Tuesday, November 24, 2015

Briggs v. Elliot and South Carolina's New Center for Civil Rights History

Yesterday, the University of South Carolina announced that it will establish a Center for Civil Rights History and Research to chronicle the contributions of the Palmetto State to the American civil rights movement.   It will be the first single entity dedicated to telling South Carolina’s civil rights story.  Congressman James Clyburn, the state’s first African-American member of Congress since Reconstruction and the assistant House Democratic leader, also announced that he will donate his congressional papers to the new center.  For education scholars, the center will be particularly important, as South Carolina holds an out-sized role in the history of desegregation.  Most obviously, Briggs v. Elliot was the deep-South companion case to Brown v. Board.  Clarendon County, where Briggs arose, still carries this history.  It has been the locus of the state's school funding litigation for the past two decades.   

As just a tease of what is to come from the center, I offer this picture of the original complaint in Briggs v. Elliot.  Having spent almost the entirety of my scholarly career on a computer and now being able to freely access historical materials in pdf. from the convenience of my office, seeing this complaint and the handwritten signatures on it was stirring.  Unfortunately, my picture can do no more than offer you easy electronic access, but I invite you all to visit the Center in the future as its work unfolds.  More here.


November 24, 2015 in Racial Integration and Diversity, Scholarship | Permalink | Comments (0)

Monday, November 23, 2015

Should New York City Remove Metal Detectors from Its Schools?

The title of this post poses what might sound like an odd question, but a debate over whether to remove  metal detectors from New York City's schools is gaining in prominence for two reasons.  First, the last shooting in a New York City school was in 1992.  Second, metal detectors are not uniform practice in the district.  Rather, they tend to only be used in predominantly minority schools.  The LA Times reports that "almost half of black students are scanned daily, while only 14% of white students are."  From a legal perspective, this disparity on its own does not trigger scrutiny under Title VI regulations (prohibiting disparate impact).  Advocates would also need to demonstrate a harm or denial of benefit.  Many would argue that being asked/forced to walk through a metal detector is is not an invasion of privacy.  It is definitely not an individualized search that would required reasonable suspicion under the Fourth Amendment.  On other hand, the New York City Civil Liberties Union says that "[m]aking students have to go through metal detectors to go to school sends a terrible message to students about where they are headed and how they are viewed."  This sounds like a stigmatic or psychological injury.  This type of injury has, of course, be used in racial discrimination cases since Brown v. Board.  For understandable reasons, however, the current debate is proceeding as a policy debate rather than a legal one.  See here.  That debate is devolving into one of safety versus racial fairness.  That one may be even harder to resolve.

November 23, 2015 in Discipline, Discrimination | Permalink | Comments (0)

Is the Deal to End Pennsylvania's Four-Month-Long Education Budget Stand Off Falling Apart?

Just when it seemed Pennsylvania schools would finally get a budget and avert the financial doomsday scenarios that many have been predicting since August, the details of the tax plan to cover the budget are threatening to derail the plan.  Here is the introduction to the AP story outlining the roadblocks:

The Pennsylvania Senate is juggling a long-simmering fight over who pays for public schools just as Gov. Tom Wolf and top lawmakers appear to be struggling to hold together the skeleton of a budget deal that's five months late.

There's head-scratching in the Capitol over why Senate Republican leaders chose this moment for the debate. For one thing, some privately worry it could further destabilize already wobbly efforts to negotiate and pass a package of budget-related legislation.

On Saturday night, top House Democrats informed rank-and-file members that Republicans had told Wolf, a Democrat, that there isn't enough GOP support for a state sales tax increase — from 6 percent to 7.25 percent — to generate $600 million to balance the budget and $1.4 billion in rebates for homeowners who pay school property taxes.

"We are assessing our options and examining whether there are any acceptable alternative revenue sources to balance the budget and provide property tax relief," they wrote in the email obtained by The Associated Press.

A spokesman for House Majority Leader Dave Reed, R-Indiana, said Sunday that Republicans had told Wolf nothing of the sort, and that the level of GOP support for the idea is contingent on how the property tax rebates are distributed.

In any case, Democratic lawmakers have had their own complaints with the proposed deal, and negotiators have acknowledged it has been difficult to develop a formula to distribute the property tax rebates that would placate lawmakers who might be willing to vote for the tax increase.

For some lawmakers, the complete elimination of school property taxes is the preferred option.

It is no small matter: It would require a $12-plus billion state takeover of public school funding from school boards and perhaps the biggest-ever change in state taxation.

A Monday vote is expected, and it is not yet clear whether it will pass.

Get the full story here.

November 23, 2015 in School Funding | Permalink | Comments (0)

Friday, November 20, 2015

Taylor Bell Is Taking His Rap Song to the Supreme Court: Will It Finally Address Off-Campus Speech?

