Friday, June 14, 2013
For those who missed it, I wanted to highlight a new article by Kristi L. Bowman, State Takeovers of School Districts and Related Litigation: Michigan as a Case Study, 45 Urb. Law 1 (Winter 2013). This article looks at government takeovers of school districts, using Michigan as a case study. In it, the author looks at:
[t]he question of the proper role of a state in school districts' fiscal crises is an
important one. Like Michigan, numerous states have been grappling with that same question--Indiana, Missouri, and Rhode Island, for example. Accordingly, learning about what has been happening in Michigan provides an exceptional opportunity for legislators, attorneys, academics, and advocates from across the country to reflect on how their own states should assist school districts in fiscal crisis, and when state intervention goes too far. Part I of this paper briefly discusses the various legal mechanisms for state intervention in school districts' and other municipalities' fiscal crises; it also analyzes Michigan's 1988, 1990, and 2011 takeover statutes and the litigation and other public opposition to those statutes. Part II focuses on four substantial shortcomings contained in Michigan's 2011 takeover statute, which was ultimately rescinded by Michigan voters.
A rich scholarship on implicit bias is constantly expanding, but most of what I have read in the past proceeds at a general level or focuses on contexts other than education, such as policing, employment, juries, etc. I am glad to see that the Kirwan Institute's new report, State of the Science: Implicit Bias Review 2013, includes an entire chapter devoted to implicit bias in education. The chapter begins:
Implicit bias can permeate educational settings in several forms, all of which can yield disadvantageous consequences for students of color. Teacher expectations of student achievement, teacher perceptions of students behavior, and students' self-perceptions are three key themes highlighted in the literature.
In other words, the reports indicates that implicit bias plays a role in the black-white achievement gap, the disproportionate disicpline of minority students and the "school to prison pipeline," and students aspirations.
The Missouri Supreme Court recently upheld the constitutionality of a state statute that requires failing school districts to pay tuition when their students transfer to new districts in Breitenfeld v. School District of Clayton, No. SC92653 (Mo. banc June 11, 2013). In the case, parents of children in the St. Louis Public School district (that lost its state accreditation in 2007, but has regained provisional accreditation) invoked Missouri’s “Unaccredited District Tuition” statute (Mo. Rev. Stat. § 167.131). The statute requires a failing school district to pay the per pupil cost for educating its students who transfer to an accredited school district.
Everyone involved objected—the St. Louis District, which would have been required to pay almost $50,000 for the Breitenfeld children to attend the neighboring Clayton school district; the transfer district Clayton, on the grounds that the statute transfer law is an unfunded, and therefore unconstitutional, state mandate; and intervenors. No St. Louis students had transferred using the statute because the Clayton district had decided to not to accept them until the litigation was resolved. (Breitenfeld’s children were in private school while they lived in the St. Louis school district and then paid private tuition to attend a Clayton school during the litigation.)
Now that the case is decided, school districts that adjoin failing school districts face the potential for thousands of new students showing up this fall. It is unclear if that will happen, as some parents in failing school districts face daunting logistical problems to transfer their children to a new school district. Missouri currently has three unaccredited school districts - Kansas City and the smaller suburban St. Louis districts of Normandy and Riverview Gardens. Read the court’s opinion here.
Thursday, June 13, 2013
Charter Schools, Vouchers, and the Public Good
I recently had a conversation with an acquaintance about a new school voucher law in our state. He was bullish about the benefits of school choice and had the optimistic perspective that a rising tide lifts all boats. I wish that I had had Derek Black’s new essay, Charter Schools, Vouchers, and the Public Good (Wake Forest Law Review, forthcoming), to refer to during that conversation. (Professor Black is a co-editor of this blog.) Professor Black examines the societal impact of charter schools and the consequences of assigning a vital public function to lightly-regulated independent groups. He reminds us public schools were created to realize the common good of an educated citizenry, and public funding allows us to pool our resources to realize that good. Without careful implementation of charter school programs, those resources will be peeled away to go to schools that may have little commitment to achieving diverse student populations. By cherry-picking students who can boost assessments of a charter school’s efficacy, such schools could exacerbate de facto segregation, isolationism, and inequality. See Professor Black’s essay Charter Schools, Vouchers, and the Public Good here.
