Saturday, May 18, 2013

New sexual harassment standards for college campuses draws First Amendment concerns

As part of resolving Title IX complaints against the University of Montana for its handling of sexual assault reports involving its student-athletes, the federal government announced new definitions of sexual harassment designed "to provide clearer notice [to students] of the conduct prohibited" on college campuses. The Departments of Education and Justice co-authored a letter of findings to Montana, stating the administration's intention to make the policies in the letter "the blueprint for colleges and universities throughout the country." On Friday, the Foundation for Individual Rights in Education (FIRE), criticized those new policies in a Wall Street Journal op-ed,  pointing out that the administration's new sexual harassment definition includes "any unwelcome conduct of a sexual nature" including "verbal conduct." This definition, FIRE argued, "makes virtually every student in the United States a harasser."

The administration's standards might affect more than First Amendment rights. Other language in the letter allows the university to punish students for sexual harassment before the school's investigation or resolution of the complaint. This new policy, FIRE noted, is far broader than the standard set by the U.S. Supreme Court for student-on-student sexual harassment in Davis v. Monroe County Board of Education. Below is the announcement about the University of Montana agreement by deputy assistant attorney general Roy Austin Jr., DOJ Civil Rights Division.


May 18, 2013 in Federal policy, News | Permalink | Comments (0)

Thursday, May 16, 2013

DC School Closures: The Effect of Charter Schools and the Meaning of Discrimination

Masthead_logoA little over a month ago, a coaltion of community members and local organizations in DC sued the DC Public School System in an attempt to stop the continued policy of school closings.  Cribbing from the court's order:

"All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."

The plaintiffs alleged that the plan was racial discriminatory, violated the rights of special education students, and that the process by which DCPS made its decision violated the city's notice requirements.  Yesterday, the federal district court rejected plaintiffs' motion for preliminary injunction, finding that plaintiffs had a low likelihood of success on the merits.  The district court's opinion is here: Download School Closings --- Order.

In most respects, the opinion is a straightforward application of existing law and doesn't break new ground.  Interesting, however, is the issue of what it means to discriminate in the context of facts where one knows a policy will affect only minorities.  From the perspective of the Supreme Court's seminal opinion on the meaning of intentional discrimination in Mass. v. Feeney, one must act because of, not in spite of, disparate impacts.  This principle makes a great deal of sense in the context of the facts of Feeney, where the state was seeking to benefit veterans, which is a legitimate goal.  The only way to benefit veterans is "to benefit veterans."

The principle is not so obvious in the context of school closings where the district is picking which ones to close.  There are necessarily multiple options and no obvious legitimate goal to benefit or burden any group.  Ultimately, the district needs to operate fewer schools and closing any schools, including ones currently at capacity, can achieve that goal.  Thus, the question is not necessarily which schools are the most underutilized, but rather, which students will feel the burden of school closing.  When minority students are the only ones that feel that burden, one can legitimately ask whether the district would ever undertake a policy in which whites were the only ones feeling the burden.

You might also find in the subtext of the opinion the role of charter school growth in the closing of traditional public schools.  Charter schools have rapidly expanded in minority communities in DC, and the under-enrollment in the schools slated for closure is closely connected to the growth of charter schools.

--Derek Black

May 16, 2013 in Cases, Charters and Vouchers, Discrimination, Equity in education | Permalink | Comments (1)

Recent scholarship

LegalwriteAaron Saiger (Fordham Law) has posted Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education on SSRN (Cardozo Law Review, forthcoming). Saiger is not optimistic about states' abilities to control how much public money goes to religious charter schools, writing that "[p]ractical and constitutional constraints upon the regulatory tools that the neoliberal paradigm makes available to states — rulemaking and exercising bureaucratic discretion when approving and renewing charters — ensure that efforts to abolish religion in charters will enjoy only partial success."

Promoting Language Access in the Legal Academy, recently posted on SSRN, discusses innovations and best practices about language access in the legal academy. Building on research and the ABA’s 2012 Standards for Language Access in Courts, the authors outline ways to include language access in the law school curriculum and suggest bilingual instruction as a language access strategy. The authors also describe how law schools can expand the pipeline into the interpreter professions by training and deploying bilingual college students as community interpreters. The article by Gillian Dutton (Seattle University School of Law), Beth Lyon (Villanova University School of Law), Jayesh Rathod (American University - Washington College of Law), and Deborah M. Weissman (University of North Carolina School of Law), will be in the University of Maryland Law Journal of Race, Religion, Gender and Class, forthcoming.

Sara Solow and Barry Friedman (NYU Law) advocate changing the ways law professors teach and discuss constitutional interpretation in their article, How to Talk About the Constitution (Yale Journal of Law & the Humanities, 2013). This article would normally seem more appropriate for our colleagues at Constitutional Law Prof Blog, but is helpful for education law scholars because the authoris illustrate their constitutional interpretation model by making a case for a federal right to a minimally-adequate education.

Speaking of Constitutional Law Prof -- they have a detailed breakdown of why the Louisiana Supreme Court struck down the state's school voucher funding scheme this week. Read more at Constitutional Law Prof Blog.

Know of other recent education law scholarship that we should share? Please send us a link.


May 16, 2013 in Scholarship | Permalink | Comments (0)

Upcoming Conference and Report on Community Colleges as a Bridge to Higher Educational and Economic Opportunity

Rick Kalhenberg and the Century Foundation are hosting "Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream" next week in Washington, DC.  See below for more details.  The Century Foundation will be releasing its report on the subject there as well.  For those who cannot make it, it will be webcast.  I will update this post with the link when it is available.