Taylor Bell has filed his petition for certiorari with the Supreme Court.  Taylor Bell was a Mississippi high school student who had heard that coaches at his school were sexually harassing female students. He says the school administration had been told before but did nothing, so he wrote a rap song and performed it on youtube to bring attention to the issue. He named coaches, recounted allegations, and made provocative allusions.  Before performing the song, he offered this preface:

A lot of people been asking me lately you know what was my
reasoning behind creating P.S. Koaches. It's . . . something that's
been going on . . . for a long time [] that I just felt like I needed to
address. I'm an artist . . . I speak real life experience. . . . The way
I look at it, one day, I'm going to have a child. If something like
this was going on with my child . . . it'd be 4:30. . . . That's just
how it is . . .

For his deed, he was suspended and sent to alternative school.  According to the school district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law."  Taylor won his case before a three judge panel of the Fifth Circuit, but it was reversed by the en banc panel.  His petition to the Supreme Court is sure to draw a close look and will be supported by numerous amici.

Here is his summary of the case:

This case presents a First Amendment question of the utmost importance that has vexed school officials and courts across the country: whether this Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), applies to students’ off-campus speech.  This question arises with startling frequency in an age when students communicate primarily through online social media such as Facebook, Instagram, and Twitter.  Only this Court can provide the guidance that students, parents, teachers, school administrators, and lower courts desperately need.

In a deeply fractured decision, the en banc Fifth Circuit held that the First Amendment allowed a Mississippi public high school to censor an 18-year-old senior’s entirely off-campus speech calling attention to sexual misconduct by school officials.  Petitioner Taylor Bell composed, recorded, and posted to the  Internet a rap song reporting that two of his school’s male teachers had sexually harassed and assaulted female students.  Bell wrote the song over winter break, recorded the song at a professional studio, and uploaded the song to Facebook and YouTube from his personal computer at home.  No one even heard the song at school, except one of the accused teachers at his own initiative.

Continue reading

November 20, 2015 in First Amendment | Permalink | Comments (0)

Thursday, November 19, 2015

No Parental Rights in Children's Education? What Scalia Is Missing

Addressing a first-year class at Georgetown University Law Center a few days ago, United States Supreme Court Justice Antonin Scalia shared his view that there is no fundamental Constitutional right of a parent to direct the education and upbringing of their children. This is not to say, however, that Supreme Court precedent does not protect such a right.  In 1925 in Pierce v. Society of Sisters, the Court struck down an Oregon law requiring all children to attend public school. The Court indicated that, in not affording a parent the option of sending their child to a private school, the law “unreasonably interfere[ed] with liberty of parents and guardians to direct the upbringing and education of children under their control.”

Scalia’s rejection of such a right is based on his opposition to the use of substantive due process to enumerate rights. Because a parental right is “simply not in the Constitution,” Scalia says he “will not enforce it from the bench.” Consistent with his comments, Scalia dissented in Troxel v. Granville, a case dealing with third party visitation rights with children.  There, Scalia reasoned that although the parental right to control the upbringing of their child is an inalienable right stated in the Declaration of Independence, the Constitution does not grant judges the right to rule on state laws that may interfere with a parental right.

Scalia’s reasoning is tied up in anti-Lochner reasoning.  As some may painfully remember, the Lochner Era refers to Supreme Court decisions between 1897 and 1937 in which the Court aggressively curtailed government regulation of private industry, including the minimum wage, labor rights, and workplace safety.  The Court struck down this regulation by reasoning that individuals have a fundamental liberty interest to engage in contract and that these regulations interfered with the right—i.e. an individual should be able to contract to work under any conditions that he is willing to accept.  Pierce and a few other parental cases were decided during the Lochner Era.  These cases were predicated on the notion that the government was interfering with the parents’ right to enter into a contract for education services. 

This fundamental right to contract worked any number of mischiefs and was later repudiated, leaving cases like Pierce in doubt.  In fact, much of modern jurisprudence is premised on not ever going back to the type of judicial activism and inconsistency we say during the Lochner Era.  In that respect, Justice Scalia may be on firm ground.  But the theory of the right to control the upbringing of one’s children has since been integrated into First Amendment doctrine of freedom of religion and speech.  Pierce, for instance, could have just as easily been decided on freedom of religion grounds as freedom of contract.  Freedom of religion is, of course, explicitly in the Constitution.  I am a little surprised (or not) that Scalia would dismiss that reality.

Unfortunately, while incorporated into religion and speech, parental rights in education have grown increasingly complex in recent years.  Catherine Ross offers a nice overview at 18 Wm. & Mary Bill of Rts. J. 991 (2010).

