Thursday, April 10, 2014
Second Circuit Rules that IDEA's Least Restrictive Environment Requirement Applies to Extended-Year Placements
The Second Circuit held last week that the Individuals with Disabilities Education Act's least restrictive enviroment requirement applies to extended-year placements (ESY) just as it does to school-year placements. New York's Cornwall Central School District placed a kindergarten student, T.M., in a 12-month educational program that included ESY services over the summer. The Cornwall school district determined that T.M., a student with autisim, needed an ESY placement to prevent substantial regression. The district did so under the IDEA's requirement that school districts “ensure that extended school year services are available as necessary" to provide a free and public education for students with disabilities. However, T.M.'s parents and the school district were unable to agree on T.M.'s IEP, as the parents objected to the school's offer to place T.M. in a summer program in a self-contained special education classroom rather than provide support services in a general education classroom integrated with non-disabled students. T.M.'s parents sued, alleging that Cornwall failed to offer T.M. the least restrictive ESY placement under the IDEA. Cornwall responded that the LRE requirement applies only where the state already operates a mainstream classroom in which the student can be placed. Because Cornall does not offer an ESY mainstream program, the district argued, the LRE requirement does not apply to T.M.'s ESY placement. The district court granted summary judgment in favor of the district, ruling that Cornwall had met its obligations under the IDEA. Overturning the district court, the Second Circuit held that "[i]f a disabled child needs ESY services in order to prevent substantial regression, that child's ESY placement is an integral part of his or her twelve-month educational program." The circuit court noted that the IDEA requires education to be provided in "the least restrictive educational setting consistent with that student's needs, not the least restrictive setting that the school district chooses to make available." The circuit court then turned to whether Cornwall had to pay the full cost of T.M.'s pendency services through private providers even though Cornwall had offered to provide the same services itself at a lower cost. During the pendency of the suit, T.M.'s parents enrolled him in a developmental kindergarten program at another school and arranged for additional special education services at their own expense. The Second Circuit held that "[a]lthough Cornwall was wrong to deny T.M. pendency services in the first place, it nevertheless is not required to pay for T.M. to remain with the same pendency services providers throughout this entire litigation." Read T.M. v. Cornwall Central School District, No. Nos. 12–4301, 12–4484 (2d Cir. Apr. 2, 2014) here.
Tuesday, April 8, 2014
In 2011, the Fifth Circuit held that an elementary school principal unconstitutionally discriminated on the basis of viewpoint when she did not allow a student to distribute candy canes with religious messages during an in-class party. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc). Last week, the Circuit revisted the Morgan case, this time to consider the claim of the student's father, who attended the party with his son. Doug Morgan, the father, alleged in a suit that he also "experienced viewpoint discrimination when [the principal] told him not to distribute the religious material to other consenting adults in the classroom." The federal district court below dismissed the father's claim, finding that the principal had qualified immunity because her conduct was not “clearly established” as unconstitutional when she stopped Morgan from distributing religious material during the school party. The Fifth Circuit upheld the district court's ruling, noting that no case clearly established a third party's right to distribute religious material in a school over the adminstration's objections. Fifth Circuit Judge Fortunato Benavides separately writes to elaborate on the complexities of viewpoint discrimination and how if courts struggle with its application, the law is unlikely to be clearly established for a school principal. For more on religious expression in schools, see Kristi L. Bowman, Public School Students' Religious Speech and Viewpoint Discrimination, 110 W. Va. L. Rev. 187 (2007). Read the decision in Morgan v. Swanson, No. 13-40433 (5th Cir. Apr. 2, 2014) here.
