Saturday, July 20, 2013

Walker v. Maryland: No Subjective Expectation of Privacy in Teacher Aide's Desk

While this case is grounded in criminal law and procedure, the school setting here was critical in the investigation of the crime and sentence. In Walker v. Maryland, Maryland's highest court ruled that 1) a search of a teacher aide's unlocked desk did not violate the Fourth Amendment, and 2) that Maryland's statute defining sexual abuse of a minor includes precursory conduct such as writing romantic notes to a third grader. No. 13-K-10-50260 (Md. July 8, 2013).

 A teacher found some romantic notes written by Walker, a special education teacher's aide, in a third grader's school desk. When the student's mother searched her child's belongings at home, 28 more notes written by Walker were found, professing his love and a desire to take the child to Las Vegas. The school principal called the police and later consented to a search of Walker's unlocked desk. The Maryland Court of Appeals found that Walker showed no subjective expectation of privacy in the contents of his desk. Although aides can lock their desks, Walker choose not to do so. The court also reasoned that the desk was in a "heavily-trafficked school setting" and labels on the desk's drawers indicated that there were items within that other teachers might need, such as supplies and utensils (rather than solely personal items). The court noted that Walker presented no evidence showing his subjective expectation of privacy.

 Walker received 13 years (6 suspended) at a bench trial for violating Maryland's sexual abuse of a minor statute. Walker challenged his conviction for sexual abuse based solely on the notes that he wrote to the student. The notes were not sexually explicit. The Maryland court interpreted the child sexual abuse state to encompass "a wide range of behavior that might not otherwise be criminal," including creating a sexually exploitive relationship. The court found that Walker created such a relationship with the student even though there was no evidence of physical touching. The numerous notes that contained Walker's "passionate and obsessive comments" were enough to establish exploitation under the statute.

-ld

July 20, 2013 in Cases | Permalink | Comments (0)

Friday, July 19, 2013

Court Rejects English Language Learner and Segregation Claims, But Accepts Discrimination in Gifted and Talented

After eight years of litigation against a Chicago area school district, the Mexican American Legal Defense and Education Fund has a final decision, but it was not the one it was wanting.  The district court in McFadden v. Board of Educ. for Illinois School Dist. U-46, 2013 WL 3506010 (N.D.Ill.,2013), ruled against plaintiffs on their two major claims: segregation and an inadequate English Language Learner (ELL) program.

I found the court's opinion curious, however, in its tone and approach to the evidence.  In regard to plaintiffs' challenge to the student assignment and facilities plan, the court wrote:

It is clear to the court, considering all of the evidence and the extensive testimony presented at the trial, that the professional staff of the District, including its superintendent and board, were dealing with an increasing population generally, an increasing number of students who required special language support, a budgetary crisis, and an active, involved community. Regardless of the decisions ultimately made by the District, some portion of the population would be unhappy. The ultimate decision to adopt a neighborhood school concept that minimized busing and allowed children to attend schools nearer to their homes was not objectively unreasonable, nor in this court's opinion caused by any racial animus or preference by the District.

The court is correct that some group will always be unhappy, but this does not answer the question of whether a school district has catered to one segment of the population because it wants to make it happy and is less concerned about making others unhappy.  As I argued in my early scholarship, the state just as surely violates equal protection by being unsympathetic or deliberately indiffernt to a particular racial or ethnic group's interests as it does by intentionally targeting that group for unequal treatment.  The court in McFadden pays little attention to this principle and or the fact it is consistently racial and ethnic minorities who must settle with being "unhappy" with school decisions.

The court's ELL analysis, likewise, reads as though the court was more than willing to excuse district failures.  For instance, it writes "no program of this size can be expected to be free of criticism or deficiencies."  Sure, criticisms alone don't tell us much, but if deficiencies exist, a district must justify them under the requirements of the Equal Education Opportunities Act and the prevailing three-prong standard from Castenada v. Pickard.

