Friday, September 19, 2014
Those who seek to include more religion in school often perceive the ACLU as waging war on religion. A recent story out of Louisiana demonstrates that perception is wrong. The ACLU distinguishes between official school acts that endorse religion or subtly coerce non-believers into religious activity and those school acts that interfere with students's free exercise of religion.
At the beginning of the school year, South Plaquemines High School in Louisiana suspended a Rastafarian boy school and forbade him from returning until he cut his dreadlocks. They cited him with violating the school's dress code, which prohibits hair below the collar. The next week he returned to school with his hair pinned up, but told him he was still in violation of the dress code.
Rastafarians' religious beliefs, although some charge it is just a way of life, forbid them from cutting their hair, and the ACLU of Lousisiana has stepped in to support the boy for this reason. “The wearing of dreadlocks for (the student) is akin to the wearing of a religious icon by another student,” the ACLU said in a letter. “We would object if the school were to tell a Christian student they could not wear a cross or if it were to permit the wearing of religious icons of one faith and prohibited those of another faith. In discriminating against (the student’s) religious beliefs, the school is expressing a preference for certain religions, which is unacceptable.” The ACLU charges that the district's actions violate the First Amendment and Louisiana’s Preservation of Religious Freedom Act.
Thursday, September 18, 2014
Education Law Association 60th Annual Conference
Wednesday, November 12, 2014 – Sheraton San Diego Bay Tower, CA
Join Education Law Association prior to its 60th anniversary conference in
San Diego for your choice of four pre-conference seminars:
• Education Law for California K-12 Administrators
• Legal Ethics in Education
• K-12 Special Education
• Higher Education
With tight budgets, many professionals have had to make tough choices among conferences to attend. If you are unable to attend the entire ELA 60th Annual Conference, November 12-15, perhaps you, your colleagues, or students, will be able to attend one or more of our pre-conference sessions on Wednesday morning or afternoon. Each of the pre-conference sessions is geared to be of special interest to a primary audience of K-12 or higher education administrators, attorneys, education and law professors, as well as students who wish to learn more about education law.
Wednesday, September 17, 2014
Following up on Derek's post, Washington Supreme Court Turns Up Heat on State Legislature in School Funding Case, last week Washington's high court found the legislature in contempt as some predicted after oral arguments in the case. The Washington Supreme Court's ruling in McCleary, et al. v. State of Washington, comes during a tumultuous year for the legislature on school funding issues. This spring Gov. Jay Insbee blamed the legislature for Washington becoming the first state to have its NCLB waiver revoked this spring, the state supreme court ruled in January (in this case) that the state's education funding system was unconstitutional, and the state faces a $1 billion education budget shortfall. In McCleary, the court indicated it has grown tired of legislative delays in complying with the court's January order to fully fund basic education by the 2017-18 school year. The court wrote last week that it was not issuing the order simply to get the legislature's attention. Instead, "contempt is the means by which a court enforces compliance with its lawful orders when they are not followed," the court wrote. Read the court's order in McCleary, et al. v. State of Washington here.
I have applauded the Departments of Justice and Education on their steps to reduce overly punitive discipline and racial disparities. Their joint guidance in January was a major step forward. On the other hand, the Department of Justice's 1033 program, which funnels military gear and weapons from the Department of Defense to localities, including school districts, is a step in the wrong direction. The Washington Post reports:
Law enforcement agencies affiliated with at least 120 schools, colleges and universities have received gear through the program, according to a Washington Post review of data from 33 states. The items received include at least five grenade launchers, hundreds of rifles and eight mine-resistant, ambush-protected vehicles, the hulking machines designed to withstand the kind of roadside attacks seen in Iraq and Afghanistan.
Tuesday, September 16, 2014
On September 8, 2014, the Forward Institute released a study that examines the Wisconsin school funding formula and finds that it does not fulfill its mandate to provide a sound, basic education as guaranteed by the state constitution and state statute.
