Friday, March 27, 2015
On Tuesday, the Indiana Supreme Court held that the state constitution's education clause does not require school districts to provide school bus services. Indiana's Franklin Township Community School Corp. ended its bus service in 2011 after losing about $18 million of its budget when a cap on property taxes went into effect and local voters rejected a referendum to increase property taxes. Faced with the decision to provide buses or cut staff and classroom resources, the Franklin County Superintendent chose to end transportation. The Township then decided to provide student transportation for an annual fee through a private contractor. In November 2011, parents filed a class-action lawsuit against the Township challenging the constitutionality of the mandatory transportation fee. In 2014, the Indiana Court of Appeals struck down the Township's mandatory fee as unconstitutional. The Indiana Supreme Court decided whether the state constitution's education clause supported any requirement for free bus services. The state supreme court found no such requirement to provide free school transportation in Indiana's education clause which mandates a “general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” While the Court acknowledged that its ruling "will inevitably require some families to make alternative accommodations,  it will not close the schoolhouse doors." After the class action lawsuit was filed, Franklin Township restored bus transportation in 2012, but the case remains important for other districts facing budget shortfalls. Read Hoagland v. Franklin Township Comm. Corp., No. 49S02-1410-PL-643 (Ind. March 24, 2015) here.
Wednesday, March 25, 2015
In a fourth challenge to Tennessee's school funding system, seven county boards of education sued the Governor and the State of Tennessee in Hamilton County Bd. of Educ. v. Haslam, filed on March 24. The plaintiffs are asking a state court to find that the state has neglected its duty to fund public education under the Tennessee Constitution. The plaintiffs, according to a release by the Education Law Center, are asking for relief on several claims, including "an unfunded mandate claim  based on what plaintiffs state are extensive additional and costly responsibilities placed on schools by the state with no funding to cover them." The plaintiffs also allege that the state ignored its responsibility to fund 75% of classroom costs; the plaintiffs allege that the state is only funding about 70%, resulting a $134 million shortfall. The plaintiffs further claim that the state has failed to phase in funding under laws passed to comply with previous judgments in three school funding cases, Tennessee Small School Systems v. McWherter I, II, and III), which they allege resulted in additional funding shortfalls of about $600 million. (For more on the Small Schools litigation, see the National Education Network here.)
Tuesday, March 24, 2015
Wisconsin Attorney General Brad Schimel has petitioned the state supreme court to reverse a finding that a new state law unconstitutionally removed powers from the state Superintendent of Public Instruction (SPI) in favor of the Governor. The law, called Act 21, required that the Governor approve the scope and drafts of new administrative rules proposed by the state education superintendent. In February, the Wisconsin Court of Appeals found that Act 21 unconstitutionally took away the SPI’s supervisory rule making power in public education. The case is Coyne v. Walker, No. 2013AP416, 2015 WL 686178 (Wis. Ct. App. Feb. 19, 2015).
Friday, March 13, 2015
The ACLU of Ohio Foundation, Inc., is litigating the case of an Ohio teacher who was terminated after posting comments criticizing dairy farming on his personal social media page. In August 2014, a Title I tutoring teacher Keith Allison showed up for another year of work at the Green Local School District’s elementary school, which is located in an area where dairy farmers make up a significant part of the local tax base. Allison was called into a meeting with the school's principal, who questioned him about a Facebook post he had made over the summer, criticizing the treatment of dairy cows near his home (with pictures that Allison took of baby cows in pens) and encouraging readers to switch to plant-based milks. The principal scolded Allison for his comments, following up with an email which reportedly stated that "our teachers to really consider the whole community when doing these sort of things [making statements on social media], especially when our biggest tax payers are dairy farmers.” Allison was told that his pay rate would be retroactively lowered for the hours he had already worked, that he would be paid at the rate of a substitute teacher instead of as a Title I teacher, and was eventually terminated. The ACLU, representing Allison, filed suit last week, challenging Allison's termination on First Amendment grounds and stating that state and school officials had "no valid interest that would justify punishing or censoring Allison for his commentary on dairy farming." A copy of the complaint is available at cleveland.com here.
