Tuesday, January 20, 2015
Ed. note: Professsor Dan Subotnik's short essay below calling for a reexamination of university tenure echoes themes heard in recent discussions of the role of tenure in K-12.
Untenuring Tenure by Dan Subotnik (Touro Law)
A specter haunting the academy today is of an intellectually wizened white male professoriate refusing to step aside for au courant, energetic, ambitious, and of course diverse younger faculty. Part of a larger concern with tenure itself, the fear in question is that tenured old-timers, of which I am one, are holding fast to financial and administrative perks, limiting institutional control and stifling institutional development in the process.
Sometimes the fear is expressed openly. Intractable seniors, according to a recent, widely debated Chronicle Review post (“The Forever Professors”) often “crush the young” through their “selfish[ness].” A law school colleague argues that, having enjoyed our share of university bounty, responsible seniors should facilitate succession by quickly and gracefully exiting the stage. Such a development might be contrasted with what is actually happening today: seniors in effect extorting rich buyouts to retire.
More of the time, of course, the critique is not explicit. Yet who among us seniors has not felt the sting of “what are you still doing here, gramps” looks from junior law faculty and deans?
A visceral response to critics may be tempting here, but we must show our maturity. Beating up the young for impertinence would show both ignorance and hypocrisy. Inter-generational, oedipal struggle, we have learned, is the way of the world, and, it must be admitted, many of us felt the same way 30 years ago about our predecessors in law. They would never have gotten their jobs in the competitive environment of 1985, we self-righteously told ourselves, just like we would not get ours in today’s environment, when two good law review articles are required just for a job interview.
We must also admit that the young are not wrong to be concerned about their future. Well known is that law schools are experiencing budgetary upheaval. Our schools are hurting badly. There are many more law school seats and 50 more law schools now for the same number of students as attended law school 40 years ago. In this harsh setting, it is not surprising that senior faculty make up an ever larger fraction of faculty, that raises are skimpy or nonexistent, and, above all, that the risks of dismissal fall most heavily on those with least seniority. Tenure may lie at the very heart of academic freedom, but the foregoing problems are fairly laid at its doorstep. Dismissal “for cause,” as is usually required, has proved an exceedingly heavy burden for academic institutions.
Thursday, July 24, 2014
Professor Dan Subotnik (Touro Law) sent us An Anti-Rape Measure Too Far? analyzing a bill in the California legislature, which, if it becomes law, is likely to become as noteworthy as Antioch College’s Sexual Offense Prevention Policy. California SB 967 would require college students to secure “affirmative consent” from their partners before having sex. "Affirmative consent” is defined in the bill as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill’s author, California state senator Kevin de Leon, told the Washington Times that SB 967 “will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.’” The bill’s supporters describe SB 967 as providing “clearer guidance” on rape prevention and providing justice and adequate services to victims. Opponents criticize the bill as “unnecessary, misdirected and vague” and likely to “result in the unfair treatment of men,” as noted in its synopsis here. If the bill becomes law, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid. Readers may recall the deep controversies that campus rape laws and sexual assault policies can engender, including concerns about privacy, due process, and the rights of victims and the accused.
In his piece, Prof. Subotnik concludes that the reality and psychology of sexual encounters confound attempts to regulate sex through campus affirmative consent laws. Read An Anti-Rape Measure Too Far after the jump.
Tuesday, September 24, 2013
A la the thesis of Diane Ravitch's new book, which I posted on yesterday, it is worth stepping back to consider what is really going on with the takeover of six Virginia schools. As LaJuana posted a few days ago, the state passed legislation creating the Opportunity Educational Institution, which grants this entity the power to take over schools that have failed to gain accreditation four years in a row. At least one district has filed suit arguing that the takeover violates the state constitution. Putting the constitutional issues aside for a moment, the persistant failure to meet accreditation standards suggests that these schools are in crisis, but are they? And if so, who is to blame?
The state's accreditation standards require elementary and middle schools to achieve the following pass rates: English – 75 percent or higher; Mathematics – 70 percent or higher; Science – 70; percent or higher; and History – 70 percent or higher. High schools are fully accredited if students "achieve pass rates of 75 percent or higher in English and 70 percent or higher in mathematics, science and history; and [a]ttain a point value of 85 or greater based on the Graduation and Completion Index (GCI)." (For further definition of the GCI see here). These flat and simple standards are the whole of the accreditation requirements.
