Wednesday, August 21, 2013

Students' State Constitutional Rights to Education versus Teacher Seniority

A new article by Jared S. Buszin, Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy, 62 Emory L.J. 1613 (2013), applies state constitutional education rights to local district practices.  His first premise is that school finance litigation and its focus on money has not made a significant difference in equalizing educational opportunities and certainly has not closed the achievement gap.  His second premise is that school finance principles should apply to local district policies just as they do state wide policies.  I would quible some with the breadth and implications of his first claim, but agree entirely with his second claim.  In fact, I devoted significant time to the same premise in Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012), because my entire legal argument that state constitutions placed limits on local student assignment policies hinged on it.

Buszin, however, puts the premise to a different task.  He argues that access to quality teachers is the most important "skills based education input" available to schools and that the "last in first out" rule of teacher layoffs works to protect seniority and ignores teaching quality.  He points to examples like a teacher of the year being layed off and analyzes a trial court decision in California that enjoined a district's teacher layoff policy as interfering with students' fundamental right to education.  He then posits how the theory might apply in other states.

In the end, I believe Buszin is a little too dismissive of the importance of money and the impact of school finance litigation, and I am a little leary of pitting student rights against teacher rights given the attack by conservatives and some moderates on teachers over the past two or three years (even though I am sympathetic to his point about student rights coming first).  Those concerns, however, are overshadowed by a strong and creative argument for extending school finance precedent to new contexts, and his ability to apply it to a very precise context.  For those interested in analogous arguments, it is worth the read.


August 21, 2013 in Equity in education, Scholarship, School Funding, State law developments | Permalink | Comments (0)

Tuesday, August 20, 2013

Alabama Choice Law Under Assault

Splc 2 Capture

Earlier this summer LaJuana posted on Alabama's voucher/tax credit program (here and here) that would allow students to transfer out of failing schools and give them  a $3500 tax credits toward tuition at a private school or transfer costs to another public school.  LaJuana pointed out the disparate impact and flaws in the law. 

Her concerns must have also rang true with the Southern Poverty Law Center (SPLC).  SPLC filed a lawsuit against the state yesterday, alleging that the law created two classes of students: "those who can escape [failing schools] because of their parents’ income or where they live and those who cannot."  SPLC argues that this violates equal protection.  I was hoping to get some hint of SPLC's specific legal theory in the complaint, but couldn't entirely surmise it.  Some of the facts suggest an intentional discrimination theory, while others seem premised on rational basis review (presumably rigourous rational basis under Plyler v. Doe). 

SPLC's press release is after the break.



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August 20, 2013 in Charters and Vouchers | Permalink | Comments (0)

ED Warns Three States Warns that Their NCLB Waivers Are at “High Risk”

The Department of Education has warned Kansas, Oregon, and Washington that their methods of evaluating teachers place them at risk of losing their No Child Left Behind Act waivers. While all three states’ waivers have been approved for this school year, the ED sent the three states letters last Wednesday stating that their NCLB waivers are at “high risk” if they fail to meet federal compliance standards next year. Kansas, Oregon, and Washington are among 40 states, D.C., and eight California districts that have received waivers from NCLB’s most demanding requirements, particularly the Adequate Yearly Progress measurement. Kansas, Oregon, and Washington got in trouble by having teacher evaluation plans that did not meet federal NCLB waiver standards. The ED says that if it takes the unusual step of withholding money for noncompliance with NCLB waiver agreements, the cuts will likely be from administrative funds rather than Title I programmatic grants. Read more at Education Week here.


August 20, 2013 in Federal policy | Permalink | Comments (0)

Monday, August 19, 2013

40 Years of Landmark School Speech Cases Symposium

Last fall, the University of Missouri-Kansas City hosted a symposium that included various litigants and attorneys who were actually part of the Supreme Court's landmark student speech cases.  It also included leading student free speech scholars.  The articles from the the symposium are now available on westlaw.  Below are abstracts.



