Tuesday, March 31, 2015
In recent years, a growing body of evidence has confirmed what personal experience and intuition have long suggested: the quality of a child’s teacher has a profound and lasting impact on the child’s academic achievement. According to one expert, replacing just the least effective five percent of America’s teaching force with average teachers could catapult our nation’s K-12 education system from its current place among the worst performing in the developed world to among the top. Yet for complex reasons related to school culture, administrative inertia, and the time and cost associated with dismissing a teacher for poor performance, schools across the country continue to subject students to chronically ineffective teachers in considerable numbers.
In this Article we revive the argument, first raised in courts in the 1970s and 80s, that children assigned to ineffective teachers should be able to sue school districts under elementary principles of tort law, seeking relief in the form of reassignment to an adequate teacher and remedial education services. Courts initially rejected this “educational malpractice” theory of litigation due to the plaintiffs’ inability to establish basic elements of the negligence tort, pointing in particular to the lack of a workable standard of reasonable care (since little consensus existed regarding appropriate pedagogical methods) and problems showing proximate cause (since the effects of teacher quality on student learning were so difficult to prove).
The common law of torts, however, is designed to be judicially responsive to changing times and public policy considerations. And times have certainly changed: School officials today operate with access to unprecedented amounts of data concerning teacher effectiveness and teacher impacts on student learning that was wholly absent decades ago. These modern advances demand re-examination of the old reasons that courts provided for rejecting educational malpractice claims. To date, however, the academy has failed to undertake any such analysis.
This Article seeks to fill that gap. We argue that the recent advances in educational data substantially undermine the basic rationales offered by courts for dismissing the original educational malpractice lawsuits. In particular, unlike the initial era of educational negligence claims that proceeded principally under the theory that a school district should be liable for the negligent teaching practices of its teachers, we argue that a plaintiff student may state a claim against a school district for its negligence one step earlier: in its decision to assign the student to a classroom taught by a teacher whom school officials know to be chronically ineffective based on extensive statistical data concerning the teacher’s performance. For instance, schools now know with some degree of certainty, over a period of years, whether a particular teacher typically improves her students’ academic ability by more or less than a full grade level’s worth of gains. The worst teachers, it turns out, tend to produce paltry gains year-after-year. This data offers both an eminently workable standard of care for determining whether a school has been negligent in subjecting students to an incompetent teacher (indeed, some states such as New York require schools to classify teachers as “ineffective” on the basis of the student learning data), and also an evidentiary link establishing that the teacher is a proximate cause of the child’s lack of attainment.
In addition to setting the groundwork for this new educational malpractice claim, the Article also explores potential policy responses on the part of school districts who may seek to head off costly litigation brought by plaintiff students who have been assigned to inadequate teachers. We suggest that some schools may respond proactively in precisely the fashion that the plaintiffs and school reformers have long desired, by voluntarily dismissing and replacing their least effective teachers. Others may attempt to evade liability without acting to remove ineffective teachers, for example by foreclosing public access to teacher effectiveness data or reducing their own reliance on such data in the first moment. In all events, however, we think this much is for certain: a new era of educational malpractice litigation may well be on the horizon.
Monday, March 30, 2015
On March 3, New York City schools announced that they will begin recognizing two major Muslim holidays beginning in the upcoming 2015-2016 school year. The two holidays to be recognized are Eid al-Fitr, celebrated at the end of Ramadan, and Eid al-Adha, a feast of sacrifice celebrated in late September this year. While New York City is the largest district in the United States to include these holidays on its academic calendar, it is not the first. Massachusetts, Michigan, and New Jersey all have districts that have taken similar steps. New York, however, has a proportionally larger number of Muslim students affected. New York City school district has just over 1.1 million students and "[a] 2008 study by Columbia University found that 10 percent of [the district's] student body is composed of Muslims." Some school have a significantly greater percentage of Muslim students. The Brooklyn public school that was referenced in the superintendent's announcement reported that 36 percent of its students missed school on the last Eid al-Adha.
