Thursday, June 6, 2013

Recent scholarship

The Schempps at the Supreme Court
Douglas Laycock (Virginia) tells the story of the plaintiffs in the landmark Supreme Court school prayer case, Abington School District v. Schempp, in Edward Schempp and his family,  38 J. Sup. Ct. Hist. 63-79 (2013). Professor Laycock explains the historical context of the Pennsylvania statute that was the subject of the Supreme Court case (that required that ten verses be read from the Holy Bible, “without comment,” every day in every school) and discusses the family dynamics that pushed the Schempps to challenge the law. Professor Laycock relates an amusing story of a high school principal's futile attempt to punish the lead plaintiff in the case: "The principal wrote negative letters of recommendation for all the college applications of Ellery Schempp and contacted the admissions officer at Tufts University to urge that Ellery be rejected." Tufts admitted Schempp anyway. Wiley Library has a full-text version of Professor Laycock's article online here.

 In keeping with Professor Laycock's look back at plaintiffs in landmark education law cases, we also note the recent passing of Alton T. Lemon, civil rights activist and lead plaintiff in Lemon v. Kurtzman, on May 26. Read the New York Times' obituary here.

Regretting Roth? Why and How the Supreme Court Could Deprive Tenured Public Teachers of Due Process Rights in Employment, 44 Loy. U. Chi. L.J. 591 (2013), discusses the Supreme Court's discomfiture with the Roth/Perry test (that determines if a public employee has a right to employment protected under due process) and theorizes that the Court may substitute an alternative framework for determining the presence of a protected interest-- the “atypical and significant hardship framework." If the Court chooses the latter test, author Karl D. Camillucci (Holland & Knight LLP, Chicago) argues, tenured teachers’ claims under due process will  be substantially restricted.

More than a straightforward book review, Gregory Duhl (William Mitchell) details his personal experience with Borderline Personality Disorder in his article, Over The Borderline--A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability and Academic Life, 44 Loy. U. Chi. L.J. 771 (2013). Here's an excerpt from the abstract: "This Article is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability and Academic Life, Professor Margaret Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this Article, I place Price’s work in a legal context, discussing why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique."

Teachers’ online conduct has been a popular topic for legal scholarship this year, and two articles this week discuss the perils for teachers with technology. In Streaming While Teaching: The Legality of Using Personal Streaming Video Accounts for the Classroom, 23 Alb. L.J. Sci. & Tech. 221(2013), Jonathan I. Ezor (Touro) examines the applicability of the fair use defense and the Copyright Act § 110(1) when teachers use personal accounts on services such as Amazon, Hulu, and Netflix to stream copyrighted content in the classroom.

In Facebook Off Limits? Protecting Teachers' Private Speech on Social Networking Sites, 47 Val. U. L. Rev. 119 (Fall 2012), Valparaiso student Lumturije Akiti argues that the Supreme Court’s Pickering-Connick balancing test leaves teachers largely unprotected from being disciplined for their private social networking. Akiti reasons that Pickering places too much weight on teachers’ duties rather over their being members of the general public, because much of teachers’ speech on social networking sites do not implicate the government's interest as an employer. Teachers' lawsuits challenging terminations based on social media communication are also unlikely survive summary judgment because such private speech will rarely meet Connick's threshold "matters of public concern” requirement. Akiti notes that courts' interpretation of Pickering-Connick has led to inconsistent results, as some courts have rejected FIrst Amendment political speech claims simply because the forum in which the speech was posted mostly discussed private matters.


June 6, 2013 in Scholarship | Permalink | Comments (0)

Sexual and Racial Harrasment Charges Against Elementary School Dismissed

Last week, a federal district court in M.D. v. School Bd. of City of Richmond, 2013 WL 2404842 (E.D. Va. 2013), dismissed a six-year old African American child's claim that his school had been deliberately indifferent to racial and sexual harassment.  The child alleged:

Between February and the end of April 2013, other children—identified only as
children of Hispanic ethnicity—persistently teased Plaintiff on the basis of his
race and perceived sexual orientation. ( Id. at ¶¶ 9–12.) Specifically,
the other students repeatedly and continuously directed vulgar and offensive
racial epithets at Plaintiff, verbally abused him, physically assaulted him, and
stole his property. ( Id. at ¶¶ 10–12, 23.) The other students also
insinuated that Plaintiff was gay, apparently owing to Plaintiff's non-violent
demeanor. ( Id. at ¶ 12.) In short, the Plaintiff was subjected to what
might be properly characterized as severe bullying. ( Id. at ¶ 23.)
Ultimately, this led Plaintiff to suffer extreme emotional damage and a fear of
school, even after he later enrolled in a new school. ( Id. at ¶¶ 13–14,

The court reasoned that: a) the sexual harassment was based on perceived sexual orientation rather than gender, the later of which the court indicated is necessary to state a claim; and b) the student transferred to another school before the defendant had an opportunity to address the problem; thus, it was not deliberately indifferent to his parents' complaints. 

