Thursday, June 30, 2016
Scholarship: Gerber On Justice Thomas And Fisher; Gomez-Velez On Philanthrocapitalism And Education Reform
Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education
Scott D. Gerber (Ohio Northern Univ.) examines Justice Thomas' Fisher I opinion in an recent article (50 Rich. L.R. 4, (2016)). From the abstract posted on ssrn.com: This article originated as a paper for an affirmative action symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association. The article places Justice Thomas’s concurring opinion in Fisher v. University of Texas (“Fisher I”) in the larger context of his voluminous writings on race in general and affirmative action in particular. The article also discusses the commentary on Justice Thomas’s Fisher I opinion because the reaction to what he writes, especially on matters of race, is almost as important as the opinions themselves. The article concludes with some brief comments on Schuette v. Coalition to Defend Affirmative Action, a 2014 case about the constitutionality of a 2006 amendment to the Michigan state constitution banning racial preferences in Michigan, and on Fisher v. University of Texas (“Fisher II”), which the Court will be deciding by the end of June 2016. Justice Scalia’s recent death figures prominently in the concluding section.
Common Core State Standards and Philanthrocapitalism: Can Public Law Norms Manage Private Wealth’s Influence on Public Education Policymaking?
Natalie Gomez-Velez (CUNY) examines "the phenomenon of philanthrocapitalism in current education reform, with a focus on the Common Core State Learning Standards initiative" in a forthcoming article in the Michigan State Law Review, posted on ssrn.com. From the abstract: Part I describes the role that a small group of philanthropists played in setting and catalyzing the Standards development and implementation. This description includes private philanthropists’ interactions with federal, state, and local government actors and other stakeholders. It also examines their work in the political process and the public discourse. Part II then considers the Common Core initiative over the last five years, including the role of philanthrocapitalists, nonprofits, and the state and federal governments, and the recent public backlash against and reconsiderations of the Standards. Part III considers the proper scope and limits of private philanthropists’ role in public education policymaking from the perspective of public law norms, governance, and policymaking. Drawing upon structural governance models designed to support robust public engagement in education policymaking, as well as those designed to prevent agency capture, the Article closes by considering methods for placing appropriate boundaries on the influence of philanthrocapitalists. At the same time, it acknowledges the difficulty of imposing meaningful limits in a political environment dominated by the influence of private wealth.
Tuesday, June 28, 2016
Charlotte-Mecklenburg Schools (CMS) announced a new regulation last week advising principals this fall to honor students' choices about their gender identity in restrooms, locker rooms, yearbooks, and graduation ceremonies, school officials told the Charlotte Observer. CMS said that the new guidance follows the Fourth Circuit's holding in G.G. v. Gloucester County Sch. Bd. (see our coverage here) and is not intended to defy North Carolina's law HB2, which, among other things, requires students to use public school restrooms and locker rooms based on the gender on their birth certificates. In G.G., the Fourth Circuit held that the U.S. Dept. of Education's interpretation that Title IX applies to transgender students was entitled to deference in light of the ambiguity of the meaning of "sex" in the statute. The new CMS regulation will require schools to identify and address students according to their preferred identity and will eliminate "gender-based activities that have no educational purpose, such as having a girls’ and boys’ line to go to recess."The Charlotte-Observer's story is here.
And speaking of G.G. v. Gloucester County Sch. Bd., on remand from the Fourth Circuit, last week the district court granted the preliminary injunction to allow the plaintiff to use the boys' restroom at Gloucester High School. The district court did not extend that access to any other school facilities, such as locker rooms, because the plaintiff's suit only sought bathroom access. The June 23 order of the Eastern District of Virginia is here.
Friday, June 24, 2016
Harpalani On Fisher II: The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani (Savannah) shared his take on Fisher II below, which he writes "was the clearest victory for affirmative action" since Grutter and now gives universities clearer guidance on how race may be evaluated in admissions policies.
The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani, J.D., Ph.D., Associate Professor of Law, Savannah Law School
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.
In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.
Thursday, June 23, 2016
This morning, the Supreme Court in Fisher v. Texas upheld the long contested admissions program at the University of Texas. In an opinion by Justice Kennedy, the Court reasoned that the consideration of race was narrowly tailored, meaning that it was necessary, that without it a critical mass would not be achieved, and that the University had considered race neutral alternatives. One of the most telling lines to me, however, was "[t]hat race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality." As I have long emphasized, the very limited role that race plays in Texas admissions was the point that was getting lost. In the overall scope of things, race plays a role across a very small number of applications and, within those applications where it does play it role, it is considered alongside several other factors. In other words, it is a factor within a factor within a factor.
