Friday, July 12, 2013
In Scott B. v. Bd. Of Trustees of Orange Cnty. High School of Arts, 158 Cal.Rptr.3d 173 (Ct.App. Calif. 2013), a student challenged his dismissal/expulsion from a charter school. He had accumulated enough demerits under the school code to be removed and then, on top of that, brought a knife to school. Prior to his removal, the school conducted a manifestation review, per the IDEA, to determine whether his behavior was a manifestation of his disability. Finding that it wasn't, the school dismissed/expelled him. He then appealed to the school board, but was denied a hearing. His challenge before the court was that this denial of a hearing was in violation of the state's disciplinary statutes and federal due process.
The court, however, reasoned that:
Dismissal from a charter school does not implicate these concerns to the same degree as expulsion. Unlike public schools generally, “OCHSA is a school of choice. No student is required to attend.” When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, dismissal from OCHSA need not and should not delay Scott's education. The May 16, 2011 letter informing Scott's mother of his dismissal instructed her to immediately enroll Scott in another school. Scott's transcripts from OCHSA were attached to the letter. The parties have not cited us to any statute requiring a new school be notified of a dismissal from a charter school.
I find this reasoning spurious for a couple of reasons. First, analogous arguments have been made in regard to students who are expelled from a regular school, but who then are assigned to an alternative school. Some courts have found that due process is not triggered, while others have seen through this argument. The latter are far more persuasive and intellectually honest. Second, numerous state legislatures and local school districts recognize that treating assignment to alternative school as something other than an expulsion or suspension is a fiction. Thus, they affirmatively extend due process rights to these students. See Maureen Carroll, Racialized Assumptions and Constitutional Harm: Claims of Injury Based on Public School Assignment, 83 Temp. L. Rev. 903, 914 (2011). These states outweigh the number of courts finding otherwise. Third, if charters are fully public schools, removing a student from the school should implicate due process in the same way that it would in a regular public school. Finally, the fact that a student can enroll in another school after being dismissed from the charter does not end the matter. Many state statutes allow an expelled student to enroll in another school or district, assuming the school or district will accept the student. I am not aware of the opportunity or potential to enroll elsewhere as ever having been a basis a court to hold due process is not triggered.
Thursday, July 11, 2013
The number of students enrolled in Florida's voucher program grew by a stunning 27 percent this year. A new state department of education report on the program indicates:
In 2012-2013, Step Up For Students awarded a total of approximately $207 million in FTC scholarships to 51,075 students enrolled in 1,338 participating Florida private schools. The 51,075 students in 2012-2013 is an increase of 10,827 students over the 2011-2012 student total of 40,248 as reported in the June 2012 FTC Quarterly Report. This represents an enrollment increase of 27%. The 1,338 private schools participating in 2012-2013 represent an increase of 10% from the 1,216 private schools that participated during the 2011-2012 school year.
The growth appears to be a result not of students leaving the public school system, but of students who never entered the public school system. "Students enrolled in Kindergarten through Grade 3 make up approximately 53% of the scholarship recipients." The racial and ethnic participants in the program are 33 percent African-American students, 35 percent Hispanic students, 25 percent white and 7 percent other. Religious schools make up 82.5 percent of the voucher school recipients. All of these are interesting numbers given that the state supreme court in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), had struck down a previous verion of the state's voucher program as violating the state's constitutional duty to deliver a uniform and adequate public school system.
For more commentary on the report, see here.
Education Week recently reported on grassroots campaign ActionCamp 2.0, that seeks reform of schools' zero tolerance discipline policies. ActionCamp is one of the network of groups at Dignity in Schools (DSC) that want to dismantle the school-to-prison pipeline starting with school mandatory discipline policies. DSC member organization Portland Parent Union successfully pushed this year for the passage of Oregon bill HB 2192-B to remove mandatory expulsion requirements from the state's school discipline statute. The Oregon legislation will go into effect in July 2014. Read more about Dignity in Schools.
The Convention on the Rights of Persons with Disabilities: will ratification lead to a holistic approach to postsecondary education for persons with disabilities?
Jason Palmer (Stetson), 43 Seton Hall L. Rev. 551-594 (2013). An edited excerpt from Professor Palmer's abstract:
The Convention on the Rights of Persons with Disabilities (CRPD), the first human rights convention of the 21st century, is one of the most far-reaching international documents in history for the protection of marginalized individuals with disabilities. The CRPD represents a paradigm shift in the area of disabilities by moving from a medical or social approach to persons with disability, to a human rights model. The holistic approach of the CRPD, as implemented through the principles of universal design, is the most efficient and cost-effective method for benefiting all persons with or without disability in higher education. This article is the first to conceptualize and envision a human rights approach to United States higher education and disability law through the holistic application of universal design in learning and instruction.
