Thursday, October 17, 2013
My prior posts have tried to nail down the exact facts in the ongoing saga of a student suspended from her volleyball team and stripped of her postion as captain for coming to a party to pick up a drunk friend and drive her home. Relying on news reports and attorney attestations make me nervous, but, at this point, there does not seem to be a dispute over what actually happened. The student was not drunk, was released by the police at the party that night and, although summoned to court later, was not charged or convicted of anything. Thus, the dispute in this case is over the legality and rationality of the school's decision to suspend the student from the volleyball team. I was rather shocked to red Bryan Toporek's defense of the school in EdWeek Tuesday. He wrote:
Despite a police officer vouching for her sobriety in writing, Cox was one of those 15 summoned to court. Once that happened, the school acted accordingly.
The high school's student handbook specifies that "from the earliest fall practice date to the conclusion of the academic year or final athletic event (whichever is latest), all student-athletes must not "use, consume, possess, buy/sell, or give away any beverage containing alcohol; any tobacco product; marijuana; steroids; or any controlled substance." Once the school's principal confirms a violation of this policy, following "an opportunity for the student to be heard," the student loses eligibility for 40 percent of the season.
Additionally, per the handbook, "a captain who is disciplined or involved in any incident involving an alcohol/drugs (controlled substance) violation at ANY TIME, including Summer Vacation," will lose his/her captaincy in addition to any other consequences."
Long story short: The handbook is pretty cut-and-dry here. By virtue of Cox being summoned to court for drinking (even though she didn't consume alcohol that evening), the school had little choice, based on the way their policy is currently written, to strip her of her captaincy.
Toporek, like the school, jumps to a lot of false conclusions. The Supreme Court has rejected attempts to scrutinize school rules in the same manner as criminal codes, but the Court has never indicated that the rules do not matter or that schools can apply them irrationally. First, it is far from clear that simply being summoned to court constitutes involvement with drugs or alcohol. The summons could be false, incorrect, or necessary for the court to obtain information from a witness. Testifying in drug case, for instance, is not involvement with drugs; it is involvement with the court system, a far different thing. Surely, involvement with the court system is not a punishable offense. If so, the school rule would amount to an obstruction of justice.
As noted earlier this week, the situation in Philadelphia's schools had descended into the chaos of a perfect storm. One would think that the Governor eventually would have had to act. The death of a 12 year old girl after a day at school where the nurse had been dismissed due to budget cuts is not the sort of thing a Governor wants to defend. Yesterday, Governor Corbett stepped up and released $45 million so that Philadelphia schools could rehire teachers and assign students back to their normal classrooms (some were apparently in split grade classrooms). A lot of credit goes to civil rights leaders from outside the state, like Wade Henderson, David Sciarra, Ben Jealous and Marc Morial, for putting the Philadelphia schools under a microscope and then shining a national spotlight on them. Once they did so, the Governor acted quicker than most.
This important victory, however, may be shortlived because the underlying problem remains untouched. Philadelphia, and several other districts in the state, are in this mess because the Governor abandoned the funding formula that Governor Rendell had enacted. Forty-seven other states in the country understand that school funding must be based on enrollments, demographics, and local costs (even if their formulas do not perfectly reflect these factors). Governor Corbett returned Pennsylvania to the dark ages of school funding when he abandoned Rendell's formula and appears content to stay there. For more discussion on the formula, see David Sciarra's essay from yesterday.
Locality based reports on the school to prison pipeline are mounting, which is a good sign for the movement’s organization. I missed it when it first came out in May, but the New York City School-Justice Task Force has a report out, much like the one I recently posted for South Carolina. The New York report’s overarching recommendation is to “Develop a Mayoral-Led Initiative that Establishes a Shared Goal among Agencies, in Collaboration with the Courts, to Keep More Students Safely in School While Reducing the Use of Suspensions and School-Based.” To that it adds several specific recommendations relating to a
- implementing a “graduated response protocol;”
- building “improved capacity across schools with supports to implement positive discipline strategies and reduce reliance on suspensions, summonses, and arrests;”
- focusing the “role of school safety agents;”
- improving “educational planning for court-involved youth;” and
- improving educational re-engagement for placed and sentenced youth.”
