Tuesday, December 31, 2013
A new report out on discipline in Virginia's school details racial disparities consistent with those found in the various other state reports that I have posted on in recent months. As in other states, African American and white students experience discipline at far different rates. Statewide, African Americans are twice as likely to be suspended, even when controlling for independent factors. Yet, this is not the "two different" worlds the title of this post references. Rather, the study distinguishes between schools that have implemented Virginia's Student Threat Assessment Guidelines versus those who have not. The guidelines are intended to prompt schools to not react with zero tolerance or knee jerk reactions to student misbehavior, but to assess whether a student is actually a threat. The report found that schools that implemented the guidelines imposed 15% fewer short-term suspensions and 25% fewer long term suspensions. Schools implementing the guidelines still had racial disparities in discipline, but they were smaller than other schools in the state. In fact, the students who saw the largest reduction in suspensions pursuant to the guidelines were African American males, whose long-term suspension rate fell from 11.2 percent to 7.6.
The rates are still incredibly high for all students and indicate that, with or without guidelines, schools are willing to exclude students from school under questionable circumstances, but those using the guidelines may be on the path to creating a different disciplinary world for some.
Monday, December 30, 2013
Just last month, the Fifth Circuit Court of Appeals held a new round of oral arguments regarding Abigail Fisher’s ongoing claim that the University of Texas at Austin (“UT”) rejected her because she is white. Fisher first sued UT some five years ago after failing to gain admission through either the State of Texas’s Top Ten Percent plan – which automatically admits any high school student who graduates in the top ten percent of his or her class – or through UT’s regular, race-conscious admissions scheme, a “check the box” admissions scheme that, in both theory and practice, is comparable to hundreds of other admissions plans across the country.
This round of oral arguments came on the heels of the U.S. Supreme Court’s borderline unpredictable ruling this past June in Fisher. In a decision that saved diversity advocates from chewing their fingernails to the bone, the Court held that educational diversity remained a worthwhile, compelling state interest. However,the Court also held that the Fifth Circuit had misapplied the particular rule used by the Court to evaluate race-conscious admissions plans – “strict scrutiny” – as introduced by the Court some ten years ago in the case Grutter v. Bollinger.
As a result, the Court threw out the Fifth Circuit’s original decision, and shipped the Fisher case back to Austin, Texas, asking the Fifth Circuit to determine – and they really mean it this time – whether UT’s race-conscious policies are “narrowly tailored” (and necessary) to produce a “critical mass” of minority students. Lastly, and most headline-worthy, the Court’s opinion in Fisher stated that strict scrutiny requires universities to “demonstrate, before turning toracial classifications, that available, workable race-neutral alternatives” – alternatives like the Top Ten Percent plan in Texas – “do not suffice.”
Most commentators and experts examining Fisher have focused mostly on the first part of this decision, the part that unquestionably preserves the legality of race-conscious plans in college admissions. Yet far greater uncertainty has clouded whether – or rather, to what extent – the Court’s fixation on the latter, “narrowly tailored” part of the equation has in fact created completely new rules for affirmative action in higher education.
Those of us most concerned with this possibility have so far confined our suspicions to private phone conversations, tersely supportive emails, and off-the-political-radar panels and events on affirmative action. We carved out space in trade journals, salivated over the possibility of being validated by influential organizations, and came to exhibit uncharacteristically conspiratorial behavior. Terms like “institutional bias” and “government credibility” crept into our lexicon.
But when the Fifth Circuit reheard Fisher on November 13th, our concerns finally went mainstream. Arcade Fire had “The Suburbs.” We had Patrick Higginbotham.
Late in the hearing, amidst a blizzard of criticism from Bert Rein – the attorney for Ms. Fisher – Judge Higginbotham slowed the exchange, and wondered aloud
What is the unfairness of letting [UT] go forward under the [Fisher] standard? We obviously – the district court and this court – were seriously mistaken in not following the dissent in Grutter, by not having anticipated that it would become [the rule]. Going forward, in fairness perhaps, [UT] ought to be allowed to meet the standard [in Fisher]. One can say, ‘Well that’s always the standard.’ Well, of course strict scrutiny was always the standard, but it was strict scrutiny as stated by Justice O’Connor [and] to which Justice Kennedy dissented [in Grutter.]