Applying that standard, the court wrote, "although plaintiffs have identified a number of problems and concerns about the ELL program as it existed prior to the close of discovery in 2009, the court finds that by that time the District had established and recognized programs in place to educate its non-English speaking students in its educational programs."  Again, the question remains as to whether those programs were effective in helping students to overcome language barriers, not simply whether programs were in place.  More poignantly, did the new programs remedy the problems that plaintiffs had identified through discovery?

One problem plaintiffs identified was insufficient numbers of qualifed ELL teachers.  On this question the court wrote:

Plaintiffs also complain about the lack of leadership and deficiencies in professional development and in hiring qualified ELL teachers. The court has reviewed this evidence, and finds that plaintiffs have failed to prove deficiencies sufficient to constitute violations of the EEOA. It should be noted, as recognized by a number of courts, that there is a national shortage of qualified ELL teachers, and that the District has gone to great lengths to recruit such teachers for its increasingly diverse student body.  

First, the court cites to dated cases for the proposition that there is teacher shortage.  Even if there still is a general shortage, undifferentiated national trends tells us little of whether this school district has a justification for not complying with an educational duty.  Second, the court in Teresa P. v. Berkeley, to which the court cites, excused the failure to hire certified teachers because other metrics suggested the teachers were competent and, more important, the data suggested that student achievement was high in the district.  Thus, the lack of certified teachers was not interfering with the educational program.  In other words, there is no free standing exemption from hiring qualified language program teachers, which the McFadden court implies.  In fact, the failure to hire appropriate staff was one of the clearest and most powerful violations recognized in the seminal Castaneda decision, which McFadden indicates it is applying.  The court in McFadden does not discuss student achievement, nor does it offer a detailed justification of the district's hiring woes.

Finally, the court indicates:

Plaintiffs also attack the District's alleged violation of the “90% rule,” a requirement by the ISBE regulations that ELL classes be 90% of the size of the general classrooms in the building in which they are situated. First, a violation of a state regulation does not necessarily equate to a violation of the EEOA. Plaintiffs are required to prove that such a violation, if it occurred, impeded the students' ability to learn English or participate equally in the District's instructional programs. Although plaintiffs have introduced evidence that the 90% rule was violated in certain instances, the evidence fails to show a systemic failure that results in an EEOA violation. 

Here, the court appears to muddle its analysis.  It is correct that a violation of the 90% rule does not automatically equate with an EEOA violation, but the Castaneda standard's second prong requires a state or district to properly implement its chosen ELL program.  Schools have wide discretion in chosing their method of ELL instruction under Castaneda's first prong, but once they choose a method, Castaneda indicates they must implement it consistent with their chosen education theory.  If the 90% rule is the state and district's chosen method, they are expected to abide by it.  If they violate it, the burden presumably should be on the district to justify its deviation, not on the plaintiffs to show that the deviation was causing special harm.

The district court's analysis of the gifted and talent program was straightforward.  The school district was placing ELL and non-ELL students into different gifted and talented programs, even including students who had phased out of the ELL program.  The court found this practice discriminatory and unable to pass strict scrutiny.

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July 19, 2013 in Cases, English Language Learners | Permalink | Comments (0)

Thursday, July 18, 2013

Recent scholarship

David Aronofsky (Montana) and Sam Schmitt (Montana 3L), The Chicago Tribune v. The University Of Illinois: The Latest Iteration of New Textualist Interpretation of FERPA by the Federal Courts, 39 J.C. & U.L. 567 (2013). Excerpted from the abstract:

