Wednesday, December 4, 2013
Following up on Aaron Taylor's post last Wednesday about the economics of higher education admissions, an article in last week's The Atlantic, The Federal Student Aid Program Is Breaking Its Promise to the Poor, highlights Aaron's concerns that wealth can be a "proxy for merit in higher education admissions." The subtitle to the Atlantic article sums up the point: "[s]tudents from households with more than $100,000 in income received more federal aid in recent years than those from households with less than $20,000 in income." According to NCES data, in 2007-2008, students from households with more than $100,000 in income received $8,470 in federal aid versus the $8,060 received by students fom households with less than $20,000 in income. While those numbers may be no news flash to educators in higher ed, the article notes how far the federal student aid program has drifted from President Lydon Johnson's aim in the Higher Education Act of 1965 to help lower income students attend college. Today, colleges use federal student aid to get the new desireables: students that can pay most of their own way and are attracted by scholarships that will allow them to graduate debt-free. As Aaron noted, for many institutions, "merit" aid is given to those with the ability to pay for a slightly reduced tuition. Federal student aid is perversely used in some cases to disincentivize lower income students from enrolling. One way is an admission procedure called admit/deny, which is, an executive at an enrollment firm says, "when you give someone a financial-aid package that is so rotten that you hope they get the message, ‘Don’t come.’”
The Atlantic article is informed by a report (pictured left) by the New American Foundation called Undermining Pell: How Colleges Compete for Wealthy Students and Leave the Low-Income Behind. The report in PDF is here.
North Carolina Court of Appeals Holds that State Board Can Refuse to Act on Virtual Charter School Application
The North Carolina Court of Appeals upheld a superior court's decision yesterday that the State Board of Education could refuse to act on a virtual charter school's application. According to North Carolina station WRAL.com, the appellate court found that "[u]nder state law, the State Board of Education 'is vested with sole authority regarding charter schools in North Carolina, including all decisions regarding the formation and operation of such school.' " The case highlights some of the complexities of having parallel authorizing procedures for new schools. When the North Carolina legislature lifted the 100-school cap on charter schools in 2011, it did not address virtual charter school programs. Following the new law, the State Board of Education (SBE) developed a “Fast Track” approval process limited to traditional charter schools. In November 2011, a nonprofit organization called North Carolina Learns (NCL), created by online education company K12, Inc., submitted a Fast Track application to open the North Carolina Virtual Academy. NCL and K12, Inc., brokered a deal in 2012 with the Cabarrus County's School Board to set up a charter school with a statewide reach. According to WRAL.com, NCL agreed to pay 4 percent of its revenue to the school system in Cabarrus, located north of Charlotte, as well as pay K12." NCL was approved to open by the Cabarrus County Board of Education (CCBE), with the caveat that “[i]f the preliminary charter entity is other than the State Board of Education please contact the Office of Charter Schools for guidance.” NCL did not do that, but did forward its application to the SBE. The SBE did not respond, having announced in October 2011 (before NCL's application) that it would not approve any virtual charter schools in the 2012-13 school year. The rebuff prompted NCL to sue, arguing that the SBE's failure to respond to NCL's application within the Fast Track period stripped the agency of jurisdiction over the matter. NCL argued that its application should be approved by operation of law. See N.C.G.S. § 115C-238.29D(a). Last year, a North Carolina Superior Court judge held that SBE was within its discretionary power to ignore NCL's application, reasoning that a local board of education "is not experienced in, nor equipped as the SBE, with the staff and know-how to review, evaluate, and approve the application of a charter school designed to serve a statewide clientele, nor is it authorized to give final approval for such operation." Read more about North Carolina State Board of Education v. North Carolina Learns, Inc. here.
The Education Law Center just issued a year-end round up of all the significant developments in school finance litigation for 2013. The Center indicates that the leading cases for the year are those out of Kansas and Washington. Cases in Arkansas, Connecticut, Florida, New York and Texas are nearing trial. California and Rhode Island have cases on appeal. South Carolina still awaits a decision from its supreme court and North Carolina is returning to the trial court, after a recent loss before its supreme court. More details on each here. Contrary to my worries a few years ago, the great recession slowed school finance litigation for a few years, but it did not end it. In fact, many courts and cases are pressing ahead and recapturing ground lost since 2008.
