Wednesday, June 19, 2013
Putting aside whether Wall Street has something up its sleeve, is looking for publicity, or the state is getting a bum deal, the story I posted on Monday regarding Goldman Sachs' investment in Salt Lake City's pre-k program indicates that it sees pre-k as a good investment. In fact, the investment is predicated on the expectation that pre-k will save the district money in the long term, as special education and other special service needs decline.
Congress, however, apparently sees things differently. In his State of the Union Address earlier this year, President Obama announced his intention to drastically expand pre-k education by giving states grants to do so themselves. Since then, the Department of Education has reallocated $370 million in Race to the Top funds toward funding pre-k. But fully funding the initiative will require far more money (full initiative here). Congress, for the moment, is balking. Not that we should take education advice from Wall Street, but if its economists and analysts are correct--and on this point I am pretty sure they are--the federal and state governments would save money by ponying up the initial investment in pre-k. By investing in one or two years of high quality pre-k, Congress would stand to save money on the next 13 years of education in which a student needs fewer special education and other services.
Tuesday, June 18, 2013
Alabama releases "failing schools" list; school district reports 'pandemonium' as parents call to transfer their children to new schools
Twenty-five schools on the list are also either under a federal desegregation order or are currently involved in desegregation cases. The Accountability Act exempts schools under a federal desegregation order. However, the Alabama State Department of Education says the conflict could mean that students trying to transfer from a failing public school to a high-performing public school could be "impacted," as well as those students who are trying to transfer to a school under a desegregation order. Students who transfer to private schools will not be affected by any conflict between the Act and federal desegregation orders, but they are also likely to be a small percentage of the students seeking transfers. Huntsville Superintendent Casey Wardynski candidly said that because his school district is still under a 1970 desegregation order, "[t]here is unlikely to be much room in any of our schools for transfers under this law."
The fallout from the announcement started immediately, with school districts in Huntsville, Mobile, and Tuscaloosa fielding calls from concerned parents trying to transfer their children to new schools in the fall. Superintendent Wardynski asked parents Tuesday to "stay the course at the schools their children already attend."
That's a big part of the problem--there is nowhere for many students in failing schools to go. If their families cannot afford private school tuition (which would require upfront costs that would be partially offset later with a $3,500 education tax credit), their choices are other nearby public schools which may also be in the "failing" category. For those students, there is no better school system to transfer to. Suburban school districts will not be eager to accept a wave of transfer students in the fall (see Profs. James E. Ryan and Michael Heise's article about the reasons why), and the Accountability Act does not require them to do so.
Fulfilling the predictions of articles by blog co-editor Derek Black, Robert Garda, and others about on the potential impact of school voucher programs on low-income and minority students, there is no golden ticket out yet from a failing school district. Read more here.
Congress recently turned to reauthorizing No Child Left Behind (the Elementary and Secondary Education Act) and the Brookings Institution has posted Special Education: The Forgotten Issue in No Child Left Behind Reform suggesting what legislators should change about assessments of students with disabilities. After IDEA required special education students to be included in state assessments, the Department of Education allowed states to modify assessments for some students with disabilities, but also placed caps on the number of students whose scores could count as proficient on modified (2%) and alternate (1%) assessments. Brookings suggests that in the reauthorization legislation that "Congress should deauthorize modified assessments and reauthorize alternate assessments but without a cap." The article notes that
[s]ome schools inappropriately administer modified assessments to students who could achieve proficiency on the general test to artificially raise scores. However, many of those students rightly take an alternate assessment. The assessment of students with disabilities will remain difficult until researchers gain a better understanding of all cognitive disorders. Until then policymakers will have to balance setting high expectations without overburdening schools and students.
Read Joshua Bleiberg and Darrell M. West's article here.
