Friday, April 18, 2014

Study Examines Education for "Invisible" Students Incarcerated in Juvenile Detention

291The Southern Education Foundation (SEF) released its report yesterday concluding that the “young people placed in the juvenile justice system-predominately minority males incarcerated for minor offenses-are receiving a substandard education.” The report, Just Learning: The Imperative to Transform Juvenile Justice Systems into Effective Educational Systems, Steve Suitts, SEF vice president and author of the study, says that the 70,000 students in the juvenile justice system leave “in worse shape than when they entered, struggling to return to school or get their lives back on track." The report makes the recommendations listed below. Read Just Learning here.


To ensure that youth leaving the juvenile justice system have the skills and education they need to reenter school, find jobs, and become productive members of society, the report urges that states: 

  • Re-organize programs so that they are designed and operated to advance the teaching and learning of students. 
  • Set and apply the same educational standards that exist for all students in a state to the schools and educational programs in the juvenile justice system. 
  • Establish effective and timely methods of testing and reporting on the educational status and progress of every child and youth in the juvenile justice system. 
  • Develop and implement an individual educational plan and learning strategy-including special education, developmental services, academic motivation and persistence, and meta-cognition-to guide the instruction and services of every student in the juvenile justice system. 
  • Establish systems of coordination and cooperation to provide a seamless transition of students from and back into public schools. 
  • Create and maintain data systems to measure institutional and system-wide educational progress and identify areas in need of improvement.

April 18, 2014 in Studies and Reports | Permalink | Comments (0)

Thursday, April 17, 2014

Behind the Numbers in Camden--NJ's Highest-Cost Per Pupil School District

In a recent article, (Philadelphia Inquirer) goes behind the numbers about recent comparisons of the amount of per-pupil spending in New Jersey’s Camden school district. Camden’s per pupil spending is the highest in New Jersey, but only 49 percent of its students graduate from high school. The story quotes David Sciarra of the Education Law Center, who points out that per-pupil figures are misleading because school districts must spend more per student in high poverty districts (43% of Camden residents live below the poverty line) on special needs costs. While there differing views about the impact of education budgets for student learning (see the recent  report from the Cato Institute, Academic Performance and Spending over the Past 40 Years) and 2013’s Pew Center report showing unprecedented decreases in state education budgets), the article reminds of the complications of tracking money through education budgets and that per pupil school spending is not always what it seems.

April 17, 2014 in News | Permalink | Comments (0)

Wednesday, April 16, 2014

New York Legislation Expands Pre-K and Charter Protections

Late last month, New York reached a budget deal that included a huge victory for pre-k education. New York City will receive $300 million to offer full day pre-k to 4 year olds.  Included in the deal were also significant changes for charter schools.  Per the New York Times, the new legislation requires the city to

find space for charter schools inside public school buildings or pay much of the cost to house them in private space. The legislation would also prohibit the city from charging rent to charter schools. . . . Under the budget agreement, charter schools would receive more money per student. The schools, previously barred from operating early education programs, would also be eligible for grants for prekindergarten.

Some are citing the legislation as providing charters the greatest protections of any state in the country.

April 16, 2014 in Charters and Vouchers, Pre-K Education | Permalink | Comments (0)

Tuesday, April 15, 2014

American Statistical Association Cautions Use of Student Test Scores in Evaluating Teachers

Last week, the American Statistical Society released a report on "Value Added Models" that attempt to assess the effectiveness of teachers.  The report would appear to be a word of caution to current policies that rely heavily on students' standardized test scores to evaluate teachers.  Rather than misstate the report, I offer its own bullet point summary:

The ASA endorses wise use of data, statistical models, and designed experiments for
improving the quality of education.
• VAMs are complex statistical models, and high-level statistical expertise is needed to
develop the models and interpret their results.
• Estimates from VAMs should always be accompanied by measures of precision and a
discussion of the assumptions and possible limitations of the model. These limitations are
particularly relevant if VAMs are used for high-stakes purposes.

o VAMs are generally based on standardized test scores, and do not directly measure
potential teacher contributions toward other student outcomes.
o VAMs typically measure correlation, not causation: Effects – positive or negative –
attributed to a teacher may actually be caused by other factors that are not captured in
the model.
o Under some conditions, VAM scores and rankings can change substantially when a
different model or test is used, and a thorough analysis should be undertaken to
evaluate the sensitivity of estimates to different models.