Only by ignoring the larger scope and narrowing one's view down to the precise instance in which race plays a role can one offer a reasonable argument that Texas's use of race is inconsistent with what the Court previously sanctioned in Grutter v. Bollinger. I argue here that race plays a smaller role in admission decisions at Texas than it did at Michigan in Grutter. Thus, what Fisher was really about was an attempt to reverse Grutter itself. But that could be achieved only by elevated form over function (i.e. making the question of whether race was considered more important than the question of how it was considered). Unfortunately, form has consistently triumphed over function in most recent race cases, which is why many have been so concerned about the final outcome in Fisher over the past few years. That form did not triumph in Fisher today is victory not just for Texas or diversity, but for the more realistic assessment of race cases before the Supreme Court in the future.
The case may also signal a shift for Justice Kennedy. In the past, Justice Kennedy has held out the theoretical notion that he approved of race conscious action, but he had never upheld an actual plan. This led many commentators and scholars to muse that he was toying with litigants, presenting himself as progressive in theory by staunchly conservative in practice. Today, Justice Kennedy proved them wrong. Then again, maybe this decision is just the productive of a perfect storm in which only 7 justices decided the case, Justice Scalia is no longer on the Court, and Justice Kennedy's role as the swing vote may be nearing its end.
Get the full opinion here. See the pertinent parts of the Court's syllabus below:
Fisher II Upholds UT Austin's Policy That Includes Race As Relevant (Though Indirect) Factor In Some Admissions
Readers are doubtless poring over Fisher II this morning upholding the University of Texas at Austin's admissions policy that includes race as a relevant feature in a consideration of "special circumstances" for a quarter of the university's admissions. If you need a link, it is here: Fisher v. Univ. of Texas at Austin, 579 U.S. __ (Jun. 23, 2016).
Wednesday, June 22, 2016
The New Orleans Advocate reports that a high school student, through his mother, has sued the St. Tammy Parish School Board (Louisiana) alleging that a deputy sheriff and school officials illegally searched the student's cellphone. According to the news story, on Jan. 8, 2016, a deputy sheriff and school officials searched 16-year-old Fontainebleau High School sophomore Matthew DeCossas for evidence of marijuana possession. Finding no contraband on DeCossas' person, bag, or locker, officials asked DeCossas to unlock his cellphone, which was searched. They found a text conversation between DeCossas and another student about Vyvanse, a stimulant used to treat ADHD. After an investigation, DeCossas was expelled for four semesters. At the end of April, DeCossas sued the officials and the board under sec. 1983, alleging that they violated his Fourth and Fifth Amendment rights by illegally searching him and pressuring him to make a statement before his parents were contacted. What makes DeCossas' case potentially different from student cellphone search cases such as this California case involving an on-campus search for firearms, is that if facts in the Advocate's report are correct, law enforcement and school officials had little basis for searching DeCossas' phone after failing to find anything incriminating during the initial search and that the object of the search, marijuana, is less alarming than the more obvious threat posed by guns at school. But we have not yet read the papers from the parish school board, so right now we only have the suit's allegations, available on Scribd. here.
Last week, the Nashville's school board decided join Chattanooga, Memphis, and a handful of other school districts in suing Tennessee over its school funding formula. While the other districts have filed broader complaints that focus on whether the state or local districts should pay for things like the majority of teachers’ salaries, Nashville is specifically suing over the costs to educate English language learners who compromise about 43 percent of the district’s student body. While the state has made some boosts to the education budget recently, such as adding $14 million to ELL spending, the increase do not fully address the global funding problems that the other districts have raised in their lawsuits.
In both the Shelby and Hamilton County Schools suits, the school systems claim all areas of the schools are underfunded and not just ELL funding. The school districts allege that the State is violating its own statutes by not funding the requisite amount of classroom costs and instead making the districts cover the difference. More on the Memphis lawsuit here; More on Hamilton County here.
Earlier in the year, I discussed here the potential difficulties of having more than one school funding lawsuit proceeding in the state at the same time and a trial court's refusal to certify one of the earlier lawsuits as a class action. Now, with three of the state’s larger school districts on board, consolidating the cases into one is even more compelling. A remedy in regard to any one of these districts will significantly impact the entire state's education budget. A remedy in regard to all three would likely require the state to start from scratch in rethinking its formula and budget. With that in mind, other districts are likely to join or intervene at some point. But so long as the cases remain separate, the question would remain as to which lawsuit to join. Then again, maybe the plaintiffs are playing a more complicated strategy, hoping to put more pressure on the state by starting several smaller fires. I have not seen that before, but it is a plausible strategy.