Nancy Chi Cantalupo (Georgetown)'s abstract:
James G. Dwyer (William & Mary)'s abstract:
Proponents of school vouchers often tout parental choice as a vehicle for positive innovation, general improvement of school systems, and better education for individual children. This Article explains why this reasoning is fallacious.
The Endangered School District: The Promise and Challenge of Redistributing Control of Public Education
Daniel Kiel (Memphis)'s abstract:
The standard conservative view of privatization in education favors state funding of private schools, religious and nonreligious, without state oversight to ensure accountability for how the money is used. The standard liberal view opposes state funding of private schools regardless of whether there is state oversight to ensure that the funding improves children's secular education. This Article highlights the main points against both standard views, and it advances the intermediate position that states may provide funding for private schooling but only if they also regulate and oversee the private schools sufficiently to ensure state money actually improves the secular education those schools provide. The Article further critiques prevailing assumptions about what accountability entails, and it assesses to what extent there is real educational accountability in voucher programs today.
Beyond Title IX: Federal Legislative Antidotes to the Bullying & Harassment of Actual or Perceived LGBT & Gender Non-Conforming Students
Larry D. Robertson (Loyola University Chicago School of Law)'s abstract:
A hostile learning environment denies actual or perceived lesbian, gay, bisexual, and transgender (“LGBT”) and gender non-conforming students an education. Although Title IX of the Educational Amendments of 1972 (“Title IX”) can protect actual or perceived LGBT and gender non-conforming students from harassment, it sometimes fails. This Article argues that Congress should pass the Student Non-Discrimination Act of 2013 and the Safe Schools Improvement Act of 2013 to remedy the legal shortcomings of Title IX and protect actual or perceived LGBT and gender non-conforming students from the harassment and bullying they endure.
The State of California has brought its second lawsuit in six years against Corinthian Colleges, Inc., saying that the company has failed to live up to the terms of a previous settlement with the state. Corinthian Colleges, Inc. (CCI), is one of the largest for-profit post-secondary “career education” companies in North America and reported having 96,631 students in a 2012 10-Q statement. Back in 2007 when Jerry Brown was the state attorney general, Corinthians agreed to settle a lawsuit with the state by paying a $6.5 million fine, including $5.8 million in consumer restitution to students who had been deceived by false advertising. Current California Attorney General Kamala Harris filed a complaint last week against the company for not following the terms of the 2007 settlement, alleging that the schools’ ads continue to mislead students, investors, and regulators about job placement and student default rates. California believes that CCI continues to lure students to take on massive student debt to train for jobs at CCI's schools, and when the students cannot find jobs, the students default on their loans.
California’s complaint alleges that CCI targets students who head single parent families and have annual incomes that are near the federal poverty line ($19,530 for a three-person household). The complaint alleges that “CCI targets this demographic, which it describes in internal company documents as composed of "isolated," "impatient," individuals with ''low self-esteem," who have "few people in their lives who care about them" and who are "stuck" and "unable to see and plan well for future." CCI attracts students through “aggressive and persistent internet and telemarketing campaigns and through television ads on daytime shows like Jerry Springer and Maury Povich,” the state alleges. One of CCI’s deceptive practices, the complaint says, is arranging for a temp agency to employ students for a few days right before reporting post-gradation employment data. The company simply did not report employment data for several of its schools that closed in 2011.
The recession prompts underemployed adults to return to school and with that comes an uptick in aggressive advertising by for-profit technical schools. The problem is that students at for-profit higher education institutions have loan default rates at much higher rates than the national average. California wants to curb CCI’s falsely reporting post-graduation employment data to lure students into taking out student loans that they cannot repay (or discharge in bankruptcy) after they cannot find a job in their chosen fields. Watching for-profit schools is difficult enough but monitoring Corinthians has been particularly hard because the company opens and closes its schools at a brisk pace. During the 2011-12 school year, for example, Corinthians announced closures of its affiliated schools in Washington, Chicago, Illinois, Ft. Lauderdale, Florida, Decatur, Georgia and Arlington, Texas. Of course, we in legal education have to clean up our own employment data reporting too, as shown in the well-publicized cases of Villanova Law School and University of Illinois College of Law’s publishing misleading data about students' debt burden and employment statistics after graduation.