• VAMs should be viewed within the context of quality improvement, which distinguishes
aspects of quality that can be attributed to the system from those that can be attributed to
individual teachers, teacher preparation programs, or schools. Most VAM studies find
that teachers account for about 1% to 14% of the variability in test scores, and that the
majority of opportunities for quality improvement are found in the system-level
conditions. Ranking teachers by their VAM scores can have unintended consequences
that reduce quality.

April 15, 2014 in Federal policy, Studies and Reports | Permalink | Comments (0)

Philadelphia School District Reduces Role of Police in School

Philadelphia has added itself to the short but growing list of major school districts that are trying to draw sharper lines between school officials and the police to reduce arrests in school.  Last fall, I posted on a similar move in Broward County, Florida.  According to a local Philadelphia paper:

Philadelphia School District has directed school police officers to stop responding to calls related to Level 1 student conduct offenses. The proscribed violations range from "failure to follow classroom rules" to "truancy" to "verbal altercations" to "inappropriate touching/public displays of affection."

"These infractions are not criminal offenses; they are classroom/student management issues," wrote District Chief Inspector Carl W. Holmes to school administrators and school police in a memo dated March 10.

The memo states that school police should "respond to all calls that are criminal in nature, or where persons involved are violent or threatening."

In the event that they are called to other incidents, officers should "request the presence of an administrator, counselor, or administrative designee," the memo explains.

Some teachers, including the Philadelphia Federation of Teachers, are not happy with the policy, indicating that there are not resources in the school to deal with discipline and it is not just a classroom management issue.  

"It is say that someone else should deal with it. There is no 'someone else,'" said Amy Roat, . . . teacher at Feltonville School of Arts and Sciences.

"We don't have anyone in our building most of the time that is 'qualified' to deal with these issues," she said. "We all just have to jump in and deal with it."

While I sympathize with overworked teachers in overworked schools, school discipline is an educational issue, not a law enforcement issue.  They may be correct that the schools currently are not fully equipped to deal with the problem, but that is due to the fact the state has been starving these schools of resources, not that the state has asked them to do the police force's job.  See the full story here.

April 15, 2014 in Discipline | Permalink | Comments (0)

Massachusetts Attorney General Sues Career College Corinthians for Predatory Practices and Subprime Student Loans

Massachusetts Attorney General Martha Coakley continues her office's focus on for-profit career schools that engage in predatory practices by filing a consumer protection complaint against Corinthian Colleges Inc. lists allegations against the for-profit education provider that will be familiar to observers of the lawsuit filed by the California Attorney General and the steps taken in Milwaukee to stop the for-profit education provider from expanding in that city. Coxley's office has sued two other for-profit career schools for allegedly misrepresenting job placement numbers and making misleading statements about its programs. The recent Massachusetts complaint charges that Corinthian, through its Everest Institute schools, engaged in deceptive marketing about employment and pay to prospective students, predatory practices such as requiring graduating students to sign statements that they had found jobs in order to receive their diplomas, enrolling students who did not have English language proficiency (and offering no ESL support) or who had criminal backgrounds that prohibited eligibility for careers in their degree programs. Everest boosted placement statistics by steps such as hiring 15-25 students of its students for its own two-day health fair. Massachusetts also alleges that Corinthians contributed to students’ loan debt by funding subprime loans “guaranteed and ultimately funded by Corinthian.” Although “89.8% of Corinthian's revenues were collected from Title IV funding,” the complaint alleges, “[m]uch of the remainder of Corinthian's reported revenue comes from a private loan program created by Corinthian.” Corinthian used the loans to meet the 90-10 rule, which prohibits schools from acquiring more than 90% of their funding from federal Title IV sources. The Corinthian loans, funded through third party agreements, had interest rates of 16 to 18% and origination fees of 6%, compared to federal students loans that have 5-7% interest rates and 1-2% origination fees. Overall, the 12% of students at for-profit schools nationally comprise about 48% of all student loan defaults. Read the Massachusetts complaint here.