The court's recitation of the facts is limited, but this case raises a few serious issues.  First, other courts have not so easily dismissed claims related to sexual orientation claims, as they posit the question is whether a student is being harassed for failure to conform to gender stereotypes.  Nabozny v. Podlesny,92 F.3d 446 (7th Cir. 1996);Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., 187 F.3d 862, 865 (8th Cir. 1999); Doe v. S.E. Greene Sch. Dist., 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. Mar. 24, 2006); Schroeder ex rel. Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 879-880 (N.D. Ohio 2003); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (2000); Carrasco v. Lenox Hill Hosp., 2000 U.S. Dist. LEXIS 5637, 2000 WL 520640, at *8 (S.D.N.Y. Apr. 28, 2000).  This court does not address this precedent. 

Second, at such a young age, it seems extremely dangerous to speculate as to what this child's sexual orientation is or is not.  This court seems to suggest he is heterosexual, but other students perceive him as gay.  Again, I am not sure it matters if the question is whether he is being harassed for failure to confirm to gender stereotypes.

Third, the court's best argument is that none of this matters because the district's reaction cannot be shown to be clearly unreasonable because the student transferred by the time the district expressed a willingness to come up with an intervention plan. The court, however, does not explain why as a matter of law plaintiff's allegations that the school did almost nothing for over a month (which is what led to the transfer and distrust)  does not state a claim.   I wonder how long any parent would leave their six-year child in this situation if the parent had other options.  Is the implication of the court's holding that a parent only has a claim if they take a wait and see approach with the harassment?



June 6, 2013 in Cases, Discrimination, Gender | Permalink | Comments (0)

Wednesday, June 5, 2013

ESEA Reauthorization Bill Would Prohibit Discrimination Against LGBT Students

Sen. Tom Harkin (D-Iowa) introduced a bill Tuesday to restart the reauthorization process for the Elementary and Secondary Education Act (ESEA). ESEA's authorization expired in 2007, and political differences in Congress have stalled reauthorization efforts. Sen. Harkin’s 1,150 page bill, called the Strengthening America's Schools Act of 2013, would also replace the unworkable portions of No Child Left Behind, ESEA’s successor education law. Perhaps the most progressive part of the bill, however, is its nondiscrimination language requiring schools to protect gay, lesbian, bisexual, and transgender students from discrimination, including bullying and harassment of students who are or are perceived as LGBT. ESEA funding will be tied to schools’ enforcement of the antidiscrimination language. Eliza Byard, executive director of the Gay, Lesbian and Straight Education Network, told the Associated Press, “We are thrilled that the Senate is moving to address the long overdue issue of school bullying and harassment. This bill includes critical components to ensure safer learning environments.” The Senate Committee on Health, Education, Labor & Pensions is scheduled to begin marking up the bill on June 11. Read more at the Washington Post.


June 5, 2013 in Equity in education, Federal policy, News | Permalink | Comments (0)

Pre-K's New Battles: Who Gets the Money?

As a sign of the times, South Carolina is debating the continued expansion of pre-kindergarten education.  For those who follow school finance litigation, pre-k has been a consistent remedial focus in several states, most notably New Jersey, which has the longest running school finance litigation in the nation and now the highest quality pre-k program.  Preschool

Research has consistently shown that high quality pre-k is the most cost-effective measure for closing achievement gaps.  South Carolina expanded its pre-k program a few years ago in response to a trial court's finding that the education system was constitutionally inadequate.  The case is currently before the state supreme court and, thus, the legislature's consideration of further expansion makes sense.  It is also consistent with the President's Obama's focus on pre-k during his last state of the union address.