November 19, 2015 in First Amendment | Permalink | Comments (0)

Wednesday, November 18, 2015

New York Sues Utica School District For Discriminating Against Limited English Proficiency Students

New York Attorney General Eric Schneiderman sued the Utica City School District yesterday for excluding Limited English Proficiency students from the district’s only high school and instead diverting them to unequal educational services that did not allow them to earn a high school diploma. The Attorney General's complaint alleges that the Utica district had a written policy that if district officials perceived an immigrant student to be Limited English Proficiency and over the age of 16, the student was told that he or she was "too old" to enroll at the district's high school, Proctor. In contrast, English-proficient students over age 16 were permitted to enroll at Proctor High School. The Office for Civil Rights' guidance for recent immigrant (“newcomer") programs were intended to be a bridge to general education classrooms and the district's educational services. The district's newcomer program did not meet the OCR guidelines that such programs be voluntary, of limited duration, integrated with the district's services and opportunities for other students, and designed to lead to transitioning to general education. Instead, the complaint alleges, for the past two school years the district outsourced its duty to educate LEP students to third parties, such as a local refugee center, in violation of federal and state civil rights statutes and Plyler v. Doe. The district steered LEP to students to alternatives that were "educational dead-end[s]." The few LEP students who managed to enroll at the high school were assigned to separate extra-curricular activities, lunch rooms, and buses from the rest of Proctor's students. A private class action suit alleging the same discriminatory conduct is pending against the Utica district (Tuyizere, et al. v. Utica City School District, et al. (C.A. No. 15-cv-488 (TJM-TWD)). The Attorney General's complaint in Schneiderman v. Utica City School District seeks declaratory and injunctive relief requiring the district to change its discriminatory policies and agree to corrective oversight. The complaint is here.

November 18, 2015 in Discrimination, State law developments | Permalink | Comments (0)

Massachusetts Attorney General Debunks Plaintiffs' Constitutional Demand for More Charters

Earlier this year, I posted on a lawsuit in Massachusetts that challenges the state's cap on charter schools as violating the state's education clause.  I noted the connection between the charter theory and that in Vergara v. State (California challenge to tenure).  Both cases pick out single education policies as impeding their access to a constitutional education.  In that respect, they both ignore the larger education structures at play in their states.  The charter claim, however, is an even bigger stretch, as it is not asking for a fix to the public education system itself but the right to exit it and gain access to an alternative system.  In other words, since the state would give them what they are owed under the constitution, they want something else.

The state attorney general, Maura Healey, finally fired back this week in the state's responsive briefs.  Here's the Boston Globe's summary:

She contends that the argument advanced by the five plaintiffs that there is a direct link between the charter school cap and the poor education they claim to be receiving is “illogical, highly speculative, and remote.”

“Numerous other factors” other than the charter cap could be responsible for the poor performance of some schools, Healey writes. And simply opening more charter schools won’t necessarily help because there is no guarantee that they would be high-quality charters, she contends.


“Not all charter schools in Massachusetts are high-performing,” Healey writes. “In fact, it is not unusual for the department or the board to impose conditions on existing charter schools, or close them because they do not perform as required.”

Healey also asserts that Boston has not, as the plaintiffs argue, reached its limit on the number of charter schools because it still has seats available in so-called Commonwealth and in-district charter schools, which are given more flexibility than traditional public schools, though not as much as full-fledged charter schools.

Healey also argues that the court should not step in to lift the cap because the state Constitution “leaves the details of education policy making to the governor and the Legislature.”


That sounds about right.  For a similar critique of the constitutional challenge to tenure, see here.


November 18, 2015 in Charters and Vouchers, School Funding | Permalink | Comments (0)

One of Nation's Highest Achieving States May Go Higher: Commission Calls for Better School Funding Formula in MA by Molly Hunter

Massachusetts leads the nation in test scores and is one of only four states with fair school funding but sees the need to increase its financial support for its PreK-12 public schools in order to provide better and more equitable opportunities for its students.

On November 2, 2015, state education leaders released the Foundation Budget Review Commission's report and recommendations. This bipartisan Commission, established by the Legislature to examine the adequacy and effectiveness of the state's current education funding formula, found that the way the state calculates school districts' foundation budgets---the starting point in Massachusetts K-12 school financing---understates the cost of educating its nearly one million students to the tune of at least $1 billion per year.

The report focuses on four components for its financial recommendations, which recognize national trends and urge funding for: the surge in health insurance premiums; the actual costs of special education; the true costs of opportunity for students learning English; and, the higher costs for the swelling numbers of students in poverty and concentrated poverty.

  1. First, it notes that current assumptions fail to take into account the national surge in health insurance premiums over the past two decades, resulting in hundreds of millions of dollars being diverted out of the classroom to cover insurance premiums. As a result, many school districts are unable to provide core educational components like art, foreign languages, or professional development, or targeted initiatives to reach their most disadvantaged students. To address this, the Commission recommends that the Legislature use actual averages from the state's Group Insurance Commission---the buyer of health insurance for state employees---to set insurance costs and inflation rates in the Foundation Budget.
  2. The report's second recommendation is similar: adjust the state's calculations to more accurately reflect the current cost of special education. Because special education is a federal legal entitlement, school districts must essentially pay their special education bills first, before giving resources to other priorities. As with health insurance, the Commission recommended more accurate projection of special education costs in the Foundation Budget, so that money may in turn flow to additional priorities. They estimate the increase to foundation budgets from this recommendation to be $115 million in FY2014 dollars.
  3. Increase the "weighting" given for English Language Learners (ELLs) in the state's calculation of educational costs, to more accurately reflect the intensive work districts must often do to bring ELL students, especially high school students, to proficiency.
  4. Increase the "weighting" given for low-income students in school districts with high concentrations of poverty, in recognition of the unique costs caused by such concentrations. The Commission noted that weightings for these districts should fall in the range of 50% to 100% above the typical per pupil cost, and should be enough funding to pursue multiple interventions at once---such as, a longer school day in tandem with wrap-around services.

