Friday, July 5, 2013

Virtual school program K12, Inc. under scrutiny for its legislative ties and declining student outcomes

In Professor Black's recent post Is the Gig Up with Virtual Charter Schools?, he said that expected other districts to follow Chicago, Maine, and North Carolina in reevaluating public funding for virtual K-12 schools. A new report discussed in Monday's Washington Post adds to the list of districts that are discovering that virtual schools may not be as educationally or financially effective as advertised. The report, ALEC v. Kids: ALEC’s Assault on Public Education, details the ties between Virginia-based K12, Inc., America’s largest proprietary K-12 online school program, and the American Legislative Exchange Council (ALEC), a group that develops model legislation supporting conservative policies. (ALEC’s Education Task Force includes advocacy groups and business interests that promote legislation for publicly-funded virtual schools and business tax credits to fund private school scholarships.) The report notes that K12 Inc., a member of ALEC’s Education Task Force, received more per-pupil public dollars than Virginia would have spent for the same students in a local school district. Approximately 85% of K12, Inc.’s revenue comes from public education dollars, according to N.C. Policy Watch.

K12, Inc. has come under increasing scrutiny after a 2011 New York Times' report that the company “squeeze[d] profits from public school dollars” through high student-teacher ratios, giving credit to students who did not pass classes or log in at all, and by lowering education standards, charges that K12, Inc. denied. This June, the Colorado Virtual Academy (COVA), which administers state funds for virtual public school education, decided to end its management relationship with K12, Inc. after 2014. COVA gives K12, Inc. about $22 million to provide online education to Colorado students. With K12, Inc. as an instruction provider, COVA’s student enrollment grew to 5,000. Recently, however, COVA became concerned about student outcomes, such as the state’s virtual high school graduation rate of 22% in 2012, compared with the statewide public high school graduation rate of 72%. Nationally, about 49.1% of students enrolled in K12, Inc.’s virtual programs graduate on time compared with about 79% of students in face-to-face instruction where K12, Inc. operates.


July 5, 2013 in News, State law developments | Permalink | Comments (0)

Thursday, July 4, 2013

Recent scholarship

Symposium: One Generation under Hazelwood: A 25-Year Retrospective on Student First Amendment Rights

Address by Erwin Chemerinsky; articles by Frank D. LoMonte, Francisco M. Negrón, Jr., Emily Gold Waldman and R. George Wright. 11 First Amend. L. Rev. 291-440 (2013). UNC Chapel Hill’s First Amendment Law Review held a symposium commemorating the 25th anniversary of  Hazelwood School District v. Kuhlmeier (1987). The symposium speakers were asked, among other things, if the decision in favor of school censorship affected young people’s civic readiness.

We have the power to make change: the role of community lawyering in challenging anti-Asian harassment at South Philadelphia High School

Cecilia Chen (Thurgood Marshall Civil Rights Fellow, Lawyers' Committee for Civil Rights) and Andrew Leong (U. Mass. Boston), encourage legal educators to expose their students to community lawyering and values in We have the power to make change: the role of community lawyering in challenging anti-Asian harassment at South Philadelphia High School, 19 Asian Am. L.J. 61-115 (2012). Excerpted from the introduction:

This Article will explore the inner workings and philosophical differences of a community lawyering approach using the South Philadelphia High School ("SPHS") Anti-Harassment Campaign - where several students of different races were assaulted, racial epithets were used, physical and emotional scars were created, and the consequences were met with complete denial from school administrators. Asian immigrant students of Vietnamese and Chinese descent were the victims, not only of peer-on-peer harassment, but of a school system that deliberately turned a blind eye to the harassment taking place. What followed was a momentous grassroots campaign that drew national attention and galvanized a community. While there are many facets of this case that deserve exploration, this Article will limit its focus to the role and importance of "community lawyering" in empowering Asian immigrant youth and the broader community.

