Tuesday, May 26, 2015
Last week, the U.S. Supreme Court, in a 5-4 decision, declared a Maryland income tax provision unconstitutional. According to Maryland officials, this ruling leaves the state of Maryland with a predicted annual revenue loss of about $42 million and also a debt of approximately $200 million owed in refunds to certain residents. This decision could significantly impact public education in Maryland because the money received through the tax at the county level currently contributes to funding local school systems.
The tax provision struck down by the Supreme Court essentially allowed for the income of Maryland residents earned out-of-state to be taxed twice (once in the state where the income was earned and then once in the Maryland county where the resident lived). While most states protect against this “double taxation” by providing a credit for income earned out-of-state, Maryland did not allow a credit against a “county” income tax of 3.2 percent. Alito, for the majority, called Maryland’s tax system the equivalent of a state tariff and therefore void under the dormant Commerce Clause because it improperly burdened interstate commerce. The dissent, however, highlighted the need for a state to be able to tax its resident’s out-of-state income in order to continue to provide services – like public education – to those same residents.
With this cut in funding, Maryland will face an uphill battle in continuing to provide the same level of educational and other important services to it’s residents. This also comes on top of the announcement two weeks ago that the governor was diverting $68 million from education funding to the state's pension program. The culmination of these two events will almost certainly necessitate a tax hike or school funding litigation.
A federal court in South Carolina recently found that a school district’s practice of including Christian prayers at elementary school graduation ceremonies violated the Establishment Clause, but approved a revised policy that allows student-initiated prayer at school events if the student is selected to speak based on “neutral criteria such as class rank or academic merit.” The plaintiffs, parents of an elementary student in the district joined by the American Humanist Society, challenged the Greenville County School District’s practice of having graduation ceremonies at a college chapel at which prayer opened and closed the event. (The claim about the location of the event was dismissed earlier.) The court found that the district’s new policy allowing students to initiate prayer did not contravene the Supreme Court’s First Amendment holdings because the district’s revised policy “simply refuses to preemptively restrain a certain type of message, namely religious,” as opposed to dictating when private religious speech would be allowed during school events. The case, American Humanist Assoc. v. South Carolina Dept. of Ed., is available here.
Monday, May 25, 2015
Friday, May 22, 2015
The Education Law Center released this story earlier this week:
In a letter submitted May 18, Education Law Center calls on U.S. Secretary of Education Arne Duncan to "promptly reject" New Jersey's application to renew its waiver under the Elementary and Secondary Education Act (ESEA) until the State removes a proposed exemption from federally-mandated interventions for low performing schools in State-operated districts.
The ELC demand is triggered by NJ Education Commissioner David Hespe's proposal to eliminate State-led efforts to improve academic outcomes for students in low performing schools in Newark and other districts under the State's direct control. In NJ's application to renew the ESEA waiver for another three years, Commissioner Hespe proposes exempting low performing schools - called "priority" and "focus" schools - in State-run Newark, Camden, Paterson and Jersey City from intervention and assistance by the NJ Department of Education's (NJDOE) Regional Achievement Centers (RACs). Instead, the Commissioner would allow the State Superintendents in those districts to implement their own local "initiatives," without RAC oversight and support.
If the U.S. Department of Education (USED) approves the waiver renewal application, the NJDOE will treat priority and focus schools in State-controlled districts differently from such schools in all other NJ districts. There are 91 priority and focus schools in State-operated Newark, Camden, Paterson and Jersey City, and there are an additional 157 priority and focus schools in 76 districts around the state.
"The Commissioner offers no justification or basis for withdrawing RAC intervention and support from low performing schools in Newark and the other districts under State control," said ELC Executive Director David Sciarra. "If anything, the Commissioner should redouble efforts to boost instruction, curriculum and outcomes, instead of walking away from the students, teachers and principals in these State-run schools."