Judicial Clarity: Giving Teeth to the Application of Federal Disability Laws in Charter Schools
Another author takes on the issue of charter schools, discussing how a charter school program can “reconcile its mission and limited resources with its obligations under federal disability laws.” Sarah Wieselthier (law clerk to Law Clerk to the Hon. Rachel N. Davidson & the Hon. Edith K. Payne, Superior Court of New Jersey), Judicial Clarity: Giving Teeth to the Application of Federal Disability Laws in Charter Schools, 2013 B.Y.U. Educ. & L.J. 67 (2013). Courts are essential, Wieselthier argues, “to ensure that the rights of students with disabilities are protected when they seek to take advantage of the innovative educational opportunities charter schools afford to their non-disabled peers.”
The Unfinished Journey--Education, Equality, and Martin Luther King, Jr. Revisited
Taunya Lovell Banks (University of Maryland) discusses the critical need for “equally resourced, racially and economically diverse public schools classrooms throughout America,” in The Unfinished Journey--Education, Equality, and Martin Luther King, Jr. Revisited, 58 Vill. L. Rev. 471 (2013). The article reproduces Professor Banks’s Martin Luther King, Jr. lecture in January at Villanova University School of Law. Professor Banks notes the retrenchment of segregation in American education and says that part of that failure is that predominately non-white schools have been abandoned by the upper and the middle class. With these factors still present, the nation cannot realize the potential of Brown v. Bd. of Education.
On “Unease” And “Idealism”: Reflections On Pope Benedict XVI's Educating Young People In Justice And Peace And Its Message For Law Teachers
In her new article Lucia A. Silecchia, (Catholic University, Columbus School of Law) discusses what law teachers can learn from Pope Benedict XVI's 2012 message, Educating Young People in Justice and Peace. On “Unease” And “Idealism”: Reflections On Pope Benedict XVI's Educating Young People In Justice And Peace And Its Message For Law Teachers, 27 Notre Dame J.L. Ethics & Pub. Pol'y 569 (2013).The obligation of teaching, Pope Benedict said, extends "beyond mere imparting of knowledge and toward living a life that offers effective witness to all that which they hope their students will become.” Professor Silecchia applies that message to modern legal education: that law schools should seek more than developing technical ability and instead inculcate values of service and becoming effective witnesses for peace and justice.
School's Out Forever: The Applicability of International Human Rights Law to Major League Baseball Academies in the Dominican Republic
To recruit young prospects to play in the major leagues, Major League Baseball runs educational academies in the Dominican Republic. Those academies are structured to help players assimilate to life in the United States. But, just as in any sport, most aspiring players do not make it to the pros. The many young players left behind can end up returning to a life of poverty in the Dominican Republic without a practical education. Ryan S. Hanlon tackles this issue and the potential application of international human rights law to solve it in his student comment, School's Out Forever: The Applicability of International Human Rights Law to Major League Baseball Academies in the Dominican Republic, 26 Pac. McGeorge Global Bus. & Dev. L.J. 235 (2013)).
Late last year, the ACLU filed an adminstrative complaint with the Office for Civil Rights regarding a Birmingham, Alabama, middle that operated a sex segregated program. The district just entered into an agreement with OCR to end the sex segregation. The facts sound like something from a bygone era. Cribbing from the ACLU release:
Huffman [Middle School] had been separating boys and girls in every grade for all core curriculum classes, homeroom and lunch, on the theory that there are "hard-wired" differences between boys' and girls' brains requiring them to be taught differently. . . Pop theories of hard-wired brain differences between boys and girls have been debunked by neuroscientists, psychologists and educational researchers. Even Birmingham CSD testing researchers were unimpressed with the results of sex separation at Huffman. Analysis of student test results in the areas of reading and mathematics at Huffman and other Birmingham schools that had experimented with sex separation showed no clear pattern of improvement after the initiation of single-sex programs, and the researchers concluded: "There is no definitive proof that the percentage of students scoring proficient is significantly impacted by students being taught in same gender classroom settings.
More on this story here.