The Inevitable Irrelevance of Affirmative Action Jurisprudence

Leslie Yalof Garfield (Pace) discusses the potential impact of Fisher v. Univ. of Texas at Austin in her article (written before Fisher's release), 39 J.C. & U.L. 1 (2013). An excerpt from Professor Garfield's article:

Sadly, the current trend in post-secondary education to race to the top of the rankings combined with the increase in applications at most academic institutions is diametrically opposed to constructing a flexible, individualized, and therefore, constitutionally permissible race-preference program. Ensuring elite status by admitting students with the highest standardized test scores yields a racially homogenous entering class. The need for efficiency mandates that colleges and universities define a standardized test cutoff point for admission to their school, thereby decreasing the number of students whom the school must consider. Despite some reports to the contrary, school admissions boards remain unwilling or uninterested in removing themselves from the ratings game. For this reason, regardless of how the Court decides, Fisher will ultimately be inconsequential to school admissions decision-making and, therefore, will do little more than highlight the growing irrelevance of affirmative action jurisprudence.

The Wire and Alternative Stories of Law and Inequality

In The Wire and Alternative Stories of Law and Inequality, Robert C. Power (Widener-Harrisburg) examines the Supreme Court's educational funding decision in San Antonio Independent School District v. Rodriguez (1972) and how inequality was presented in the HBO series The Wire. Professor Power argues that the Supreme Court's decision in Rodriguez failed to acknowledge some of the implications of the facts in the case and "[left] out some truths that are sometimes best explored through fiction."46 Ind. L. Rev. 425, 428 (2013). From Professor Power’s abstract:

This Article examines The Wire for what it says about inequality in the United States today and what society can do to bring about greater equality. [It] identifies several themes explored over the five seasons of the series-the failure of law enforcement in the inner city, the harsh life and inadequate education of impoverished children in such areas, and Baltimore as an example of inefficient and corrupt city government [and] reviews the Rodriguez case to consider the extent to which it defined the nature and scope of the Fourteenth Amendment's Equal Protection Clause in terms of funding and providing public services. ...The Wire's ... stories stand as examples of inequality that are particularly corrosive to society [and the article identifies] possible responses to the unequal society portrayed in the series. ... The conclusion argues that The Wire reveals the need for legal reform, and the seven alternative approaches to action leave open the possibility of legal reform notwithstanding Rodriguez. Like The Wire, however, the Article recognizes that happy endings are rare and ephemeral. Even if the Court had ruled differently in Rodriguez, it is likely that the Baltimore of today would still be poor, dangerous, under-educated, and badly governed. Law can only do so much to equalize things. But it is necessary to try.


July 4, 2013 in Scholarship | Permalink | Comments (0)

Wednesday, July 3, 2013

What's Behind North Carolina's Move to Increase Oversight of Charter Schools?

After my post yesterday about NC Senate Bill 337 and the Center for Education Reform's strong response, I did a little digging (thanks to tips from the UNC Center for Civil Rights) to understand what was behind the move.  After all, the state had recently raised its cap on charter schools and elected new republican majorities in the state legislature that were favorable to charter schools.  The answer seems to lie in the effect that expanding charter schools would have on small rural districts.

Apparently, the Arapahoe Charter School in Pamlico County had been fighting the State Board of Education for approval to expand from a K-8 school to a K-12 school.  The expansion had been denied, in part, due to the impact it would have on the Pamlico County Public School District.  In its impact statement to the State Board, the district indicated that the county was not wealthy enough to support two high schools and that the loss of funding that the current high school would experience would result in cuts to professional development, the after-school tutoring program, two special education teachers, a literacy coach and $60,000 in instructional supplies.

Displeased with the denial of its charter expansion, Arapahoe Charter School sought change through the state legislature.  An early bill would have allowed it to make some expansion without the approval of the State Board.  Charter advocates also wanted the legislature to authorize other entities in the state to approve charters.  NC SB 337 stemed that tide and, instead, seems to put protections in place for districts like Palmico.  For more on this story, see here and here.  In researching my article Charter Schools, Vouchers, and the Public Good, I also came across a few studies that suggested this sort of tension is a national phenomenon in smaller districts .  For more on those studies and the argument that the overall public good must control rather than the wishes of individual students or charters in these situations, see here.