Continue reading

November 18, 2015 in School Funding | Permalink | Comments (0)

Scholarship on the 2015 Term: Fisher II and Friedrich v. Calif. Teachers Association

Harpalani on Fisher v. University of Texas at Austin (Fisher II)

Prof. Vinay Harpalani (Savannah) has posted a policy issue brief on Fisher v. University of Texas at Austin (Fisher II) on SSRN. This term, the Supreme Court will decide in Fisher II whether UT’s admissions policy, which considers race in its admissions decisions, is sufficiently narrowly tailored to further the university’s interest in diversity. In his policy brief, American Constitution Society for Law and Policy Issue Brief: Defending the Constitutionality of Race-Conscious University Admissions  (October 29, 2015), Prof. Harpalani “offers proposals to universities, policymakers, and advocates who seek to defend the use of race-conscious admissions policies in the future.” His policy brief is excerpted below:

The basic constitutional question around race-conscious university admissions is relatively simple. Under the Equal Protection Clause of the Fourteenth Amendment, can a university consider an applicant’s race when making selective admissions decisions? For a university to use race as part of its admissions process, it must meet the strict scrutiny test. Its race-conscious admissions policy must fulfill a compelling state interest, and the policy must be narrowly tailored to meet that interest. Nevertheless, the nuances of strict scrutiny—as applied to race-conscious university admissions— have become quite complicated and contentious. Given the politically charged nature of race in America, universities, policymakers, and advocates need to understand constitutional doctrine and how it both intersects with and diverges from the political debates on affirmative action.

The Supreme Court heard some of the arguments on qualitative diversity in Fisher (I), but this time it will likely rule on them. The baseline issue here is the standard of review, and in accordance with its Grutter and Fisher (I) precedents, the Court should defer to UT on defining its diversity-related educational goals, such as the benefits of qualitative diversity. Such benefits are part of a university’s compelling interest in diversity: its educational goals and mission. In Fisher (I), Justice Kennedy’s majority opinion stated: “A court may give some deference to a university’s ‘judgment that such diversity is essential to its educational mission,’ provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision.” Qualitative diversity is on its face more than just racial balancing, as the whole point is to achieve diversity within racial groups rather than particular numbers or percentages of each racial group. Additionally, there are clear reasoned, principled explanations for seeking qualitative diversity, in terms of its educational benefits: it serves to break down racial stereotypes and to reduce racial isolation.

Hemel and Louk on Friedrichs v. California Teachers Association

Profs. Daniel Hemel (Chicago) and David Scott Louk (Yale) have posted Is Abood Irrelevant?, 82 University of Chicago Law Review Dialogue (Forthcoming) on SSRN about the Supreme Court's grant of certiorari this term to decide Friedrichs v. California Teachers Association, discussed on the blog here. Some believe that the Court granted certiorari in Friedrich to overrule or modify Abood v. Detroit Board of Education (1977), which held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” If Abood is overruled, that decision is expected to impact teachers' unions' financing and thus, the unions' political power. But Profs. Hemel and Louk's argue that Friedrichs may not make that much of an impact. Their abstract is excerpted below:

Many observers predict the Court may use Friedrichs as an opportunity to overrule Abood, with the consequence that public-sector unions will lose the ability to deter free-riding by nonmembers. We take no position on whether Abood will, or ought to, survive. Instead, we present a novel alternative mechanism to address the free-rider problem in public-sector workplaces — a mechanism that could be utilized even if Abood is overturned. We suggest that if a public-sector employer wants to make sure that a labor union is compensated for the cost of representing nonmembers, the employer can reimburse the union for those expenses directly. To offset the cost of this direct payment, the employer can reduce each employee’s salary by the employee’s pro rata share of the union’s bargaining expenses, while also freeing employees from the obligation to pay agency fees. This “direct payment alternative” would seem to accomplish the same objective as existing agency shop arrangements: it would prevent non-union members from reaping the benefits of union representation without sharing the costs. And while the wages of public-sector employees would be reduced by their pro rata share of their union’s bargaining costs, existing agency shop arrangements already reduce wages by that amount, because employees must pay their pro rata share in the form of union dues or agency fees.