The Atlantic ran a story last week about the lessons we might take from Japan's educational success's and failures. It begins by pointing out that our current educational policies of increasingly rigorous testing and standardized curriculum tied economic necessities are consistent with or modeled after Japan's. The problem is that, while that model was initial successful, it has proved problematic in recent decades and has not been sufficient to keep Japan globally competitive. Critics charge that the rigidity of Japan's education system lead to an insufficiently flexible economy; what education really should do is promote creativity and innovation. The result: "one-third of Japanese workers are irregularly employed, including 70 percent of all female workers and half of all workers between 15 and 24. A full 77 percent of the irregularly employed earn wages less than poverty level, and so are working poor." Others also question the notion that education's only purpose is economic achievement and global advancement. The result of that approach, they say is to rob individuals of the ability to fit into society when the economy turns.
The article does not explicitly wade into the current battle over the common core curriculum, but it has clear implications, as each side in the battle is making claims that the common core will improve or undermine our competitiveness. Japan's experience also suggests we should not overlook the source of educational obligation and the wisdom in it. While none would question the importance of economic and global competitiveness, our educational obligation arises primarily from our interest in citizenship. All fifty state constitutions obligate the state to deliver an education to their students. While these constitutions vary, most coalesce around two or more themes. As I detailed in The Power of Small Schools: Achieving Equal Educational Opportunity Through Academic Success and Democratic Citizenship, 82 Neb. L. Rev. 50 (2003), educational quality as measured by objective factors like standards and test scores only encompass half of our constitutional duty. The other half is about producing citizens. These two obligations are not mutually exclusive, but neither are they co-extensive. Thus, even if Japan's experience is not directly applicable to the United States, our state constitutions indicate must be just as worried about social implications as ecnomic ones.
Tuesday, December 3, 2013
Progressive and Conservative Groups Align Around Equal Access to Teachers, While Dept. of Education Goes the Other Way
The Center for American Progress has released a new report, Giving Every Student Access to Excellent Teachers, that fits in well with much of the conversation coming from other outlets over the past week or two. The report offers a summary of why access to excellent teachers is so important, emphasizing that:
Excellent teachers—those in the top 20 percent to 25 percent of the profession in terms of student progress—produce well more than a year of student-learning growth for each year they spend instructing a cohort of students. On average, children with excellent teachers make approximately three times the progress of children who are taught by teachers in the bottom 20 percent to 25 percent. Students who start behind their peers need this level of growth consistently—not just in one out of four classes—to close persistent achievement gaps. Students in the middle of the academic-achievement continuum need it to exceed average growth rates and leap ahead to meet rising global standards.
The report is skeptical of current policies' approach to expanding access to excellent teachers. Current policies "focus intently . . . on boosting the number of excellent teachers in America’s schools" by "recruiting more high achievers into the teaching profession, creating incentives for better teachers to stay in teaching and teach less-advantaged children, and dismissing the least-effective teachers." But the report concludes that these policies are insufficient in the short term to expand access for the majority of students who need it. Thus, the report offers four proposals through which the federal government could expand access immediately:
1. Structure competitive grants to induce districts and states to shift to transformative school designs that reach more students with excellent teachers and the teams that these teachers lead. Incentivize innovation by awarding funds to districts and states with strong, sustainable plans to transform staffing models in ways that dramatically expand access to excellent teaching and make the teaching profession substantially more attractive.
2. Reorient existing formula grants to encourage transition to new classroom models that extend the reach of great teachers, both directly and through leading teaching teams. Dramatically improve student outcomes by putting excellent teachers in charge of the learning of all students in financially sustainable ways. By teaching more students directly and leading teams toward excellence, great teachers could take responsibility for all students, not just a fraction of them.
3. Create a focal point for federal research and development efforts. Spur rapid progress by gathering and disseminating evidence on policies and practices that extend the reach of excellent teachers, directly and through team leadership, and accelerate development of best-in-class digital tools.