 --Derek Black



Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream

Thursday, May 23, 2013 11:00-12:30 (panel discussion) to be followed by lunch
Knight Conference Center at Newseum, 8th Floor
555 Pennsylvania Avenue, NW
Washington, DC
(Entrance located on 6th Street between Pennsylvania Avenue and C Street)

Community colleges are more important than ever to American economic competitiveness and social mobility, yet more than half of entering students fail to receive a certificate or degree within six years.  Many fine efforts are being pursued to scale up best practices at community colleges, but should we go further and rethink the basic ways in which two-year institutions are financed and governed?  Please join us for the release of the report of The Century Foundation Task Force on Preventing Community Colleges from Becoming Separate and Unequal.  Learn more about the 22-member Task Force, which was supported by the Ford Foundation and co-chaired by Eduardo Padrón and Anthony Marx. The forum will feature:


Martha J. Kanter, Under Secretary, U.S. Department of Education

Anthony Marx, President, New York Public Library and Former President, Amherst College (Task Force Co-Chair)

Eduardo Padrón, President, Miami Dade College (Task Force Co-Chair)

Richard D. Kahlenberg, Senior Fellow, The Century Foundation (Task Force Executive Director)

Isaac Cameron, Former Student, Highline Community College, and Amherst College Graduate

May 16, 2013 in Conferences | Permalink | Comments (0)

Tuesday, May 14, 2013

Louisiana Supreme Court rules voucher funding violates the state Constitution

The Louisiana Supreme Court has ruled that the current method of funding the statewide school voucher program is unconstitutional. Act 2, part of Gov. Bobby Jindal's 2012 package of education reforms, diverts money from each student's per-pupil allocation to cover the cost of private or parochial school tuition. The act authorizes both the Louisiana Scholarship Program and the new Course Choice program. 


States are busily passing voucher laws, but a few are running into problems with their state constitutions. Louisiana now joins Colorado and Florida in having school voucher laws declared unconstitutional under their state constitutions. The courts' rulings in Colorado and Florida were decided in part on religious grounds, and that part of the voucher debate is brewing in New Jersey and Pennsylvania.

Puzzled by the voucher controversy? The National Conference of State Legislatures has a primer on the voucher debate, as does Education Week.

May 14, 2013 | Permalink | Comments (0)

Diversity without Affirmative Action? Part II

20130114-richard-d.-kahlenberg John_brittain_headshotAs a followup to LaJuana's  post last week, I see the New York Times is hosting a debate on the same topic, with commentary by Rick Kahlenberg, Patricia Williams, and John Brittain, among others.   

These commentators are obviously bracing for the worst (depending on your perspective) in Fisher v. Texas, but Rick Kahlenberg and John Brittain offer suggestions on how to move forward with policies that ensure meaningful equity, both in terms of race and socioeconomics.

                                                                           --Derek Black

May 14, 2013 in Racial Integration and Diversity | Permalink | Comments (0)

Monday, May 13, 2013

Segregation Claims, Strict Scrutiny, and Equal Access Part I

A few days ago, the Sixth Circuit in Spurlock v. Fox rejected a claim by an African American community challening Nashville's student assignment plan. Nashville's school district was under court ordered desegregation until 1998.  The current challenge centers around the district's adoption of a neighborhood schools plan that retained some transfer options for students, but which retained few options and less integration.

An interesting aspect of the case was the plaintiffs' allegation that the mere consideration of racial demographics in adopting the new plan amounts to a racial classification that should trigger strict scrutiny.  This same argument was recently made in Doe v. Lower Merion, 665 F.3d 524 (3d Cir. 2011), although there the challenge was to a racially integrative plan.  Both Spurlock and Doe rejected this argument, relying on Justice Kennedy's controlling opinion in Parents Involved v. Seattle. Thus, the opinion, although a negative outcome for African American students seeking access to better schools in Nashville, is favorable precedent for school districts that want to consider racial demographics to create integrative assigment policies. The Spurlock opinion is available here:

The case also raise key issues about equal access to quality educational opportunities and the meaning of intentional discrimination, which I will address in upcoming posts.

--Derek Black

May 13, 2013 in Cases, Discrimination, Equity in education, Racial Integration and Diversity | Permalink | Comments (0)

Sunday, May 12, 2013

Texas judge rules that showing religious banners during school sporting events does not violate the Establishment Clause

For every game last season at Kountze High School in Texas, cheerleaders made spirit banners with bible verses on them for football players to run through to the field. The cheerleaders were temporarily stopped from using the bible-verse banners, when Freedom from Religion, a group advocating church-state separatism, complained about the banners' religious content. Kountze Independent School District (KISD) Superintendent Kevin Weldon responded by banning displays of religious messages at school sporting events. On May 8, a Hardin County, Texas judge ruled that the cheerleaders' religious-themed banners did not violate the First Amendment. The Establishment Clause does not prohibit displaying banners with religious content at public school sporting events, Judge Steven Thomas wrote, or require that the KISD ban such banners. The harder question not answered in the opinion is whether the Kountze Independent School District can ban such messages. See KISD's press release on Matthews v. Kountze Independent School District.

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

Diversity Without Affirmative Action: Still a Worthy Goal?

Education News discusses California universities' efforts to maintain diversity after Proposition 209 and asks if diversity is worth the cost:
Those familiar with the Supreme Court are saying that it’s looking increasingly likely that affirmative action in college admissions is on its way out. The New York Times explores the ways in which states that are now looking for a different way to maintain diversity on their college campuses can emulate one of the first states not to use affirmative action at all – California. Read more at Education News.


May 12, 2013 in Equity in education | Permalink | Comments (0)