In fact, our direct payment alternative might leave public-sector employers and employees better off than existing agency shop arrangements. First, the direct payment alternative eases the First Amendment concerns raised in Friedrichs: a direct payment to the union would likely qualify as “government speech,” and would thus be subject to less stringent scrutiny under present First Amendment doctrine. Second, the direct payment alternative would bring with it favorable federal tax consequences for state and local government employees. An employee’s pro rata share of union bargaining expenses would not be included in gross pay for purposes of Social Security and Medicare taxes, and would not be included in adjusted gross income for purposes of personal federal income taxes. Most public-sector employees would fare better on an after-tax basis if their employers adopted the direct payment alternative instead of the agency shop arrangement.

In this short essay, we compare and contrast the basic features of the agency shop and the direct payment alternative, considering the constitutional, economic, and political factors that might lead state and local governments and public-sector unions to choose one approach over the other. We present several hypotheses drawn from behavioral economics and political psychology — and, in particular, from the emerging literature on the “salience” of taxes and fees — that might explain why employers and unions have thus far opted for agency shops. We close by considering the practical consequences of a possible Supreme Court decision overruling Abood. We conclude that while Abood is not entirely irrelevant, the availability of the direct payment alternative suggests that the impact of overruling Abood may be muted.

November 18, 2015 in Scholarship | Permalink | Comments (0)

Tuesday, November 17, 2015

Segregation Drives Discipline Disparities in Chicago Schools

The University of Chicago Consortium on Chicago School Research released a study last month disaggregating discipline results based on school composition.  It found that while “[s]tudents with the most vulnerable backgrounds are much more likely to be suspended than students without those risk factors[,] . . . differences in the suspension rates for students with different risk factors, such as poverty and low achievement, do not explain most of the large racial and gender disparities in suspension rates. . . .  The biggest driver of racial disparities in suspension rates comes from differences in which schools students of different races/ethnicities attend."  More specifically, it found that segregation in Chicago played a significant role in disparate discipline outcomes.  Highlights from the study include:

Continue reading

November 17, 2015 in Discipline | Permalink | Comments (1)

Monday, November 16, 2015

University Did Not Violate ADA By Banning Student Who Was Susceptible To Heat Stroke From Playing Football

After suffering heatstroke and multi-organ failure during football practice, which ultimately required Towson University student Gavin Class to undergo a liver transplant, Class sought to return to intercollegiate football. Towson University had a "Return-to- Play Policy," which requires each player to be cleared to play by the team doctor. The doctor told Class that Class could not return to football because playing presented an unacceptable risk of serious re-injury or death. Class sued Towson under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, alleging that his inability to regulate his body temperature and his susceptibility to heatstroke constituted a “disability," but, with specified accommodations, he was qualified to play intercollegiate football. The District Court of Maryland agreed with Class, concluding that Class’ proposed accommodations were reasonable (including measuring his temperature every 3-4 minutes) and that Towson had violated the ADA and the Rehabilitation Act. The Fourth Circuit reversed, finding that Class was not "otherwise qualified" to play football under the ADA because he could not obtain the team doctor's clearance, a legitimate and essential eligibility requirement. The circuit court cited a Seventh Circuit case with approval  that “medical determinations of this sort are best left to team doctors and universities as long as they are made with reason and rationality and with full regard to possible and reasonable accommodations.” The case is Class v. Towson University, 15-1811 (4th Cir. 2015).

November 16, 2015 in Cases | Permalink | Comments (0)

We Have a Deal on ESEA Reauthorization, Finally

After languishing for the entirety of the Obama presidency, Edweek reported late last week that the House and Senate have reached a preliminary agreement to reauthorize the Elementary and Secondary Education Act, replacing the defunct No Child Left Behind accountability system.  Alyson Klein offers a nice summary of the big points, so I will not repeat them, but I would emphasize those big issues that were in doubt.  

First, Title I funds are not going to turn into a voucher system whereby students can take those funds wherever they want.  This was the holy grail for many Republicans (at least those that have sought national attention).  Second, there were some changes to the funding formula.  Title I formulas are so complex that it is hard to comment on what the new ones will do until we actually see them, but the old formulas are so irrational that I would venture to speculate that any change is likely to be a step forward.  You may recall that a change to the formula was the very last amendment to slide into the Senate bill.  Any change to the formula would necessarily create winners and losers (unless the overall financial pot was expanded), which made change highly unlikely.  That we are getting some change, however modest, is a nod responsible lawmaking.  Finally, the bill severely restricts the Secretary of Education's discretion--a smackdown reaction to Secretary Duncan's executive overreach through the NCLB waivers.  While I have been highly critical of the waivers, this may very well be an overreaction.  If the Secretary confronts unforeseen circumstances that demand a solution, dealing with it may require Congressional action.  At that point, we can only hope a functional Congress will be in office.

November 16, 2015 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Friday, November 13, 2015

"Our Child Is a Girl"; Parents' of Transgender Student Speak Out In National Controversy

As discussed on this blog, a family outside of Chicago is embroiled in a battle with their district over its treatment of their daughter, who is transgender.  OCR has sided with the family, but the district will not back down.  The family is now speaking out.  Below is a shortened version of the anonymous letter published on the ACLU-Illinois' website.  Get the full letter here.