A New Hampshire judge ruled yesterday that the state's Education Tax Credit Program violates Article 83 of the state constitution, which forbids public funds going to religious schools. In Duncan v. New Hampshire, Judge John Lewis held that tax credits for private and home schooling were constitutionally permissible but the part of the law that allows funds to go to religious institutions could not stand. The education tax credit law has been a contentious issue from its beginning and passed last year over a veto from then-Gov. John Lynch. Supporters of the bill argue that the tax credit money is supplied by charitable donations from New Hampshire businesses and not from public tax money. The tax credit bill allows businesses to receive an 85% tax credit for donations to nonprofit scholarship organizations. The organizations then award scholarships up to $2,500 to primary and secondary school students to attend non-public schools or public schools outside of their districts, or they may use the award for home schooling. The law does not bar scholarship recipients from using the money for tuition at a religious institution. Three organizations, the ACLU, the New Hampshire Civil Liberties Union, and Americans United For Separation of Church and State criticized the tax credit as a "neo-voucher" program that diverts money from state coffers to religious institutions. Read more at the Concord Monitor here.
For-profit institutions are again being taken to task in Congress, this time for aggressively enrolling veterans without assessing if they are ready to take on the level of work required to complete the degrees. Cory Weinberg reports today in the Chronicle of Higher Education that Senators Richard J. Durbin (D-Ill.) and Jack Reed (D-RI) are urging Congress to place more stringent accreditation standards on for-profits as they believe they are luring veterans in to take advantage of getting a bigger piece of federal dollars. Some for-profit educators are accused of using veterans to increase their enrollment numbers, but are less forthcoming about the percentage of their students who actually finish their degree programs. Sen. Harkin, who has a web page on the subject, calls the military-student graduation rate in for-profit schools "dismal." Law makers are seeking to improve the standards of these for-profits if they want to stay eligible for Department of Defense tuition assistance dollars. Read more here.
-T. R. Paige, MC Law
Tiffany R. Paige will be contributing to Education Law Prof. Blog as a guest blogger this summer. Expect to see posts from her in her areas of interests--higher education, federal policy, and constiutional law. Tiffany is the Director of Diversity and Outreach for Mississippi College School of Law where she leads the marketing and promotional efforts of the admissions process for minority markets. She has a great interest in education law and is currently pursuing a Ph.D. in Higher Ed Administration from the University of Southern Mississippi. Welcome Tiffany!
One of the most disturbing news stories in the education world this spring has been the announcement of massive school closings in cities like Chicago and Philadelphia. Chicago plans to close 50 schools and programs. Last Friday over 850 school district employees in Chicago received layoff notices. In Philadelphia, the current plan is to close 23 schools and it is estimated that over 3,000 employees will be fired. The district is trying to deal with a $1.35 billion deficit and falling enrollments. One angle that is being debated in the school closings is the role of charter schools in creating these crises. The enrollment in traditional public schools is falling as students move to charter schools. As of 2012, 23 percent of students in Philadelphia attended charter schools. Although charter schools are public schools, it appears that the warnings sounded about charter schools by education experts like Diane Ravitch may be playing out in real life in these budget crises. The Washington Post recently featured an editorial by the Rev. John Thomas, a professor at Chicago Theological Seminary, arguing "the schools are gone because they have been replaced by charter schools, the darlings of politically well-connected school reformers making a profit on tax money while public officials eliminate the inconvenience of teachers unions." Other articles on charter schools and public school closings can be found here and here. The school closure crisis is leading us to an intensifying and heated debate over whether charter schools harm the overall health of our public school systems.
I want to welcome Danielle Holley-Walker, Associate Dean, University of South Carolina School of Law, to the blog today. I hope she will join us regularly. Danielle has written on various topics in education, but has focused particularly on charter schools and choice in several articles. One article specifically analyzed charter schools in New Orleans. See The Accountability Cycle: The Recovery School District Act and New Orleans' Charter Schools," 40 Conn. L. Rev. 125 (2007). Here are her thoughts on the recent New York Times article:
On this past Sunday the New York Times ran an article entitled, "Can School Reform Hurt Communities?" The article explores the impact on the black middle class in New Orleans, a group that includes many public school teachers. The article notes that since Hurricane Katrina 7,500 school employees have been fired. Many of these employees have gone to charter schools that now make up 80% of the city's schools. The reporter argues that the charter school atmosphere can be challenging for veteran teachers due to the "bias toward a youthful kind of idealism." The article raises a lot more questions than it answers.What kinds of burdens exactly do black middle class teachers suffer from in the new New Orleans school landscape? How many of the 7,500 were veteran black teachers? Is there any evidence that veteran teachers suffer in the charter school system? The article offers a new angle on the possible detriments of a school reform movement that relies on charter schools, but there aren't enough specifics in this article to figure out if there is evidence of harm to the black middle class.