 Abstract: “Part I of this essay provides a basic review of the Supreme Court's significant rulings about the free speech rights of students. Part II looks at how the lower courts continue to be divided over difficult questions about the constitutional analysis required by Tinker and the Supreme Court's other key precedents on student speech. In particular, it illustrates the uncertain and disputed character of this area of First Amendment law by examining the varying approaches that lower courts have used in a line of cases about student displays of the Confederate flag. Part III
proposes that courts can make a small step forward by explicitly making intellectual seriousness a legitimate factor for school officials to consider in deciding what student expression to permit or prohibit.”

 Emily Gold Waldman, No Jokes About Dope: Morse v. Frederick’s Educational Rationale, 81 UMKC L.Rev. 685 (Spring 2013)

 Abstract: “This piece begins with a “protective” reading of Morse, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens' dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools-as part of teaching students about the gravity of drug use- should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why Justice Stevens' argument-that Frederick's message was “stupid” and that he was just seeking attention-was wholly unconvincing to the majority, which was disturbed by those very aspects of Frederick's speech. It also helps to explain Justice Alito's concurrence, in which he distinguished between Frederick's speech and any speech that could “plausibly be interpreted as commenting on any political or social issue.” What harmed Frederick was that his speech minimized the seriousness of drug use while lacking the redeeming value of conveying a genuine message. In Justice Alito's eyes, a thoughtful argument for legalizing marijuana would deserve more protection than Frederick's banner, regardless of whether the former might actually have greater potential to persuade at least some students to experiment with it. I conclude with some reflections about why the Court left Morse's educational rationale in the subtext, rather than explicitly articulating it, and what this suggests for how the Supreme Court is approaching student speech cases.”

 Andrew W. Kloster, Speech Codes Slipping Past the Schoolhouse Gate: Current Issues in Student’s Rights, 81 UMKC L.Rev. 617 (Spring 2013)

 Abstract: “The areas outlined in this article are not the only active areas in the struggle for students' rights. Courts and school administrations are still grappling with the effects of disappointing Supreme Court decisions in Christian Legal Society v. Martinez and
Garcetti v. Ceballos. And, of course, even plainly unconstitutional speech policies exist at many
schools, requiring perpetual vigilance on the part of First Amendment advocates. But the areas outlined in this article are particularly unsettled. In Part II, this article will address the question of First Amendment limitations on off-campus, out-of-school speech. Part III examines the approaches to off-campus, out-of-school speech by the courts. In Part IV, this article will explore the ways in which uneven qualified immunity jurisprudence provides a patchwork of legal remedies across the nation. Part V will address some ways in which public schools, particularly at the college level, do an end-run around the First Amendment by outsourcing speech restriction to third parties. These three issues represent the cutting edge of today's students' rights advocacy. The
root of most of the problems is largely a lack of clear guidance by higher courts. American schools are the flowers of democracy; expression there must prosper if we are to have confidence in the legitimacy of our democratic institutions.”

August 19, 2013 in First Amendment, Scholarship | Permalink | Comments (0)

State Briefs

Alabama Conservatives Push Cohorts to Support Common Core

Cotton State conservatives (self-described) scolded conservatives for critizing the Common Core standards in their Sunday editorial, School choice plus higher standards: That's a recipe for academic success. Chester E. Finn Jr. and Michael J. Petrilli, respectively president and executive vice president of conservative think tank Thomas B. Fordham Institute, wrote that the Common Core standards promote educational progress, fiscal responsibility, and "traditional education values." 

Alaska Releases School Ratings Under New Accountability System

Alaska revealed its new testing accountability system, the Alaska School Performance Index, on Friday. The Index ranks schools between five and one stars, with rankings partially based on students' performance on state proficiecy tests. For schools that educate up to 12th grade, graduation rates and college and career readiness were also factors in ranking.  Schools receiving three or fewer stars and schools where graduation rates have dropped must implement improvement plans.

Indianapolis Schools Seek Information about Charter School Takeovers

Indianapolis Public Schools leaders filed a public records request Thursday for information about the takeover of its four schools ordered by former State Superintendent of Public Instruction Tony Bennett. In 2011, Bennett ordered that five schools in Indianapolis and Gary be turned over to charter school groups. The charter school companies that received contracts all contributed to Bennett's campaign for superintendent, helping him to raise nearly $1 million. (His oppenent for Indiana superintendent raised about $115,000.) One of charter schools operator, Charter Schools USA, later hired Bennett's wife as a regional director in Florida. The request follows recent revelations that Bennett raised grades for charter schools under the state's A-F school grading formula while branding existing schools as failing. Read more here.