4. Create and enforce a new civil right to excellent teachers, fueling all districts and states—not just the winners of competitive grants—to make the changes needed to reach all students with excellent teachers and their teams.
Notable in these recommendations is the alignment and misalignment with recent studies and developments. The report's first recommendation is strikingly similar to the one growing out the Fordham Institute's recent study, Right Sizing Classrooms, that advocates expanding classroom enrollments for strong teachers and shrinking them for weaker ones. For those who follow the politics of these organizations, the Fordham Institute and the Center for American Progress do not exactly see eye-to-eye. That they seem to agree on this point is worth noting.
All four of the report's recommendations, and the fourth in particular, run contrary to the Department of Education's announcement last week that it was dropping the requirement of access to effective teachers from the NCLB waiver process. As noted in my post on the change, the Department is acting contrary to existing statutory requirements, a substantial body of research, and the pleas of civil rights advocates. Rather than moving backward on access to excellent teachers, the Center for American Progress's new report proposes that this access be statutorily guaranteed as a civil right because it is so fundamental to educational opportunity.
Forbes recently published an editorial entitled, The Farce of Meritocracy: Why Legacy Admission Might Actually Be a Good Thing. The thesis of the piece is that legacy admissions preferences are so absurd that they may actually be useful in exposing the farcical nature of our meritocratic notions. While I agree that legacy preferences are antithetical to conceptions of merit, I strongly disagree that they are in any way “a good thing.”
As the author points out, legacy preferences tilt the admissions game in ways that allow social, financial, and political capital to masquerade as merit, thereby further disadvantaging already disadvantaged applicants. Put simply, legacy preferences preserve privilege. I understand what the author was attempting to do—use irony to highlight an absurdity. But I guess I have less faith in the ability of some to grasp the shrewdness of the piece.
I have written in other spaces about the effects of un-meritocratic privilege in selective admissions. So there is no need to revisit those points here; but the author made one point is that I think is deserving of further emphasis. He writes the following about Stanford’s admission process:
Applicants are not just given preference because they are children of alumni, but because they are children of alumni who donate money…If alumni have donated money, the admissions office will know about it. In any other circumstance, this would be considered bribery. But when rich alumni do it, it’s allowed. In fact, it’s tax-subsidized.
This point cannot be emphasized enough. The tax code subsidizes the de facto (if not actual) bribery of selective colleges and universities all over the country. Privileged individuals are allowed to use un-meritocratic means (in this case, money) to tilt the admissions process in their favor (legacy applicants at Stanford are three times more likely to be offered admission), and in the process, they receive a tax deduction. And if that is not bad enough, the institution is allowed to collect the payoff free of taxes as well. In this context, less affluent individuals are contributing, in the literal sense, to their continued disadvantage.
We spend seemingly endless amounts of time arguing about the appropriateness of so-called “welfare” programs for the poor, but rarely give the same attention to welfare for the rich. Similarly, we express passionate indignation (righteous and otherwise) about racial preferences, while accepting socioeconomic preferences as simple facts of life.
But let us be clear: not all preferences are created equal. And racial preferences premised on broadening access to opportunities are far nobler than those, like legacy admissions, that merely preserve the unequal and unjust status quo.
Monday, December 2, 2013
Ohio Attorney General Mike DeWine has announced that new indictments have been issued in the nationally-publicized Steubenville teen rape case. The indictments charge school administrators and staff with having information about the rape and breaking state law by failing to report it properly. In August 2012, a minor girl was raped at a party, and the case received national attention after photos and videos of the incident were posted on social media. Two Steubenville High School football players were convicted of the rape: one recieved a mininum one year sentence in a juvenile correctional facility; the other player got two years. Last week, a special grand jury reviewing additional crimes in the case has indicted Steubenville City Schools Superintendent Michael McVey and Matt Belardine, a former assistant high school football coach for Steubenville City Schools. Superintendent McVey was indicted for tampering with evidence, three obstruction crimes, and falsification. Belardine was charged with four misdemeanors: allowing underage drinking, obstructing official business, making a false statement and contributing to the unruliness or delinquency of a child. William Rhinaman, Steubenville City Schools' director of technology, was previously indicted for tampering with evidence, obstruction of justice, obstructing official business and perjury. Last week's grand jury indictment also included separate charges for three other educators in an April 2012 rape case in Steubenville that was never prosecuted.