Now while legal experts know better than to hitch their predictive wagons to the jurisprudential Frankensteins that happen to catch an occasional lightning bolt at oral arguments, Judge Higginbotham’s recap of Fisher is exceptionally telling, if not foreboding. After all, Higginbotham is talking about fairness: the majority opinion in Grutter, written by Justice Sandra Day O’Connor, had provided lower courts with the exclusive blueprint for evaluating affirmative action cases for the last ten years, to such an extent that when Ms. Fisher first sued UT, Grutter wasn’t just the gold standard, it was the standard. But then, through the Fisher decision, Justice Kennedy’s dissenting opinion from Grutter silently grew to “become” the new blueprint. Who knew? And wouldn’t it be unfair to hold the university to this unforeseen set of rules? As Higginbotham pointed out, not even the Fifth Circuit had “anticipat[ed]” this transformation.
Whether the Fisher Court really did change the affirmative action blueprint is likely to serve as the decisive factor for the Fifth Circuit: If the court believes that Fisher changed the rules, it will likely send the caseback to a district court for a trial, wherein UT can present new evidence demonstrating the necessity of its race-conscious admissions plan. But if it determines that Justice O’Connor and Justice Kennedy were in fact singing the same tune all along, from Grutter to Fisher, the court will probably take a swing at the case itself. And as UT’s president related after the rehearing, a ruling against the university would be “a setback to diversity, not just at the University of Texas, but at universities across the country.”
Scott Greytak is an associate with Campinha Bacote LLC in Washington, D.C., where he provides legal analysis, policy recommendations, and commentary on the intersection of civil rights and education policy.
Thursday, December 26, 2013
A new report by the University of Virginia’s Curry School of Education and the Legal Aid Justice Center show racial disparities in school suspension in Virginia and that reformed threat assessment standards used in 35 schools reduced that racial discipline gap. Zero-tolerance school discipline policies have come under scrutiny for many reasons, prominently because across the board, black students get suspended at up to twice the rates of white students and because suspensions consistently correlate with “disengagement, truancy, poor academic performance, and ultimately, dropping out of school.” (Curry & Lovegrove, 2012). Zero tolerance policies eliminate judgment calls, but also allow little room for common sense appraisals of misbehavior, so students have been suspended for yelling, “firing” a gun with their fingers, and bringing plastic knives to school.
To reduce the negative educational outcomes of school suspensions, UVA’s Curry School of Education created the Virginia Student Threat Assessment Guidelines. The Guidelines were modeled on the Secret Service’s methods to assess when a person actually poses a threat (as opposed to having made one). With the caveat that the school’s faculty also authored the standards, the study finds that schools using the Virginia Guidelines have lower rates of school suspensions, including a smaller racial discipline gap among black males. The study notes:
Schools implementing threat assessment had smaller racial disparities in their long-term suspension rates; and
Threat assessment was associated with lower rates out-of-school suspension overall: 15%fewer students receiving short-term suspensions & 25%fewer students receiving long-term suspensions for schools using threat assessment.
For more, click the image or read the study here.
Friday, December 20, 2013
Early this summer, teachers, school boards and parents challenged the funding mechanism for Louisiana's voucher program before the state supreme court and won. The court held that the funding mechanism impermissibly diverted funds away from public schools. In a new lawsuit, nineteen school districts are taking their complaints one step further and challenging the sufficiency of their per pupil allotments from the state. Their claim is premised on the fact that the state's formula does not include a growth factor. Currently, the state allots a minimum foundation program. If that amount is the constitutional minimum for year 1, which seems to be the reading of prior courts, it would necessarily need to increase for year 2 if there was any inflation, population growth, etc. The districts are seeking at 2.75 percent growth factor, which would amount to $200 million statewide. Details on the case are short right now. The plaintiff districts appear to be focused on encouraging other districts in the state to join the suit.