The proposal to treat priority and focus schools in State-operated districts differently from schools in other districts comes on the heels of ELC's pending complaint to Secretary Duncan that the Essex/Hudson RAC has provided no expert and professional assistance to Newark's 28 priority and focus schools since 2102. ELC presented evidence that, under former Commissioner Christopher Cerf, NJDOE acceded to a demand by State Superintendent Cami Anderson to keep the Essex/Hudson RAC out of the Newark schools, a move which deprived those schools of the interventions required by New Jersey's ESEA waiver and State Turnaround regulations. ELC also contends that State officials blatantly misrepresented the status of waiver implementation when - on several occasions - they told USED monitors that RAC interventions and supports were being provided to all priority and focus schools, including those in Newark.
Along with rejecting New Jersey's ESEA waiver renewal as submitted, ELC is calling on Secretary Duncan to return the application to State officials with explicit instructions to remove the proposed exemption of priority and focus schools in State-run districts from RAC-led improvement efforts. In addition, ELC is demanding that the Secretary direct New Jersey to immediately dispatch RAC experts to all Newark priority and focus schools, and then place those schools on the required multi-year, RAC-led improvement cycle.
"New Jersey's refusal, since 2012, to give Newark's priority and focus schools the intensive support needed to improve outcomes for students is unconscionable," Mr. Sciarra added. "Secretary Duncan must show his resolve about holding states accountable for their waiver commitments to USED, especially given the substantial evidence that New Jersey misled federal monitors about the State's decision to give Newark a pass from long overdue, and urgently needed, interventions in the district's lowest performing schools."
Supreme Court Declines Review of Case Presenting Circuit Split on IDEA's Stay-Put Provision
As covered by SCOTUSBlog, the Supreme Court declined certiorari this week in a special education case, Ridley School District v. M.R. The case presented a circuit split on the statutory definition of “proceedings” in the Individuals with Disabilities Education Act’s (IDEA) stay-put provision, which determines how long a school district must pay for a student’s current educational placement during a legal dispute. The "stay put" rule safeguards students from having their education disrupted during litigation. The D.C. and Sixth Circuits have held that schools’ stay-put obligation ends upon entry of a final judgment by a trial court in favor of the school district; the Third and Ninth Circuits have held that school districts must continue to pay the costs of private school placements until the exhaustion of all proceedings, including appeals. Several school board associations joined in filing an amicus brief asking the Supreme Court to overturn the Third Circuit’s definition of “proceedings.” The school boards argued that the Third Circuit’s interpretation creates “an incentive for parents to engage in protracted litigation rather than working collaboratively with educators to resolve disputes without delay,” by placing the burden on a school district to continue to pay for alternative education after a district court’s determination that the district has provided sufficient education services.
Second Circuit Allows Amendment of Hearing-Impaired Child's Claim that Girl Scouts Organization Provides Education Services
The Second Circuit reversed a district court’s dismissal of a Section 504 claim brought against the Chicago area chapter of the Girl Scouts for failing to provide a sign language interpreter to a hearing impaired girl. The circuit court found that the plaintiffs’ claim that the Scouts were “principally engaged” in education services was not futile, and thus they should have been allowed to amend their complaint. The plaintiffs, the girl and her mother as next friend, sued the Girl Scouts under the Rehabilitation Act after it stopped providing sign language interpreter services and then, when her mother objected, allegedly retaliated by disbanding the girl’s local troop. The Scouts responded that as a private organization, it was exempt from the Act’s coverage. The Second Circuit found that the Girl Scouts organization was subject to the Act as a private organization that is “principally engaged” in the business of providing education as defined under 29 U.S.C. § 794(b). The Second Circuit interpreted the statutory coverage of the term “education” beyond that provided by a traditional school system. Education, the circuit court reasoned, includes social and education services if they, in the aggregate, make up the primary activities of the private organization. The court noted that Girl Scouts’ literature touts the educational purposes of many of its activities, even in selling cookies. The court therefore reversed the dismissal to allow the plaintiffs to amend their complaint. The decision is Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, No. 14-1729, 2015 WL 2151851 (7th Cir. May 8, 2015).