. . . Our school district – Township District 211 – insists that students “of the opposite sex” should not be permitted in the girls’ locker room. For the record, we agree with District Superintendent Daniel Cates about not permitting students of the opposite sex in the locker room. But the inconvenient fact for Mr. Cates and his supporters is that our daughter is not “of the opposite sex.” She is a girl.

The District wrongly assumes what many who are not educated about the issue assume; that what makes a girl a girl and a boy a boy is simple anatomy. We believed this, until our daughter came along. Despite early signs – from as young as four, when she declared herself a girl, to the fact that she had mostly girlfriends growing up, played with dolls, begged to wear girls’ clothes, insisted on wearing a Hannah Montana wig while she danced around the living room and was heavily distraught over the male characteristics of her body – we were still shocked and ill-prepared when, at the end of seventh grade, our daughter again told us that she was a girl and had to live openly as one.

This is a difficult concept to grasp. However, just because something is difficult to understand, does not mean we should mock it or deny its existence. When we were struggling to understand, we sought out medical professionals, and support groups. Through this education process, we learned that gender extends beyond the sex a person is assigned at birth. We learned that scientific evidence has determined that gender is also determined by the brain’s anatomy, which is why the sexual characteristics assigned to many at birth are incongruent with their true gender identity. We also learned that one’s gender identity is different from one’s sexual orientation. Most importantly, we learned acceptance.

. . . .

In Junior High, our daughter was not permitted to use the girls’ restroom or locker room or to participate in girls’ sports. As a result, she was bullied on a daily basis. The emotional toll this took on her broke our heart and we vowed to do all we could to ensure she never had to endure this kind of abuse in High School.

We knew that a big factor in whether our daughter would be fully accepted by her peers was whether the High School would treat her as a girl in all respects. If she was segregated, forced to use separate facilities, it would signal to others that it was acceptable to treat her differently. To ensure our daughter would not be discriminated against, we legally changed her name, obtained a passport which correctly identified her gender as female, submitted medical records to the District which demonstrated she had been diagnosed with gender dysphoria and was receiving treatment for it including hormone injections.

Despite the overwhelming evidence that my daughter is a girl, the institution that is charged with educating and enlightening our children, was only concerned with her body. The District therefore did not allow her in the girls’ locker room and instead felt compelled to discipline her on several occasions after she did, in fact, dare to use the same facilities as every other girl. The result was devastating to her – there were times she was inconsolable and all we could do was hold her and tell her that we loved her and would continue to advocate on her behalf.

. . . .

The fact that neighboring school districts have managed to grant transgender youth access to the locker rooms which correspond with their gender identity without any issues only serves to highlight that District 211’s stated concerns are mere subterfuge for discrimination. The only real fear is that which my daughter faces now and probably will for the rest of her life – fear that she will never be truly accepted by society, fear that she will never get married and have a family and, most concerning, fear that she will be harmed by people who are threatened by her very existence.

. . . .

November 13, 2015 in Gender | Permalink | Comments (0)

Black Minds Matter

The Education Trust's new report, Black Minds Matter, argues that "though it is abundantly clear that Black children can achieve at the highest levels, most of the data paint a dire portrait of an education system — preschool through college — that systematically squanders Black talent."  It frames that argument around basic data points.  Just to list a few:

  • African American children are "less like to have access to high quality preschool and early learning opportunities. The result? Achievement gaps begin early, even before children reach school age."
  • "[I]nstead of organizing our K-12 school systems to ameliorate [the fact that African American children often start kindergarten behind], these children get less in school too."  They attend the most challenging educational environments.  
  • African Americans attend schools that are predominantly poor and predominantly minority.  
  • African Americans are twice as likely to feel unsafe at school and three times as likely to be suspended.
  • African Americans are far less likely to be enrolled in rigorous courses.

The report then offers a series of recommendations.

  • Offering and ensuring academic relevance, rigor, and supports
  • Ensuring equitable access to effective educators
  • Extending learning time
  • Improving school climate and fixing school discipline
  • Providing a broad range of health, wellness, and socio-emotional supports.

November 13, 2015 in Discipline, Equity in education, Pre-K Education, Racial Integration and Diversity | Permalink | Comments (0)

Thursday, November 12, 2015

N.M. Supreme Court Holds That Instructional Materials Law That Benefitted Private Schools Is Unconstitutional

Following the majority of states, the New Mexico Supreme Court ruled today that the use of public funds to provide free  textbooks to private school students violated the state constitution. The state supreme court, interpreting Article XII, Section 3 of the N.M. Constitution (which forbids the use of public funds for “the support of any sectarian, denominational or private school, college or university”), struck down the state's Instructional Material Law (IML), which allowed public funds to be used to lend instructional materials to public and private school students. The petitioners in the case are parents who challenged the IML as unconstitutional because it forced them to support religious private schools through public fund and parents sued N.M. Education Secretary Hanna Skandera. The parents' case was dismissed after the district court granted the Department's summary judgment motion; the N.M. Court of Appeals affirmed. In reversing the Court of Appeals, the state supreme court noted that while the lower court believed that the state constitution only protected against the establishment of religion -- similar to the federal constitution's Establishment Clause -- the N.M. Constitution actually prohibits providing materials for students attending private schools generally, "whether such schools are secular or sectarian." The supreme court reversed and remanded the case for the district court to find that the IML violated the state constitution. The case is Moses v. Skandera, No. 34,974 (N.M. Nov. 12, 2015).