This is in contrast to Montgomery County, Maryland, which rather than recognize Muslim holidays, stripped all formal acknowledgement of religious holidays from its school calendar. The facts there were far different, but I suggested the district probably got it correct under the Establishment Clause. Which side of the line New York falls on is a closer call. The question is whether the school is accommodating the free exercise of religion (because to do otherwise is an administrative burden) or whether it is accommodating religion for the purpose of promoting it/pleasing its adherents. Given the size of the Muslim population in the schools, the City can more easily make the former argument and render the policy constitution, although the mayor and superintendent's announcement of the new policy included potentially problematic statements suggesting the latter. Their statements, however, may be political grandstanding, as opposed to indications of school level motivations.
Friday, March 27, 2015
On Tuesday, the Indiana Supreme Court held that the state constitution's education clause does not require school districts to provide school bus services. Indiana's Franklin Township Community School Corp. ended its bus service in 2011 after losing about $18 million of its budget when a cap on property taxes went into effect and local voters rejected a referendum to increase property taxes. Faced with the decision to provide buses or cut staff and classroom resources, the Franklin County Superintendent chose to end transportation. The Township then decided to provide student transportation for an annual fee through a private contractor. In November 2011, parents filed a class-action lawsuit against the Township challenging the constitutionality of the mandatory transportation fee. In 2014, the Indiana Court of Appeals struck down the Township's mandatory fee as unconstitutional. The Indiana Supreme Court decided whether the state constitution's education clause supported any requirement for free bus services. The state supreme court found no such requirement to provide free school transportation in Indiana's education clause which mandates a “general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” While the Court acknowledged that its ruling "will inevitably require some families to make alternative accommodations,  it will not close the schoolhouse doors." After the class action lawsuit was filed, Franklin Township restored bus transportation in 2012, but the case remains important for other districts facing budget shortfalls. Read Hoagland v. Franklin Township Comm. Corp., No. 49S02-1410-PL-643 (Ind. March 24, 2015) here.
Public Advocates Group Calls for More Transparency and Financial Oversight of California's Charter Schools
Although California law allows its county superintendents to request an "extraordinary audit" of charter schools, a California group argues in a new report that the current law does not provide enough protection against charter school fraud or mismanagement. The Public Advocates, a nonprofit law firm and advocacy organization, estimates in Risking Public Money: California Charter School Fraud, that California could lose more than $100 million to charter school fraud if the state does not reform its oversight of those schools. Below are excerpts from the report's executive summary:
California is home to the largest number of charter schools in the country, with over 1100 schools providing instruction to over half a million students. In the 2013-14 school year, California charter schools received more than $3 billion in public funding. Despite the tremendous investment of public dollars and the size of its charter school population, California has failed to implement a system that proactively monitors charters for fraud, waste and mismanagement. While charter schools are subject to significant reporting requirements and monitoring by oversight bodies, including chartering entities, county superintendents and the State Controller, no oversight body regularly conducts audits. ...
In this report we describe three fundamental flaws with California’s oversight of charter schools:
Oversight depends heavily on self-reporting by charter schools or by whistleblowers. California’s oversight agencies rely almost entirely on audits paid for by charter operators and complaints from whistleblowers. Both methods are important to uncover fraud; however, neither is a systematic approach to fraud detection, nor are they effective in fraud prevention.
General auditing techniques alone do not uncover fraud. The audits commissioned by the charter schools use general auditing techniques rather than techniques specifically designed to detect and uncover fraud. The current processes may expose inaccuracies or inefficiencies; however, without audits targeted at uncovering financial fraud, state and local agencies will rarely be able to detect fraud without a whistleblower.
Oversight bodies lack adequate staffing to detect and eliminate fraud. In California, the vast majority of charter schools are authorized by local school districts that lack adequate staffing to monitor charter schools and ferret out fraud. Staff members who are responsible for oversight often juggle competing obligations that make it difficult to focus on oversight and identify signs of potential fraud and abuse.
Risking Public Money is available here.
Thursday, March 26, 2015
President Obama's administration has taken a great interest in protecting Americans from predatory practices, as evinced by his planned remarks on predatory lenders today in Alabama. The Education Department (and the Justice Dept.) have been watching a few higher education institutions where there have been accounting irregularities with federal funds. In keeping with those efforts, the Ed has placed 67 nonprofit and for-profit institutions on heightened cash-monitoring status, which means among other things that they are restricted from drawing Title IV funds until students receive disbursements from their institutions. The Ed will not reveal which colleges and universities are on its watch list, however, despite requests from Inside Higher Ed and other media to publish the list. Inside Higher Ed reports today that the administration is considering releasing that list. The Ed had not done so before because of the risk, quoting an unnamed Ed official to Higher Ed, that "any public release of the confidential financial standing of these institutions will likely cause the institutions substantial competitive injury.” When it is made public that an institution is on the list, as Computer Learning Centers (CLC) was before its closure, it can be subject to shareholder suits.