Joshua E. Weishart (W. Virginia), Stanford Law Review, forthcoming. An edited excerpt from Professor Weishart's abstract:
In the pursuit of educational justice, practice often outpaces theory. Theories of educational equality and adequacy have been understood to impose different demands. As generally conceived by equality theorists, justice dictates that all children have equal educational opportunities. Adequacy theorists typically construe the demands of justice as requiring that all children have access to a certain threshold of educational opportunities. Hence, the decades-long equality versus adequacy debate lingers over seemingly irreconcilable conceptual differences and legal impracticalities. My aim in this article is to enumerate the points of convergence between equality and adequacy and to show that their residual conflicting tenets are unsustainable in practice. Hence, equality and adequacy are not mutually exclusive; indeed, I contend that they are mutually reinforcing.
Wednesday, July 10, 2013
IN LIGHT OF FISHER: WHY THE BLACK IMMIGRANTS SHOULD BE DISTINGUISED FROM ASCENDANT BLACKS FOR ADMISSIONS PUROPOSES
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials and Black Immigrants (anyone with a foreign-born black parent) will soon constitute the overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. Earlier this week, I discussed how the changes in the way the Department of Education requires educational institutions to collect and report racial and ethnic data that went into effect in the fall of 2010 requires a new discussion about how to treat Black Multiracials in the admissions process. In this one, I want to argue that differences between Black Immigrants and Ascendant Blacks (those with two native-born parents who were considered black as defined by the one-drop rule) means that these two groups should not be treated alike for purposes of affirmative action.
In 1960, there were only 125,000 foreign-born blacks, who made up 0.7 percent of the black population in the U.S. In 2010, however, there were almost 3,600,000 of them and they made up 8.8 percent of the black population. Foreign-born blacks also have about 1 million U. S.-born children.
Black Immigrants share the commonality of being descendants of Africa with Ascendant Blacks. Nevertheless, there are a number of very important economic, social and cultural differences between the two groups. To begin with, the family income of foreign-born blacks is about 25 percent higher than that of native blacks. In addition, foreign-born blacks are far more likely to have college degrees than native blacks. Indeed, Africans are almost two and half times more likely to have college degrees than native blacks. The largest differences between Black Immigrants and Ascendant Blacks, however, may be in their socio-cultural experiences.
In Justice O’Connor’s opinion in Grutter, she explained why it was possible for colleges and universities to consider race and ethnicity in the admissions process. She stated:
“[j]ust as growing up in a particular region or having particular professional experiences is
likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. . . . By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”
Clearly, the history of discrimination that justifies the use of racial classifications that O’Connor referred to was that which took place in the United States. This seems obvious. After all, no one seriously contends that selective higher education programs could justify affirmative action in the United States to target the effects of oppression in other parts of the world, including, for example, the exploitation of Koreans in Japan, the negative effects of untouchability on Dalits in India, or British imperialism in Africa or the New World. Thus, it is the experiences of individuals from underrepresented minority backgrounds derived from our nation’s struggle with racial inequality that explain why race and ethnicity can be considered. These experiences also explain why these groups are likely underrepresented in the first place.
There is no question that foreign-born blacks have their negative experiences with racism in the United States. Nevertheless, having grown up and matured in their countries of origin, Black Immigrants who come to the U.S. as adults do not have extensive years of experiencing the impact of the historical discrimination encountered by blacks in the United States. In immigrating, Adult Black Immigrants encounter conflicting sociological forces. They come to a land with a long history of voluntary immigration. Yet, they also come to a place where their race places them at the bottom of a racial hierarchy.
As voluntary immigrants, Adult Black Immigrants tend to have a more optimistic and positive outlook on their conditions in American society than Ascendant Blacks. For many Adult Black Immigrants, the racism and discrimination they encounter is part of cost to obtain the benefits they accrue from choosing to come to the U.S. Since most foreign-born blacks come from countries with substantial black majorities, race does not play an important role in their psychological and emotional development. Coming from countries with substantial black majorities also means that Adult Black Immigrants will be use to seeing blacks wield significant economic, political and educational authority. This may provide them with the empowering expectation that success in society is not tied to race, an idea that Ascendant Blacks with their experience growing up in the United States would find difficult to embrace. Since Adult Black Immigrants mature in their home country, many of them do not bring with them to the United States the strong desire to engage in the fight against the racial injustice here. This is something that was plain to me during my travels through South Africa, where I was the foreign-born black immigrant. While I was subjected to the same race discrimination that black South Africans encountered, I had a huge emotional and psychological distance from the experience of racial oppression there.