Wisconsin Student Speech Decision Reverses on First Amendment Grounds but Affirms Adjudication on Unlawful Computer Use
While the Wisconsin Court of Appeals reversed a student’s disorderly conduct juvenile adjudication on First Amendment grounds last week, the appellate court curiously affirmed the adjudication for violating a state unauthorized-use-of-a-computer statute for the same conduct. Those who follow the developing law of federal unauthorized use statutes will recognize the bedeviling issues that arise when defendants are prosecuted for protected First Amendment speech because of the method used to deliver that speech--a computer. The Wisconsin student, Kaleb K., was prosecuted under state disorderly conduct and unauthorized computer use statutes after posting a YouTube video about his Spanish teacher. At trial, the lower court rejected Kaleb's claim that “the content of his rap was protected by the First Amendment, which barred the State from prosecuting him for disorderly conduct.” The trial court’s findings focused on the rap’s vulgar language without addressing the student’s First Amendment defense. The lower court found the student delinquent for disorderly conduct for the video and for a violating a state law prohibiting the unlawful use of a computerized communication system. The unauthorized use law prohibits using computer communication to send a message to another person “with intent to frighten, intimidate, threaten or abuse … with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.” The Wisconsin Court of Appeals affirmed Kaleb K.’s adjudication of guilt on the unlawful use of a computerized communication system under a state case holding that “nonspeech elements” of otherwise protected speech may be subject to prosecution. Given the Court of Appeals’ interesting split reasoning, this case may be headed to Wisconsin’s Supreme Court. The case is In re Kaleb K., No. 2013AP839, 2013 WL 6182562 (Wis. Ct. App. Nov. 27, 2013).
Just before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car. The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag. The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom. He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”
The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.” Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”
The school is right on courts' interpretation of the flag. Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment.
While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated. If a student's argument is pretext, a school can easily intervene. But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.
Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer. After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband. If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker. This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.
In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction. Even if the student does not support racism, the student is probably trying to incite a reaction. If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.
Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive. As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous. Consider the fact that in Hinduism a swatiska is a geometric represenation of the god Ganesha. As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.
(image with permission from Jean nguyen)
Wednesday, November 27, 2013
Derek and Danielle Holley-Walker discussed the Ohio and Tulsa hair cases last week, and yesterday, blogs were buzzing about Orlando's Faith Christian Academy threat to expel a 12-year-old for having long natural hair. The student, Vanessa VanDyke (pictured left) was given one week to decide to whether cut her hair or leave Faith Christian Academy, a school that she has attended since third grade. VanDyke's hair has been long and natural all year, but recently became an issue when she complained about students bullying about her hair. School administrators turned the complaint back on the student by saying that her natural hair was a distraction that violated the school's dress code. The school dress code has the following statement about hair: “Hair must be a natural color and must not be a distraction," and cites "mohawks, shaved designs and rat tails" as prohibited hair styles. The problem with African-American natural hair is that it is just that--it is not a "style," unlike the critiques of braided and locked styles that courts have made in employment cases.
UPDATE: 12/4/2013: The school has withdrawn its threat to expel the student, but school administrators told a local tv station that it was standing by its request for the student to change her hairstyle, saying “we’re not asking her to put products in her hair or cut her hair. We’re asking her to style her hair within the guidelines according to the school handbook.”
In July, a group filed a lawsuit challenging the constitutionality of Washington's charter law. The complaint included the standard arguments about funding and uniformity, but also included the relatively unique claim that the charter school structure moved the control of those schools outside of the authority of the state superintendent, violating the constitutional provision that provides:
The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.
Wash. Const. Art. 3, § 22.
Late last week, the trial court heard oral arguments in the case. A local media outlet, Kumo News, summarized the proceeding:
The state attorney general's office, representing the people of Washington, argued the charter law enhances education in Washington and does not circumvent anything in the state Constitution or the court decisions that have clarified sections on education.
