Sunday, October 13, 2013
Barring a settlement in the next year, the U.S. Department of Justice will go to trial against the city of Meridian and Lauderdale County in Mississippi. DOJ argues that local authorities lock up students for minor infractions like disrespect or vulgar language. The suit also alleges that students--disproportionately African American and disabled--are routinely detained without probable cause and denied legal counsel.
DOJ was also set to try the Meridian Public School District, but was able to reach a settlement agreement with the district this past summer. The district agreed to take various steps to end discrimination in its discipline program. It is not clear why the criminal justice system is holding out, but if this goes to trial and DOJ wins, which are both big ifs, the case could have a monumental impact in the fight against the pipeline.
Wednesday, October 9, 2013
As a matter of procedure, the data in Louisiana does not matter. Districts that have maintained de jure segregated schools and are still under court order to remedy the effects forfeit the right to assign students any way they want, even if their means are race nuetral. This has been the law for forty years. This legal principle is irrelevant in most post places because the vast majority of districts have been released from court order. But in other districts, courts are still there to look over their shoulders because these districts have not fixed the problem, nor proved that they can be trusted. Thus, as a matter of procedure, I still maintain no sympathy for Louisiana and its claims that it ought be free of second guessing.
Beyond the procedure, however, the facts are the facts, and new ones are coming out. When complying with court oversight, these desegregating districts should be free to move forward with any legitimate plans that do not negatively effect desegregation. According to DOJ, Louisiana had previously been less than forthcoming with the data necessary to make this determination. Now that the data is becoming available, it looks like some of the facts are favorable to Louisiana. According to a study published by Education Next, the voucher program improves racial balance in the vast majority of schools that students are leaving. (See their data to the left). Rick Hess, a national education commentator, uses these facts to say, in effect, I told you so, and jump on the bandwagon in criticizing and questioning DOJ's motions in this case.
But not so fast. Taking Ed Next and Hess's facts as true, it does not mean that the program is constitutional in its entirety. Desegregation orders are against individual school districts, so in those districts where vouchers increase segregation, they would be presumptively unconstitutional if the effect is more than minimal. In the other districts where racial balance improves racial balance, which is the vast majority, there is no problem and the programs can remain in place. In other words, how the program performs on the state level is largely irrelevant in terms of individual districts. Thus, the fallacy of Hess and others' reasoning is to only look at this program, on the averages, at the state level, instead of at the school and district level which is where segregation actually occurs. But to be clear, I do not have all the facts. The negative effects could be minimal in all of the school districts or overshadowed by other good things the state and district might be doing in within districts. Yet we do not know the answers to these things, hence my contention from the start that we should honor the judicial process and keep national politics over vouchers out of it.
Tuesday, October 8, 2013
Several cases have come up in the past few years testing the boundaries of schools' authority to discipline students for on-line speech. The Supreme Court has yet to offer any direction in these cases, and inconsistencies abound among some lower courts. Fayette County Public Schools in Georgia avoided those thorny issues in a case that involved poking fun at a student, rather than punishing her. In a presentation on internet security and social media use that was open to the public, the district displayed a powerpoint slide that included a cartoon entitled “Once It's There—It's There to Stay.” The slide "featured a picture of [a current student] in a bikini standing next to a life-size cutout of singer Calvin 'Snoop Lion' Broadus (also known as 'Snoop Dogg'). [The district official] found this photo by browsing students' Facebook pages for pictures to use in his presentation. The picture was originally taken when [the student] accompanied a friend on her family's vacation, which [the student] contends did not involve sex or alcohol. The slide included [the student's] full name."
The student brought suit against the district, alleging violations of the 4th and 14th amendments, along with state law. The district court in Chaney v. Fayette Count Public School Dist., 2013 WL 5486829 (N.D. Georgia 2013), dismissed all the claims, largely on the rationale that the student had made the picture public. Leaving to the side whether the district was wise to use the photo, I think the court got it right. While students have legitimate objections regarding being punished for their on-line speech or having their privacy invaded, once they speak on-line and open their lives to the public, they likewise open themselves open to others commenting on it. After all, the listeners and viewers have free speech rights as well (subject to defamation and other analogous law).