Maryland Judge Ensures Poptart Bandits Suffer the Consequences, But Undermines Education in the Process
Three years ago, Maryland schools suffered a debilitating rash of pop-tart bandits. From elementary school through middle and possibly high school, public school students were chewing their pop-tarts into guns, talking about guns, and doing darn near anything they could to think about and fantasize about guns. Maryland schools thought they would set the bandits straight. They began suspending them. In the process, they also made national news. One of those elementary school boys eventually sued and last week the Maryland trial judge in the case also set the boy straight. According to the Washington Post,
Anne Arundel County Circuit Court Judge Ronald A. Silkworth ruled that the school system could reasonably consider that the boy’s actions in March 2013 were disruptive and that “a suspension was appropriately used as a corrective tool to address this disruption, based on the student’s past history of escalating behavioral issues,” according to his 11-page ruling. He upheld an earlier ruling that supported the two-day suspension from the Maryland State Board of Education.
Wait a minute. Pop-tart bandits. Elementary school students. The straw that broke the camel's back. Suspension. Expulsion. In my forthcoming book Ending Zero Tolerance, I use the story of suspending this student and others for pop-tarts as a prime example of how irrational discipline policy has gotten in so many jurisdictions. First, while this young boy may have been disruptive in the past, it is far from clear that gnawing a pop-tart into a gun amounts to disruptive behavior or, even if it does, that it warrants suspension.
Second, even if the behavior was disruptive, suspending the boy is not likely to improve his behavior. To the contrary, suspending this young boy, or any other for minor misbehavior, just makes it more likely that he will be suspended again. He suffers a psychic break with school that undermines his incentive for good behavior. And once the school labels him through suspension, it will have no hesitation to suspend him again. Forty percent of suspension each year are actually second, third, and fourth suspensions.
Third, getting rid of one pop-tart bandits does not scare others straight. Instead, it makes other pop-tart bandits more likely and degrades the overall learning environment for everyone, even the innocent bystanders. Studies show that when discipline is overly harsh or punitive, student respond negatively. They, in fact, become more likely to rebel. The pop-tart bandit saga proves this point well. It is no stretch to infer that Maryland schools suffered a rash of bandits because students learned of the first punishment, thought it crazy, and decided to push the boundaries themselves.
Finally, schools with overly harsh discipline undermine student learning rather than improving it. Studies show that well behaved students in these schools achieve at lower levels as a result. In other words, rather than protecting the students that schools say they want to help, they hurt them.
The solution is not for schools to do more of the same or courts to turn a blind eye. The solution is for schools to alter their approach to discipline and, when they will not, for courts to engage. More here.
Monday, June 20, 2016
Court Overturns Zero Tolerance Punishment Based on Stand Your Ground Law, But New Book Details Even Bigger Problems
In a battle of absurd public policies, a Georgia stand your ground law has trumped a school discipline policy of zero tolerance toward fighting. Last week, a Georgia court found that school administrators violated the state’s “stand your ground” self-defense law when they expelled a student for fighting. Matt Smith writes that
S.G. . . . threw the first punch in the January 2014 scuffle — but only after her antagonist had pursued her across the school’s parking lot and backed her up against a brick pillar, according to court records. Her lawyers argued that the resulting expulsion violated state law, which lets someone use force to respond to a threat without having to retreat first.
Georgia’s Court of Appeals has agreed, ruling that the student had the right to defend herself. State law “did not require S.G. to be hit first before defending herself; nor was S.G. required to have lost the fight in order to claim self-defense,” the judges concluded. And they found school officials in Henry County, in the Atlanta-area suburbs, have a policy of expelling students “regardless of whether the student was acting in self-defense.”
The irony here is that courts so often upheld suspensions and expulsions for equally, if not more, compelling circumstances. In other words, only a student availing him or herself of a stand your ground law has a reasonable chance of challenging zero tolerance and overly harsh discipline policies. A student who just accidentally does the wrong thing, misbehaves in the exact way we expect of young students, or even tries to do the "right" thing can be thrown out of school with no recourse. Take Benjamin Ratner, for instance. As I detail in my forthcoming book Ending Zero Tolerance,
in the outer suburbs of our nation’s capital, an average thirteen-year-old boy named Benjamin Ratner received a note from one of his friends. In the note, Benjamin’s friend told him that she had felt suicidal over the weekend and had contemplated slitting her wrists with a knife. Apparently, the feelings persisted. She told Benjamin she brought a knife to school that morning in her bookbinder.
