Thursday, February 6, 2014
In August 2012, the Fourth Circuit Court of Appeals in Moss v. Spartanburg County School District Seven, 683 F.3d 599, (2012), held that a South Carolina statute that allowed public schools to give public school credit for private religious instruction did not violate the First Amendment’s prohibition of establishment of religion. The court reasoned that
The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools. Thus, under this model, an unaccredited entity, such as Spartanburg Bible School, could offer a released time course and assign grades to participating students for transfer to the public school system if it received a stamp of approval from an accredited private school. In this manner, the released time grades are handled much like the grades of a student who wishes to transfer from an accredited private school into a public school within the School District; the public school accepts the grades without individually assessing the quality or subject matter of the course, trusting the private school accreditation process to ensure adequate academic standards.
This model has enabled the School District to accommodate the desires of parents and students to participate in private religious education in Spartanburg County while avoiding the potential perils inherent in any governmental assessment of the “quality” of religious instruction.
A new article by Samuel R. V. Garland-- Moss v. Spartanburg County: How the Fourth Circuit Got it Wrong and What it Means for the Future, 48 Wake Forest L. Rev. 1075 (Fall 2013)--dissects this case. He argues that the Fourth Circuit effectively collapsed the three separate prongs from Lemon v. Kurtzman into a singular conclusory analysis about the statute's constitutionality. Separate consideration of each Lemon prong, or application of the coercion or endorsement tests from other Supreme Court holdings, would have demonstrated that the statute was unconstitutional.
The Second Circuit Court of Appeals in Gulino v. Board of Educ. of New York City School Dist. of City of New York, 2014 WL 402286 (2014), affirmed the district court's holding that the school board “'can be subject to Title VII liability for its use of'” the Liberal Arts and Sciences Test (“LAST”) and that the LAST violates Title VII's disparate impact provisions because it was not properly validated." The district court had also "denied in part the Board's motion to decertify the previously certified class in light of the Supreme Court's intervening decision in Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011); and (3) held that the defense to claims of disparate treatment under Title VII recognized in Ricci v. DeStefano, 557 U.S. 557 (2009), does not apply to claims of disparate impact." The Court of Appeals also affirmed those holdings. In short, the lawsuit by African American and Latino teachers, challenging the disparate impact that state testing requirements have on them, will move forward, and they can move forward as a class. This holding is particularly satisfying for plaintiffs' attorneys, in general, given the barriers presented by Wal-mart and Ricci to class action discrimination claims. This plaintiffs' class survived both.
Wednesday, February 5, 2014
The Eleventh Circuit ruled today that members of Alabama’s powerful teacher union cannot pay their dues through automatic payroll deductions, thus affecting the union’s largest funding source. In 2010, the Alabama legislature passed a law prohibiting government employees from having membership dues automatically deducted from their paychecks if the money went "to a membership organization which use[d] any portion of the dues for political activity." The Alabama Education Association (AEA), later joined by the Alabama State Employees Association and the International Association of Fire Fighters, contested the law saying that the term “political activity” was over broad and an infringement on free speech. The 11th Circuit disagreed, finding that the law’s language “prohibits only the use of state mechanisms to support politically active organizations. The Act does not prohibit “ ‘ private forms of payment, i.e., forms of payment not facilitated by the government. ‘ ” The circuit court concluded, “the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct[.]” The 11th Circuit also rejected the AEA's argument that Republican lawmakers passed the law to punish the teachers’ union, whose members largely support Democratic candidates. Read the opinion in Alabama Education Association v. Bentley, No. 11-11266 (11th Cir. Feb. 5, 2014), here.
Wendy Parker’s new article, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Fla. L. Rev. 1871 (December 2013), offers a unique perspective on the Court's holding in Parents Involved and other recent race cases. In particular, she frames the cases in such a way that they could be of benefit to civil rights advocates rather than just hindrances. Parker argues that the majority in Parents Involved changed the meaning of discrimination from substantive discrimination, which originated with the Warren Court, to process discrimination. Process discrimination occurs “from the process of different treatment, without proof of any attending substantive harm.” She also emphasizes that Fisher v. Texas was premised on process rather than substantive discrimination.
She theorizes that process discrimination, as an aggressive colorblind principle, can ultimately help plaintiffs of all races in discrimination suits because it allows plaintiffs to more easily show that their race was part of the decision that caused them harm. Prof. Parker illustrates this with a hypothetical:
Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing. Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.
