Tuesday, December 10, 2013
The Kansas City Star has revealed emails showing that Missouri Education Commissioner Chris Nicastro made plans with an educational consulting firm to "wipe the slate" on the unaccredited Kansas City Schools system. Those secret plans and a questionable bidding process for the firm has some education officials calling for Nicastro's resignation. We have been closely following the troubled year for Missouri's Kansas City and St. Louis districts, so more controversy is no surprise. That the state had already made a deal to set a new agenda for the schools, however, was unknown until the emails were uncovered by the Star. The plans includes familiar education reforms: new leadership and an office for innovation and charter school expansion. The emails show that the state started planning to takeover Kansas City Schools as early as April and contracted an Indianapolis education consulting firm, CEE-Trust, to overhaul the district. State officials worked on an memorandum of understanding with CEE to that end, but it failed when the Kansas City Schools rejected it and called instead for open bidding. CEE drafted its bid based on its memorandum (which Nicastro's staff helped draft) and got the nod over a highly-rated Massachusetts company whose bid was one-third of CEE's. Kansas City Public Schools Superintendent Stephen Green is calling foul on the entire process, saying that the state had made up its mind before the district's August report card came out showing dramatic progress on recent proficiency tests. In the past, Nicastro has acknowledged the district's gains, but appears to have concluded that it was too little-too late, particularly as 70 percent of the district's student are below proficiency in reading and math and district has been been unaccredited since 2012 and twice in less than 15 years. Yesterday, Missouri State Board of Education President Peter Herschend stated that he supports Nicastro's decisions, but Missouri Gov. Jay Nixon said Monday "that it was a good time for the state Board of Education to 'monitor and evaluate' concerns' raised about her." Read more here.
Over the past few months, I have noted some major agreements by OCR that have expanded equal access to AP courses and other high level curriculum for minority students. The most notable was in Lee County, Alabama. Based on recent news, OCR appears to be continuing to press that issue elsewhere. News outlets in Michigan recently reported that, at the behest of/in conjunction with OCR, Grand Rapids Public Schools its revising its classroom assignment and admissions policies in an attempt to remedy the under representation of African-American students in AP, honors and college preparatory courses. The district and OCR hope to reach a settlement agreement soon. The district indicated that the first suggested step is to hire an outside consultant to analyze its data and identify what current barriers to equality might exist. The distict has already jumped on that task. Last week, the board approved a contract with the National Equity Project to begin the research. Kudos to OCR for staying on top of this issue, which research by Jeannie Oakes and others has long shown is the hidden segregation in our schools, but which has an enormous impact on the education children receive.
I am not sure whether it is related to OCR spotlighting the issue, but the New York Times recently reported on several other major school districts that are independently taking the initative to expand access to AP curriculum for poor and minority students.
Seventh Circuit Upholds Firing of School Counselor Who Wrote Relationship Advice Book Titled "It's Her Fault"
The Seventh Circuit Court of Appeals has upheld the dismissal of a tenured school guidance counselor's lawsuit who was fired after writing a sexually explicit book entitled It's Her Fault. While upholding the counselor's firiring in Craig v. Rich Twp. High Sch. Dist. 227, 13-1398, 2013 WL 6235856 (7th Cir. Dec. 3, 2013), the appellate court reversed the district court's finding that the book was not a matter of public concern. The case presents some tension, however, in deciding when an employee can be discharged for private sexual expression that would otherwise be protected by the First Amendment. Bryan Craig, a counselor and women's basketball coach at Rich Central High School in suburban Chicago, self-published It's Her Fault, an adult relationship advice book in 2012. Commenting on the book's subject, the 7th Circuit noted that "when we say “adult,” we mean it in every sense of the word—in his book, Craig repeatedly discusses sexually provocative themes and uses sexually explicit terminology." (A brief look at It's Her Fault's Amazon reviews generally supports that assessment.) In the book's introduction, Craig said that he was qualified to give women relationship advice because he coached girls basketball, worked "in an office where I am the only male counselor, and [was] responsible for roughly 425 high school students a year, about half of whom are females.” Craig also thanked his students in the acknowledgements and had another Rich Central write the book's foreword. In September 2012, the Richman Township High School District found out about the book and discharged Craig on three grounds: (1) that the book “caused disruption, concern, distrust and confusion among members of the School District community;” (2) Craig violated the policy “prohibit [ing] conduct that creates ‘an intimidating, hostile, or offensive educational environment;” and (3) that “Craig failed to present [himself as] a positive role model and failed to properly comport himself in accordance with his professional obligations as a public teacher.” Craig sued the school district under 42 U.S.C. § 1983 alleging retaliation against him for engaging in protected speech. The Northern District of Illinois dismissed Craig's suit for failure to state a claim because It's Her Fault did not address a matter of public concern and thus was not entitled to First Amendment protection. Read more after the jump.