Friday, April 4, 2014
The Second Circuit Court of Appeals has reversed a district court’s ruling that the New York City’s Board of Education policy prohibiting religious worship services on school grounds violated the Free Exercise and Establishment Clauses of the First Amendment. In Bronx Household of Faith v. Bd. of Educ. of City of New York, the NYC Board of Education and the local school district appealed a district court's grant of summary judgment permanently enjoining them from enforcing a regulation (Regulation I.Q.) against a church. Regulation I.Q. permits outside groups to use school premises after hours for social and civic activities that are open to the general public, but prohibits the use of school property for religious worship services. In 1994, a local church, the Bronx Household of Faith, applied to use space in a local middle school for church services, but the NYC Board of Education denied the application under Regulation I.Q. Bronx Household sued, arguing that the enforcement of the regulation constituted viewpoint discrimination and violated the First Amendment. In this latest round of litigation —the case has been before the Second Circuit six times—the court of appeals held that Supreme Court precedent in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), does not compel strict scrutiny analysis of Regulation I.Q. Lukumi does not apply to Regulation I.Q., the Second Circuit reasoned, because “a reasonable governmental decision not to subsidize a category of activity is not a suspect discrimination among religions merely because some religions do and others do not engage in that activity. . . We believe the District Court has misunderstood Lukumi in construing it to mean that a rule declining to subsidize religious worship services so as not to risk violating the Establishment Clause is automatically constitutionally suspect and subject to strict scrutiny.” The court of appeals also found the process of determining if a proposed use of school facilities is a religious worship service would not cause an excessive entanglement with religion under the Establishment Clause. Because the Board relies on applicants’ stated characterizations to decide if proposed activities are religious worship services, the Board does not define or make its own determination about what constitutes religious worship. Moreover, the Circuit stated, the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012), would not prohibit the Board from making such a decision because 1) the Board would not impose any control over a church's religious activity by determining if they are worship services, and 2) the Supreme Court’s own determination in Hosana-Tabor that the plaintiff was a minister (and thus that the ministerial exception applied to a church's employment decision) belies a conclusion that a governmental entity cannot make such a determination. Read the Second Circuit’s decision in Bronx Household of Faith v. Bd. of Educ. of City of New York, 12-2730-CV, 2014 WL 1316301 (2d Cir. Apr. 3, 2014) here.
Tuesday, April 1, 2014
Tennessee teachers have filed a second lawsuit this year challenging the state’s use of student standardized test scores to determine teachers' retention and merit pay evaluations. Governor Bill Haslam and Commissioner of Education Kevin Huffman are named as defendants in the suit filed by Knox County teacher Mark Taylor, an eighth grade science teacher who said that he was unfairly denied a bonus after his teacher effectiveness score was based on the standardized test scores of only 22 of his 142 students. In 1992, Tennessee’s General Assembly passed the Education Improvement Act to establish “a statistical system for educational outcome assessment that uses measures of student learning to enable the estimation of teacher, school and school district statistical distributions,” called the Tennessee Value Added Assessment System (TVAAS). TVAAS estimates measure the impact that teachers, schools and school districts have on the educational progress of students based on state standardized tests results in grades 3 through 8. Because Tennessee sought Race to the Top federal funds that require local districts to measure teacher effectiveness on student standardized test scores, the TVAAS is heavily weighted in teachers’ overall effectiveness score for hiring, retention, and incentive decisions.
For the plaintiff Taylor, who teaches four upper-level physical science courses and one regular eighth grade science class, only the standardized scores of his general science class counted in his TVAAS estimate. The student scores in his higher-performing upper-level classes, measured by local tests, were not included in his evaluation. Taylor was denied a bonus under the teacher evaluation program even though he says the observation component of his evaluation showed that he was exceeding expectations. Taylor argues that the state violated his 14th Amendment right to equal protection from “irrational state-imposed classifications” by using a small fraction of his students to determine his overall effectiveness. Last month, Knox County teacher Lisa Trout challenged the TVAAS evaluation system after she was denied a bonus. Trout alleged that she was misled about how her TVAAS estimate would be calculated. The Tennessee case is Taylor v. Haslam, No. 3:14CV00113, 2014 WL 1087776 (E.D.Tenn., filed March 19, 2014). Read more at the Tennessee Education Association here.