The Chicago Tribune Co. v. The Board of Trustees of the University of Illinois is the most recent iteration of a trend in which the Family Educational Rights Protection Act (“FERPA”) is interpreted by the federal courts according to New Textualism. The object of this approach is to interpret the meaning of a law's text with text-linked or text-based sources rather than legislative history or Congressional intent. The last twenty years of federal court FERPA case law evidences a shift toward a textualist approach to FERPA interpretation whereby softer approaches to statutory interpretation: legislative history, Congressional intent, and policy objectives are secondary for resolving legal disputes in the federal judiciary. Consequently, FERPA interpretation by federal circuit courts has also become highly uniform. This article argues that the Chicago Tribune fits neatly into the federal court trend towards principally text-based interpretation of FERPA. Consequently, state courts faced with conflicts requiring the resolution of FERPA disputes to apply state law correctly can rely on a straightforward method for properly interpreting the federal law.
-ld

July 18, 2013 in Scholarship | Permalink | Comments (0)

Morgan Spurlock: The 'Inside Man' on Education

Colin Miller, over at Evidence Prof Blog, alerted me to a new documentary series on CNN by Morgan Spurlock.  Spurlock is the award winning director and protaganist of Super Size Me, a documentary on fast food.  Spurlock is now doing shows on a host of social issues for CNN.  Up this week is education.  The CNN promotion for the education show states:

In preparation for teaching a classroom full of 25 eighth graders, Morgan Spurlock learned about the immersive approach that teachers at Williamsburg Collegiate Charter School in Brooklyn, New York take in order to keep their students engaged, interested and stimulated – every minute of every day.

Those techniques include hand claps, snaps, and affirmations of success among fellow students. And free time – which is rare – is typically spent reading.

Since I have no idea what message the show will send, this notice is not an endorsement, but I thought it might be of interest to some readers.  It will air Sunday, July 21 at 10 p.m. ET.  For more details, see here.  I would encourage and welcome a guest blog next week by any one who watches it and wants to offer commentary.

 

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July 18, 2013 | Permalink | Comments (0)

School Choice and the Elementary and Secondary Education Act

Cantor 61-BcChb.Em.91I can't seem to practice what I preach.  After warning you off of daily updates on the reauthorization of the Elementary and Secondary Education Act in favor of the Department of Education waivers, I am now giving you my own update.  It is not, however, because I believe the competing bills will go anywhere, but because I believe the bills say something about education values and agendas. 

Eric Cantor has introduced an amendment that would allow low-income students to take their Title I dollars to their public school of choice, which includes both charters and traditional public schools.  Alyson Klien of Ed Week reports: "Folks had originally expected Cantor to introduce an amendment that would allow parents to take their Title I dollars to a private school, as well as a traditional public school or charter. But that idea met with big resistance from some moderate members of the House Republican caucus, advocates say. And two Republican lawmakers—Rep. Rob Bishop of Utah and Matt Salmon of Arizona—have introduced amendments that would allow students to bring their Title I dollars to private schools. Will Cantor's public school choice amendment be sufficient to help the bill garner support from conservatives? Stay tuned."

The free flow of Title I dollars to private schools is an attack on public schools.  Conservatives argue that such a move just gives poor kids the same option as wealthy kids.  But even with a voucher or Title I portability, poor kids will not have the same option as wealthy kids.  Voucher program data consistently shows that most of these students end up in religious schools.  They end up there not because they want a religious education, but because those are the only private schools willing to take them at a reduced rate.  This is not to criticize religious schools, but to point out this is not really about giving poor kids options.  Instead, it is either about pushing a religious agenda or intentionally moving federal money out of the public system and into the private system.  The latter motivation, which seems like the strongest of the two motivations, represents lost faith in public schools and/or an attempt to undermine them.

I find it heartening that enough moderate republicans balked at this idea that Eric Cantor is moderating his choice position.  I find it disheartening that two other republicans have stepped up to take Cantor's place and will introduce similar legislation anyway.  Hopefully, they will remain on the margins.  Regardless, the other question is whether Cantor's moderated position really is moderate.  Is easing the move of federal money out of traditional public schools into charter schools one that represents a commitment to public schools, or is it just the first step toward the grand initial plan of moving money to private schools?