The term “Black Immigrants,” includes foreign-born blacks who immigrated as adults, as well as those who immigrated as minors and the children of foreign-born blacks. These latter two groups come of age in the United States and, thus, are exposed to more of the historic experience of being an underrepresented minority with a history of discrimination than their parents. Nevertheless, their foreign-born parent(s) and their foreign heritage are likely to have a very important impact on their experiences of race in the United States. Simply put, it is wrong to equate the experience of history of discrimination in the United States that Ascendant Blacks have undergone with that which Black Immigrants experience. To do so, devalues the experiences of Ascendant Blacks.
Last year, plaintiffs challenged an Arkansas statute that permitted students to transfer to schools outside their district, but limited the students who could transfer. In particular, the statute indicated that:
No student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's race except in the circumstances set forth in subdivisions (f)(2) and (3) of this section
In Teague ex rel. T.T. v. Arkansas Bd. of Educ., 873 F.Supp.2d 1055 (W.D.Ark. 2012), the court applied strict scrutiny and found that the state had a compelling interest in avoiding racial isolation but that the statute was not narrowly tailored. Thus, it struck down the statute.
The legislature then amended the statute. The new statute effectively permits all students to tranfer, but allows districts that are under desegregation orders to opt out of the transfer program, so as to prevent transfers from interfering with their other obligations under law. Another set of plaintiffs have challenged this new statute. Defendants filed a motion to dismiss based on standing and jurisdiction, which the court granted in part and denied in part. Stevenson v. Blytheville School Dist. No. 5, 2013 WL 3324050 (E.D.Ark. 2013). The court did not address any substantive issues, but for the meantime has permitted the case to move forward.
Yesterday, I posted on a new lawsuit challenging Washington's charter school law. I haven't put my fingers on the complaint yet, but I did get some more details on the allegations. Plaintiffs allege that the charter law violates the state constitution because:
1. It improperly delegates the State’s constitutional “paramount duty” to provide for the education of children within its borders to private organizations that are not subject to the requirements and standards in place to ensure that all children receive a constitutionally sufficient education.
2. It also violates the State’s paramount duty to make ample provision for the education of all children within its borders by interfering with the State’s progress toward complying with the Washington Supreme Court directive to the Legislature to fully fund basic educational programs by 2018, as set forth in the 2012 McCleary decision.
3. It unconstitutionally diverts public funds that are restricted to use for public common schools to private charter schools that are not subject to local voter control.
4. It violates the Constitution’s “general and uniform” provision because charter schools are not subject to many laws and regulations applicable to public schools, including many of the provisions defining a basic education.
5. It amends existing state law in a manner not permitted by the Constitution.
6. It violates the constitutional requirement that the superintendent of public instruction “have supervision over all matters pertaining to public schools.”
7. It violates the Constitution because it mandates the use of local voter-approved levy funds for a purpose other than the purpose for which the voters approved the levies.
As I noted yesterday, one of the more unique claims was the notion that it violates the state superintendent's constitutional duties because the statute places charter schools outside of the superintendent's authority. The relevant constitutional clause states:
The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.
Wash. Const. Art. 3, § 22. To the extent plaintiffs' characterization of the charter school law is correct, they may have found a relatively unique and strong claim, although the net result could be to just require the state to rewrite the charter law and bring it more squarely under the purview of the state superintendent. On the other hand, seting up an educational structure outside of the superintendent's authority may taint the entire statute and its purpose.
Tuesday, July 9, 2013
Kansas Commissioner of Education Diane DeBacker has asked the state attorney general for an opinion about a new law establishing innovative school districts that will be largely exempt from compliance with state laws. The law, called the Kansas Coalition of Innovative Districts Act (H.B. 2319), went into effect July 1 and sets up a coalition board independent from the Kansas State Department of Education (KSDE). The coalition board can authorize up to ten percent of Kansas' school districts to be "public innovative districts" exempt from compliance with most state public education laws. In a letter to the state attorney general, Dr. DeBacker questioned whether the Innovative Districts Act violates Article 6 of the Kansas Constitution, which gives KSDE authority over "general supervision of public schools, educational institutions and all the educational interests of the state." DeBacker stated that the Act "does not pass constitutional muster because it improperly infringes on the authority of the KSBE and its role in the general supervision of education in the State of Kansas." Modeled on the American Legislative Exchange Council’s “Innovation Schools and School Districts Act,” the new education board may grant exemptions to up to 29 “innovative school districts.” To qualify, districts have to demonstrate how planned innovative measures will improve student achievement.