Wednesday, March 12, 2014
7th Circuit Rules that Hair Grooming Codes Applied Only to Male Student Athletes Violate Equal Protection Clause and Title IX
The Seventh Circuit reconsidered some of its earlier precedent last week and held that a school’s policy requiring male basketball players wear their hair cut above their ears violated the equal protection clause of the Fourteenth Amendment and Title IX of the Education Amendment Acts of 1972. The 3-1 panel decision in Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014), is one of the circuit’s few school cases addressing hair length in decades, prompting questions whether its older grooming code holdings survive Price Waterhouse.
In the case, the coaches of the male basketball and baseball teams at the public high schools in Greensburg, Indiana, required players to keep their hair cut short to promote “team unity” and a “clean-cut image.” One basketball player, A.H., wished to wear his hair longer, saying that he did not “feel like himself” with shorter hair. A.H.’s parents, the Haydens, sued on behalf of their son claiming that the school’s hair grooming code “intruded upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and [ ]… because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination.” The 7th Circuit found for the school district on the substantive due process claim. The court found that A.H.’s hair length was not a fundamentally protected right under Glucksberg, but instead a “harmless liberty,” where “the government need only demonstrate that the intrusion upon that liberty is rationally related to a legitimate government interest." The Haydens, the court concluded, failed to show that the hair-length policy failed rational-basis review. The circuit court reversed, however, the district court’s finding that the Haydens did not make out a prima facie case of discrimination. The hair length policy for the male basketball and baseball team members did not apply to male athletes in other sports and did not apply to female athletes at all, and the circuit court noted, “there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. ... Given the obvious disparity, the policy itself gives rise to an inference of discrimination.” Finding “no rational, let alone exceedingly persuasive, justification has been articulated for restricting the hair length of male athletes alone,” the court remanded the case to the lower court to determine appropriate relief on the Haydens’ equal protection and sex discrimination claims. Read Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014) here.
Tuesday, February 25, 2014
The New Jersey Department of Education agreed to settle a disability rights lawsuit last week involving claims that special education students were assigned to educational settings that were not the least restrictive environments required under the Individuals with Disabilities Education Act (IDEA) and Section 504. The plaintiffs, a collection of statewide advocacy agencies acting on behalf of children with disabilities, sued the NJDOE in 2007, charging that the state placed special education students in restrictive settings at a rate that was twice as high as twenty-six other states. Data from NJDOE also showed that while 3.8% of the nation’s students receiving special education services were in New Jersey, the state had 9% of students nationally in restrictive placements. NJDOE agreed in the settlement to conduct a least restrictive needs assessment for about 75 school districts and to train, monitor, and support those districts for compliance with special education laws. View the settlement in Disability Rights v. NJ Dept. of Ed., No. 3:07-cv-02978 (D. N.J.) here.
Thursday, February 6, 2014
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.
Wednesday, January 29, 2014
Wyoming’s Superintendent of Public Instruction vowed to return to her job at the department of education this week after the Wyoming Supreme Court ruled that a law stripping her of most of her authority was unconstitutional. State school superintendent Cindy Hill sued the state after Wyoming Governor Matt Mead signed a law that transferred her supervisory powers to an appointed “director” of public instruction, who took over the state’s $1 billion education budget and 150 employees. Hill was assigned a separate office away from the education department with about six employees. In a 3-2 decision released Tuesday, the Wyoming Supreme Court ruled that the state constitution gives the Superintendent, an elected position, the responsibility of the “general supervision of the public schools” and that the legislature could not constitutionally transfer that supervisory authority from an elected state official to an appointed director. The bill that divested Hill of power, Senate File 104 (nicknamed the “Hill bill”), is now being reviewed to see if it can be saved. Superintendent Hill’s case will return to the Laramie court that asked the state supreme court to rule on the law’s constitutionality. Meanwhile, Hill has announced that she will be running for governor next year but she still faces a mismanagement investigation by a state House committee that could lead to her impeachment. Read court’s opinion in Powers v. State of Wyoming, et al., here.