April 15, 2014 in News | Permalink | Comments (0)

Monday, April 14, 2014

Journal of Law and Education Explores "Gay Talk," Disability Identification, and Cell Phone Searches

The Journal of Law and Education's new issue is available.  The table of contents and article summaries are as follows:


Gay Talk: Protecting Free Speech for Public School Teachers

Stephen Elkind and Peter Kaufman.................................................................................... 147

 Due to the harm free speech restrictions on teachers can cause students, this Article argues that when the Supreme Court revisits the question it left open in Garcetti v. Ceballos, it should create an exception for both university professors and public school teachers. An educator exception to Garcetti would mean that teachers’ speech to students about homosexuality is protected under the First Amendment if it satisfies the two-step Connick-Pickerington test, which governed public employees’ speech before Garcetti. At the heart of this Article is the idea that Garcetti’s broad effect will prohibit discussions on controversial matters from taking place in the public school classroom.

Education Clauses in Corporate Charters: How Child Welfare Law Confronted the Industrial Revolution

Jeff Lingwall........................................................................................................................ 189

This Article explores the history of corporations educating children in the U.S. through education clauses in corporate charters and other methods used to confront the emerging industrial order’s effect on children. This Article traces this history, beginning with colonial instruction laws, through corporate charters, and later, to more general instruction laws. The second section examines the state of colonial instruction laws and early corporate charters. The third section explores the history of educational clauses and alternative methods of educating factory children, giving historical evidence to suggest why some states employed this use of the corporate form while others did not. The fourth section explores the decline in apprenticeship and the rise of general compulsory attendance laws.


Introduction−A Response to Severely Discrepant Intervention?

Perry A. Zinkel.................................................................................................................... 225

Scientifically Supported Identification of SLD Using RTI: A Response to Colker

Amanda M. VanDerHeyden, Joseph F. Kovaleski,

Edward S. Shapiro and David T. Painter........................................................................... 229

This counterpoint to Ruth Colker’s review of controversies regarding how students identified as having a specific learning disability (SLD) can be most reliably identified and taught elaborates on notable points of disagreement. Our first point of disagreement pertains to Colker’s presentation of the current IDEA requirements related to the identification of students with SLD. Secondly, we disagree with Colker’s perspective that the inclusion of research-based intervention (RTI) was motivated by cost-savings and politics rather than science. Third, we disagree that universal screening tools can sensitively and accurately sort children into SLD and non-SLD groups. Our fourth point of disagreement is with Colker’s perspective regarding the need for IQ assessment to inform intervention selection. Fifth, we disagree that RTI will disenfranchise large groups of students who have above average abilities but have average achievement.  Sixth, we disagree with Colker’s perspective that the declining incidence of SLD is caused by the implementation of RTI. Finally, we disagree with Coker’s urgency to provide the diagnostic label of SLD .  

Continue reading

April 14, 2014 in Scholarship | Permalink | Comments (0)

Transcending Equality Versus Adequacy

Joshua Weishart's new article, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477 (2014), is now available on Westlaw.  For those interested in school finance and equal opportunity, it is a must read.  It is probably the most in-depth treatment of the theory behind school finance and educational opportunity published in the last one to two decades.  Professor Weishart focuses on what others have only hinted at: the reciprocal relationship between equality and adequacy.  As such, he proposes that our approach should be to deliver "adequately equal and equally adequate" educational opportunities (rather than just equal or adequate education).  His abstract is as follows:

A debate about whether all children are entitled to an “equal” or an “adequate” education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.

Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their states' constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to endorse hybrid equality-adequacy approaches. Still, the debate persists over seemingly intractable conceptual precepts and their political and legal ramifications.