Wednesday, October 16, 2013
The article, “Public School Money Should Only Go to Public Schools,” raises policy concerns regarding the use of school vouchers to supplement tuition for private schools that the authors suggest may lead to a challenge under the Oklahoma state constitution that are relevant. This article describes the differences in accountability that private schools in Oklahoma enjoy (not having to be graded A-F as public schools) as well as concerns regarding access to private school for students who cannot afford to go there.
North Carolina Supreme Court Battles over School Finance and Pre-K While South Carolina's Sits on the Sidelines
North Carolina’s Supreme Court heard oral arguments yesterday in its school finance case over whether the state must fully fund its pre-k program. The case is slightly more complicated than average because the state argues that the pre-k program is like any other education initiative and the state is free to change its funding and rules as it sees fit. The plaintiffs counter that the pre-k program was enacted as a remedy to demonstrated violations of students’ constitutional right to a sound basic education. As such, the state is not fee to renege on its commitment. I suppose the court could skirt both frameworks and instead base its decision on whether the current system, without a fully funded pre-k program, fails to deliver a sound basic education, but I am not sure that question was fully briefed or argued.
Regardless, I would expect a decision within the next six months. The North Carolina Supreme Court and Court of Appeals have been pretty good at moving school finance litigation through their dockets and to final decisions. The same cannot be said of their sister court to the south. The South Carolina Supreme Court issued its first decision in the Abbeville school finance litigation in 1999 and remanded for trial. The trial was completed in 2005 and made it back to the Supreme Court in 2008. The Supreme Court, however, let four years pass without issuing a decision and finally ordered rehearing, which was set for September 2012. We are now another 13 months past that second argument and five years past the first argument, leaving many to wonder how many generations will pass through the schools before a remedy, if it is to come, is ordered. November will be the 20 year anniversary of the commencement of the litigation.
In Charter Schools, Vouchers, and the Public Good, I raised the problem of some districts' continuing financial viability with the growth of charter schools (along with several other issues). I don't suggest that charters are a per se threat to public schools, but focus on the paradigm cases of a small rural district that operates one middle school and one high school. Opening one charter school can jeopardize the fiscal stability of the district and create dilemmas of conscious for families. The same type of problem can occur in large school districts, but the growth of charters has to been rather significant.
A new report by Moody's indicates that some districts have already reached this point and others may do so in the future:
The dramatic rise in charter school enrollments over the past decade is likely to create negative credit pressure on school districts in economically weak urban areas. . . . Charter schools tend to proliferate in areas where school districts already show a degree of underlying economic and demographic stress. . . .
"While the vast majority of traditional public districts are managing through the rise of charter schools without a negative credit impact, a small but growing number face financial stress due to the movement of students to charters.". . .
Charter schools can pull students and revenues away from districts faster than the districts can reduce their costs, says Moody's. As some of these districts trim costs to balance out declining revenues, cuts in programs and services will further drive students to seek alternative institutions including charter schools.
I still have not placed my fingers on the pleadings, but I was able to speak with Erin Cox’s attorney, Wendy Murphy. For those who missed it, yesterday I posted on Massachusetts high school that suspended (from athletic opportunities) a student who drove to a party to come to the aid of an intoxicated friend who needed a ride home. The initial story was that the school suspended Cox for violating its zero tolerance policy in regard to drugs and alcohol even though Cox was not intoxicated. The police were there when she arrived and released her to go home because she had not been drinking. She later put forward evidence to verify her story.
The school suspended her anyway and she brought suit in a local state district court to enjoin the suspension. Thinking it would be an open and shut case of mistake, Cox’s mother appeared without an attorney. The school board, however, arrived with its attorney, who alleged that the school suspended her because she was arrested. The initial basis for suspension, as I understood it, was that she had violated the zero tolerance policy on alcohol. According to school’s student handbook, student athletes are forbidden from “knowingly being and remaining in the presence of other minors using alcohol or illegal drugs or controlled substances.” But since the police were there and blocked her from “being at the party,” suspending her on that ground seems problematic. The school must have realized the logical problem at some point because in court it defended on slightly different grounds. The school’s attorney asserted that Cox had been arrested at the party, suggesting that the arrest was a basis for suspension. At that point, the mother protested that the daughter was not arrested and, when the other side pressed its point, she said they were lying.