Wednesday, January 22, 2014
The Louisiana 4th Circuit Court of Appeal recently upheld part of a judgment for 7,000 New Orleans teachers who were found to have been wrongfully terminated after Hurricane Katrina. The state appellate court found that the teachers were denied a state due process property right to be recalled after Katrina and ruled that the teachers could be awarded up to two years of back pay and benefits. The background is that after Hurricane Katrina in August 2005, the Orleans Parish School Board set up a call center for its teachers to determine which of them could return to work. The call center collected information for 7,000 teachers. That November, the Louisiana legislature created the Recovery School District (RSD) to take control of 102 of the 126 schools in Orleans Parish. Having few schools left, Orleans Parish dismissed the 7,000 teachers in a reduction-in-force. The problem, the 4th Circuit found, was not Orleans Parish's decision, but that state law required it to place the dismissed teachers on a recall list for two years, which the school board failed to do. The right to be on a recall list after a RIF is a substantive right under Louisiana law, the court of appeal found. The appellate court then reversed the lower court's findings for the teachers on tortious interference of contract.
The Louisiana Board of Education was found liable in the suit for a year of back pay and fringe benefits in addition to the judgment against the Orleans Parish School Board for two years of backpay, benefits, and costs--estimated by a state's attorney at $1.5 billion. Some observers are wondering if the suit could bankrupt the public school system. While the former teachers are unlikely to see such a sum, if the judgment will still be substantial if it survives further appellate review. (Before Hurricane Katrina, the school system payroll was around a quarter-billion dollars.) Because over 90 percent of the public schools are now independent charters, some observers, such as author Sarah Carr, wonder if the charter schools must contribute to the judgment. Carr, who wrote a book about New Orleans' schools titled Hope Against Hope: Three Schools, One City and the Struggle to Educate America's Children, told NPR on Friday that the post-Katrina RIFs significantly changed the city's teaching force: before Katrina, 75% of the teachers were black to now having more diversity; teachers also changed from tenured to temporary and from locals to newcomers. Read Oliver, et al. v. Orleans Parish School Bd., No. 2012-CA-1520 (Jan. 15, 2014), here.
Tuesday, January 21, 2014
Last week, two federal courts rules in cases that involved the lingering effects of segregation on contemporary education. Last Monday, U.S. District Court D. Judge Price Marshall of the Eastern District of Arkansas approved a settlement that will end the State of Arkansas’ obligation under a 1982 agreement to pay three Little Rock-area school districts to aid integration efforts. Since 1989, the Little Rock, North Little Rock and Pulaski County Special school districts have received over $1 billion over their state appropriations to remedy Arkansas’ resistance to desegregation, most notably when the Little Rock Nine integrated Central High School in 1957 and the closing of Little Rock’s public schools the year after. The Little Rock and North Little Rock districts have now been declared integrated with Pulaski County needing to repair some facilities. The settlement requires the state to make payments through 2017, with final-year funding earmarked for facility construction projects.
In I.L. v. Alabama, No. 11-15464 (11th Cir. Jan. 10, 2014), the 11th Circuit affirmed a district court’s denial of relief in a lawsuit that challenged the state’s education funding system. The 11th Circuit found in I.L. that two state constitutional amendments, which affect education funding in Alabama’s Black Belt counties, were financially and not discriminatorily motivated and thus did not violate the Fourteenth Amendment’s equal protection clause. The panel also found that while “impediments to public education funding arising from racially discriminatory state laws can constitute particularized and concrete injury for purposes of standing,” the plaintiffs could not meet the standing requirement of redressibility. The remedy that the plaintiffs sought—the removal of county and local millage caps on property tax—would have to be separately enacted, a result that is unlikely given county voters’ rejection of higher property taxes. Thus, the plaintiffs’ view that removing the caps would raise revenue for public education is speculative, the court found. In I.L., the plaintiff schoolchildren in Alabama’s Lawrence and Sumter counties sued to invalidate two sections of the state constitution that affect education funding: “millage caps (which limit the tax rate) and property classifications (which determine the property valuation rate used to calculate the amount of tax due).” The plaintiffs argued inadequacies created by amendments to the 1901 Alabama Constitution—that govern the state’s system of ad valorem property taxation—grew from taxpayers’ disinclination to pay for public education for black children after white schoolchildren were moved to private schools. Rejecting this claim, the 11th Circuit affirmed the district court’s ruling that the state’s system of education funding was financially, and not discriminatorily, motivated. The 11th Circuit held that the plaintiffs failed to show discriminatory intent because when the facially race-neutral property tax amendments were enacted, the resistance to property taxes for education came from farmers and timberland owners who feared large tax increases. The panel noted that while the U.S. Supreme Court has found that a provision of the Alabama Constitution violated equal protection because it was motivated by “overwhelming evidence of racial animus surrounding the Constitutional Convention of 1901,” that that finding did not involve the constitution’s property tax provisions. Hunter v. Underwood, 471 U.S. 222 (1985) (invalidating Alabama Constitution's felony disenfranchisement provision for persons convicted of crimes involving moral turpitude because discriminatory intent shown).