Tracking the philosophical origins and evolution of equality and adequacy as legal doctrines, I explain the significance of their points of convergence and argue that the few points of divergence are untenable in practice. Equality of educational opportunity should not be interpreted as pursuing equal chances for educational achievement for all children, because that ideal is infeasible. Nor should educational adequacy be interpreted as completely indifferent to objectionable inequalities that can be feasibly curtailed. Properly conceived, equality and adequacy are not merely congruent but reciprocal. That is, children are owed an education that is adequately equal and equally adequate.


April 14, 2014 in Equity in education, Scholarship, School Funding | Permalink | Comments (0)

Thursday, April 10, 2014

The Politics and Policy of Opening and Closing Charters Schools

Student First Academy, a charter school in Charlotte, NC, will close tomorrow, leaving 270 students to find some other school to attend for the final two months of the school year.  The state is revoking the school's charter based on various financial irregularities.  The full story on the closure is here.  But without digging into the specifics of this school, its closure raise four troubling issues.  First, the school has only been in operation for about two years.  In some respects, its opening, along with others in the state, was as abrupt as its closure.  Until 2011, North Carolina had capped the number of charter schools in the state at 100 (approximately one per school district). To become eligible for federal Race to the Top Funds, the state lifted the cap.  Numerous charters sprung up overnight, particularly in large school districts like Charlotte.  Now, the number of charter schools in Charlotte are higher per pupil than in most other areas in the state.  Closures of schools like Student First Academy raise the question of whether opening the gates too wide and too quickly lead to the problem these students will face tomorrow.

Second, while this school seems clearly troubled and warranting of closure, I am not sure whom it serves to close it tomorrow, rather than at the end of the semester.  The students are not at fault, but will suffer a serious burden.  Putting aside the problem of finding a new school, I wonder about the curriculum shift, grade calcuations, promotion to the next grade, etc.  My guess is that this mid-semester closure serves political interests.  It shows the state getting tough with a charter, sending a warning to others.  Yet, as some commentators point out, this school, and other schools, would have been less likely to engage in mismanagement if the state had been exercising appropriate oversight in the first instance.  In other words, the state is partially culpable, but is allowing the burden to fall on the students.

Third, this closure drives home an important difference between charters and traditional public schools. Traditional public schools do not leave students without educational options and they do not put them in the position of "looking for a school."  No one would claim our traditional public schools are uniformly strong or without financial misconduct, but they do not close the doors on students. In fact, it will be the traditional public schools that will take--and have no option but to take--the students from Student First Academy.  Charters, certainly if they are fully enrolled, will be free to turn these students away. In fact, they may be obligated to turn them away if they were a lottery school.  It is our traditional public schools that serve as the unwavering last line of defense for education.

Finally, this closure drives home the difference between marketplaces and school systems.  The marketplace failed these students or, at least, is imposing a burden on them.  The process these students will go through now is far different than that of a consumer whose favorite neighborhood grocery closed and who must now drive down the street to buy milk from Kroger's.  Of course, this oversimplifies the market debate, but captures the essence.  For a more thoughtful analysis, see here.  

April 10, 2014 in Charters and Vouchers | Permalink | Comments (0)

Second Circuit Rules that IDEA's Least Restrictive Environment Requirement Applies to Extended-Year Placements