The University of Chicago Consortium on Chicago School Research has released its newest report on discipline in Chicago public schools. The reports are monitoring the efficacy of Chicago's move away from harsh discipline toward more restorative justice practices. It is not all good news, as suspension rates are still high, but the general trend is positive and discipline rates continue to fall. Alex Nitkin offers this summary:
[The report] found that students and teachers report feeling safer as harsh discipline practices have eased. That’s another good-news finding, since some observers feared that cutting arrests and suspensions would worsen school climate and security.
However, the report also notes that Chicago still has a lot of work to do to further reduce suspensions of young black men, who are still the most likely to be kicked out of school for discipline reasons. One-third of black males received an out-of-school suspension last year, compared to 13 percent of Latino boys and 6 percent of white and Asian boys.
Other Consortium findings:
- Some schools are replacing out-of-school suspensions with in-school suspensions: Out-of-school suspensions for black male students declined by about 3 percent, while in-school suspensions rose by 7 percent. Most other groups also saw slight increases.
- Most suspensions in high schools are handed down for “defiance,” with only a third the result of fights or other threats to safety. The report notes that with so few suspensions for physical altercations, schools probably have more room to cut suspensions without compromising safety—but teachers need training on how to deal with students they perceive as being disrespectful.
- The overall arrest rate for high school and middle-grades students was 2 percent, but the rate for black males was double that, according to Chicago Police Department data analyzed by the Consortium. Schools called police for just 43 percent of serious incidents that require police notification under the district’s discipline code.
One troubling fact is that the Consortium still could not get access to complete discipline data from charter schools. This missing data, of course, is also crucial to yesterday's post about comparing urban charters' academic achievement to that of traditional public schools.
Wednesday, March 25, 2015
In a fourth challenge to Tennessee's school funding system, seven county boards of education sued the Governor and the State of Tennessee in Hamilton County Bd. of Educ. v. Haslam, filed on March 24. The plaintiffs are asking a state court to find that the state has neglected its duty to fund public education under the Tennessee Constitution. The plaintiffs, according to a release by the Education Law Center, are asking for relief on several claims, including "an unfunded mandate claim  based on what plaintiffs state are extensive additional and costly responsibilities placed on schools by the state with no funding to cover them." The plaintiffs also allege that the state ignored its responsibility to fund 75% of classroom costs; the plaintiffs allege that the state is only funding about 70%, resulting a $134 million shortfall. The plaintiffs further claim that the state has failed to phase in funding under laws passed to comply with previous judgments in three school funding cases, Tennessee Small School Systems v. McWherter I, II, and III), which they allege resulted in additional funding shortfalls of about $600 million. (For more on the Small Schools litigation, see the National Education Network here.)
Following up on recent stories about racial isolation in San Francisco's public schools, Priceonomics.com put its statistical prowess to work on the issue and produced some interesting analysis and inferences. While at the district level white students are grossly underrepresented in the the public schools, there is a significant amount of uneveness across individual schools and grade levels. They found significant white enrollment in elementary school, but significant drop-offs there after. At the elementary school level, they found "
the spread of the distribution is astounding. Half of San Francisco’s elementary schools have a student population that is 13% white or less. A few elementary schools are over 50% white, while a quarter of elementary schools are under 3.3%.
. . .
So while elementary schools may appear to be more diverse than middle and high schools, this is deceptive: The white students in the district are clustered into a handful of elementary schools -- such Grattan (which is 56% white), New Traditions (52%), and Miraloma (52%.)
According to Public Press, more affluent families tend to be savvier at the admissions process, and also tend to have the luxury of more flexibility with their preferences. For example, they’re more likely to be willing and able to transport their kids across town every day, if it means attending a particular school. “We have options,” one parent told Public Press, about the kindergarten admissions process. “We can send our kids to private schools. We can travel across town. Not every parent can.”