Ohio District Bars Seventh-Grade Girl from Playing School Football

An Ohio school district has barred 12-year-old Makhaela Jenkins from playing football for her school even though she plays youth football outside of school. Liberty Union-Thurston District superintendent Paul Mathews says that the district is not violating Title IX because its sporting opportunities for female students do not include contact sports. Makhaela and her supporters say that gender should not be a barrier to school teams. Read more here.


August 19, 2013 in State law developments | Permalink | Comments (0)

Conservatives’ Two Schools of Thought about Common Core May Cost Jeb Bush

Common CoreConservatives are lining up for and against Common Core, and Frederick Hess, writing for the National Review Onlineis predicting that the testing standards may become a liability for former Florida Gov. Jeb Bush if he runs for president. Gov. Bush is the face of the testing accountability reform movement, and as Chair of the Foundation for Excellence in Education, he has guided the GOP’s education reform platform since he left office in 2007. Now as a 2016 putative GOP nominee (should the party finally convince him to run), his support of Common Core might become a sticking point for conservatives as Massachusetts’ health care reform was for Mitt Romney in 2012. Gov. Bush finds himself in an awkward position as the star of accountability testing reform while having to fend off fellow conservatives who decry Common Core as an Obama administration scheme to control state education, even though Education Secretary Arne Duncan has dismissed such claims as coming from the “lunatic fringe.” Gov. Bush's education reform credibility was also dented a bit by the embarrassing scandal of one of his “Chiefs for Change,” Florida Education Commissioner Tony Bennett. Bennett resigned this summer from his Florida post after emails written while he was Indiana’s education superintendent contained orders to raise the grades of a charter school owned by a wealthy GOP donor. Gov. Bush was clearly annoyed by the grade-change incident but not at Bennett. In a defense of Bennett in the Miami Herald, Gov. Bush predictably blamed the far left—and somewhat unexpectedly—also criticized the “political right” for the controversy. 

Hess says that Gov. Bush’s failure to convince far-right conservatives that the Common Core standards are worthwhile or to distance himself from the Obama administration’s support of them may cost him dearly should he vie for the 2016 candidacy. Gov. Bush doubtless pitched the Common Core standards last week at the American Legislative Exchange Council’s (ALEC) education seminar and will again on September 3rd at his annual National Summit on Education Reform. A week later, as the chair of the Constitution Center, Gov. Bush will present the 2013 Liberty Medal to Hillary Clinton for her work as Secretary of State, an event that is sure to raise far-right conservatives’ fur again.


August 19, 2013 | Permalink | Comments (0)

Friday, August 16, 2013

ACLU Files Voting Rights Suit for Native American Voters in School Board Elections

via the ACLU of Montana:

People-VotingThe ACLU of Montana is suing the Wolf Point School District on behalf of seven Native American voters who are being denied the equal right to representation on the high school board because of discriminatory voting districts. As the voting districts stand now, each resident of majority white District 3 has far more say on the school board than each resident of majority Native American District 45 in clear violation of the Voting Rights Act and the Fourteenth Amendment.

Wolf Point High School District 45A unites School Districts 3 and 45. With only a 2010 Census population of 430 people, District 3, with a majority white population, elects three members to the Wolf Point High School Board - one board member for every 143 residents. District 45, which is majority Native American, had a 2010 Census population of 4,205 and elects five members - 1 board member for every 841 residents. "This clearly violates the principle of one person, one vote, and creates a school board where white members of the district are overrepresented and Native Americans are underrepresented," said ACLU of Montana Legal Director Jon Ellingson. "The school district has an obligation under both state and federal law to redraw voting districts every 10 years based upon accurate population numbers. It's long past time for the district to do that."

Read the complaint here.