November 12, 2015 in Cases, State law developments | Permalink | Comments (0)

Diversity Matters, Even When Whites Are the Minority

 Three weeks ago, I posted on a National Center for Education Statistics study that found that, all other things being equal, African-American students performed lower in predominantly African-American schools than in other schools, but white students did not score lower in predominantly African American schools.  I offered a number of potential explanations, but omitted one obvious factor:  white students experience the benefits of diversity in a predominantly African American schools, whereas most African Americans would not (given that their classrooms would tend to be one race in a predominantly African American school).  My oversight is probably due to my own bias.  When speaking of predominantly poor and minority schools, we/I tend to speak of the harms of attending those schools.  When we speak of the benefits of attending a diverse school, we/I tend to speak of schools with substantial, if not majority, middle income or white populations.  We often forget that a minority group, regardless of their race, may benefit by being the minority.   

An NPR story that commented on the NCES study also referenced the work of Katherine Phillips at Columbia Business School.  Phillips does an excellent job of actually explaining why diversity matters, particularly to whites, who are so rarely in the minority.  She does not specifically pitch it that way, but I find that work like hers and Scott Page's is absolutely necessary to helping my students understand the benefits of diversity as a reality rather than just rhetoric.   In her research, Professor Phillips has found that:

corporations with better gender and racial representation make more money and are more innovative. And many higher education groups have collected large amounts of evidence on the educational benefits of diversity in support of affirmative action policies.

In one set of studies, Phillips gave small groups of three people a murder mystery to solve. Some of the groups were all white and others had a nonwhite member. The diverse groups were significantly more likely to find the right answer.

"What the work tells us is that when you have people from the social majority in a diverse environment they work harder and focus on the task more," Phillips explains. "They think about problems more broadly."

And, she adds, they are more likely to back up their own opinions and consider alternative points of view, rather than assuming that everyone thinks as they do.

Phillips believes that her research, done on business students, could generalize to other classroom settings. Being in a homogeneous group may feel more pleasant, she says, but diverse groups keep people on their toes.

This is potentially an important finding for schools, given the Common Core's emphasis on deep learning, critical thinking and citing evidence.

In an older Forbes op-ed, Phillips offered this longer explanation of her work:

I recently published research in Personality and Social Psychology Bulletin, with co-authors Katie Liljenquist of Brigham Young University’s Marriott School of Management and Margaret Neale of the Stanford Graduate School of Business, that found that members of a social majority are more likely to voice unique perspectives and critically review task-relevant information when there is more social diversity present than when there is not. Moreover, this is true even when the people who are “different” don’t express any unique perspectives themselves. Our research suggests that the mere presence of social diversity makes people with independent points of view more willing to voice those points of view, and others more willing to listen.

When anyone in a group has perspectives, opinions or information that vary from the consensus, our research suggests, the mere presence of social diversity will make them express, and others consider, those perspectives in a way that benefits the group.

In one of our studies, we compared homogeneous and diverse groups trying to solve a murder mystery. The diverse groups reported that they didn’t work together very effectively, and they were less confident about their decisions than the homogeneous groups, yet they consistently outperformed those homogeneous groups.

Moreover, the benefits of diversity were most pronounced when the persons who were different did not bring a unique perspective to the table, but instead agreed with one or more of the social majority members. The members of the social majority then turned their focus to the task at hand and were more motivated to deal with it because of the social diversity present. They wanted to reconcile and to understand why some outsider actually agreed. They essentially didn’t want to leave without figuring out this apparent incongruence.

Whether trying to solve murder mysteries, develop new products, enter new markets or overhaul work processes, employees in organizations work harder when diversity is present, and a little bit more hard work is exactly what we need in corporate America. So as you think about diversity and its effects in organizations during this tough economic time, recognize that the most robust practical value of diversity is that it challenges everyone in an organization. We are more thoughtful, and we recognize and utilize more of the information that we have at our disposal, when diversity is present. That is diversity’s true value.