Thursday, December 19, 2013
The National Assessment of Educational Progress (NAEP) released its decade-long study showing an increase in reading and math scores for urban districts. NAEP is the organization that produces the "Nation's Report Card." Cribbing from the press release about the report: "Ten years after The Nation’s Report Card began measuring progress in America’s urban school districts, the 2013 Trial Urban District Assessment (TUDA) shows that most districts that participated in the first reading or math assessments scored higher this year at both grades 4 and 8, and none of the participating districts scored lower than in the first testing year. The District of Columbia Public Schools was the only one of the 21 districts that participated this year to show gains in both mathematics and reading at both grades compared with 2011. In Los Angeles, scores improved in reading at both grades, and in mathematics at grade 4."
NPR ran a story this morning about the report. Focusing on the District of Columbia Public Schools, which was the only city to improve in all four grade and subject combinations, the news is being hailed as a barometer of the success of the education reform movement. D.C. Schools Chancellor Kaya Henderson told reporters that the city's new curriculum is making a significant difference: " We actually shifting our work to the not-sexy stuff. We're bringing the revolution to the classroom. We're changing what we're teaching and learning." Some observers are less impressed. While D.C.'s overall scores improved, the achievement gap between white and black students is the largest of all the tested cities. Others point to D.C.'s changing demographics (including a decrease in black residents) as affecting its scores, but there is no evidence yet of any demographic effect.
A new article by Kristen Ulan examines the connection between home prices and school assignment zones, particularly in the context of school integration. She uses Charlotte, North Carolina, and Columbia, Maryland, as case studies to compare and contrast. Her introduction explains:
While price is a significant factor in purchasing real estate, more important is location. Different individuals have varied location requirements for their desired property. Younger individuals and couples without immediate family plans typically do not consider the assigned schools as much as a family with young children. Likewise, for those with young children, proximity to bars and nightlife is not as imperative as the local school district, neighborhood safety, and nearby children. The neighborhoods involved in this case note tend to attract families that care most about the school district and boundary lines. In Charlotte, North Carolina, there is a significant association between real estate prices and high school districting, whereas in Columbia, Maryland there is not the same association. Due to this, real estate prices for houses located in areas of proposed redistricting and border areas in Charlotte fluctuate and real estate in these areas tends to be underutilized. Because Columbia residents do not face the same fluctuation and uncertainty, there is greater incentive to fully utilize real estate by owners. The history of the areas suggests that this difference may lie in the different societal choices made forty years ago between integration or fighting integration in schools. Both counties' school board societal choice is still unfolding and the effects are much different in Howard County, which implemented voluntary integration, compared to Mecklenburg County, which fought to keep segregation all the way to the Supreme Court.
Her article offers fascinating and important analysis for anyone interested in the feasibility and politics of school integration. I would note, however, that it proceeds on a contested premise: that home location is tied to school assignment. As a practical matter, this is the case in the vast majority of districts. Thus, the premise has strong footing. But some integration policies disentangle home location from school assignment. In fact, that was exactly how the integration policies in Parents Involved v. Seattle Schools worked. Louisville, for instance, expanded the concept of neighborhood school. Students no longer had a single neighborhood school--traditionally the one closest to the home--but several from which to choose. This meant that a student's assignment zone was rather large.
This flexibility had an interesting effect on the housing market: there was not the same incentive to "buy into" a "desirable" neighborhood and, as a result, housing segregation actually declined. While the decline was small, the notion that housing segregation would decrease rather than increase in response to school integration is remarkable. My post on Greenville, SC, last month raises the same possibilities. Greenville has a completely open student enrollment process. All schools in the district are open to students from all locations. Historically, this type of plan has been dangerous for integration, unless specific controls and weights were built into the system. Somehow, however, Greenville has managed to make it work without weights. On the whole, its schools are effective and relatively integrated.
Ulan's article, nonetheless, makes an important contribution based on prevailing realities. The article's full citation is Kristen Ulan, How Uncertainty in the Redrawing of School Districts Affects Housing Prices, A Case Study: Comparing Neighborhoods in Charlotte, North Carolina, and Columbia, Maryland, 2 U. Balt. J. Land & Dev. 113 (Spring 2013).