Wednesday, March 4, 2015
Supreme Court Hears Oral Arguments to Decide Whether Teachers Act as Law Enforcement Agents When Interviewing Children About Suspected Abuse
Although the confrontation clause case that the U.S. Supreme Court heard this week is not an education case, Ohio v. Clark has important implications for teachers who interview children under abuse reporting statutes. In Clark, the Court will review an Ohio Supreme Court decision that day-care teachers and social workers should be treated as law enforcement agents because of a statutory duty to report suspected child abuse or neglect. The case arose when teachers noticed that a three year old boy at daycare was bruised and withdrawn. The child reported to teachers that his mother's boyfriend caused the injuries. Further investigation revealed that the boy's younger sister also showed signs of abuse. The teachers and social workers testified at the boyfriend's trial about the child's report of abuse; the boy did not testify because of a state law presumption that children under age ten are incompetent to testify in court. The Ohio Supreme Court found that the teachers' testimony about the child's statements violated the defendant's confrontation clause rights. Lyle Dennison at SCOTUSblog posted an analysis of the oral argument in the case this week, excerpted below:
Prosecutor Meyer came to the Court with a simple proposition: because the teacher is not a police officer, and not working for the police, she should be allowed to take the stand and recount the boy’s tale. The Confrontation Clause, he argued, should only bar the use of evidence gathered by government agents if they don’t come to court. A private citizen, he meant in his closing comment, is “just not the same” as a government agent like a police officer.
But Stanford law professor Jeffrey L. Fisher, speaking for the man convicted for harming that boy, asked the Court to provide a simple opportunity: give defense lawyers the same opportunity to talk with the little boy as the teacher, the police, and the prosecutors had as they prepared evidence for the trial. There are ways to conduct an interview with even a small child, Fisher said, that will be sensitive and caring, and have a chance to test the reliability of any story the child told. Fisher’s own suggested approach to the Confrontation Clause was that, if an adult has heard the child’s accusations out of court, and was working within a system that ultimately leads those accusations to become evidence of a crime, the Confrontation Clause should govern.
The Fifth Circuit has granted rehearing en banc to review a panel's decision that a school's disciplining a student for off campus rights violated his First Amendment rights. In Bell v. Itawamba Cnty. Sch. Bd., a Fifth Circuit panel found that the school improperly disciplined a public high school student after he posted a rap song on the Internet criticizing two named male athletic coaches and accusing them of sexually harassing female students. The rap song was composed and posted off campus during a Christmas break. Upon learning about the song, the student was suspended by his high school and was transferred to an alternative school for the remainder of the grading period. Assuming arguendo that the school board could apply a defense under Tinker v. Des Moines Independent Community School District to off-campus speech, the panel found that the school failed to show that the song substantially disrupted the school's work or discipline process or that school officials reasonably could have forecasted such a disruption. The panel further concluded that the song contained no credible threat of violence that would rise to the level of a “true threat.” The panel directed the district court to award nominal damages and to order the school board to expunge all references to the incident from the student's school records. The panel decision is Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 282 (5th Cir. 2014), reh'g en banc granted (Feb. 19, 2015); the Fifth Circuit's rehearing order is here.
Tuesday, March 3, 2015
Most people are hearing about the Alabama Supreme Court for a different reason this week, but the court also upheld the constitutionality of the state's tax credit law for school scholarships yesterday. The state supreme court rejected a challenges to the bill's constitutionality on the grounds that the law diverted public funds for private education, put more than one subject in a bill, and cost $40 million in annual tax credits. A state judge struck down the Alabama Accountability Act as unconstitutional last spring. The law, called the Alabama Accountability Act, gives tax credits for parents who move their children from failing public schools to private schools. The law's reality as we posted here, is that tax credits do not benefit students in "failing" schools when they have no access to alternative non-failing public schools or private schools in their area. Thus, according to the Alabama Revenue Department, fewer than 100 students in failing schools statewide used the credits to transfer to private schools, despite there being 78 schools on the failing schools list. Read the court's recent opinion here.