August 16, 2013 in News, State law developments | Permalink | Comments (0)

Legislative Slip Gives School Choice Vouchers to Students Already in Private School

Vouchers are generally pitched to taxpayers as a way to give children at troubled public schools a chance at attending better ones. That was how Wisconsin Gov. Scott Walker pitched the idea that the state expand its voucher program beyond Milwaukee and Racine. But the surprise is the state’s vouchers are not reserved for students in public schools, nor will public school students get priority for them. Sixty-seven percent of the voucher applications for this fall are from parents who are already paying private school tuition. According to the Associated Press, “those [lawmakers] closest on the deal were apparently unaware that the final version did not ultimately give public school students preference over those already in private schools.” Public school advocates in the legislature argued against expanding the voucher program because taxpayer dollars could be funneled to parents whose children already attended private school. Their concerns seem to be borne out as public money is now going directly to private religious schools. The state legislature has expanded the state’s school voucher coverage to 25 private schools, with a cap of 500 students. The Wisconsin Department of Public Instruction received 2,400 voucher applications even with an abbreviated application process from August 1-9. Half of the vouchers will be placed at private schools by random assignment and half through a lottery system.


August 16, 2013 in State law developments | Permalink | Comments (0)

Mark Weber on Class Certification Denial in Chicago Special Education Cases

Derek has provided Education Law Professor blog readers with updates on the school closing litigation in Chicago. In two cases,  plaintiffs argue that the planned closing of 49 public schools will harm children with disabilities and violate of the Americans with Disabilities Act. The court denied motions to dismiss the cases, but last week also denied motions to certify the cases as class actions. Much of the early right-to-education litigation that led to the adoption of the Individuals with Disabilities Education Act. such as Mills and PARC, consisted of class actions, and class actions have been instrumental in developing special education law since adoption of the Act. But Wal-Mart v. Dukes, 131 S. Ct. 2541 (7th Cir. 2011), appeared to narrow the application of the federal class action rule, and courts since that time have struggled with whether class actions will be permitted in cases that address the identification, evaluation, and placement of children with disabilities and other special education issues. Important decisions include the Seventh Circuit’s Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), vacating a class action decree, and DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013), also vacating a class judgment, but suggesting that a revised class or set of subclasses could satisfy the requirements of the federal rule.

                The two school closing cases, McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Ill. 2013), place their greatest stress on the conclusion that the plaintiffs failed to show that the school closings worked a common harm on the members of the class, affecting them in a uniform way. It is not clear that all members of a class must always be harmed in the same way, or even in a way that can be determined at the outset of the litigation, see, e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482 (7th Cir. 2012) (upholding class status in an employment discrimination action on behalf of African-American stockbrokers all affected by a staffing policy, but potentially affected in different ways and degrees), but the prospects for success seem much greater in the post-Wal-Mart environment when the proponents of class certification can identify a specific policy that caused the harm they suffer. The court in the school closing cases did not deem the decision to close the schools or the rubric under which schools were selected for closure as policies that could support class action treatment under the facts of the case. The next big news expected on the class action topic is the Seventh Circuit’s decision on the appeal of the decision not to decertify the class in Corey H. v. Board of Education of City of Chicago, 2012 WL 2953217 (N.D. Ill. 2012), which has been pending since argument was held in February. For further commentary from me on the Jamie S. decision in specific and special education class actions in general, presented from something of a plaintiff’s perspective, take a look at this video of a presentation from a program of the Illinois Protection and Advocacy Agency, Equip for Equality, in 2012. 

        --Mark Weber

August 16, 2013 in Special Education | Permalink | Comments (0)

Thursday, August 15, 2013

Class Certification Denied in Special Education Suits and the Broader Relevance

Earlier this summer I posted on the special education lawsuits challenging the Chicago public school closures.  The district court has moved the cases along pretty quickly and, last week, denied class certification in both McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan ex rel I.O. v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Illinois 2013).  These decisions have an immediate impact on Chicago schools and the students who attend them, but the court's reasoning relates to the general issue of class certification in education cases.  