One of the six schools in the state that has failed to meet this standard is Jefferson-Houston (formerly an elementary school, now a pre-k through 8 school) in Alexandria. The school rests on the edge of Old Town Alexandria, one of the DC area's most affluent neighborhoods. When I lived in the DC area, my home happened to be less than a mile from Jefferson-Houston. We didn't live in Old Town, but our son, had he been old enough, would have been assigned to Jefferson-Houston. The school's name also carries special meaning to me. Jefferson is in reference to Thomas Jefferson and Houston is in reference to Charles Hamilton Houston, former Dean of Howard Law School and the original architect of the NAACP's desegregation strategy.
Thursday, September 19, 2013
For those who dug a little deeper on the special education case I posted yesterday, Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), you may have noticed an oddity. The plaintiff's claim was about the failure to properly implement the student's Rehabilitation Act Section 504 plan, but the court dismissed the claim for failure to exhaust IDEA administrative remedies. This struck me as odd and irrelevant, but I did not address it in my post because I was not sure of the right answer and I did notice that the plaintiff had cited to some Kentucky regulations, which looked to be IDEA implementing regulations. In other words, maybe there was an IDEA claim there and I just did not see it.
Mark Weber was nice enough to clarify the issue for me and point out what is another significant issue in cases of this sort. He offered the following:
Wednesday, September 18, 2013
When the NCLB waiver process began last year, I commented at a few conferences that Arne Duncan had become the School Superintendent of the United States of America, a position which he obviously had not been elected or appointed. I offered this characterization of his new role not as a substantive critique of Duncan's policies, but as a legal scholar/contrarian questioning the exercise of power, regardless of whether that power was exercised benevolently or well. To be clear, I have long favored the federalization of education in certain respects and have argued that the federal government should exercise far more control over states and districts in terms of equity, school finance, and integration. All of those proposals, however, are predicated on existing or new legislation that gives the Department of Education the necessary power.
NCLB does not give Duncan the power he has exercised in the waiver process. NCLB includes the short statement: "The Secretary may waive any statutory or regulatory requirement of this Act for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency.” 20 U.S.C. § 7861 (2006). Missing from this text is any mention of the Secretary placing conditions on waivers. A logical argument can be made that conditional waivers are implied in this power in so far as conditions are necessary to or further eventual compliance with the Act. For instance, the Secretary might waive a state's failure to meet NCLB standards in 2013 on the condition that a state reach compliance by the following year. Or more heavy handily, the Secretary might condition a waiver on a state taking steps X, Y, and Z, which directly relate to the state's ability to reach compliance the following year. In both instances, the conditions are embodied within the conditions and requirements that the Act had already placed on the state. In other words, the conditions would not add not substance to NCLB. To infer that the waiver power gave the Secretary broader power would be to infer that the waiver was intended as an independent and open ended policy making or judgment power for the Secretary. If it were, it would be the equivalent of making the Superintendent of the United States School Districts.
Tuesday, September 17, 2013
When I first posted on DOJ's motion to enjoin vouchers in Louisiana until the district court could determine whether they had the effect of violating standing court ordered desegregation, I assumed that no one but the few remaining desegregation junkies and the few students affected by it would pay it much attention. DOJ's motion was standard fare for a desegregation case and, in comparison to other current desegregation battles, is of relatively small importance. I seriously underestimated the politics of this case, which explains why I am a law professor.
I have no doubts on the law here, but what is becoming increasingly clear is that no one else really cares what the law is. All that seems to matter are the politics and, rather than a story dies quickly, this one has legs due to the ratcheting up of the politics. Two cases in point. The Chicago Tribune issued a stinging editorial on Sunday titled United States v. minority children. Now, former Governor Jeb Bush, U.S. Senator Tim Scott, and the Foundation for Excellence in Education are joining Governor Jindal in hosting a press conference at the National Press Conference tomorrow to discuss the lawsuit. Earlier, House Majority Leader, Eric Cantor, asked why Obama wants to keep poor kids out of good schools.
Maybe, the escalating politics suggest a new answer to the question in my second post: why is Louisiana seeking to delay the hearing in this case? The new answer may be that it gives the state more time to turn up the politics and distract the district court from the legal question, which is a slightly different game--albeit still a game--than the one I posited earlier.