Seventh Circuit Finds Parent’s IDEA Claim as Preserved, But Pro Se Parent Cannot Represent the Child
The Seventh Circuit recently allowed a pro se mother of a special education student to pursue her parental rights to relief under the Individuals with Disabilities Act. The circuit court vacated the district court’s finding below that the mother did not specifically request reimbursement at a hearing before the Illinois State Board of Education to be reimbursed for the cost of her daughter's speech and language sessions, and thus was not aggrieved by the hearing officer's decision. The Seventh Circuit found that the hearing officer understood that the mother was requesting compensatory relief for speech and language services, and thus the officer ordered the Board of Education to pay for more speech sessions with the same pathologist that the mother had retained. However, the circuit court upheld the district court’s decision to deny the daughter’s claims because of the circuit’s holdings that a nonlawyer parent cannot represent her minor child pro se, a question left open in Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516 (2007). The decision is Foster v. Bd. of Educ. of City of Chicago, No. 14-3035, 2015 WL 2214152 (7th Cir. May 11, 2015).
Thursday, May 21, 2015
For those who missed it, NY Magazine has a fascinating article on one elementary school's attempt to teach students how to navigate issues of race. It is a clearly thought out curriculum, but one involving a highly controversial practice: segregating students. The segregation is temporary and involves students breaking into their racial groups to discuss issues of race. In these smaller groups, the thought is that students would more openly and honestly discuss the issues, after which all students would reassemble and hopefully have a better interracial dialogue, rather than just being polite. The other thought was that this two step process would also help all groups feel a sense of equal belonging and ownership in the community. The curriculum is also designed to teach students that not talking about or recognizing race is an ineffective strategy for dealing with issues of race.
Get the full story here.
Wednesday, May 20, 2015
The Fifth Circuit decided a novel issue in its circuit on Monday, holding that the Houston Independent School District (HISD) may not be sued under the Racketeer Influenced Corrupt Organizations Act because a governmental organization cannot be shown to have the required mens rea and that the HISD had immunity from RICO’s punitive treble-damages provision. The case arose when a former member of HISD’s Board of Trustees, Lawrence Marshall, allegedly used his position to steer the district’s construction projects to companies in which he served as a paid consultant. When HISD prohibited Marshall from doing that, those companies hired one of Marshall’s business associates who received consulting fees for district contracts, funneling a share of those fees to Marshall. The plaintiffs sued Marshall, HISD, and others in the U.S. District Court for the Southern District of Texas for violations of RICO, § 1983, and state law for breach of contract, estoppel, and civil conspiracy. The district court dismissed the RICO and state law tort claims against HISD, finding that the district was not a proper RICO plaintiff. On appeal, the Fifth Circuit held that a RICO allegation requires proof of an underlying criminal act, and a governmental entity cannot form the required mens rea for a crime. The court also found that HISD, as a municipal entity, has common law immunity from RICO’s partially punitive treble-damages provision. The court interpreted RICO’s treble damages provisions as awarding damages beyond the amount of actual harm, despite some Supreme Court language that RICO is “remedial in nature.” The Fifth Circuit also held that Marshall was not shielded as a HISD employee against state law claims. As an elected school board trustee, Marshall was not controlled by or in the paid service of the HISD, and therefore, he was not an employee. Even if he were to be considered an employee under some statutory definitions, receiving bribes, the court wrote, was outside the scope of his employment. The circuit reversed and remanded the district court’s grant of summary judgment against the individual defendants on the RICO and state law claims.
Tuesday, May 19, 2015
U.S. Supreme Court Denies Certiorari in New Orleans Teachers' Challenge to Termination After Katrina
The U.S. Supreme Court denied the plaintiffs’ certiorari petition in Oliver v. Orleans Parish Sch. Bd. on Monday, ending the class action suit for 7,600 former New Orleans teachers and school employees. The teachers and other school employees claimed that Louisiana violated due process when the state terminated them after Hurricane Katrina and took over of 102 of the Orleans Parish’s 126 schools. Overturning the Louisiana Court of Appeals decision, the Louisiana Supreme Court below held last fall that the plaintiffs’ claims were barred by res judicata and that the Orleans Parish School Board did not violate the employees’ due process rights by failing to recall them after Hurricane Katrina. The Louisiana Supreme Court held that the plaintiffs’ claims were the subject matter of an earlier settlement between the OPSB and the Orleans Parish’s teachers’ union, the United Teachers of New Orleans (UTNO)—which included three persons who were also class members in Oliver case—and thus barred by res judicata. On the due process claim, the court found that the issues presented by Hurricane Katrina were so unique that there were only 526 positions available for the over 7,600 class members. Acknowledging that there was no recall list for teachers temporarily displaced by Katrina, the court found that OPSB’s employee hotline to communicate to determine which employees could return to work when the schools re-opened, while imperfect, was sufficient to satisfy due process. Finally, the court found that the plaintiffs had no constitutionally protected property interest in the right to “priority consideration” for employment with a third party, the Recovery School District. The Louisiana Supreme Court's decision is here.