Monday, October 7, 2013
Nearly a decade ago, a few graduates and current students from Maryland's historically black colleges and universities (HBCU), along with a local attorney or two, began questioning the funding and expansion practices of the state's entire university and college system. They filed suit, but soon found they were in for an enormous fight and needed more legal resources. With the help of John Brittain, the Howard University School of Law Civil Rights Clinic agreed to take on the case. Professor Aderson Francois and his law students largely carried the law suit in the early days. They were later joined by the Lawyers' Committee for Civil Rights and pro bono attorneys from Kirkland and Ellis.
Yesterday, the plaintiffs' long road resulted in a victory. The United States District Court for Maryland found in Coalition for Equity and Excellence in Maryland Higher Education v. Maryland Higher Education Commission that, in fact, the state had engaged in unconstitutional action in regard to Maryland's HBCUs. The court rejected plaintiffs' claims that the state's funding practices were unconstitutional, but, on the all important issue of the overall structure of the Maryland system, the court wrote:
I find the plaintiffs have prevailed in establishing current policies and practices of unnecessary program duplication that continue to have a segregative effect as to which the State has not established sound educational justification. Remedies will be required.
In other words, the State formerly operated a de jure segregated higher education system. The constitution imposes a duty on the state to dismantle that system. The state's current practice of creating and expanding new programs at historically white institutions, which duplicate already existing programs at HBCUs that are right down the road, has the effect of keeping Maryland's colleges and universities segregated. By doing so, it is violating its constitutional duty to disestablish segregation.
The court did not issue a specific remedy, but directed the parties to enter into mediation and come up with a plan to current the system's deficiencies.
Tuesday, October 1, 2013
Lincoln Brown, a middle school teacher in Chicago, was dismissed in the fall of 2011 for a discussion he lead in class about the n-word. In his sixth grade grammar class, he
Thursday, September 26, 2013
Wednesday, September 25, 2013
Even though Louisiana's fiscal effort levels rank at the bottom of the nation, its funding formula is slightly regressive (sending less money to the neediest districts), and many of its school facilities can only be described as deplorable, litigants have never been able to break through with a school funding victory. Courts have fallen back on the notion that the state constitution only requires a "minimum" education. See, e.g., Jones v. State Board of Elementary and Secondary Education, 927 So.2d 426 (La. App. 1 Cir. Nov. 4, 2005); Charlet v. Legislature of the State of Louisiana, 713 So.2d 1199 ((La. App. 1 Cir. 1998). Although not an attack on the state's funding practices as a whole, litigants did get a victory earlier this year in Louisiana Federation of Teachers v. State, 2013 WL 1878913 (Supreme Court of Louisiana, 2013). See also LaJuana's post on the case from earlier this summer.
The case was brought by teachers, school boards and parents. The primary theory of the case was that the state's voucher program diverted funds away from public schools to non-public schools in violation of the state constitution. The Louisiana Supreme Court agreed, reasoning that while the state constitution only mandates a minimum education program, once the state determines the cost of the minimum program, it cannot then take a portion of those minimum funds and give them to nonpublic schools. Doing so necessarily drops support of the public schools below "minimum."
I revisit this case for two reasons. First, it is an example of courts' willingness to intervene in school funding if they can identify a technical violation, even if they they have previously indicated an unwillingness to address substantive questions of school funding. Recognizing this technical versus substantive approach, we have seen a few other cases this summer attack charters and/or vouchers on technical constitutional grounds. Second, this victory early this summer adds further context to the current DOJ lawsuit to block the voucher program (although it is not softening on the notion of "blocking" the program). The DOJ suit is based on federal desegregation law, whereas Louisiana Federation of Teachers is based on state law, but the plaintiffs victory this summer shows how embattled the state's voucher program is. Right or wrong, the Governor is understandably testy over one of the state's signature programs. He is obviously unwilling to let it sink without a big fight.