Monday, December 9, 2013
The Pennsylvania legislature is expected to act this month on a hotly contested bill to reduce funding to the state’s 15 cyber charter schools but release all charters from local school district control. For example, under the proposed law, the Philadelphia school district would have no authority over charter schools in its area, but would still be obligated to pay $708 million of its funding to them. Education advocates are concerned that removing local control of charter schools will place an unbearable financial burden on already-troubled school districts like Philadelphia. The Education Law Center of Philadelphia (ELC) is even more concerned about a provision that allows any Pennsylvania higher education institution with 2,000 students the power to authorize new charter schools. About 100 higher education institutions have 2,000 students, so the provision could lead to an exponential growth in public charter schools with no input from local school districts. Given that every higher ed institution is looking for new income streams, the ELC’s prediction is likely correct that colleges and universities will enthusiastically take on the challenge of charter schools if the provision passes. Derek’s recent post on Pennsylvania Staying on the Bandwagon to Halt Cyber Charters questioned poorly-conceived start-stop education policies. States like Pennsylvania throw their doors open for cyber-charters and then put moratoriums on them when something goes wrong--in Pennsylvania’s case widespread fraud. To be fair, the back-and-forth on charter schools generally (and cybers particularly) is tied to who has the power at any given time. Read more here.
Notwithstanding my railings on the current use of the NCLB waiver process and my suggestion that some waiver conditions are outside the scope of legislative authority, the issue remains complex and the opposing view worth considering. Earlier this year, David Barron and Todd Rakoff published In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013), which focuses on the constitutionality and virtues of the administrative waivers available under No Child Left Behind and the Affordable Care Act. The main thrust of the article is that, given the complexity of today's statutory and administrative state, the administrative waiver is nearly a necessity and something that works to both Congress and the Executive's advantage. Among other things, it helps Congress adapt laws to unforeseen circumstances and improves the political accountability of the executive branch. The abstract explains:
This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime--even one it knows may be waived--big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies' subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
The key question, however, is not whether the waiver is good policy (I believe I agree that it is), but whether it is constitutional. On this point, the tail seems to wag the dog in the article; good policy and practicalities motivate a favorable constitutional analysis. With that said, the article does give me serious pause in my initial conclusions about the constitutional issues. In this respect, the article is a success both in itself and for the administration.
A block quote of the conditional waiver analysis follows the jump.
Friday, December 6, 2013
The Program for International Student Assessment (PISA) results came out last week and prompting the annual reflection about the U.S.' rankings (17th in reading, 21st in science, and 26th in math). The PISA is coordinated by the Organization for Economic Cooperation and Development (OECD) to test the math, science, and reading skills of 15 year-olds in 34 countries. Education Secretary Arne Duncan said that "the United States’ performance on the 2012 PISA is a picture of educational stagnation. This is a reality at odds with our aspiration to have the best-educated, most competitive workforce in the world.” Michelle Rhee of Students First responded to the PISA results this week in Time Magazine, saying that we will have "more mediocrity for American education" unless the nation fully embraces educational reform.