Benjamin took the note seriously. He knew his friend had previously attempted suicide and had even been hospitalized to deal with ongoing issues. Benjamin was worried she would use the knife to hurt herself that morning. Benjamin was smart enough to know that a real solution for her long term well-being was beyond him. He planned to tell both her family and his own about the incident at the end of the school day and let them determine what to do in the coming days and hours. But in the short-term, he was not going to leave her safety—and in his mind possibly her life—to chance. So Benjamin asked his friend if he could take the bookbinder from her locker and put it in his own for safekeeping. She agreed.
Within a few hours, Roberta Griffith, the assistant principal, heard rumors that Benjamin’s friend “had brought a knife to school and . . . may have given it to [Benjamin].” Griffith alerted the dean of the school, Fanny Kellogg, who called Benjamin to the office to question him. Benjamin told her that he had the binder in his locker, although it is unclear that he had actually seen or touched the knife inside the binder. What was clear, however, was that Kellogg knew that Benjamin did not pose any real threat to himself or others. Kellogg sent Benjamin by himself to go get the binder and bring it back to the office. When Benjamin returned, Kellogg acknowledged that Benjamin “acted in what he saw as the girl’s best interest and that at no time did Ratner pose a threat to harm anyone with the knife.” But from then on, the school system’s thoughtfulness ended and its disciplinary process took over.
The school’s policy approach to weapons was zero tolerance. Regardless of the danger his friend faced, his desire to protect her, or any other circumstances, Benjamin’s possession of a knife was deemed a violation of school policy. The assistant principal responded to his admittedly good deed by suspending him for ten days. The principal of the school then escalated the situation and referred Benjamin to the superintendent for potential further punishment. Both the superintendent and two different school district hearing panels decided to increase his punishment. No one questioned Benjamin’s story, but they all insisted they must suspend him for the remainder of the semester—approximately three months. Benjamin would later ask the court system to reverse his punishment as irrational, but no court ever took his case seriously, claiming their hands were tied.
The U.S. Court of Appeals for the Fourth Circuit, however, saw nothing unreasonable about the Ratner's expulsion. It held it was well within the school's power and there was nothing it could do. The thrust of my forthcoming book is to unravel the irrationality of school policies like these and the courts' response to them.
Friday, June 17, 2016
Chalkbeat reports that the Denver school board has voted unanimously for a new bond package and mill levy override that would raise an additional $628 million in taxes for school construction and other education programs. To take effect, it has to be approved by the voters in November. It would "allow Denver Public Schools to build new schools, renovate old ones, install heat mitigation systems such as air conditioning in its hottest schools and increase the number of schools able to provide devices such as computers to every student." In addition, the Board approved the creation of two new charter schools and to allow three others to take over space in current school district facilities. The charter expansion in Denver has been all over the news as of late and raises a whole new host of issues. I won't rehash those here, but rather leave them to the problems outline here and here. The point of this blog is to contrast Denver's package with the one South Carolina just turned down.
South Carolina is currently under order from the state supreme court to comply with its constitutional mandate to ensure minimally adequate public education. Denver is under no such order. To the contrary, the Colorado Supreme Court, albeit under weak reasoning, has recently rejected two different constitutional challenges to the state's failure to fund education. Yet, Denver is poised to come up with $628 million in new funds just for its school district alone. The South Carolina Senate just turned down a $200 million bond package that would have covered the entire state. Denver has approximately 79,000 students. South Carolina has in excess of 700,000. While the South Carolina House already approved the bond package, the South Carolina Senate indicated it needed more time to consider it. It now adjourns for the year, which means it will, at best, consider it in 2017, more than two decades after the lawsuit against the state was first filed.
Wednesday, June 15, 2016
Scholarship: Black on Teacher Quality, Parker on School Segregation, and Robinson on Education Federalism
Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.
This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.
Sixty years ago the Supreme Court announced, “In the field of public education, the doctrine of ‘separate but equal’ has no place.”1 In 1954, no one doubted the significance of that command, even among those who actively resisted it.