July 3, 2013 in Charters and Vouchers | Permalink | Comments (0)

California governor announces "historic" education funding bills for K-12 and "Middle Class Scholarships"

Calif. Gov. Signs Local Control Funding Formula
photo: courtesy of CA.Gov
California Gov. Jerry Brown signed three K-12 school bills last week that education advocates are calling a "massive and historic shift" in school funding. One bill (AB97) provides extra money for school districts in which 55 percent of the students are lower-income or English-learners, or that have higher percentages of foster children. Gov. Brown, who faced legislative opposition for the $2.1 billion increase in education funding, said that the bills address a civil rights issue-to send money where it is most needed. California also will give $1.2 billion in one-time grants for districts to implement common core standards in English and math.

In the week when some student loan interest rates doubled, Gov. Brown also signed bill AB94, which is being called the "Middle Class Scholarship." In 2014, California will reduce student tuition up to "40 percent for families making less than $100,000 and up to 10 percent for families earning $150,000." Officials says that the scholarship would lower college fees from $12,192 to $7,315 at the University of California. Read more here.


July 3, 2013 in State law developments | Permalink | Comments (0)

Tuesday, July 2, 2013

Why Fisher Is Irrelevant for the Pre-dominant Racial/Ethnic Group of African Americans

    With the Supreme Court’s decision in Fisher v University of Texas, supporters of affirmative action, like me, can breathe a collective sigh of relief.  While the ultimate impact of the Fisher decision on the University of Texas is still to be determined, at least for the rest of the country where affirmative action exists, it survives for another day.  However, now is the time to turn our attention to issues regarding affirmative action that required silence for the past 16 months.  One of those issues relates to changing racial and ethnic ancestry of blacks on affirmative action, an issue that has existed for over a decade, but one that has not garnered enough attention. 

    Over the past five years, I have mentioned the issue several times.  I have discussed this problem with officials of the American Bar Association, the American Association of Law Schools and the Law School Admissions Council. See here.  In each of those discussions, I have emphatically speculated that if current trends continue, first and second generation black immigrants (Black Immigrants) and mixed-race blacks (Black Multiracials) will come to make up 80% of the black students in most law schools throughout the country by the year 2020.  While all of the officials agreed that this was a distinct possibility, the most disconcerting thing is that none of them believed that anything should be done about it!

    Many of us who are staunch supporters of public education do so because of our strong belief that education is the best (or perhaps, the only) way to address the problems of large numbers of poor, urban minority blacks.  While we advocate for improvements in K-12 urban education, we see this as only one part of the pipeline necessary to achieve the ultimate goal of a large percentage of these students graduating from four year colleges and universities and, for many, successfully completing graduate programs.  For educational pipeline believers, affirmative action is essential.  It allows us to know that students most victimized by our society’s history of racism can graduate from selective higher education programs.  It is with this preface that I want to discuss the changing racial and ethnic ancestries of blacks attending selective higher education programs. 

    We were first introduced to this issue by Harvard professors Lani Guiner and Henry Louis Gates in the same month that the Supreme Court decided Grutter.  They pointed out that Black Immigrants and Black Multiracials comprised two-thirds of Harvard’s black undergraduate population.  Following the “Harvard Revelation,” a 2005 article in Diverse Issues in Higher Education noted the findings of a Princeton study of the “black” students who in 1999 entered twenty-eight selective colleges and universities, essentially the same ones William Bowen and Derek Bok examined in Shape of the River.  The study revealed that 41 percent of these black students were either Black Multiracials or Black Immigrants.  A follow up study concentrated just on the presence of Black Immigrants.  It discovered that Black Immigrants made up 35.6 percent of the blacks in the ten most selective institutions and 40.6 percent in the four Ivy League schools.  According to a 2005 statement by Dr. Michael T. Nettles, Vice President for Policy Evaluation and Research at the Educational Testing Service, “[i]f Blacks are typically 5 percent and 6 percent of the population at elite colleges, then the representation of native United States born African-Americans might be closer to 3 percent.”  In regards to Black Multiracials, a 2007 study of 31 of the most elite private colleges and universities in the country that compose the Consortium on Financing Higher Education disclosed that Black Multiracials made up 23 percent of the black students at those institutions.  To demonstrate how widespread the changing racial ancestry of blacks benefiting from affirmative action has become, statistics from the admissions office of Indiana University-Bloomington showed that Black Multiracials comprised 18.7 percent of the black students in the combined incoming freshman classes for the fall of 2010 and 2011.