Thursday, February 12, 2015
New Jersey State Court Finds That Pledge of Allegiance Statute Does Not Violate the State Constitution
A New Jersey Superior Court found this month that a state statute requiring schoolchildren to recite the pledge of allegiance (and its "under God" phrase) did not violate the state constitution's equal protection and establishment clauses. Given that the Massachusetts Supreme Court decided a similar case last May (Jane Doe v. Acton-Boxborough Regional School District), the more recent ruling adds to the cases finding that the pledge of allegiance ceremonies in schools are constitutionally permissible. In the February 2015 case, American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., the lead plaintiffs were parents of schoolchildren who challenged New Jersey's pledge statute that required schools to include a salute to the U.S. flag and recitation of the pledge of allegiance each day. The plaintiffs, along with the American Humanist Association, alleged that children who do not participate are nevertheless having the pledge's religious language imposed on them and could suffer exclusion if they choose not to participate. The state court found that the statute did not implicate children's religious freedom because participation in the pledge is voluntary. The court also found that expunging the words "under God" from the pledge was unnecessary because the purpose of public schools is to foster ideas without requiring students to adhere to them. The court rejected the equal protection claim, finding no proof that the plaintiffs' children were discriminated against because of their beliefs. Read American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., No. 1317-14 (N.J. Super. Ct. Feb. 4, 2015) here.
Tuesday, February 10, 2015
Judge Will Appoint Independent Monitor in Class Action Settlement of IDEA Claims Against Louisiana Education Board
Yesterday, U.S. District Court Judge Jay Zainey (Eastern District of Louisiana) officially approved of a settlement of the disability class action suit in P.B., et al., v. John White (the Louisiana superintendent of education). The judge's ruling, which approves of the parties' December agreement, resolved a complaint brought by parents that charters in New Orleans' Recovery School District discriminated against disabled children, violating the Individuals with Disabilities Education Act (IDEA), Section 504, and Title II. Judge Zainey assured worried parents at yesterday's hearing that he would appoint an independent monitor to ensure that the Louisiana Board of Education met the needs of students with disabilities as outlined in the settlement. The original complaint alleged that the state and the Orleans Parish School Board failed to oversee the delivery of special education services of New Orleans' schools, and because of that lack of oversight, students with disabilities were asked not to leave school or discouraged from enrolling. The settlement requires the state and the school board to develop a plan to identify and evaluate children suspected of having a disability and to describe plans for offering services to students with disabilities. The Notice of Settlement is here.
Friday, February 6, 2015
Indiana Supreme Court Finds that State Civil Rights Commission Lacked Authority to Act in Discrimination Claim Against Homeschooling Association
In a dispute the Indiana Supreme Court characterized as "an intra-group squabble over the type of meal to be served to a member family's child" at a dinner-dance social, the court found that the Indiana Civil Rights Commission lacked statutory authority to act because the complained-of behavior was not "an incident not related to education." The Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) is a group of families who associated together “to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment.” The claimant, Elizabeth Bridgewater, charged that FACES discriminated against her daughter in 2008 by resisting the family's efforts at a FACES function to arrange a special meal that would not activate the child's allergies. Bridgewater filed a complaint with the Indiana Civil Rights Commission, alleging that FACES refused her daughter a reasonable accommodation and therefore discriminated against her due to her disability. While the complaint was pending, Bridgewater ordered a special dinner for her daughter for the event by contacting the host facility directly. The daughter attended the dinner without incident, however, she was expelled from FACES four days later. Bridgewater then filed a second complaint with the Commission. An administrative law judge found for the Bridgewaters and awarded $5,000 in damages, a finding that the Commission later adopted. On appeal, the Indiana Supreme Court found that the state's civil rights statute conditions the Commission's authority "to incidents where a person has “engaged in an unlawful discriminatory practice" and that FACES' activities were social rather than educational in nature. The court also rejected the Bridgewaters' retaliatory discrimination claims, again finding that any unlawful discriminatory practice that the Commission addresses must be related to education (under this case's facts.) The case prompted a dissent by three members of the court, who wrote that the retaliation claim was not "derivative of and thus depend[ent] upon the disposition of the discrimination claim." There was an arguable connection to education in the case, the dissent noted, as FACES conducted classes and helped the students' participation in educational activities outside of the home. Further, the dissent pointed out, the court's decision conflicted with how discrimination is defined federally, which "includes retaliation as a separate act of discrimination regardless of the outcome on the merits of the underlying complaint." The case is Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, No. 93S02-1310-EX-704, 2015 WL 70285, at *4 (Ind. Jan. 6, 2015).