Brown v. Board of Education 2 has now outlasted Plessy v. Ferguson, which for 58 years sanctioned “separate but equal”. Does that necessarily mean, however, that Brown has eclipsed Plessy in significance? Has the power of Brown instead waned in its advancing age? Granted, few publically decree Plessy as the best guide to race relations in the twenty-first century; yet, our schools are still segregated and unequal in ways reminiscent of Plessy. That naturally leads one to question the lasting significance of Brown, particularly as it turns 60.
This chapter examines the legacy of Brown through the lens of two sets of school desegregation cases. The first are four cases that the Supreme Court considered in its Brown v. Board of Education decision — cases from Delaware, Kansas, South Carolina, and Virginia. The second are school desegregation cases litigated in the Middle District of Alabama.
The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation’s education goals. One of the nation’s unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform, I argue that disrupting the nation's longstanding approach to education federalism – which I define as the balance of power between federal, state, and local governments that emphasizes substantial state autonomy over education – is necessary for a successful national effort to achieve this goals. I then provide a foundational theory for strengthening the federal role in education by analyzing the essential elements of a successful reform effort based upon research regarding the strengths of federal education policymaking and upon identification of the missing elements of current reforms. Finally, I respond to many of the potential arguments against disrupting education federalism. For Instance, I argue that National Federation of Independent Business v. Sebelius continues to provide ample room for Congress to expand the federal role in education in ways that are needed to build a more equitable education system. I also explain that although strengthening the federal role in education will reduce some forms of state and local control over education, it also will provide states and localities new forms of control.
Over the past few years, Pennsylvania schools have experienced what may have been the biggest financial crisis of our lifetime. For those who follow this blog, the schools went almost the entirety of this past school year without a budget. As a result, some closed earlier for the winter break, opened late, eliminated programs, asked teachers to work without paychecks, and a parade of other horribles. Just weeks ago, the Erie School District indicated it might permanently close the doors of its schools, presumably dissolving itself and waiting to be absorbed by another district.
After more than a year of wrangling, the state has finally adopted a new school funding formula that will purportedly address the problems of high need districts. On its face, the formula almost sounds too good to be true. The formula has a heavy weighting system that accounts for poverty, student disabilities, and English Language Learner needs, among other factors. Schools are funded on a per pupil basis and these weightings allow districts to, in effect, double, triple, and quadruple-count some students for purposes of funding. According to Newsworks, this means, for instance, that while York's actual enrollment is 7,737, the "final enrollment figure used to decide how to divide money is adjusted up to 52,449." See here for an interactive map that provides the actual and adjusted enrollment for all the state's districts.
But there is one enormous catch. Newsworks indicates that the money that flows through this new formula "reflect[s] only a tiny fraction of the state's entire basic education subsidy. Lawmakers plan to use the formula to disperse only new increases in aid – which, in the near term, will barely affect the disparities that were created through decades of non-formula-based distributions, when not even shifts in enrollment were tracked. This year, of a $5.6 billion budget, the general assembly sent about $152 million through the formula — under 3 percent."
This surely made the formula palatable to those wealthy districts that benefit from old system, but the state is setting itself up to create an overall funding scheme that is entirely irrational. The federal funding formulas for low income students illustrate this point the best. As it currently stands, there are four separate and complex funding formulas at the federal level, along with a host of other grant programs. Each time Congress came up with a potentially better formula, it added it to the other formulas, rather than replacing older flawed formulas. As demonstrated here, the problem is that these four formulas now counteract one another in myriad ways and the result is an overall funding stream that produces random and irrational results. No relevant constituency is consistent advantaged or disadvantaged.
If Pennsylvania, like Congress, does nothing more than add a good formula on top of other dominant flawed formulas, it is wasting everyone's time and doing nothing to solve the underlying problem. If Pennsylvania plans to phase out the old formulas in future years and drive the lion's share of money through the new formula, it may have come up with something that actually helps students who need it. Unfortunately, Pennsylvania does not have a good enough track record to hold out too much hope on the latter.
Tuesday, June 14, 2016
Federal Court Refuses to Expand School Voucher Program That Was Declared Unconstitutional By Colorado Supreme Court A Year Ago
Almost a year after the Colorado Supreme Court declared that a district's school voucher program violated the state constitution's separation of church and state doctrine (which Derek discussed here), a federal district court in Colorado denied a renewed attempt last week to force the Douglas County (CO) School District School Choice Grant Program to include religious schools, according to the Denver Post. The federal court questioned whether the plaintiffs, represented by the religious-freedom organization Institute for Justice, were in a truly adversarial position with the defendant, the Douglas County School District. The federal court also questioned whether the plaintiffs could show a likelihood of success to warrant an emergency injunction. The court also stated that the Douglas County families seeking the voucher expansion could not show irreparable harm because only a few students had even shown interest in the program and no schools have yet agreed to participate in the School Choice Grant Program. The ACLU of Colorado and law firm Arnold & Porter have moved to intervene in the case, arguing that the plaintiffs’ motion for preliminary injunction is essentially a collateral attack on the Colorado Supreme Court's judgment.