    No matter how over represented the above evidence suggests Black Multiracials and Black Immigrants are among black students, those numbers understate the problem.  The percentages of both groups among blacks of college age will skyrocket between 2010 and 2020.  For example, the percentage of blacks in the country who are foreign-born has increased from 1.1 percent in 1970 to 4.9 percent in 1990 to 8.8 percent in 2010.  According to the 2010 census, at that time the percentage of mixed-race blacks among blacks age 15 to 19 was 6.5 percent.  However, their percentage increases to 13.7 percent for those between the ages of 5 and 9.  Thus, if current enrollment trends continue, well before the expiration of the 25 year window for affirmative action provided by Justice O’Connor in her opinion in Grutter, a virtual prerequisite for blacks attending selective higher education programs will be that they must have either a foreign-born black or non-black parent. 

     The problem I am alluding to is not that Black Immigrants and Black Multiracials benefit from affirmative action.  Surely, a strong argument can be made that they should receive some positive considerations in the admissions process.  The problem is that selective higher education institutions, including our own law schools, are in the process of excluding the black students with two native-born parents who were considered black, as defined by no longer applicable one-drop rule.  I call this racial/ethnic group of blacks, “Ascendants” because of this group’s ascendency out of slavery and segregation.  The Ascendants were the ones responsible for affirmative action.  But, for them, the Fisher decision creates no sigh of relief.

    One of the conceptual problems with the concern about the disappearance of Ascendants I raise is that it requires us to draw racial and ethnic distinctions among blacks.  Historically, American society has largely been oblivious to such distinctions.  In addition, over the past 100 years the African-American Community has been very hostile to efforts to divide the Community.  In the following two entries, I want to discuss why it now makes sense to draw distinctions between Black Immigrants, Black Multiracials, and Ascendant Blacks for the limited purposes of affirmative action.

    --Kevin Brown

July 2, 2013 in Discrimination, Equity in education, Racial Integration and Diversity | Permalink | Comments (0)

Welcome to Kevin Brown


Kevin Brown, the Richard S. Melvin Professor of Law at Indiana University-Bloomington Maurer School of Law, is joining us to discuss Fisher v. Texas, among other things.  Kevin is one of the leading scholars of race and education in the country.  As of late, he has also been a go-to-guy for the national media, as it tries to digest the Fisher opinion.  Those who follow his work more closely might also know that he has been hard at work for years on a boarding school in Africa for inner city youth. 

I know I am looking forward to his commentary.  Thanks Kevin.




Kevin D. Brown

Richard S. Melvin Professor of Law

July 2, 2013 | Permalink | Comments (0)

North Carolina Seeks to Add Oversight to Its Charter School Legislation

The North Carolina Senate just passed SB 337, which would affect the liscencing and operation of new charter schools in the state.  North Carolina is one of the states that has traditionally shown resistance to charter schools, formerly capping their number in the state to 100.  To make itself eligible for federal Race to the Top grant funding, the state eliminated its cap in 2011 and added some other flexibility.  Now, the state senate appears to be second guessing the effects of that move.

The Center for Education Reform is railing the new bill in multiple releases.  See here and here.  Among its numerous concerns are that the legislations limits the entities that can authorize charters to the state's Charter School Advisory Board, requires “that the [charter] applicant has the ability to operate the school and would be likely to operate the school in an educationally and economically sound manner,” and "adds 'due process' when discussing when a charter can 'exclude a student' from their school."