Rob Garda offers the following:
The Third Circuit recently held that a student who is not an eligible “child with a disability” cannot seek redress under the IDEA for misplacement in special education. S.H. v. Lower Merion School District, 2013 WL 4752015 (May 23 2013). LaJuana Davis summarized the facts and the holding of the S.H. case on this blog here. The key holding - that the plain language of the IDEA permits only a “child with a disability” to bring claims under the statute – does not hold up under scrutiny. The Court relied on the general introductory language of Section 1415(a), requiring that states establish procedures to protect “children with disabilities,” to conclude all the remaining specific procedural safeguards in Section 1415 apply only to eligible children. But in identifying who may bring a due process claim, the IDEA allows “any party to present a complaint with respect to any matter relating to the identification, evaluation or educational placement of the child . . .” 20 U.S.C. 1415(b)(6) (emphasis mine). The Third Circuit’s presumption that the introductory language of subsection (a) limits the specific procedural rights listed under subsection (b) is wrong because many of the subsection (b) rights distinguish between “child with disabilities” and simply “child.” For example, only a “child with disability” may inspect records, 1415(b)(1), but any “child” is entitled to notice when the school proposes to initiate an identification or evaluation. 1415(b)(3). Many procedural rights are granted to children that are not eligible and the right to file for due process is one of them. Further, the mediation and due process subsections make no mention of being procedures available to only eligible children. 1415(e) and (f). While the Third Circuit purports to apply the plain language of the IDEA, it apparently ignores that “any party” may contest “any matter” relating to the evaluation and placement of a child, which is exactly what S.H. did in the case.
The Third Circuit’s conclusion that IDEA eligibility is a jurisdictional prerequisite to bringing a due process claim also ignores a long line of cases permitting students to contest eligibility determinations. Courts and hearing officers are often asked to determine whether evaluation procedures were followed in eligibility determinations or whether the substantive eligibility determinations were correct. For articles discussing the eligibility cases see here and here. Many of these courts and hearing officers conclude that the child is not eligible under the IDEA, but none of them question the child’s right to contest eligibility in a due process hearing.
Maybe a jurisdictional line can be drawn between parents contesting denial of eligibility, as occurs in most cases, and misplacement into special education, as happened in this case. But the Third Circuit did not draw such a line, nor should it. As counsel for S.H. pointed out, the IDEA is equally concerned with non-placement and misplacement into special education, particularly for minority students.
Monday, September 16, 2013
The district court in E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Mississippi 2013), issued its first opinion last week in a class action claim against the Mississippi Department of Education for its failure to force Jackson Public School District to comply with the IDEA's mandate of a Free Appropriate Public Education (FAPE). In September 2010, the first plaintiff filed an administrative complaint with the Mississippi Department of Education. The Department investigated the complaint and found that Jackson was, in fact, violating IDEA and ordered the district implementa a remedy. In follow up monitoring of the district, the Department found that Jackson had not remedied its violations of IDEA. The Department set November 1, 2012 as a deadline for compliance and indicated that failure to comply would result in the state stripping the district of its accreditation. But when November 1 arrived, the district was still non-compliant. Rather than take action against the district, the state extended the deadline (and did so again later). The deadline as it currently stands is February 28, 2014.
Friday, September 13, 2013
Emily Gold Waldman shared this analysis with us:
When the Supreme Court held in Garcetti v. Ceballos that public employees do not have First Amendment protection for speech that they utter pursuant to their official duties – even if that speech is on a matter of public concern – it created a special carve-out. Responding to a concern raised in Justice Souter’s dissent about professors’ academic freedom, the majority explicitly stated that it was not deciding “whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Since then, lower courts have had to grapple with two questions: (1) how does Garcetti apply to K-12 teachers’ job-related speech? and (2) how does Garcetti apply to university professors’ job-related speech?
So far, the circuits have been unanimous that Garcetti indeed applies to K-12 teachers’ job-related speech (essentially their classroom speech, the main aspect of their job). See, e.g., Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011); Evans-Marshall v. Board of Education, 624 F.3d 33d (6th Cir. 2010); Mayer v. Monroe County, 474 F.3d 477 (7th Cir. 2007). In other words, once the court finds that the teacher was speaking in her capacity as an employee rather than as a private citizen, the teacher loses her First Amendment claim.
By contrast, circuits are starting to hold that Garcetti does not apply to university professors’ job-related speech (i.e., their teaching and writing). The Fourth Circuit so held in 2011, see Adams v. Trustees of the University of North Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011), and the Ninth Circuit reached the same conclusion last week in Demers v. Austin, 2013 WL 4734033 (9th Cir. 2013). Both circuits reasoned that the Garcetti Court had explicitly reserved judgment on this sort of speech, and that applying the Garcetti framework to the teaching and writing of public university professors would imperil their academic freedom. (Indeed, they would have no First Amendment protection for such speech; their only protection would depend on their contractual arrangements with their universities.)