To be clear, the concept of funding portability is an appealing one to almost all civil rights advocates.  NCLB included a transfer provision that many thought would help integrate and diversify schools, but it didn't work because the receiving schools outside of the school district were not obligated to accept transferring students.  If Cantor's provision creates a greater incentive for suburburban schools, for instance, to enroll urban students, it could be an important move for integration and diversity advocates.  It is hard for civil rights advocates to not be skeptical of anything that Cantor might introduce, but school choice is the one area where conservatives and civil rights advocates have been able to find common ground.  I'll keep my fingers crossed.

For more on the story, see here and here.

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July 18, 2013 in Charters and Vouchers, ESEA/NCLB, Federal policy | Permalink | Comments (0)

Wednesday, July 17, 2013

Charter School Study of Student Achievement Draws Criticism from All Sides



CredoTwo weeks ago, I posted on the Stanford Center for Research on Education Outcome's (CREDO) new charter school study, which  indicated that, on the whole, charter schools have shown improvement since 2009.  The prior 2009 CREDO study, in contrast, had reached less than flattering findings regarding charters and had been a key source of evidence for charter opponents. I point this out because it meant that the new, marginally positive results were not coming from a charter school "cheer leader."  On that basis, I gave the new findings special attention and the benefit of the doubt.  

Those far more expert than myself in statistical methods, however, have dug into the report and begun to raise serious questions.  In fact, the report is now drawing criticisms from all sides. Some charter school advocates will still charge that the report does not give charters enough credit and understates the gains they are making.  In other word, the report may be positive news for charters, but not positive enough.  Others charter advocates take a slightly different route and wildly exaggerate the study's findings.  The National Alliance for Public Charter Schools posted this news blurb:

Stanford University Study Finds Public Charters Better Serve Disadvantaged Student Populations
A study released by the Center for Research on Education Outcomes (CREDO) at Stanford University found that public charter school students in 27 states are outperforming their traditional public school peers in reading while making significant gains in math.

Sorry, but the study does not exactly say that.  It says charter schools in these states have shown more gain than traditional public schools, but charters were starting from a lower point.  They have not, however, surpassed traditional public schools in achievement.  The new CREDO study finds that, on the the whole, only 25% of charters outperform public schools in reading and only 29% outperform public schools in math.

One leading charter school proponent is neither overstating or applauding the report. Instead, it  is calling the study into question in a way that undermines the entire study and deprives charters of any positive spin they might put on it.  Jeanne Allen, director of the pro-charter Center for Education Reform, says that "[t]he way that CREDO has manipulated data and made conclusions about policy based on that data is absolutely 'uncredible.' "  A news release on the Center's website adds: 

The new CREDO report, an update of one previously issued in June 2009, is again extremely weak in its methodology and alarming in its conclusions. . . No matter how well-intentioned, the CREDO research is not charter school performance gospel . . . Similar to its failed 2009 effort, this CREDO study is based on stacking mounds of state education department data into an analytical process that is decidedly lacking in rigor.

This criticism from inside the charter school community is causing significant internal dissension, as reported by NPR.  

The National Education Policy Center, a non-partisan academic research center at the University of Colorado, has also raised more pointed and serious questions that suggest the gains reported may not exist.  In a release from yesterday, Andrew Maul & Abby McClelland offered this overall review:

The study finds a small positive effect of being in a charter school on reading scores and no impact on math scores; it presents these results as showing a relative improvement in average charter school quality since CREDO’s 2009 study. However, there are significant reasons for caution in interpreting the results. Some concerns are technical: the statistical technique used to compare charter students with “virtual twins” in traditional public schools remains insufficiently justified, and may not adequately control for “selection effects” (i.e., families selecting a charter school may be very different from those who do not). The estimation of “growth” (expressed in “days of learning”) is also insufficiently justified, and the regression models fail to correct for two important violations of statistical assumptions. However, even setting aside all concerns with the analytic methods, the study overall shows that less than one hundredth of one percent of the variation in test performance is explainable by charter school enrollment. With a very large sample size, nearly any effect will be statistically significant, but in practical terms these effects are so small as to be regarded, without hyperbole, as trivial.