The new superintendent of Camden, NJ, said that yesterday's reports that only three Camden high school students scored as "college ready" on the recent SATs was a "kick in the stomach." The College Board, which administers the SAT, defines "college readiness" as achieving a score of 1550, which it predicts will give students a 65% probability of maintain a B- average or higher in college. Students with scores of 1550 or higher, the College Board says, are more likely to enroll in a four-year college and to be retained for their second and third year than those students who did not attain that benchmark. Paymon Rouhanifard was appointed superintendent of Camden City Schools by Gov. Chris Christie this summer in a state takeover of the troubled school district. Camden's troubles are well documented as highlighted in a Rolling Stone magazine story this week. Approximately 42% of the city's 80,000 residents are living below the poverty line, and Camden frequently appears on the most dangerous cities in America list.
Wednesday, December 18, 2013
Decision on the Constitutionality of Washington's Charter Schools: They Do Not Fit Within the Uniform System
Just two weeks after hearing arguments regarding the constitutionality of Washington's Charter Law, the trial court has issued its opinion. The court rejected plaintiffs' claims that legislature had improperly delegated its educational duties and that the funding mechanisms for the charters were unconstitutional. The court, however, agreed with one of the plaintiffs' key theories and issued language making the point that anti-charter advocates have been screaming for over a decade. On the question of whether charter schools are "common schools" and part of the constitutionally required "general and uniform system of education," the court wrote that under existing case law in the state:
the legislature cannot "by any designation or definition" establish a common school that does not meet the minimum constitutional criteria. [That precedent] has not been overruled. . . . A charter school cannot be defined as a common school because it is not under the control of the voters of the school district. The statute places control under a private non-profit organization, a local charter board and/or the Charter Commission.
But the court followed that holding with the conclusion that, on their face, charter schools were not inconsistent with the obligation to provide an adequate education. To make that claim, the plaintiffs will have to show an actual deficiency in the quality of particular charter schools. The court said the same in regard to whether the Act removed the State Superintendent's constitutional supervisory authority. While the Act potentially could remove the Superintendent's authority, the court indicated that the statute on its face was did not require a removal of authority. Thus, plaintiffs would need to demonstrate some specific factual instance where this ocurred.
The Center for Educational Reform, a charter advocacy group, rushed to ward off the notion that the case was a loss for charters. In its press release, it wrote:
Egged on by hyperbolic media headlines, teacher union chiefs and their anti-reform surrogates declared the Washington state charter school law unconstitutional, treating it as the kiss of death to innovative educational solutions in the Evergreen State. However, the ruling actually upholds the law’s constitutionality, albeit not to its fullest, which no doubt sets up an appeal decision in an attempt to satisfy one side or the other.
. . .
According to leading interpretations of the judgment, the law itself is constitutional, allowing for the approval of charter schools to move forward in 2014. But the judge also ruled charter schools don’t fit the definition of a “common school” stipulated in the state constitution, which could present a barrier to receiving facilities funding from the state budget.
At the end of the day, all of this represents the feeble attempt at which the teacher unions and like-minded allies are trying circumvent the democratic process and impose their will on students and families in need of better schooling options. . . .
By "leading interpretations," the Center means a local newspaper, not a legal scholar. My reading is that holding that charters are outside of the definition of common schools is huge because the state has a constitutional obligation to common schools, but none to charters, even if charters might otherwise be legally created. This is key because when budgets are lean the constitution will demand that common schools are first in line. Moreover, the court left open the availability of a factual legal challenge to charters' qualitative adequacy and their supervisory structure.
Does this mean Washington cannot create charters? No. Does it mean that charters lack the unfettered access to funding and freedom from standards that charter advocates want? Yes.
With that said, this case will undoubtably make its way to the state supreme court for the final word.
This past summer, North Carolina passed legislation altering the tenure rights of public school teachers. Teachers who have not already accumulated four years of service in a district are deprived of any opportunity for career services and only qualify for year-to-year teaching contracts. Teachers who previously qualified for or earned tenure will lose their protections beginning in 2018.
Yesterday, the North Carolina Association of Educators and six tenured teachers filed a lawsuit challenging the constitutionality of the legislation. They put forward two theories. First, they assert that taking away tenure violates the state constitutional protection against deprivations of life, liberty, and property. They argue tenure is a vested property right. To take it away, the state would have to compensate teachers, which it has not here. Second, they assert the legislation violates the U.S. Constitution's prohibition against impairing contracts. The tenure relationship between teachers and districts creates contractual rights on the part of teachers and now the state has stepped in and impaired those rights.