Like the Northern District Court of Alabama below, the 11th Circuit’s panel wrote of its concern about Alabama’s public education system:
Alabama continues to be plagued by an inadequately funded public school system — one that hinders the upward mobility of her citizens, black and white alike, especially in rural counties. . . . [As a result,] [t]he children of the rural poor, whether black or white, are left to struggle as best as they can in underfunded, dilapidated schools. Courts, however, are not always able to provide relief, no matter how noble the cause.
Wednesday, January 15, 2014
Florida’s appellate courts recently upheld two school search cases finding that backpack searches for guns were reasonable. In R.M. v. State, a 6th grade student described an upperclassman (but did not know his name) who had shown a gun to students in the middle-school’s bathroom. A student fitting the description, R.M., was seen by the school resource officer and brought to the principal’s office. The principal questioned R.M. who admitted that he had a handgun in the bag. Later, the principal learned that the teacher believed that a student other than R.M. matched the description. Florida’s Third District Court of Appeals upheld an adjudication of juvenile delinquency against R.M., finding that the school officials’ actions were reasonable because they knew the informant and had the suspected student’s physical characteristics. R.M. v. State, No. 3D13-1245, 2014 WL 20628 (Fla. Dist. Ct. App. Jan. 2, 2014). These two factors and the seriousness of the contraband, a handgun, weighed in favor of the school being allowed to question R.M. and search his belongings. While students have privacy interests in items that they bring to school, the U.S. Supreme Court has held in New Jersey v. TLO, 469 U.S. 325 (1985), that students’ expectation of privacy must be weighed against schools’ interest in maintaining order and protecting students from violence. A school’s interest in protecting students promoted a second Florida court to uphold a juvenile adjudication for a gun brought to school, although the school relied on an anonymous tip to search the student’s property. In K.P. v. State, No. 3D12-1925, 2013 WL 6800973 (Fla. Dist. Ct. App. Dec. 26, 2013), a school resource officer searched a student's book bag at school, based upon an anonymous tip that the student was carrying a firearm. The Florida court first noted that the U.S. Supreme Court has held that a search based on an anonymous tip without independent corroboration violated the Fourth Amendment. J.L. v. Florida, 529 U.S. 266 (2000) (information in an anonymous tip that a black male at a bus stop was carrying a gun was insufficient to justify a public stop and frisk). However, the Court in J.L. stated that when a government interest was more immediate and substantial, such protecting school students, an otherwise unjustified search could be permissible under the Fourth Amendment. School investigations are “special need” searches that justify dispensing with Fourth Amendment’s warrant and probable-cause requirements. The Florida court found that the school’s interests in safety, given recent incidents of school violence throughout the country, outweighed K.P.’s privacy interests. Thus, even though there was no reliable basis for individualized suspicion in K.P.’s case, the school officials did not violate the Fourth Amendment by searching his bag.
Friday, December 20, 2013
Early this summer, teachers, school boards and parents challenged the funding mechanism for Louisiana's voucher program before the state supreme court and won. The court held that the funding mechanism impermissibly diverted funds away from public schools. In a new lawsuit, nineteen school districts are taking their complaints one step further and challenging the sufficiency of their per pupil allotments from the state. Their claim is premised on the fact that the state's formula does not include a growth factor. Currently, the state allots a minimum foundation program. If that amount is the constitutional minimum for year 1, which seems to be the reading of prior courts, it would necessarily need to increase for year 2 if there was any inflation, population growth, etc. The districts are seeking at 2.75 percent growth factor, which would amount to $200 million statewide. Details on the case are short right now. The plaintiff districts appear to be focused on encouraging other districts in the state to join the suit.