Last week Maryland’s governor, Larry Hogan, announced that the 68 million dollars allotted by the state legislature for education would go to the state pension fund instead. Hogan’s plan for fiscal austerity would mean that 11.6 million of those dollars would be withheld from the Baltimore public schools. According to the Education Reform Project at American Civil Liberties Union of Maryland, the funding cuts would disproportionately affect Baltimore schools and ultimately hurt some of the most vulnerable students in Maryland. Baltimore’s Mayor, Stephanie Rawlings-Blake pointed to the recent civil unrest as evidence of the critical need for the money to go to the state’s education system. Furthermore, earlier this year the Baltimore City Public Schools announced a 17.8 million cut from next years school budget due to other state funding cuts and a pre-existing school budget deficit. Despite reassurances that the cuts would not affect classroom teachers, Paul Laurence Dunbar High School in east Baltimore will see five English faculty positions dissolve leaving only three certified English teachers and one substitute teacher to teach English to 900 students. Youth Advocates in Maryland lament that Hogan’s announcement is just another example of how the state has not correctly prioritized education.
With one of the higher funding levels in the nation, Maryland has generally managed to ward off extensive school finance litigation (although it has been subject to some). This new diversion of funds may or may not call for redress. On one hand, sixty-eight million dollars is not necessarily a huge number. By my calculations, it is about an $80 cut per student or $31,000 for a school of 400. As with all school funding, however, the devil is in the detail. If this cut is targeted, it might fall disproportionately on some schools. Sixty-eight million dollars, for instance, is just over one-third the size of the state's entire Title I grant from the federal government.
Monday, May 18, 2015
A group representing Asian-American applicants to elite colleges filed a complaint Friday with the Departments of Justice and Education alleging that Harvard University and other private elite colleges discriminate against Asian-American applicants. The complaint by the Coalition of Asian-American Associations, a group of 64 organizations, is based on data from the lawsuit of the Students for Fair Admissions, Inc. filed last November. The group’s complaint is backed by Edward Blum and the team that represented plaintiff Abigail Fisher in Fisher v. Univ. of Texas at Austin. The complainants ask the government to require Harvard to, among other things to 1) stop using racial quotas or racial balancing in its admissions process, 2) limit subjective components in admissions for education purposes only (rather than for racial balancing), and provide more disclosure of its applicant pool qualifications. The Chronicle of Higher Education has posted the complaint here. The complaint’s introduction sums up the group’s concerns:
Over the last two decades, Asian-American applicants to Harvard University and other Ivy League colleges have increasingly experienced discrimination in the admissions process. Many Asian-American students who have almost perfect SAT scores, top 1% GPAs, plus significant awards or leadership positions in various extracurricular activities have been rejected by Harvard University and other Ivy League Colleges while similarly situated applicants of other races have been admitted. Because of this discrimination, it has become especially difficult for high performing male Asian-American students to gain admission to Harvard University and other Ivy League colleges.
The 61st anniversary of Brown v. Board of Education passed this weekend. Last year's 60th brought a fair amount of commentary and reflection. This year, it understandably passed with relatively little. Credit to Rebecca Klein at Huffington Post, however, for pulling together a series of data snapshots on the state of segregation and inequality in our public schools. In very easy to follow graphics, she shows the racially inequitable funding of schools, the racially inequitable access to middle income peers (a topic which I analyze in-depth here), racially inequitable access to high quality teachers, the graduation gap, the racial demographics of teachers, and racially disparate discipline.