The full complaint is available here.
Tuesday, December 17, 2013
Eight Kansas school districts have applied for innovative status under the state’s 2013 Coalition of Innovative Districts Act that would exempt them from most state education laws and from Kansas Department of Education regulations. The Innovative Districts Act allows ten percent of the state's school districts to opt out of most state laws if they can show how flexibility will improve student outcomes. The eight districts announced plans to use more college- and career-focused goals instead of state achievement assessments. Critics say that the Act clears the way for districts to replace veteran teachers with unlicensed (and less expensive) ones and are concerned that student outcomes would suffer without consistency in instructors. Kansas Education Commissioner Diane DeBacker told the Lawrence Journal World that allowing unlicensed teachers in innovative districts could also expose the state DOE to complaints that students are not being taught by legally-required “highly qualified teachers.” DeBacker says that her agency “might be on the hook for that” even though it will have little say in approving or monitoring the innovation districts’ plans. Second, the Act allows the innovative district to define what is student achievement for five years (until the renewal period), so it may be some time before anyone recognizes whether the innovation program is working. And some of the plans to improve student outcomes give pause. One district plans to offer multiple ways for students to get a high school diploma, including one that would require only two full years of classroom work in core subjects of English, math, science and social studies, followed by career training at community college or technical school, and “a year of on-the-job work experience that would involve only minimal supervision by the district to ensure the training program is meeting academic standards.” There may be nothing wrong with this proposal on its face, but it may be tricky in application when turning students over to unmonitored voc-tech programs and jobs to fulfill public education goals. Cutting out two years of high school instruction may also be troubling if low achieving students are steered into alternative job programs rather than education classes. One district leader indicated that its program may do just that—“we were trying to raise our test scores in the state more than what was best for the kids.” He told the Lawrence Journal World that “students can gain the additional skills and knowledge through job training and work experience as well as they can through classroom instruction.” The Kansas DOE has asked the state attorney general for an opinion of the statute’s constitutionality. State Attorney General Derek Schmidt declined to issue an opinion because the issue is part of pending school finance litigation. Read the story here.
Late in the summer, Mark Weber posted on the 9th Circuit's holding in E.R.K. v. Hawaii Department of Education that 20 and 21 year old individuals with special education needs were entitled to services if the state was also providing free GED and competency based education to other students. Now comes a new decision from the California Supreme Court in Los Angeles Unified School Dist. v. Garcia, 2013 6501267 (2013), holding that special education students between the ages of 18 and 22 are entitled to special education and related services even when incarcerated. Although California Education Code section 56041 "does not by its terms specifically address county jail inmates, the statutory language is broad enough to encompass special education programs for eligible county jail inmates between the ages of 18 and 22 years, and no other statute explicitly assigns responsibility for the provision of special education to such individuals. Applying the terms of section 56041 to assign responsibility in this setting is consistent with the purposes of the statute and the special education scheme as a whole, and does not create absurd or unworkable results.”
Homeless Students Living in Campground Outside of School District Can Stay Put Pending Lawsuit's Outcome
The Easton, Pennsylvania school district takes residency requirements very seriously. On December 9, the Easton school district controversially disenrolled two homeless students because the camper they were living in was at a campground just outside of the district. Yesterday, the U.S. District Court for the Eastern District of Pennsylvania ordered that the children be re-enrolled while the court decides if the Easton Area School District violated federal law. The students were attending the eighth and twelfth grades in Easton schools when their family lost its home due to foreclosure. Their parents, with the assistance of the Education Law Center of Pennsylvania, filed suit last December 10 challenging the legality of the school district’s decision under the McKinney-Vento Homeless Education Assistance Improvements Act of 2001. 42 U.S.C. § § 11431-11435 (2002). (I have not yet seen the pleadings in this case, so I am relying on media reports of the complaint’s allegations.) The McKinney-Vento Act mandates that children who become homeless are entitled to a free public education in the district where they are living for the duration of the school year. The Act defines homeless children as “individuals who lack a fixed, regular, and adequate nighttime residence ... and includes—(i) … children and youths who are are living… camp grounds due to a lack of alternative adequate accommodations.” Responding to media questions about the move, Easton Schools Solicitor John Freund wrote in an email that the district had “made a studied determination that this family, living outside the boundaries of the district, no longer qualified as homeless for the purpose of free public education in Easton.” The school district vigilantly tracks and disenrolls students that it calls “illegals.” In 2011, the district hired two investigators to follow students and their parents around to track out-of-district students. The district found and disenrolled a dozen students in that effort and had parents prosecuted for lying about their residences. Read more about the campground case here.