Those options usually don’t go away as a student ages. If at any point the process doesn’t shake out the way an affluent parent wants, they can just drop out, and shell out for a private education for their child. And, the data suggests, that’s exactly what they do.
Probably not, but the news stories surround the most recent charter school study by the Center for Research on Educational Outcomes (CREDO) would have the public believe so. CREDO's studies have been a center point in the debate over the efficacy of charter schools since 2009. Charter school advocates used the 2009 study to demonstrate that some charters (17% to be precise) were outperforming traditional public schools. Those advocates ignored the 37% that were under-performing in comparison to traditional public schools. Charter school skeptics hammered that point and backed it up with subsequent studies.
CREDO's second report in 2013 was more equivocal than the first and moved in a direction to the liking of charter schools. Rather than focusing on raw performance, it sought to identify educational improvement, finding that charter schools in general were showing more growth than traditional public schools. Some argued that larger growth was potentially easier because charters were starting from a lower baseline. The changed frame of analysis also elicited criticism from both sides regarding the methodology of the study.
CREDO is now out with its 2015 report, and it equivocation is all but gone. The study finds that "urban charter schools in the aggregate provide significantly higher levels of annual growth in both math and reading compared to their TPS peers. Specifically, students enrolled in urban charter schools experience 0.055 standard deviations (s.d.’s) greater growth in math and 0.039 s.d.’s greater growth in reading per year than their matched peers in TPS. These results translate to urban charter students receiving the equivalent of roughly 40 days of additional learning per year in math and 28 additional days of learning per year in reading."
This finding was met with applause by education reformers, charter school advocates, and the business community. It was met with keen interest by the media. It has been met largely with silence from those formerly critiquing charters (or they have been unable to capture headlines). Does this study and the silent reaction to it mean that charter schools have finally matured and are demonstrating superiority over traditional public schools? Is the debate, in effect, nearing resolution? Not so fast, says Bruce Baker. We still must compare apples to apples, and it is not clear that CREDO has done that.
Those seeking to demonstrate charter superiority have almost always compared apples to oranges. If the student demographics of charters differ from traditional public schools, raw achievement scores between the two cannot be accurately compared. Responding to this problem, newer studies, including CREDO's, have attempted to account for differing student demographics.
But CREDO's new study may have done both too much and too little in this regard. CREDO's new study narrows the field further than every before, largely in the attempt to triangulate some area of advantage for charters. The new study does not compare charters and traditional public schools on the whole, but only urban charters to urban traditional public schools. That comparison is probably correct, but, of course, those are not the only charter schools in operation. Thus, at best, the study suggests that under certain circumstances, charters outperform traditional public schools.
Bruce Baker, however, says the new study still presents a distorted picture in regard to student demographics, even when narrowed to urban schools. The variables the study uses to "match" an urban public school to a charter for comparison "are especially problematic." It is inaccurate to treat charters' "poor kids" as equivalent to traditional public schools' "poor kids." And it is, likewise, inaccurate to assume that charters' special education kids are the same as traditional public schools' kids. In fact, there is a lot of variation within those two categories, and charters may very well have the most advantaged students within those otherwise narrow groups. Baker further explains:
Newark data are particularly revealing of these problems. Charters undersubscribe the poorest students and oversubscribe the less poor, but CREDO treats those kids as matched anyway...
Charters undersubscribe high need special education kids and oversubscribe mild learning disabled (as a share) but CREDO treats those kids as matched.
This creates a severe bias in favor of charters in Newark and in many other cities with similar sorting patters and high average poverty rates.
This perhaps provides partial explanation for why CREDO tends to find stronger charter effects in poor urban centers than, say in suburbs, where their matching measures - at least for income status - would potentially be more useful.
The point is that the virtual record comparison asserts that these kids are otherwise similar, and thus the gains are somehow attributable to "charter" schooling as a treatment. This assertion is deeply flawed at two levels. First, the as noted above the variables they are choosing for matching are nearly useless. They don't necessarily identify similar kids at all. Nearly all kids fall below the income threshold they are using and thus they might label as "matched" (likely do in fact) a kid in deep poverty/homelessness, etc. in a district school with a kid marginally below the reduced lunch cut point in a charter. They might also label as "matched" a mild specific learning disability kid in a charter (since that's all they have for disability) with a far more severely disabled kid in a district school (where district schools have disproportionate shares of those kids now because charters have siphoned some of the less needy spec ed kids).