Friday, May 15, 2015
The National Institute for Early Education Research (NIEER) has released its 2014 State Preschool Yearbook, providing state-by-state data on prekindergarten in the 2013-14 school year. The yearbook finds dramatic differences in both pre-K access and quality among the states.
It is now widely recognized that high quality preschool for 3- and 4-year-olds is an essential resource in the effort to improve educational outcomes, especially for low-income and other at-risk children. Despite this urgent need, NIEER's annual Yearbook shows that states are moving at a snail's pace to integrate well planned, high quality preschool into their K-12 public education systems, and are even slower to coordinate delivery of quality preschool programs through existing child care, Head Start and public school classrooms. Across the nation, access to high quality early learning opportunities depends on the state, and even the community, where a child lives.
In a 2013 report, the federal Equity and Excellence Commission called for a 10-year program, led by the federal government, during which states would dramatically increase their investment in high quality pre-K to close the nation's early learning gaps. While President Obama has responded to this call with his federal preschool initiative, Congress and the states are lagging behind, undermining the national effort to boost K-12 achievement and close gaps for low-income children, students of color, and English language learners.
While many state budgets are recovering from the Great Recession, NIEER reports that total state funding for pre-K increased by a paltry $116 million nationally, adjusted for inflation. This is the second straight year pre-K funding has increased, but the investment is so low that states have yet to fully reverse the impact of the half billion dollar cut in early education in 2011-2012.
Preschool enrollments also saw very modest growth in 2013-14. Twenty-nine percent of America's 4-year-olds are enrolled in a state-funded preschool program. Total enrollment increased by 8,535 children across the nation, but nearly half this increase represents restoration of the 4,000 seats lost in 2012-13.
State pre-K quality standards showed some improvement in 2013-14. Three programs -- Oregon, Pennsylvania HSSAP, and Wisconsin Head Start -- now meet the requirement that assistant teachers have at least a Child Development Associate credential. Two Pennsylvania programs that had lost benchmarks regained them this year as temporary moratoria on professional development were lifted. In two additional changes, West Virginia met the benchmark for lead teachers with Bachelor degrees, and Michigan met the benchmark for site visits.
Other notable highlights in the Yearbook include:
- Ten states still do not have any state-funded pre-K program
- In some states, notably Connecticut, California, Florida, and Nevada, per pupil funding for pre-K decreased in 2013-14.
- Only three percent of 3-year-olds and only 29 percent of 4-year-olds are enrolled in pre-K.
An ELC priority is advocacy to ensure access to high quality early education for at-risk children as an essential element of the right to K-12 public education guaranteed by the constitutions of all 50 states. In 1997, ELC secured the nation's first legal ruling establishing the right to preschool under the New Jersey Constitution in the landmark Abbott v. Burke litigation, a precedent that has been followed by trial courts in North Carolina, South Carolina, and Colorado.
"As a nation, we must face the fact that without high quality preschool, K-12 achievement will lag behind the performance of other developed nations, many of which guarantee access to all of their youngsters," said Molly Hunter, ELC's national program director. "Every year of delay deprives more children in our country of the opportunity for school readiness and success."
Thursday, May 14, 2015
The Harrisburg Patriot-News reports that a racial bias suit against a Pennsylvania school district was settled this week. In 2014, the Webbs, a student and his mother, sued the Susquehanna Township School District after it expelled the student from high school for wearing a multifunction tool that had a knife on it. The student's mother sued when they learned that three white male students were treated differently than the student, who is black. In the other three instances, a white male student brought two airsoft pistols onto school and aimed at other students as they left the building; in the second, a white male student brought marijuana into a classroom; and in the third, a white male student brought a BB gun onto school grounds. On each of those occasions, the school superintendent did not recommend to expel the students. The Webbs sued in federal court claiming disparate treatment and violations of the 14th Amendment, Title VI of the Civil Rights Act, and the Pennsylvania Human Relations Act (PHRA). The Middle District of Pennsylvania dismissed their claims for lack of standing and because the statute of limitations had expired on some of the claims. However, the federal court gave the Webbs leave to amend their claims under the Pennsylvania Human Relations Act (PHRA). Despite the dismissal, the school district reportedly settled the case for an undisclosed amount. The federal case was Webb v. Susquehanna Twp. Sch. Dist., No. 1:14-CV-1123, 2015 WL 871731 (M.D. Pa. Feb. 27, 2015).