The Second Circuit held last week that the Individuals with Disabilities Education Act's least restrictive enviroment requirement applies to extended-year placements (ESY) just as it does to school-year placements. New York's Cornwall Central School District placed a kindergarten student, T.M., in a 12-month educational program that included ESY services over the summer. The Cornwall school district determined that T.M., a student with autisim, needed an ESY placement to prevent substantial regression. The district did so under the IDEA's requirement that school districts “ensure that extended school year services are available as necessary" to provide a free and public education for students with disabilities. However, T.M.'s parents and the school district were unable to agree on T.M.'s IEP, as the parents objected to the school's offer to place T.M. in a summer program in a self-contained special education classroom rather than provide  support services in a general education classroom integrated with non-disabled students. T.M.'s parents sued, alleging that Cornwall failed to offer T.M. the least restrictive ESY placement under the IDEA. Cornwall responded that the LRE requirement applies only where the state already operates a mainstream classroom in which the student can be placed. Because Cornall does not offer an ESY mainstream program, the district argued, the LRE requirement does not apply to T.M.'s ESY placement. The district court granted summary judgment in favor of the district, ruling that Cornwall had met its obligations under the IDEA. Overturning the district court, the Second Circuit held that "[i]f a disabled child needs ESY services in order to prevent substantial regression, that child's ESY placement is an integral part of his or her twelve-month educational program." The circuit court noted that the IDEA requires education to be provided in "the least restrictive educational setting consistent with that student's needs, not the least restrictive setting that the school district chooses to make available."  The circuit court then turned to whether Cornwall had to pay the full cost of T.M.'s pendency services through private providers even though Cornwall had offered to provide the same services itself at a lower cost. During the pendency of the suit, T.M.'s parents enrolled him in a developmental kindergarten program at another school and arranged for additional special education services at their own expense. The Second Circuit held that "[a]lthough Cornwall was wrong to deny T.M. pendency services in the first place, it nevertheless is not required to pay for T.M. to remain with the same pendency services providers throughout this entire litigation." Read T.M. v. Cornwall Central School District, No. Nos. 12–4301, 12–4484 (2d Cir. Apr. 2, 2014) here.

April 10, 2014 in Cases, Special Education | Permalink | Comments (0)

Wednesday, April 9, 2014

OCR Reaches Agreement with South Carolina Online Charters over Access for Students with Disabilities

Seven South Carolina internet-based public charter schools serve more than 8,700 students.  The U.S. Department of Education Office of Civil Rights initiated a compliance reveiw of those schools in 2013 to assess whether they were providing equal access to students with disabilities.  "OCR determined that the schools' websites and online learning environments were not readily accessible to persons with disabilities, including those who required assistive technology to access the Internet. The most frequent concerns were lack of alternative text attributes on buttons, especially on video controls; lack of synchronized captioning; inaccessible PDFs; and animations that were not fully labeled. Additionally, some materials provided by third party vendors were inaccessible. These problems prevent persons with disabilities, particularly those with visual, hearing, or manual impairments, or who otherwise require the use of assistive technology to access the website or the online learning environment in an equally effective and equally integrated manner as persons without a disability."

Last month, South Carolina's charter school district entered into an agreement with OCR to address the issues.  Per the agreement, the district "will ensure that all websites and on-line learning environments are accessible to persons with disabilities, including those who use assistive technology to access the internet."  The full agreement is here.

Given the challenges that some students with disabilities have in physically accessing regular public schools, this is an important victory, and probably a much needed one given the various reports last fall regarding virtual charter scandals.  The additional web development costs to make online material accessible to disabled students are likely modest, but an easy place for online schools (or their subcontractors) to cut corners when they try to maximize profit.

April 9, 2014 in Charters and Vouchers | Permalink | Comments (0)

Tuesday, April 8, 2014

Fifth Circuit Holds Principal Has Qualified Immunity in Parent's Viewpoint Discrimination Suit

LANDL123In 2011, the Fifth Circuit held that an elementary school principal unconstitutionally discriminated on the basis of viewpoint when she did not allow a student to distribute candy canes with religious messages during an in-class party. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc). Last week, the Circuit revisted the Morgan case, this time to consider the claim of the student's father, who attended the party with his son. Doug Morgan, the father, alleged in a suit that he also "experienced viewpoint discrimination when [the principal] told him not to distribute the religious material to other consenting adults in the classroom." The federal district court below dismissed the father's claim, finding that the principal had qualified immunity because her conduct was not “clearly established” as unconstitutional when she stopped Morgan from distributing religious material during the school party. The Fifth Circuit upheld the district court's ruling, noting that no case clearly established a third party's right to distribute religious material in a school over the adminstration's objections. Fifth Circuit Judge Fortunato Benavides separately writes to elaborate on the complexities of viewpoint discrimination and how if courts struggle with its application, the law is unlikely to be clearly established for a school principal. For more on religious expression in schools, see Kristi L. Bowman, Public School Students' Religious Speech and Viewpoint Discrimination, 110 W. Va. L. Rev. 187 (2007). Read the decision in Morgan v. Swanson, No. 13-40433 (5th Cir. Apr. 2, 2014) here.