On Monday, the Georgia Supreme Court held that the Atlanta Independent School System (“APS”) and the Atlanta Board of Education could not withhold $38.6 million from charter schools to pay APS’s pre-existing unfunded pension liability. Under Georgia law, local charter schools are entitled to a proportional share of its school system’s local revenue. Last year, the APS decided deduct money from local revenue for charter start-up schools to help cover a $550 million unfunded pension liability for APS employees that has been accruing since the 1980s. Charter schools sued to force APS to distribute the money without any deduction for APS’s pension liability, arguing that they should not have to pay for debts that they had not incurred. The Georgia Supreme Court agreed with the charter schools’ position that the statutory funding formula in Georgia’s Charter Schools Act did not authorize the APS to subtract the $38.6 million from its calculation of local revenue. The Supreme Court determined that because the statute established a separate and distinct local revenue funding formula for start-up charter schools, the General Assembly intended to fund local schools unequally with regard to local revenue. Read the opinion in Atlanta Independent School System, et al. v. Atlanta Neighborhood Charter School, Inc., et al. here.
Monday, September 23, 2013
Just last week, I posted on a Connecticut court rejecting a student's cause of action under the state's anti-bullying statute. In contrast, the Old Bridge School Board in New Jersey settled an anti-bullying case for 60,000 last week. New Jersey's anti-bullying law is considered the toughest in the nation. It was a response to the public outcry over the suicide of Tyler Clementi, a freshman at Rutgers University, in 2010. The explicit mandates and clarity of the New Jersey law seems to have made all the difference.
This clarity has a huge upside statewide. Knowing the risks of litigation, districts will respond quicker and more effectively to bullying. Those who do not will suffer the consequences. The trouble is discerning what amounts to "bullying" around the margins. All "bullying" is serious and I, in no way, mean to minimize it. Schools should be held accountable for the failure to stop it. But some schools overreact and punish behavior that is not bullying. From many schools' perspective, it is better to be safe (as in not get sued) than sorry. This is the same approach we saw schools take with zero tolerance policies on weapons and drugs, which has lead to the expulsion of children with finger clips, butter knives in their lunch boxes, and tylenol in their purse. New Jersey has apparently already seen some potential overreactions/over-broad applications with bullying. None of this is to find flaw in the law, but to point out the potential serious downside of applying laws without a good dose of common sense and judgment. Unfortunately, those dreaded professional development workshops might be of some use here.
Friday, September 20, 2013
In 2002, the Connecticut Legislature enacted an anti-bullying statute that directed schools to come up with policies and procedures to address and prevent bullying. In the wake of high profile bullying incidents that led to the victims' suicide or other serious harm, Connecticut reenacted and strengthened the statute in 2011. The current statute broadly defines bullying and harassment and provides that "Each local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying in its schools." Conn. Gen. Statute 10-222d. It further specifies 17 different responsibilities, structures, and procedures that must be included in the plan and complied with. Id. The statute does not include an explicit cause of action.
Some prior courts had addressed the existence of cause of action under the old version of the statute, but Mazzo v. Town of Fairfield Bd. of Educ., 2013 WL 4872203 (Sup. Ct. of Conn. 2013), appears to be a case of first impression regarding the newly enacted version of the statute. Plaintiff's primary argument appeared to be that Conn. Gen. Statute 10-222l evidences intent to create of cause of action because, while that section speaks to immunity, it conditions that immunity on good faith compliance with the statute. In other words, plaintiff argues that a basic failure to attempt to comply with the Act is not granted immunity and, thus, is actionable under the act.
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
Is Pursuing Administrative Relief Futile After Graduation for Special Education Students? Court Says No
Dakota Horton enrolled in a new school in the fall of 2008. In his prior school, he had received services pursuant to a Section 504 plan, but when he enrolled in Boone County Schools, his 504 plan was never reviewed, notwithstanding his parents requests. In his senior year, he encountered problems in math and requested an accommodation. He did not receive it, did not pass the course, and was unable to graduate with his class in May of 2012. He did, however, graduate that summer. Apparently, this delayed graduation and the course structure affected his subsequent college opportunities and requirements.