Two weeks ago, the Kansas Supreme Court struck down the state's school funding scheme again. The Supreme Court also upped the stakes in the long running battle to get a recalcitrant state legislature and governor to comply with the constitutional obligation regarding education: it set a June 30 deadline for action. If the state does not act, the Court indicated it would, in effect, shut down schools. As discussed here, Kansas is one of just two courts that have stood strong against education funding cuts over the past eight years. If Kansas (or Washington) fails, there may be little hope elsewhere. Courts cannot win these battles by cowering away from them. In fact, cowering only undermines courts over the long term. Yet, standing strong comes with its own risk: that states will just ignore courts all together.
For now, at least, the Kansas Supreme Court's willingness to stand its ground is finally paying off. Governor Brownback has called a special session of the legislature to implement a solution and the grandstanding appears to be largely over. The Wichita Eagle reports,
“They’re basically saying $38 million more and you’re set,” Brownback said, referring to the amount it would cost to restore the state’s old formula for equitable funding. Lawmakers discarded that formula when they adopted a block grant form of funding last year.
Brownback signed the proclamation for a special legislative session – the 23rd in the state’s history – on Wednesday afternoon. He noted he does not have the power to tell lawmakers what to do – he can only call them back for a special session.
As the primary ringleader for defunding schools, Brownback cannot entirely concede and still save face. For instance, he said, “What I find so irritable about this is that the remedy that the court is putting in place, which is to shut the schools down over a $38 million dispute … just seems so completely out of bounds.” But what I find in this and the above statements is a resignation to the fact that the time has come to fund schools, whether he likes it or not. Some rank and file members are predictably grumbling about defying the courts and another is suggesting a constitutional amendment. An amendment is the one legitimate means to avoid funding schools, but at this point, neither an amendment nor outright defiance seems likely. Of course, anything could or could not happen between now and June 30, but my initial read is that Kansas's Supreme Court has run a very dangerous gauntlet to preserve the constitutional right to education in Kansas and lend support to the continued movement in other states. For more on the overall stakes in this battle, see here.
Monday, June 13, 2016
Manhattan U.S. Attorney Sues NYC Department of Education For Discrimination At Pan American Int'l High School
In an unusual action, the Manhattan U.S. Attorney's Office has sued the New York City Department of Education under Title VII for allegedly permitting a high school superintendent and principal to discriminate against the three black teachers employed at Pan American International High School and retaliate against an assistant principal who spoke out against the discrimination. The Manhattan U.S. Attorney's Office has rarely, if ever, brought a race discrimination claim against a school district in recent years. In the office's press release in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456, U.S. Attorney Preet Bharara said: “It is nearly unthinkable that, in this day and age, one of the largest and most diverse school districts in the United States would allow racial discrimination and retaliation to flourish." Cribbed from the U.S. Attorney's press release: The Government alleges that during the 2012-2013 school year, the New York City DOE permitted Pan American Principal Minerva Zanca and Superintendent Juan Mendez to make derogatory racial comments about the school's only black teachers, such as saying that one teacher “looked like a gorilla in a sweater,” commented about one's “big lips quivering” during a meeting, and and that Zanca stated that she had difficulty suppressing her amusement at another teacher who reminded her of a Tropicana commercial where a black man “with those same lips” danced down a supermarket aisle. Several of these comments were made to or in the presence of the school's assistant principal, Anthony Riccardo. Zanca later accused Riccardo of “sabotaging her plan” when he refused to give one of the black teachers an unsatisfactory rating for a lesson that he had not yet seen. In response, Zanca called school security to have Riccardo removed from the premises. The Riccardo incident is part of the DOJ's retaliation grounds. The complaint in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456 (filed 6/9/2016) may be viewed here.