As we read the results and ponder what they mean for American education, we should keep in mind that some countries played by different rules. Tom Loveless, a senior fellow with the Brown Center on Education Policy at Brookings pointed out that the top scores from China are meaningless because "China does not take the PISA test." The results from China are really from the country's most elite educational systems, such as Shanghai:
Shanghai has an economically and culturally elite population with systems in place to make sure that students who may perform poorly are not allowed into public schools. Second, the media should not present Shanghai’s scores as if they are indicative of China’s national performance in education. They aren’t, and no one will know how well China can perform on an international test until it participates, as a nation, under the same rules as all other nations.
An unlevel playing field with some countries does not mean that the United States should be complacent--there are countries on the list such as Japan and Estonia that have a diverse group of students doing better than America. In fact, improving education is the only thing that everyone agreed on in this divisive year. But as we look back at the year in education, the education reform movement must also be held accountable for results.
Joy Resmovits of Huffington Post recently ran an in-depth story on students with severe autism and one family's fight for their son's education. The fight is over whether a 6 year old boy, Max Masucci, can learn to say his name. The school's specialists say he can't. His parents say he can, but the time window for him to learn "how" to learn is closing. They point to researchers who say there is a "window of opportunity [in which] the brain is still developing and very malleable until age eight or nine. . . If, at that point, you utilize some of the evidence-based best practices like behavioral intervention strategy, you really are rewiring the brain." In other words, if the district doesn't act soon, its prophesy may be self fulfilling for Max.
A key legal and policy issue is embedded in this debate. The cost of special education services, particularly for individuals with severe disabilities, can be enormous. As a result, some schools feel incentivized to deny or delay services. Even if parents challenge schools through special education due process hearings, schools can end up saving money if they can win a portion of these hearings. Of course, many families will not challenge the school. The problem is that this calculus ignores long term and broader societal costs. The Autism Society emphasizes, for instance, that if autistic students do not learn the skills they need to eventually live an independent life, the societal cost of care only increases over time: $3.2 million over the course of each person's life. The total national cost would be between $200 billion and $400 billion annually. Early investments in education, however, are said to give these students a 60 percent chance of independent living. If those numbers are correct, special education services and legal compliance are not burdens on society that we ought to avoid, but a cost savings we should embrace. Of course, this is the same point advocates have pressed in recent months regarding implementing universal pre-k and ending the school-to-prison pipeline. Either our propensity to live in the moment or the growing lack of faith in the education system keep getting in the way of rationale thought.
Thursday, December 5, 2013
Education Week is running a series of stories, videos, timelines, and commentaries this week called Education in Indian Country. The series highlights the Pine Ridge Indian Reservation in South Dakota and Morongo Indian Reservation in California, as well as the history of Native American education in the United States. The Pine Ridge Reservation, the subject of the video above, is home to nearly 40,000 members of the Oglala Lakota Sioux nation. Pine Ridge's residents are trying to increase outcomes for students to overcome a history of poverty, unemployment, and early mortality. The Morongo Band of Mission Indians in the San Bernardino mountains is trying to turn its casino-generated wealth into a new school to reverse decades of low achievement. Unlike every racial and ethnic category of students in which graduation rates are rising, American Indian graduation rates have dropped since 2008. Read the series here.
Aaron Taylor's two recent posts with us call into question the sincerity of some elite universities that profess a commitment to merit based admissions. His posts suggest a commitment to money. Unfortunately, one of the nation's very finest public universities is heading toward that camp. The University of Virginia is one of the least socioeconomically diverse colleges in the country. According to the study in LaJuana's post this morning, only the University of Delaware has a smaller percentage of students attending on Pell Grants. To UVA's credit, it, like the Stanfords of the world, previously adopted an extremely generous financial aid package for low-income students, whereby it would cover the full financial need of students whose families fell below 200% of the poverty line. Announcements of these sorts almost always gain universities praise on NPR. In fact, I recall a slew of these stories in recent years ago, as the elites sought to outdo one another.