Monday, June 17, 2013
In Doug C. v. State of Hawaii Dep’t of Education, the Ninth Circuit held last week that the Hawaii Department of Education violated the Individuals with Disabilities Education Act (IDEA) by holding a student’s annual individualized education program meeting without the participation of a parent. In the case a school was attempting schedule an IEP meeting for Spencer C., which the father (Doug C.) had rescheduled several times. (The court says that Spencer C.'s mother found the IEP meetings to stressful to attend.) The school got fed up and held the IEP meeting without either of Spencer C.'s parents. The Ninth Circuit found that Hawaii's Department of Education denied Spencer a free appropriate public education by holding the IEP meeting without his father even though the parent did not affirmatively refuse to attend. The circuit court has remanded the case for the district court for further proceedings about Doug C.'s entitlement to tuition reimbursement under IDEA. Read the court's opinion here.
Also last week, a panel of the Ninth Circuit Court of Appeals heard arguments in two related cases that challenge the Hawaii Department of Education's refusal to provide special education services for students up to age 22. In A.D., ex rel. L.D. v. Department of Educ., Hawaii, No. 12–00307 (D. Haw. Oct. 25, 2012), the 20-year-old plaintiff sought to remain at an academy that he had attended since age seven. In the other case, R.P.-K. ex rel. C.K. v. Department of Educ., Hawaii, No. 10–00436, (D. Haw. March 30, 2012), class action plaintiffs want Hawaii DOE's to provide special education services in its high school equivalency program. Both suits stem from the conflict between IDEA and a Hawaii statute that bars students from attending public school if they are 20 or older on the first day of the school year. Hawaii allows students older than 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten adult community schools, but does not provide special education services in those programs. IDEA requires states to provide special education and related services in public school until a student reaches age 22, but exempts states that do not provide general education services past age 18. The Ninth Circuit will be asked to decide if Hawaii violated IDEA when because it ends special education services at age 20, even though non-disabled students between the ages of 20 and 22 may be receiving "the functional equivalent of a secondary school education” in adult community schools.
Attorneys for Hawaii counter that IDEA applies to school-age children in traditional secondary schools, and adult community diploma programs are not covered under IDEA’s definition of public education. Separate district courts agreed with Hawaii’s position, finding that the plaintiffs failed to show that a reasonable accommodation existed that would allow them to benefit from adult education programs. The district courts also rejected the plaintiffs’ Americans with Disabilities Act and Rehabilitation Act claims.
The cases will be watched closely, as one district court in Hawaii found in 2009 that the state does not consistently follow its stated practice of terminating students’ education at age 20. In B.T. ex rel. Mary T. v. Department of Educ., Hawaii, 637 F. Supp. 2d 856 (D. Haw. 2009), B.T., a 20-year-old student with special needs, sued Hawaii’s Department of Education claiming that terminating his special education services at age 20 violated IDEA and denied him a free and appropriate public education. The district court in B.T. agreed, finding that 111 students had been allowed to enroll in secondary schools after age 20. The federal district courts in Hawaii have rejected comparison of the "age-out" cases to B.T., because in B.T., school principals had “approved every single overage general education student and barred almost every single overage special education student.” B.T., 637 F. Supp. 2d at 865. In the R.P.-K case, the district court found that there was not the evidence of "blatant discrimination" present in the B.T. case. In the two cases heard last week, four (non-disabled) students are said to have enrolled in the adult community diploma program. (In the 2009-2011 school year, 2009–2010 school year, 51 general education students were ineligible to continue their public high school education because they were 20 or over; only one student enrolled in a community school for adults for the 2010–2011 school year).
Click the case name to read the district court's opinion in R.P.-K. ex rel. C.K. v. Department of Educ., Hawaii and the opinion in A.D., ex rel. L.D. v. Department of Educ., Hawaii.