Ann Mallet Killenbeck (Arkansas)'s article on Fisher II, Ferguson, Fisher, and the Future: Diversity and Inclusion As A Remedy for Implicit Racial Bias, 42 J.C. & U.L. 59, 60-63 (2016), posits that the Supreme Court will use Fisher II to guide higher ed institutions' racial diversity policies. Below is an excerpt from Prof. Killenbeck's introduction:
My thoughts on Fisher II in this Article will be somewhat unusual. My threshold assumption is that the Court will use the case to reaffirm Grutter and clarify what is required when a college or university decides to adopt an affirmative admissions policy as a means of attaining student body diversity. As I will explain, the decision to grant review was both logical and necessary. It is actually a welcome opportunity for the Court to give badly needed guidance to both sides in this debate about how best to go about implementing those policies. Indeed, I believe that for those who wish to preserve the diversity victory in Grutter, the best possible outcome will be to have their implementation feet held to the fire of intense judicial scrutiny in Fisher II. That said, there are substantial perils in this process given the lackadaisical manner in which virtually all institutions have approached their actual educational obligations once they have taken the steps required to admit a diverse group of students.
I will also argue that this new round of litigation offers an important opportunity for affirmative action's proponents to do two interrelated things. The first is to recognize, account for, and undertake key obligations imposed by Grutter and Fisher I. The second is to seize the opportunities presented in the wake of Fisher II to strengthen their case for the value of diversity as a matter of educational policy by focusing our attention on implicit racial bias. The virtues of educational diversity identified by Justice Sandra Day O'Connor in her opinion for the Court in Grutter had solid social science foundations. The evidence cited by the Court at that time did not, however, account for an important aspect of our national malaise, the corrosive impact of implicit racial bias and stereotyping. Significant developments in this body of knowledge have the potential to bolster the Court's prior determination that diversity's “benefits are not theoretical but real.” This knowledge can, and should, be part of the dialogue as we reexamine these issues.
Susan DeJarnatt, Kerrin C. Wolf, and Mary Kate Kalinich have posted their new paper, Charting School Discipline, on ssrn. It focuses on discipline in charter schools and their potentially distinct approaches. As recent civil rights complaints in New Orleans and due process litigation in California have shown, charter school discipline is of growing importance to the overall conversation regarding necessary reforms to school discipline. DeJarnatt and her colleagues offers this abstract:
Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.
We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.
We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.
Wednesday, June 8, 2016
New Civil Rights Data Shows Just How Misguided Attack on Tenure Is; Teacher Quality Problems Run Much Deeper
The Office for Civil Rights' new data collection shows vast disparities in regard to teachers. Racial minorities were twice as likely to attend schools where one out of five teachers were brand new. Racial minorities were also more likely to attend schools with unlicensed teachers. Race aside, about 800,000 student attended a school where one out of five teachers lacked the required state licence.
Teacher quality is inherently a difficult thing to measure with blunt qualification metrics, but studies have show that some blunt measures matter. First, there is a learning curve to teaching. While quality may flatten after about five years of teaching, teachers do tend to improve during the first five years or so. Second, while "certified" teacher encompasses a broad range of teachers and teaching quality, uncertified is a relatively narrow group who have yet to demonstrate the basic requirements to enter a classroom. As a result, studies do show that uncertified teachers have a negative impact on student achievement.
Interestingly, none of these teacher inequalities have anything to do with tenure. As very rough measures, they tend to show just how wrong-headed the legal challenges to tenure are. These numbers show that if ever teacher in the country lost tenure tomorrow and we fired everyone of them on Monday, there are not enough certified teachers to fill our nation's classrooms. Moreover, this problem is most acute in predominantly minority schools. Tenure may randomly operate as a burden or disincentive to removing some teachers, but it is not a significant cause of low quality teaching. For a host of other flaws in the challenges to tenure, see here.
Tuesday, May 31, 2016
Kansas Supreme Strikes Down State's Funding Scheme Again, Setting Important Example for Others to Follow
Back in February, the Kansas Supreme Court ordered the state to remedy its unconstitutional financing system (for the umpteenth time). The state passed responsive legislation, but last week,the Kansas Supreme Court struck it down as well. For those who have not followed the school finance battles in Kansas, this is not the story of a runaway court, but a runaway legislature that has refused to recognize the authority of the court. The earliest of the Kansas Supreme Court's decisions were mild by most accounts. But rather than comply, the legislature has ignored its duty to provide its students with equal educational opportunities. It has even gone so far as to threaten the funding and appointment process of the judiciary itself.