As critics often point out, however, these programs often have little effect on these universities because students from that income bracket rarely gain admission to these top universities. In other words, it is not a diversity in admissions program, but rather financial aid premised on making it through the admissions process.
The problem for UVA is that its program worked too well. Low-income students have gained admission and taken the university up on its offer. "The proportion of students eligible for need-based aid under the program has grown from 24 percent to 33 percent. And the share of the student body that is low income has risen from 6.5 percent to 8.9 percent." UVA's response: end its no-loan policy for low-income students next year. The most flattering version of this story is that UVA is a victim of its own success and now cannot afford the program. Given the wealth of UVA and its overall budget, Ed Central doubts this. The least flattering version is that UVA was more interested in the public relations benefits of the program than diversity.
Wednesday, December 4, 2013
Following up on Aaron Taylor's post last Wednesday about the economics of higher education admissions, an article in last week's The Atlantic, The Federal Student Aid Program Is Breaking Its Promise to the Poor, highlights Aaron's concerns that wealth can be a "proxy for merit in higher education admissions." The subtitle to the Atlantic article sums up the point: "[s]tudents from households with more than $100,000 in income received more federal aid in recent years than those from households with less than $20,000 in income." According to NCES data, in 2007-2008, students from households with more than $100,000 in income received $8,470 in federal aid versus the $8,060 received by students fom households with less than $20,000 in income. While those numbers may be no news flash to educators in higher ed, the article notes how far the federal student aid program has drifted from President Lydon Johnson's aim in the Higher Education Act of 1965 to help lower income students attend college. Today, colleges use federal student aid to get the new desireables: students that can pay most of their own way and are attracted by scholarships that will allow them to graduate debt-free. As Aaron noted, for many institutions, "merit" aid is given to those with the ability to pay for a slightly reduced tuition. Federal student aid is perversely used in some cases to disincentivize lower income students from enrolling. One way is an admission procedure called admit/deny, which is, an executive at an enrollment firm says, "when you give someone a financial-aid package that is so rotten that you hope they get the message, ‘Don’t come.’”
The Atlantic article is informed by a report (pictured left) by the New American Foundation called Undermining Pell: How Colleges Compete for Wealthy Students and Leave the Low-Income Behind. The report in PDF is here.
North Carolina Court of Appeals Holds that State Board Can Refuse to Act on Virtual Charter School Application
The North Carolina Court of Appeals upheld a superior court's decision yesterday that the State Board of Education could refuse to act on a virtual charter school's application. According to North Carolina station WRAL.com, the appellate court found that "[u]nder state law, the State Board of Education 'is vested with sole authority regarding charter schools in North Carolina, including all decisions regarding the formation and operation of such school.' " The case highlights some of the complexities of having parallel authorizing procedures for new schools. When the North Carolina legislature lifted the 100-school cap on charter schools in 2011, it did not address virtual charter school programs. Following the new law, the State Board of Education (SBE) developed a “Fast Track” approval process limited to traditional charter schools. In November 2011, a nonprofit organization called North Carolina Learns (NCL), created by online education company K12, Inc., submitted a Fast Track application to open the North Carolina Virtual Academy. NCL and K12, Inc., brokered a deal in 2012 with the Cabarrus County's School Board to set up a charter school with a statewide reach. According to WRAL.com, NCL agreed to pay 4 percent of its revenue to the school system in Cabarrus, located north of Charlotte, as well as pay K12." NCL was approved to open by the Cabarrus County Board of Education (CCBE), with the caveat that “[i]f the preliminary charter entity is other than the State Board of Education please contact the Office of Charter Schools for guidance.” NCL did not do that, but did forward its application to the SBE. The SBE did not respond, having announced in October 2011 (before NCL's application) that it would not approve any virtual charter schools in the 2012-13 school year. The rebuff prompted NCL to sue, arguing that the SBE's failure to respond to NCL's application within the Fast Track period stripped the agency of jurisdiction over the matter. NCL argued that its application should be approved by operation of law. See N.C.G.S. § 115C-238.29D(a). Last year, a North Carolina Superior Court judge held that SBE was within its discretionary power to ignore NCL's application, reasoning that a local board of education "is not experienced in, nor equipped as the SBE, with the staff and know-how to review, evaluate, and approve the application of a charter school designed to serve a statewide clientele, nor is it authorized to give final approval for such operation." Read more about North Carolina State Board of Education v. North Carolina Learns, Inc. here.