More specifically, they point out that the study threw out 15% of charter school students from the study because it could not produce a "virtual twin" match in the regular public schools.  These excluded students, however, had scores that were .43 standard deviations below other charter school students.  In other words, many of the weakests charter school students were not even counted.

Second, (if I understand it correctly) the study's statistical model compared individual students in charter schools to individual students in public schools.  Maul and McClelland seriously question this model, however, because it does not account for classroom variables.  For instance, what if the charter school classroom had a higher average soci0-economic status than the public school classroom?  If this were the case, any increased learning in the charter could easily be a result of the positive peer effects of the classroom demographics rather than the charter school's instructional method or structure.

Third, they point out that the CREDO study's "virtual twin" methodology does not account for error rate in students' standardized test scores.  In other words, students with the same standardized test scores are not always similarly situated and, thus, statistical modeling is necessary to adjust for that.  CREDO did not.  Maul and McClelland's full review is available on the National Education Policy Center here.

Reports of this scale and importance will always generate criticism, but these criticisms seem to strike hard at the core of the report.  If these criticisms are valid, one must wonder why CREDO made these leaps.  Did it feel compelled to reach more favorable findings than in 2009?  If so, why? Or was this just poor research design?  Either way, this new study may be destined to live under a cloud of doubt, rather than become a definitive study like its 2009 counterpart.

    --db

July 17, 2013 in Charters and Vouchers, News, Studies and Reports | Permalink | Comments (0)

Tuesday, July 16, 2013

Huffington Post: Turn Off the Lights: Public School Closings, Minority Youth and Bleak Futures

The Huffington Post blog Black Voices today focuses on the massive school shutdowns in Chicago and Philadelphia that Professors Black and Holley-Walker have been covering on this blog here and here. In addition to discussing the impact of the school closings in New York City, Chicago, Philadelphia, Washington D.C., and Sacramento, writer Shaun Ossei-Owusu (ABA Doctoral Fellow) shares this graphic from the National Opportunity to Learn Campaign to give another perspective to the "dry numbers":

2013-07-13-colorofschoolclosures
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July 16, 2013 in Equity in education, State law developments | Permalink | Comments (0)

Daniel Kiel on the Memphis-Shelby County Schools Merger

Some of you may have caught the edweek story last week discussing the upcoming uncertainties regarding the merger of the city and county school districts in Memphis.  Daniel Kiel, University of Memphis School of Law, has been part of the process since the beginning and quoted in the story. He was kind enough to share the following  overview with us:  

These are interesting times for public education in Memphis, to say the least.  A merger of a 100,000-student urban district and a 45,000-student suburban district that has been two years in the making was completed earlier this month and the two districts now operate together as Shelby County Schools.  While the details of this transition are fascinating in many respects, the dynamic that stands out for me is that the landscape seems to be both looking into the future and being tugged into the past at the same time.

The merged district will be the largest player in an increasingly decentralized system of schools. A growing number of charter schools along with the state’s Achievement School District will serve thousands of students in the area, essentially removing those students from the merged district.  This, of course, is not unique to Memphis.  However, the disruption of the merger allowed for the imaging of an administrative structure that seeks to maximize cooperation among school operators – district, charter, ASD – in order to both share best practices and control the area’s education spending.  As more urban districts seek to find the right balance between centralization and school-level autonomy, the proposed (and admittedly untested) model could be a look into the future.  [full disclosure- I served on the commission charged with planning the transition]

However, even as the merger was being planned, a parallel effort to create municipal districts in several suburban municipalities within the county emerged.  Though that was stalled briefly by a federal court decision, changes in state law seem to have the cleared the path for new districts to open as early as fall 2014.  The push for municipal districts has uncovered emotions and arguments about local control, educational equity, and race that not been this prominent since the busing crisis of the early 1970s, though they have likely always been there. On the immediate horizon are the opening of the school year in a month as well as votes in the suburban municipalities about whether to pursue the new districts.  In the long term, the experience could provide a case study for a large scale attempt at contemporary education reform.