Who is right in this debate?  In the past, I have cautioned against demonizing charter schools because charters can play a role in achieving integration and equity that may not be possible in traditional public schools (see here).  I have also said the peritnent question is how charters can serve the public good, not the polemic question of whether charters are good or bad (see here).  With that said, the Center's attacks on the North Carolina Senate only give more fodder to those who are skeptical of the charter movement's motivations.  The Center's complaints imply that charters should operate at will and with almost no oversight. 

That the state does not wish to have multiple charter authorizers in the state and does not wish to relinquish that process to third parties seems entirely consistent with the state's constitutional responsibility to oversee and provide education, even if it slows or centralizes the chartering process.  That the state wants charter applicants to substantiate their potential for success before turning over money and children to them likewise seems reasonable, even if it means some charters do not get authorized.  I would expect the good ones still will get authorized.  Finally, due process is a basic constitutional right that applies anytime a public school excludes a student from the learning process.  I cannot fathom why a charter school would not be subject to this requirement. If this means charters must invest in discipline administration, so be it.  Children have rights.

No doubt, these measures will impede the growth and operation of some charters.  But just as the question cannot be simply whether charters are good or bad, neither can it be simply whether a state law gives charters free room to grow and operate.



July 2, 2013 in Charters and Vouchers | Permalink | Comments (0)

Monday, July 1, 2013

Colorado Supreme Court denies relief in education finance class action suit

On May 28, the Colorado Supreme Court denied relief in a class action suit in a long-awaited public education finance case, Lobato v. State II, finding that the state’s public school financing system complies with the Colorado Constitution. Lobato II thus ends one of the most contentious education lawsuits in Colorado's history. The Colorado Constitution’s education clause requires that its public school financing scheme be “rationally related” to the constitutional mandate of a “thorough and uniform” system of free public education. The Lobato plaintiffs argued that because the public school finance system provides inadequate resources to disabled, poor, and minority students, Colorado’s system is not “rationally related” to “increasing resource needs driven by standards-based education.” Taylor Lobato, a public school student, sued the state in 2005, joined by nonprofit organization Children’s Voices and other student plaintiffs and their parents. (Ms. Lobato is now a student at Denver University.) In Lobato I decided last December, a state district court found that the state’s public education system was underfunded by over $4 billion per year. Colorado spends more than 40 percent of its general fund, about $3.2 billion, on its public schools, according to the Denver Post. The long-running litigation brought in lawyers from organizations such as the Mexican American Legal Defense Fund (MALDEF) and national law firms. Read Lobato v. State II hereInformation for this entry also came from the Huffington Post.


July 1, 2013 in Cases, State law developments | Permalink | Comments (0)

Class Dismissed: Rethinking Socio-Economic Status and Higher Education Attainment

In addition to the article Professor Davis posted last week on the blog (For-Profits and the Market Paradox), Omari Simmons,  Wake Forest University School of Law, justed posted his new article on higher education access barriers for low-income students to ssrn.  The article is fortchoming in the Arizona State Law Journal.  In his abstract, he writes:

Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K-12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the Morrill Act. The heightened focus on higher education attainment for low-SES students is also quite timely given the nation’s slow economic growth and the Supreme Court’s imminent decision in Fisher v. Texas. The prospect of the Supreme Court overturning its decision in Grutter v. Bollinger has prompted observers to consider the use of class as an alternative to the use of race in college admissions and beyond. In this legal, economic, and political environment, reforms targeting higher education attainment for low-SES students take on added significance. In response to these challenges, this Article proposes a more comprehensive K-16 framework to guide future reforms targeting higher education attainment for low-SES students. These reforms include: a rigorous K-12 education for a greater number of students; a transitional bridge between secondary school and higher education; and college-level reforms from federal, state, and institutional actors; and a presidential commission exclusively targeting higher education equity.

Dowload the full article here.



