Friday, August 16, 2013
via the ACLU of Montana:
The ACLU of Montana is suing the Wolf Point School District on behalf of seven Native American voters who are being denied the equal right to representation on the high school board because of discriminatory voting districts. As the voting districts stand now, each resident of majority white District 3 has far more say on the school board than each resident of majority Native American District 45 in clear violation of the Voting Rights Act and the Fourteenth Amendment.
Wolf Point High School District 45A unites School Districts 3 and 45. With only a 2010 Census population of 430 people, District 3, with a majority white population, elects three members to the Wolf Point High School Board - one board member for every 143 residents. District 45, which is majority Native American, had a 2010 Census population of 4,205 and elects five members - 1 board member for every 841 residents. "This clearly violates the principle of one person, one vote, and creates a school board where white members of the district are overrepresented and Native Americans are underrepresented," said ACLU of Montana Legal Director Jon Ellingson. "The school district has an obligation under both state and federal law to redraw voting districts every 10 years based upon accurate population numbers. It's long past time for the district to do that."
Read the complaint here.
Vouchers are generally pitched to taxpayers as a way to give children at troubled public schools a chance at attending better ones. That was how Wisconsin Gov. Scott Walker pitched the idea that the state expand its voucher program beyond Milwaukee and Racine. But the surprise is the state’s vouchers are not reserved for students in public schools, nor will public school students get priority for them. Sixty-seven percent of the voucher applications for this fall are from parents who are already paying private school tuition. According to the Associated Press, “those [lawmakers] closest on the deal were apparently unaware that the final version did not ultimately give public school students preference over those already in private schools.” Public school advocates in the legislature argued against expanding the voucher program because taxpayer dollars could be funneled to parents whose children already attended private school. Their concerns seem to be borne out as public money is now going directly to private religious schools. The state legislature has expanded the state’s school voucher coverage to 25 private schools, with a cap of 500 students. The Wisconsin Department of Public Instruction received 2,400 voucher applications even with an abbreviated application process from August 1-9. Half of the vouchers will be placed at private schools by random assignment and half through a lottery system.
Derek has provided Education Law Professor blog readers with updates on the school closing litigation in Chicago. In two cases, plaintiffs argue that the planned closing of 49 public schools will harm children with disabilities and violate of the Americans with Disabilities Act. The court denied motions to dismiss the cases, but last week also denied motions to certify the cases as class actions. Much of the early right-to-education litigation that led to the adoption of the Individuals with Disabilities Education Act. such as Mills and PARC, consisted of class actions, and class actions have been instrumental in developing special education law since adoption of the Act. But Wal-Mart v. Dukes, 131 S. Ct. 2541 (7th Cir. 2011), appeared to narrow the application of the federal class action rule, and courts since that time have struggled with whether class actions will be permitted in cases that address the identification, evaluation, and placement of children with disabilities and other special education issues. Important decisions include the Seventh Circuit’s Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), vacating a class action decree, and DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013), also vacating a class judgment, but suggesting that a revised class or set of subclasses could satisfy the requirements of the federal rule.
The two school closing cases, McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Ill. 2013), place their greatest stress on the conclusion that the plaintiffs failed to show that the school closings worked a common harm on the members of the class, affecting them in a uniform way. It is not clear that all members of a class must always be harmed in the same way, or even in a way that can be determined at the outset of the litigation, see, e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482 (7th Cir. 2012) (upholding class status in an employment discrimination action on behalf of African-American stockbrokers all affected by a staffing policy, but potentially affected in different ways and degrees), but the prospects for success seem much greater in the post-Wal-Mart environment when the proponents of class certification can identify a specific policy that caused the harm they suffer. The court in the school closing cases did not deem the decision to close the schools or the rubric under which schools were selected for closure as policies that could support class action treatment under the facts of the case. The next big news expected on the class action topic is the Seventh Circuit’s decision on the appeal of the decision not to decertify the class in Corey H. v. Board of Education of City of Chicago, 2012 WL 2953217 (N.D. Ill. 2012), which has been pending since argument was held in February. For further commentary from me on the Jamie S. decision in specific and special education class actions in general, presented from something of a plaintiff’s perspective, take a look at this video of a presentation from a program of the Illinois Protection and Advocacy Agency, Equip for Equality, in 2012.