April 8, 2014 in Cases | Permalink | Comments (0)

Student Drug Testing: Individualized Suspicion Versus Random Concern

In A.V. ex rel. Valichka v. Pennsgorve/ Carneys Point Regional School Dist., 2014 WL 1272119 (D. N.J. 2014), a high school baseball student took an advil for back pain during practice.  Another student then reported that A.V. was taking steroids to a school official.  The official told A.V. he could not return to school until he took a drug test.  A.V.'s parents then took him to his doctor, who screened him for drugs and determined he had not taken steroids.  The school then permitted him to return, but suspended him for taking the advil.

A.V. sued the school for a violation of his Fourth Amendment rights.  The school defended on the notion that it did not need reasonable suspicion to drug test A.V.  given that Veronia v. Acton recognized schools' authority to randomly drug test all students.  The district court rejected this argument, pointing out that the testing of A.V. was based on individualized suspicion and, thus, Veronia is inapposite.  The court was nice in not pointing out that Veronia was explicit in distinguishing the individualized suspicion case from random drug testing.  The Supreme Court in Veronia indicated that a school might very well prefer random testing because when it acts on individualized suspicion it runs more of a risk of subjecting itself to suit (and losing), as appears to be the case in A.V.

Although not raised by the complaint, this case could have also implicated my continuing concern about the limit of school authority to punish students.  The advil that A.V. took was given to him by his father specifically for back pain at baseball practice.  Of course, baseball practice is a school activity and presumably was on school grounds (or school liscenced grounds), which means the school does have general authority here.  For that reason,  I would not contest the schools authority to regulate this activity, but I do question whether, under these circumstances, it should be permitted to exclude a student from school.

April 8, 2014 in Discipline | Permalink | Comments (0)

Auburn University Seeks Assistant Professor in Education Law and Finance

Auburn-universityAuburn University in Auburn, Alabama seeks an assistant professor to teach education law and finance in its Educational Foundations, Leadership and Technology department. For the tenure-track position in the in the Education Administration/Leadership K-12 program, Auburn requires a doctorate in Education Administration, Leadership, or a related field. The school will begin reviewing resumes on May 1; the position starts in August 2014. The announcement is here. Tip of the hat to Edjurist for the information.

April 8, 2014 in News | Permalink | Comments (0)

Monday, April 7, 2014

From the School Yard to Cyberspace: A Review of Bullying Liability

Elizabeth M. Jaffe's roundup of the caselaw and literature on cyberbullying, From the School Yard to Cyberspace: A Review of Bullying Liability, is now available on westlaw at 40 Rutgers Computer & Tech. L.J. 17 (2014).  Her introduction summarizes the article as follows:

There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough.

Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed.

April 7, 2014 in Bullying and Harassment, First Amendment | Permalink | Comments (0)

Friday, April 4, 2014

Second Circuit: Prohibiting Church Services on School Property Does Not Violate First Amendment