Wednesday, December 18, 2013
This past summer, North Carolina passed legislation altering the tenure rights of public school teachers. Teachers who have not already accumulated four years of service in a district are deprived of any opportunity for career services and only qualify for year-to-year teaching contracts. Teachers who previously qualified for or earned tenure will lose their protections beginning in 2018.
Yesterday, the North Carolina Association of Educators and six tenured teachers filed a lawsuit challenging the constitutionality of the legislation. They put forward two theories. First, they assert that taking away tenure violates the state constitutional protection against deprivations of life, liberty, and property. They argue tenure is a vested property right. To take it away, the state would have to compensate teachers, which it has not here. Second, they assert the legislation violates the U.S. Constitution's prohibition against impairing contracts. The tenure relationship between teachers and districts creates contractual rights on the part of teachers and now the state has stepped in and impaired those rights.
The full complaint is available here.
Tuesday, December 17, 2013
Homeless Students Living in Campground Outside of School District Can Stay Put Pending Lawsuit's Outcome
The Easton, Pennsylvania school district takes residency requirements very seriously. On December 9, the Easton school district controversially disenrolled two homeless students because the camper they were living in was at a campground just outside of the district. Yesterday, the U.S. District Court for the Eastern District of Pennsylvania ordered that the children be re-enrolled while the court decides if the Easton Area School District violated federal law. The students were attending the eighth and twelfth grades in Easton schools when their family lost its home due to foreclosure. Their parents, with the assistance of the Education Law Center of Pennsylvania, filed suit last December 10 challenging the legality of the school district’s decision under the McKinney-Vento Homeless Education Assistance Improvements Act of 2001. 42 U.S.C. § § 11431-11435 (2002). (I have not yet seen the pleadings in this case, so I am relying on media reports of the complaint’s allegations.) The McKinney-Vento Act mandates that children who become homeless are entitled to a free public education in the district where they are living for the duration of the school year. The Act defines homeless children as “individuals who lack a fixed, regular, and adequate nighttime residence ... and includes—(i) … children and youths who are are living… camp grounds due to a lack of alternative adequate accommodations.” Responding to media questions about the move, Easton Schools Solicitor John Freund wrote in an email that the district had “made a studied determination that this family, living outside the boundaries of the district, no longer qualified as homeless for the purpose of free public education in Easton.” The school district vigilantly tracks and disenrolls students that it calls “illegals.” In 2011, the district hired two investigators to follow students and their parents around to track out-of-district students. The district found and disenrolled a dozen students in that effort and had parents prosecuted for lying about their residences. Read more about the campground case here.
Friday, December 13, 2013
Last night, LaJuana posted the lawsuit by a group of educators and taxpayers challenging the constitutionality of North Carolina's recently enacted voucher program. I wanted to add a little more commentary on how the case fits into the broader framework of voucher and school finance litigation.
The plaintiffs rely on school finance precedent and specific language in the state constitution to argue that the program is unconstitutional. First, the North Carolina Constitution indicates that state funds deriving from public lands and proceeds that are set aside for education "shall be paid into the State Treasury and, together with so much of the revenue of the State as may be set apart for that purpose, shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” Thus, the use of any of these funds for private vouchers is a violation.
Second, the state supreme court has held that, "[u]nder the North Carolina Constitution, the State must provide all students an opportunity to receive a sound basic education." But the state has yet to fulfill that guarantee for all students and, thus, the diversion of resources away from meeting this obligation is a violation of the constitution.
Third, even if one could characterize the voucher program as somehow being part of the delivery of public education, it would still violate the constitutional requirement of a "uniform system of public schools." The voucher program is essentially standardless and makes no attempt to ensure the constitutionally mandated uniformity of opportunity between voucher students and public school students.