Thursday, August 15, 2013
Earlier this summer I posted on the special education lawsuits challenging the Chicago public school closures. The district court has moved the cases along pretty quickly and, last week, denied class certification in both McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan ex rel I.O. v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Illinois 2013). These decisions have an immediate impact on Chicago schools and the students who attend them, but the court's reasoning relates to the general issue of class certification in education cases.
While the Supreme Court's 2011 decision in Wal-Mart v. Dukes denying class certification to a nationwide group of women is argueably limited to its unique facts or employment litigation, courts have increasingly seen fit to rely on Dukes as a basis for denying special education classes. These district court decisions are but another example. To their defense, they may not have had much choice, as the Seventh Circuit, in which Chicago sits, had already extended Dukes to a special education case in Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481 (7th Cir. 2012).
I am relatively comfortable with the notion that these courts are overextending Dukes, but I not clear on whether these courts might have denied certification anyway. Either way, decisions like these are likely to have a chilling effect in jurisdictions relying on an expansive interpretation of Dukes. A few courts, however, have refused to treat Dukes as imposing any additional hurdles to class certification in special education cases.
I know Mark Weber has been following and thinking about this issue for a while and has already presented on it, at least, once. Stay on the lookout for his upcoming presentations and scholarship on the topic.
Wednesday, August 14, 2013
NPR: Parents Claim that Race and Class Driving Alabama School District's Decision to Cancel Bus Service
via Dan Carson, NPR:
The decision by a suburban Birmingham school district to eliminate its busing program has erupted into a controversy over race and class. Officials in the Hoover school district say they were forced to drop the buses because of a severe budget shortfall. Many community members believe the decision was designed to force out the growing numbers of minority and low-income students who are lowering average test scores in Hoover schools.
Listen to this story and read more here.
"Public Servants Should Be Supporting Education": Wake Forest Professor's Open Letter to the North Carolina Gen. Assembly
Wake Forest Professor Alan Brown has published an open letter about education to the Senate President of the North Carolina General Assembly. In the letter, Brown writes of his concerns that the state's education measures will prove to be destructive rather than helpful or efficient. Brown, an English professor, wrote to NC Senate President Pro Tempore Phil Berger about the education bills that Derek has been covering this summer, including budget cuts, charter schools, and replacing teachers with Teach for America recruits.
The Gen. Assembly's laws on education, voting rights, and abortion sparked "Moral Mondays" protests at the state house. Brown's letter, published last Sunday in the Greensboro New-Record, is reprinted below:
As a native of Guilford County and a former public school teacher, let me first thank you for your interest in K-12 education in North Carolina. I believe it is important to see our state representatives openly discussing the work of public schools while considering potential improvements.
Sadly, I fear you have set us on a destructive path to privatizing education while cutting many crucial budgetary items that make our schools successful. Instead of collaborating with educators to implement public policy, you and your colleagues seem convinced that ending teacher tenure, eliminating class size caps, cutting teacher assistants, adding armed guards, increasing funding for standardized tests, and encouraging recruitment of teachers with limited preparation will be some sort of saving grace for North Carolina schools. While I cannot possibly speak to each of these policies in such a limited space, I hope to highlight a few that seem the most perilous.
Last week, the Third Circuit issued its en banc opinion in B.H. v. Easton Area School District – aka the “I [heart] boobies” case. Some quick background: as part of its work to educate thirteen- to thirty-year-old women about breast cancer and encourage them to perform self-examinations, the Keep A Breast Foundation began an initiative entitled “I [heart] boobies.” Part of the campaign involved selling silicone bracelets emblazoned with “I [heart] Boobies! (KEEP A BREAST)” and “check yourself! (KEEP A BREAST)”. Two middle-school girls purchased the bracelets with their mothers and wore them to school; after a few weeks, the school decided to prohibit bracelets containing the word “boobies,” although it encouraged students to wear other items in honor of Breast Cancer Awareness Month, such as the traditional pink ribbons. The students (through their mothers) sued and were successful in getting a preliminary injunction from the district court; the Third Circuit then decided to hear the case en banc.