This weekend, a New York Times article article cautiously took sides in the debate over the charterization of the New Orleans School District. Its position, however, was relatively unique. It posited that charters have produced modest improvements in student achievement, but have been offset by harms to the core of the black middle class: public school teachers. Rather than jump into a very localized issue as though I know something--which I am prone to do--I contacted Brenda Shum of the Lawyers' Committee for Civil Rights Under Law. She is counsel in a class action special education lawsuit against charter schools in New Orleans, which the Times referenced. Here is Brenda's take:
[F]or those of us committed to equity in education, the experience of New Orleans post-Katrina previews both the opportunities and challenges facing public education everywhere. Sarah Carr [author of the NY Times article] raises important concerns related to the focus on school-improvement which has characterized education reform in New Orleans. It is certainly true that the unprecedented rise in charter schools has transformed the education landscape in Orleans Parrish. Many have tried to interpret the role that these charters have played in the increases in student achievement for students in New Orleans. While some may attribute these modest increases in student performance to increased choice, charters have certainly not eliminated the churn which contributes to the destabilization of a student’s educational experiences in Orleans Parrish. Each year, the number of charters has continued to increase, but every year those same charters may experience changes in their charter authorizer, their teachers and staff, their grade configuration, and their location. The “OneApp” enrollment system introduced this past school year centralizes the application process and timeline for schools in New Orleans, but parents continue to report confusion and difficulties in enrolling their children in school. There may be a fundamental disconnect between the educators in Orleans Parrish and the community they serve, but it is also clear that all public schools – both traditional and charter – must acknowledge that the complexity of issues facing students in New Orleans, and how frequently these issues intersect with race and class. The disparities in educational opportunity reflect and reinforce the inequities in the communities around them. But I suspect that many of the parents we have encountered and worked with would strongly disagree with Andre Perry’s observation that their communities are “weaker,” and would likely assert that they are more committed and determined than ever to the future of public education in New Orleans.
Does pre-k save schools money in the long run? The research says the easy answer is yes. Now private fund managers are getting in on the "action." Last week, the New York Times posted an interesting article about Goldman Sachs lending 4.6 million dollars to Salt Lake City's school district for it to fund new pre-k services. The article is short on details, but it suggests the investment is a gamble by Goldman Sachs. Goldman Sachs will lose money if the program is unsuccessful and make money if it is successful. Success is defined by whether the school will save money by offering pre-k, due to lowered special education and other service costs as students progress through later grades. The NY Times article does not specifically indicate what losing money means for Goldman Sachs' investment: the loan doesn't have to be paid back, the loan doesn't have to be paid back with interest, or something else. By making money, it means Goldman will get 5% interest plus some other success fees.
Yesterday, even more facts came out. An AP story reports that Goldman Sachs stands to get 5% interest plus 40% of any savings the district reaps. Currently, Salt Lake City spends an additional $2600 per pupil per year on students enrolled in special education. Based on the most recent data I could find, Salt Lake City enrolls 2991 students in special education. Of course, a substantial portion of these students are likely in special education for a very good reason and better pre-k services would not have affected their eligibility. But for the sake of argument, let's assume that with better early education opportunities, 30% would have avoided special education (at least during the first 6 years of schools, which is the relevant period for Goldman Sachs). This means the potential pot of savings is roughly $2.33 million, 40% of which is $933,000 (Goldman's cut). Not bad for an initial loan of $4.6 million, although it is not clear whether this is the per year loan amount, a one year loan, or something else. The deal could be even sweeter for Goldman Sachs if the loan is to cover multiple years of pre-K, thus giving them a cut of the savings on more cohorts of students. If this were the case, their payout would multiply.
I find it hard to criticize the expansion of pre-k, regardless of the circumstances. The benefits are priceless for the students and families receiving it; who cares if Wall Street is picking up the tab. But I am still ambivalent/concerned. First, pre-k is not a gamble. We know it works, so why don't we--the government--fund it on our own dime and reap all the savings? If this is a state or district that can't or won't fund pre-k on its own and Wall Streets puts them on the right track with seed money, I suppose it is a win-win situation. But I am skeptical that Salt Lake can't do this on its own. Second, while Wall Street is not in the business of losing money, it is in the business of taking risks. Is it possible that the availability of Wall Street money might incentivize risky educational programs outside of pre-k? Wall Street can afford losses in one district so long as other districts pay out. Can the districts and communities who lose afford these losses? Maybe so, if the payback terms are favorable; maybe not, if the districts go just further into debt and receive no benefit for doing so. On the other hand, if districts are savvy and stick to pre-K, I suppose there is very little risk for them or wall street.