So what is the dispute about now? The dispute is over who will deliver pre-k and receive the resource influx.  The initial proposal in South Carolina called for 85% of new pre-k dollars to go to public schools.  Republican legislators are now calling for 85% of the funds to go to private schools in the form of vouchers and tax credits. 

For more on the story, see here.



June 5, 2013 in Charters and Vouchers, News, Pre-K Education, State law developments | Permalink | Comments (0)

Is the Gig Up with Virtual Charter Schools?

Forgive my polemic title.  I couldn't help it.  Mix lax state standards, private enterprise, profit motive, unsupervised children, and normal adolescent behavior and I struggle to find a reasonable expectation of education benefit.  It seems that states are finally growing skeptical as well.  After the recent pushes to authorize as many new charter schools as possible, we have sense the creation and growth of virtual charter schools.  Pennysylvania now boasts 16 virtual charter schools.  My quick look indicates that at least 9 of the 16 virtual schools are in the state's most troubled districts. These 9 districts are predominantly minority, predominantly poor, and have tended to have high rates of student discipline.  While these schools may be the only current option for some children who are expelled from school or experiencing unique challenges, they are not necessarily a good option.  A recent report shows that while roughly have of the nation's regular public schools made adequate yearly progress under No Child Left Behind, only one out of four virtual charter schools did. 

Maybe the gig is finally up.  Chicago, Maine, and North Carolina all recently pulled the plug or are considering pulling the plug on virtual charter schools.  K+GMO+bill+6+copyFor those interested in following the debate in real time should follow the news in Maine.
I would expect more states and jurisdictions to follow suit soon.






June 5, 2013 in Charters and Vouchers, News | Permalink | Comments (0)

Tuesday, June 4, 2013

New Scholarship on Standards for Transgendered Athletes

In doing research for my casebook, I came across a few articles that identified the conflicting and outdated rules that could prevent transgendered athletes from participating in atheletics at all.  The NCAA, to its credit, had taken some steps to address the issue.  Unfortunately, however, this has been a reletively underdeveloped of the law.  I am glad to see that others are continuing to write about it.  I just picked up this article yesterday:

Elizabeth M. Ziegler & Tamara Isadora Huntley, “’It Got Too Tough to Not be Me’:
Accommodating Transgender Athletes in Sports”, 39 J.C. & U.L. 467 (2013). Cribbing from its abstract: “This Article will argue that there is a need for standards to ensure that the transgender student-athlete does not encounter problems with participation due to inconsistent rules for state eligibility, conference and tournament eligibility, and national competitive tournaments. Furthermore, inclusion, equal opportunity, and acceptance should be the goals when establishing such standards ….  Finally, such standards should be the goal because of the numerous positive effects of athletic participation, including, physical, social and emotional wellbeing, self-discipline, teamwork, and learning how to deal with success and failure.”

June 4, 2013 in Equity in education, Gender, Higher education, Scholarship | Permalink | Comments (0)

Monday, June 3, 2013

Class Certification Denial in Alabama Teacher's Case

In July v. Board of School Com’rs, 2013 WL 2322949 (S.D. Ala. 2013), a group of African-American assistant principals in Mobile County, Alabama, sought class certification under the theory that the school district would not permit African-Americans to serve as principals in predominantly white schools, but only predominately African-American schools.  The court denied class certification, reasoning that the group failed to satisfy the commonality requirement because individual issues would predominate.  The court approached the case as a normal Title VII employment case and indicated that the plaintiffs had failed to properly allege a disparate impact case, which would have bolstered the commonality element of the class.  Even with a properly alleged disparate impact claim, however, the court indicated the class still would have failed because the asserted damages of the class members would have caused individual issues to predominate.

Regardless of the outcome of this case, it represents another example the continuing tensions and legacy of segregation in Mobile County.  Mobile County was the subject of a long running school desegregation litigation (Davis v. Board of School Com'rs of Mobile County, 402 U.S. 33 (1971)) and regular lawsuit thereafter, pertaining one way or the other to perceived or actual racial inequality and segregation. 