Tuesday, October 15, 2013
A North Andover, Massachusetts high school senior was suspended from school's volleyball team and stripped of her position as captain for violating the school's zero tolerance drug and alcohol policy. Erin Cox went to a party to pick up a friend who needed a ride because she was too drunk to drive herself. The police were already there when Cox arrived, but the police cleared her to leave. Nonetheless, the school suspended her from the team. As one might imagine, this story has been lighting up social media and the subject of national news, but my question is where are the courts?
Cox filed a lawsuit to enjoin the school from suspending her, but, according to local media reports, the court ruled on Friday that it lacked jurisdiction to hear the case. I have not been able to lay my hands on the complaint or the court order. It is possible the student filed in the wrong court or some other procedural anomaly is depriving the court of jurisdiction. If so, that sounds like an error on the part of her attorney. It not, this may be just another case in a long line where courts abdicate their responsibility to assess the constitutionality of school discipline. While the Court in Wood v. Strickland, 420 U.S. 308 (1975), stressed that it is not the role of courts "to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion," the Court in Goss v. Lopez, 419 U.S. 565 (1975), held that due process applies to students' property interest in education (although there is some question as to whether denying students athletic opportunites implicates the property right to education). Moreover, in the state of Massachusetts, where Cox was suspended, the state supreme court held in McDuffy v. Secretary (1993) that students have a constitutional right to education under state law. If schools can suspend students on grounds as irrational as those alleged in Cox's case, then the rights articulated in Goss and McDuffy become meaningless. Substantive due process does place limits, albeit narrow ones, on school discipline and courts must apply those limits in good faith. Of course, none of this means a court can or should ignore jurisdictional problems, but in reading hundreds of discipline cases, courts' rationale for disposing of cases is often muddled at best.
Note: This post was updated to reflect that the suspension was from athletics only, not school, which I learned when I later was able to get the complaint.
In the early years of the charter school movement, opponents routinely charged that they were not really public schools, but rather private. Over the past decade, charter advocates, in the effort to gain public support, have insisted they are public and have seem to have won the war of public opinion and conceptual framing. As a testament to their success on that front, scholars, in comparing of public schools to charter schools, have stopped discussing public schools versus charters and, instead, have begun referring to public schools as “traditional public schools,” charters as “public charter schools,” and charters and traditional public schools collectively as “public schools.” But a few recent lawsuits have shown some charter school operators straying from the party line and potentially threatening this "victory."
Last spring, in an effort to avoid misappropriation of public fund charges, the founders of a charter school in California attempted to avoid conviction by arguing that the school was a private corporation and, thus, not subject to the laws governing public schools and the use of public money. In fact, the California Charter Schools Association supported them with this argument. The court did not buy the argument. But in another suit by alleging violations of a teachers’ liberty and free speech, the court bought a charter school's defense that it was not a state actor and, thus, not subject to the constitution. A few other analogous instances, such as labor union disputes, have occurred recently, in which charters have tried to minimize their public standing and courts have sided with them.
Underlying principle in these cases is that some charter schools are only public when its suits them and some courts are willing to go along with charters' self-characterization. Thus far, it is only in the context of criminal prosecution—the most serious of legal issues—that courts seem to be getting gotten hard-nosed with charters that now want to claim they are private. Stay tuned to the developments in the new prosecution against the operators of Options Public Charter School in DC for diversion of public funds. I suspect the issue will come up there as well.
In a surprise move this past Thursday, the U.S. District Court for DC found that a lawsuit challenging DC school closures had alleged fast sufficient to survive a motion to dismiss. The ruling was a surprise not because the plaintiffs claims lacked merit, but because the judge had been so dismissive of plaintiffs' claims at the preliminary injunction stage earlier this summer. Plaintiffs had alleged that the particular schools being closed would have a disparate impact on minority students and students with disabilities. In fact, plaintiffs' data showed that the only schools closed in recent years were minority schools. Moreover, the schools closed this summer enrolled 40% of the district's entire special education population. Plaintiffs had hoped to stop those closures before they occurred, as damage of this sort is nearly impossible to undo after the fact.
The court in its new opinion wrote: “The Court agrees with the District on the bulk of the Plaintiff’s claims. Nevertheless, the parents and guardians have alleged sufficient facts to state claims of discrimination under the three civil-rights provisions at the heart of their case: the Equal Protection Clause, Title VI, and the D.C. Human Rights Act.” Thus, while the court dismissed some of plaintiffs' claims, the heart of their case remains.