Tuesday, February 3, 2015
North Carolina Supreme Court Will Hear Oral Arguments on the Constitutionality of the State's School Voucher Program
The North Carolina Supreme Court is scheduled to hear oral arguments on February 16 in Hart v. North Carolina, which may decide the fate of North Carolina's Opportunity Scholarship Program (OSP), the state’s school voucher program. The OSP, which is currently on hold after a state superior court judge ruled last August that it was unconstitutional, would have provided up to $4,200 per year to qualifying students to attend a private school of their family's choice. The N.C. Association of Educators, the N.C. Justice Center, the N.C. School Boards Association, and local school boards challenged the program as an attempt to funnel public school funds to private schools without sufficient oversight and contested whether the vouchers would help low-income students as intended.
Last August, Superior Court Judge Robert Hobgood agreed with some of those concerns, finding that the N.C. legislature’s $10 million OSP allocation violated the state constitutional provision permitting taxation "for public purposes only." In a pointed ruling, Judge Hobgood concluded, “The General Assembly is seeking to push at-risk students from low-income families into nonpublic schools in order to avoid the cost of providing them a sound, basic education in public schools” as mandated by state law. Judge Hobgood also criticized the legislature for omitting any substantive instructional, training, or credentialing requirements for private schools to receive OSP funds, saying, “[t]he General Assembly fails the children of North Carolina when they sent with public taxpayer money to private schools that have no legal obligation to teach them anything.” Yesterday, several civil rights organizations filed amici briefs in support of the lower court’s decision, including those of the National Education Association, the N.C. NAACP, the Duke Children’s Law Clinic and group of education scholars, and the ACLU with the Americans United for the Separation of Church and State. Read more about the case at N.C. Policy Watch here.
Tuesday, January 27, 2015
Last week, the trial of a federal class action lawsuit against Birmingham police challenging officers' use of pepper spray on students in eight of the city's nine high schools. The suit alleges that Birmingham police, serving as school resource officers, used Freeze + P, a spray made up of Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC), that causes “strong respiratory effects" and "severe pain" to break up fights, to disburse bystanders, and to spray students who were verbally disrespectful but not physically violent. The plaintiffs are represented by the Southern Poverty Law Center. Commenting on the suit, a SPLC attorney told the Marshall Project, “We have not been able to locate a school district anywhere that uses chemical spray in the way that Birmingham does, meaning on a routine basis." Interestingly, the lead defendant, Police Chief A.C. Roper, might agree in principle, as he told the Birmingham News in 2009 that the school system has "over-relied on our officers, and our officers have responded ... The current system is dysfunctional, and that's putting it mildly." The complaint is available on the SPLC's website here.
Friday, January 23, 2015
In 1997, North Carolina Supreme Court recognized a state constitutional right to "the opportunity to obtain a sound basic education" in a long-running education equity lawsuit, Leandro v. State, 346 N.C. 336, 354 (1997). The job of monitoring the state's compliance with Leandro fell to N.C. Superior Court Judge Howard Manning Jr. Yesterday, Judge Manning questioned whether the state was trying to lessen its responsibility to meet Leandro’s guidelines by redefining student achievement. In March 2014, the North Carolina Board of Education expanded its definition of student readiness to include students who still needed substantial remedial help in the classroom as ready to advance to the next grade. In an earlier order, Judge Manning questioned whether the added level was “academic double speak” that indicated improved student outcomes on paper that were not actually occurring. Yesterday, Deputy State Superintendent for Public Instruction Rebecca Garland explained that the changed definition is in line with higher proficiency requirements and more challenging courses. Nevertheless, Judge Manning concluded the hearing by observing, “The system is not on track” and “is not producing any substantive gains whatsoever.” Read more at here and here.