Friday, June 14, 2013
For those who missed it, I wanted to highlight a new article by Kristi L. Bowman, State Takeovers of School Districts and Related Litigation: Michigan as a Case Study, 45 Urb. Law 1 (Winter 2013). This article looks at government takeovers of school districts, using Michigan as a case study. In it, the author looks at:
[t]he question of the proper role of a state in school districts' fiscal crises is an
important one. Like Michigan, numerous states have been grappling with that same question--Indiana, Missouri, and Rhode Island, for example. Accordingly, learning about what has been happening in Michigan provides an exceptional opportunity for legislators, attorneys, academics, and advocates from across the country to reflect on how their own states should assist school districts in fiscal crisis, and when state intervention goes too far. Part I of this paper briefly discusses the various legal mechanisms for state intervention in school districts' and other municipalities' fiscal crises; it also analyzes Michigan's 1988, 1990, and 2011 takeover statutes and the litigation and other public opposition to those statutes. Part II focuses on four substantial shortcomings contained in Michigan's 2011 takeover statute, which was ultimately rescinded by Michigan voters.
A rich scholarship on implicit bias is constantly expanding, but most of what I have read in the past proceeds at a general level or focuses on contexts other than education, such as policing, employment, juries, etc. I am glad to see that the Kirwan Institute's new report, State of the Science: Implicit Bias Review 2013, includes an entire chapter devoted to implicit bias in education. The chapter begins:
Implicit bias can permeate educational settings in several forms, all of which can yield disadvantageous consequences for students of color. Teacher expectations of student achievement, teacher perceptions of students behavior, and students' self-perceptions are three key themes highlighted in the literature.
In other words, the reports indicates that implicit bias plays a role in the black-white achievement gap, the disproportionate disicpline of minority students and the "school to prison pipeline," and students aspirations.
The Missouri Supreme Court recently upheld the constitutionality of a state statute that requires failing school districts to pay tuition when their students transfer to new districts in Breitenfeld v. School District of Clayton, No. SC92653 (Mo. banc June 11, 2013). In the case, parents of children in the St. Louis Public School district (that lost its state accreditation in 2007, but has regained provisional accreditation) invoked Missouri’s “Unaccredited District Tuition” statute (Mo. Rev. Stat. § 167.131). The statute requires a failing school district to pay the per pupil cost for educating its students who transfer to an accredited school district.
Everyone involved objected—the St. Louis District, which would have been required to pay almost $50,000 for the Breitenfeld children to attend the neighboring Clayton school district; the transfer district Clayton, on the grounds that the statute transfer law is an unfunded, and therefore unconstitutional, state mandate; and intervenors. No St. Louis students had transferred using the statute because the Clayton district had decided to not to accept them until the litigation was resolved. (Breitenfeld’s children were in private school while they lived in the St. Louis school district and then paid private tuition to attend a Clayton school during the litigation.)
Now that the case is decided, school districts that adjoin failing school districts face the potential for thousands of new students showing up this fall. It is unclear if that will happen, as some parents in failing school districts face daunting logistical problems to transfer their children to a new school district. Missouri currently has three unaccredited school districts - Kansas City and the smaller suburban St. Louis districts of Normandy and Riverview Gardens. Read the court’s opinion here.
Thursday, June 13, 2013
Charter Schools, Vouchers, and the Public Good
I recently had a conversation with an acquaintance about a new school voucher law in our state. He was bullish about the benefits of school choice and had the optimistic perspective that a rising tide lifts all boats. I wish that I had had Derek Black’s new essay, Charter Schools, Vouchers, and the Public Good (Wake Forest Law Review, forthcoming), to refer to during that conversation. (Professor Black is a co-editor of this blog.) Professor Black examines the societal impact of charter schools and the consequences of assigning a vital public function to lightly-regulated independent groups. He reminds us public schools were created to realize the common good of an educated citizenry, and public funding allows us to pool our resources to realize that good. Without careful implementation of charter school programs, those resources will be peeled away to go to schools that may have little commitment to achieving diverse student populations. By cherry-picking students who can boost assessments of a charter school’s efficacy, such schools could exacerbate de facto segregation, isolationism, and inequality. See Professor Black’s essay Charter Schools, Vouchers, and the Public Good here.