While the Supreme Court's 2011 decision in Wal-Mart v. Dukes denying class certification to a nationwide group of women is argueably limited to its unique facts or employment litigation, courts have increasingly seen fit to rely on Dukes as a basis for denying special education classes.  These district court decisions are but another example.  To their defense, they may not have had much choice, as the Seventh Circuit, in which Chicago sits, had already extended Dukes to a special education case in Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481 (7th Cir. 2012).

I am relatively comfortable with the notion that these courts are overextending Dukes, but I not clear on whether these courts might have denied certification anyway.  Either way, decisions like these are likely to have a chilling effect in jurisdictions relying on an expansive interpretation of Dukes.  A few courts, however, have refused to treat Dukes as imposing any additional hurdles to class certification in special education cases.

I know Mark Weber has been following and thinking about this issue for a while and has already presented on it, at least, once.  Stay on the lookout for his upcoming presentations and scholarship on the topic.


August 15, 2013 in Special Education | Permalink | Comments (0)

Wednesday, August 14, 2013

NPR: Parents Claim that Race and Class Driving Alabama School District's Decision to Cancel Bus Service

via Dan Carson, NPR:

The decision by a suburban Birmingham school district to eliminate its busing program has erupted into a controversy over race and class. Officials in the Hoover school district say they were forced to drop the buses because of a severe budget shortfall. Many community members believe the decision was designed to force out the growing numbers of minority and low-income students who are lowering average test scores in Hoover schools.

Listen to this story and read more here.


August 14, 2013 in State law developments | Permalink | Comments (0)

"Public Servants Should Be Supporting Education": Wake Forest Professor's Open Letter to the North Carolina Gen. Assembly

Wake Forest Professor Alan Brown has published an open letter about education to the Senate President of the North Carolina General Assembly. In the letter, Brown writes of his concerns that the state's education measures will prove to be destructive rather than helpful or efficient. Brown, an English professor, wrote to NC Senate President Pro Tempore Phil Berger about the education bills that Derek has been covering this summer, including budget cutscharter schoolsand replacing teachers with Teach for America recruits.

The Gen. Assembly's laws on education, voting rights, and abortion sparked "Moral Mondaysprotests at the state house. Brown's letter, published last Sunday in the Greensboro New-Record, is reprinted below:

As a native of Guilford County and a former public school teacher, let me first thank you for your interest in K-12 education in North Carolina. I believe it is important to see our state representatives openly discussing the work of public schools while considering potential improvements.

Sadly, I fear you have set us on a destructive path to privatizing education while cutting many crucial budgetary items that make our schools successful. Instead of collaborating with educators to implement public policy, you and your colleagues seem convinced that ending teacher tenure, eliminating class size caps, cutting teacher assistants, adding armed guards, increasing funding for standardized tests, and encouraging recruitment of teachers with limited preparation will be some sort of saving grace for North Carolina schools. While I cannot possibly speak to each of these policies in such a limited space, I hope to highlight a few that seem the most perilous. 

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August 14, 2013 in K-12, State law developments | Permalink | Comments (0)

Emily Gold Waldman on Third Circuit Ruling in "I [heart] boobies" Case

Last week, the Third Circuit issued its en banc opinion in B.H. v. Easton Area School District – aka the “I [heart] boobies” case.  Some quick background: as part of its work to educate thirteen- to thirty-year-old women about breast cancer and encourage them to perform self-examinations, the Keep A Breast Foundation began an initiative entitled “I [heart] boobies.”  Part of the campaign involved selling silicone bracelets emblazoned with “I [heart] Boobies!  (KEEP A BREAST)” and “check yourself!  (KEEP A BREAST)”.  Two middle-school girls purchased the bracelets with their mothers and wore them to school; after a few weeks, the school decided to prohibit bracelets containing the word “boobies,” although it encouraged students to wear other items in honor of Breast Cancer Awareness Month, such as the traditional pink ribbons.  The students (through their mothers) sued and were successful in getting a preliminary injunction from the district court; the Third Circuit then decided to hear the case en banc.