Last week, a group of plaintiffs filed a lawsuit challenging the constitutionality of Washington's new charter school law. In short, the complaint argues that the diversion of public school funding to private third parties, who are not subject to state standards , accountability, and democratic oversight, is inconsistent with the state's constitutional duty to provide an adequate and "general and uniform" education. The complaint further alleges that depriving the superintendent of public instruction of supervision of charter schools violates his constitutional authority.
Plaintiffs have brought similar challenges against charter schools in other states in the past. While their claim has some theoretical merit, courts have generally sided with the state in these cases, finding that charter schools are public schools as well and how the legislature structures or delegates educational authority is within the legislature's discretion. My quick scan of Washington Constitution this morning did not reveal an specific constitutional authorities or responsibilities of the state superintendant. But if plaintiffs' assertion of such a constitutional duty is correct, they may have found a hook that distinguishes them from other states. I will keep you posted as the case developes. For more on the current story, see here.
IN LIGHT OF THE FISHER DECISION: WHY THE ADMISSIONS PROSPECTS OF BLACK MULTIRACIALS MUST BE ADDRESSED
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials (those individuals with one non-black and one black parent, as defined by the one-drop rule) and Black Immigrants will soon constitute the
overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. I suggested that in light of the Supreme Court’s decision in Fisher, now is the time to turn our attention to this issue. In this blog, I want to discuss how conditions have changed with regard to the admissions process of Black Multiracials that makes it imperative to have such a
discussion, regardless of how the ultimate treatment should be worked out.
Race is a socially constructed concept. Nowhere is this more obvious than when dealing with the historical issue of the treatment of mixed-race individuals with some African ancestry in the United States. The current recognition of Black Multiracials as distinct from other blacks is an emerging and relatively recent phenomenon. For virtually the entire 20th century, the one-drop rule determined who was black. As late as the 1960 census, there was no separate category for Latinos. They were classified based on their race, not their ethnicity. Thus, at the time that affirmative action policies were being formulated, 99.4% of Americans were considered either black or white. The one drop rule allowed everyone in American society to know virtually any person’s
race based on their physical appearance. As a result, race was a socially ascribed trait, not a characteristic that resulted from self-identification. As long as American society socially constructed race in this way, regardless of the feelings of mixed-race blacks, simply put, there were no Black Multiracials.
During the late 1980s and early 1990s, a multiracial movement developed that sought to add a separate “multiracial” category to all state and federal forms. According to Kim Williams who
studied this movement, most of the leaders were white women married to black men who did not feel that it was right to identify their children as black. In response to these complaints, in 1997, the federal government adopted new regulations for the collection and reporting of racial and ethnic data (1997 Standards). The 1997 Standards specified that self-identification is the preferred method to determine a person’s race. While the government rejected the inclusion of a “multiracial” category, it did requires that those collecting racial and ethnic data use forms that provide individuals with the opportunity to answer whether they are Hispanic/Latino and then to designate all of the racial categories that apply to them from a list that must include American Indian or Alaska Native; Asian American; Black or African American; Native Hawaiian or Other Pacific Islander; and White. The 2000 and 2010 censuses were conducted consistent with these requirements.
The 1997 Standards also require that other federal agencies adopt new regulations for collecting and reporting racial/ethnic data that comply with it. The Department of Education (DOE) corresponding regulations went into effect in the fall of 2010 (the Guidance). Under the Guidance, individuals who indicate that they are Hispanic/Latino are reported to the DOE as such, regardless of which racial categories they check. Non-Hispanic/Latinos who indicate black and at least one other racial category are included in a new “Two or More Races” category, along with other multiracials. In other words, self-identified Black Multiracials are no longer counted by educational institutions as black. The federal government has abandoned the one-drop rule and forced public and private educational institutions to do so as well.
The 1997 Standards and the Guidance reject the notion that race is a socially ascribed characteristic. Rather they make self-identification the preferred means in which to determine a
person’s race. This change alone may not have been enough to allow individuals with some black ancestry to truly self-identify their race. However, the substantial influx of immigrants of color from Asia, Latin America, the Middle East and North Africa, over the past 50 years altered the complexion and the facial features of American society. In 1960, those who were neither black nor white made up less than 1 percent of the American population. In 2010, they made up almost 24 percent, almost double the percentage of black population. As a result of this new wave of immigrants, the application of the one-drop rule no longer provides a reliable approach to
determine the race of a large number of those who used to be socially ascribed as black. With respect to racial identity, as the 21st century unfolds blacks with lighter skin complexions and racially ambiguous features increasingly encounter the question from others, “what are you?” Thus, the massive new immigration of people of color from the rest of the world helped to
enhance the ability of Black Multiracials to self-identify as multiracial as opposed to black..