Last week I posted on legislative efforts to eliminate virtual charters in some states and asked whether the gig is up. My skepticism toward virtual charters still persists given the potential perverse incentives, but Aaron Saiger's scholarship (here) gives me pause. He suggests that virtual charters or virtual schooling in general might play an important integrative function. I hadn't thought fully through that possibility until read I today's story from edweek about large urban school districts creating their own virtual schools. The story indicates that the point of these virtual schools is not to help students exit the public school system but to bring those who have already left back into it. White flight in urban centers has long been a serious precipitant of school segregation.
The missing link in the current story of urban virtual schools is an explanation of how these students will be drawn back into physical public schools or online environments that offer the benefits of diversity. If they can, then they seem worthy of exploration. If they are just attempts to retain a bigger portion of state education funds by keeping more students on the books, it is hard to distinguish them from the state's virtual schools or virtual charters.
This February, the Arkansas legislature passed legislation allowing faculty and staff to carry concealed guns on public college campuses if they had concealed-carry permits. Last week, Arkansas's two major public university systems--the University of Arkansas and Arkansas State University--declined the state legislature’s invitation to permit non-law enforcement staff to carry guns on campus. Several smaller Arkansas colleges have announced plans to follow UA and ASU’s campus gun ban. Arkansas’ right-to-carry law allows schools to opt out if they periodically review the bans. Arkansas is one of 23 states that allow concealed weapons to be carried on a college campus if the institution permits it. To learn more, read the National Conference on State
Legislatures’ report Guns on Campus.
Last week, by a vote of 9-5 in Morrow v. Balaski, 2013 WL 2466892 (3d Cir. 2013), the en banc panel of the 3rd Circuit rejected a high school student's claim that the school had a duty to protect her from bullying. The plaintiff's claim was an uphill battle from the start, as her claim was premised on substantive due process. The Supreme Court in DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189 (1989), held that “[a]s a general matter, ... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Most will remember that DeShaney involved state welfare services and their failure to pull an infant out of his father's home. The Court did allow, however, that the state might have a duty under other contexts, most notably when the state had a custodial relationship with the victim.
Reasoning that schools have that sort of custodial relationship with students, the plaintiff in Morrow pressed her substantive due process claim. The court, however, found her argument unavailing against other school cases rejecting such a claim. The court also relied on Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), which I have always found to have curious reasoning. In Veronia, the Court relies on the custodial relationship/in parentis loco to justify its search of students in the form of drug tests, but then states: “[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect.’" On this point, the Supreme Court wants to have its cake and eat it to. I suppose the benefit of being the Supreme Court is that you can.
On a related note, this decision along with other circuits taking similar positions cut heavily against a theory articulated in A Right to Learn?: Improving Educational Outcomes Through Substantive Due Process, 120 Harv. L. Rev. 1323 (2007), in which the article argued that the state's restrainst on students' liberty and the custodial relationship ought give rise to some substantive due process right to education.
Morrow, theoretically, would make for a good case for the Supreme Court to revisit these issues, but I don't see much interest in the Court taking this case or rendering a positive decision for students.
Wednesday, June 12, 2013
The Chicago Public Schools just issued an action plan for dealing with the district's academic and fiscal problems. The plan is centered on five "pillars":
Pillar 1: High Standards, Rigorous Curriculum and Powerful Instruction
Pillar 2: Systems of Support that Meet Student Needs
Pillar 3: Engaged and Empowered Families and Community
Pillar 4: Committed and Effective Teachers, Leaders and Staff
Pillar 5: Sound Fiscal, Operational and Accountability Systems
The plan has already drawn criticism as being short on specifics and long on puffery. Others defend the plan as building trust with stakeholders and as being consistent with district CEO's prior commitment to not close any more schools for five years and to rebuild and strenghten the ones they have during that period. Decide for yourself who is correct, but the challenges are clear: a billion dollar shortfall, quality of education, graduation and discipline rates, and competitive pressures from the outside. The Chicago Sun Times has more on the story here.