Wednesday, May 13, 2015
A New Jersey mother, Karen McMillan, alleges that her son passed out after being choked by a school security guard who was attempting to restrain the 7-year-old. After being held back from recess, the boy became disruptive. According to school officials, he was kicking chairs and rolling on the floor. The security guard was called to help restrain the child, and allegedly was trying to help the boy when he started to hyperventilate. The boy told his mother only that the guard held him very tightly and he felt like he might be sick, leading McMillan to believe that guard's force to be excessive. The boy was not injured, though McMillan stated that he is afraid to return to school and she intends to remove him from the school district. The guard was put on paid leave while the school investigates the incident.
Even if true, rogue acts of individual employees may be no more than that. On the other hand, this past year has brought various other stories like this one in other school districts. See, e.g., here, here, here, and here. This raises the question of whether the harsh policing tactics that are currently embroiling a national debate are also a part of every day life for many public schools students. Past reports by the Advancement Project would suggest the answer is yes, as would the Department of Justice's report on Ferguson, Missouri.
More on the New Jersey story here.
Tuesday, May 12, 2015
Abigail Perdue, together with sociologists and psychologists, recently conducted a survey of 364 Virginia Military Institute (VMI) students. The study is now published as Abigail L. Perdue, Transforming "Shedets" into "Keydets": An Empirical Study Examining Coeducation Through the Lens of Gender Polarization, 28 Colum. J. Gender & L. 371 (2015). The goal of this study was to gather empirical data on the impacts of coeducation at the school. Professor Perdue "examine[s] the perceived impact of coeducation, perceptions of why members of the opposite sex attend VMI, pressures to conform to prescriptive gender stereotypes of how feminine or how masculine a cadet should be, and perceptions of an expected adverse reaction to perceived violations of gender boundaries." It has been fifteen years since VMI became coed in the wake of U.S. v. Virginia, and according to this study, many male cadets continue to regard female cadets as intruders rather than peers. As a result, "female cadets often employ gender strategies, such as emphatic sameness, to avoid accepting the demeaning status of feminine 'shedet' within VMI's androcentric and gender polarized environment." However, in doing so, many of these women may be inadvertently forfeiting part of their feminine gender identities. Therefore, Professor Perdue "explore[s] the potential impact of gender polarization . . . on the gender identities of female cadets at VMI by examining student attitude toward coeducation and their perceptions of possible gender boundary violations at VMI." The study utilized Sandra Lipsitz Bern's analytical framework, "which discusses three prisms through which men and women often view one another and the world: gender polarization, androcentrism, and biological essentialism." Gender polarization "refers to the separation of sex and gender into opposite poles representing masculine and feminine domains in order to interpret sex and gender differences," and biological essentialism "refers to the use of biology and science to 'legitimize the sexual status quo.'" In other words, biological essentialism is founded upon biological distinctions to explain the inherent dominance of men and why it is sometimes permissible, even necessary, to differentiate treatment of men and women.
Monday, May 11, 2015
It goes without saying that we have a student loan problem in this country. We encourage students to pursue higher education as both a private good and a public necessity; but in funding the undertaking, we increasingly saddle them with immense debt. Rarely a day goes by when I do not come across an article lamenting this perversity. Unfortunately, the framing of the problems and solutions (when offered) are often misinformed, if not outright wrongheaded.