 In a 9-5 split, the Third Circuit affirmed, ruling that the ban on the bracelets violated the First Amendment.  The court rejected the school district’s argument that Fraser’s “plainly offensive” standard justified the ban.  Interestingly, the court applied a gloss from Morse v. Frederick to the Fraser standard.  The court explained that in Morse, Justice Alito – who wrote a separate concurrence and provided the crucial fifth vote – had distinguished between pure pro-drug advocacy and speech “that can plausibly be interpreted as commenting on any political or social issue.”  Building on this, the court articulated a new Fraser framework: (1) plainly lewd speech can always be restricted in schools; (2) speech that isn’t plainly lewd, but that a reasonable observer could interpret as lewd, can be categorically restricted as long as it doesn’t plausibly comment on political or social issues; and (3) speech that isn’t plainly lewd, and that can be plausibly interpreted as commenting on political or social issues, can’t be categorically restricted (although it still can theoretically be restricted under Tinker).  The majority ruled that this speech fell into category (3): “boobies” wasn’t categorically lewd, and the overall message contained political/social commentary on breast cancer awareness.

There’s a lot I like about this opinion.  I’ve long thought that Alito’s emphasis in Morse on the presence of some sort of political/social commentary in student speech provides a helpful dividing line, even though it can get blurry at the margins.  One of the dissents argued that it was inappropriate to let Morse inform the Fraser standard – that each student speech case is an “independent analytical construct.”  But if we are trying to create an overall student speech framework that makes sense, I think it is helpful to think thematically and consider how the cases overlap and inform each other.  Indeed, Alito’s discussion in Morse echoed Fraser’s own emphasis on the absence of political content in the student speech at hand.  And in theory, I think the framework that the Third Circuit articulated makes a lot of sense.

That said, there are some pretty obvious controversies coming down the pike.  The majority went out of its way to hold that “I [heart] Tits” could still be restricted as plainly lewd, but expressly declined to reach the “I [heart] Balls” slogan that is already being used by the Testicular Cancer Awareness Project, which is selling “feelmyballs” bracelets.   

I also can’t help wondering about how this case would have played out if it were a middle-school boy initially wearing the “I [heart] boobies” bracelet.  The court emphasized that “the subjective intent of the speaker” is irrelevant in the Fraser analysis, but it nonetheless set forth the sympathetic facts here: the speakers were girls who had bought the bracelets with their mothers to commemorate friends and relatives who had suffered from breast cancer.  I suspect that not all the middle-school wearers of the “I [heart] boobies” and “feel my balls” bracelets will be coming from the same mindset.    

    --Emily Gold Waldman

August 14, 2013 in First Amendment | Permalink | Comments (0)

More on Salt Lake City's Privately Financed Pre-K Program

Earlier this summer, I posted on Goldman Sachs' investment in Salt Lake City's new pre-k program (here and here) and posited that it was a pretty sweet deal for Goldman.  Now, other investors are seeing the sweet deal as well.  Ed Week reports that the Pritzker Group is also investing in Salt Lake City's pre-k program.  My earlier post had questioned the appropriateness of permitting Wall Street to profit from public education, particularly when pre-k is a proven product.  In later conversations with a colleague, he posited that school officials may be firmly committed to pre-k and may not even be looking for financial help for its own sake.  Rather, they may be looking to Wall Street to help them sell pre-k to the broader public, particularly in more conservative leaning communities.  Regardless, now that more investors see the attractive, more voices are joining me in their skepticism of the the partnership.

For more on these developments, see the block quote and link to the Ed Week story after the jump.


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August 14, 2013 in Pre-K Education | Permalink | Comments (0)

Tuesday, August 13, 2013

California Enacts Nation's First Transgender Rights Law for K-12 Students

California Governor Jerry Brown signed the nation’s first statewide transgender rights law for K-12 students on Monday. The law, called the School Success and Opportunity Act (California Assembly Bill 1266),  requires public schools to allow transgender students to choose which restrooms and locker rooms that they wish to use and to choose whether they want to play boys’ or girls’ sports. The law also allows transgender students ‘‘to participate in sex-segregated programs, activities and facilities’’ regardless of their birth gender. A legislative spokesman told the Associated Press that California’s largest school district, Los Angeles Unified, has had such a policy similar to the new law for a decade and has reported no problems. Hundreds of other schools in California have also adopted policies protecting transgender students’ rights.