. . .
Charter school opponents, represented by Attorney Paul Lawrence, say the law passed by voters last year is unconstitutional because it interferes with the state's obligation to pay for public schools, set a uniform curriculum and establish other rules. Lawrence also argued the law takes authority granted by the Constitution away from the superintendent of public instruction and from the Legislature.
However Assistant Attorney General Dave Stolier said the charter does exactly what the Supreme Court has ordered the Legislature to do: continue to innovate and change to meet the needs of Washington children.
"There's just not enough here to overturn the voters' will in this case," Stolier said. The state is asking the court to grant a motion for summary judgment and stop the lawsuit from going forward.
Both attorneys - and a third lawyer representing the sponsors of the charter school initiative - quoted extensively from recent Supreme Court decisions on education, with a major focus on what's known as the McCleary decision, in which the court ruled that the way the state pays for education is unconstitutional.
One would assume that plaintiffs' primary concerns are the funding shifts and lack of uniformity, but as noted in my earlier posts their strongest claim may be the one in regard to the superintendent. Unlike other school financing claims, there is a technical hook here and the charter school statute seems to explicitly violate it.
The ACLU of Pennsylvania released its new report on school discipline in the state, Beyond Zero Tolerance. It found that about 10 out of school suspensions “were issued for every 100 students in the 2011–2012 school year. During 2009–2010, 1 out of every 15 students was suspended from school at least once.” Black students were “almost five times more likely to be suspended than White students,” and Latinos three times more likely than whites. African Americans with disabilities were at the highest risk, with 22 out of 100 receiving a suspension. The report's website page also includes helpful information for local communities, posting the discipline and law enforcement data for each district.
The report’s recommendations for reform were:
1. Conduct school-level and district-level reviews of out-of-school suspension as well as law enforcement referral practices. Such reviews should identify which students are most likely to be impacted as well as specific schools where the differences in suspension rates for different types of students (the “suspension gap”) is greatest. Pay special attention to disciplinary actions for broad and vague behavioral categories such as disruption, disorderly conduct, and defiant behavior. Investigate disparities, and adopt corrective measures.
2. Remove students from school only when there is a real and immediate safety threat to the school community. School removal should not be permitted for minor misbehavior (such as dress-code violations).
3. Revise district codes and school-level rules to minimize the disruption in students’ continued access to education. When students must be removed from a classroom or school, establish a learning plan for them.
Tuesday, November 26, 2013
The picture below by the Center for American Progress sums up why the pre-k bill before Congress may be one of the most important and no-brainer pieces of legislation it has considered in a while. To be honest, last month, I still thought that Arne Duncan and Nicholas Kristof were delusion when Duncan indicated he would get a bill to Congress this year and both predicted it would pass. After all, nothing more than keeping the lights on has seems to move in the Congress.
Getting a pre-k bill before Congress was a small feat, but now that it is there, passage is looking more likely (although probably not before the end of the year). Thus far, support for the bill has been bipartisan and there has been very little criticism of the substance of the bill. This could be because common core fights are sucking the air out of all other education controversies, but I doubt it. There has been some debate of the bill, but it has been largely focused on cost, not on whether pre-k is a good idea. Cost is no small road block in a Congress determined to avoid any new spending, but this bill is beginning to look like one that Congress could pass and, if necessary, figure out how to fund later, including making cuts to other programs so as to not add to the deficit. Those who follow education funding closely know that with federal education funding it is always a two step process. No Child Left Behind, for instance, promised one level of new funding for schools, but Congress later appropriated something far short of the promise.
Over the past six months, a growing number of states have either ended their virtual charter school or placed a temporary moratorium on them. Late in the summer, I posted on Chicago, Maine, and North Carolina. Shortly thereafter, Florida followed. In some instances, the impetus was low quality and negative study findings. In other instances, the impetus was outright scandal, the largest of which was in Pennsylvania and led to a federal indictment. Now, the Education Law Center is asking Pennsylvania to join the list of moratorium states. At the very least, the Center asks the state to refrain from granting new charters, citing poor performance, high student turnover, fraud, and a huge price tag. But according the the Pennsylvania Department of Education, it lacks the statutory authority to impose a moratorium. In the meantime, the Department has been denying cyber applications on a case by case basis. Last year, it denied all eight cyber charter applications. This year it has six new applications. My guess is that it will deny them as well. If it does, the moratorium would be de facto if not explicit.