The second level problem here is that the CREDO study doesn't then account separately for who these kids attend school with - the peer effect. It conflates that effect with "school" effect, by omission.
Deep stuff. It is probably deeper than the average reporter cares to consider, which might explain some of the silence. But these distinctions are crucial in understanding the new CREDO report and suggest the charter school debate is far settled. The National Education Policy Center has commissioned a review of the CREDO study that will add further clarity to the debate. That review should be available later this spring.
Tuesday, March 24, 2015
Wisconsin Attorney General Brad Schimel has petitioned the state supreme court to reverse a finding that a new state law unconstitutionally removed powers from the state Superintendent of Public Instruction (SPI) in favor of the Governor. The law, called Act 21, required that the Governor approve the scope and drafts of new administrative rules proposed by the state education superintendent. In February, the Wisconsin Court of Appeals found that Act 21 unconstitutionally took away the SPI’s supervisory rule making power in public education. The case is Coyne v. Walker, No. 2013AP416, 2015 WL 686178 (Wis. Ct. App. Feb. 19, 2015).
This American Life ran a story last night, Three Miles, on a program "that brings together kids from two schools. One school is public and in the country’s poorest congressional district. The other is private and costs $43,000/year. They are three miles apart. The hope is that kids connect, but some of the public school kids just can’t get over the divide." Chana Joffee-Walt tells the story and allows us to listen to what happens when students get to see the other side and it looks a lot better. She not only describes poor students’ immediate reaction to seeing the rich school (one spontaneously bursts into tears) but also follows up on them ten years later and reports on how that experience affected their going—or not going—to college (or going and failing out, as several unfortunately did).
Although not emotionally raw, this story also reminds me of James Ryan's similar lens of analysis in Five Miles Away, A World Apart, which describes segregation over time in Richmond, Virginia.
A steady stream of studies have demonstrated zero tolerance and harsh discipline policies do not achieve their goals. They do not improve student behavior. They do not make schools safer. In some instances, they just make matters worse. Those studies have tended to focus on the aggregate school climate. A new study makes far more specific and shocking findings, so shocking that one might struggle to process them.
Tracy Evans-Whipp and her co-authors' new study, Longitudinal Effects of School Drug Policies on Student Marijuana Use in Washington State and Victoria, Australia, finds that the:
Likelihood of student marijuana use was higher in schools in which administrators reported using out-of-school suspension and students reported low policy enforcement. Student marijuana use was less likely where students reported receiving abstinence messages at school and students violating school policy were counseled about the dangers of marijuana use.
Suspending kids actually increased the odds of drug use by 60 percent-- even for kids who weren't suspended, but attended the school were suspension was the policy. "That was surprising to us," said co-author Richard Catalano in a press release. "It means that suspensions are certainly not having a deterrent effect. It’s just the opposite." And according to Catalano and his colleagues, suspensions "related to unintended negative outcomes for the suspended student, such as disengagement from school, delinquency or antisocial behavior, smoking, and alcohol and drug use."
The Arkansas Law Review's symposium issue on education (presumably celebrating the 60th Anniversary of Brown v. Board of Education) is now available on westlaw. The essays and articles offer a historical narrative spanning from segregation to current policies that divert funds and attention away from the education of poor and minority students to incarceration. Each is summarized below.
Peter C. Alexander, Seeking Educational Equality in the North: The Integration of the Hillburn School System, 68 Ark. L. Rev. 13 (2015).
Peter Alexander, uses the example of his small hometown of Hillburn, NY to discuss the history of segregation and integration in the north. Alexander points out that "[m]uch attention has been paid to segregated schools in the South, but surprisingly little has been written about segregated schools that existed north of the Mason-Dixon Line." However, even racially-diverse, small northern towns like Hillburn, which has a population of only about 1000 people, had segregated schools. "Curiously, the local high school was in the neighboring village of Suffern, New York, and it was integrated; however, children in the Hillburn schools were divided by race until the ninth grade." Nevertheless, Hillburn was not unique in its decision to segregate. Alexander points out that neighboring counties in New York, as well as numerous districts in New Jersey, Pennsylvania, Ohio, and many more norther states had segregated school. "The reasons segregated schools existed outside of the South varied from community to community." For some districts, it made geographic sense to segregate, as was the case in Hillburn. Alexander also discusses how economic demographics came into play as a rationale for segregation. Throughout the article, Alexander uses Hillburn's journey from segregation to integration as an example of the challenges that many northern cities and towns faced when making that transition.