June 3, 2013 in Cases, Racial Integration and Diversity | Permalink | Comments (0)

Sunday, June 2, 2013

Education Law: Equality, Fairness, and Reform course book (June 2013)

Education LawOur own Derek W. Black's new book, Education Law: Equality, Fairness, and Reform (Aspen 2013), is now available for review and adoption for education law courses. Joining Professor Black (South Carolina Law) with contributing chapters are Robert A. Garda Jr. (Loyola-New Orleans Law); John E. Taylor (W. Virginia Law); and Emily Gold Waldman (Pace Law). Education Law's table of contents is available for download at SSRN here. Aspen also has a companion website for Education Law. (Educators considering adopting the book may request a complimentary copy from

Below is the abstract of Education Law: Equality, Fairness, and Reform, which emphasizes the current landscape of equality and civil rights issues in education:

Education Law situates case law in the broader education world by including edited versions of federal policy guidance, seminal law review articles, social science studies, and policy reports. It includes individual chapters on each major area of inequality: race, poverty, gender, disability, homelessness, and language status. Those chapters are followed by a structured approach to the complex first amendment questions, dividing the first amendment into three different chapters and addressing, in order, freedom of expression and thought, religion in schools, and the intersection of religion and freedom of expression with school curriculum. Two chapters relating to current educational reform — No Child Left Behind, Standardized Testing, Charter Schools, and Vouchers — close out the book.

Narrative introductions to every chapter, major section, and case synthesize and foreshadow the material to improve student comprehension and retention. Efficient presentation of carefully-edited cases and secondary sources permit comprehensive inclusion of case law and secondary issues. Student-friendly questions and notes follow each case. Hypothetical problems follow each subsection and draw on multiple skills: synthesis of law, factual application, fact gathering, professional judgment, and practical problem-solving skills. These problems can be modified for group exercises, class discussion, or writing assignments.


June 2, 2013 in Equity in education, Federal policy, News, Scholarship | Permalink | Comments (0)

Recent scholarship

Student learning in law school is the theme of this week's selected scholarship roundup, starting with Cassandra L. Hill's (TSU-Thurgood Marshall Law) The Elephant in the Law School Assessment Room: The Role of Student Responsibility and Motivating Our Students to Learn (Howard Law Journal, 2013). In The Elephant in the Law School Assessment Room, Professor Hill makes a straightforward proposal: "law professors and law schools must do more to effectively assess students’ responsibility for, and contributions to, their own learning, development, and eventual mastery of substantive law, lawyering skills, and ethical considerations." Professor Hill's article is available at SSRN here.

In One Small Step for Legal Writing, One Giant Leap for Legal Education: Making the Case for More Writing Opportunities in the 'Practice-Ready' Law School Curriculum (2013), Sherri Lee Keene gives law schools a path to "bridge the gap that currently exists between legal theory and practice in legal education." Professor Keene (Univ. of Maryland Law) offers concrete suggestions how law schools can help its students apply the law by incorporating more legal writing opportunities throughout the curriculum. Professor Keene's article will be published by Mercer Law Review and is available at SSRN here.

R. Lisle Baker (Suffolk Law) and Daniel P. Brown (Associate Clinical Professor of Psychology, Harvard Medical School) apply an interdisciplinary approach to the issue of law student engagement in On Engagement: Learning to Pay Attention. While "student success in law school requires intense and sustained attention," the authors note that students experience attention lapses as early as the first thirty seconds of a lecture with ever-increasing lapses throughout the session. The authors suggest ways to quiet the legal mind, including "pure concentration training as the foundation for attention skill development." Professors Baker and Brown's working draft is available at SSRN here.

June 2, 2013 in Scholarship | Permalink | Comments (0)

Meridian, Mississippi School District enters consent decree to prevent racial discrimination in student discipline

The U.S. District Court for the Southern District of Mississippi approved a consent decree on May 30, between the Justice Department, together with private plaintiffs, and the Meridian Public School District in Meridian, Miss., to address racial discrimination in student discipline. The consent decree, the DOJ said in a public statement, "is a far-reaching plan to reform discipline practices, including suspensions, expulsions and school-based arrests that unlawfully channel black students out of their classrooms and, too often, into the criminal justice system." The consent decree is part of the DOJ's Civil Rights Division's efforts to eliminate the school-to-prison pipeline exacerbated by zero tolerance policies for school infractions. In a 2012 speech, Assistant Attorney General Thomas E. Perez discussed Meridian's school discipline practices after listening to students who had been suspended for uniform violations or arrested for talking back in class or for schoolyard fights. Half of the students on the panel, he noted, were wearing jail ankle bracelets. To read more about the consent decree, click here.


June 2, 2013 in Cases, News | Permalink | Comments (0)