In a 9-5 split, the Third Circuit affirmed, ruling that the ban on the bracelets violated the First Amendment. The court rejected the school district’s argument that Fraser’s “plainly offensive” standard justified the ban. Interestingly, the court applied a gloss from Morse v. Frederick to the Fraser standard. The court explained that in Morse, Justice Alito – who wrote a separate concurrence and provided the crucial fifth vote – had distinguished between pure pro-drug advocacy and speech “that can plausibly be interpreted as commenting on any political or social issue.” Building on this, the court articulated a new Fraser framework: (1) plainly lewd speech can always be restricted in schools; (2) speech that isn’t plainly lewd, but that a reasonable observer could interpret as lewd, can be categorically restricted as long as it doesn’t plausibly comment on political or social issues; and (3) speech that isn’t plainly lewd, and that can be plausibly interpreted as commenting on political or social issues, can’t be categorically restricted (although it still can theoretically be restricted under Tinker). The majority ruled that this speech fell into category (3): “boobies” wasn’t categorically lewd, and the overall message contained political/social commentary on breast cancer awareness.
There’s a lot I like about this opinion. I’ve long thought that Alito’s emphasis in Morse on the presence of some sort of political/social commentary in student speech provides a helpful dividing line, even though it can get blurry at the margins. One of the dissents argued that it was inappropriate to let Morse inform the Fraser standard – that each student speech case is an “independent analytical construct.” But if we are trying to create an overall student speech framework that makes sense, I think it is helpful to think thematically and consider how the cases overlap and inform each other. Indeed, Alito’s discussion in Morse echoed Fraser’s own emphasis on the absence of political content in the student speech at hand. And in theory, I think the framework that the Third Circuit articulated makes a lot of sense.
That said, there are some pretty obvious controversies coming down the pike. The majority went out of its way to hold that “I [heart] Tits” could still be restricted as plainly lewd, but expressly declined to reach the “I [heart] Balls” slogan that is already being used by the Testicular Cancer Awareness Project, which is selling “feelmyballs” bracelets.
I also can’t help wondering about how this case would have played out if it were a middle-school boy initially wearing the “I [heart] boobies” bracelet. The court emphasized that “the subjective intent of the speaker” is irrelevant in the Fraser analysis, but it nonetheless set forth the sympathetic facts here: the speakers were girls who had bought the bracelets with their mothers to commemorate friends and relatives who had suffered from breast cancer. I suspect that not all the middle-school wearers of the “I [heart] boobies” and “feel my balls” bracelets will be coming from the same mindset.--Emily Gold Waldman
Earlier this summer, I posted on Goldman Sachs' investment in Salt Lake City's new pre-k program (here and here) and posited that it was a pretty sweet deal for Goldman. Now, other investors are seeing the sweet deal as well. Ed Week reports that the Pritzker Group is also investing in Salt Lake City's pre-k program. My earlier post had questioned the appropriateness of permitting Wall Street to profit from public education, particularly when pre-k is a proven product. In later conversations with a colleague, he posited that school officials may be firmly committed to pre-k and may not even be looking for financial help for its own sake. Rather, they may be looking to Wall Street to help them sell pre-k to the broader public, particularly in more conservative leaning communities. Regardless, now that more investors see the attractive, more voices are joining me in their skepticism of the the partnership.
For more on these developments, see the block quote and link to the Ed Week story after the jump.
Tuesday, August 13, 2013
California Governor Jerry Brown signed the nation’s first statewide transgender rights law for K-12 students on Monday. The law, called the School Success and Opportunity Act (California Assembly Bill 1266), requires public schools to allow transgender students to choose which restrooms and locker rooms that they wish to use and to choose whether they want to play boys’ or girls’ sports. The law also allows transgender students ‘‘to participate in sex-segregated programs, activities and facilities’’ regardless of their birth gender. A legislative spokesman told the Associated Press that California’s largest school district, Los Angeles Unified, has had such a policy similar to the new law for a decade and has reported no problems. Hundreds of other schools in California have also adopted policies protecting transgender students’ rights.