The Education Law Center just issued a year-end round up of all the significant developments in school finance litigation for 2013. The Center indicates that the leading cases for the year are those out of Kansas and Washington. Cases in Arkansas, Connecticut, Florida, New York and Texas are nearing trial. California and Rhode Island have cases on appeal. South Carolina still awaits a decision from its supreme court and North Carolina is returning to the trial court, after a recent loss before its supreme court. More details on each here. Contrary to my worries a few years ago, the great recession slowed school finance litigation for a few years, but it did not end it. In fact, many courts and cases are pressing ahead and recapturing ground lost since 2008.
The Atlantic ran a story last week about the lessons we might take from Japan's educational success's and failures. It begins by pointing out that our current educational policies of increasingly rigorous testing and standardized curriculum tied economic necessities are consistent with or modeled after Japan's. The problem is that, while that model was initial successful, it has proved problematic in recent decades and has not been sufficient to keep Japan globally competitive. Critics charge that the rigidity of Japan's education system lead to an insufficiently flexible economy; what education really should do is promote creativity and innovation. The result: "one-third of Japanese workers are irregularly employed, including 70 percent of all female workers and half of all workers between 15 and 24. A full 77 percent of the irregularly employed earn wages less than poverty level, and so are working poor." Others also question the notion that education's only purpose is economic achievement and global advancement. The result of that approach, they say is to rob individuals of the ability to fit into society when the economy turns.
The article does not explicitly wade into the current battle over the common core curriculum, but it has clear implications, as each side in the battle is making claims that the common core will improve or undermine our competitiveness. Japan's experience also suggests we should not overlook the source of educational obligation and the wisdom in it. While none would question the importance of economic and global competitiveness, our educational obligation arises primarily from our interest in citizenship. All fifty state constitutions obligate the state to deliver an education to their students. While these constitutions vary, most coalesce around two or more themes. As I detailed in The Power of Small Schools: Achieving Equal Educational Opportunity Through Academic Success and Democratic Citizenship, 82 Neb. L. Rev. 50 (2003), educational quality as measured by objective factors like standards and test scores only encompass half of our constitutional duty. The other half is about producing citizens. These two obligations are not mutually exclusive, but neither are they co-extensive. Thus, even if Japan's experience is not directly applicable to the United States, our state constitutions indicate must be just as worried about social implications as ecnomic ones.
Tuesday, December 3, 2013
Progressive and Conservative Groups Align Around Equal Access to Teachers, While Dept. of Education Goes the Other Way
The Center for American Progress has released a new report, Giving Every Student Access to Excellent Teachers, that fits in well with much of the conversation coming from other outlets over the past week or two. The report offers a summary of why access to excellent teachers is so important, emphasizing that:
Excellent teachers—those in the top 20 percent to 25 percent of the profession in terms of student progress—produce well more than a year of student-learning growth for each year they spend instructing a cohort of students. On average, children with excellent teachers make approximately three times the progress of children who are taught by teachers in the bottom 20 percent to 25 percent. Students who start behind their peers need this level of growth consistently—not just in one out of four classes—to close persistent achievement gaps. Students in the middle of the academic-achievement continuum need it to exceed average growth rates and leap ahead to meet rising global standards.