Wednesday, December 17, 2014
Second Circuit Finds that District Court Erred in Not Giving Greater Deference to State Review Officer's Findings in IDEA Case
The Second Circuit Court of Appeals recently reversed a federal district court’s ruling granting private school reimbursement for an emotionally disabled student under the Individuals with Disabilities Education Act. The Second Circuit held that the district court should have shown greater deference to a State Review Officer's (SRO) determination that parents seeking reimbursement for the unilateral placement of their emotionally disabled child in a private school had not shown that their placement was appropriate. In doing so, the Second Circuit deferred to the SRO’s determination that the student did not improve academically at private school. The circuit court remanded the case for the district court to affirm the decision of the State Review Officer. The takeaway from the opinion is the Second Circuit will defer to the final decision of the state authorities over conflicting IHO and SRO opinions, particularly when no objective evidence contradicts the SRO’s decision.
The case is Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., No. 13-1594-CV, 2014 WL 6778755, (2d Cir. Dec. 3, 2014), and is also available here. More details of the case after the jump.
Tuesday, November 11, 2014
New Lawsuit Alleges that Pennsylvania’s School Funding Arrangement Denies Students an Adequate Education
Yesterday, plaintiffs in Pennsylvania sued to have the state's funding formula declared unconstitutional, alleging that the General Assembly has failed its state constitutional obligation to provide a "thorough and efficient" system of public education. Read the complaint and watch interviews with the plaintiffs at Thorough and Efficient, a joint blog of the Education Law Center of Pennsylvania and the Public Interest Law Center of Philadelphia. Cribbed from the plaintiffs' press release:
The Education Law Center of Pennsylvania and the Public Interest Law Center of Philadelphia sued Monday on behalf of six school districts, parents, and two statewide associations against legislative leaders, state education officials, and the Governor for failing to uphold the General Assembly’s constitutional obligation to provide a "thorough and efficient" system of public ducation. According to the complaint, the Commonwealth has known for nearly a decade that Pennsylvania’s schools are badly underfunded.
Beginning in 2011, however, state officials abandoned [a working] funding formula, reduced funding to districts by more than $860 million, and passed legislation to prevent local communities from increasing local funding. The complaint alleges that these actions have had devastating consequences for students, school districts, and the future of the Commonwealth. Districts across the state are unable to provide students with the basic elements of a quality education, including sufficient numbers of qualified teachers and staff, appropriate class sizes, suitable facilities, and up-to-date text books and technology. ...
Plaintiffs allege that this underfunding and consequent underperformance has created a system of public education that is neither “thorough” nor “efficient,” nor “serves the needs of the Commonwealth.” In a second cause of action, the complaint alleges that the current way in which the Commonwealth funds public education denies students equal educational opportunities by creating gross funding disparities between wealthy and poor school districts.
Friday, November 7, 2014
N.M. Supreme Court Rules that Statements Elicited by School Official Cannot Be Used in Student's Delinquency Proceeding Absent Waiver of Rights
The New Mexico Supreme Court recently held that incriminating statements elicited by a school official could not be used against a student in a subsequent delinquency proceeding unless the child validly waived his or her right to remain silent. The N.M. court’s decision is notable because a deputy sheriff, who was acting as a school resource officer, was present during the school official’s questioning but did not question the student himself. The case arose from the following facts: a student, Antonio T., allegedly arrived at school smelling of alcohol. The assistant principal questioned Antonio T. but did not give him a Miranda warning because the assistant principal considered the encounter to be non-custodial. Antonio T. was, however, required to take a Breathalyzer test. His breath tested positive for alcohol, and he was charged with possession of alcohol by a minor. The N.M. Supreme Court applied a state statute requiring proof of a valid waiver of a student’s constitutional rights before a statement may be used against that student in a delinquency proceeding. The Court found that the issue was not whether the assistant principal’s questioning was an investigatory detention, but instead whether Antonio T.’s statements were inadmissible under the statute because there was no proof of a valid waiver of right to remain silent. Without that proof, the appellate court held, the student’s statements made in response to the assistant principal’s questioning were inadmissible against him in delinquency proceedings. Read State v. Antonio T., No. 33,997 (N.M. Oct. 23, 2014) here.