Stepping back from the particular merits of cyber charters, education policy in this area unprincipled. On the one hand, cyber charters, like other charters, were ushered into these states with almost no strings attached. Now that those "chickens have come home to roost," states are taking the opposite approach and banning them altogether. Whether you are a friend or foe of cyber charters, this makes little sense. A category of schools does not go from inherently good and trustworthy to inherently bad in a matter of a few short years. The closer truth is that they are probably neither, but simply the product of poor conceived legislation. A little more thoughtfulness on the front end about how to fund them could have avoided many of these problems. Bruce Baker and Justin Bathon's recent guide is an excellent example of this thoughtfulness.
Monday, November 25, 2013
The American Association of School Administrators (AASA) has released a report detailing the unequal effects of federal budget cuts on public schools. While all schools and states have suffered cuts, the cuts have been relatively minimal in some places and enormous in others. Federal Money, for instance, only makes up 5.4% of New York State's education budget, while it makes up 24.8 in Mississippi. Yet, because much of federal money in based on poverty, there are districts within New York that are more seriously affected as well; the rest are almost entirely unaffected. In short, flat across the board cuts have very disparate effects on schools. AASA's map below shows this drastic unevenness. Interestingly, those cuts have been most heavily felt in the heart of Republican party territory, the southeast, due to its high levels of poverty. (You will notice other isolated areas of concentrated impact going west. This is due to native american populations, for which the government allots special funding.) This map also demonstrates why progressive funding of concentrated poverty should be a bi-partisan agenda in Congress, as Republican states stand to benefit the most, but it is not.
Friday,U.S. District Court Judge Ivan Lemelle ruled that the Department of Justice is entitled to monitor Louisiana's voucher program, although the details of that monitoring are yet to be determined. The judge gave the state and DOJ 60 days to agree on a process. Both sides are claiming victory in a resolution limited to monitoring.
Bobby Jindal took victory in the fact that "the judge acknowledged that data provided by the state show the program does not have a negative impact on desegregation. We are also glad the judge made clear he does not want to disrupt the scholarship program." But consistent with my most recent post on the case that this is a controversy Jindal hates to see go away, he suggested that there is an ongoing battle that he will fight, remarking ,"We will draw a hard line against allowing the federal government to control the scholarship program and handpick schools for Louisiana's children." Unfortunately for Jindal, DOJ is not suggesting anything of the sort.
DOJ, instead, is claiming victory, as minor as it may be, in the ability to monitor the program. Jocelyn Samuels, DOJ acting assistant attorney general for the civil rights division, remarked, "We are pleased that the court has supported the department's position in this matter," and added, "This should not have been controversial in the first place." Samuels last point was mine since this dispute began. Yet, given the low stakes involved in a monitoring battle, one wonders how this case made it this far.
Friday, November 22, 2013
Delineating state based education litigation into waves is inherently problematic. In school finance litigation, scholars, including myself, have sought to divide it into three, if not four, different waves. Yet all understand that the lines between the waves are fluid and, thus, we speak in waves mostly for convenience. With that caveat, charter school litigation may be entering a new wave. In the past, the most prominent and prevalent charter school litigation has been by those opposing charters and who argue that they violate state constitutional provisions. I would call that the first wave. The potential second wave--albiet a loosely connected waive--involves cases coming from an entirely different set of plaintiffs: those supporting charters and claiming that the state is inappropriately tampering with or restraining them. These cases are not entirely new, but based on this past week, they seem to be growing more prevalent and gaining more traction in the court. The growing prevalence is likely a result of the fact that charters have reached the point where they are normative rather than aberrational and individuals have, at least, a subjective settled expectation in regard to them. In support of this potential waive, I offer three cases coming decided or filed in just this past week.