Over the past few months, we have been blogging on multiple different forces undermining Philadelphia’s schools: budget cuts, school closures, and the loss of students to charter schools. Now add to that list the federal government shut-down, which puts certain education programs in jeopardy, and the death of a 12 year old girl after a full a day at school in which she was sick but unable to see a nurse because she was not on staff that day. Apparently, budget cuts had prompted the district to cut the nurse's work days back to two a week. The grief-stricken father blames his daughter's death on the budget cuts.
The situation has gotten so bad that national civil rights leaders came together on Friday in a united front to chastise the state for the chaos reigning in the Philadelphia schools, which is somewhat remarkable. The internal workings of individual school districts, even big ones, rarely garner the attention of multiple civil rights group. Wake County, North Carolina and Memphis, TN have gone through some of the most significant student assignment policies affecting integration in the country, with relatively little being said by national organizations. Wade Henderson, president of the Leadership Conference on Civil and Human Rights, however, remarked "Pennsylvania has become a national model of dysfunction in education." The immediate call by civil rights groups is to restore previously agreed upon funding levels to the schools.
A few short years ago, Governor Rendell had set the state on a trajectory of increased and progressive funding in the state, but the election of Tom Corbett lead to a reversal of those policies. But as suggested above, Philadelphia is at the center of a perfect storm that has included far more than budget cuts. Today’s budget cuts are just one more step along a very long path in
Derek recently wrote about the financial hits that St. Louis area schools are taking under Missouri’s new transfer law. Under the Missouri scheme, unaccredited school districts have to pay tuition and transportation costs for the 2,600 transferring students who have used the law so far. Recently, however, Missouri lawmakers are realizing that the law has an unanticipated cost—families are taking advantage of the student transfer option to establish residency in unaccredited districts then immediately transferring their children to accredited schools. These “bouncing” transfers can get students into higher-rated suburban schools that would be otherwise unavailable because of residency requirements. Nothing in the Missouri statute stops such “bouncing” transfers or caps the number of transfers that families can have in a school semester. Nor do students have to enroll or attend an unaccredited shool -- they just have to establish residence in that district. State Sen. Maria Chappelle-Nadal told the St. Louis Beacon yesterday that the law allows families “to just move into an unaccredited district, then turn around right away and transfer elsewhere, [which] amounts to “educational larceny.” Lawmakers are finding it difficult to count how many families are using the loophole because of transience rate in city schools is already high. Sen. Chappelle-Nadal estimates that the unaccredited Normandy High School could run out of money by next March. Read more here.
Monday, October 14, 2013
Edsource.org recently released an interactive website that allows users to compare various major education metrics against one another (per pupil expenditures, teach salaries, student-to-teacher ratios, NAEP scores, etc.). It also compares the states against one another on scatter-plots and line graphs. Users can also track changes in the data across four decades. It is an incredibly powerful and efficient tool for those looking for basic data calculations and comparisons. It may be the most user friendly I have seen. For that reason, I am sure students will love it.
With that said, some of the underlying data calculations are relatively simplistic and do not fully account for geographic costs, student need, and other relavant local factors (although there is a per-capita income versus local spending chart). In this respect, the data can be misleading to the average observer. The most sophisticated analysis of school funding continues to be the Education Law Center and Rutgers Graduate School of Education's reports. Edsource.org, however, covers broader categories of data and, thus, using the ELC/RGSE reports in conjunction with this website could be helpful.
Standardized tests have cemented their place as measures of students' performance compared with their peers. These standardarized tests have grown in importance as politicians' and policymakers' primary yardsticks for student learning, teacher effectiveness, and school accreditation. But assessing these tests' quality and using them to measure educational accountability is complicated, as Professor Daniel Koretz (Harvard Graduate School of Education) explains here. Test contents must be kept secure to maintain their integrity but that security also insulates them from critical examination. These considerations make a teacher's recent account of the 106-question test given to her eleven-year-old students even more troubling as a measure of educational effectiveness. The teacher notes that a Pittsburgh 7th grader may take between 17 and 21 standard tests in one year, a situation that she fears fosters test fatigue and hopelessness. Here is a bit of what the teacher's letter that was published in the Washington Post:
You stand in front of the class and read a sentence to the children. You are allowed to repeat the sentence only once. Then the students select one of four pictures that they think most reflects what the sentence says. The children look determined; they are ready; you begin. ...