Thursday, October 30, 2014
On Monday, the N.M. Court of Appeals upheld the constitutionality of a law requiring the state to provide instructional materials to schools, including private ones. A group of plaintiffs sued the the N.M. Public Education Department and challenged New Mexico's Instructional Material Law that requires the state education department to buy and distribute instructional material to schools "as agents for the benefit of eligible students." NMSA 1978, §§ 22-15-1 to -14. The plaintiffs argued that the law conflicted with several articles of the New Mexico Constitution, including the state's counterpart to the Free Exercise and Establishment Clauses, articles prohibiting the state from investing in private corporations and granting the state exclusive control over education. Finding for the state education department, the Court of Appeals held that "the mere indirect or incidental benefit to the private schools" did not violate the state constitution. The court interpreted the state constitution's prohibition against public funding of "sectarian, denominational or private" schools to have intended only to maintain state control of public schools and keep public schools from becoming sectarian. In rejecting the plaintiffs' arguments based on cases from the U.S. Supreme Court and other states, the New Mexico court stated, "We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford." Moreover, the court noted, the books are not given to private schools, but the schools only receive possession of the books as agents for the students. Read Moses, et al., v. Skandera, Acting Sec'y of Education, No. 33,002 (N.M. App. Oct. 27, 2014) here.
Friday, October 24, 2014
In a case that Derek previously posted about here, a federal district court has administratively closed a class-action suit filed by special-needs students against the Mississippi Department of Education. The district court’s order allows either party to reopen the suit for noncompliance with the terms of a September 2014 settlement agreement. Corrie Cockrell, an attorney with the Southern Poverty Law Center that represents the students, told the Jackson Clarion-Ledger yesterday, "We reached an agreement with the state because we felt it was in the best interest of our clients." In the case, E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Miss. 2013), special-needs students sued the Mississippi Dept. of Education for its failure to force Jackson Public School District (JPS) to comply with the IDEA's mandate of a Free Appropriate Public Education. The Department investigated the complaint against JPS and, after finding IDEA violations, ordered the school district to remedy the violations or risk losing its accreditation. JPS missed two deadlines for compliance, prompting the plaintiffs to sue in federal court. The Department eventually found that JPS corrected the IDEA violations, but the student-plaintiffs found that it was difficult to verify the Department’s findings. The students thus asked for quarterly progress reports in the settlement, Cockrell said, to ensure that JPS is “moving in the right direction.” According to the Clarion-Ledger article, the state set a goal for 71% of children with disabilities to graduate, but just 12% of those in JPS did as of 2012. The state's average graduation rate for students with disabilities is 23%. Read the settlement agreement in E.H. v. Mississippi Dept. of Educ. here.
Monday, October 6, 2014
Last week, the Supreme Court granted cert in Ohio v. Clark, a case involving whether teachers' obligation to report suspected child abuse makes them law enforcement for purposes of the Confrontation Clause. If so, a student's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse would qualify as “testimonial” statements subject to Confrontation Clause restrictions. Colin Miller, at EvidenceProf Blog, offers this summary and analysis of the case:
Wednesday, September 17, 2014
Following up on Derek's post, Washington Supreme Court Turns Up Heat on State Legislature in School Funding Case, last week Washington's high court found the legislature in contempt as some predicted after oral arguments in the case. The Washington Supreme Court's ruling in McCleary, et al. v. State of Washington, comes during a tumultuous year for the legislature on school funding issues. This spring Gov. Jay Insbee blamed the legislature for Washington becoming the first state to have its NCLB waiver revoked this spring, the state supreme court ruled in January (in this case) that the state's education funding system was unconstitutional, and the state faces a $1 billion education budget shortfall. In McCleary, the court indicated it has grown tired of legislative delays in complying with the court's January order to fully fund basic education by the 2017-18 school year. The court wrote last week that it was not issuing the order simply to get the legislature's attention. Instead, "contempt is the means by which a court enforces compliance with its lawful orders when they are not followed," the court wrote. Read the court's order in McCleary, et al. v. State of Washington here.