My forthcoming article in a Fisher symposium frames Parents Involved and Fisher as a triumph of form over function, and bears a lot of similarity to Parker's. What she calls "process" I call "form," and what she call "substance" I call "function." In other words, we read the cases the same, but put different labels on them. The current conclusion of my paper, however, takes a different route than Parker. I conclude that the focus on form benefits whites and disadvantages minorities, primarily because the harm that typically falls on minorities is not explicit. Instead, the harms minorities suffer are often the result of the way the system functions. This type of harm escape judicial scrutiny under an analysis heavily weighted toward form.
Parker's article, however, would indicate that form over function is not all bad. Minorities just have to embrace the new paradigm and marshall it to their benefit in the same way opponents of affirmative action have--an extremely important and insightful point that I overlooked in my pessimistic analysis of the cases.
An earlier version of the paper is available here on ssrn.
Tuesday, February 4, 2014
Opening arguments began Monday in a Caliornia case that challenges the state’s teacher tenure laws. Nine California students, in litigation financed by Students Matter, an advocacy organization headed by Silicon Valley entrepreneur David Welch, are asking a state court to declare that California’s teacher tenure and seniority statutes, among others, violate the equal protection provision of the state constitution. The plaintiffs argue that the statutes protect “grossly ineffective teachers who cannot prepare students to compete in the economic marketplace or participate in a democracy.” The statutes have a disproportionately adverse effect upon minority and economically disadvantaged students, the plaintiffs maintain, because those students are at greater risk of being assigned ineffective teachers. That risk compounds the damage of disproportionate school budgets in lower-income school districts. The plaintiffs seek a permanent injunction against laws that protect teachers' jobs and thus lower the quality of education for children in California. Read the 2012 complaint in Vergara v. California here.
For anyone who have not seen it yet, Claire Lundberg has an interesting article in Slate that describes her experience with France's Pre-K system. She explores its 180 history, its pedagogy and effectiveness. While she cites flaws in it, the national commitment to universal Pre-k and its educational importance begs the question of what the big debate is about here in the U.S.
Alan Houston, an African-American middle school principal, alleged he was removed from his position in retaliation for racial complaints made by Houston and his wife. Houston alleged this action violated Equal Protection, the First Amendment, and state tort law. The District Court, in Houston v. Indep. Sch. Dist. No. 89 of Okla. Cnty., 949 F.Supp.2d 1104 (W.D. Okla. 2013), dismissed Houston’s equal protection and state claims, but held that he could amend his equal protection claim. The equal protection claim was not fully fleshed out, but my reading is that the better claim would have been a Title VI or Title VII complaint, in which he alleged retaliation for his complaints regarding discrimination. The Supreme Court in Jackson v. Birmingham explicitly recognized such a claim for complaints of gender discrimination under Title IX and lower courts have extended the holding to Title VI.
The First Amendment claim is particularly interesting. The court takes up the Garcetti and Pickering analysis and combines them into a 5-factor test, focusing heavily on whether the speech was of public concern and made in the plaintiff's official capacity. The district court also applies the Twombly/Iqbal pleading standards. In short, the case is a professor's playground for new, controversial and intersecting Supreme Court precedent. Unfortunately, the district court's opinion is relative short.
Monday, February 3, 2014
I admit to being ignorant of the backstory, but the Taxpayers United of America suit against an Illinois school district for pushing a referendum to raise additional school funds strikes me as absurd. The referedum failed, so it is unclear to me why the plaintiffs would have continued to press the case, except to teach the district a lesson about raising education revenues.
The Taxpayers United of America alleged that “defendant and its members proceeded with the referendum knowing that it was misleading and understated the amount of the property tax increase, and that they engaged in illegal electioneering to promote an affirmative vote on the referendum.” Peraica v. Riverside-Brookefield High Sch. Dist. No. 208, 999 N.E.2d 399, 403 (Ct. App. Ill. 2013).
The trial court dismissed the plaintiff’s complaint, and the court of appeals affirmed. The court of appeals held that the plaintiffs failed to establish a violation of §1983 of the Civil Rights Act because they failed to recognize any violation of their constitutional rights. Instead, ““the crux of Plaintiffs' constitutional claim appears to be that they ‘were forced to struggle against the public funds' that defendant supposedly spent in support of the referendum.” Id. at 406. The court, relying on Kidwell v. City of Union, 462 F.3d 620,626 (6th Cir. 2006) noted that “The natural outcome of government speech is that some constituents will be displeased by the stance their government has taken. Displeasure does not necessarily equal unconstitutional compulsion, however, and in most cases the electoral process—not First Amendment litigation—is the appropriate recourse for such displeasure.”