Monday, December 16, 2013
The New York Daily News reports that KIPP Star Washington Elementary Charter School has repeatedly used a padded cell to hold a kindergarten and a first grade boy in time out for 15 to 20 minute stretches. The boys' parents say their children have subsequently experienced anxiety attacks. One boy's anxiety reaction to being in the cell was reportedly so severe that that he was removed from the room and taken to the hospital.
Although the notion of putting children in a padded cell--particularly ones so young--is shocking to most, the question of whether it is legal is not as clear cut. Some states, like Washington, for instance, specifically include isolation rooms in the list of the state's permissible disciplinary measures. See, e.g., Wash. Admin. Code § 180–40–235. In the context of special education, several parents have brought suit against school districts for their use of isolation cells. The results have been mixed. Most courts appear willing to sanction the use of isolation in theory, as a means of allowing kids to cool off and not hurt themselves or others. See, e.g., Melissa S. v. School Dist. of Pittsburgh, 183 Fed.Appx. 184 (3rd Cir. 2006); Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir. 2011). But when the isolation rooms have been used purely as punishment devices, some courts have been willing to intercede. See, e.g., CJN v. Minneapolis Public Schools, 323 F.3d 630, (8th Cir. 2003). In short, the limited use of isolation to allow a student to cool off is probably legal, even if it is in a closed room, but the use of isolation as a means of punishment may cross the line. We will have to wait for more facts to determine which way KIPP uses its rooms.
The recent PISA results (Programme for International Student Assessment) show no statistical difference between boys and girls in math or science in the United States. That finding knocks another leg out from under the rationale for single sex education, even though some other assessments like NAEP and AP exams have shown differences in recent years. The explanation for the differening results between the assessments is unclear. But where girls have underperformed, Carol Dweck, a Stanford psychologist, attributes it to a differential "mindset" about their ability to perform well on the assessment. That is consistent with the PISA report, which found that "[E]ven when girls perform as well as boys in mathematics, they tend to report less perseverance, less openness to problem-solving, less intrinsic and instrumental motivation to learn mathematics, less self-belief in their ability to learn mathematics and more anxiety about mathematics than boys, on average; they are also more likely than boys to attribute failure in mathematics to themselves rather than to external factors."
A differential mindset is not, as one might assume, a reason to separate boys and girls, particularly if that mindset is a product of social inputs. More bluntly, boys' and girls' different mindsets appear to be a function of the social stereotypes that they internalize, not innate differeces. Is the point of single sex education to unravel those stereotypes or is it a concession to the notion that there are innate differences underlying stereotypes? The PISA results strongly challenge the innate differences explanation and I am unaware of single sex programs systematically focusing on eliminating stereotypes. In fact, single sex education would seem to be no better suited to eliminate gender stereotypes than racially isolated schools are to eliminate racial stereotypes.
Friday, December 13, 2013
Last night, LaJuana posted the lawsuit by a group of educators and taxpayers challenging the constitutionality of North Carolina's recently enacted voucher program. I wanted to add a little more commentary on how the case fits into the broader framework of voucher and school finance litigation.
The plaintiffs rely on school finance precedent and specific language in the state constitution to argue that the program is unconstitutional. First, the North Carolina Constitution indicates that state funds deriving from public lands and proceeds that are set aside for education "shall be paid into the State Treasury and, together with so much of the revenue of the State as may be set apart for that purpose, shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” Thus, the use of any of these funds for private vouchers is a violation.