Then you get to the second question. Of 106 questions. The sentence you read says something like, “Luis draws a blank when he is asked to solve a math problem on the board.” The students have four drawings to choose from. In the second drawing, a student is drawing the kind of blank one would see on a paper on which students are directed to “fill in the blanks.” It is a blank. He is drawing it. You start to feel stomach pangs as you look around the room at eleven-year-olds, many of whom come from non-English-speaking families, or families for whom this type of idiomatic expression is not common, and you realize that you have never come across this expression in any of the literature you have taught students over the years. You know it is unlikely that many of these children will recognize the puzzled expression on the face in one of these pictures as the “right” answer....
Question twelve put me over the top. The sentence I read to the class said something like “she realized she could store her belongings in the bureau.” “Bureau.” There were four pictures to choose from. One was a building that looked like a public “bureau” of the government to me, but I doubted my students would think of that. One was of a tractor. Scratch that. But I looked at my students whose families speak Spanish at home. And I looked at the burro in picture “C.” Then I looked at the picture of what my family calls a chest-of-drawers. And I thought about how we have never used that word, “bureau,” for a piece of furniture. And I have never heard that word in the homes of my students’ families. And I thought, how crude, how cruel, how ignorant, how disrespectful of these children. What a set-up. Who would do that to kids?
This account is worrying. Many of us, as educators, professionals, or both, sat for long licensing exams, so the number of long standardized tests that children have to endure in a school year gives pause, but the test makers' assumption that students will mishear the prounciation of the word "bureau" for "burro" (and then providing a picture of a burro as an answer choice) feels rigged. Read more here.
Friday, the UCLA Civil Rights Project and the Institute on Education Law and Policy at Rutgers University-Newark jointly released two reports on school segregation in New Jersey. The first by the Civil Rights Project tracks racial imbalance in New Jersey's schools from 1989 to 2010, finding increasing levels of imbalance over time. The second report by the Institute on Education Law focuses on the most heavily segregated schools in the state. It finds several urban areas in the state with schools that "enroll virtually no white students but have a high concentration of poor children." These schools, however, "are located in close proximity to overwhelmingly white suburban school districts with virtually no poor students."
This second report, unlike many of the past, goes one step further to analyze the legal implications of this hyper segregation, arguing that it violates the state's constitution. New Jersey's education clause is one of the strongest in the nation and has been used in the Abbott v. Burke litigation to ensure one of if not the highest funded and most progressive school finance formulas in the country. Less tested is the state constitution's prohibition on segregation. For years, scholars have suggested that New Jersey would make a good state to replicate the strategy of Sheff v. O'Neill, in which the Connecticut Supreme Court held that its state constitution prohibited school segregation, even where the segregation was unintentional.
These two reports should turn up the heat on the state by focusing on it specifically and suggesting a legal battle may be coming.
Sunday, October 13, 2013
Barring a settlement in the next year, the U.S. Department of Justice will go to trial against the city of Meridian and Lauderdale County in Mississippi. DOJ argues that local authorities lock up students for minor infractions like disrespect or vulgar language. The suit also alleges that students--disproportionately African American and disabled--are routinely detained without probable cause and denied legal counsel.
DOJ was also set to try the Meridian Public School District, but was able to reach a settlement agreement with the district this past summer. The district agreed to take various steps to end discrimination in its discipline program. It is not clear why the criminal justice system is holding out, but if this goes to trial and DOJ wins, which are both big ifs, the case could have a monumental impact in the fight against the pipeline.
Friday, October 11, 2013
The District of Columbia's charter schools will soon be added to the list of serious personal interest stories that demand that the federal government pass a continuing resolution to fund the government. The charters are expecting a quarterly payment on October 15th, which will not come if the federal government is still shut down. DC's mayor indicates that the schools can run on contingency funds, but those will run out in about two weeks, at best. Some charter schools have no reserves and will be forced to shut down even sooner. That means that the 35,000 students in the city that attend charters will have no school to go to. It also means that low-income students will miss free lunch, which is the only meal some eat all day. More here.