Last week, the Education Law Center of Pennsylvania filed a complaint with the Deparment of Justice alleging that African American students and students with disabilities are significantly overrepresented in the state's Alternative Education for Disruptive Youth programs. Pennsylvania's Alternative Education programs educate over 14,000 students each year who have been suspended from school for violence or misconduct. After reviewing four years of Alternative Education records, the Center found that special education and African American students made up a disproportionate percent of students in Alternative Education. The Center alleges that the Pennsylvania Department of Education has failed to protect many of those students' rights under the Americans With Disabilities Act and the Civil Rights Act. The Center's four year study revealed:
Monday, August 12, 2013
In reviewing news stories from last week, I couldn't help but notice the outlandish claims being levied both for and against NCLB, and the fact that they were both coming from conservative commentators. Vicki E. Alger, the Director of the Women for School Choice Project, published a piece titled "Don't Try to Fix 'No Child Left Behind,' Just End It." She argued that federal accountability was flawed, that educational authority should be returned to localities, and that the federal government should refrain from passing any education legislation until there is a constitutional clause specifically authorizing a federal role in education. (I thought about sending her an email alerting her to Congress's constitutional power to spend for the general welfare, but thought better of it, since that was not her real point). Her solution: "state lawmakers should enact and expand parental choice programs. Today, 250,000 students nationwide are benefiting from parental choice programs. Rigorous scientific research proves parental choice works; parental choice saves money; parental choice is constitutional; and, parental choice programs change children's lives for the better." I too am a fan of choice when it is controlled in a way that produces integration and equitable opportunities. I did not take her proposal to be one that would place any limits on choice. This, I believe, would be a disaster for those most in need.
On the other hand, Paul Peterson, a senior fellow at Stanford's Hoover Institution, published a piece in the Wall Street Journal arguing that we need to return to the core of NCLB. His reasoning is that the black white achievement gap among 9 year olds has increased during the Obama Administration. He attributes the increase to Obama's policies and argues that NCLB closed achievement gaps during the Bush administration. His sweeping claims based on minimal data points is mind boggling. As I pointed out in Civil Rights, Charter Schools, and Lessons to Be Learned, making causal assertions in education is particularly dangerous, even when good data is available. Moreover, it is not clear to me how Peterson can point to any specific policy that would have produced a significant change in the achievement gap since Obama took office and would have already shown up in the data.
Until the recent NCLB waivers, the Obama administration had continued to implement NCLB. Because the waivers are so new, we do not have relevant data on their effect yet. One might point to the fact that, prior to the waivers, the Obama administration had given out competitive grants, but only a few states received them. So again, it is not clear how national effects could should up in the data. Now I am speculating, but a more plausible explanation for an expanded achievement gap would be the recession and its differential impact based on race. Given the significantly higher increase in unemployment among African Americans and what we know about the effects of poverty on student achievement, I would put my money on the recession rather than the administration as a cause of the increase (even if that increase is reliable).
Regardless, Peterson's point is that we need to increase student and teacher accountability, not grant states waivers. This, of course, is diametrically opposed to Alger's thesis. These sorts of internal disagreements, which are not new, are part of what made NCLB remarkable. There are a thousand different competing views about how to fix education and somehow NCLB emerged with a relatively significant level of internal consistency and vision (even if that vision was flawed). As I have said all summer, however, we haven no reason to expect a reauthorization of any type any time soon. This schizophrenia only makes it less likely.
National Conference of State Legislatures.
Today, we look at the implications of one of those laws in Alabama. Alabama’s school tax-credit plan continues to be a work in progress. Significant legal roadblocks exist before many of the students in “failing” schools can transfer. Today, the press reported that because only eight schools may be removed from the failing schools list each year, it does not matter if any other the other 70 schools on the list pull their scores up to “passing.” Because of the eight-school cap, schools must remain on the “failing” list whether their students pass the state's language and math proficiency tests. In short, for many students at Alabama schools branded as failing, the law gives them no way out to better ones.
Consistent with the summer of school choice news, another interesting story just came out of Virginia. Virginia has an extremely lenient home school provision that exempts parents who home school for religious reasons from all state oversight. No records, no transcripts, no test scores and no proof of instruction. Now Josh Powell, a teenager, wants to go to public school, but his parents won't enroll him. Apparently, he asked local school officials to let him enroll, arguing that he was learning so little at home. According to him, he didn't know how to write an essay, didn't know South Africa was a country, and couldn’t solve basic math problems.
This case highlights what I have always felt was missing from the Supreme Court's seminal decision in Wisconsin v. Yoder, in which the Court held that the Amish's interest in exempting their children from high school education outweighed the interests of the state. In Yoder, the Court ignored the interests of the child and the possibility that they would be at odds with the parents. The Court reasoned that the child was not a party in the case and, thus, it did not address the issue. But of course, a child's interests are always at stake when determining the education he or she will recieve.
For more on the current dispute, see here. Presumably, Powell's only recourse will be legal. It would be interesting to see how a court balances his interest in education against his parents' statutory and constitutional right to control his upbringing.