Ellen Marrus, Education in Black America: Is It the New Jim Crow?, 68 Ark. L. Rev. 27 (2015).
Monday, March 23, 2015
The Office for Civil Rights at the Department of Education is tasked with investigating complaints of race, gender, ethnic, disability, language discrimination, and age, and ensuring that schools are in compliance with the relevant law. In 2009, OCR received 6,364 complaints. In 2014, it received 9,989, which was a record high. The reasons are not altogether clear, but the Washington Post points out two likely causes. First, OCR's recent guidance on sexual assault on college campuses and increasing student advocacy on this issue may have prompted several complaints in that area, although no single area of discrimination has experienced an unusual increase. Second, as Catherine Lhamon, the Assistant Secretary at OCR, remarked: “Some of this is about the community believing that we’re here and we’re in business and we’re prepared to do the work.”
The second explanation rings particularly true. As I have noted several times, OCR has begun enforcing anti-discrimination more aggressively over the past year or two. Various policy guidance documents have all but invited individuals to bring complaints that they might have foregone in prior years, thinking that such a complaint was a waste of time.
Not mentioned is the fact that courts have grown so inhospitable to some claims, particularly those requiring evidence of intentional race discrimination. See Alexander v. Sandoval. OCR's continuing authority to enforce its disparate impact regulations leaves it as one of the venues of last resort for communities experiencing educational inequality. This reality, however, is overtaxing the resources of OCR. The time it takes to resolve cases has grown considerable. It is now asking Congress for additional funding to hire 200 additional attorneys and investigators. Of course, what I might term as OCR's successes are termed as overreaches by some in Congress, who are thus skeptical of the efficacy of funding increases.
Friday, March 20, 2015
Professor Jason P. Nance (Florida) has posted Student, Police, and the School-to-Prison Pipeline, Washington University Law Review, forthcoming, on SSRN here. In his article, Nance empirically reinforces informal observations about the growing use of police in schools: that more children are ending up in the criminal justice system for infractions that would have been resolved previously without police officers. Lawmakers. parents, and school boards pressed for laws to increase the presence of police officers to protect students from mass gun violence, such as the attacks in Columbine and Sandy Hook. But laws intended to protect students from gun violence and external threats has resulted in law enforcement being overused as a first response to internal rule breaking. Nance argues that "not enough attention has been given to the potential negative consequences that these new laws may have on students and the school-to-prison pipeline." Below is an excerpt from Student, Police, and the School-to-Prison Pipeline:
Drawing on recent restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically-sound methods. ... The empirical analysis reveals that, even after controlling for (1) state statutes that require schools to report certain incidents to law enforcement, (2) general levels of criminal activity and disorder that occur at the school, (3) neighborhood crime, and (4) other demographic variables, a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including seemingly minor offenses. This finding has serious implications as lawmakers and school officials continue to deliberate over whether to use their limited resources to hire more law enforcement officers to patrol school grounds.
[T]his Article urges lawmakers and school officials to use their resources to adopt alternative measures to promote school safety instead of resorting to measures that rely on coercion, punishment, and fear. This is especially important when such measures tend to push students out of school and into the juvenile justice system, which can have such devastating, long-lasting consequences on the lives of students. A growing body of research suggests that programs that promote a strong sense of community and collective responsibility enhance school safety much more effectively than police officers and other strict security measures without degrading the learning environment. And while these alternative measures may not prevent a determined, deranged individual from harming members of the school community, the rarity of these events cannot justify the enormous amount of resources that would be needed to protect students at all times and in all places while they are at school. Indeed, in the wake of highly-publicized acts of school violence, the public often forgets that schools remain among the safest places for children.