November 12, 2015 in Racial Integration and Diversity | Permalink | Comments (0)

Plyer v. Doe's Impact on the Constitutionality of Long-Term Suspensions and Expulsions

Robyn Bitner's student note, Exiled from Education: Plyler v. Doe's Impact on the Constitutionality of Long-Term Suspensions and Expulsions, 101 Va. L. Rev. 763 (2015), offers a new theory for limiting some suspensions and expulsions.  Her introduction includes this summary:

This Note will argue that, following Plyler, public school students have a plausible right of equal access to education under the United States Constitution. In addition to this right, students also benefit from a fundamental right to education in sixteen states. This framework hasthus far provided students with some respite from states' attempts to limit Plyler. However, in states where the right to education is not fundamental, or the status of education has not yet been determined by state supreme courts, school districts regularly violate students' plausible right of equal access to education in two ways. First, school districts offer no alternative education programs (“AEPs”) during periods of long-term suspension or expulsion. Second, when school districts do offer AEPs, they routinely fail to provide even basic education, which places students at risk of academic failure. Ultimately, long-term suspensions and expulsions mean that many of our nation's most vulnerable students are not receiving an education. However, as this Note will argue, our federal and state constitutions suggest that they are entitled to one. In the legal field, little has been written about the implications of Plyler outside the context of undocumented students. The analyses that do exist focus on state and local attempts to limit the rights of undocumented students to attend primary and secondary school. Other studies analyze the limits to higher education that undocumented students face in terms of college admissions and in-state tuition rates. This Note differentiates itself from what the legal field already knows by focusing instead on the interplay between federal and state law to determine how students' plausible right of equal access to education has been limited in other contexts, specifically school discipline. Such knowledge is worthwhile because it may permit a better understanding of exactly how child advocates can protect their most vulnerable clients from being shut out of the education system altogether. Equipped with this knowledge,school districts can be held accountable for educating all students, even the most behaviorally challenged ones.

November 12, 2015 in Discipline | Permalink | Comments (0)

Wednesday, November 11, 2015

James on Student Privacy and Smart Devices After Riley v. California

Professor Bernard James (Pepperdine)'s essay, T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California, 101 Iowa L. Rev. 343 (2015), is available here. The essay discusses how Riley v. California's cell phone privacy decision applies to school searches of the digital contents of students' smart devices. Excerpted from the essay:

Except in cases both rare and egregious, most student searches are upheld because “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and [courts] have respected the value of preserving the informality of the student-teacher relationship” [as the Supreme Court held in New Jersey v. T.L.O.]. Riley modifies T.L.O., stopping just short of requiring school officials to obtain warrants to justify searching students’ smart devices. The single most important element of this reconciliation is the “reasonable scope” limitation on school searches already built into the T.L.O. framework.


Riley’s primary effect on T.L.O. is to make more rigid the “reasonable scope” limitation on school discipline involving student cell phones and tablets. What emerges is an altered T.L.O., prohibiting searches of cell phones and smart devices unless the educator has the additional justification of reasonable suspicion of danger or reasonable suspicion of the student’s resort to the device as a hiding place for evidence of wrongdoing.


The guiding principle going forward is grounded in both logic and rule of law by carefully applying the decision of the Court from another higher- order privacy case—the strip search decision of Safford Unified School District #1 v. Redding. Hence, the expectation of privacy students possess in the digital contents of their cell phones after Riley is now at least equal to the higher- order privacy interest that prohibits strip searches by educators without additional justification. Despite this increased rigor, the most unanticipated consequence of Riley is the modest practical constraint on school disciplinary policies. When the fundamentals of school discipline and the educators’ duty to protect students are properly accounted for, the increase in student autonomy is not as much as one might imagine at the outset.

November 11, 2015 in Scholarship, Supreme Court | Permalink | Comments (0)

Virginia Schools in Worse Position Now Than Before the Recession

A new report by the Commonwealth Institute  shows a net loss in teachers and resources over the past six years and growing student need.  The net result is a school system in a worse position to serve its students today than before the recession:

Recent headlines have suggested that Virginia has 5,000 fewer positions in its K-12 schools now than before the beginning of the recession. The problem is actually much worse. Taking into account growing student enrollment, Virginia’s schools are missing over 11,000 positions, including 4,200 teachers. Also missing from Virginia’s schools are an additional 1,500 instructional staff, who should be assisting teachers in the classroom and helping students outside of it, and 5,500 support staff, who should be keeping the schools safe and running, getting students to and from class, and caring for student’s physical and behavioral health.

These missing positions stem from a combination of schools eliminating positions that they can no longer afford to support and schools not hiring staff to keep up with growing enrollment. Schools made these tough decisions because the state cut school funding moving out of the recession, pushing a greater share of the cost onto cashstrapped localities. In turn, as school divisions responded to budget pressures, they started to reduce staff and cut salaries.

Get the full report here.

November 11, 2015 in School Funding, Teachers | Permalink | Comments (0)

Monday, November 9, 2015

Troubling Trends in Religious and Ethnic Based Bullying

A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools.  Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination.  The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit.   Regardless, the report's empirical findings are troubling:

Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.

CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.

There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.

November 9, 2015 in Discipline, Discrimination, First Amendment | Permalink | Comments (0)