The report is skeptical of current policies' approach to expanding access to excellent teachers. Current policies "focus intently . . . on boosting the number of excellent teachers in America’s schools" by "recruiting more high achievers into the teaching profession, creating incentives for better teachers to stay in teaching and teach less-advantaged children, and dismissing the least-effective teachers." But the report concludes that these policies are insufficient in the short term to expand access for the majority of students who need it. Thus, the report offers four proposals through which the federal government could expand access immediately:
1. Structure competitive grants to induce districts and states to shift to transformative school designs that reach more students with excellent teachers and the teams that these teachers lead. Incentivize innovation by awarding funds to districts and states with strong, sustainable plans to transform staffing models in ways that dramatically expand access to excellent teaching and make the teaching profession substantially more attractive.
2. Reorient existing formula grants to encourage transition to new classroom models that extend the reach of great teachers, both directly and through leading teaching teams. Dramatically improve student outcomes by putting excellent teachers in charge of the learning of all students in financially sustainable ways. By teaching more students directly and leading teams toward excellence, great teachers could take responsibility for all students, not just a fraction of them.
3. Create a focal point for federal research and development efforts. Spur rapid progress by gathering and disseminating evidence on policies and practices that extend the reach of excellent teachers, directly and through team leadership, and accelerate development of best-in-class digital tools.
4. Create and enforce a new civil right to excellent teachers, fueling all districts and states—not just the winners of competitive grants—to make the changes needed to reach all students with excellent teachers and their teams.
Notable in these recommendations is the alignment and misalignment with recent studies and developments. The report's first recommendation is strikingly similar to the one growing out the Fordham Institute's recent study, Right Sizing Classrooms, that advocates expanding classroom enrollments for strong teachers and shrinking them for weaker ones. For those who follow the politics of these organizations, the Fordham Institute and the Center for American Progress do not exactly see eye-to-eye. That they seem to agree on this point is worth noting.
All four of the report's recommendations, and the fourth in particular, run contrary to the Department of Education's announcement last week that it was dropping the requirement of access to effective teachers from the NCLB waiver process. As noted in my post on the change, the Department is acting contrary to existing statutory requirements, a substantial body of research, and the pleas of civil rights advocates. Rather than moving backward on access to excellent teachers, the Center for American Progress's new report proposes that this access be statutorily guaranteed as a civil right because it is so fundamental to educational opportunity.
Forbes recently published an editorial entitled, The Farce of Meritocracy: Why Legacy Admission Might Actually Be a Good Thing. The thesis of the piece is that legacy admissions preferences are so absurd that they may actually be useful in exposing the farcical nature of our meritocratic notions. While I agree that legacy preferences are antithetical to conceptions of merit, I strongly disagree that they are in any way “a good thing.”
As the author points out, legacy preferences tilt the admissions game in ways that allow social, financial, and political capital to masquerade as merit, thereby further disadvantaging already disadvantaged applicants. Put simply, legacy preferences preserve privilege. I understand what the author was attempting to do—use irony to highlight an absurdity. But I guess I have less faith in the ability of some to grasp the shrewdness of the piece.
I have written in other spaces about the effects of un-meritocratic privilege in selective admissions. So there is no need to revisit those points here; but the author made one point is that I think is deserving of further emphasis. He writes the following about Stanford’s admission process:
Applicants are not just given preference because they are children of alumni, but because they are children of alumni who donate money…If alumni have donated money, the admissions office will know about it. In any other circumstance, this would be considered bribery. But when rich alumni do it, it’s allowed. In fact, it’s tax-subsidized.
This point cannot be emphasized enough. The tax code subsidizes the de facto (if not actual) bribery of selective colleges and universities all over the country. Privileged individuals are allowed to use un-meritocratic means (in this case, money) to tilt the admissions process in their favor (legacy applicants at Stanford are three times more likely to be offered admission), and in the process, they receive a tax deduction. And if that is not bad enough, the institution is allowed to collect the payoff free of taxes as well. In this context, less affluent individuals are contributing, in the literal sense, to their continued disadvantage.