Second, the state supreme court has held that, "[u]nder the North Carolina Constitution, the State must provide all students an opportunity to receive a sound basic education." But the state has yet to fulfill that guarantee for all students and, thus, the diversion of resources away from meeting this obligation is a violation of the constitution.
Third, even if one could characterize the voucher program as somehow being part of the delivery of public education, it would still violate the constitutional requirement of a "uniform system of public schools." The voucher program is essentially standardless and makes no attempt to ensure the constitutionally mandated uniformity of opportunity between voucher students and public school students.
In many respects, this lawsuit mirrors Bush v. Holmes, 919 S.. 2d 392 (Fla. 2006), in which the Florida Supreme Court held that the state's voucher program was an unconstitutional diversion of public education funds to private schools. Both cases draw on the same type of explicit
Thursday, December 12, 2013
The City of Hoover, Alabama rescinded its decision this week to stop school bus service in the next school year, which serves around 5,700 students. The local board of education is in talks with the U.S. Department of Justice and other organizations to find money for the bus system while still addressing the district’s $12 million deficit. If alternative funding cannot be found, the school district may ask parents to pay the difference between what bus service costs and the amount of state funding allocated for transportation. When Hoover City Schools, a district in suburban Birmingham, AL, decided this summer to terminate bus service, parents and community leaders challenged whether the move would mean significant cost savings. Groups such as the Save the Hoover Bus System formed to protest the move. As we noted in earlier posts, some felt that the decision was motivated by a desire to drive out low income families and recent Latin American immigrants by eliminating their children’s transportation to school. For now, however, the buses will be back.
Will the Word “Exclusively” in the State Constitution Make a Difference in N.C. Suit to Stop Vouchers?
In a lawsuit filed yesterday in Wake County, North Carolina, plaintiffs are relying on the word “exclusively” to argue that private school voucher funding is unconstitutional in North Carolina. This summer, North Carolina became one of thirteen states to offer tuition tax credit vouchers for low-income students to attend private schools. Before 2013, the state had never appropriated public funds directly for private school education. (Readers may remember the voucher law’s controversial passage—the provision was buried in a huge budget bill that passed in the wee hours of the session—that helped spark Moral Mondays demonstrations.) Unlike its sister states, however, the North Carolina constitution provides that public education funds are to be "used exclusively for establishing and maintaining a uniform system of free public schools." That language is not just verbiage, argue the 25 plaintiffs, who are an interesting mix of a former state education superintendent, parents, teachers, the daughter of Julius Chambers, and a prominent Republican county chairperson. The N.C. Constitution gives an express right to education and requires the General Assembly to provide “for a general and uniform system of free public schools.” The Constitution then provides that that education revenue “shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” That language means, the plaintiffs allege, that the state cannot transfer taxpayer dollars from public schools to any institutions outside of the public school system. The plaintiffs also object to the lack of oversight and restrictions on private schools, stating in the complaint that “[t]he Voucher Legislation does not include any enforcement or accountability provisions to ensure that institutions receiving vouchers do not exclude minority students, disabled students, or students from poor families.” If the voucher law is upheld, eligible students could receive up to $4,200 starting next August to attend private or religious schools. The lawsuit is being sponsored by the North Carolina Association of Educators (NCAE) and the North Carolina Justice Center. Read the complaint here.
Earlier this summer, the Missouri Supreme Court in Breitenfeld v. School District of Clayton, 399 S.W.3d 816 (Mo. banc 2013), rejected a claim that a Missouri statute requiring a school district to recieve transfer students from nearby unaccredited districts violated the state constitution's prohibition on unfunded mandates. A similar action was filed in another school district. Tuesday, the Missouri Supreme Court reaffirmed its position in Blue Springs R-IV School Dist. v. School Dist. of Kansas City, 2013 WL 6448904 (2013), writing:
While this case was pending on appeal, this Court issued its opinion in Breitenfeld v. School District of Clayton. 399 S.W.3d 816 (Mo. banc 2013). Breitenfeld involved a very similar claim that the transfer provisions of section 167.131 constituted an unfunded mandate by requiring that students in the then-unaccredited St. Louis Public Schools be permitted to transfer to schools of their choice in adjoining counties. This Court rejected that argument, holding that section 167.131 merely reallocates responsibilities for educating students among districts and that the Hancock Amendment prohibits only new or increased levels of activities, not a shifting of responsibilities among school districts.