In many respects, this lawsuit mirrors Bush v. Holmes, 919 S.. 2d 392 (Fla. 2006), in which the Florida Supreme Court held that the state's voucher program was an unconstitutional diversion of public education funds to private schools. Both cases draw on the same type of explicit
Thursday, December 12, 2013
Will the Word “Exclusively” in the State Constitution Make a Difference in N.C. Suit to Stop Vouchers?
In a lawsuit filed yesterday in Wake County, North Carolina, plaintiffs are relying on the word “exclusively” to argue that private school voucher funding is unconstitutional in North Carolina. This summer, North Carolina became one of thirteen states to offer tuition tax credit vouchers for low-income students to attend private schools. Before 2013, the state had never appropriated public funds directly for private school education. (Readers may remember the voucher law’s controversial passage—the provision was buried in a huge budget bill that passed in the wee hours of the session—that helped spark Moral Mondays demonstrations.) Unlike its sister states, however, the North Carolina constitution provides that public education funds are to be "used exclusively for establishing and maintaining a uniform system of free public schools." That language is not just verbiage, argue the 25 plaintiffs, who are an interesting mix of a former state education superintendent, parents, teachers, the daughter of Julius Chambers, and a prominent Republican county chairperson. The N.C. Constitution gives an express right to education and requires the General Assembly to provide “for a general and uniform system of free public schools.” The Constitution then provides that that education revenue “shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” That language means, the plaintiffs allege, that the state cannot transfer taxpayer dollars from public schools to any institutions outside of the public school system. The plaintiffs also object to the lack of oversight and restrictions on private schools, stating in the complaint that “[t]he Voucher Legislation does not include any enforcement or accountability provisions to ensure that institutions receiving vouchers do not exclude minority students, disabled students, or students from poor families.” If the voucher law is upheld, eligible students could receive up to $4,200 starting next August to attend private or religious schools. The lawsuit is being sponsored by the North Carolina Association of Educators (NCAE) and the North Carolina Justice Center. Read the complaint here.
Tuesday, December 10, 2013
Seventh Circuit Upholds Firing of School Counselor Who Wrote Relationship Advice Book Titled "It's Her Fault"
The Seventh Circuit Court of Appeals has upheld the dismissal of a tenured school guidance counselor's lawsuit who was fired after writing a sexually explicit book entitled It's Her Fault. While upholding the counselor's firiring in Craig v. Rich Twp. High Sch. Dist. 227, 13-1398, 2013 WL 6235856 (7th Cir. Dec. 3, 2013), the appellate court reversed the district court's finding that the book was not a matter of public concern. The case presents some tension, however, in deciding when an employee can be discharged for private sexual expression that would otherwise be protected by the First Amendment. Bryan Craig, a counselor and women's basketball coach at Rich Central High School in suburban Chicago, self-published It's Her Fault, an adult relationship advice book in 2012. Commenting on the book's subject, the 7th Circuit noted that "when we say “adult,” we mean it in every sense of the word—in his book, Craig repeatedly discusses sexually provocative themes and uses sexually explicit terminology." (A brief look at It's Her Fault's Amazon reviews generally supports that assessment.) In the book's introduction, Craig said that he was qualified to give women relationship advice because he coached girls basketball, worked "in an office where I am the only male counselor, and [was] responsible for roughly 425 high school students a year, about half of whom are females.” Craig also thanked his students in the acknowledgements and had another Rich Central write the book's foreword. In September 2012, the Richman Township High School District found out about the book and discharged Craig on three grounds: (1) that the book “caused disruption, concern, distrust and confusion among members of the School District community;” (2) Craig violated the policy “prohibit [ing] conduct that creates ‘an intimidating, hostile, or offensive educational environment;” and (3) that “Craig failed to present [himself as] a positive role model and failed to properly comport himself in accordance with his professional obligations as a public teacher.” Craig sued the school district under 42 U.S.C. § 1983 alleging retaliation against him for engaging in protected speech. The Northern District of Illinois dismissed Craig's suit for failure to state a claim because It's Her Fault did not address a matter of public concern and thus was not entitled to First Amendment protection. Read more after the jump.