Bronxfb2-320x241The Second Circuit Court of Appeals has reversed a district court’s ruling that the New York City’s Board of Education policy  prohibiting religious worship services on school grounds violated the Free Exercise and Establishment Clauses of the First Amendment. In Bronx Household of Faith v. Bd. of Educ. of City of New York, the NYC Board of Education and the local school district appealed a district court's grant of summary judgment permanently enjoining them from enforcing a regulation (Regulation I.Q.) against a church. Regulation I.Q. permits outside groups to use school premises after hours for social and civic activities that are open to the general public, but prohibits the use of school property for religious worship services. In 1994, a local church, the Bronx Household of Faith, applied to use space in a local middle school for church services, but the NYC Board of Education denied the application under Regulation I.Q. Bronx Household sued, arguing that the enforcement of the regulation constituted viewpoint discrimination and violated the First Amendment. In this latest round of litigation —the case has been before the Second Circuit six times—the court of appeals held that Supreme Court precedent in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), does not compel strict scrutiny analysis of Regulation I.Q. Lukumi does not apply to Regulation I.Q., the Second Circuit reasoned, because “a reasonable governmental decision not to subsidize a category of activity is not a suspect discrimination among religions merely because some religions do and others do not engage in that activity. . . We believe the District Court has misunderstood Lukumi in construing it to mean that a rule declining to subsidize religious worship services so as not to risk violating the Establishment Clause is automatically constitutionally suspect and subject to strict scrutiny.” The court of appeals also found the process of determining if a proposed use of school facilities is a religious worship service would not cause an excessive entanglement with religion under the Establishment Clause. Because the Board relies on applicants’ stated characterizations to decide if proposed activities are religious worship services, the Board does not define or make its own determination about what constitutes religious worship. Moreover, the Circuit stated, the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012), would not prohibit the Board from making such a decision because 1) the Board would not impose any control over a church's religious activity by determining if they are worship services, and 2) the Supreme Court’s own determination in Hosana-Tabor that the plaintiff was a minister (and thus that the ministerial exception applied to a church's employment decision) belies a conclusion that a governmental entity cannot make such a determination. Read the Second Circuit’s decision in Bronx Household of Faith v. Bd. of Educ. of City of New York, 12-2730-CV, 2014 WL 1316301 (2d Cir. Apr. 3, 2014) here.

April 4, 2014 in Cases, First Amendment | Permalink | Comments (0)

Sign of Common Core Collapse or Outliers? : Oklahoma Legislature Votes to Repeal Common Core

Media on all stops of the political spectrum – from the Washington Post’s Answer Sheet to the National Review have predicted that the Common Core State Standards (CCSS) would go the way of No Child Left Behind. This week, Oklahoma’s legislature passed a bill to withdraw from Common Core. If Governor Mary Fallin signs the bill, Oklahoma will be the second state to withdraw from the Common Core, following Indiana’s move last month. Like Indiana, however, Oklahoma will still use parts of the CCSS curriculum, but would revise the standards and testing at the state level. Some predicted that the 46 states that implemented CCSS would find it difficult to balance the standards with what they actually require: equitable funding. One writer uses the example of New Jersey’s long-running education equity funding case, Abbott v. Burke, that in essence, “adopting ‘high expectations’ curriculum standards was like passing out a menu from a fine restaurant. Not everyone who gets a menu can pay for the meal.” Now New Jersey, as Derek noted last week, has announced plans to abandon one of the country’s most equitably weighted funding schemes next year. Given that other states have even less balanced funding in public education, states may be realizing that they lack the ingredients to make the dish.

April 4, 2014 in News | Permalink | Comments (0)

Emotional and Physical Harms Through the Lens of Substantive Due Process by Emily Frances Suski

On Tuesday, Derek posted about the recent 5th Circuit case Clayton ex rel. Hamilton v. Tate County School Dist., 2014 WL 1202515 (5th Cir. 2014), in which the Court found that a student subjected to corporal punishment did not have a substantive due process claim under the Constitution. Although in general the other Circuits that have heard students’ substantive due process claims have not distinguished between those claims that are based on corporal punishment and those that are not, the 5th Circuit is the outlier in this respect. To wit, in Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987), the Court heard the claim of a second grade student who was tied to a chair for a day and a half at school for no apparent reason. The 5th Circuit found the claim could go forward because the alleged emotional and physical harm to the student was not the result of corporal punishment.

The Court decided the case on qualified immunity grounds. In doing so, it had to decide whether a state official has violated a clearly established right “known or knowable by a reasonable person.” Concluding the student’s substantive due process right was clearly established, the Court said “[w]e are persuaded that in January 1985, a competent teacher knew or should have known that to tie a second-grade student to a chair for an entire school day and for a substantial portion of a second day, as an educational exercise, with no suggested justification, such as punishment or discipline, was constitutionally impermissible. A young student who is not being properly punished or disciplined has a constitutional right not to be lashed to a chair through the school day and denied, among other things, the basic liberty of access to the bathroom when needed.” So, the 5th Circuit will recognize a student’s substantive due process claim based on abuse by school personnel, just like all the other Circuits to have taken up the issue. But unlike the rest, in the 5th Circuit the student’s harm can’t be the result of corporal punishment. For more on this and related issues see my forthcoming article Dark Sarcasm in the Classroom: The Failure of the Courts to Recognize Students’ Severe Emotional Harm as Unconstitutional, 62 Clev. St. L. Rev. – (2014).