The holding in Breitenfeld is determinative. Section 167.131 does not mandate a new or increased level of activity but merely reallocates responsibilities among school districts. Further, this Court does not find that the State stipulated to the contrary below, and in any event the State may not by stipulation bind this Court to an erroneous statement of law. The judgment in favor of the Independence, Lee's Summit and North Kansas City taxpayers is reversed, and the judgment against the Blue Springs and Raytown taxpayers is affirmed.
The superintendent of Schenectady schools in New York, Laurence Spring, plans to file an administrative complaint with the U.S. Department of Education's Office for Civil Rights (OCR) on Friday. He alleges that his district is receiving $62 million less per year than the state had agreeded to in the school finance litigation from 2007. Spring concedes that Schenectady is not alone in its budget shortfall, but that by his calculations predominantly white schools are suffering a smaller per pupil shortfall than predominantly minority schools. In other words, the current funding formula in New York disparately impacts minorities in violation of the Department of Education's Title VI regulations. Spring emphasizes "This is not a school funding case — it’s an issue of discrimination. . . . New York state implements an educational funding structure which discriminates against students of color, English language learners and students with special needs.”
The substance of the claim--racially disparate funding--is not unique, not even in New York. The Campaign for Fiscal Equity made the same claim in regard to New York City schools and alleged a Title VI violation alongside of its state constitutional claims in the late 1990s, only to withdraw it after the Supreme Court in Alexander v. Sandoval held that not private right of action exists to enforce disparate impact regulations. This current claim, however, is distinct in terms of the forum in which it is made and who is making it.
OCR gets thousands of complaints a year. Almost all are lodged against a district, with a few against the state. But individuals and organizations are uniformly (or nearly so) the complainants. In structural terms, this would mean that a party outside of the federal funding agreement, which is the basis for Title VI liability, is asking the federal government to bring a district into compliance with Title VI. While students are certainly the beneficiaries of the federal money, the point of OCR's administrative process is not to secure remedies for individual complaints (although they may often get one). The point is to ensure future compliance by the district. This fact often frustrates complainants.
The instant case, in contrast, involves one federal funding recipient--the district--alleging claims against another--the state. This does not change the underlying substantive issue--discriminatory funding--but it does change the politics and resolution of that issue. In effect, the district is what one might call a "super plaintiff" in that it has actual legal standing in the contractual relationship between the federal government and the state and the district (although standing requirements are not predicates to OCR complaints). The district also has enhanced political standing. Unlike the single student who might ask OCR to terminate an entire school district or state's federal funding (if the district or state doesn't comply) simply because that student has been harmed, this complaint involves a district making a claim against its own system. Thus, it potentially could harm its own financial interests. In that respect, it may have more legitimacy and bargaining power in the eyes of OCR. On the other hand, the district is asking OCR to intervene in an internal state relationship, not simply the relationship between the federal government and the state or district, which raise federalism concerns. Fortunately, when discrimination is at issue, those federalism concerns are trumped.
Wednesday, December 11, 2013
The Campaign for Educational Equity in New York has been doing some great work as of late boiling down the complexities of school finance litigation and rights in a way that is accessible to the average person. Most recently, it published Know Your Rights: Instructional Materials, which was an outgrowth of its findings from another recent report that many students were deprived of these materials, among many other things.
I highlight these materials because those of you teaching education law or policy courses may be particularly interested. In the past, I have often assigned my students to write a 5 to 10 page memorandum in my Education Law class. Their task is to identify a school district to study, learn the school finance law of that state, and make some basic assessments regarding whether they believe the school district is in compliance. Given time constrainsts and experience, students work primarily at a level of generality. But the assignment forces them to think beyond the basic holding of a school finance case. It forces them to think about the various components of a constitutional education, what types of evidence relate to those components, and gather real facts on each of these points. Those who do this well produce memoranda that are strikingly similar in form and substance to the aforementioned reports, and they leave the class with an unusual level of sophistiscation on the topic.