The Association for Equity in Funding, a group of Wisconsin school districts, commissioned the study, which is entitled "Segregation of Opportunity: Education Funding."
The goal of the study was to answer the question, "Is the education tax and funding system in Wisconsin fulfilling its constitutionally and statutorily mandated function to provide a sound, basic education for all students regardless of need, without an excessive reliance on local property taxes?"
In July, Jason Nance concluded, based on the Court's decision in Riley v. California holding officers generally need a warrant to search an individual's cell phone, that most school searches of students' cell phones would be off limits as well. The lower reasonable suspicion standard applied to school searches would not save administrators on this point. Last month, a district court judge agreed with Nance in Gallimore v. Henrico Cnty. Sch. Bd., 2014 WL 3867557 (E.D. Va. Aug. 5, 2014).
School administrators, Turpin and Saunders, had "received reports from two parents that a longhaired student had smoked marijuana on a Hermitage High School bus that morning. That afternoon, Turpin brought W.S.G. to Saunders' office. W.S.G. did not know why Turpin summoned him to the office. W.S.G. emptied his pockets, and, before offering an explanation, Turpin initiated a search. Turpin patted down W.S.G.'s person and searched W.S.G.'s backpack, shoes, and pockets. Saunders searched W.S.G.'s Vaseline jar, a sandwich wrapper, and cell phone. Saunders broke the lid of the Vaseline jar while searching it, but did no other damage. Saunders and Turpin found no marijuana on W.S.G., and they sent him back to class."
Monday, September 15, 2014
Bruce Baker's new study, Evaluating the Recession's Impact on State School Finance Systems, is now available. The abstract offers the following summary:
The Great Recession's effect on state school finance systems was unlike previous downturns in the early 1990s and early 2000s in that it a) involved a greater loss of taxable income in many states, thus great loss to state general fund revenues, b) also involved a substantial collapse of housing markets and related reduction or at least leveling of growth of taxable property wealthy, c) but also involved a substantive infusion of federal "fiscal stabilization" aid to be used to fill holes in state general aid formulas. The goal of this study is to evaluate the effects of the recession on equity of state school funding systems with respect to child poverty concentrations. Using school district level panel data from 1993 to 2011, we evaluate the interplay between local, state and federal source revenues through the course of the recent recession by comparison with the less severe economic downturn of the early 200s. Then using stat level estimates of elasticities between revenue and spending measures and district poverty rates, we estimate whether changes in the distribution of state, local or federal revenue contribute most to changes in overall equity of current spending and whether those contributions changed during the recent recession.
Among several conclusions was that increases in state increase spending fairness, as do increases in federal aid. The inverse is also generally true. Of course, it is far more complicated than that and warrants a close read.
The editors of the journal shared the following with me and a particular interest in education:
The Richmond Journal of Law & the Public Interest is seeking submissions for our 2014-2015 volume. We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.
Yesterday, the Washington Post ran a story on the filth in Chicago's public schools. One principal charges that ever since the school system turned over its janitorial services to private contractors (a $340 million contract), his school has been inundated with roaches, rats, and garbage. Nearly half of the district's principals reported the same in a recent survey. Things may very well get worse. One of the contractors is set to lay off approximately 20% of the custodians currently on the project.
The story closely intersects with a point I made in a recent paper on what makes education public and how private markets fit into education. I distinguished between publicly funded education and public education. I also distinguished the various services that the government delivers, positing that some services entailed public missions and value judgments, and others did not. I noted, for instance, that garbage pickup involves relatively little value judgment and mission development, whereas education does. Thus, one might be less concerned about the outsourcing of the former, and more concerned about the latter.