This distinction makes sense, and I think other circuits will probably follow the trend of holding that Garcetti applies to K-12 public school teachers’ classroom speech, but not to public university professors’ teaching and writing. The one odd thing about Demers is that the Ninth Circuit used such broad language in several places– stating that “there is an exception to Garcetti for teaching and academic writing” – that it almost could be read to encompass K-12 teachers as well as university professors. If it weren’t for the Ninth Circuit’s earlier decision in Johnson v. Poway – where it specifically applied Garcetti to a high-school teacher’s classroom speech – I’d really be wondering about this. In any event, it will be interesting to see how other circuits – and ultimately the Supreme Court? – weigh in on these questions.
Thursday, September 12, 2013
Yesterday, the Brookings Institute released an essay by Grover Whitehurst arguing that DOJ's attempt to block school vouchers in Louisiana "undermines civil rights." (For more background on the lawsuit, see my earlier posts here and here.) Whitehurst argues that the numbers of vouchers are too small to have any meaningful effect on the districts and that some of those using the vouchers are African American. Thus, the net effect is to deny African Americans choice. He then likens what the DOJ is doing--trying to control and direct the assignment of a few student based on race--to what the districts in Parents Involved in Seattle Schools v. Seattle School District were doing, which the Supreme Court struck down.
This essay shows how little some appreciate the practical dynamics and legal principles of desegregation. Or, it shows how school choice advocates respect no rules that might stand in their way. First, Whitehurst assumes a tremendous amount of facts (and admits to doing so) in reaching his conclusion that the voucher program poses no threat. As I indicated in my earlier post, the point of desegregation law is to affirmatively promote integration and prevent backsliding. These are not things we can do after the fact. Thus, one of my points was to let the legal process play out. If Louisiana is in the right, the facts will bear it out and they can move forward. We cannot, however, take their word for it, particularly since the state did not seem to even consider the segregative impacts the program might have until now.
Thursday, September 5, 2013
Now that school is back into swing, elementary and secondary schools are feeling the full brunt of the sequester, but not all schools are feeling it the same. Most of the federal money in public schools flows through Title I of the Elementary and Secondary Education Act. While my past work has critiqued the formulas through which these funds extensively for their failure to fully account for the effects of concentrated poverty, it is true that the money flows to schools based upon the number of poor kids they have. Thus, the more poor kids a district has the more money it is loosing under the sequester cuts.
Wealthy districts, of course, have poor kids too, so they are suffering cuts as well. But those cuts amount to smaller line items and those districts necessarily have more capacity to make up the difference. Whereas, other districts are loosing more money and have less capacity. MSNBC tells the story of the affluent Loudon County, Virginia, district where district officials say the cuts "meant hardly anything," but in Virginia’s Shenandoah Valley, things are pretty bad.
When Harrisonburg students went back to school in August, there were fewer teachers and staff to greet them: The district lost an English proficiency teacher, a school social worker, a Head Start teacher, and a teacher’s aide when sequestration cut $400,000 from the school budget, according to Harrisonburg school superintendent Scott Kizner. The cuts come to a district where 70% of students qualify for a free school lunch, and more than 40% speak English as a second language.
Wednesday, August 7, 2013
Professor Christopher Bonastia has posted an essay about the roots of the contemporary charter school movement. Bonastia's message is important for charter school supporters and detractors. An excerpt from the essay relates the attempts in 1959 in Prince George's County, Virginia, to stall integration by directing taxpayer funds to segregated private schools. The overt justifications behind charter school expansion have changed since 1959, but the methodology is eerily familiar:
Two years before a federal court set a final desegregation deadline for fall 1959, local newspaper publisher J. Barrye Wall shared white county leaders' strategy of resistance with Congressman Watkins Abbitt: "We are working [on] a scheme in which we will abandon public schools, sell the buildings to our corporation, reopen as privately operated schools with tuition grants from [Virginia] and P.E. county as the basic financial program," he wrote. "Those wishing to go to integrated schools can take their tuition grants and operate their own schools. To hell with 'em."
Read the rest of this essay here.
Thursday, August 1, 2013
I just came across a new article by Kamina Aliya Pinder that synthesizes the past uses of structural injunctions in education reform and responds to the reluctance of many courts to intervene in education battles. Cribbing from her introduction, the article
examines the use and potential of the structural injunction in cases that implicate issues of education access, adequacy, and achievement in the paradoxical “post-racial” era. Originating in school desegregation cases, this powerful judicial remedy compelled public institutions to address constitutional wrongs through systematic reform. The structural injunction played an essential role in desegregation at the federal level and, albeit not typically referred to as “structural injunction” at the state level, an equally important remedial role in state school finance litigation. Yet, fears of judicial overstepping and pursuit of race-neutral remedies have greatly curtailed its use.