April 4, 2014 in Discipline | Permalink | Comments (0)

Thursday, April 3, 2014

MALDEF Sues New Mexico, Claiming Denial of Right to Education by Molly Hunter, Education Law Center

The Education Law Center shared the following story by Molly Hunter:

On April 1, 2014, the Mexican American Legal Defense and Education Fund (MALDEF) filed a lawsuit, Louise Martinez v State of New Mexico, seeking to establish education as a fundamental right and to ensure that New Mexico's at-risk children are provided a sufficient education as required under the New Mexico Constitution.

"Every state has an obligation to prepare all of its students to succeed in the future, and New Mexico is failing in this duty with respect to far too many of its children and future leaders," said Thomas A. Saenz, MALDEF President and General Counsel.  "The courts must act to bring justice and equity to New Mexico's education system."

The parent plaintiffs and other supporting organizations challenge the State's denial of their children's constitutional right to access the educational opportunities they need to succeed in the classroom.  The complaint asserts that this right has been violated through a series of State-created arbitrary obstacles, including unfair and non-transparent school accountability grading and teacher evaluation systems that drive quality teachers and leaders from schools disproportionately enrolling English Learner (EL) and low-income students. 

Plaintiffs also complain of the arbitrary and inadequate funding for EL and economically disadvantaged students, as well as the State's failure to expand pre-kindergarten programs to ensure all at-risk students can access those programs. Plaintiffs further argue that the State's failure to support and implement fully the Indian Education Act, the Hispanic Education Act, and the Bilingual Multicultural Education Act deprive students of the cultural programs that are essential to a sufficient education as required under the New Mexico Constitution.

"Every year that passes, is another year of lost opportunity for New Mexican school children," stated MALDEF lead counsel David Hinojosa.  "It's time for the courts to step in and put an end to this egregious pattern of political pandering and neglect that only harms the children."

MALDEF began its investigation a couple of years ago following its discussions concerning the chronic achievement gaps with several local and state community groups, including the Latino Education Task Force, as well as local leaders and parents in New Mexico.  These gaps included 20-plus percentage points on the State's standardized tests, with less than one-half of the minority and at-risk students earning "proficient" ratings on their tests.  Following the substantial investigation, and another failed legislative session; the parents and children asked MALDEF to sue.  

Plaintiff parent Louise Martinezadded, "I went to the same school my daughter attends, and nothing has changed. The school is rated F, the classrooms are overcrowded, the kids need support, and violence is high. My children and all the children in New Mexico deserve better. Tomorrow is too late, we need to change New Mexico's education system now." 

April 3, 2014 in School Funding | Permalink | Comments (0)

Wednesday, April 2, 2014

New Charter Bill on the Way

Edweek reports that John Kline, R-Minn., the chairman of the House education committee, and Rep. George Miller, the top Democrat on the panel, will introduce a bipartisan charter school bill in the coming days or weeks.  Apparently, the bill largely mirrors one that the House passed in 2011, which would have allowed charters to access federal funds to replicate successful charters, and included additional facility funds.  That bill did not make it through the Senate.

This new forthcoming bill's only significant shift from the prior bill is to place greater emphasis on funding charter management organizations, as opposed to individual charter operators.  The obvious upside is to reduce the risk in funding untested start-ups.  On the other hand,  preferencing management organizations raises the question of whether this change is a response to an organized lobby rather than  some actual data driven findings.  Funding organizations also potentially adds administrative expense onto the education process, unless the organizations' efficiencies offset the administrative costs.

April 2, 2014 in Charters and Vouchers | Permalink | Comments (0)