We spend seemingly endless amounts of time arguing about the appropriateness of so-called “welfare” programs for the poor, but rarely give the same attention to welfare for the rich. Similarly, we express passionate indignation (righteous and otherwise) about racial preferences, while accepting socioeconomic preferences as simple facts of life.
But let us be clear: not all preferences are created equal. And racial preferences premised on broadening access to opportunities are far nobler than those, like legacy admissions, that merely preserve the unequal and unjust status quo.
Monday, December 2, 2013
Ohio Attorney General Mike DeWine has announced that new indictments have been issued in the nationally-publicized Steubenville teen rape case. The indictments charge school administrators and staff with having information about the rape and breaking state law by failing to report it properly. In August 2012, a minor girl was raped at a party, and the case received national attention after photos and videos of the incident were posted on social media. Two Steubenville High School football players were convicted of the rape: one recieved a mininum one year sentence in a juvenile correctional facility; the other player got two years. Last week, a special grand jury reviewing additional crimes in the case has indicted Steubenville City Schools Superintendent Michael McVey and Matt Belardine, a former assistant high school football coach for Steubenville City Schools. Superintendent McVey was indicted for tampering with evidence, three obstruction crimes, and falsification. Belardine was charged with four misdemeanors: allowing underage drinking, obstructing official business, making a false statement and contributing to the unruliness or delinquency of a child. William Rhinaman, Steubenville City Schools' director of technology, was previously indicted for tampering with evidence, obstruction of justice, obstructing official business and perjury. Last week's grand jury indictment also included separate charges for three other educators in an April 2012 rape case in Steubenville that was never prosecuted.
Wisconsin Student Speech Decision Reverses on First Amendment Grounds but Affirms Adjudication on Unlawful Computer Use
While the Wisconsin Court of Appeals reversed a student’s disorderly conduct juvenile adjudication on First Amendment grounds last week, the appellate court curiously affirmed the adjudication for violating a state unauthorized-use-of-a-computer statute for the same conduct. Those who follow the developing law of federal unauthorized use statutes will recognize the bedeviling issues that arise when defendants are prosecuted for protected First Amendment speech because of the method used to deliver that speech--a computer. The Wisconsin student, Kaleb K., was prosecuted under state disorderly conduct and unauthorized computer use statutes after posting a YouTube video about his Spanish teacher. At trial, the lower court rejected Kaleb's claim that “the content of his rap was protected by the First Amendment, which barred the State from prosecuting him for disorderly conduct.” The trial court’s findings focused on the rap’s vulgar language without addressing the student’s First Amendment defense. The lower court found the student delinquent for disorderly conduct for the video and for a violating a state law prohibiting the unlawful use of a computerized communication system. The unauthorized use law prohibits using computer communication to send a message to another person “with intent to frighten, intimidate, threaten or abuse … with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.” The Wisconsin Court of Appeals affirmed Kaleb K.’s adjudication of guilt on the unlawful use of a computerized communication system under a state case holding that “nonspeech elements” of otherwise protected speech may be subject to prosecution. Given the Court of Appeals’ interesting split reasoning, this case may be headed to Wisconsin’s Supreme Court. The case is In re Kaleb K., No. 2013AP839, 2013 WL 6182562 (Wis. Ct. App. Nov. 27, 2013).
Just before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car. The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag. The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom. He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”
The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.” Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”
The school is right on courts' interpretation of the flag. Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment.
While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated. If a student's argument is pretext, a school can easily intervene. But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.
Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer. After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband. If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker. This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.
In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction. Even if the student does not support racism, the student is probably trying to incite a reaction. If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.
Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive. As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous. Consider the fact that in Hinduism a swatiska is a geometric represenation of the god Ganesha. As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.
(image with permission from Jean nguyen)