As we move beyond the Supreme Court’s decision in Fisher, for purposes of affirmative action it is not whether Black Multiracials self-identify as black or with all of their racial categories that
is significant. What is important is the demise of the one-drop rule, coupled with the ability of individuals to self-identify their race. These developments have created the social reality that Black Multiracials can now choose a racial identity other than “Black or African American.” Because Black Multiracials can choose their racial identity, admissions policies and procedures based on their inability to do so, like affirmative action, need to be adjusted to take into account this new reality.
Monday, July 8, 2013
The Century Foundation is hosting the following event next week:
Affirmative Action and Fisher: What Now?
July 19, 2013 from 10:00 AM to 12:00 PM at The Century Foundation D.C. Office
1333 H Street, NW, 10th Floor, Washington, D.C. 20005
Although the U.S. Supreme Court remanded the case of Fisher v. University of Texas to a lower court for further review, the justices laid out a new, tougher, set of rules for using race that require universities first to examine "race-neutral alternatives." What are the benefits and drawbacks of various options: Providing a leg up to economically disadvantaged students of all races? Admitting students in the top percentage of their high school class, irrespective of test scores? Creating new partnerships between universities and high schools? Facilitating transfers from community colleges? Eliminating legacy preferences for the children of alumni?
Anthony P. Carnevale, Director, Georgetown University Center on Education and the Workforce
Jennifer Gratz, Founder and CEO, XIV Foundation, and plaintiff in Gratz
Lani Guinier, Bennett Boskey Professor of Law, Harvard Law School Nancy McDuff, Associate Vice President for Admissions and Enrollment Management, The University of Georgia
Richard D. Kahlenberg, Senior Fellow, The Century Foundation
Nancy McDuff, Associate Vice President for Admissions and Enrollment Management, The University of Georgia
Jamaal Abdul-Alim, contributing writer, Diverse Issues in Higher Education (moderator)
My new collague, Josh Gupta-Kagan, shared an interesting post with me yesterday on the intersection of school law and the recent debate over electronic communication monitoring. Some of you might remember Josh's article, Reappraising TLO’s “Special Needs” Doctrine in an Era of School-Law Enforcement Entanglement, 33 J.L. & Educ. 291 (2004). Since then, he has continued to write in and around the area. He is now starting a juvenile justice clinic at the University of South Carolina.
Here is his post:
School Law Meets the FISA Court
The NY Times reports that the Foreign Intelligence Surveillance Act Court has approved monitoring electronic communication without warrants or probable cause because they are “special needs” searches. The special needs doctrine arises from a school search case – New Jersey v. T.L.O. – in which Justice Blackmun wrote that in school disciplinary contexts, “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” (The Times mistakenly attributed the special needs doctrine to a later employment case which relied on T.L.O.) The FISA Court’s justification significantly stretches the special needs doctrine (as the Times’ quoted expert said) – with education consequences as well.
T.L.O. approved an assistant principal’s search of a student caught violating a school rule; such searches had to be quickly and flexibly done to achieve school discipline ends. So long as the school officials don’t do anything extreme – like, say, strip search a teenager suspected of having prescription strength ibuprofen – they have great leeway in searching students. But this leeway depended on the assistant principal having school disciplinary and not law enforcement purposes. Many academics (myself included) have argued that the doctrine has been applied even when law enforcement purposes are paramount. And using NSA searches to identify, prevent, and prosecute terrorist conspiracies, a law enforcement purpose is plain. (That doesn’t mean NSA searches were necessarily unconstitutional – only that the FISA Court needs some other 4th Amendment doctrine to justify them.)
In the education space, the special needs doctrine has been applied too simplistically to justify a range of searches without considering their purposes, only because they occur in schools. T.L.O. should apply only when the search serves school disciplinary purposes and does not threaten law enforcement consequences or other invasions of fundamental constitutional rights. However, in Camreta v. Greene (which reached the Supreme Court in 2011), state officials argued that a sheriff’s deputy and CPS investigator could seize a child at school as part of their effort to enforce both criminal and civil child abuse laws – with no connection to school disciplinary goals – simply because the seizure occurred at school.
More generally, the special needs doctrine has been read to give schools a free pass on searching students – permitting police officers to search children, and turning over the fruits of school searches to law enforcement for juvenile prosecution. What originated as a means of enforcing school discipline has expanded into a tool to build the school-to-prison pipeline.
Education law – and apparently national security law too – would be well served by a deeper analysis about when the special needs doctrine ought to apply.