The Connecticut Department of Education just released its annual report on school discipline. The good news in the report is that suspensions are down overall statewide. The bad news is that the suspension rate for minorities continues to be off the charts, as does the suspension rate in charter schools. The suspension rate for African Americans is just short of 20% and nearly 4 times the rate as whites. The data on charter schools was even more shocking. The suspension rate in charter schools was almost 10 times the rate of regular elementary schools. While I have heard charges for some time that charter schools push out children, I had never examined data to substantiate the charge. The data in this report, however, is not conclusive on that point. First, comparing all elementary schools to charters is probably unfair, as charters tend to draw disproprotionately poor and minority students in many places. If one compared the suspension rates of charters to similarly situated regular schools, they disparaty would likely be smaller. Second, these suspensions may not lead to push outs. Rather, it could be evidence of new student populations adjusting to new environments (as many charters are new and have more strict behavior expectations). For more analysis of the report, see here.
Tuesday, June 11, 2013
With No Clear Accountability, California's Special Education Services End for Incarcerated Students in Adult Jails
The Center for Investigative Reporting discusses why special education services end when students are transferred to adult custody in In California, Incarcerated Students Fall Through Gaps in Special Education Laws. Special education students are entitled to services until they are 22, which typically are provided by the local school district when a student is held in a juvenile facility. But the law is unclear about which government entity is responsible for special education for students who are transferred from juvenile to adult detention.The Los Angeles Unified School District is required to provide services to students whose parents lived in the district when the student turned 18. But L.A. Unified rarely sends its teachers to adult jails--arguing that because the law does not require the district to educate incarcerated students whose parents reside outside its district, it is the state's responsibility to educate them.
Attorneys representing one of those former special education students who was transferred to the Los Angeles County Men’s Central Jail when he turned 18, estimate that L.A.'s jails have between 400 and 700 young adults eligible for special education, but L.A. Unified currently provides such services to only one eligible inmate. The attorneys' client, Michael Garcia, was first detained in a juvenile facility for a shooting, but lost his special education services and was unable to graduate from high school after being transferred to the L.A. county jail. Garcia sued L.A. Unified and the state for the lapse in services. Garcia is now past the age of 22 and incarcerated in state prison, but says that he is pursuing his suit to help others in his situation. The case is before the California Supreme Court to decide whether the state education department or local school districts are responsible for special education services for incarcerated students. Read more here.
For those who haven't seen it yet, yesterday Harvard announced that James Ryan will leave UVA Law School to be the new dean of the Harvard Graduate School of Education. Jim has been a, if not the, leader on issues of race, segregation, and school finance ever since the late 90s and his ground breaking article Schools, Race, and Money in the Yale Law Journal. Just this past year, he pushed boundaries in a new area with his article Poverty as Disability and the Future of Special Education Law.
Jim, however, has been far more than a scholar. He has been a respected advocate, an exceptional teacher, and a generous member of the legal academy. As a law professor, Jim may not fit the typical mold of a school of education dean, but I cannot imagine a better person to have filled this position. I trust that Harvard selected him because it shares his vision of a more equitable and intergrated public school system, which makes his appointment all the more significant.
While Senate Democrats and Republicans agree the No Child Left Behind law (NCLB) needs reforming, they are unlikely to agree on how to do that before the end of the year, the Associated Press reports. Senate Republicans object to the Democrats' proposal, called the Strengthening America's Schools Act, as a "No Child Left Behind on steriods." The Republicans argue that Strengthening Schools gives the federal government too much oversight over state educational systems. While members of Congress have been unable to reauthorize NCLB, they acknowledge that their inaction allows the U.S. Department of Education to exercise broad powers to grant states waivers from the current law's requirements, which the DOE has for 37 states. NCLB is the last reauthorization of the Elementary and Secondary Education Act and expired in 2007. Read more here.
Monday, June 10, 2013
Inglewood Unified School District has struggled financially and with student enrollment for some time. The state of California took over the school district last year after the school had run a multi-million dollar deficit. The take-over, however, has not stopped the deficit or the loss of students to charter schools. In fact, the state is now openly discussing dissolving the district entirely.
Many have charged that the district's failures are a result of longterm mismanagement, but a new Los Angeles Times article posits that the abundant supply of charter schools in the district may be the culprit. To be more precise, the article suggests a viscious cycle in which Inglewood School District's shortcoming have fed charters and charters have fed the districts shortcomings. It also points out that whatever the problems, they were not caused by the parents and students who now suffer the consequences.
This propensity for this symbiotic relationship and its destructive force on public schools and innocent parties is also analyzed in my forthcoming article, Charter Schools, Vouchers, and the Public Good.