Last week California’s Attorney General’s office released a report, In School + On Track 2014, discussing high rates of absenteeism in the state’s elementary schools. Contributing factors in the problem of absenteeism, the report notes, are poverty and racial disparities in school discipline. Almost 90% of the elementary students with the most severe attendance problems—those who miss 36 days or more of school per year—are estimated to be low-income. Further, the report notes that racial differences in discipline start early: African American children account for over 40% of all preschool students suspended at least once, although they represent only 18% of preschool enrollment. The Attorney General’s report contains the following key findings:
High mobility students are at greater risk in California given the current lack of statewide infrastructure for tracking attendance. … [S]tudents’ attendance histories are not readily available to a receiving school when a student moves into a new district. Instead, records stay in local siloes, with no modern system to integrate and share information. The lack of information on students’ previous attendance patterns severely hampers prevention and early intervention efforts for students with historically poor attendance, including those the Local Control Funding Formula is expressly designed to assist.
The attendance crisis disproportionately affects disadvantaged students—from higher rates of attendance to greater numbers of missed days of school due to suspensions.
District Local Control and Accountability Plans (LCAPs) do not reflect many of the increased efforts districts report making to improve attendance since 2013, and do not reflect the LCFF’s intent for districts to prioritize attendance and chronic absence.
Read In School and On Track 2014 here.
Friday, September 12, 2014
Parents of children in the embattled Philadelphia school system sued state education secretary Carolyn Dumaresq Tuesday, claiming that she has failed to address their concerns about overcrowding, limited curricular offerings, lack of counselors and school nurses, and poor toilet facilities in the schools. Philadelphia parents and the advocacy organization, Parents United for Public Education, asked the state court to order Secretary Dumaresq to investigate the hundreds of parent complaints of "massive deficiencies in city schools." In a media release about the case, Education Justice, a program of the Education Law Center, blames the schools' deteriorating condition on shortfalls in aid to Philadephia schools since the state's 2001 takeover. The annual budget shortfalls force the district's schools to operate on what the lawsuit's plaintiffs call a "Doomsday Budget." Read the complaint in Allen v. Dumaresq here.
Well, it is not so simple as the title suggests, but yesterday I posted on a new Missouri law permitting teachers to carry concealed weapons at school. In total, ten states have enacted legislation to permit teachers to carry guns at school. A few hours after my post came news that a teacher carrying a concealed weapon at Westbrook Elementary in Utah had accidentally shot herself in the leg (not the foot). Gun advocates estimate that about one percent of teachers in Utah, which amounts to 240 teachers, have gun licenses and are eligible to carry a gun to school.
While this incident is a tragedy for the teacher, I quip about it because it is the exact sort of thing that any policymaker in his or her right mind should expect, but seems to have ignored. Bringing more guns into school is necessarily going to increase the chances of an accident and having non-professionals bring guns makes that risk exponential. And a lot worse than just an accidental shot in the leg is possible. Even if the increased presence of armed personnel in schools decreases the risk of a Sandy Hook situation--and I am far from convince that it does, or does significantly--does that decrease outweigh the risk of new accidents? I am pretty confident that the answer is no.
Thursday, September 11, 2014
Over the objection of its governor, the Missouri legislature has voted to expand teachers' ability to bring guns to school. Summer Ballentine (Associated Press) writes:
The new law will allow specially trained school employees to carry concealed guns on campuses. It also allows anyone with a concealed weapons permit to carry guns openly, even in cities or towns with bans against the open carrying of firearms. The age to obtain a concealed weapons permit also will drop from 21 to 19.
Although Education Law Prof Blog editor Derek Black (South Carolina) has referred to his scholarship in discussing the ED's "big waiver" policies, I don't think that we have posted his new paper, Federalizing Education by Waiver? (forthcoming Vanderbilt Law Review). In the paper, Prof. Black examines how NCLB waiver policies exceed Secretary Duncan's constitutional and statutory authority. The abstract is below, and the paper may be downloaded from SSRN here.
In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the control of the federal government.
This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary’s statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states’ inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.
In late August, a group of 14 school districts filed suit against the state of Mississippi, alleging that its failure to fully fund the Mississippi Adequate Eduction Program since 2010 is unconstitutional. The suit seeks to recover past funds and to enjoin the state to fully fund the program in the future. According to the litigants, the state has underfunded education by $1.5 billion since 2010.