Judicial Clarity: Giving Teeth to the Application of Federal Disability Laws in Charter Schools
Another author takes on the issue of charter schools, discussing how a charter school program can “reconcile its mission and limited resources with its obligations under federal disability laws.” Sarah Wieselthier (law clerk to Law Clerk to the Hon. Rachel N. Davidson & the Hon. Edith K. Payne, Superior Court of New Jersey), Judicial Clarity: Giving Teeth to the Application of Federal Disability Laws in Charter Schools, 2013 B.Y.U. Educ. & L.J. 67 (2013). Courts are essential, Wieselthier argues, “to ensure that the rights of students with disabilities are protected when they seek to take advantage of the innovative educational opportunities charter schools afford to their non-disabled peers.”
The Unfinished Journey--Education, Equality, and Martin Luther King, Jr. Revisited
Taunya Lovell Banks (University of Maryland) discusses the critical need for “equally resourced, racially and economically diverse public schools classrooms throughout America,” in The Unfinished Journey--Education, Equality, and Martin Luther King, Jr. Revisited, 58 Vill. L. Rev. 471 (2013). The article reproduces Professor Banks’s Martin Luther King, Jr. lecture in January at Villanova University School of Law. Professor Banks notes the retrenchment of segregation in American education and says that part of that failure is that predominately non-white schools have been abandoned by the upper and the middle class. With these factors still present, the nation cannot realize the potential of Brown v. Bd. of Education.
On “Unease” And “Idealism”: Reflections On Pope Benedict XVI's Educating Young People In Justice And Peace And Its Message For Law Teachers
In her new article Lucia A. Silecchia, (Catholic University, Columbus School of Law) discusses what law teachers can learn from Pope Benedict XVI's 2012 message, Educating Young People in Justice and Peace. On “Unease” And “Idealism”: Reflections On Pope Benedict XVI's Educating Young People In Justice And Peace And Its Message For Law Teachers, 27 Notre Dame J.L. Ethics & Pub. Pol'y 569 (2013).The obligation of teaching, Pope Benedict said, extends "beyond mere imparting of knowledge and toward living a life that offers effective witness to all that which they hope their students will become.” Professor Silecchia applies that message to modern legal education: that law schools should seek more than developing technical ability and instead inculcate values of service and becoming effective witnesses for peace and justice.
School's Out Forever: The Applicability of International Human Rights Law to Major League Baseball Academies in the Dominican Republic
To recruit young prospects to play in the major leagues, Major League Baseball runs educational academies in the Dominican Republic. Those academies are structured to help players assimilate to life in the United States. But, just as in any sport, most aspiring players do not make it to the pros. The many young players left behind can end up returning to a life of poverty in the Dominican Republic without a practical education. Ryan S. Hanlon tackles this issue and the potential application of international human rights law to solve it in his student comment, School's Out Forever: The Applicability of International Human Rights Law to Major League Baseball Academies in the Dominican Republic, 26 Pac. McGeorge Global Bus. & Dev. L.J. 235 (2013)).
Late last year, the ACLU filed an adminstrative complaint with the Office for Civil Rights regarding a Birmingham, Alabama, middle that operated a sex segregated program. The district just entered into an agreement with OCR to end the sex segregation. The facts sound like something from a bygone era. Cribbing from the ACLU release:
Huffman [Middle School] had been separating boys and girls in every grade for all core curriculum classes, homeroom and lunch, on the theory that there are "hard-wired" differences between boys' and girls' brains requiring them to be taught differently. . . Pop theories of hard-wired brain differences between boys and girls have been debunked by neuroscientists, psychologists and educational researchers. Even Birmingham CSD testing researchers were unimpressed with the results of sex separation at Huffman. Analysis of student test results in the areas of reading and mathematics at Huffman and other Birmingham schools that had experimented with sex separation showed no clear pattern of improvement after the initiation of single-sex programs, and the researchers concluded: "There is no definitive proof that the percentage of students scoring proficient is significantly impacted by students being taught in same gender classroom settings.