The Kansas Supreme Court, however, has not flinched from its responsibility to adjudicate facts and apply the law. In this respect, the Kansas Supreme Court is becoming an outlier in school funding and quality cases. As detailed here, courts have increasingly shied away from enforcing the constitution and confronting legislatures since the recession. Even once those tax revenues rebounded, the trend continued. For instance, two weeks ago, the Texas Supreme Court overruled a trial court's order in support of low wealth districts, in litigation that has spanned for decades and almost uniformly supported the position of more equity and adequacy. The less than compelling reasoning in the Texas Supreme Court's new opinion suggests the court is setting a new and troubling course.
This is what makes the Kansas Supreme Court's opinions last week and earlier this year so important. They (along with recent opinions from Washington state) may represent the best and last hopes from separation of powers between the legislature and courts, the enforceability of the constitutional right to education, and the rule of law. If the rule of law cannot prevail in Kansas, it likely only spells more bad news for schools in other states.
As I argue in Averting Educational Crisis, there is nothing easy about forcing the state to comply with its duty to deliver equal and adequate education. That difficult job grows exponentially harder during times of economic crisis, so hard that it is nearly impossible at times. That job, however, does not become any easier by running from it. To the contrary, the more courts look the other way, the more they look like political actors and loose the institutional authority and respect necessary to have states concede to the rule of law. In other words, when courts refuse to enforce the constitution today, they jeopardize it for years to come.
The Kansas Supreme Court clearly has a sense of what it is fight for. It wrote:
The political necessities of the legislature are similarly irrelevant to our review. The constitution of the people of Kansas does not change its requirements based on legislators' support, or nonsupport, of proposed legislation. Rather, the Kansas Constitution "is the supreme and paramount law, receiving its force from the express will of the people." Just as the legislature has the power and duty to create a school funding system that complies with Article 6, it is this court's power and duty to determine whether an act of the legislature is invalid under that constitution, i.e., if the legislature has met its duty. A law's political expediency or level of support will not shield it from such review. After considering all of the arguments, we conclude the State has failed to meet its burden on this issue in the remedial phase of this case. Specifically, the hold harmless provision fails to sufficiently mitigate the increased inequities created by applying the capital outlay aid formula to the LOB funding system. At best, H.B. 2655 does no more than take away funds from the districts, then give the funds back, simply to restore the same level of inequity we ruled unconstitutional in Gannon II, 303 Kan. at 720. Additionally, it worsens disparity in accessing LOB funds among aid-qualifying districts.
Get the full opinion here.
Thursday, May 26, 2016
According to the complaint in Morgan v. Lexington, R.M., a middle school student in Lexington, Massachusetts, was physically and mentally bullied at school. The first time he and his mother notified his principal, the principal said that R.M. had “delayed the investigation” and, as a result, would not be allowed to participate in an upcoming track meet. After that, the bullying and assaults continued. The bullying was apparently pretty serious and included being shoved into a locker, having his pants pulled down in front of other students, suffering punches in the head and stomach. When he notified the assistant principal, he was told to stay away from the harassing students. His mother then raised the issue, but before the school’s investigation ended, R.M. became too scared to return to school. After missing several days of school, the principal, per state law, asked the police to go to R.M.’s house on two separate occasions.
At the conclusion of the investigation, the assistant principal reported to R.M. and his mother that students had admitted to some of the harassment, but the principal purported indicated that none of the students involved would be disciplined. R.M. decided to enroll in a private school for the remainder of the school year. R.M., however, returned to the public school next year and the harassment continued. Due to the harassment and anxiety, R.M. missed 112 days of school.
The lawsuit against the district alleged that the defendants deprived R.M. of a “protected liberty interest in bodily integrity, specifically, the right to be free from the abuse and injuries” under the Fourteenth Amendment. The court rejected the claim, concluding that Morgan did not present enough facts to establish that the defendants’ actions and/or inaction caused R.M. to be bullied by the other students or increased the risk to him. Moreover, it added, the First Circuit has never accepted such theory in the context of bullying.
Likely recognizing this problem, plaintiff sought to amend the complaint to raise a Title IX claim, which, of course, does provide a cause of action sex and gender based harassment. The trial court, however, denied plaintiff’s motion to amend, reasoning that the complaint does not allege any sex- or gender-based animus by any of the students, and none can be inferred from the circumstances outlined in the complaint. Plaintiff argued that in some cases one could "use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct," but the district court found that there was insufficient evidence to do so. Rather, the conduct at issue involved undifferentiated bullying. The Court of Appeals affirmed on all counts.
This case offers a sad reminder of the large gaps in the law regarding bullying. Gender, race, and disability based bullying are prohibited because they are deemed discrimination, but other bullying, even when serious, is outside the scope of civil rights protections because it does not involve discrimination.