The litigants are giving other districts 30 days to join the suit, and former Governor Ronnie Musgrove is crisscrossing the state trying to encourage them. “School districts cannot live without this funding, and local districts are being forced to raise local taxes to try to make up for the money that is being held hostage in Jackson,” said Musgrove. “We hope to get as much money back as possible for every school district. We hope to make education a top priority in Mississippi again. We hope to create opportunity for everyone in Mississippi. The only way to do that is to legally force the state to fully fund education.”
Wednesday, September 10, 2014
Study Finds Link Between Music Education and Language and Reading Skills: May Help Close Achievement Gap
Northwestern University's Auditory Neuroscience Laboratory just released a new study looking at the impact that musical education can have on the nervous systems of at-risk children. Rebecca Klein writes, "The study is the first to document the influence of after-school music education on the brains of disadvantaged children, as opposed to affluent children receiving private lessons." Results from the study suggest that continued musical education can help these students develop both their language and reading skills. The researchers spent two summers observing students who took lessons through a non-profit musical education organization, The Harmony Project. The "students were hooked up to a neural probe that allowed [the] researchers to see how children 'distinguished similar speech sounds, a neural process that is linked to language and reading skills.'" Interestingly, after observing two groups of students - those who only received lessons for one year and those two participated for two - the researchers discovered that the children's brains only started reacting to the musical education after two years, while there was no definitive impact on the children who only received one year of instruction. Thus, while musical education would not be a quick fix, it does have an impact if it is continued.
For students writing law journal comments or seminar papers on special education this fall (and maybe the spring), the writing competition below offers an opportunity for a cash prize and publication. It is open to disability papers outside of education, but special education surely fits nicely. Thanks to Professor Susan Bisom-Rapp for sharing it.
Thomas Jefferson School of law is pleased to announce the inaugural Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
Tuesday, September 9, 2014
Today, the Judiciary Committee in the U.S. House of Representatives is holding a hearing on the need for a constitutional amendment to protect parental rights. Of concern to proponents are state incursions on the ability of parents to direct the education and medical decisions of their children. Such an amendment will go nowhere fast, but the testimony and discussion should be of interest to scholars and advocates. The committee will hear testimony from Michael Farris, Chairman of the Home School Legal Defense Association; Professor Catherine Ross, George Washington University Law School; and Wendy Wright, Vice President of the Center for Family and Human Rights Institute. Details on the hearing and links to their written testimony can be found here.
In February, the Associated School Board of South Dakota, together with the School Administrators of South Dakota, sent out a survey to superintendents across South Dakota in all 154 districts. According to the results, almost 75% of the 130 who responded felt that one of the main reasons schools have been having trouble hiring and retaining quality teachers is how low the pay is. In fact, "[a]s of June, more than 30 percent of South Dakota teaching positions posted this year remained open when they probably would have been filled by the end of May in previous years," according to the director of the School Administrators of South Dakota, Rob Monson. As a result, multiple S.D. educational organizations will be presenting a plan to raise teachers' salaries to the legislative planning committee on Monday. The group will be presenting the draft of a bill that "would create a teacher enhancement fund in an effort to raise teacher salaries in the state," using both state and local funding.
Monday, September 8, 2014
In the fall last year, I had first raised the question of whether the No Child Left Behind (NCLB) waiver process was being constitutionally and legally implemented. I was initially skeptical, but backed off a little based on the analysis laid out by David Barron and Todd Rakoff in their article, In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013). They make a compelling argument for "Big Waiver" and conditional waivers. Their argument, however, persuasively answers the question of whether conditional waivers can be constitutional, not whether the conditions placed on NCLB waivers are, in fact, constitutional. I have been analyzing and pondering this question for the past eight months. Based on spending clause, delegation, and statutory interpretation doctrines, the conditions that Arne Duncan imposed on states in exchange for waivers are beyond the scope of his statutory authority and unconstitutional. You can download my full analysis here.