The manner in which federal student loans are repaid is distinctive within the larger constellation of debt repayment. And, from my perspective, that is mostly a good thing. When Congress passed the College Cost Reduction and Access Act in 2007, it essentially created an opt-in income-based repayment system for federal student loans. This is probably the most underappreciated, yet critical aspect of the student loan system. Virtually every federal student loan debtor has the right to have payments capped at no more than 15% of their discretionary income. Many debtors will qualify for a 10% cap. These caps apply irrespective of the amount owed. Additionally, these income-based plans allow debtors to have outstanding balances forgiven at the end of mandatory repayment periods ranging from 10 years to 25 years. Are these plans perfect? Absolutely not. I discuss the most significant shortcomings later. But few other forms of debt offer this type of relief.
Overindebtedness is as much a state of mind as it is a state of being. If one feels weighed down by debt, she is overindebted, even if technical indicators suggest otherwise. The mental aspects of indebtedness are contributing to broad pessimism among recent college graduates. The optimism that used to typify earning a diploma has been replaced by angst. Research suggests that debt concerns are delaying the achievement of various life milestones among young people, including marriage and the purchase of a first home. The din of hysteria has not helped. A simple internet search turns up pages of sensationalized headlines, including many that suggest debtors will be repaying their student loans forever.
Below are a few education law articles recently posted on SSRN on teacher tenure, discriminatory state college tuition for undocumented students, public employee speech, and the constitutional standard of review for single-sex schools.
Herman Daniel Hofman, 'Exceedingly [Un]Persuasive' and Unjustified: The Intermediate Scrutiny Standard and Single-Sex Education after United States v. Virginia, Michigan State L.Rev., forthcoming: Although single-sex public schools in the United States were virtually non-existent in the 1980s, the popularity of public single-sex elementary and secondary schools has increased dramatically in the past fifteen years. This increase occurred as a result of a variety of factors, including the deficiencies of coeducational school settings, increasing research showing the benefits of single-sex education, and support by federal law under the No Child Left Behind Act and Department of Education regulations. However, schools attempting to use the educational benefits of single-sex education to provide individualized instruction to their students continue to face the threat of litigation for their well-intentioned efforts. ... The reason for this situation is simple ― Supreme Court cases analyzing the constitutionality of sex class isolations have applied conflicting standards of review. The Supreme Court’s application of the intermediate scrutiny standard has ranged from applying a more demanding intermediate scrutiny standard in some cases to adopting a more relaxed intermediate scrutiny standard in others. ... In order to remedy this problem, the Supreme Court must reaffirm its commitment to the “traditional” intermediate scrutiny standard of review for analyzing single-sex educational programs. As such, in reviewing single-sex educational programs or schools, the Supreme Court should simply analyze (1) whether the state furthers an “important governmental objective” in establishing the school or program; and (2) whether the state’s means are “substantially related to achievement” of this objective. In so doing, the Supreme Court would reconcile its conflicting standards of review with the increasing acceptance of single-sex education programs in popular opinion, federal law, and lower federal courts.
Laura R. McNeal (Brandeis), Total Recall: The Rise and Fall of Teacher Tenure, Hofstra Labor and Employment Law Journal, Vol. 30, 2012-2013: This article will examine the evolution of tenure in K-12 public schools and explore new pathways of protecting teachers from unfair labor practices while advancing education reform. In this article, I argue that the Reauthorization of the Elementary and Secondary Education Act should include an increased federal role in teacher quality through the creation of a uniform teacher evaluation system. Additionally, I will propose a collaborative framework for teachers and school districts that will maintain teacher rights while employing an evaluation system that affords school districts a means for removing ineffective teachers, regardless of their seniority. The larger ambition of this article is to help illustrate that we can create laws that achieve education equity without unfairly targeting or infringing on teachers' employment rights. Part I will explore the evolution of teacher tenure in K-12 schools and the impact on teachers' employment rights. Part II will examine the intersection of school reform and teacher tenure, with a particular emphasis on how reform measures have contributed to the erosion of teacher tenure. Part III will highlight the recent wave of antitenure legislation and discuss the implications for teacher rights in K-12 schools. Part IV will synthesize the current labor law landscape for teachers and argue that the Reauthorization of the Elementary and Secondary Education Act should include procedural safeguards such as a uniform teacher evaluation system to ensure that teacher's employment rights are not violated. Part V will conclude with discussion of the future of teacher tenure in K-12 public schools and the implications for school reform.