July 1, 2013 in Federal policy, Higher education, Racial Integration and Diversity, Scholarship | Permalink | Comments (0)

Rothstein on Fisher v. Texas

Richard Rothstein, Senior Fellow at Chief Justice Earl Warren Institute on Law and Social Policy University of California (Berkeley) School of Law, asked that we share his article on Fisher v. Texas

What the Fisher Decision Ignores: "Diversity " Should Not Replace Integration as Our Goal

The Supreme Court yesterday did not, for the time being, prevent the University of Texas from continuing its affirmative action plan.

Nonetheless, like the voting rights decision issued today, the Fisher case decision was another setback for racial justice. For one thing, the Court invited another challenge after the case again goes through the lower courts. There, the University will have to prove that it could find no other way to get a diverse student body without explicitly considering race, and will have to prove that it used “good faith” in use of race to achieve diversity. If challengers can show that the University’s examination of applicants’ overall qualifications is really a cover for enrolling black and other minority students—for example, if it is more intent on having black students than violin players, or students from different parts of the state, or other “diverse” factors—affirmative action will be in trouble.

The University and its civil rights group allies have, from an understandable tactical need to defend affirmative action by whatever means are available, accepted a Supreme Court framework that undermines equal rights in the long run.

That framework is “diversity.” According to it, we pursue affirmative action not to remedy the legacy of slavery, Jim Crow, and continuing discrimination, not because equal opportunity for African Americans is an end in itself, but because

  • having a diverse student body improves the educational experience for white students, and because
  • it trains corporate and military leaders who will be more effective if they look like and have a better understanding of those they lead.

Forgotten has been the idea that African Americans are underrepresented at the University of Texas and at other elite institutions because, as Justice Ginsburg put it in her lonely dissent, they suffer from “the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.” In reality, affirmative action is necessary not to make white students more comfortable in the presence of blacks, but to remedy those effects. . . .


Rothstein's article goes on to discuss the extent of segregation in schools and the need to address it.  You can find the full article here.

July 1, 2013 in Racial Integration and Diversity | Permalink | Comments (0)

Sunday, June 30, 2013

Vinay Harpalani: Affirmative Action Survives — For Now

Harpalani_Vinay_250pxVinay Harpalani has posted his early take on Fisher v. Univ. of Texas at Austin at his institution's website, IIT Chicago-Kent Faculty Blog. Below is an excerpt of Professor Harpalani's assessment of the decision:

Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger in place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous.... Moreover, because most other states do not have such plans such as the Top Ten Percent Law, they are not in the same boat as the University of Texas, and today’s ruling does not compel universities in those states to do anything differently.

Thanks to Professor Harpalani for sending along this post to join Education Law Prof's ongoing conversation about Fisher, starting with Derek Black (South Carolina) and John C. Britton (UDC).Professor Harpalani's comments were originally posted on the American Constitution Society (ACS) blog. He is also quoted here on Fisher in the New York Times.

 We welcome contributions from advocates and scholars as we continue to examine what Fisher means for diversity in public higher education.


June 30, 2013 in Cases, Equity in education, Higher education, Supreme Court | Permalink | Comments (0)

Education Secretary Arne Duncan hails Senate's passage of immigration reform bill posted U.S. Secretary of Education Arne Duncan's statement Friday hailing the Senate's passage of the  immigration reform bill that would help foreign and undocumented students continue their education in the United States:

Since our early days as a nation, immigration has helped spur innovation and strengthen our economy. It will continue to do so in the 21st century. The vote in the Senate is a great step toward reforming the nation's broken immigration system and providing a pathway for DREAMers and their families. It is encouraging to see our country's political leadership set aside partisanship and come together to do what's in the best interest of the country.

If we are going to meet President Obama's goal of leading the world in college graduates by 2020, we must support the education and growth of every student. We must also ensure that America remains a beacon for the most promising minds, by making it easier for foreign graduate students in science and math to stay in this country, rather than taking their skills elsewhere. Our country's best and brightest include students and families of every culture and creed, who deserve a fair shot at success whether they were born in the United States or chosen it as their home.


June 30, 2013 in Federal policy, News | Permalink | Comments (0)