Thursday, November 21, 2013
Last week, the Department of Education indicated that it is backing away from the requirement it announced just 2 months ago that low income and minority students have equal access to high quality teachers. This move and the timing of it are troubling. Civil rights leaders and scholars, including myself, had praised the Department for making equal access part of the NCLB waiver requirements. And although I had previously posited that Arne Duncan was inappropriately acting as a de facto superintendent of the United States of America School System in the conditions he was placing on school systems, equal access to teachers was one area that did not raise the same concerns because it was within the scope of existing statutory language of NCLB. The Department just had not been enforcing it and now seemed ready to do so. Backing away now only reignites concerns about the statutory authority under which Duncan is acting. His ability to change course reinforces the notion that he is not acting under statutory standards, but based on his judgement of how best to run "his" national school system.
Legalities aside, this retreat is also problematic on a policy level. In just the past week, two major studies identifying the gains associated with this access have been released. One was a Department of Education funded study showing the efficacy of encouraging top teachers to transfer to needy schools. The second was a Fordham Institute study showing the efficacy of giving the best teachers larger class enrollments. Both studies showed impressive results and only added to the mountain of research that preceded them. Why the Department would back away from existing teacher requirements in the midst of increasingly persuasive evidence on the topic is beyond me.
In 1996, the Connecticut Supreme Court issued its momentous decision in Sheff v. O'Neill, becoming the first and only state high court to hold that racial isolation in the Hartford schools violated the state constitutional right to an equal education. Finding a remedy that everyone could agree on and comply with has been the challenge of the following decade and a half. The state would agree to a set of goals one year, only to be hauled back into court a year or two later with charges of non-compliance. Progress has not be a straight line, but has occurred. This year the state appears to have met it integration goals. While full integration is far from complete there, this year's numbers are a testament to what is possible and rejoinder to those who accept segregation as a given.
The Sheff Coalition Movement released this statement this morning:
The state has released 2013-14 enrollment figures for schools and programs covered by the Sheff v. O'Neill settlement agreements. Over 19,000 students are now participating in the Hartford region's innovative two way voluntary school integration programs. This figure includes all city and suburban students attending regional magnet schools, Hartford students participating in Open Choice, and Hartford students attending regional technical and agricultural high schools.
The state has also exceeded its 2013 goal of 41% of Hartford minority children in "reduced isolation settings" (see calculation below*) - and this number includes over 38% of Hartford children now attending racially and economically integrated schools (schools that meet or are approaching the regional integration standard).
In spite of this important progress, the state is still unable to meet the growing demand for integrated school options. The Sheff Movement coalition has called for a doubling of the integration goal in the next five years.
"These enrollment figures are good news as we move into the next phase of Sheff implementation," said Elizabeth Horton Sheff, co-chair of the coalition, "It shows we have a healthy growing system and that is working. But 41% is not enough - we need to keep growing this system so all children have the ability to attend diverse schools."
Court Finds That Sub-classes Cure Flaws in D.C.'s Special Education Class Action Litigation, By Mark Weber
Ever since the Supreme Court’s decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), narrowly reading the “common question of law or fact” requirement of Fed. R. Civ. P. 23 so as to overturn a class certification in a Title VII case, there has been concern that class actions in education law cases might be more difficult to certify. The concern is particularly acute in special education cases, because so much of the enforcement of legal rights, both before and after congressional passage of the Individuals with Disabilities Education Act, has been through class actions. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), confirmed the fears of some advocates by relying on Wal-Mart to overturn a class decree in a case alleging that the school system failed to identify, locate and evaluate children who are potentially eligible for special education services, and failed to design and implement educational programs for them. In a rather similar case challenging the failure to follow IDEA child-find obligations requiring the school system to identify, evaluate, determine eligibility for children with disabilities, and provide transition from services from infant program services to school services, the D.C. Circuit vacated a class action decree against the D.C. public schools, relying in part on Wal-Mart and on Jamie S. DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013). The DL case read much differently from Jamie S., however. The court said that the large, combined class of all children affected by the child-find deficiencies of the public schools failed the Wal-Mart standard, but pointed out that smaller subclasses composed of children harmed by more narrowly defined practices could be permissible.