George Joseph's new story in the Nation, 9 Billionaires Are About to Remake New York's Public Schools—Here's Their Story, suggests the answer to this post's question is yes. The story details the role that hedge fund managers and other wealthy individuals have played in theorizing and financing changes in public policy in New York state. The two major changes on which he focuses are more charter schools and less money for traditional public schools. The story, if its inferences, are true is rather scandalous. It might also put a different spin on the story I commented on two years ago regarding Goldman Sach's investment in Salt Lake City's pre-k program.
Believing that pre-k would save the district money in the long run, Goldman promised to front the cost of expanding the city's pre-k program. The catch was that the district had to promise Goldman a 40% cut of any subsequent savings in special education that the district accrued. To me, this private investment was persuasive evidence of why the public should invest its own money in pre-k education, and need not let private financiers "get in on the deal."
Does either the New York or Utah story indicate a conspiracy? Not necessarily. But it does indicate that there is money to be made in education and we cannot underestimate the influence of this reality. The public should be hypersensitive in evaluating education policies that directly benefit private industry or individuals. Those policies might very well be good or excellent, but they might also be ruses. Education experts and the research they produce, not the self-serving rhetoric of financial elites, must serve as the arbiters.
The Atlantic ran a story this week titled "Zeroing out Zero Tolerance." Much of the article mediates the debate between "no-excuses" charter schools that believe a rigid approach to discipline has been the key to their academic success and large urban school districts that have recently abandoned zero tolerance policies. Her story emphasizes the large gains in achievement and graduation that the nation's two largest school districts--New York City and Los Angeles--have achieved since ending zero tolerance for minor misbehavior. The same is true of Denver, which was a front-runner in this change. There is not much new in the story, but it does a better job than most in highlighting the issues and juxtaposing the relevant school systems.
Thursday, March 19, 2015
Mark Weber's new article, Accidentally on Purpose: Intent in Disability Discrimination Law, is now available on ssrn here and forthcoming in Boston College Law Review. For those interested in intentional discrimination standards in general (race, gender, etc.) or disability discrimination in particular, the article is a must read. It takes very complex and intersecting statutory concepts of intent and brings them together in a coherent way. Moreover, it points out where some courts have just gotten precedent wrong and should self-correct. His abstract offers this summary:
American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.
This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.
In Fairfield-Suisun Unified School District v. California Department of Education, Nos. 12-6665, 12-16818, 2015 WL 1136449 (9th Cir. Mar. 16, 2015), the court of appeals ruled that school districts lack a right of action to pursue claims that the state department of education violated applicable procedures when deciding parental complaints filed pursuant to the federal special education law’s Complaint Resolution Process established under 34 C.F.R. sec. 300.151 (CRP). In one case, a school districts alleged that the department allowed two reconsiderations of a decision and took into account conduct outside the one-year statute of limitations set out in 34 C.F.R. sec. 300.153(c). In the other, a school district alleged that the department improperly put the burden of proof on the district rather than the complainant. Both districts sought injunctive relief forbidding similar conduct in future complaint resolution proceedings. The court observed that the cause of action established by the Individuals with Disabilities Education Act (IDEA) in 20 U.S.C. sec. 1415(i) provides for appeals from due process hearing decisions, but does not include appeals from CRP decisions. Accordingly, the court rejected the argument that IDEA’s express terms allow school districts to sue, and further rejected any implied right of action by which school districts can sue for the alleged violations of the statute.
The holding is not a surprise. The court previously held that school districts lack the ability to sue the state education department for violations of IDEA procedures connected with due process hearings (specifically, routinely failing to comply with the time limits set out in federal regulations), Lake Washington School District No. 414 v. Office of Superintendent of Public Instruction, 634 F.3d 1065 (9th Cir. 2011). Moreover, courts have generally not permitted school districts to sue for violations of IDEA outside the context of an appeal of a due process hearing decision. I collect the cases in Special Education Law and Litigation Treatise (LRP 3d ed. & supp. 2015) at sec. 21.5. There are a few outliers, but given the trend against recognizing implied statutory causes of action exemplified by Alexander v. Sandoval, 532 U.S. 275 (2001), the likelihood of courts allowing school districts broad rights to sue for violations of IDEA in situations other than due process appeals looks slim. On the other hand, parents may have more extensive rights of action under section 1415, an implied IDEA cause of action, or 42 U.S.C. sec. 1983.