elementary students at the end of this past academic year. The opt-out movement scored a much bigger victory (if victory was its goal) than I ever would have imagined. Some students opted out for valid health and other reasons, but a whopping twenty percent of students refused to take the tests without any valid excuse. Presumably they objected based on principle.
A five or so percent opt out would have done little to upset the status quo, but one of this size has enormous ramifications. First, as a condition of receiving federal education money, the Elementary and Secondary Education Act (No Child Left Behind) mandates that 95% of students take the test. The Secretary of Education has the power to waive a number of requirements, but the Secretary cannot waive this requirement. Congress wanted this one to stick. As analyzed in an earlier post, this poses a real quandary. The purpose of the provision was to make sure that schools did not conveniently exempt their weakest students from the test to push up their pass rate. But when students simply refuse to take the test, holding the school accountable seems unfair and contrary to the purpose of the Act. The Secretary could take a page from the reasoning of King v. Burwell (the recent Affordable Care Act decision offering a creative reading of the Act to save individual tax credits) and ignore the statutory language and violation. But absent creative reasoning, New York is in violation it cannot escape.
Monday, August 17, 2015
North Carolina Voucher Program Survives Constitutional Challenge, Court Reasons the Special Funding for the Program Exempts It from Scrutiny
Earlier this summer in Hart v. State, the North Carolina Supreme Court upheld the state's Opportunity Scholarship Program, a school voucher program that pays tuition for eligible students to attend private schools using taxpayer dollars. Plaintiffs alleged that the Opportunity Scholarship Program violates the North Carolina Constitution by allocating taxpayer money to private schools; appropriating taxpayer money to private schools without the Board of Education supervising those funds; and creating a “non-uniform system of schools.” Plaintiffs also alleged the program was unconstitutional because eliminating accountability and permitting schools receiving voucher students to discriminate based on religion served no public purpose.
Friday, August 14, 2015
The Washington Supreme Court has lost its patience with the legislature. In 2012, in McCleary v. State, the court held that the state had failed to comply with its constitutional duty "to make ample provision for the education of all children residing within its borders." The court left it to the legislature to devise a reasonable solution to the flaws in its funding system. Since then, the court has forced to order the state to comply with its duty to act within the deadlines the legislature set for itself. The state has, nonetheless, failed to comply with its own plan. Last year, the court held the state in contempt for its failure. Yesterday, the court took the ultimate measure, imposing a fine of $100,000 a day for each day the state remains in violation of the court's January 9, 2014 order. This step has proven successful in places like Arizona, which drug its feet for years until the court imposed a financial sanction, but then acted within a matter of a couple of weeks. One can only for the same result in Washington.
The court's order is here.