Professor Kiel also has two forthcoming articles on the merger.  I will share them as they become available. 

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July 16, 2013 in Racial Integration and Diversity | Permalink | Comments (0)

Monday, July 15, 2013

NCLB Waivers Increase As Congress Continues to Mull ESEA Reauthorization

NCLB waivers CaptureI am a couple of weeks behind on this one, but Arne Duncan granted New Hampshire's application for a No Child Left Behind waiver at the end of last month.  That brings the number of states with waivers or flexibility to 39.  See here for the full list on details on each. 

These waivers continue to be incredibly important.  While a lot of news has come out of the Senate and House over reauthorization of the Elementary and Secondary Education Act (ESEA) during the past few weeks, much of it looks like grandstanding to me.  It is not clear that the House and Senate will come anywhere close to passing legislation on which they could agree.  If that is the case, the net result is that the NCLB waivers are the de facto reauthorization of ESEA, as they are setting the terms by which school districts and states must act over the coming years.  The Obama administration seems perfectly content with this result.  Some republicans likely are as well, as many of the waivers contain the sort of terms that the would favor in ESEA reauthorization.  In short, rather than pouring over the daily and weekly updates on various ESEA bills moving forward in the House and Senate, one's time might be better spent on the Department of Education's waiver and flexibility page.

 

 

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July 15, 2013 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Sunday, July 14, 2013

Missouri School Transfer Ruling Sparking Concerns for Parents and Districts

In June we noted the Missouri Supreme Court case Breitenfeld vs. Clayton that upheld the constitutionality of Mo. Rev. Stat. 167.131, requiring unaccredited school districts to pay tuition and transportation costs for students who transfer to neighboring accredited school districts. As schools' opening day approaches, the ruling is sparking resentment among various St. Louis area constituencies. Unaccredited districts predict that the requirement to pay a new district for transferring students' tuition and transportation may bankrupt school systems already weakened by losing their accreditation. The districts say that the state's transfer law was a factor that led to the demise of the Wellston School District in 2010.

After Wellston dissolved, most of its students moved to the Normandy School District, which, along with Kansas City and St. Louis suburban district Riverview Gardens, are now among the districts that lost accreditation. (The St. Louis Public Schools district, with more than 23,000 students, briefly lost its accreditation, but was granted provisional accreditation last October.)

The law allows home districts to designate one school district to which they will provide free bus transportation. This has been a contentious issue as well, as both unaccredited districts, Normandy and Riverview Gardens, have chosen school districts 20 miles away (Francis Howell and Mehlville, respectively), skipping over closer accredited school districts. The Normandy district says that it considered size, academics, and diversity in choosing the Francis Howell district. (98% of Normandy district students are black; 86% of the students in Francis Howell are white.) Children in Normandy's district may choose to attend a closer district, but will have to find and fund their own way to school. The Missouri Supreme Court's ruling requires districts to accept transfer students even if their classes are already full.

Normandy's choice of the Francis Howell district is turning into a school district version of "Guess Who's Coming to Dinner." In a Francis Howell school board meeting last Thursday, angry parents protested the transfers, arguing that their district's test scores would be lowered when Normandy's students test scores are incorporated with Francis Howell's, and that Normandy students would introduce violence and drugs to their schools. One parent called for the installation of metal detectors.

Whatever conclusion one comes to about the parents' reactions, they are explicable. The St. Louis media featured Normandy High School's problems prominently over the last year; one article in May branded the school, Normandy High: The most dangerous school in the area. Responding to the controversy, two Missouri legislators introduced bills this month to stop those transfers; one legislator called it is "a slap in the face" for Francis Howell to be forced to accept Normandy students.

-ld

July 14, 2013 in Cases, State law developments | Permalink | Comments (0)