More on this story here.
Last week I posted on legislative efforts to eliminate virtual charters in some states and asked whether the gig is up. My skepticism toward virtual charters still persists given the potential perverse incentives, but Aaron Saiger's scholarship (here) gives me pause. He suggests that virtual charters or virtual schooling in general might play an important integrative function. I hadn't thought fully through that possibility until read I today's story from edweek about large urban school districts creating their own virtual schools. The story indicates that the point of these virtual schools is not to help students exit the public school system but to bring those who have already left back into it. White flight in urban centers has long been a serious precipitant of school segregation.
The missing link in the current story of urban virtual schools is an explanation of how these students will be drawn back into physical public schools or online environments that offer the benefits of diversity. If they can, then they seem worthy of exploration. If they are just attempts to retain a bigger portion of state education funds by keeping more students on the books, it is hard to distinguish them from the state's virtual schools or virtual charters.
This February, the Arkansas legislature passed legislation allowing faculty and staff to carry concealed guns on public college campuses if they had concealed-carry permits. Last week, Arkansas's two major public university systems--the University of Arkansas and Arkansas State University--declined the state legislature’s invitation to permit non-law enforcement staff to carry guns on campus. Several smaller Arkansas colleges have announced plans to follow UA and ASU’s campus gun ban. Arkansas’ right-to-carry law allows schools to opt out if they periodically review the bans. Arkansas is one of 23 states that allow concealed weapons to be carried on a college campus if the institution permits it. To learn more, read the National Conference on State
Legislatures’ report Guns on Campus.
Last week, by a vote of 9-5 in Morrow v. Balaski, 2013 WL 2466892 (3d Cir. 2013), the en banc panel of the 3rd Circuit rejected a high school student's claim that the school had a duty to protect her from bullying. The plaintiff's claim was an uphill battle from the start, as her claim was premised on substantive due process. The Supreme Court in DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189 (1989), held that “[a]s a general matter, ... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Most will remember that DeShaney involved state welfare services and their failure to pull an infant out of his father's home. The Court did allow, however, that the state might have a duty under other contexts, most notably when the state had a custodial relationship with the victim.
Reasoning that schools have that sort of custodial relationship with students, the plaintiff in Morrow pressed her substantive due process claim. The court, however, found her argument unavailing against other school cases rejecting such a claim. The court also relied on Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), which I have always found to have curious reasoning. In Veronia, the Court relies on the custodial relationship/in parentis loco to justify its search of students in the form of drug tests, but then states: “[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect.’" On this point, the Supreme Court wants to have its cake and eat it to. I suppose the benefit of being the Supreme Court is that you can.
On a related note, this decision along with other circuits taking similar positions cut heavily against a theory articulated in A Right to Learn?: Improving Educational Outcomes Through Substantive Due Process, 120 Harv. L. Rev. 1323 (2007), in which the article argued that the state's restrainst on students' liberty and the custodial relationship ought give rise to some substantive due process right to education.
Morrow, theoretically, would make for a good case for the Supreme Court to revisit these issues, but I don't see much interest in the Court taking this case or rendering a positive decision for students.
Wednesday, June 12, 2013
The Chicago Public Schools just issued an action plan for dealing with the district's academic and fiscal problems. The plan is centered on five "pillars":
Pillar 1: High Standards, Rigorous Curriculum and Powerful Instruction
Pillar 2: Systems of Support that Meet Student Needs
Pillar 3: Engaged and Empowered Families and Community
Pillar 4: Committed and Effective Teachers, Leaders and Staff
Pillar 5: Sound Fiscal, Operational and Accountability Systems
The plan has already drawn criticism as being short on specifics and long on puffery. Others defend the plan as building trust with stakeholders and as being consistent with district CEO's prior commitment to not close any more schools for five years and to rebuild and strenghten the ones they have during that period. Decide for yourself who is correct, but the challenges are clear: a billion dollar shortfall, quality of education, graduation and discipline rates, and competitive pressures from the outside. The Chicago Sun Times has more on the story here.