David H.K.Nguyen and Zelideh R. Martinez Hoy, 'Jim Crowing' Plyler v. Doe: The Resegregation of Undocumented Students in American Higher Education Through Discriminatory State Tuition and Fee Legislation, Cleveland State Law Review, Vol. 63, No. 2, 201:. This law review article examines the re-segregation of undocumented students in education, more specifically, re-segregation through state laws and policies impacting their attendance at American colleges and universities. Under no fault of their own, undocumented students are marginalized even further after graduating from high school, since they are not afforded the same benefits as their peers to attend college. This article explores the current landscape of these laws and policies after providing background on Plyler v. Doe and state and federal attempts to challenge education for undocumented students.
Michael Toth (Stanford), Out of Balance: Wrong Turns in Public Employee Speech Law, University of Massachusetts Law Review, Vol. 10, No. 2, Forthcoming. From the abstract: Although scholars offer a variety of explanations for the modern Supreme Court’s public employee speech jurisprudence, they share a common presumption. According to the standard account, this article tells the story of how the unconstitutional conditions doctrine, unbeknownst to courts and commentators fixated on Pickering balancing, has been the true driving force behind a major area of First Amendment law for nearly fifty years.[T]he modern era of public employee free speech law began in 1968, with the Court’s adoption of a balancing test in Pickering v. Board of Education. [T]his article argues that Pickering balancing is better characterized as a relic from a bygone era rather than the start of a new one. Balancing was once the Court’s standard method of judging First Amendment claims. When Pickering was decided, however, balancing was under attack. Consistent with the overall demise of free speech balancing, this article shows that the Court began abandoning Pickering balancing the moment the standard was announced. Pickering itself was not decided on balancing grounds, and the public employee speech cases that followed it in the Supreme Court have avoided balancing. When Pickering is put into proper perspective, it is possible to identify an overlooked explanation for the modern Court’s public employee speech rulings. This article tells the story of how the unconstitutional conditions doctrine, unbeknownst to courts and commentators fixated on Pickering balancing, has been the true driving force behind a major area of First Amendment law for nearly fifty years.
Thursday, May 7, 2015
A new study out of England finds that children who are bullied by their peers experience more long term negative mental problems than those who experience physical, mental, or sexual abuse. The authors of the study are, of course, not suggesting that the effects of abuse are minimal but that the effects of bullying are comparatively higher. This point is particularly important, they say, because “[g]overnmental efforts have focused almost exclusively on public policy to address family maltreatment; much less attention and resources [have] been paid to bullying. … This imbalance requires attention.”
The U.S. District Court for the District of Oregon recently ruled that a school violated a student's free speech rights when it suspended him for posting on Facebook post that his teacher "needs to be shot." The eighth grade student was angry because his parents grounded him after he got a C in her class. The court wrote that the off-campus post post was unlikely to "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the required showing under Tinker v. Des Moines Indep. Cmty. Sch. Dist. The student's post did not announce a specific plan, and the school's choice of discipline, a three-day in school suspension, further convinced the district court that school officials did not take the comments seriously. Although the teacher was apprehensive about the student returning to school, she accepted the school's decision to let the student return. The district court distinguished a 2013 Ninth Circuit case, Wynar v. Douglas Co. Sch. Dist., which upheld a school suspension of a student for his threatening social media post because he detailed plans that targeted specific students. Read the district court's opinion in Burge v. Colton School Dist. 53 here.
Wednesday, May 6, 2015
The Department of Education's new longitudinal study on teacher attrition indicates that the conventional wisdom is wrong. Past research has indicated that new teachers leave the profession in droves. The common refrain is that half of new teachers leave within five years. Looking at five years of data (from 2007–08 through 2011–12), the Department found that 83% of the new teachers in the first year of the study were still teaching 5 years later. The biggest hit was in the first year, after which 10 percent of teachers left the profession. In subsequent years, however, attrition fell to only two to three percent. The study also found that two factors appeared to play a role in those schools with the lowest attrition rates: salary and mentorship.