He filed a claim against the district under Section 504 of the Rehabilitation Act of 1973 and IDEA. The district court dismissed his case for failure to exhaust his administrative remedies. Horton asserted that his administrative remedies were futile because he had already graduated from high school, but the district court in Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), disagreed, finding that he still could have sought compensatory services from the district after the fact.
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.
Several states like Nebraska, Wyoming, Tennessee and Wyoming, to name just a few, have seen school finance litigation on behalf of rural districts. Other states like North Carolina have included rural districts as a distinct class of disadvantaged districts within broader litigation. Notwithstanding these examples, it is sometimes easy to miss the plight of rural districts, particularly in states that are not rural. In states like New York and New Jersey, the neediest districts and students find their homes in the same places as school finance litigators: large urban centers. Advocates and reasearchers do not have to look far to find obvious and gross inequity.
A new article by Kyle E. Gruber, Bringing Home the Bacon: A Case for Applying the New Jersey Urban School Funding Remedy from Abbott v. Burke to Poor Rural School Districts, 2 Colum. J. Race & L. Rev. 167 (2012), highlights how rural districts have been overlooked in New Jersey, the home of the strongest school finance precedent in the nation. Litigants filed suit and apparently established constitutional violations 15 years ago, but unlike urban districts, have yet to receive a remedy.
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.
Special Education Teacher Who Objected to School’s Inclusion Plan Failed to State Valid Retaliation Claim Under § 504 or First Amendment
The Tenth Circuit has rejected a former special education teacher’s § 504 and First Amendment retaliation claims based on her reassignment to a general education classroom in Duvall v. Putnam City Sch. Dist. No. 1. The federal circuit court found that the teacher’s reassignment, after she protested her school’s special education policies, was supported by a legitimate reason and that her statements were made as part of her official duties, for which she was subject to employer discipline under the Garcetti/Pickering test. The teacher, Louise M. Duvall, was a special education teacher in Oklahoma when she protested her school’s decision to adopt a “full inclusion” model for providing special education services in the 2007-2008 school year. The full inclusion model integrates special education students into general classrooms by having special education teachers co-teach in those classrooms. Duvall was concerned that this inclusion model would not allow her to provide special education services such as “pull-out services”– one-on-one or small group instruction for special education students away from general education classrooms. She voiced her concerns that the inclusion model did not comply with federal disability education laws. Duvall also dissented to most of the IEPs with which she was involved during the school year and asked state agencies for information about “services for children.” She believed that those acts got her into trouble with school administrators. The next school year, the principal reassigned Duvall to a first-grade classroom, because he “believed she would be happier and more comfortable in that position and that such a move would greatly benefit her, her students, and the school.” Duvall protested the move, saying that she did not want to lose the extra five percent of pay that she received as a special education teacher. Duvall then resigned and sued the Putnam City School District and the school’s administrators under the Rehabilitation Act and the First Amendment, claiming that her reassignment to teaching first-grade was in retaliation for her opposition to the inclusion model. The Western District of Oklahoma granted summary judgment in favor of the school district on all of Duvall’s claims.
On appeal, the Tenth Circuit agreed that while Duvall’s reassignment was an adverse employment action, Duvall did not prove that the district’s stated reason for reassigning her was illegitimate or pretextual under McDonnell Douglas. Given that the school district was committed to a special education model to which Duvall was strongly opposed, the district’s stated reason for reassigning her—because the move would benefit her and the school—was not unworthy of belief, the circuit court found. The Tenth Circuit also found that Duvall’s letters and IEP dissents were not protected speech that was insulated from employer discipline under the First Amendment. The circuit court, applying Garcetti/Pickering, found that Duvall’s duties as a special education teacher included ensuring compliance with state and federal law, and thus her speech about the district’s meeting those obligations was undertaken in the course of her official duties. The Tenth Circuit further found that Duvall could not show that her statements to the State Department of Education about the full inclusion model caused her reassignment, because she failed to show that her direct employers were aware of the content of her views about the full inclusion model. Read the full opinion in Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013) here.
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.