August 13, 2013 in K-12, State law developments | Permalink | Comments (0)

Education Law Center Files DOJ Complaint Against Philadelphia Schools

Last week, the Education Law Center of Pennsylvania filed a complaint with the Deparment of Justice alleging that African American students and students with disabilities are significantly overrepresented in the state's Alternative Education for Disruptive Youth programs. Pennsylvania's Alternative Education programs educate over 14,000 students each year who have been suspended from school for violence or misconduct. After reviewing four years of Alternative Education records, the Center found that special education and African American students made up a disproportionate percent of students in Alternative Education. The Center alleges that the Pennsylvania Department of Education has failed to protect many of those students' rights under the Americans With Disabilities Act and the Civil Rights Act. The Center's four year study revealed:

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August 13, 2013 in Cases, State law developments | Permalink | Comments (0)

Monday, August 12, 2013

NCLB and Accountability Schizophrenia

In reviewing news stories from last week, I couldn't help but notice the outlandish claims being levied both for and against NCLB, and the fact that they were both coming from conservative commentators.  Vicki E. Alger, the Director of the Women for School Choice Project, published a piece titled "Don't Try to Fix 'No Child Left Behind,' Just End It."  She argued that federal accountability was flawed, that educational authority should be returned to localities, and that the federal government should refrain from passing any education legislation until there is a constitutional clause specifically authorizing a federal role in education.  (I thought about sending her an email alerting her to Congress's constitutional power to spend for the general welfare, but thought better of it, since that was not her real point).  Her solution: "state lawmakers should enact and expand parental choice programs. Today, 250,000 students nationwide are benefiting from parental choice programs. Rigorous scientific research proves parental choice works; parental choice saves money; parental choice is constitutional; and, parental choice programs change children's lives for the better."  I too am a fan of choice when it is controlled in a way that produces integration and equitable opportunities.  I did not take her proposal to be one that would place any limits on choice.  This, I believe, would be a disaster for those most in need.  

On the other hand,  Paul Peterson, a senior fellow at Stanford's Hoover Institution, published a piece in the Wall Street Journal arguing that we need to return to the core of NCLB.  His reasoning is that the black white achievement gap among 9 year olds has increased during the Obama Administration.  He attributes the increase to Obama's policies and argues that NCLB closed achievement gaps during the Bush administration.  His sweeping claims based on minimal data points is mind boggling.  As I pointed out in Civil Rights, Charter Schools, and Lessons to Be Learned, making causal assertions in education is particularly dangerous, even when good data is available.  Moreover, it is not clear to me how Peterson can point to any specific policy that would have produced a significant change in the achievement gap since Obama took office and would have already shown up in the data.  

Until the recent NCLB waivers, the Obama administration had continued to implement NCLB. Because the waivers are so new, we do not have relevant data on their effect yet.  One might point to the fact that, prior to the waivers, the Obama administration had given out competitive grants, but only a few states received them.  So again, it is not clear how national effects could should up in the data. Now I am speculating, but a more plausible explanation for an expanded achievement gap would be the recession and its differential impact based on race.  Given the significantly higher increase in unemployment among African Americans and what we know about the effects of poverty on student achievement, I would put my money on the recession rather than the administration as a cause of the increase (even if that increase is reliable).  

Regardless, Peterson's point is that we need to increase student and teacher accountability, not grant states waivers.  This, of course, is diametrically opposed to Alger's thesis.  These sorts of internal disagreements, which are not new, are part of what made NCLB remarkable.  There are a thousand different competing views about how to fix education and somehow NCLB emerged with a relatively significant level of internal consistency and vision (even if that vision was flawed).  As I have said all summer, however, we haven no reason to expect a reauthorization of any type any time soon.  This schizophrenia only makes it less likely.



August 12, 2013 in Federal policy | Permalink | Comments (0)

Alabama Imposes Tough Grade Curve for Public Schools


Failing schools graphic
Image courtesy of
This summer, we have been posting about new state laws that create tuition tax credits as pathways for families with students at “failing” schools to help pay for private school. Thirteen states have tuition tax credits programs, according to the National Conference of State Legislatures.