Wednesday, December 4, 2013
North Carolina Court of Appeals Holds that State Board Can Refuse to Act on Virtual Charter School Application
The North Carolina Court of Appeals upheld a superior court's decision yesterday that the State Board of Education could refuse to act on a virtual charter school's application. According to North Carolina station WRAL.com, the appellate court found that "[u]nder state law, the State Board of Education 'is vested with sole authority regarding charter schools in North Carolina, including all decisions regarding the formation and operation of such school.' " The case highlights some of the complexities of having parallel authorizing procedures for new schools. When the North Carolina legislature lifted the 100-school cap on charter schools in 2011, it did not address virtual charter school programs. Following the new law, the State Board of Education (SBE) developed a “Fast Track” approval process limited to traditional charter schools. In November 2011, a nonprofit organization called North Carolina Learns (NCL), created by online education company K12, Inc., submitted a Fast Track application to open the North Carolina Virtual Academy. NCL and K12, Inc., brokered a deal in 2012 with the Cabarrus County's School Board to set up a charter school with a statewide reach. According to WRAL.com, NCL agreed to pay 4 percent of its revenue to the school system in Cabarrus, located north of Charlotte, as well as pay K12." NCL was approved to open by the Cabarrus County Board of Education (CCBE), with the caveat that “[i]f the preliminary charter entity is other than the State Board of Education please contact the Office of Charter Schools for guidance.” NCL did not do that, but did forward its application to the SBE. The SBE did not respond, having announced in October 2011 (before NCL's application) that it would not approve any virtual charter schools in the 2012-13 school year. The rebuff prompted NCL to sue, arguing that the SBE's failure to respond to NCL's application within the Fast Track period stripped the agency of jurisdiction over the matter. NCL argued that its application should be approved by operation of law. See N.C.G.S. § 115C-238.29D(a). Last year, a North Carolina Superior Court judge held that SBE was within its discretionary power to ignore NCL's application, reasoning that a local board of education "is not experienced in, nor equipped as the SBE, with the staff and know-how to review, evaluate, and approve the application of a charter school designed to serve a statewide clientele, nor is it authorized to give final approval for such operation." Read more about North Carolina State Board of Education v. North Carolina Learns, Inc. here.
Monday, December 2, 2013
Wisconsin Student Speech Decision Reverses on First Amendment Grounds but Affirms Adjudication on Unlawful Computer Use
While the Wisconsin Court of Appeals reversed a student’s disorderly conduct juvenile adjudication on First Amendment grounds last week, the appellate court curiously affirmed the adjudication for violating a state unauthorized-use-of-a-computer statute for the same conduct. Those who follow the developing law of federal unauthorized use statutes will recognize the bedeviling issues that arise when defendants are prosecuted for protected First Amendment speech because of the method used to deliver that speech--a computer. The Wisconsin student, Kaleb K., was prosecuted under state disorderly conduct and unauthorized computer use statutes after posting a YouTube video about his Spanish teacher. At trial, the lower court rejected Kaleb's claim that “the content of his rap was protected by the First Amendment, which barred the State from prosecuting him for disorderly conduct.” The trial court’s findings focused on the rap’s vulgar language without addressing the student’s First Amendment defense. The lower court found the student delinquent for disorderly conduct for the video and for a violating a state law prohibiting the unlawful use of a computerized communication system. The unauthorized use law prohibits using computer communication to send a message to another person “with intent to frighten, intimidate, threaten or abuse … with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.” The Wisconsin Court of Appeals affirmed Kaleb K.’s adjudication of guilt on the unlawful use of a computerized communication system under a state case holding that “nonspeech elements” of otherwise protected speech may be subject to prosecution. Given the Court of Appeals’ interesting split reasoning, this case may be headed to Wisconsin’s Supreme Court. The case is In re Kaleb K., No. 2013AP839, 2013 WL 6182562 (Wis. Ct. App. Nov. 27, 2013).