 Today, we look at the implications of one of those laws in Alabama. Alabama’s school tax-credit plan continues to be a work in progress. Significant legal roadblocks exist before many of the students in “failing” schools can transfer. Today, the press reported that because only eight schools may be removed from the failing schools list each year, it does not matter if any other the other 70 schools on the list pull their scores up to “passing.” Because of the eight-school cap, schools must remain on the “failing” list whether their students pass the state's language and math proficiency tests. In short, for many students at Alabama schools branded as failing, the law gives them no way out to better ones.

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August 12, 2013 in State law developments | Permalink | Comments (0)

Racial Harassment Case Moves Forward

The district court in Fennell v. Marion Independent School Dist., 2013 WL 3994649 (W.D. Texas 2013), held that a lawsuit by three African-American minors, alleging that they were subject to numerous racist remarks and disparate treatment based on their race, can move forward.  The facts of the case were extensive, but the court framed the claims around three major incidents. First, plaintiffs alleged that the white athletic director "‘admonished’ [one plaintiff] for her ‘ethnic hairstyles," but did not admonish "'similarly-coiffed white female students who come to school with their multi-toned hair.’” Second, plaintiffs claimed that the white softball coach, “drove away on the softball team bus without Kyra even though Kyra had shown up on time (at 2:55 p.m.) and even though Manley had seen Kyra waving at the stop sign."  Third, plaintiffs alleged that the softball coach  punished Kyra "for signing out for lunch on a game day by denying her the opportunity to play for two games,’" even though white teammates had done the same without recourse.  Fourth, plaintiffs alleged that the softball coach encouraged "two white students to file unsubstantiated criminal charges against Kyana [after] a verbal confrontation [that the coach] did not witness.’" The court held that the first three allegations stated a claim under Title VI, but the fourth did not because plaintiffs failed to plead any facts that would suggest that the coach's alleged actions were racially motivated. Plaintiffs' assertion that “Defendant Manley used these two white girls as ‘cat's paws' to further her racist attitudes towards Kyana’ is an example of the ‘conclusory allegations’ and “unwarranted factual inferences” that the Court need not accept as true. 
Racial harassment claims are typically very difficult to sustain.  This case seems distinct in that it is also stylized as disparate treatment and includes the specific facts that were hard to ignore.  This is in contrast to other cases with more egregious allegations, but which do not have facts regarding similarly situated white students who were treated differently.  This instant case also included some other more racially charged allegations, but the court did not frame its analysis around them, rather it focused more squarely on disparate treatment.  In short, it may be easier to sustain a claim based on low-level disparate treatment than it is based on racially charged environments.  Or, at least, this court would seem to see it that way.

August 12, 2013 in Cases, Discrimination | Permalink | Comments (0)

A Student's Fight to Attend School Against His Parents' Will

Consistent with the summer of school choice news, another interesting story just came out of Virginia. Virginia has an extremely lenient home school provision that exempts parents who home school for religious reasons from all state oversight.  No records, no transcripts, no test scores and no proof of instruction.  Now Josh Powell, a teenager, wants to go to public school, but his parents won't enroll him.  Apparently, he asked local school officials to let him enroll, arguing that he was learning so little at home.  According to him, he didn't know how to write an essay, didn't know South Africa was a country, and couldn’t solve basic math problems.

This case highlights what I have always felt was missing from the Supreme Court's seminal decision in Wisconsin v. Yoder, in which the Court held that the Amish's interest in exempting their children from high school education outweighed the interests of the state.  In Yoder, the Court ignored the interests of the child and the possibility that they would be at odds with the parents.  The Court reasoned that the child was not a party in the case and, thus, it did not address the issue.  But of course, a child's interests are always at stake when determining the education he or she will recieve.

For more on the current dispute, see here.  Presumably, Powell's only recourse will be legal.  It would be interesting to see how a court balances his interest in education against his parents' statutory and constitutional right to control his upbringing.


August 12, 2013 in First Amendment | Permalink | Comments (0)